Letter Before Claim - Gladstones [Residential Parking]

otterpanda

Yes. And attach the POFA and Beavis case like I said, with paras highlighted to walk your Judge though it.

POFA has been submitted. For the Beavis case, am I ok to print out relevant pages rather than the entire supreme court judgement? When I looked at it a few weeks ago I noticed it was approximately 130 pages long..

Le_Kirk

Just print the relevant pages of Beavis.

otterpanda

So, I've had a crack at being concise with my skeleton argument as well as including the additional information re: CRA etc. I've written it in the first person, but I wasn't sure if I needed to change it to 'The Defendant' if it is technically more of a defence rather than Witness Statement. Is this OK or am I way off base?:

I, xx of xx invite the Court to consider dismissing the case for the following reasons, more information for each paragraph is detailed in the Witness Statement, as well as a timeline of events:
1. The property lease for xx does not make any mention of displaying a permit to benefit from the allocated parking space which is associated with the property and named in the property lease.
2. The contract provided by New World Facilities East Essex Limited (NWFEEL) and PMS Leasehold Management Ltd (PMSLML) cannot supersede the property lease as rules in Jopson v Homeguard Services [2016], Pace Recovery & Storage v Mr N and UKPC v Masterson.
3. The signage displayed around the land used forbidding language “no unauthorised parking”, this use of language does not constitute entering into a contract by the act of parking in the allocated parking space.
4. The International Parking Community (IPC)-compliant signage as submitted by the claimant together with their witness statement was not in use at the time of the Parking Charge Notice being issued on 20th January 2017. The claimant was a member of the British Parking Association Approved Operator Scheme (BPA AOS) until 1st January 2017 and on 20th January 2017 the signage displayed around Imperial Apartments was BPA-compliant signage, not IPC. The photographs of the yellow IPC signage are date marked 27th April 2017, not 20th January 2017. The claimant has submitted photographs of the motor vehicle which feature white signs in the background and images of their BPA approved signs. I submit photographs taken on 2nd April 2017 which were sent to the BPA AOS to demonstrate NWFEEL failure to update their signs, three months after terminating their membership with this organisation.
5. The map provided by the claimant of the location of their IPC-compliant signage shows only their yellow signs to be located near the motor vehicle xx which I would further argue demonstrates that they were not displayed at the time of 20th January 2017. I have indicated on a copy of their map where the vehicle was parked.
6. The BPA-compliant signage does not make any mention to additional costs that could be incurred by failing to pay the PCN.
7. The Claimant has stated in their witness statement that a ‘valid permit’ must be displayed in the windscreen of a vehicle to be considered ‘displayed correctly’. This is not included in any signage (BPA-compliant or IPC-compliant or in correspondence between PMSLML and the property owner (P37 of the claimant’s evidence bundle).
Contractual Costs
In addition to my supplementary witness statement regarding the claimant’s contractual costs, I would like to add the following:
8. The purported added 'costs' are disproportionate, a disingenuous double recovery attempt, vague and in breach of the Consumer Rights Act 2015 Schedule 2 'terms that may be unfair'.
9. Whilst quantified costs can be considered on a standard basis, this Claimant's purported added £60 'costs' are wholly disproportionate, are not genuine losses at all and do not stand up to scrutiny. This has finally been recognised in many court areas. Differently from almost any other trader/consumer agreement, case law and two statute laws hold that, when it comes to parking charges on private land, the parking firm's own business/operational costs cannot be added to the 'parking charge' as if they are additional losses. (See paragraph 29 of the claimant’s witness statement)
10. The decision in FTQZ4W28 in Wales was appealed by VCS but the added £60 was still disallowed on 30 Oct 2019, where District Judge Jones-Evans stated that even in cases parking firms win, he never allows the £60 add on, and despite parking firms continuing to include it in their Particulars, most advocates have now stopped pushing for it at hearings. The Judge said that a contract formed by signage is a deemed contract, which the motorist does not have the opportunity to negotiate. That, and the fact that there is no specified sum on the signage, means that the extra £60 cannot possibly be recoverable. He said that the £60 was clearly a penalty, and an abuse of process. However, in light of the overriding objective (CPR 1) he would allow the Claimant to proceed, but the £60 would not be awarded under any circumstances, and further, he ordered that the Claimant must now produce a statement of how they pleaded claims prior to Beavis, and subsequently.
11. In Claim numbers F0DP806M and F0DP201T - less than two weeks later but in England - the courts went further in a landmark judgment in November 2019 which followed several parking charge claims being summarily struck out in the IOW and Hants circuit. These included BPA members using BW Legal's robo-claim model and IPC members using Gladstones' robo-claim model, and the Orders from that court were identical in striking out all such claims without a hearing during a prolonged period in 2019, with the Judge stating: ''It is ordered that the claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in ParkingEye v 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. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998...''
12. At the hearing for BW Legal's N244 application to appeal against two 'test' cases that had been struck out by District Judge Taylor against Britannia Parking for trying to claim for £160 instead of £100 parking charge, the Defendants successfully argued on all three counts including a citation of the Consumer Rights Act 2015 and the duty of the court to apply the 'test of fairness' to a consumer notice (a statutory duty that falls upon the courts, whether a consumer raises the issue or not). All three points were robustly upheld by District Judge Grand, sitting at the Southampton Court on 11 November 2019, where he agreed that:
(a) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was in breach of POFA, due to paras 4(5) and 4(6).
(b) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was unconscionable, due to the Beavis case paras 98, 193, 198 and 287.
(c) The Claimant knew or should have known, that £160 charge where the additional 'recovery' sum was in small print, hidden, or in the cases before him, not there at all, is void for uncertainty and in breach of the POFA para 9.
13. Further, it was successfully argued that the parking firm's consumer notice stood in breach of the Consumer Rights Act 2015, Schedule 2 (the 'grey list' of terms that may be unfair) paragraphs 6, 10 and 14 and due to the statutory duty upon the Courts to consider the test of fairness and properly apply schedule 2 of the CRA 2015 it was irrelevant whether or not the consumers' defences had raised it before. The Claimants were refused their request to appeal - given that the £160 claim in its entirety, was adjudged to have been 'tainted' by breaches of two statute laws and going behind a Supreme Court ruling - and both Defendants were awarded their costs.
14. Consumer notices - such as car park signs - are not excused by the 'core exemption' as set out in the CRA 2015. The CMA Official Government Guidance says: ''2.43 In addition, terms defining the main subject matter and setting the price can only benefit from the main exemption from the fairness test ('the core exemption') if they are transparent (and prominent) – see part 3 of the guidance.'' and at 3.2 ''The Act includes an exemption from the fairness test in Part 2 for terms that deal with the main subject matter of the contract or the adequacy of the price, provided they are transparent and prominent. (This exemption does not extend to consumer notices, but businesses are unlikely to wish to use wording that has no legal force to determine 'core' contractual issues).''
15. The definition of a consumer notice is given at 1.19 and the test of fairness is expended at 1.20: ''A consumer notice is defined broadly in the Act as a notice that relates to rights or obligations between a trader and a consumer, or a notice which appears to exclude or restrict a trader’s liability to a consumer. It includes an announcement or other communication, whether or not in writing, as long as it is reasonable to assume that it is intended to be seen or heard by a consumer. Consumer notices are often used, for instance, in public places such as shops or car parks as well as online and in documentation that is otherwise contractual in nature. 1.20 Consumer notices are, therefore, subject to control for fairness under the Act even where it could be argued that they do not form part of the contract as a matter of law. Part 2 of the Act covers consumer notices as well as terms, ensuring that, in a broad sense any wording directed by traders to consumers which has an effect comparable to that of a potentially unfair contract term is open to challenge in the same way as such a term. There is no need for technical legal arguments about whether a contract exists and whether, if it does, the wording under consideration forms part of it.''
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/450440/Unfair_Terms_Main_Guidance.pdf
16. I am of the view that this Claimant knew or should have known that to claim £160 for a parking charge on private land is disallowed under the CPRs, the Beavis case, the POFA and the CRA 2015 and that relief from sanctions should be refused and costs will be sought by the Defendant on the indemnity basis.
17. The Court is invited to make an Order of its own initiative, dismissing this claim in its entirety (due to the similarities with the Southampton case where the entire claim was deemed 'tainted') and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14 on the indemnity basis, taking judicial note of the wholly unreasonable conduct of this Claimant.
Statement of Truth:

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

Le_Kirk

A skeleton argument is supposed to be an aide memoire so you can use it as a footpath through your defence and witness statement (WS). You seem to have weaved large chunks of WS in there. Not saying you are wrong but will you have time to refer to it all, given the short length of time most posters say they are in the court room.

Umkomaas

If the SA is little more than a regurgitation of large chunks of the Defence and/or WS, then it's just another mass of text being loaded on to a very busy (and sometimes grouchy) Judge.

Surely you just need bullets of your main points of contention, with cross reference to the relevant paragraphs annotated alongside (such as D9, or WS17), making the individual paragraph numbering of the D and WS especially useful.

If you're going to get any chance to speak (and many don't get the opportunity), much better you talk confidently about the particular point you wish to make, the SA simply providing you just enough information for you to commence your statement on it.

[Deleted User]

+1

the facts of a parking case are usually straightforward. A skelly should therefore reflect that - something distilled into 1-2 sides max.

You need only your key points and why claimant points must fail. It is not repetition of documentation the court has anyway.

otterpanda

I'm a little confused then. I'm not able to attend so I won't have a chance to speak anyway. The claimants have submitted false evidence so I need to be able to defend myself against that. So should I only be including the new arguments against their incorrect evidence?

waamo

Countering their false claims is not new evidence. Its already been introduced by one party so can be rebutted.

otterpanda

This is where I'm getting truly confused then. I understand coupon-mad has said to include the additional CRA paragraphs etc following the hearing on 11th.

Is it the skeleton argument where I add my rebuttal to their evidence? Do I not need to summarise my witness statement, only rebuff their incorrect claims?

As I can't make it I need the best chance possible to try and argue my case on paper.

[Deleted User]

A skeleton is a short summary of what you'll say.

If you're not going to attend, what you should submit is a more detailed written submission if you now need to reply to the claimant.

So long as it is pithy and not simply restating what you've already said, that should be fine