Letter before claim from Gladstones

KeithP

Joey_Santiago wrote: »

Any advice as to next steps? I believe I have to submit all the documents/evidence/witness statements I will be relying on next?

That's right - as described in post #2 of the NEWBIES thread.

Do not miss your deadline for filing and serving your Witness Statement, evidence and Costs Schedule.

Joey_Santiago

Cheers Keith - good reminder about the cost schedule

Joey_Santiago

Opinions on my witness statement would be very much appreciated...

There are a couple of other points I am unsure whether to include.
1. The history of NPE issuing unjust PCN's in that car park - the local MP is involved and local shopkeepers have formed an action group as there have been so many
2. The aggressive/misleading actions they took after my appeal to collect the money. If I hadn't know about these tactics from the help on MSE I would have felt under great pressure to pay.

And here's the images I will include
Car park pic https://postimg.cc/NK0wLbVb
Signs https://postimg.cc/gallery/1jko373iw/

Thanks

---

In the County Court at XXXXXXXXXXX

Claim No. XXXXXXX

Between

XXXXXXX (Claimant)

and

XXXXXXXXX (Defendant)


WITNESS STATEMENT


I, XXXXXXXXX, of XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX, the defendant in this matter will say as follows:


1. The Claimant asserts that I entered into a contract with it, that I breached that contract and must pay a contractual charge, with further undefined and unexplained additional charges.

2. Before I describe what happened on the day I parked in the XXXXXXXXXX car park (“the car park”), I confirm that the essence of my defence to this claim is that:

a. The Claimant’s terms and conditions in relation to the use of the car park were never made sufficiently clear to me at the material time. The sign which I now know has a statement about the parent and child parking is in front of two disabled bays and not legible from the parent and child bay.

b. I believe it is reasonable for me to assume that a parent and child bay is for the use of parents with children in the car (of which I had one)

c. There were no terms and conditions associated with the use of the child and parent 10 days before prior to my visit. Until XXX 2017 the aforementioned sign in front of the disabled bays only had information related to disabled parking.
The Claimant subsequently added the statement 'No parking in a parent and child bay unless accompanied out of the vehicle by a child 12 year old or less' without informing shoppers using the car park that the terms and conditions had changed as recommended in their own IPC code of conduct.
If they had followed that recommendation I would have been made aware of the new conditions and would not have parked in the bay.

d. The Claimant included an additional £77.44 to the initial charge which I understand to be an abuse of process to issue a knowingly inflated claim for an additional sum which it is not entitled to recover.

3. Included with my statement is a google earth aerial photograph of the car park. I've marked in red where my car was parked and the location of the sign nearest to the car in front of the disabled bays.
I have also included a photograph of the sign prior to xxxxx 2017 and another photograph of the sign after that date. The date the sign was changed was confirmed by NPE in an email dated xxxx 2018 as part of my SAR request which I have also attached.
I have also returned to the bay and taken a photograph of the sign from within the car.

4. Turning to the day of the parking, on xxxxx 2017. On arriving in the bay I fully intended for my son, my partner and myself to leave the car and use the shops. My son had been very upset on the journey home and as I went to remove him from the car I realised he was just dropping off to sleep.
In order to not disturb him we decided I would stay with him in the vehicle and my partner would pop in to the shop alone – we were in the bay for 7 minutes. I was not aware of any term and conditions of use of the bay.

5. There are no signs are in front of the bay and I believe it reasonable for the driver to think the symbol in the bay indicates it is for the use of parents with children in the car. It is unreasonable to assume the driver would think there is additional 'small print' or contract applied and go searching for information pertaining to that.

6. I now know that there is detail on a sign in front of the two adjoining disabled bays stating you have to be 'accompanied out of the vehicle by a child under the age of 12'. I believe this to be vague and unreasonable. I opened the car door with the intention of removing my child. If I had lifted my son out of the car and put him back would that constitute 'out of the vehicle'? Do his feet need to touch the ground? Does carrying him 1 metre away comply?

7. I received a PCN notice on the XX XXX 2017 informing me of the charge which I appealed against on the date of receipt informing the Claimant that I had a child in the car, however they have elected to pursue this matter via litigation.


Statement of Truth

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

Signature
Date

Joey_Santiago

I have just received an email from Gladstones offering me settlement out of court for a reduced fine.
I am obviously not minded to accept that offer but what do you guys think would be the best response a this stage?
a) ignore
b) politely refuse
c) a harder refusal indicating that I will be seeking reimbursement for the costs I have accrued in my defence

Thanks!

Redx

A common tactic , either ignore or tell them you will settle for say £95 in your account , same as a judge will award after you win in court

beamerguy

Joey_Santiago wrote: »

I have just received an email from Gladstones offering me settlement out of court for a reduced fine.
I am obviously not minded to accept that offer but what do you guys think would be the best response a this stage?
a) ignore
b) politely refuse
c) a harder refusal indicating that I will be seeking reimbursement for the costs I have accrued in my defence

Thanks!

The jokers are playing their ace hand again ....."We don't think we will win so we beg you to pay us some scam money anyway"

As Redx says ... a drop hands offer, they pay you £95 and you won't proceed.

That's a good deal for Gladstones

Bet they discontinue :rotfl:

Joey_Santiago

WS statement is due in tomorrow and I'm pretty much there. I added my partner as a witness on the court form and although she won't be attending court I assume I/she needs to produce a separate WS.
I'm thinking this should not include all the points in mine as the judge would go nuts having to read all that again so is it ok to just keep it very brief? I was there, this happened etc.

Umkomaas

Definitely not a regurgitation of your WS. Keep it brief and to the point, less can often be more.

Make sure that it is signed under a Statement of Truth.

Joey_Santiago

Thanks.

Here's my WS. I have edited heavily in light of the excellent work done by NorfolkBOI and yourselves and will include the new AOP section in a supplementary WS as suggested. I have also included the point regarding the civil restraint order. I know it's a long shot but the more people who ask.....

Is it worth adding anything about the history of NPE issuing unjust PCN's in that car park? - the local MP is involved, shopkeepers have formed an action group, always in the local press etc.




I am the Defendant in this matter, 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.
Attached to this statement is a paginated set of documents marked WS1, WS2 etc., to which I will refer.

1. The Claimant asserts that I entered into a contract with it, that I breached that contract and must pay a contractual charge, with further undefined and unexplained additional charges.

2. Before I describe the claim regarding Earlham House Shopping Centre car park (“the car park”), I confirm that the essence of my defence to this claim is that:

2.1 The Claimant’s terms and conditions in relation to the use of the car park were not made sufficiently clear to me at the material time so I have never had a contract with National Parking Enforcement.
The Claimants signage is unfit for purpose and incapable of forming a contract under Consumer Rights Act 2015 (WS1). I assert the location of the pertinent signage is also inadequate given the onerous terms applied to specific parking bays buried in small text on signs that are not near in front of them.

2.2 It also forbids the action claimed for “NO PARKING IN PARENT AND CHILD BAY UNLESS ACCOMPANIED OUT OF THE VEHICLE BY A CHILD 12 YEARS OLD OR LESS”, and then on the other hand seeks a contractual charge for the forbidden activity.

2.3 There were no terms and conditions associated with the use of the child and parent bay until 10 days before to my visit. Until XX Nov 2017 the aforementioned sign in front of the disabled bays only had information related to disabled parking (WS2).
On that date The Claimant added the statement ‘No parking in a parent and child bay unless accompanied out of the vehicle by a child 12 year old or less’. Both The International Parking Community code of practice (WS14) and the British Parking Association Approved Operator Code of Practice (WS15) state that shoppers using the car park should be made aware that the terms and conditions had changed with temporary signage. If they had followed their own Codes of Practice I would have been made aware of the new conditions.

2.5 The Claimant included an additional £77.44 to the initial charge which I understand to be an abuse of process to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. I have met a number of fellow defendants with identical particulars of claim all with the same date and the same costs despite different legal arguments/complexities. It is not creditable that so many robotic claims have resulted in substantial legal advice.


Background
3. On the XX of XXXX I arrived at the car park from Earlham Road entrance and parked in a clearly marked child and parent bay intending to leave the vehicle with my partner and 2 year old son to use the shops.
My route to the parking bay is indicated on the attached Google map (WS3).
There was no clear signage visible on entering the car park and no signage near the child and parent bay.
After parking and on leaving the vehicle to remove our son we realised he was asleep and decided to leave him undisturbed. I remained with the vehicle and my son while my partner completed the shopping.
We left the Car Park seven minutes later.

3.1 On the XX of XXX 2017 I received a Notice to Keeper by the claimant National Parking Enforcement LTD. This document (WS4) stated that I owed them £100.

3.2 Reason for issue: “Parked in A Child and Parent Bay Whilst Unaccompanied by a Child 12 years or Less”.

3.3 As the Notice to Keeper stated the reason for the fine was being unaccompanied by a child I immediately (the same day) sent them an email challenging the fine and informing them that I had a child in the vehicle at the time.

3.4 I then received a letter from the claimant dated xx xxxx 2018 rejecting my appeal and informing me that child(ren) are required to exit the vehicle. This was the first time I had been made aware of any terms and conditions relating to use of the parent bay.


Sign Locations with the Car Park
4. I have since visited the site of the car park and taken my own photograph of the sign used in the car park itself (WS5) and have obtained a photograph from Google Street View of the view from the entrance at the time (WS6).

4.1 On entering the car park the sign at the entrance was not clearly visible, it was side on to the approaching traffic and so only visible if looking out of the side window of the vehicle. The position has been changed since that time.

4.2 Once parked in the parent (WS7) bay there is no sign in front of the bay either with the customer notice or directing you to the customer notice.

4.3 The relevant sign is some 4 metres away, in front of the disabled bays. If you exit a vehicle parked front on you have a difficult side on view and even if you saw the sign you would assume it only applied to the disabled bays it was positioned directly in front of. (WS8)

4.4 Given the position of the sign and small text upon entry its entirely plausible that users could miss the main terms and conditions on customer notices entirely. This is contrary to the precedent set by the Vine v Waltham Forest [2000] judgement paragraph 19 (WS9) “to show that the car owner consented or willingly assumed the risk” of their action. “That will be done by establishing that the car owner saw and understood the significance of a warning notice or notices that cars in that place without permission were liable”

Inadequate Signage
5. The signage is difficult to read contrary to the judgement in ParkingEye v Beavis [2015]. The relevant signs in the ParkingEye v Beavis case were “large, prominent and legible so that any reasonable user of the car park would be aware of their existence and nature” and that “the charge is prominently displayed in large letters and at frequent intervals within it”. That is not the case here. I have attached a copy of the sign in that case (WS10) this is both entrance signage and the signage containing the customer notice and terms.

5.1 The signage breaches section 64(4) of Consumer Rights Act 2015 (WS1) “A term is prominent for the purposes of this section if it is brought to the consumer’s attention in such a way that an average consumer would be aware of the term.” Again this is both entrance signage and the signage containing the customer notice and terms.

5.2 I saw that the most onerous term on the sign (WS5) is in smaller font. This is contradiction with the ruling in J Spurling v Bradshaw [1956] In the Supreme Court of Appeal. Lord Justice Denning ruling set the precedent that a contracts most onerous term should be the most prominent “the red hand rule”. On the claimant’s signage the most onerous terms are in a smaller less prominent font. The ParkingEye sign (WS11) show just how inadequate this signage is compared with more compliant operators.

5.3 On the sign the parent and child bay is subject to unique onerous terms and a specific charge for breeching them, I assert that this necessitates the installation of a clear notice in front of the parent and child bay. In the signage provided it does not meet the standard set by Thornton v Shoe Lane Parking Ltd [1970]. In which terms forming a contract should be brought to the attention before or at the time of making a contract. It is impossible to read the signs without leaving the car, searching for the relevant sign and reading it.

5.4 The wording on the sign was prohibitive “NO PARKING IN PARENT AND CHILD BAY UNLESS ACCOMPANIED OUT OF THE VEHICLE BY A CHILD 12 YEARS OLD OR LESS”. Unlike in the ParkingEye ltd v Beavis case, the Claimant offered no licence to park if not accompanied out of the vehicle with a child 12 years old or less. A purported licence to stop without a permit or in this case a child under 12 exiting with the driver, in exchange for payment of a ‘charge’ on the one hand, cannot be offered when that same conduct is, on the other hand, expressly prohibited in the signage wording. This does not create any possible contract. In PCM-UK v Bull B4GF26K6 [2016] (WS11), residents were parking on access roads. The signage forbade parking and so no contract was in place. A trespass had occurred, but that meant only the landowner could claim, not the parking company.

5.5 The Notice to keeper states the reason for issue “Parked in A Child and Parent Bay Whilst Unaccompanied by a Child 12 years or Less”
The terms and conditions NO PARKING IN PARENT AND CHILD BAY UNLESS ACCOMPANIED OUT OF THE VEHICLE BY A CHILD 12 YEARS OLD OR LESS”. The terms do not match.

Code of Practice Breaches
6. I referred to the International Parking Community code of practice as this was both on the entrance sign, customer notice and the Notice to Keeper Sent to me and British Parking Association Approved Operator Code of Practice which was on the Subject Access Request documentation.
Even if there was a contract it must be “fair’: s. 62 of Consumer Rights Act 2015. As the Supreme Court held in ParkingEye ltd v Beavis the concept of fairness in claims such as this require that a parking firm complies in full with the requirements of the applicable code of practice, being either the British Parking Association code or that of the International Parking Community. After considering the applicable documents I assert the following non-compliance issues.

6.1 The International Parking Community code of practice Schedule 1 - Signage pg. 28 (WS12), states that text on signage “must be appropriate for the location of the sign and should be clearly readable by a Motorist having regard to the likely position of the Motorist in relation to the sign.”

6.2 The International Parking Community code of practice 27.3, pg. 26 (WS13) states “You must not use predatory or misleading tactics to lure drivers into incurring parking charges”. The fact that there is no signage around this area allied to the tiny secondary entrance sign, leads me to conclude that the Claimant is deliberately obfuscating. The aim to generate Parking Charge Notices for financial gain as opposed to preventing undesirable parking.

6.3 In relation to the additional terms added to the sign in front of the disabled bay, The Claimant failed to highlight this change of contract terms as recommended by International Parking Community Code of Practice (WS14) (Part E, Schedule 1 - Signage. Changes in Operator’s Terms and Conditions) “Where there is any change in the terms and conditions materially affecting the motorist you may place additional (temporary) signage at the entrance making it clear that new terms and conditions/charges apply, such that regular visitors who may be familiar with the old terms do not inadvertently incur parking charges. This signage should be in addition to the signage ordinarily required.”

6.4 As demanded by British Parking Association Approved Operator Code of Practice (WS15) (version 7 January 2018, Clause 18.10) “Where there is a change in the terms and conditions that materially affects the motorist then you must make these terms and conditions clear on your signage. Where such changes impose liability where none previously existed then you must consider a transition to allow regular visitors to the site to adjust and familiarise themselves with the changes. Best practice would be the installation of additional/temporary signage at the entrance and throughout the site making it clear that new terms and conditions apply. This will ensure such that regular visitors who may be familiar with the previous terms become aware of the new ones.”

6.4 I additionally assert that this makes the obtaining of my private information from the DVLA invalid as adherence to the codes of practice is a pre requisite of making requests from the DVLA Keeper at Date of Event system.

The Claim and Pre-Action

7. After responding to the claim, I lodged a formal Subject Access Request via mail and email to make sure that I could have all the requisite information before submitting my defence (WS16).

8. During this time, I became aware of a number of defendants with the same particulars of claim with the same signature on the same date. No doubt the court will be inundated with such requests and I doubt I am the first of these you will have seen.

9. This unwarranted harassment and baseless automated litigation caused me significant alarm and distress, such that I intend to escalate my complaint to the Information Commissioner for misuse of my data, obtained from the DVLA in 2018.

10. My DVLA data was supplied for the single strict purpose of enquiring who was driving, not for storing for a year then suing me as if I can now be held liable, in the hope I will not defend/will have lost the paperwork/will have moved house, or even better, that I will be so scared that I will pay over £252 for what was apparently an unproven £100 charge.

11. It is not credible that so many robotic claims have resulted in any substantial legal advice and I assert that the claimant has chosen to for want of a better term monetise old claims en-masse regardless of merit. These claims for often trivial incidents should be considered de minimis and a waste of the court and defendants time.

12. I have attached a supplementary witness statement to explain how the claimants modus operandi constitutes abuse of process.

13. If the court concludes that this claim and others made by the same serial claimant are without merit and particularly if abuse of process is a factor I invite the court to specify this fact and consider whether to make a limited civil restraint order as specified in practice direction 3C – Civil Restrain Orders Rules 3.3(7), 3.4(6) and 23.12.

14. Given the volume and robotic nature of these claims such sanction would save the courts time and prevent the claimant profiting from abuse of process in claims against those without the means or capacity to defend themselves.

15. I invite the Court to dismiss this claim in its entirety, and to award my costs of attendance at the hearing, such as are allowable pursuant to CPR 27.14 contained within the attached defendants schedule of costs.

I have also attached Further costs pursuant to civil procedure rule 27.14(2)(g) given the claimants unreasonable behaviour.

I believe that the facts stated in this witness statement are true.

Umkomaas

Is it worth adding anything about the history of NPE issuing unjust PCN's in that car park? - the local MP is involved, shopkeepers have formed an action group, always in the local press etc.

If you have evidence, otherwise it is inadmissible hearsay, won't help you and could have a negative affect.