Gladstone & UKCPM county court claim

Lauz44

Thanks but I can’t amend anything because my IP address has been blocked by the administrator so cannot access through my laptop (no idea why). And I can’t see which post is #30 as it doesn’t appear on the mobile browser.

Coupon-mad

It's because you've copied & pasted from Word:

https://forums.moneysavingexpert.com/showpost.php?p=72435030&postcount=1

Lauz44

All sorted by admin and I'll remove the link to drop box

Quentin

You now need to edit your post #35 to remove the quote.

Lauz44

I was wondering if anyone would mind having a look at my WS, please. My court date is imminent and 'm trying to prepare but getting worries about the points I've made. I'm wondering are there points that are stronger than others.
Below is the WS of the Claimant:

Point 2. outlines the documents they've included which they 'rely upon', these include; the agreement for the Claimant to manage parking on the land, The sign ('the contract'), Notices, Photographs of the 'incident' (some of the images weren't included in the SAR I sent).

3. The Defendant is liable for a parking charge related to the parking of a vehicle on the Relevant Land in a manner so as to incur the same pursuant to the Contract (i.e. the Sign). Set out in the Schedule below are details of the parking charge (gives date, PCN no, location, not displaying a valid permit).

THE DEFENCE
4. The Defendant has been issued with the above charge owing to the fact his vehicle was not parked in a manner that complied with the terms of the signage, namely that he was not parked with a valid permit at the time of the incident.

5. Attached to this statement at exhibit XXX is a copy of the signage from the Land which sets out the terms of parking and states:
- vehicles must display a valid pay and display ticket or valid permit in the from windscreen during the times stated below and park wholly within a marked bay (there are no marked bays, its a gravel car park)
- Pay and display - 6.30 am - 13.30 am Monday to Saturday" (a typo on their behalf I think)

NATURE OF THE OFFENCE / BREACH OF CONTRACT;
6. The attached photographs taken of the Defendant's vehicle confirm that at the time of the alleged incident there was no valid permit on display in this vehicle. As such parking could not be validated and the charge was correctly issued to the Defendant.

7. The Defendant has filed a Defence and defends the charge on the basis that he was awaiting a permit after having applied for the same. The Defendant relies on "a valid parking permit was applied for and paid for pertaining to the vehicle in question prior to the PCN being issued it is argued that the PCN was issued incorrectly. The Defendant is asked to note that regardless of having applied for a valid permit, the Defendant at the time of parking was not parked in compliance with the terms of the signage as his parking could not be validated. The Defendant will no doubt appreciate that upon patrolling the site, he attendant would not have known this information. The handwritten note that can be seen in the vehicle reading "parking permit applied and paid for on XXXXX" (I unfortunately put the incorrect year on the note) was not sufficient to allow the Defendant to park. It is also highlighted that the note suggests a permit was paid and applied for in XX 20XX and the charge took place XX (following year). Therefore the Defendant is asked to clarify with (their typo) the significant delay took place (this is petty as I clearly sent them the email and bank statement which they have included in their WS showing the dates).

8. As such the Defendant was parked in contractual breach of the terms of the signage. The rules of interpretation require simply that the parties knew of their obligations to one-another. The Defendant was offered use of the land and thereafter either follow the rules and park for free or in breach the rules agree to pay £100. The rules here just so happen to be set out above at paragraph 5 above (their typo I think). - I don't quite understand the wording of "free"

9. In case of Alder v Moore (1961) The court concluded that one should consider the obligations imposed by the agreement, not the terminology used i.e. the agreement's substance, not form.

10. The principles in this case are the same as in the Parking Eye case, save that in the Parking Eye case (typo?), as the particular parking rules were different, the rule breached was that motorists must leave the site within 2 hours, whereas here the rule was set out above. 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 accepted by the driver's actions as prescribed therein.

11. The court may conclude that the Land is managed as follows; the Claimant grants contractual license to all; this license allows anyone permission to be on the Land. This is inferred by the nature of the land and the lack of any general prohibition of entry on the signage. In this regard, the Defendant (as were all the motorists) was offered to comply with the normal conditions (as clear on the sign), or park otherwise than in accordance with the normal conditions and incur a £100 charge. The acceptance was at the point the Defendant decided to park, having read the sign, and his consideration was the promise to pay £200 for the privilege of parking outside the normal conditions. The Claimants consideration is that provision of parking services.

cont.

Lauz44

12. I refer to the Court Judge Hegarty's comments in ParkingEye v Somerfield (2011) that "if this is the price payable for the privilege, it does not seem to me that it can be regarded as a penalty, even though it is substantial and obviously intended to discourage motorists from leaving their cars on the car park".

13. Alternatively; it could be concluded that, any person can use the Land provided they do not exceed the licensed activity as set out in the sign and in failing to comply with the license granted to them, they in turn agree to the claimant's entirely distinct offer from that license which is 'to park otherwise than in accordance with the license for a charge of £100'.

14. 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"). The site plan attached to this statement as exhibit X evidences that there are sufficient signs on the Relevant Land, these are marked by way of the red dots as shown on the plan attached. I submit that the terms of parking were readily made available to the Defendant.

15. Is it the driver's responsibility, to check for signage, check the legality and obtain any authorisation for parking before leaving their vehicle. The signage on the site is the contractual document. By parking in the manner in which the Defendant did, the charge was properly incurred. 4

NO AUTHORITY TO ENFORCE CHARGES:
16. I refer to the attached document at X which is a copy of the agreement between my company and the managing agent of the relevant land dates X. The agreement specifically states that the managing agent of the land provides my company with the authority to operate a parking charge notice enforcement service on the land specified.

17. As the contract is between my company and the Defendant, my company does have the authority to enforce parking charges (can I argue that I paid the land owner directly and my contract is with them?). 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 xhibited to this WS evidences my company's authorisation to operate/manage the relevant land on behalf of the Landowner.

18. Lord Justice Lewison commented in VCS v HM Revenue & Customs [2013] EWCA Civ 186
1. "The upper Tribunal's reasoning on this part of the case was that since VCS dd not have the right under its contract with the car park owner to grant a license to park, it could not have contracted with the motorist to grant such a right. In my judgement there is a serious flaw in this reasoning.
2. The flaw in the reasoning is that it confuses the marking of a contract with the power to perform it. There is no legal impediment to my contracting to sell you Buckingham Palace. If (inevitably) I fail to honour my contract then I can be sued for damages. On the stock market it is commonplace for traders to sell short....... (I won't type the rest of this paragraph)
Thus in my judgement the Upper Tribunal were wrong to reverse the decision of the FTT on the question whether VCS had the power to enter into a contract. Having the power to enter into a contract, does not , of course, mean that VCS necessarily did enter inton a contract with the motorist to permit parking".

19. I trust that the above clarifies to the Defendant the charge was issued to the defendant with the correct and valid authority.

THE CURRENT DEBT
20. 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 a right of addition to the parking charge incurred.

21. My company i an Accredited Operator of the IPC who describes a maximum charge of £100. The code of Practice states: (goes on to state £100 + £60 then DVLA application and Gladstones Solicitors = additional costs). Goes on to mention company's staff has spent time and material in facilitating the recovery of the debt (template letters, basically).

And that's it! It took far longer than I'd have liked to type this out. I still maintain that the email which states my permit will be issued "immediately" is my main point. Any help would be hugely appreciated. I will delete these posts soon, obviously.

Lauz44

point 11. it's £100 not £200 (my mistake)

Lauz44

My court date is tomorrow. I've been reading non-stop for days. I just wondered how it works with contesting some of the points in their WS. Does the judge allow me to comment or am I only allowed to discuss things in my own WS when it's my turn to give my version of events?

I anyone has time to quickly look over my WS and the Claimants WS, I would be ever so grateful. Any hints, best avenues to pursue etc? Thanks in advance.

KeithP

Have a look at this short video:

www.youtube.com/watch?v=n93eoaxhzpU

Lauz44

Thanks, Keith. I watched that video a few days back. I read on a previous thread that a Defendant was not afforded the same opportunity to question the Claimant as they had him. I hope this isn't the case as I'm sure they'll be quick to pick holes in my WS. I'm not very confident at the minute but I can't back out now.