Court Claim from PCM/Gladstone

KeithP

There are hundreds of Witness Statements on this board. I wouldn't mind betting that there are hundreds from this year alone.

Can you both not look around and see how others have fared?

BandB58

Thanks for the constructive response Keith... I have done exactly that, spending several hours on here searching & reading and then crafted both my attempts largely using outtakes from various examples I found, but then I've done what most others seem to and the likes of Coupon Mad , etc. recommend which is to post my draft versions up for critique.

I'm sure I also read somewhere whilst searching that the frequent & knowledgeable contributors such as Coupon Mad prefer to spend their time helping the likes of me who are at critical points with court case confirmed & WS/evidence deadlines approaching vs answering the many generic questions/threads covered in the newbies thread.

I don't profess to be in any way knowledgeable about any of this and have said many times how grateful I am for the help (just look at some of my previous posts above), but if I now need to go it alone I guess I have no choice.

BandB58

Update on this case:
Witness Statements have now been exchanged so I would appreciate it if any of the experts on here could read through them, especially the Claimant's one and offer me any advice on how to handle in court.

I am planning to do a skeleton argument to help me on the day. Court date is late Feb so I have time to prepare, but keen to get cracking especially as I am out of the country for the first 3 weeks of Feb.

I have added all files to Dropbox, so hoping someone can create a live link:

Defendant WS:
hxxps://www.dropbox.com/s/r8czuc9va3f1o57/Defendant%20Witness%20Statement%20-%20Edited.docx.pdf?dl=0

Claimant WS (missing last page, this is a separate doc, link below):
hxxps://www.dropbox.com/s/79owgrueyqojsso/Claimant%20Witness%20Statement%20-%20edited.pdf?dl=0

Last page of Claimant WS:
hxxps://www.dropbox.com/s/gp3amdbfkhs48kr/Claimant%20Witness%20Statement%20last%20page%20-%20edited.pdf?dl=0

KeithP

www.dropbox.com/s/4ly6zt1k1varry1/Claimant%20Witness%20Statement%20last%20page.pdf?d%20l=0

Just quickly looked at their photo of their sign.

Amazing. Not only is it a poor photo, it's a poor sign.

I cannot see where it says anything about the parking charge - it certainly is not prominent.

Point that out robustly in in your SA. Compare it with the Beavis sign - images available via google.

BandB58

KeithP wrote: »

www.dropbox.com/s/4ly6zt1k1varry1/Claimant%20Witness%20Statement%20last%20page.pdf?d%20l=0

Just quickly looked at their photo of their sign.

Amazing. Not only is it a poor photo, it's a poor sign.

I cannot see where it says anything about the parking charge - it certainly is not prominent.

Point that out robustly in in your SA. Compare it with the Beavis sign - images available via google.

Thanks Keith. That image is better in their WS doc as some quality has been lost in the scanning process, but it's still very small print and the charges are buried low down. In my WS I have referenced actual pictures of the signage from various positions where the car was parked and you can't see the top part of the sign let alone the small print - imagine trying to read that sign from the opposite side of the road! I also have a Beavis image in my WS, the difference is stark.

Also just realised I haven't redacted that file properly so have deleted and redone so your link won't work.

Coupon-mad

A sign on the opposite side of what looks like a road/carriageway would not apply to the other side anyway, if this had been a Council street. You never are expected by the Highway code or any applicable guidance/law to read signs opposite, so why would you here?

KeithP

Now looking at their WS:
www.dropbox.com/s/79owgrueyqojsso/Claimant%20Witness%20Statement%20-%20edited.pdf?dl=0

It includes an image of a sign dated February 2014.
How is that relevant?
I cannot see anything that ties that image to the site in question.

A contract signed in 2004? No updates?

Coupon-mad

I reckon this is the same place as infernouk (he won, but don't copy his defence as it was long and the Judge wasn't overly happy with it!):

https://forums.moneysavingexpert.com/discussion/5549342/pcm-ticket-whilst-parked-outside-a-friends-house-visiting-do-i-pay

Bovis Homes don't own the site now, and that thread says the houses were not even built in 2004.

Also I think Anne Wicklow no longer works for Bovis, hence why her signature there has no date as such.

BandB58

Thanks for all the responses guys, hugely appreciated. I'll have a full read of the thread above as that looks to be a very similar case to mine and then I'll have a crack at my SA, which I'll share for critiqueing.

BandB58

Been a while since I posted on here, but my re-arranged court date (hence the lack of update for a while) is now looming so I have drafted my Skeleton Argument and would be grateful for any thoughts from the regulars on here:

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

Between

Parking Control Management (UK) Limited (Claimant)

-and-

XXX (Defendant)
____________________

Skeleton Argument of XXX (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.

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. Driver / keeper: Whilst I was the Registered Keeper of the vehicle concerned, there is no evidence of the driver:

2.(i). At the time,in XXX, the insurance for the vehicle covered more than one person, who I have no obligation to name to a private parking firm, and on the day in question the other insured person and myself both attended meetings at a building near to where the vehicle was parked and I cannot recall who drove that day.
Please see Evidence XXX, which is an insurance document showing that there is more than one person insured to drive the car.

2.(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."
Please see Evidence XXX, which is a copy of the 2015 POPLA Annual Report (page 13 contains the Henry Greenslade point referenced above).

2.(iii). In the Claimant’s Witness Statement under point XXX, it references the Criminal Case of Elliott v Loake (1983 Crim LR 36) to assert that “it more likely than not that the Registered Keeper (i.e. the Defendant) was the driver”.
This is an incorrect representation of the case for the following reasons:
Elliot and Loake is a criminal case, which has no bearing on a civil matter, as Elliot was prosecuted for S.172, which cannot apply here
The facts of the case are that the appeal judge ruled that the appellant was the driver because of the ample evidence that he was the driver, and not, as you incorrectly state, because of the lack of evidence as to who the driver actually was.
In the case there was ample evidence that justified the magistrates to conclude that this man was driving his blue sports car on the night when it collided with the stationary car.
Additionally, a crucial part of the case was that forensic evidence showed that the appellant lied. Other material facts were that the driver had the only keys in his possession that night and that no-one else had permission to drive the car.
This case does not therefore introduce any binding legal principal as this case turned on its own facts. If any principle can be adduced, it is the well known principle that once a witness has been proven to have lied in one respect, it is likely that their evidence elsewhere is also false.
It remains the burden of the Claimant to prove their case and I therefore put Parking Control Management (UK) Limited to strict proof that any contract can exist between the Defendant and themselves.

3. Particulars of Claim: 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 Civil Procedure Rule 16.4 (1)(a):

3.(i). 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.

3.(ii). In addition, the location stated in the Particulars of Claim (“Salisbury Village”) differs from the actual location the vehicle was parked (XXX).

3.(iii). The Claimant’s Witness Statement contained information that should have been in the particulars of claim – CPR 16 requires contractual information to be set out in claims made on a breach of contract basis.

3.(iv). There is no evidence that the Claimant wanted to include more detailed particulars of claim and was unable to do so by the constraints of the MCOL system. The character limitation should not be deployed as a basis for failure to plead their case properly. In any event the MCOL system guidance specifically states:

“If you do not have enough space to explain your claim online and you need to serve extra, more detailed particulars on the defendant, please tick the box that appears after the statement ‘you may also send detailed particulars direct to the defendant’”.

Please see Evidence XXX for a copy of Practice Direction 16 (page 6 contains point 7.5 referenced above).
Please see Evidence XXX for a copy of Civil Procedure Rule 16 (page 3 contains point 16.4 (1)(a) referenced above).
Please see Evidence XXX for a copy of the County Court claim form.

4. Letter Before Claim: The Claimant’s Witness Statement states under point XXX that “…The Defendant was sent notices in accordance with the Act and a Letter Before Claim” and under point XXX “The Defendant suggests that he was not provided with a compliant letter before claim. This is disputed by the Company. As is evidence by the attached documentation, a letter before claim was sent to the Defendant by Gladstones Solicitors who we instructed”.

I maintain that at no point have I received a Letter Before Claim and nor is it present as claimed alongside the Claimant’s Witness Statement. I would like to ask the Claimant to evidence the Letter Before Claim they refer to.

Please see Evidence XXX for a copy of the County Court claim form.
Please see Evidence XXX for a copy of the Pre Action Protocol for Debt Claims, 1 October 2017.

5. Authority: 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 and 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):

5.(i). The Agreement the Claimant refers to in point XXX of their Witness Statement states “date of original instruction”, which indicates that it is confirmation of an agreement not the contract itself. I would like to ask the Claimant where the original contract is.

5.(ii). The Agreement is signed by Anne Wicklow who was a sales director at the time the Agreement was dated. I doubt that constitutes someone senior enough at a large company such as Bovis to sign such an Agreement. I would like to ask the Claimant whether Anne Wicklow was authorised to sign a contract on behalf of Bovis Homes and did the Claimant check that authority.

5.(iii). There is no company number on the Agreement. I would like to ask the Claimant which Bovis Homes does authorise them as there are several. Furthermore, according to Companies House, the registered office address of the Bovis Homes on the Agreement isn’t used.

5.(iv). Bovis Homes (Central Division) no longer exists, having been sub divided into smaller regions in c.2015. Therefore I believe the Agreement is terminated on the basis that the contracting authority has ceased to exist and it doesn't name successors in title.

5.(v). In addition, the Approved Operator Scheme referenced on the Agreement was launched for BPA members in October 2007, 3 years after the Agreement was signed. This link is to a cached webpage explaining this in more detail:
https://web.archive.org/web/20111218095626/http://www.britishparking.co.uk:80/AOS
A statement of truth has been signed by the Claimant’s Witness and so I would like to ask the Claimant’s Witness for clarification on this discrepancy.

5.(vi). The Agreement states that “we will require PCM UK Ltd to operate to the BPA/AOS code of practice”, whereas in point XXX in the Claimant’s Witness Statement they say “My company is an Accredited Operator of the International Parking Community (IPC)…”, which I believe means this Agreement is now null and void.

5.(vii). 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.

5.(viii). 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.

Please see Evidence XXX for a copy of Practice Direction 16 (page 6 contains point 7.3 (1) referenced above).
Please see Evidence XXX for a copy of Practice Direction 7C (page 2 contains point 1.4 (3A) referenced above).

6. No contract: It is denied that the Claimant's signage is capable of creating a legally binding contract:

6.(i). The Claimant’s Witness Statement states under point XXX “the rules of interpretation require simply that the parties knew of their obligations to one-another.” It is my belief that the lack of clear signage meant it was impossible for the driver to have known about any obligations:

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

Please see Evidence XXX, which shows the single obscured sign, highlighted in the red box.
6.(i-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 obligations associated with parking there. A sign on the opposite side of a road/carriageway would not apply to the other side if this had been a Council street. You are never expected by the Highway Code or any applicable guidance/law to read signs on the opposite side of a road, so I would ask the Claimant why they are expecting a driver to do so in this location.
Please see Evidence XXX & XXX, which are pictures taken from where the vehicle was parked showing the view from inside the vehicle from the driver’s seat.
Please also see Evidence XXX & XXX, which are pictures taken from where the vehicle was parked from just outside the vehicle.

6.(i-iii). There are no markings on the road itself where the vehicle was parked and therefore there is no indication that there are any obligations associated with parking there.
Please see Evidence XXX & XXX, which are pictures taken from where the vehicle was parked.

6.(i-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.
Please see Evidence XXX, which shows a sign on the opposite side of the road to where the vehicle was parked. This picture is taken from the side of the road the vehicle was parked, is not zoomed in at all and is how the sign appears to the ‘naked eye’ from the side of the road where the vehicle was parked.
Please also see Evidence XXX, which is a picture of the same sign as in Evidence XXX on the opposite side of the road to where the vehicle was parked. This picture is also taken from the side of the road the vehicle was parked and is zoomed in fully using the camera on my phone.
Please also see Evidence XXX, which is a picture of the same sign as in Evidence XXX on the opposite side of the road to where the vehicle was parked. This picture is taken from right underneath the sign by standing in the road itself and zooming in partially using the camera on my phone.

6.(i-v). This lack of signage upon entering the location and the small font used for the terms also goes against the Code of Practice of the Trade Association that Parking Control Management (UK) Limited is a member of (the International Parking Community):
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 “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 referenced in points 6(i) to 6(iv) inc. above is not as per the IPC code.

6.(ii). The Claimant’s Witness Statement states under point XXX that “the principles in this case are the same as in the Parking Eye case…in that case it was accepted as an established principle that a valid contract can be made by an offer in the form of the terms and conditions set out on the sign…” and under point XXX “the signage at the site is clearly visible and the information on the signage informs the driver of the parking conditions at the location. Signage is prominent throughout the parking area”.
Examples of the signage in the location shows signs which are small and not easy to read particularly from a car. Contrast this with an example from the Parking Eye v Beavis case ,which shows an easier to read sign.
Please see Evidence XXX, XXX & XXX for pictures of the signs at the location the vehicle was parked.
Please see Evidence XXX for an example sign from the Parking Eye v Beavis case.

6.(iii). Furthermore, the Parking Eye vs 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.”
Please see Evidence XXX for a copy of the International Parking Community’s Code of Practice (pages 22 & 23 contain Part E, Schedule 1 referenced above).
Please see Evidence XXX for a copy of the Parking Eye vs Beavis case (page 41 contains point 96 and page 49 contains point 111, both referenced above).

6.(iv). In addition, the Claimant’s Witness Statement refers to an image of a sign dated February 2014 and an Ordnance Survey map that is unmarked in terms of location or road names. I do not see how these are relevant and I cannot see anything that ties that image or Ordnance Survey map to the site in question.

7. Costs: The wrapping up of additional charges with the claim by the Claimant appears to be an attempt to recover legal professional costs, which are not permitted or recoverable on the small claims track. To the extent that the costs are based otherwise the Claimant has provided no evidence as to how these costs are derived and no schedule in support of the same. The Defendant avers that they should be disallowed.

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


Signed xxxxxxxxxxxxxxxx


Dated xxxxxxxxxxx