Letter before claim from Gladstones

Joey_Santiago

Received their WS statement today, almost a week past the deadline (images on the link below)
Their argument seems to be centred around the location of the signs. Interestingly, the map they show has shows 2 red circles where they say there are signs where there are none. They have also missed off the one at the entrance which they included a photograph of.
I included a map in my WS showing my route from the road to the bay and how the only sign I passed (at the entrance) was turned 90 degrees so not viewable as entering the car park.

https://postimg.cc/gallery/hcgi9vg8/

Redx

A member on here recently won on incorrect signage on a map etc , so good info and needs elaborating if it gets to court

Coupon-mad

That is a template Gladstones WS saying all the usual things, written by Gs, not NPE.

Parking firms cannot claim or plead any part of their case in damages. That was stated by the Supreme Court in the Beavis case!

The sign does not quantify the added costs, therefore they fail anyway, due to paras 6, 10 and 14 of the CRA 2015, as your WS says.

But of course they were never incurred, so they fail the CPRs anyway, on proportionality and justification (they are not real costs) again as per your own WS.

The sign's small print vaguely says the costs to the driver 'may' increase (what by 10p, or £10,000?) if the case is sent to Debt Recovery. Yet debt collectors acting for PPCs do not charge anything, not a penny if they do not collect, as per your WS.

At #14, they have misquoted Roch LJ in Vine, making the quote completely misleading. Search the forum to learn about that and make notes to show the Judge that those words were NOT the rationale at all, and Miss vine won, because...she did not see the terms on signs!

Where is their evidence over the 25 min timeline that the child (or another child) did not get out of the car even for a few seconds? The point being, evidence is key so how have they shown that no child got out of that car during the entire time? The sign does not say that the child has to go to the shop, only that the occupants must accompany a child who gets out the car (that would be OK for one second to hug them/grab their sweets/help load the bags...).

Also, how on earth are they monitoring that, by watching children all day? Do what?!

Is the signature of Jonathan L of NPE a facsimile or screengrab?

NorfolkBOI

I read on another thread that the text they cite on page 4 of this WS para 18 is possibly a recent addition to the IPC COP?

Then if so if this incident is is one of the older NPE claims (they are going back and claiming for years prior) this could be a lie as in it was not in the COP at the time of the parking.

NorfolkBOI

Coupon-mad wrote: »

Also, how on earth are they monitoring that, by watching children all day? Do what?!

They use CCTV and refer to it as gospel.

They then refuse to hand it over

The ICO must be getting bored now as nobody is getting it and the ICO are now asking them directly.

They also refuse to confirm they do not have it, or whom they sent it to.

Interestingly they do not confirm deletion either. I presume it does not play well to get a SAR then delete CCTV once the ICO ask after a few months later.

This outfit have companies house assets under 500k yet are all over Norwich now. On one day I visited 3 locations and that was just the ones with visible signs.

Add that to one of those 2/3,000£ AI Chinese CCTV NVRs and you face, car, kids and movements are databased and sent to whomever.

Coupon-mad

So they have no evidence they are bringing to court, that none of the children who were in that car, stepped outside at all, not even to draw a smiley face on the window, or help with bags. haha!

I read on another thread that the text they cite on page 4 of this WS para 18 is possibly a recent addition to the IPC COP?

Then if so if this incident is is one of the older NPE claims (they are going back and claiming for years prior) this could be a lie as in it was not in the COP at the time of the parking.

Yes, they lie.

Google to find the right one, and the fact it's in the current one is only because PPCs put it there, given the Trade Bodies are entirely self-serving for their members and certainly not driving up standards.

Joey_Santiago

NorfolkBOI wrote: »

I read on another thread that the text they cite on page 4 of this WS para 18 is possibly a recent addition to the IPC COP?

Then if so if this incident is is one of the older NPE claims (they are going back and claiming for years prior) this could be a lie as in it was not in the COP at the time of the parking.

Looked into this and it was mid 2017 they changed it so a few months before mine. Could be useful for some others though. Plenty of other points to go back on though - thanks Writing a skeleton argument this morning

Joey_Santiago

Coupon-mad wrote: »

That is a template Gladstones WS saying all the usual things, written by Gs, not NPE.

Parking firms cannot claim or plead any part of their case in damages. That was stated by the Supreme Court in the Beavis case!

The sign does not quantify the added costs, therefore they fail anyway, due to paras 6, 10 and 14 of the CRA 2015, as your WS says.

But of course they were never incurred, so they fail the CPRs anyway, on proportionality and justification (they are not real costs) again as per your own WS.

The sign's small print vaguely says the costs to the driver 'may' increase (what by 10p, or £10,000?) if the case is sent to Debt Recovery. Yet debt collectors acting for PPCs do not charge anything, not a penny if they do not collect, as per your WS.

At #14, they have misquoted Roch LJ in Vine, making the quote completely misleading. Search the forum to learn about that and make notes to show the Judge that those words were NOT the rationale at all, and Miss vine won, because...she did not see the terms on signs!

Where is their evidence over the 25 min timeline that the child (or another child) did not get out of the car even for a few seconds? The point being, evidence is key so how have they shown that no child got out of that car during the entire time? The sign does not say that the child has to go to the shop, only that the occupants must accompany a child who gets out the car (that would be OK for one second to hug them/grab their sweets/help load the bags...).

Also, how on earth are they monitoring that, by watching children all day? Do what?!

Is the signature of Jonathan L of NPE a facsimile or screengrab?

Absolutely, I'm citing the Vine and Beavis cases again in my skeleton argument. As you suspected, the signature is a scan/screengrab

Joey_Santiago

With considerable help from another very kind chap on our Facebook action group I have this skeleton argument to submit to the court. What do you guys think?


1.The Defendant has been somewhat ambushed today (4 December) by a pile of paperwork and photographs provided by the Claimant some of it for the first time in their witness statement. This is seven days after the courts deadline. I am a litigant in person and they are legally represented so why am I able to respect the court and they are not?

2. Such evidence should have been supplied during the pre-action phase, under the pre-action protocol for debt claims. It was not, and the Claimant being a serial litigator has no justifiable excuse for filing a claim yet withholding information from the consumer, an inexperienced litigant in person, until the hearing is imminent.

3. This skeleton argument covers the Consumer law applicable and other regulatory and legal arguments that apply in addition to the Defendant’s own witness statement, and is supplied to assist the court and the parties to narrow the issues. It is also a response to the case law exhibits, photographic and documentary evidence that were suddenly supplied by this Claimant.

Signage Inadequate, Forbidding and unable to form a contract
1. The lack of transparency and prominence of the Claimant’s signs and the small font of the hidden terms was raised. The Claimant has provided photographs which are wrong and misleading. There is no sign with the terms and conditions at the entrance of the car park on the driver’s side (Exhibit 2). The photograph of the sign they supplied is on the passenger side and rotated 90 degrees so cannot be read as entering the car park. This is not marked on the map included in their witness statement.
The term mentioning the parking charge itself (and especially the vague added ‘costs’, which in themselves are objectionable as double recovery - see #7 below) is in the smallest font and cannot possibly be described as prominent. You can barely read the version of it provided by the claimant in their witness statement, let alone at distance, and some metres away.
1.1 The claimant in their witness statement wishes to cite Vine v London Borough of Waltham Forest [2000] EWCA Civ 106 suggesting that not reading a sign will not stop a contract from occurring. In reality, the court of appeal judgement found exactly the opposite and that a contract may not be formed if for instance the signage was not sufficiently prominent as to be visible from the parking spot. I included this in my witness statement (4.4) in support of my argument.
1.2 This judgment is binding case law from the Court of Appeal and supports my argument, not the Claimant’s case:
1.3 This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have ‘breached’ - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver’s seat before parking.
1.4 I put the claimant to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver’s perspective. Equally, I require this operator to show how the entrance signs appear from a driver’s seat, not stock examples of ‘the sign’ in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere ‘stock examples’ of close-ups of the (alleged) signage terms will not be sufficient to disprove this.

ParkingEye vs Beavis is against this claim
2. Whilst the Claimant wishes to rely on ParkingEye v Beavis [2015] in paragraphs 9 & 15 of their statement. That case is distinguished, as it related to a car park with clear and brief terms, with the most onerous (the charge) the clearest. The only relevance ParkingEye vs Beavis [2015] has on this case is to support my defence, in that
2.1.1 A driver cannot be bound by hidden terms that they had no fair opportunity to learn about at the material time of using the site (as per Vine v London Borough of Waltham Forest [2000]).

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” Lord Justice Moore-Bick: 2.4
and that
“the charge is prominently displayed in large letters and at frequent intervals within it”.
That is not the case here Lord Justice Moore-Bick: 3.4 (consistent with Lord Denning’s Red Hand rule Precedent)

2.2 Contractual terms in the signage had to withstand the 2015 consumer act test of fairness.
2.3 My supplementary witness statement dealt with the fact that to add £60 to a parking charge is a disingenuous attempt at double recovery because it is trying to cover the ‘costs of the operation’ twice. The time and minimal costs of sending debt recovery letters must already be part and parcel of the actual ‘parking charge’, or that sum itself would fail, due to not matching the justification set out in the ParkingEye Ltd v Beavis [2015] UKSC 67 case.
“The interest of ParkingEye was in income from the charge, which met the running costs of a legitimate scheme plus a profit margin. [99]” Supreme Court’s press summary of the case (Exhibit 5)

The additional costs are disingenuous and an abuse of process
7. The disingenuous £160 sum and the claimants witness statement section 10, with the double recovery attempt falling foul of the POFA Schedule 4, paras 4(5) and 4(6) and the Beavis case, remove any possibility that a parking firm’s operational costs are ‘additional’ costs or loss with this business model.
7.1. In the instant case, the ‘debt recovery/damages’ term is so vaguely buried in the sign’s wordy small print - if they are specified there at all - that it is impossible to describe those terms as prominent and transparent, as the CRA 2015 requires. A term or consumer notice that falls at the hurdle of the ‘grey list’ paras 6, 10 and 14 is unrecoverable (CRA 2015 Schedule 2 Exhibit 3).
7.2. In case the Claimant tries to hide behind the ‘core exemption’ for price terms, in fact, NO consumer notices (and ‘non-prominent’ price related vague or hidden terms) are covered by the core exemption. The CMA Official Government Guidance says: ‘’2.43 In addition, terms defining the main subject matter and setting the price can only benefit from the main exemption from the fairness test (‘the core exemption’) if they are transparent (and prominent) – see part 3 of the guidance.’’ and at 3.2 ‘’The Act includes an exemption from the fairness test in Part 2 for terms that deal with the main subject matter of the contract or the adequacy of the price, provided they are transparent and prominent. (This exemption does not extend to consumer notices but businesses are unlikely to wish to use wording that has no legal force to determine ‘core’ contractual issues).’’ The parking industry is the exception to this rule because they have no consumer ‘customers’ yet are consumer-facing. Their intention is very clearly in many cases (including this case) for a consumer not to see the onerous terms hidden in their notices and it is averred that scant regard is paid to consumer law.
8. In the claimant’s witness statement para 21 they state that their costs have risen. This is disingenuous as their primary business model is to enforce parking hence their name “National Parking Enforcement”. In ParkingEye vs Beavis [2015] Parking eye did not charge extra fees as it is a given that the charges themselves were highly profitable and part and parcel of operating a robotic template-based operation. They also knew as market leader that such charges would and should automatically result in claims being thrown out for abuse of process.
8.1 The claimant uses no win no fee debit collection agencies. The claimant is put to proof anything was paid.
8.2 Their legal representatives Gladstone have on their website a percentage-based fees structure hence the large number of claims with the same particulars of claim (Exhibit 1 & 4). Even if this is genuine legal advice it is not claimable.
The claimant is put to proof that they did not choose this model.
9. Declaration

I believe that the facts stated in this skeleton argument are true.

Defendant

Signed
 
Exhibit 1 - DRP website no win no fee
Exhibit 2 - Their photograph with another showing the site and no signs on the drivers side as they have indicated https://postimg.cc/T5v7z9kJ
Exhibit 3 - CRA
Exhibit 4 - Gladstones website fees info
Exhibit 5 - ParkingEye vs Beavis

Le_Kirk

That is far too long for a skeleton argument, it is more like a Witness Statement (WS). What did you intend? A skeleton argument (SA) is an aide memoire designed to show you and the judge the path through your WS and defence. It should consist of bullet points with a reference to the page and paragraph number of the WS or defence.