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

D_P_Dance

They claim that by accepting it I'm bound by its terms, ...

Who are "they".  I anal, but I think that they are wrong.   

nosferatu1001

Nope, not a complete chain. The MC doesnt hold the land, they cant offer contracts etc. 
Of coruse theyre arguing those. They always do. The rebuttal is the same as ever. 

BlueNine

So with T-Minus 24hrs I thought I'd post my basic outline if/when I'm given time to speak at the hearing. I'm happy for any last-minute critiques/advice but thought it'd also be useful for anyone in the future looking at this to get the full picture as I plan to come back tomorrow and update what worked/didn't work (wall of text incoming!).

 

Primacy of Contract

• As per the Land Lease, the Landowner (my landlord) has the “Right to use the Common Parts” and all persons expressly or by implication authorised by him have the right to use appropriate areas of the Common Parts (which include the car park) for all proper purposes in connection with the use and enjoyment of the Flat and the Car Parking Space.
• o    It also grants Quiet enjoyment of the Flat and Car Parking Space without any interruption or disturbance.
• o   The lease also states that the flat cannot be sublet separately from the Car Parking Space and vice-versa.
• I have a tenancy for this flat with the Landowner, which transfers these rights to me as tenant (in particular “Quiet Enjoyment”). This tenancy does not state that a permit is required for parking.
• To support this, the District Judge in PACE v Mr N ruled that a parking company cannot override the tenants’ right to park.
• Nothing in the Tenancy Agreement or the Land Lease states that there is any term applicable mandating the display of a permit, or to pay a penalty to a third party for non-display of a permit.

 

Abuse of Process

• Fairness Test as per Consumer Rights Act 2015 Part 2 Paragraph 71 –
• o   It is the statutory duty of the court to consider the fairness of the terms, whether a consumer raises the issue or not.
• Guidance to unfair terms,
• o   Section 1.19 defines what a consumer notice which describes this supposed contract,
• o   Section 3.2 states the core exemption does not apply to consumer notices.
• Schedule 2 of the Consumer Rights Act about Unfair terms
• o   Paragraph 6 “a term which requires the consumer to pay a disproportionately high sum” I would say that £160 to park in your own parking space is disproportionate
• o   Paragraph 10 – “No opportunity to become acquainted” but signs state “by entering this land you agree to be bound by Ts & Cs” when signage cannot be read without entering the land
• o   Paragraph 14 – “Discretion to decide the price payable after consumer bound” when signage states “Non-payment will result in additional charges which will be added to the value of the charge and for which the driver will be liable on an indemnity basis” the price has changed from £100, to £160 to £260 after I was supposedly bound by the contract.
• The Guidance to unfair terms expands on this:
• o   Section 5.14.3 Unfair penal provisions are clauses where the business can claim all its costs & expenses and/or claim legal costs on an indemnity basis
• o   Section 5.14.5 Unfair if it allows excessive discretion to decide the level of a financial sanction through being vague, unclear or misleading. – The many different signs also fall into this category
• o   Section 5.20.1 It is a fundamental requirement of contractual fairness that consumers have a real opportunity to read and understand contracts before being bound by them.
• The £100 initial PCN, the £60 “contractual costs” and the £75 legal & court costs are an abuse of process and an attempt at double-recovery
• o   Protection Of Freedoms Act states the maximum sum is the amount in the NTK and after 28 days the claimant has the right to recover “that amount as remains unpaid” not extra.
• o   §  4(5) The maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper
• o   §  4(6) Nothing in this paragraph affects any other remedy the creditor may have against the keeper of the vehicle or any other person in respect of any unpaid parking charges (but this is not to be read as permitting double recovery).
• o   §  9(f) Warn the keeper that if, after the period of 28 days beginning with the dayafter that on which the notice is given…the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid.
• District Judge Jones-Evans ruled in VCS v Davies 2019 that £160 is a penalty and not a genuine pre-estimate of loss.
• District Jude Grand struck out claims in UKPCM v Esplanade 2018 and Britannia Parking v Mr C 2019 due to abuse of process as additional charges are not recoverable under POFA s4, nor with reference to the Beavis case.
• ParkingEye v Beavis 2015 states that a parking company cannot recover damages unless it is in possession.
• o   Since I was a resident there is no legitimate interest in enforcing a charge as my vehicle is the intended recipient of that space
• o   It also defines the £85 PCN as both being for deterring motorists from overstaying, and to meet its costs. In this case that would apply to the £100 PCN - what then is the purpose of the further £60 “contractual costs”? What is the breakdown without operational costs? It must be a penalty. It cannot be a pre-estimate of loss as there are no losses from residential parking bays and cannot be damages without possession.

No Contract Formed / No Authority to Enforce Terms

• Ambiguous & unclear signage with terms such as “No Parking”, “Display a valid permit”, no clear £ amount visible from distance, nor any “big P” that would indicate parking terms as per Beavis signage.
• o   “No Parking” – Forbidding signage cannot form a contract.
• o   Inward facing signs, no lighting around the signs
• Any contract formed was not formed with the Claimant due to the incorrect company number (8307526) being part of the sign they claim was the basis of the contract.
• No chain of contract from Landowner > Management Company > Claimant to prove that they have authorisation to even put signage on the land, let alone charge for parking.
• o   Claimant relies on VCS v HMRC 2013 – Which states “The flaw in the reasoning is that it confuses the making of a contract with the power to perform it.”
• o   Their claim that the opt-out letter to the landowner formed a contract is false, the precedent set in Felthouse v Bindley 1863 states that “Silence is not acceptance” so no contract was formed.
• o   Lack of chain of contracts from Landowner to Claimant shows the inability to perform and enforce terms – If the claimant did make a contract, they cannot perform it and therefore cannot enforce it
• The District Judge in Jopson v Homeguard 2016 ruled that ParkingEye v Beavis [2015] did not apply to residential cases.
• o   Another case UKPC v Mr Aziz Birmingham [2017] C2HW01A6 District Judge Gibson agreed with this. The charge of £100 has no commercial justification and is not a genuine pre-estimate of loss, making it a penalty.
• The claimant suggests that by accepting the permit I am bound by its terms
• o   These are hidden terms, nothing was included with the permit to say terms or conditions were attached – I had no reasonable prospect of reading and understanding them, let alone given appropriate chance to become acquainted with them.
• o   The Unfair contract terms guidance suggests this is unfair practice and liable to challenge
• o   §  5.20.1 It is a fundamental requirement of contractual fairness that consumers have a real opportunity to read and understand contracts before being bound by them.
• o   §  5.20.2 Any provision or notice which seeks to bind the consumer to accept of comply with terms which are ‘hidden’ is liable to challenge.
• o   §  5.20.3 The same objections apply to terms which require consumers to accept that they are bound by the terms of other linked contracts unless given an appropriate chance to become acquainted with them.
• o   Consumer Protection from Unfair Trading Regulations (CPUTRs 2008) prohibit misleading actions and misleading omissions
• o   §  Part 2 6-1 – A commercial practice is a misleading omission if by misleading, it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.

 

Breach of POFA

• Notice To Keeper did not specify everything in Schedule 4 Paragraph 9 of the Protection Of Freedoms Act –
• o   No evidence accompanied it and was not provided until over 1yr 4mths later
• o   The period of parking still hasn’t been specified, they have a single timestamp during which the vehicle was unoccupied.
• Improper pursuit of me as keeper – the claimant invokes Elliot vs Loake to try to claim that the Keeper can be assumed to be the Driver, but in that case there was ample evidence (debris taken from the car) that the driver was the keeper, not a lack of evidence of who the driver was. There were also material facts that the keeper had the only set of keys in his possession that night. Also a crucial part of that case was that forensic evidence showed that the appellant lied. – This case does not introduce any binding legal principal on this case, if any principle can be adduced, it is that once a witness has proved to have lied in one respect (eg that I claimed I’m not the driver and that POFA legally requires me to nominate a driver) it is likely that their evidence elsewhere is also false. – The claimant has to prove their case, they have shown no evidence that I was the driver.

nosferatu1001

Get it clear in your head that YOU already have rights to use that space
The C cannot offer you *anything* - nothing at all - and without consideration flowing there cannot be a contract. 

BlueNine

Yeah I'm hoping Primacy of Contract gets it done, but if for some reason the judge thinks a contract did get formed I want to be ready.

D_P_Dance

The Count speaks the truth, read this

https://en.wikipedia.org/wiki/Contract

BlueNine

ANOTHER ONE BITES THE DUST

It was all about Primacy of Contract, the judge said I showed my AST which made no mention of having to display a permit and they had to prove they had anything that could override it (which they didn't). He was actually pretty sympathetic with the parking company and said if they'd been able to show this they would've been fine, making me think he wouldn't have gone with the abuse of process etc defences. The director of NWFEEL turned up themselves to pusue the claim!

He ordered that they pay costs, but didn't grant unreasonable behaviour (even after I argued breach of data protection) as they are performing a "worthwhile job of stopping unauthorised parking" and that I had "shot myself in the foot" by ever displaying the permit as it showed that I knew about the system.

Still, glad it's over and a mahoosive thank you to everyone on here for the help and advice...don't think I'd have stood a chance on my own.

beamerguy

Well done, another Gladstones claim sales down the river

BlueNine

Just a thought now that I'm home...how do I get the costs from this? Do I contact them now, or do I wait for the judgement to come through?

nosferatu1001

They will send a cheque, usually
What was tehir deadline for costs?

THe judge was talking crap. They dont PREVENT anything. They only make money in fact by having "unauthorised" parking happen....