County court defence -Gladstones

Quentin

.Gladstones do this as a bullying tactic


You await yours to come from the Court


Don't copy their answers! Especially the request for no hearing, just papers!


Send your own replies

DomG20

Thanks Quentin.

Yeah I have read the responses on the stickies and will be following those responses and the detail that bargepole originally posted and that you shared detailing Gladstone’s tactics and how to respond!

I’ve been and taken pictures and a video driving into the parking lot to evidence the shocking signage.

Thanks again!

DomG20

I have my court date and my deadline in which I must submit my supporting documents. I have:


A copy of the Beavis vs ParkingEye signage to clearly differentiate the signs and highlight the tiny font on the single sign that was within the car park.


A Google satellite view of the car park clearly showing a lack of signage around and at the entrance


A google street view clearly showing once again the lack of signage on entrance and around the car park


The IPC code of practice with all relevant point surrounding sufficient signage highlighted


Schedule 4 POFA highlighting paragraph 4 relating to the maximum sum in which may be recovered.


A copy of the case PCM Vs Bull - detailing forbidding signage


Do I need to include the POPLA annual report from 2015?


I am currently working on my witness statement, do I basically provide the detail of what occurred on the day and why the claim for the sum is not a valid one based on the limited signage?


Any feedback would be greatly appreciated Thank you

Coupon-mad

Do I need to include the POPLA annual report from 2015?

Only the relevant page about Understanding Keeper liability.

And only the relevant page from the IPC CoP.

I am currently working on my witness statement, do I basically provide the detail of what occurred on the day and why the claim for the sum is not a valid one based on the limited signage?

Yes. It is your story, from start to finish (as seen in examples in the NEWBIES thread) referring to your evidence, by number.

One sign is not 'adequate notice' of a parking charge! It's far too sparse even in a small car park to have one sign, and if (say) a van was parked in front of that sign then no driver could see the terms!

DomG20

Thank you very much for the guidance it is really appreciated I will post my witness statement to make sure it is relevant and the best it can be.

Thanks again

DomG20

Hi again all


I have been scouring the forum and have drafted a witness statement and skeleton. I have ensured that all dates and details of PCN are accurate as per the documentation received by PCM, TRACE debt recovery and Gladstones. Please review this and let me know what you think. I have also included The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 to reference. In addition to this I have the relevant case summary to adhere to the cases referenced within the statement. Please let me know what you think




Witness Statement

1. Sequence Of Events
1.1 I am xxxxxx xxxxxx, being the Defendant in this case. I am an unrepresented consumer with no experience of Court procedure. Should I not present my case as professionally as the Claimant’s, I trust that the Court excuses my inexperience and reserves any criticism for the extremely sparse particulars filed by the Claimant’s Solicitors.

1.3. This claim refers to parking incidents at NG1 Derby Road within the Ropewalk Pub car park as shown (exhibit 1).

1.4. It is true that the Defendant is the registered keeper and was so at the time of the incidents. However, that does not deem the keeper liable as the Claimant has not identified the driver and would therefore need to adhere to the strict provisions of the Protection of Freedoms Act 2012 to hold the Defendant responsible for the driver’s alleged breach.

1.5. After receiving, through the post, 2 ‘parking charge notices’ on 7 November 2017, (as shown in exhibit 2 and 3) on the 8 November 2017 I, the Defendant, wrote to the Claimant requesting the following information:

a) Who was the party that contracted with the claimant’s company and are they the landowner?
b) If the charge is based on damages for breach of contract? Answer yes or no
c) To provide photos of the signs that were said to be on site, which were contended to form a contract with the driver
d) To provide all photographs take of this vehicle
e) To provide proof that the timing of any camera or timer used was synchronised with all other cameras and/or systems and machines




The Claimant did respond to my response, but without the requested information aforementioned.

1.6. From then onwards the Claimant has sent threatening and misleading demands, from TRACE Debt Recovery UK Ltd on their behalf, which stated that to avoid any additional fees and to prevent further recovery action being taken you must pay and that the next course of action was for the case to be passed to solicitors and, that the amount of the debt will be subject to additional administration costs. These intimidation tactics to try and justify chasing these sparse claims underline further the manner in which this company operates.

1.7. I heard nothing further from the Claimant until 19 February 2018, whereby Gladstones Solicitors advising that due to an absence of payment or a valid appeal against the charge, their client had informed them to recover the total amount due.

1.8. . On around 26 March 2018 I received a Final reminder from Gladstones Solicitors to advise that they may now be instructed to issue legal proceedings at the Count Court. This was the final communication that was received and no Letter Before Claim documentation was received.

2. No Contract Exists
2.1 I understand from correspondence with the Claimant that the Claimant’s case relies upon the signage at the site (exhibit 10) constituting a ‘contract’ between myself and the Claimant as per ParkingEye vs Beavis. The ‘breach of terms’ on the Particulars Of Claim presumably refers to the supposed ‘contract’ formed by this signage.

2.2 In ‘ParkingEye vs Beavis’, on which the Claimant relies to justify this charge, it was found that a contract could exist because there was a meaningful ‘offer’ made to the Defendant (that of a licence allowing free parking for a set period of time) and that the Defendant’s agreeing not to overstay this period could constitute a ‘consideration’ in respect of this. The ‘ParkingEye vs Beavis’ judgement is littered with references to the disputed charge being justifiable only in the context of the ‘contractual licence to park’ being given to the Defendant, e.g. ‘They must regard the risk of having to pay £85 for overstaying as an acceptable price for the convenience of parking there’.

2.3 There is no such ‘offer’ made by the signage in this case, no ‘contractual licence’, no ‘benefit of free parking‘ and no conceivable way I could have benefitted from this alleged ‘contract’ without breaching its terms.

2.4 The parking contract in ‘ParkingEye vs Beavis’ case was judged to be ‘objectively reasonable’ partly because ‘motorists generally’ did accept it (108). The landowner wanted as many people as possible to use the car park in question, so the contractual arrangements were designed to be attractive to the average motorist. This is the complete antithesis of the supposed ‘contract’ in this case which is designed to actively discourage motorists from parking at the site. The terms of this ‘contract‘ are not ‘objectively reasonable’, but deliberately designed to be so heinous that no one in their right mind would agree to them. It follows that this is not a ‘contract’ but a prohibitory notice masquerading as such.

2.5 In J Spurling Ltd v Bradshaw in the Court of Appeal, Lord Denning states that ‘the more unreasonable a clause is, the greater the notice which must be given of it’. This is commonly referred to the ‘Red Hand Rule’. As the terms of this ‘contract’ (specifically the clause relating to a £100 parking charge) are designed to discourage motorists from accepting them it follows that they must be ‘unreasonable’ and that therefore Lord Denning’s rule should apply.

2.6 The Claimant has not applied Lord Denning’s ‘Red Hand Rule’ to the terms and conditions in this case. The sentence that refers to a ‘parking charge’ is in an extremely small font (one of the smallest on the sign) which, given that this sign is supposed to be read from a vehicle, is woefully inadequate - particularly when compared to the signage in the ‘ParkingEye vs Beavis’ case.

2.7 The very act of entering into this alleged ‘contract’ (parking) constitutes a breach of its terms, therefore making it impossible to perform.

2.8 The PCN was issued by the Claimant state the reason for the disputed charge as being ‘Parked within a restricted area’. I cannot be seen to have entered into a contract for something I was not ‘authorised’ to do.

2.9 The signage and its wording at this site is almost exactly the same as the signage in the case of ‘Parking Control Management v Bull’ (exhibit ) in which the Judge found that it was ‘impossible to construct out of this in any way, either actually or contingently or conditionally, any permission for anyone to park on the roadway.’ and that therefore any charges made on the basis of said signage would be damages for trespass and must constitute reparations for actual loss.

2.10 The signage at the site is also very similar to the signage in the cases of ‘Horizon Parking v Mr J. Guildford’ and ‘ES Parking Enforcement v Ms A. Manchester’ in which it was ruled that, if any contractual arrangement could be implied by such signage, then it only applied to vehicles which were ‘authorised’ to park and therefore charges could not be made on a contractual basis for vehicles that were not ‘authorised’ to park.

3. Inadequate Signage
3.1 A key factor in ‘ParkingEye vs Beavis’ was that the relevant signs were ‘large, prominent and legible, so that any reasonable user of the car park would be aware of their existence and nature’ and ‘The charge is prominently displayed in large letters at the entrance to the car park and at frequent intervals within it’. That is not the case here.

3.2 In‘Vine v London Borough of Waltham Forest’ the Court of Appeal ruled that a person cannot be presumed bound by terms and conditions on signage that they haven’t seen. In this case, which was found in favour of the motorist, the signage was deemed insufficient because there was no sign directly adjacent to the Appellant’s parking bay and the only signage that was displayed could not have been seen from within the vehicle whilst parking. In this case there was no sign adjacent to my vehicle, I had not passed any signs to park, there were no signage upon entering the car pack and no signs in the vicinity could possibly be read from my vehicle.

3.3 A key factor in ‘ParkingEye vs Beavis’ was that ParkingEye were found to have operated in line with the relevant parking operator’s code of practice.

3.4 In this case the signage and operating practice of the Claimant fails, on numerous counts, to adhere to the standards laid out by the relevant accredited parking operator - The International Parking Community (IPC).

3.4.1 The IPC guidelines state that signage at the entrance to the site should ‘Make it clear that the motorist is entering onto private land’. There is no signage at the entrance to the site in question and one can see from the photographs that I would not have passed any signage indicating I was entering private land.

3.4.2 The IPC guidelines state that text on signage ‘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.’ The text on the signage, particularly that which refers to ‘contractual terms’ and a ‘parking charge’ is very small. This, coupled with the fact that the sign is mounted at least 6ft off the ground and on one wall of the car pack only, makes it very hard to read and impossible to read from a vehicle.

3.4.3 The IPC guidelines state that signage that is intended to form a contract should ‘Be clearly legible and placed in such a position (or positions) such that a driver of a vehicle is able to see them clearly upon entering the site or parking a vehicle within the site’. It is more-or-less impossible to read this signage whilst driving as it is mounted on a wall at least 6ft high and is so sparsely placed it provides no opportunity for any driver to be made aware of i’s existence.

4. Consumer Rights
4.1 If a contract were deemed to exist between myself and the Claimant it would, under the terms of The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (exhibit 13), be defined as a ‘distance contract’. As ‘distance contract’ is defined as ‘a contract concluded between a trader and a consumer under an organised distance sales or service-provision scheme without the simultaneous physical presence of the trader and the consumer, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded’.

4.2 As a ‘distance contract’, the signage at the site does not carry the information required by The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (exhibit 13), specifically on the right to cancel required by paragraph (l) of Schedule 2.

4.3 As the signage does not carry the information required as specified in 4.2 (above) I have the right to cancel the contract as specified by The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (exhibit 13) clause 31 ‘Cancellation period extended for breach of information requirement’.

5. Landowner Authority
5.1 Despite being asked, the Claimant has not provided any indication that they are authorised by the landowner to issue parking charges and carry out court proceedings on their behalf. The Claimant is put to strict proof that they have the authority to do this, and that the terms and conditions of parking they impose at the site are in line with what they have been authorised to do.

6. Additional Costs
6.1 The Particulars of Claim include £60 over and above the original ‘parking charge’. I have no idea what these charges refer to as there appears to be no contractual basis for them, even if one were to take the Claimants somewhat far-fetched view as to what constitutes a ‘contract’ into account. The Claimant is put to strict proof that these additional charges are justified.

6.2 The Particulars of Claim include £50 for ‘solicitors costs’ yet all I have received from the Claimant’s solicitors are automated letters. The Claimant is put to strict proof that these ‘solicitors costs’ are justified.

Coupon-mad

Remove the split infinitive here by removing 'the Defendant':

I, the Defendant, wrote

I would remove this (below) - only makes sense for a pay by phone contract, IMHO - and replace it with grace periods instead, assuming as usual that PCM's photos span only a couple of minutes?

4. Consumer Rights
4.1 If a contract were deemed to exist between myself and the Claimant it would, under the terms of The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (exhibit 13), be defined as a ‘distance contract’. As ‘distance contract’ is defined as ‘a contract concluded between a trader and a consumer under an organised distance sales or service-provision scheme without the simultaneous physical presence of the trader and the consumer, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded’.

4.2 As a ‘distance contract’, the signage at the site does not carry the information required by The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (exhibit 13), specifically on the right to cancel required by paragraph (l) of Schedule 2.

4.3 As the signage does not carry the information required as specified in 4.2 (above) I have the right to cancel the contract as specified by The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (exhibit 13) clause 31 ‘Cancellation period extended for breach of information requirement’.

I didn't see PACE v Lengyel C7GF6E3R (no contract with landowner/driver - could only be trespass, a tort for the landowner alone to pursue).

And I'd suggest, VCS v Quayle.

...both of which seem most similar to your case and the transcripts are available from the parking Prankster's More Case Law page.

They seem to be on all fours with your situation - it would be impossible to comply with a 'contractual' requirement to display a permit, for non permit holders, and if you were 'unauthorised' then you can't have been offered any consideration in the form of a licence agreeing you can park at a price. Void for impossibility and not a contract at all.

DomG20

Thank you very much CM. I’ll get cracking on amending the above.

DomG20

Well today was the day of the hearing. I just want to say a massive thank you to everybody who has provided guidance on my case and defence. I WON. The judge deemed the signage inadequate in forming a contract due to its sparse positioning and failings when being held against the IPC regulation.

Again thank you. To anybody stressing or worrying about these such things, my recommendation is to read, post and take onboard feedback from this forum, the people here and their knowledge is the only reason I won today!!