Gladstones LBC received for residential parking spot (New World Facilities East Essex LTD)

Le_Kirk

It is recommended to hand deliver Witness statement, evidence and cost schedule in a ring binder, cross referenced and tabbed for ease of reference by you and the judge. You could e-mail to the court but will they print it and check the page order etc? It is OK to e-mail to the claimant provided that accept service by e-mail. The addresses should be on your paperwork but it is normal to deliver/post to the court where the hearing is to take place. If you have to use post, do not use a recorded/signed-for service as, it recipient refuses delivery, they have proof of non-delivery - not what you want.

Coupon-mad

BlueNine wrote: »

Costs schedule done...it's coming out at around £350, is that too much? (it has taken me a long time to write this stuff up etc)

That is about right but you will need to have a crib sheet with you to use at the end of the hearing, listing their wholly unreasonable conduct, in order to get over that very high bar for anything more than ordinary costs.

Also big question, for submitting the Witness statement etc - can I email it? if not and I have to post/hand deliver it, do I sent it to the county court where the hearing is taking place, or to the county court at the top of my notice of allocation to the small claims track (hearing) letter?

Post it, and the only court involved now is you local court.

Anything you post to the court, put the HEARING DATE AND TIME, AND CLAIM NUMBER on a covering letter. Makes it easier for the Court clerks to make sure it reaches the right file in time.

BlueNine

Looks like some last-minute shopping for binders tonight!


Since my local court only matters I can hand-deliver it tomorrow (deadline day) so that's no problem.



The claimant accepted my defence by email so I'd think emailing the WS would be ok? If not, am I reading it right that I file my documents to the claimant at the court as well?


Since tonight is going to be printing and organising for hand-in tomorrow, if I could get a glance over my WS it'd be appreciated.


My exhibits are

A. Excerpts from Tenancy Agreement
B. Excerpts from Land Lease
C. Photo of permit
D. Schedule 4 POFA 2012
E. Schedule 2 CRA 2015
F. p87-88 Guidance for CRA 2015
G. Notice to Keeper
H. Excerpts from POPLA Annual Report 2015
Ia, Ib and Ic. Photos of signage
J. Jopson v Homeguard transcript
K. PACE v Mr N transcript
L. UKPC v Masterson transcript
M. Email transcripts regarding PCN
N. Vehicle Control Services v Davies judgement letter
O. UKCPM v Esplanade judgement letter
P. Britannia Parking vs Mr C court report


I also have the supplementary WS which is basically post #14 of the abuse of process thread verbatim, but I've just added some (see Exhibit X) to point to the relevant judgements.

IN THE COUNTY COURT
CLAIM No: x

BETWEEN:
NEW WORLD FACILITIES EAST ESSEX LTD
(Claimant)

-and-

x
(Defendant)

DEFENDANT'S WITNESS STATEMENT

I, x of x am the Defendant in this claim. If the documents are not set out in the way that the Claimant may do, I trust the Court will excuse this. The facts and matters stated are true and within my own knowledge, except where indicated otherwise.

I will say as follows:

1. This Claim arises from an alleged breach of contract relating to a parking incident in my own parking space outside a flat that my wife and I rented from the owner.

2. The flat is at x and also included allocated parking space number x.

3. There was a Lease in existence in relation to the flat and parking space - a copy of which was obtained from the land registry and I have reason to believe that the terms of the lease have not varied from the document dated x (Exhibit .

4. This is a flat which comes with unfettered rights to the parking space. When the land was leased to my landlord on x, rights were given to use the parking space as well as the right to quiet enjoyment without interruption, these rights were demised to my partner and I as tenants of the landlord. Excerpts from the tenancy agreement showing the tenancy being in place at the time and the right to quiet enjoyment have been attached as Exhibit A and relevant pages from the land lease as Exhibit B.

5. I also took possession of a parking permit disc for display in a car. A picture of this is shown at Exhibit C. However, this is submitted only as evidence of authorisation to park on the property. There was no obligation for it to be displayed that could override my rights and easements at this location.

6. I have attached a copy of the relevant excerpts from the lease document as Exhibit B and have highlighted the following points:

a. Front page which shows the date the land lease was valid from.

b. The page titled ‘Plan 2’ which shows the location of the parking space referred to in the land lease as defined on page 1, section 1.1.3.1 ‘Definition of ‘the Car Parking Space’’

c. Page 5 – Section 2 ‘Demise’
“The Landlord demises the Flat and the Car Parking Space to the Lessee with full title guarantee, together with the rights specified in Schedule 2 but excepting and reserving to the Landlord the rights specified in Schedule 3, to hold to the Lessee for the Term subject to all rights, easements, privileges, restrictions, covenants and stipulations of whatever nature affecting the Flat and the Car Parking Space including any matters contained or referred to in Schedule 9, yielding and paying to the Landlord without deduction or set-off;”

d. Page 10 – Section 2-6 ‘Right to use the communal parking spaces’
“The right, in common with the Landlord and all other persons having a like right, for the Lessee and all persons expressly or by implication authorised by him in accordance with such reasonable regulations as the Landlord may make from time to time for the benefit of the lessees of the Building to use the car parking spaces designated by the Landlord from time to time as available for common use by the lessees and occupiers of the flats in the Building and their visitors.

e. Page 16 – Section 5-9.2.1 ‘Assignment, subletting and charging of part’
“The Lessee must not assign, sublet, part with possession of, or charge part only of the Flat or Car Parking Space. The Lessee must not assign, sublet, part with possession of, or charge the Flat separately from the Car Parking Space or vice versa.”

f. Page 19 – Section 5-31.2 ‘Use of the Car Parking Space’
“The Lessee must use the Car Parking Space for car parking only of a single roadworthy private car, and must not carry out any servicing repairs or painting of any car on the Car Parking Space.”

g. Page 21 – Section 6-1 ‘Quiet enjoyment’
“The Landlord covenants with the Lessee to permit the Lessee peaceably and quietly to hold and enjoy the Flat and the Car Parking Space without any interruption or disturbance from or by the Landlord of any person claiming under or in trust for him.”

7. I have attached a copy of Schedule 4 of the Protection of Freedoms Action 2012 which relates to the recovery of unpaid parking charges as Exhibit D and have highlighted the following points:

a. Page 2 – Paragraph 2.2 and 2.3
“2 (2) The reference in the definition of “parking charge” to a sum in the nature of damages is to a sum of which adequate notice was given to drivers of vehicles (when the vehicle was parked on the relevant land).

(3) For the purposes of sub-paragraph (2) “adequate notice” means notice given by –
(a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or
(b) where no such requirements apply, the display of one or more notices which –
(i) specify the sum as the charge for unauthorised parking; and
(ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land.”

b. Page 3 – Paragraph 4.1 and 4.2a
“4 (1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle.

(2) The right under this paragraph applies only if –
(a) the conditions specified in paragraphs 5, 6, 11 and 12 (so far as applicable) are met; and”

c. Page 4 – Paragraph 6.1b ‘Conditions that must be met for purposes of paragraph 4’
“6 (1) The second condition is that the creditor (or a person acting for or on behalf of the creditor) –
(b) has given a notice to keeper in accordance with paragraph 9.”

d. Page 6 – Paragraph 9.1, 9.2a, 9.2e and 9.7.
“9 (1) A notice which is to be relied on as a notice to keeper for the purpose of paragraph 6(1)(b) is given in accordance with this paragraph if the following requirements are met.

(2) The notice must –
(a) specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;”

“ (e) state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper –
(i) to pay the unpaid parking charges; or
(ii) if the keeper was not the driver of the vehicle, to notify the creditor
of the name of the driver and a current address for service for the
driver and to pass the notice on to the driver;”

“(7) When this notice is given it must be accompanied by any evidence prescribed under paragraph 10.”

8. I have attached a copy of Schedule 2 of the Consumer Rights Act 2015 which relates to consumer contract terms which may be regarded as unfair as Exhibit E and have highlighted the following points:

a. Page 1 – Paragraph 6
“6 A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation”

b. Page 2 – Paragraph 10
“10 A term which has the object or effect of irrevocably binding the consumer to terms with which the consumer has had no real opportunity of becoming acquainted before the conclusion of the contract.”

c. Page 2 – Paragraph 14
“14 A term which has the object or effect of giving the trader the discretion to decide the price payable under the contract after the consumer has become bound by it, where no price or method of determining the price is agreed when the consumer becomes bound”

9. I have attached a copy of pages 87 and 88 of the Unfair Contract Terms Guidance for the Consumer Rights Act 2015 as Exhibit F and have highlighted the following points:

a. Section 5.14.3, 5.14.4 and 5.14.5
“5.14.3 Other kinds of penal provisions which may be unfair are clauses saying that the business can:
- claim all its costs and expenses, not just its net costs resulting directly from the breach;
- claim both its costs and its loss of profit where this would lead to being compensated twice over for the same loss; and
- claim its legal costs on an 'indemnity' basis, that is all costs, not just costs reasonably incurred. The words ‘indemnity’ and 'indemnify' are also objectionable as legal jargon – see the section on transparency in part 2 of the guidance.

The fairness of any term is assessed having regard to the other terms of the contract, and even if not excessive when considered separately, may be unfair if it could operate together with another term or terms so as to lead to the trader being compensated twice for the same loss.

5.14.4 Potentially penal terms.
A disproportionate financial sanction involving requirement to pay a fixed or minimum sum, in all circumstances, will be open to challenge if the sum could be too high in some cases.

5.14.5 Assessment of unfairness focuses on the effect terms could have, not just the purposes they are intended to serve. Thus a clause may be unfair if it allows the trader excessive discretion to decide the level of a financial sanction, or if it could have that effect through being vague, or unclear, or misleading about what consumers will be required to pay in the event of default. Consumers rarely know about technical issues such as ‘mitigation’ of loss (see below), and so can easily be misled into thinking that the trader can claim more than is really the case.”

10. On x my car registration x was correctly parked in my allocated parking space number x, no Notice to Driver was affixed to the windscreen at any point between then and x when the PCN to me as Keeper was sent by Parking Collection Services (PCS) on behalf of New World Facilities East Essex LTD (NWFEEL).
On x I contacted the letting agent x requesting information in order to appeal, and to complain about receiving the PCN, they responded on x to state that they had passed the information on to the property management group, y.
On x y got in contact with me to say that “the owner of the flat has the absolute right to use the parking space and so I imagine that this right has been transferred to you via your tenancy agreement” (full transcript in Exhibit M), following this I completed the appeals process using PCS’ online appeals form and on x was told that they can only accept an appeal from the driver on the date in question.

11. I submit Exhibit G the Notice to Keeper, received on x, as evidence that the NWFEEL have no right to recover any unpaid parking charges from me as keeper of the vehicle as the notice given did not meet the requirements of Schedule 4 Paragraph 9 of POFA 2012. There were no specifics to the period of parking mentioned, there was a lack of statement declaring the creditor does not know the name of the driver and a current address for service, and the notice was accompanied by no evidence – it took until x for any evidence to be sent despite repeated requests for it as evidenced in Exhibit M.

12. Should the Court agree that NWFEEL have no right to pursue me as keeper of the vehicle, I submit that they also have no right to pursue me as driver of the vehicle, and submit an excerpt from the POPLA Annual Report 2015 (Exhibit H) in which POPLA’s Lead Adjudicator, Henry Greenslade states that “there is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver…Further a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time.”

13. In relation to the lease, which underpins the conduct of tenancy I will refer to the following judgments which refer to the fact that the terms of a lease cannot be altered without formal consultation, and taking the appropriate steps.

14. As the tenant of the flat the Defendant has primacy of contract, being indisputably authorised and ‘sanctioned’ the right to park a car in the Defendant’s allocated space which is assigned to the apartment. There is no term or contract applicable to me as tenant nor the legal owner of the apartment flat, mandating the requirement to display a permit, or to pay a penalty to a third party for non-display of same.

15. NWFEEL’s signage at this site states “No parking at any time” (see Exhibit Ia) and refers among other ambiguous and not clearly-worded headings: ‘‘residents & visitors must display a valid permit’’ and ‘‘authorisation to park in an allocated bay must be granted by the landowner’’ (see Exhibit Ib).

16. In the event that the Court believes there was an attempt at forming a contract, the Defendant will interpret the above clauses with their normal meaning and assert that parking was granted and ‘sanctioned’ and was not ‘unauthorised’.

17. In the event that the Court believes a contract was formed via signage, I submit that such a contract would not be formed with NWFEEL as every sign in the area states that the company is registered in England & Wales with a company number of 8307526. This company number is for Scrimmage Productions Limited, a company which dissolved on 28 January 2015.

18. It is submitted that this notice is attempting to make a contractual offer which is forbidding, and as such does not fulfil the basic requirement of a contract, i.e. each party to the contract must offer valuable consideration to the other party, on clear terms capable of acceptance. In this case, the parking operator is not offering anything to a party with leasehold title who already enjoys an unequivocal right to park and access the property, unhindered. The notices cannot reasonably be construed as having created a contractual relationship between the original parking operator and the Defendant, remembering that this Claimant was not that ‘parking operator’ anyway.

19. I cite as Authority, the Judgment in the Appeal case of Jopson v Homeguard Services [2016] B9GF0A9E, Oxford County Court, 29 June 2016 (Appended as Exhibit J). In his Judgment, HHJ Harris QC states, at [18]: ‘It therefore seems clear to me that the respondent was not in any position unilaterally to override the right of access which the claimant had bought when she purchased the lease …’ and this Senior Circuit Judge commented that life in a block of flats would be unworkable if authorised access to properties by parties entitled to that grant, were to be subject to a penalty.

20. A similar case was recently heard at Croydon County Court, in PACE Recovery & Storage v Mr N (C7GF51J1) (Appended as Exhibit K), where District Judge Coonan stated in her Judgment at [18] ‘I have to be satisfied that the contract has been varied to include such a provision and I am not satisfied because I am not satisfied that clause 6(3) was complied with at any relevant stage. Therefore, the tenancy agreement takes precedence over the arrangement between Sutton and yourself, the claimant, Pace Recovery. As I have said, it is a pure matter of contract that I have to decide. Therefore, the claim is dismissed’.

21. In a similar case in UKPC v Masterson, B6QZ4H3R (Appended as Exhibit L) at Edmonton in May 2016, DDJ Ellington in the Judgement at [6], found that signage stating ‘no unauthorised parking’ made no offer. He held: ‘‘I am not able to consider that that is an open offer to contract to park at first sight. If anything, it prohibits unauthorised parking on my reading of it.’’

22. I submit that these cases provide persuasive authority for my contention that the property lease title has primacy of contract over the original creditor’s signage, which in any event exempts cars parked with authority or ‘sanction’. I consider that the attempt to impose a ‘fine’ on me for parking in the allocated bay of my rental property is a case of derogation from grant which is not something for the courts to support against a resident.

23. There is no comparable ‘legitimate interest’ as found at the Supreme Court in the complex and completely different (retail park) case of ParkingEye v Beavis [2015] UKSC 67. In the UKPC v Masterson case, DDJ Ellington also distinguished the case from Beavis: ‘‘I am unable to accept that the particular circumstances of this case reveal a contractual licence to park with a contract between the parking manager, in this case UKPC, in the Supreme Court authority ParkingEye, and the vehicle owner or driver, in this case the defendant, and in the Supreme Court authority, Mr Beavis.''

24. The particulars of claim include a substantial charge additional to the parking charge which it is alleged the defendant contract to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 not with reference to the judgement in Parking Eye vs Beavis. It is an abuse of process from the claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover and is an attempt at double recover.

25. The added charge in the particulars of claim also fail paragraphs 6, 10 and 14 of Schedule 2 of the Consumer Rights Act 2015 and a test of fairness must be considered by the court. Section 5.14.3 of the Guidance to the Consumer Rights Act 2015 suggests that trying to claim all costs and expenses may be penal and unfair.

26. The Court is invited to dismiss the Claim as being without merit, and further, in the event that the Claimant should discontinue this Claim, to maintain the listed hearing date of x as a costs hearing, in order that I can apply for a Costs Order against the Claimant.

Statement of Truth:

I believe that the facts stated in this Witness Statement are true.

KeithP

BlueNine wrote: »

...am I reading it right that I file my documents to the claimant at the court as well?

No, that's not right.

The Claimant's 'address for documents' is clearly stated on your Claim Form.

Coupon-mad

The above is a very good summary of what to file with a WS now!

I might link that as a good example, when I edit the NEWBIES thread.

BlueNine

So everything got handed in on friday fine.

Today I received the claimants witness statement and it's knocked my confidence a little bit to be honest.

They're claiming their signage is unambigious

- I feel ok about this as some of the signage says "no parking at any time" (although that is only in an area in front of some doors)

They're claiming it's the drivers responsibility to check for signage, check the legality and obtain authorisation before leaving my vehicle.

- My argument to this will be that the terms state "by entering this site" and that the print is so small that I'd have to leave the vehicle to be able to get any details to obtain authorisation.

If they waive one charge on the basis in my defence it would open the floodgate to waiver many more charges. It's the defendants obligation to ensure compliance with parking obligations

- Is it? and yeah...that's the point

I failed to nominate who was driving which is required under para 5(2) of the act

- is it?

Elliot vs Loake 1983 - registered keeper may be presumed to have been the driver unless sufficient rebutted, asks the court to conclude that I was the driver.

- Not sure if this wins vs what I put in my WS

POFA 2012 4.2 states that; the "keeper" means the person by whom the vehicle is kept at the time the vehicle was parked, which in the case of a registered vehicle is to be presumed, unless the contrary is proved, to be the registered keeper.

- Are they not arguing that the keeper is the keeper here?

Defendants opinion on fairness of the charge cannot impact liability. In parking, the defendant understood a charge would apply.

Beavis para 108 "a reasonable motorist would have agreed to the term".

Beavis accepts an establish principle that a contract can be made by Ts and Cs on the sign.

- Feel like I've got this covered?

Defendant has not provided evidence to support their right to park.

- Is my permit not evidence?

By receiving / accepting a permit, the defendant is bound to the parking scheme which was in part for their benefit. In taking the benefit the defendant must accept their part to play which was to display the permit.

- the permit came in the estate agents bundle so I had no chance to accept or deny the terms and nothing that came with / on the permit says you have to display it! Also doesn't this counter their own point that I didn't have authorisation to park?

No objections were made prior to the first PCN, if the defendant had a right over the space they ought to have notified the company rather than accepting the permit. Any rights the defendant did have were therefore abandoned

- Surely this is utter crap ? Especially abandoning any other rights!

VCS vs HMRC 2013 and Beavis say the contracting party need not show they have a right to do what they have promised in performance of a contract, nor is the agreement between Operator and Landowner of any relevance. In any even they have authorisation on behalf of the landowner to operate the relevant land.

- This is what worries me, they have a letter in their evidence that was sent to the landlords offering them to opt out of the permit parking development and providing a period of 7 days to let them know if they want to opt out. Then another one saying when the "go live" date was...since my rights are demised am I screwed here?

The POC was crap (paraphrasing here) because the procedure only allows the claimant to insert brief details of the claim. but it is argued that it has sufficient info for the defendant to be aware of what the claim relates to.

Furthermore the defendant was sent notices in accordance with the Act and a LBC so would have been aware of the charge which is the subject of the claim.

- Does that hold up?

The LBC contained a list of info, if there was any minor deviation from the CPR then it is within the tolerances.

- One of my points in the WS is saying they didn't say exactly what they had to in the LBC, so maybe this will counter that?

Reasonable sum of £60 has been added, this is ok by IPC rules.

Sign states non-payment will result in additional charges and the LBC says the debt will increase if a claim has to be issued.

- Hoping the signage having the wrong company number plus the abuse of process gets rid of this


and I had to include this one:

The debt has risen as my staff have spent time and materials in facilitating recovery of this debt. This time could have been better spent on other elements of my company's business...My company believe this incurred naturally as a direct result of thedefendants breach and as such asks that this element be awarded as a damage. Alternatively my company has a right to costs pursuant to the sign.

- PARKING CHARGES ARE LITERALLY THE ONLY ELEMENT OF THEIR BUSINESS! and what staff? Its been other companies (debt collectors, Gladstone's) the entire time!
Also does them asking for this as damages change anything?

Coupon-mad

Search the forum for 'waive' or waiver' and there is no need to post about it, as it's a template!

https://forums.moneysavingexpert.com/discussion/comment/76440682#Comment_76440682

They have not written this for your case - search and see how others coped!

PARKING CHARGES ARE LITERALLY THE ONLY ELEMENT OF THEIR BUSINESS! and what staff? Its been other companies (debt collectors, Gladstone's) the entire time!
Also does them asking for this as damages change anything?

Nope, that's the point - they can't. You know from one of my quotes from the Beavis case that a parking firm CANNOT plead a case in damages as they are not in possession. The Supreme Court said so.

We always knew this but the Soton case established it in a way that knocked out all future parking cases for £160 in that court circuit, I hope. That covers Hants, IOW, Wilts and Dorset which is a huge area and well worth drawing to the attention of other area Judges!

I have edited the post #14 from the abuse of process thread this weekend, and I added some of DJ Grand's words, taken from our notes. You can see what he said, and you can use the same words about the claim being 'tainted' with a deliberate attempt at double recovery, to recover more than they are entitled to, when addressing your Judge.

Oh, and read and digest all this!

https://forums.moneysavingexpert.com/discussion/5923804/cpm-gladstones-court-claim&page=2

You will be a veritable 'armchair legal expert' in the end!

nosferatu1001

EVL AGAIN? I thought theyd fgiven up on that rubbish?
No
EvL does NOT say what theyveclaimed. Thats a complete and utter lie. There was *evidence* that the driver was the keeper, unlike here.

POFA does not REQUIRE you to name the driver. Of coruse it doesnt. Read the section
Point out theyre misleading the court.

BlueNine

Well it's good to know they're cookie-cuttering this all the way at least.


I've been looking at some of the threads mentioned (I don't know how you guys do it, my eyes glaze over at the legal speak and I've got ~£260 and a lifetime of "I told you so's" from at least 3 people on the line!) and a few of them say the Skeleton can be a key part of the defence. I've seen some conflicting advice on them though.


1. Do I need one given the layout of my WS?


2. One place said you can bring it on the day, another said send it to the courts by 10am the day before at least - which is generally recommended?


3. Not really a question but I've been having problems with emails to the court...never getting a response so I'm not confident e-filing it (although on the court info page it doesn't mention e-filing like other courts do, so not even sure I'm doing the right thing!) Is it normal to post Skeletons arguments?


4. Just checking I definitely don't send it to Gladstone's until I get one from them or we agree to swap them?

Umkomaas

1. Your WS is immense (3,000+ words) plus a supplementary WS (2,990+ words) and at least 16 evidence exhibits? Do you really need to give a very busy (and sometimes grumpy) Judge even more to read and ingest?

2. If you're submitting a formal Skeleton Argument, it needs to be some days prior to the hearing - to the Judge and the claimant's solicitors. If it's just a reminder for you alone of the points you might want to raise in your (little more than) 5 minutes of 'glory', there's no need to submit.

3. It's not a requirement in the small claims court to submit a SA.

4. Anything you submit to the court must be sent to the claimant's solicitors at the same time. No 'conditionals', no 'ambushes' at the hearing.