Court Claim from PCM/Gladstone

KeithP

BandB58 wrote: »

What about the point ref named location being different to the actual road name where the vehicle was parked? Does this have any relevance or not worth adding to the Defence?

If the whole of Salisbury Village is private land controlled by this PPC, e.g. if Salisbury Village is a private estate, then it makes no difference.

Is this Salisbury Village Hatfield?

BandB58

If the whole of Salisbury Village is private land controlled by this PPC, e.g. if Salisbury Village is a private estate, then it makes no difference.

Is this Salisbury Village Hatfield?

Yes it is. I'm not local, but having driven around the area a bit more recently it does seem to be a private estate controlled by the PPC. But I didn't see any signage anywhere referencing Salisbury Village hence questioning whether the PPC should have named the specific road.

I've added a mention of this in my Defence as per the suggestion above to help highlight the sparseness of the particulars, but understand this naming point might not carry any weight.

KeithP

This has been posted about before.

Search the forum for Salisbury Village, using show posts, to find eleven posts mentioning it - last mention was just just over two weeks ago - on 13 October.

There may, or may not, be something useful there.

BandB58

Update on this and a question I'd appreciate help with:

I've received a letter from Gladstones telling me they have notified the court of their Client's intention to proceed with the claim & they enclosed a copy of their Directions questionnaire.

I am about to go away for just over 2 weeks and I am worried that my Directions questionnaire will turn up during that time, so my question is how long do you have to complete & send back a Directions questionnaire? I had a read through the newbies & time-line threads but couldn't see an answer to this.

Thanks as always for the help

KeithP

I just stuck how long to return directions questionnaire into google and found the answer - fourteen days.

Took much less time that it took you to write that post.

BandB58

I just stuck how long to return directions questionnaire into google and found the answer - fourteen days.

Took much less time that it took you to write that post.

Touche, but thanks.

I should've left the follow up question I had originally written in... Would it be sensible to either a) contact the court to explain I am going away so I may need longer than 14 days to return the questionnaire or b) should I download the questionnaire, complete & send off now even though I haven't yet received it from the court or c) any other suggestions?

KeithP

I would choose option b).

That way you are totally in control.

When completed send the DQ in the same manner and to the same email address as described in post #3 above.

Not forgetting of course to send a copy to the Claimant - address on the Claim Form.

BandB58

I've now received a Notice of Allocation with a court date set for late Feb 2019. Interestingly I have to submit my bundle/docs by end Dec so realistically that means getting them in before Xmas.

I've had a go at my Witness Statement and Skeleton Argument and would welcome any feedback on them both.

Witness Statement

IN THE COUNTY COURT AT XXX COUNTY COURT
Claim No.: XXXX

Between

Parking Control Management (UK) Limited) (Claimant)

-and-

[MY NAME] (Defendant)


_____________________

Witness statement of ******* (Defendant)

I am the Defendant in this matter and I am unrepresented, with no experience of Court procedures. If I do not set out documents in the way that the Claimant may do, I trust the Court will excuse my inexperience.

In this Witness statement, the facts and matters stated are true and within my own knowledge, except where indicated otherwise.

I assert that I am not liable to the Claimant for the sum claimed, or any amount at all, for the following reasons:

1. Whilst I was the Registered Keeper of the vehicle concerned, there is no evidence of the driver.
2. The Defendant denies being the driver at the time of the supposed event, and therefore puts Parking Control Management (UK) Limited to strict proof that any contract can exist between the Defendant and themselves.
3. At the time in 2017, the insurance covered more than one family member, who I have no obligation to name to a private parking firm. It remains the burden of the Claimant to prove their case.
4. Further, it is denied that the Claimant's signage is capable of creating a legally binding contract:
4(i). The single sign displayed upon entering the location (XXX) from the adjoining road (YYY) is obscured by a lamppost and as such is in a position where someone in a passing vehicle is unlikely to see it. (Exhibit XX).
4(ii). There is no signage on the side of the road that the vehicle was parked and therefore there is no indication that there are any terms & conditions associated with parking there. (Exhibits XX & YY).
4(iii). There are no markings on the road itself where the vehicle was parked and therefore there is no indication that there are any terms & conditions associated with parking there. (Exhibits XX & YY).
4(iv). The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. Furthermore, the charge is buried in the small print and is an unfair term. (Exhibits XX & YY).
5. This lack of signage upon entering the location goes against its CoP guidelines:
Part E, Schedule 1 of the Code of Practice of the International Parking Community (of which Parking Control Management is a member), clearly states that “Text should be of such a size and in a font that can be easily read by a motorist having regard to the likely position of the motorist in relation to the sign". Entrance Signs should:
a) Make it clear that the motorist is entering onto private land.
b) Refer the motorist to the signs within the car park which display the full terms and conditions.
The signage is not as per the code.
6. Examples of the signage in the location shows signs which are small and not easy to read particularly from a car. (Exhibits XX, YY and ZZ). An example of the Parking Eye v Beavis case which shows an easier to read sign. (Exhibit XX)
7. On the xxx2017 a Parking Charge Notice was left on the vehicle, VRN XXX.
8. On the xxx2017 I appealed as the Registered Keeper via Parking Control Management’s online appeals system.
9. On the xxx2017 I received a rejection letter to my appeal to Parking Control Management along with a demand for £100. (Exhibit XX).
10. On the xxx2018 I received a demand from Trace Debt Recovery for £160 with no explanation for the increased amount and threatening further debt recovery. No figure for additional charges was agreed nor could it have formed part of the ‘alleged’ contract because no such indemnity costs were quantified on the sign’s Terms and cannot be bolted on later with figures plucked out of thin air, as if they were incorporated into the small print, when they were not. (Exhibit XX).
11. On the xxx2018 I received a further demand from Trace Debt Recovery for £160, again without any explanation for the increased amount.
12. On the xx2018 I received a letter from Gladstones Solicitors demanding £160 be paid to Trace Debt Recovery, again without any explanation for the increased amount.
13. On the xxx2018 I received a County Court claim form from the County Court Business Centre, Northampton for a total of £xxx. Once again, the demand specified an increased amount without any explanation.
I would like to bring to the Judge’s attention that the Claimant has not complied with pre-court protocol (as outlined in the new Pre Action Protocol for Debt Claims, 1 October 2017) as there was no compliant Letter before County Court Claim, which should have been produced, pursuant to paragraph 6 of the Practice Direction Pre Action Conduct.
14. The particulars of claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached. Indeed, the particulars of claim are not clear and concise as is required by CPR 16.4 1(a). There is no information regarding why the charge arose, what the original charge was, what the alleged contract was nor anything which could be considered a fair exchange of information. It just states “parking charge(s)” which does not give any indication of on what basis the claim is brought.
15. The claimant failed to send a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the Claimants contractual authority to operate there as required by the Claimants Trade Association's Code of Practice B1.1 which says:
“1.1 If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the ‘Creditor’ within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges. There is no prescribed form for such agreement and it need not necessarily be as part of a contract but it must include the express ability for an operator to recover parking charges on the landowner’s behalf or provide sufficient right to occupy the land in question so that charges can be recovered by the operator directly. This applies whether or not you intend to use the keeper liability provisions.”
As Gladstones are a firm of solicitors whose Directors also run the IPC Trade Body and deal with private parking issues every single day of the week there can be no excuse for these omissions.
16. I also dispute that the Claimant has incurred £60 costs to pursue an alleged £100 debt. The Protection of Freedoms Act 2012, in Schedule 4, Para 4(5) states that the maximum sum that may be recovered from the Keeper is the charge stated on the Notice to Keeper, in this case £100.
17. The Claimant has at no time provided an explanation as to how the sum has been calculated, the conduct that gave rise to it or how the amount has climbed from £100 to £160.
18. On the xxx2018 I submitted my Acknowledgement of Service via the MCOL website.
19. On the xxx2018 I submitted by Defence to the County Court Business Centre and sent a copy to Gladstones Solicitors. (Exhibit XX).

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


Signature of Defendant:

Date:


Skeleton Argument

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
2. The Particulars of Claim state that the Defendant was driving the Vehicle and/or is the Keeper of the Vehicle. These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5.
2.(i). Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached. Their particulars of claim just state "…incurred the parking charge(s) on xxx2017 for breaching the terms of parking on the land at xxx" and do not say whether the sum is due as a contractual sum, damages for breach of contract or money due for something else, such as a liability for a failure of duty of care or trespass under common law tort.
2.(ii). In addition, the location stated in the Particulars of Claim (“XXX”) differs from the actual location the vehicle was parked (XXX).

THE CIVIL PROCEDURE RULE 16.4 IS APPENDED AS EXHIBIT: E.1
THE CIVIL PRACTICE DIRECTION 16, PARAS. 7.3 TO 7.5 IS APPENDED AS EXHIBIT: E.2
3. The Defendant has no liability as they are the Keeper of the vehicle, and the Private Parking Company has failed to comply with the strict provisions of PoFA 2012 to hold anyone other than the driver liable for the charges.
3(i). the driver has not been evidenced on any occasion.
3(ii). There is no presumption in law that the Keeper was the driver and nor is a Keeper obliged to name the driver to a private parking firm. The vital matter of 'keeper liability' regarding the law when parking on private land was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015 in the Annual Report where he stated:

“There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. 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. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If... {POFA 2012 Schedule 4 is}... not complied with then keeper liability does not generally pass."

A COPY OF HENRY GREENSLADE’S WORDING FROM THE POPLA ANNUAL REPORT 2015 ‘UNDERSTANDING KEEPER LIABILITY’ IS APPENDED AS EXHIBIT: E.3
3.(iii).Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator is unable to transfer the liability for the charge using the POFA. This claim is founded upon a misrepresentation of facts and misrepresentation of the law.

4. The original PCN posted by this Claimant states a Full Charge of £100.00 (£60.00 discounted), however, the Claimant's legal firm now inflates these sums, in a deliberate or negligent attempt at double recovery:

1. Principal debt: £100.00
2. Recovery costs: £60.00
3. Interest: £10.25
4. Legal representative’s costs: £50
5. Court fee: £25.00
6. Outstanding balance to pay now: £245.25

THE ORIGINAL PARKING CHARGE NOTICE IS APPENDED AS EXHIBIT: E.4

5. It is clear that no checks have been made as to the facts of the alleged contract, signs or parking charge, in this Claimant's undue haste to issue robo-claims in their thousands, under excuse of jumping on the bandwagon started by the (completely different and complex) case in ParkingEye Ltd v Beavis [2015] UKSC 67 ('the Beavis case').


6. The Claimant had no locus standi at the time of this parking event and at best, were contractors of a principal, the landowner. The Claimant is put to strict proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge, unless specifically authorised by the principal:

6.(i). The Claimant has failed to send a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the Claimants contractual authority to operate there as required by the Claimants Trade Association's Code of Practice B1.1 which says:
“1.1 If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the ‘Creditor’ within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges. There is no prescribed form for such agreement and it need not necessarily be as part of a contract but it must include the express ability for an operator to recover parking charges on the landowner’s behalf or provide sufficient right to occupy the land in question so that charges can be recovered by the operator directly. This applies whether or not you intend to use the keeper liability provisions.”

6.(ii). They have failed to show a cause for action by way of sight of a copy of the contract they have with the landowner to assign the right to enter into contracts with the public and to make claims and take civil action against drivers in their own name.

6.(iii). As Gladstones are a firm of solicitors whose Directors also run the IPC Trade Body and deal with private parking issues every single day of the week there can be no excuse for these omissions.

6.(iv). The Defendant therefore has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name, and that they have no right to bring any action regarding this claim.


7. The Beavis case at 96, draws attention to the Code of Practice of the British Parking Association ('the BPA'). And at 111 the Judge helpfully comments that “while the Code of Practice is not a contractual document, it is in practice binding on the operator since its existence and observance is a condition of his ability to obtain details of the registered keeper from the DVLA. In assessing the fairness of a term, it cannot be right to ignore the regulatory framework which determines how and in what circumstances it may be enforced.” (Defendant’s emphasis of the key point).

THE BEAVIS CASE IS APPENDED AS EXHIBIT E.5

7.(i). The Claimant is a member of a similar body, the International Parking Community. Their Code of Practice sets clear guidance for how operators should display signage upon entering a location:

Part E, Schedule 1 of the Code of Practice of the International Parking Community, clearly states that “Text should be of such a size and in a font that can be easily read by a motorist having regard to the likely position of the motorist in relation to the sign" and that “Entrance Signs should:
a) Make it clear that the motorist is entering onto private land.
b) Refer the motorist to the signs within the car park which display the full terms and conditions.”

The signage does not meet these criteria and as such this comprises two clear breaches of the IPC Code of Practice.

THE IPC CODE OF PRACTICE IS APPENDED AS EXHIBIT E.6

8. It is contended that the Claimant's signage is capable of creating a legally binding contract:

8(i). The single sign displayed upon entering the location (XXX) from the adjoining road (YYY) is obscured by a lamppost and as such is in a position where someone in a passing vehicle is unlikely to see it.

THE SIGN DISPLAYED UPON ENTERING XXX FROM XXX IS APPENDED AS EXHIBIT E.7

8(ii). There is no signage on the side of the road that the vehicle was parked and therefore there is no indication that there are any terms & conditions associated with parking there.

PHOTOS OF WHERE THE VEHICLE WAS PARKED ON XXX2017 ARE APPENDED AS EXHIBIT E.8, E.9 AND E.10.


8(iii). There are no markings on the road itself where the vehicle was parked and therefore there is no indication that there are any terms & conditions associated with parking there.

PHOTOS OF WHERE THE VEHICLE WAS PARKED ON XXX2017 ARE APPENDED AS EXHIBIT E.8, E.9 AND E.10.

8(iv). The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. Furthermore, the charge is buried in the small print and is an unfair term.

PHOTOS OF THE CLAIMANT’S SIGNAGE FROM THE SIDE OF THE ROAD WHERE THE VEHICLE WAS PARKED ARE APPENDED AS EXHIBIT E.11 AND E.12.


8(v). This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. Based upon points 9(i), 9(ii), 9(iii) and 9(iv) above, none of this applies in this material case.

A COPY OF THE SIGN FROM THE PARKINGEYE VS BEAVIS CASE IS APPENDED AS EXHIBIT E.13.

9. Alternatively, even if there was a contract, the provision requiring payment of £100 is an unenforceable penalty clause.

10. Further and alternatively, the provision requiring payment of £100 is unenforceable as an unfair term contrary to the Consumer Rights Act 2015.

11. Furthermore, the Claimant has not complied with pre-court protocol (as outlined in the new Pre Action Protocol for Debt Claims, 1 October 2017) as there was no compliant Letter before County Court Claim, which should have been produced, pursuant to paragraph 6 of the Practice Direction Pre Action Conduct.

12. It is noted that in view of all of the above, the Court could decide of its own volition to strike this claim out under CPR 16.4 and as an unrepresented Defendant I ask the presiding Judge to use their case management powers and relieve me of the burden of having to appear to defend myself as registered keeper, in view of the Claimant having supplied no evidence of any basis for a claim against me in law.


I believe that the facts stated in this Skeleton Defence are true.



Signed xxxxxxxxxxxxxxxx


Dated xxxxxxxxxxx

BandB58

Any thoughts on these from any of the regulars on here? I'm keen to get this sorted asap so I can forget about it over Xmas!

Tx2mush

hi there any luck on completing the witness statement as I seem to be stuck on the same stage aswell and the forum has gone very quiet.