Letter before claim from Gladstones Solicitors

KeithP

Now that you have seen the Claimant's revised POC, you have been given the opportunity to revise your Defence to address those points in the POC which were hitherto unknown.

It's up to you whether you do that, or not.

Umkomaas

Claimant had to serve a POC supported by statement of truth identifying several things: "terms of relevant contract", "what was the breach", "what is the cause of action and how it arose ?"

Was each criterion met fully, especially a signed 'Statement of Truth'?

Coupon-mad

Just reminding us who this is about as not all of us see the first post displayed:

ES Parking Enforcement

What does this statement mean "The Claimant claims costs on contractual (indemnity) basis, pursuant to CPR 44.5, as the contract contains an expressed indemnity clause permitting them to do so".

It means they are claiming, as per the usual lies, that the signs (the contract) state that £60 can be added to the parking charge for 'debt collection'.

But it CAN'T, due to the POFA, the Beavis case and the IPC CoP!

General Form of Judgement letter offers me the opportunity to send substitute defence by 19th August - I presume I do not need this.

I would, unless your defence already covered the fake costs completely? I doubt it did, because the defence was done in the Spring and we've covered the issue of fake costs much more, in a recent thread by Beamerguy, called 'ABUSE OF PROCESS'.

Find that thread by clicking on Beamerguy's username, then read it and use the words I posted there, which I strongly suggest for all defences now, about the fact the added £60 debt collection and £50 legal fees are both mendacious and an abuse of process/double recovery.

We know your defence would have touched on this, but now we go to town and in later evidence you will need to include as an exhibit, DJ Grand's IOW judgment where he kicked out a claim due to added costs being disallowed in parking cases.

raddoc

Thanks. Defence re-filed. Awaiting court date.

raddoc

Court date received in 5 months time but need to deliver to court and other party all documents intending to rely on at hearing by the end of this month. Here is first draft of witness statement:

1. I, XXXXX of XXXXXX, am the defendant in this matter and was the driver of the vehicle on the day in question.

2. I parked at the Seymour Grove Retail Park car park and visited a butcher shop as I had done on several prior occasions. I subsequently received a parking charge notice through the post from ES Parking Enforcement Limited who operate the car park.

3. My parking charge was issued unfairly. I visited a parade of shops which border the car park for about 20 minutes (upto 90 minutes is allowed). Parking at the site has always been free but the charge levelled is of "leaving the site". Of the small group of shops adjacent to the car park, it seems only three that face into the car park are considered "on site". The other shops have their rear entrances directly on the car park and the shop at the end of the block directly borders the car park. These are apparently not part of the site but they do not have a separate car park of their own.

4. The 2 Google maps (Exhibits 1 & 2) show the area, one map is an enlarged version of the other. As you can see, the car park and shops are in one contiguous area bordered by Seymour grove, Tennis St, Skerton Rd and Elsinore Rd. I parked in the spaces adjacent to Genie Takeaway Old Trafford and went to the butcher in between Genie Takeaway and Oscars Cafe. The signage (Exhibit 3) is poor and makes no reference to the fact that the car park is only for Iceland Foods and Superdrug and is not for the use of customers of the other shops bordering the car park.

5. Photographic evidence (exhibits 4,5,6) demonstrate the shop I visited to be considerably nearer to the parking space I used than the shops the parking operator regard to be part of the site but not clearly stated in the signage. On subsequent visits to the car park, I have noticed many other customers park up and go to those shops and it seems that the car parking operators for this site are ruthlessly exploiting and profiteering from many members of the public who are assuming perfectly reasonably that it is fine to park in a car park immediately adjacent to shops they are visiting. I suspect the signage is deliberately ambiguous in order to catch out as many customers as possible.

6. Examples are shown are shown of appropriate signage where there are multiple retail units close to each other but the car parking can only be used by one. Exhibits 7,8,9 show photographs of a Harvester Restaurant car park bordered by a Premier express grocery store with signage clearly indicating that the car park is for the exclusive use of "Harvester Guests Only" (War Office Rd, Rochdale OL11 5HR). Exhibits 10,11,12 show pictures of Leigh Parsonage Retail Park WN7 6SJ where there is a cluster of retail outlets close together with an adjacent car park but the signage indicates that it is for the use of Sainsbury's customers. ES Parking Enforcement should be legally mandated into displaying signage of a similar clarity.

7. The original PCN posted by this Claimant states a Full Charge of £60.00 (£40.00 discounted) however the Claimant's legal firm now inflates these sums, in a deliberate attempt at quadruple recovery and the added sums are both mendacious and an abuse of process:

a. Principal debt: £100:00 + £6.70 interest
b. Recovery of the charge costs £60.00
c. Court fee: £25.00
d. Legal Representative's costs: £50.00

Total amount: £241.70.
Objection to this is further addressed in the Supplementary witness statement provided.

8. The warden on site observed the Driver leaving the poorly defined site and took no action to inform me of the potential costs incurred. As such, the Operator has failed to adequately mitigate their loss in this matter. In the case of VCS v Ibbotson, on pages 8-9 district judge McIlwaine questioned why "as a lawful authorised member of the company at the time he is there and there is a duty to mitigate the loss", the Operator did not approach and advise the Driver of the potential loss, indicating that such actions would reasonably expected of an Operator in such a position. No attempt was made to warn me that my entirely reasonable actions would lead to a parking charge.

9. The Site Enforcer operative has used predatory tactics in direct contravention of the IPC (International Parking Community) code of practice in that a warden was used by the Site Enforcer operative which is a serious contravention of the code of practice. IPC's code of practice for parking on private land, part B section 14 (14.1) Predatory Tactics, states: "You must not use predatory or misleading tactics to lure drivers into incurring parking charges. Such instances will be viewed as a serious instance of non-compliance and will be dealt with under the sanctions system as defined in schedule 2 to the Code". ES Parking Enforcement Ltd has been known to use predatory tactics in another Manchester location as the alleged incident (Exhibit 13 - print out of http://www.manchestereveningnews.co.uk/news/greater-manchester-news/delivery-driver-caught-out-secret-11338946).


The Court is invited to dismiss the claim and to award my costs of dealing with this claim and attendance at the hearing, such as are allowable pursuant to CPR 27.14.

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


Will add as separate supplementary witness statement Coupon-mad post #14 from this link https://forums.moneysavingexpert.com/discussion/6014081/abuse-of-process-district-judge-tells-bwlegal

Coupon-mad

Very good research and happy to see you have been reading & keeping up with events about the Consumer Rights Act and the £60 false add-on abuse of process'. Better than most people who haven't posted since the Summer.

You also need a contents page, plus the case law that goes with the Supplementary WS, plus a COSTS SCHEDULE.

Le_Kirk

In your point 8, you say "the Driver" and then "me" as if you are defending as keeper. From your early points it would appear that you are defending as driver, so you could change 8 to read: -

8. The warden on site observed [strike]the Driver[/strike] me leaving the poorly defined site and took no action to inform me of the..........

From the way you have constructed pararaph 9, I assume you will embed whatever point you wish to make from the Manchester Evening News rather than leave it as a link.

raddoc

I have been back to the retail park today to take more photos and it is all change there now on the parking front. All but a couple of the 11 ES parking signs have been spray painted over with black paint. There is a new prominent sign saying parking for Iceland Customers. There is no reference to leaving the site being an offence. In fact, there is very little on the new sign in terms of information and restrictions. I think public and MP pressure has brought about this change although I don't know this for a fact and it may be that ES are no longer managing this car park. I know this doesn't negate our case but presumably I should draw reference to the fact that the signage has now been changed and is more appropriate than when our PCN was issued 18 months ago suggesting that the parking company recognises the previous signage was weak.

Le_Kirk

Good stuff to use in your Witness Statement - if you haven't submitted it yet.

raddoc

I now have a court date for early May although I guess will change due to Coronavirus. Here is parking company witness statement sent to me via Gladstones:

A) Exhibited to this Witness Statement at ‘GSL1’ are the following documents which my Company wishes to rely upon; i) The Agreement authorising my Company to manage parking on the Site (as described therein and hereinafter referred to as ‘the Site’); ii) The Sign (‘the Contract’); iii) The Site Plan; iv) Notices; v) Photographs of the incident.

My Company is and was at all material times involved in the management and enforcement of parking on private land. We achieve this by way of a variety of schemes including warden controlled sites, CCTV and ANPR. We are a member of an accredited Trade Association, the Independent Parking Company (IPC) and a signatory to the KADOE (keeper at the date of the event. As a result we are audited on a regular basis by both the IPC and the DVLA

C) My Company were instructed to operate a parking management and enforcement scheme at Seymour Grove Retail Park, Manchester. At all material times we acted with the authority of 38 UGS Ltd c/ Commercial Real Estate Management Ltd the Managing Agents of the landholder pursuant to an agreement dated the 3rd April 2018, the same having chosen to restrict parking on the land that they manage and enforce parking on the land in question

D) There is clear and unambiguous signage at the Site which informs users that it is Private Land and that Terms and Conditions apply. Users are also informed that by entering or remaining on the land they agree to abide by all the terms and conditions failing which the driver will be liable for a parking charge of £100

E) The terms and conditions for parking at the Site include inter alia that “1½ HOURS FREE PARKING 90 minutes maximum stay – no return within 2 hours. Customer Parking Only – Customers must remain on site for the entire period of parking.” As can been seen from the Site plan these signs are repeated throughout the Site and there is clear signage at the entrance to the Site with clear road markings showing the private land begins.

F)  The rules of interpretation require simply that the parties knew of their obligations to one another. Users of the Site are offered the opportunity of using the Land and thereafter either follow the rules and park for free or park in breach of the rules and agree to pay £100.

G) It is the driver’s responsibility, to check for signage, check the legality and obtain any authorisation for parking before leaving their vehicle. The signage on site is the contractual document.

H)  On the day vehicle registration number QQ was observed to be parked and unattended at the Site. The photographic evidence shows that the vehicle was parked  and unattended when the Defendant exited the Site and therefore no parking allowed. The vehicle is therefore parked in clear contravention of the terms and conditions applicable at the Site.

I)  As this is not a warden controlled site a PCN was not affixed to the screen at the time. My Company therefore requested the registered keeper’s details from the DVLA under the terms of the KADOE. These were supplied to us by the DVLA and a postal PCN was sent to the registered keeper, the defendant in this case on the ...

J) That notice gave the registered keeper three options:
i. If they were the driver to pay the £100 charge within 28 days (discounted to £60 if paid within 14 days).
 ii. If they were not the driver to transfer liability for the charge by supplying the Company with the drivers full name and address.
iii. Appeal the PCN initially via my Company’s internal appeals department and if dissatisfied with the outcome to the IPC.

K) The Defendant appealed the charge on the grounds that there was a lack of clarity on the signage as to what shops form part of the Seymour Grove Retail Park. The appeal was declined on the grounds that the signage on the Site is clear and the Defendant failed to remain on site for the duration of the free parking period.

L) A further notice was sent to the registered keeper on ....... This notice was also not returned to my office and we received no response.

 

The Defence Compliance with the Civil Procedure Rules

M) A Letter Before Claim was sent to the Defendant, which contained:-
i) The date of the charge; ii) The Parking Charge Notice Number; iii) The location of the charge; iv) The amount outstanding; v) The Claimant; and vi) That the balance relates to unpaid parking charge. If there has been any minor deviation from the Civil Procedure Rules then it is (or would be) within the tolerances provided therein whereby the court is required to interpret any provision having regard to the ‘overriding objective’, namely to deal with matters in a just, proportionate and cost-effective way (rules .1.1 and 1.2).

 

Particulars of Claim

N)  The Claim is issued via the County Court Business Centre which procedure is specifically provided for in the Civil Procedure Rules. This only allows the Claimant to insert brief details of the Claim. In any event, I can confirm that the Particulars of Claim contained sufficient information for the Defendant to be aware of what the claim relates to; namely:- i) The date of the charge; ii) The vehicle registration number; iii) That the vehicle was parked in breach of the terms of contract (the sign); iv) That it relates to a charge notice; v) The amount outstanding; and vi) That it is debt.

O) I refer to paragraph 5.2A of Practice Direction 7E which states that “the requirement in paragraph 7.3 of Practice Direction 16 for documents to be attached to the particulars of contract claims does not apply to claims started using an online Claim Form”.

P) Further, prior to proceedings being issued the Defendant was sent notices in accordance with the Act and a Letter Before Claim. As such, the Defendant would have been aware of the charge which is the subject of this claim.

Signage

Q) My Company takes serious issue with these allegations and the Defendant is put to strict proof. As stated above, we are a member of an accredited Trade Association, the Independent Parking Company (IPC). 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. Signage location, size, content and font has been audited and approved by the International Parking Community (“the IPC”). It is the driver’s responsibility, to check for signage, check the legality and obtain any authorisation for parking before leaving their vehicle. The signage on site is the contractual document.

 

The Site

R) The Site in question is a Retail Park and clearly marked as such; moreover, the perimeter of the Site and the Site car park is partially walled with the remaining perimeter being hedged. There can be no mistake to what exactly constitutes “the Site”. The issue here is that the entitlement to the offer of free parking for the relevant period is subject to drivers remaining on the Site and thus, not abusing the offer made to them. As is evident from the photographs attached, the Defendant parked her vehicle on the Site and then exited the Site on foot.

 

No authority to enforce charges

S) As the contract is between my Company and the Defendant, my Company does have the authority to enforce parking charges. However, both VCS v HM Revenue & Customs (2013) and Parking Eye v Beavis (CA 2015) made it clear that a contracting party need not show they have a right to do what they have promised in the performance of a contract, nor is (in the case of a parking operator) the agreement between Operator and Landowner of any relevance. In any event, and without concession, the Agreement exhibited to this Witness Statement evidences my Company’s authorisation to operate / manage the Site on behalf of the Landowner.

Charge is excessive/ no loss suffered

T) The charge sought is industry standard and is set at a rate so as to suitably satisfy my Company’s legitimate interest. In the case of Parking Eye -v- Beavis [2015] it was held that an £85.00 charge was neither extravagant nor unconscionable. The Accredited Trade Associations of which parking operators must be a member in order to apply for DVLA data prescribe a maximum charge of £100. My Company’s charges are within this level. The charge is therefore not excessive.

U) For the sake of clarification, the IPC Code of Practice states: “Where a parking charge becomes overdue a reasonable sum may be added. This sum must not exceed £60 (inclusive of VAT where applicable) unless Court Proceedings have been initiated." Due to the Defendant’s failure to pay the parking charge correctly issued to him within the initial 28 days, the parking charge has become overdue and a reasonable sum of £60 has been added by my Company. Such sum being added prior to the instruction of Gladstones and certainly, prior to the issue of proceedings.

The Current Debt

V) My Company is an Accredited Operator of the International Parking Community (IPC) who prescribes a maximum charge of £100. The Code of Practice states: "Parking charges must not exceed £100 unless agreed in advance with the IPC. Where there is a prospect of additional charges, reference should be made to this where appropriate on the signage and/ or other documentation. Where a parking charge becomes overdue a reasonable sum may be added. This sum must not exceed £60 (inclusive of VAT where applicable) unless Court Proceedings have been initiated."

W) The debt has, as a result of this referral risen as my Company’s staff have spent time and material in facilitating the recovery of this debt. This time could have been better spent on other elements of my Company’s business. My Company believes the costs associated with such time spent were incurred naturally as a direct result of the Defendant’s breach and as such asks that this element of the claim be awarded as a damage. The costs claimed are a pre-determined and nominal contribution to the actual losses. Further the Letter before Claim also made it clear the debt may increase in respect of costs and interest if a claim had to be issued. Due to the Defendant not paying the charge the matter was passed to my Company's legal representatives, Gladstone’s Solicitors Ltd, who were instructed to commence legal proceedings. The potential additional costs mentioned above are now sought. Alternatively, my Company does have a right to costs pursuant to the sign (i.e. the contract).

X) In view of the Defendant not paying the charge within the 28 days allowed they are in breach of the contract. Breach of contract entitles the innocent party to damages as of right in addition to the parking charge incurred.

Y) The signage (the contract) states “Where a parking charge becomes due an application may be made to the DVLA for the keeper’s details. Non-payment will result in additional charges which will be added to the value of the parking charge and for which the keeper will be liable on an indemnity basis”.