Gladstones Claim Form - is contesting worth the risk?

Coupon-mad

No, I never give links, but Google does. Parking Prankster case law.

The NEWBIES thread shows you how to word a WS and tips on evidence exhibits.

And every thread you read (and I hope you are reading lots of court threads to learn from them?) tells you to WAIT TILL YOU GET THEIR WS FIRST, before actually emailing yours to the Claimant, and taking the court's copy in a nice ring binder file in person, with the pages all numbered and a contents page.

You want to see their rubbish if possible before you submit your WS/evidence, so that you can demolish their rubbish as well.

It's always a thick pile of papers and ALWAYS a template that I am so bored reading...! People post it as if it's news, and worry that they have no case. Please avoid that.

All you need do is search this forum for an unusual case name or words from the Gladstones WS when it arrives, and you will see this has been done before. Nothing is new here and we never need to see a (fully expected and easy to demolish) Gladstones template WS.

All we need to see is your draft WS and evidence list, and whatever you have found out to add to it to demolish the other side's WS, assuming it arrives before 20th. It will probably hit your doormat this weekend. They seem to like serving them at weekends.

Umkomaas

No, I never give links, but Google does. Parking Prankster case law.

In addition there's a second PP case law resource. Parking Prankster more case law. . Google that too.

The_Deep

Have you complained to your MP about this harassment?

BonzoGonzales

Hello All

I've not yet received a WS from Gladstones yet and it's getting a bit late to respond by the 20th.
Here's the draft WS we have so far:

Statement of Defence


Authority to Park and Primacy of Contract
1. It is denied that the Defendant or lawful users of his vehicle were in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the Defendant permitting the above mentioned vehicle to be parked by the current occupier and leaseholder of ****, whose tenancy agreement permits the parking of vehicle(s) on land. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms. The lease terms provide the right to park a vehicle in the relevant allocated bay, without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle or the requirement to display a parking permit. A copy of the lease will be provided to the Court.

2. The Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease.

The following judgements support this assertion:

2.1. The operator’s signs cannot override the existing rights enjoyed by residents and their visitors, as was found in the Appeal case decided by His Honour Judge Harris QC at Oxford County Court, in case number B9GF0A9E: ‘JOPSON v HOME GUARD SERVICES’.
2.2.1. In the Jopson appeal it was also held that signs added later by a third-party parking firm are of no consequence to authorised visitors to premises where other rights prevail and supersede any alleged new ‘parking contract’.
2.2.2. In the Jopson appeal it was held that ‘PARKINGEYE LTD v BEAVIS’ (2015) UKSC 67 had no application to a situation involving drivers with a right and expectation to be entitled to park under the grants flowing from a lease.
2.3. ‘SAEED v PLUSTRADE LIMITED’ (2001) EWCA Civ 2011: On appeal it was held that easements enjoyed under the lease could not be restricted retroactively.
2.4. Pace Recovery and Storage v Mr N. (2016): it was found that the parking company could not override the tenant’s right to park by requiring a permit to do so.
2.4.1. District Judge Coonan concluded that Mr N.’s tenancy agreement granted the right to park without the requirement to display a permit.
2.4.2. Mr N. also won a previous case, wherein the Judge ruled that his tenancy agreement gave him an unfettered right to use his allocated parking space and that the terms could not be varied by PPC signage.
2.5. The claimant is not a party to the tenant’s lease and cannot arbitrarily vary it.

2. Accordingly it is denied that:
2.6. there was any agreement as between the Defendant or driver of the vehicle and the Claimant
2.7. there was any obligation (at all) to display a permit; and
2.8. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

Alternative Defence - Failure to set out clearly parking terms
3. In the alternative, the Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to consider the imposition of a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.
3.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate.
3.1.1. At the time of the material events the signage was deficient in number, distribution and lighting to reasonably convey a contractual obligation;
3.1.2. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee’s ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and
3.2. The Defendant avers that the residential site that is the subject of these proceedings is not a site where there is a commercial value to be protected. The Claimant has not suffered loss or pecuniary disadvantage. The penalty charge is, accordingly, unconscionable in this context, with ParkingEye distinguished.

4. It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking parking management. The Claimant has provided no proof of any such entitlement.

5. It is denied that the Claimant has any entitlement to the sums sought.

6. The defendant asserts that in a residential site, where there is no commercial value to be protected, other than the commercial value of the tenancy agreement which itself asserts the resident’s unfettered right to park in the allotted space, the function of the Parking Management Company is to protect the rights of residents to exercise their rights to park and not to make commercial gain through the issuance of parking charges for residents who are able to prove their legal right to park by dint of a tenancy agreement.


STATEMENT OF TRUTH
I confirm that the contents of this Defence are true.

In terms of supporting evidence we have a copy of the tenancy agreement which states there is an allocated parking space (with no further parking related clauses). We also have a photograph taken by the parking enforcer (at 1 AM) which show the car (in the allocated space) and the sign which is not illuminated in accordance with the IPC code of practice.
I've found the referenced cases in PP (thanks for that) and I guess I need to print those out at attach to the WS with the relevant paragraphs highlighted - I'll have to read them more closely as it's not clear to a layman like me which are the relevant sections.

Any comments on the draft WS would be appreciated
Thanks
Matt

beamerguy

Regarding the fake £60 added

ABUSE OF PROCESS

12th June 2019
Southampton court threw out a case from BWLegal because of Abuse of Process regarding the fake BWLegal add-on.
Claim number is F0DP201T District Judge Taylor

And for your reading, do not include the link
https://forums.moneysavingexpert.com/discussion/comment/75917866#Comment_75917866
READ ALL ABOUT IT .... POST #10

Coupon-mad

Here's the draft WS we have so far:

Statement of Defence

A WS is not headed Statement of Defence.

The above is a defence, you copied the wrong thing.

Start again and simply look at Witness Statements - a search will show you THOUSANDS! And list/collate your evidence, the NEWBIE thread gives you tips on evidence.

BonzoGonzales

I will do as you suggest and will post a revised WS but my intention is to use the body of the DS as the WS which I thought was the standard practice. Is that the wrong thing to do? Should I start from scratch with a WS?
The DS is largely lifted from examples found in this forum - the WS examples I've looked at seem to use plainer english which makes me wonder if I do need to rewrite entirely.

Matt

Coupon-mad

Should I start from scratch with a WS?

Yes as it isn't meant to be a legal argument and is written in the first person:

https://forums.moneysavingexpert.com/discussion/comment/75686250#Comment_75686250

BonzoGonzales

Thanks for all your help so far and here is my redrafted WS.
In the WS I draw attention to the fact that in the claim form they place the signage at a postcode which is significantly different from the postcode of the residential parking. I would be interested to hear any opinion on whether that's pertinent at all.

In the county court at Kingston-upon-Thames

Claim no.: XXX

Claimant: UK Car Park Management Limited

XXX (defendant)
[insert address]



I, XXX, Defendant in this case, deny liability for the entirety of the claim.

1. This matter relates to a parking charge issued to my vehicle (registration: XXX) on 20th January 2018 at 01:19 AM. It is admitted that at all material times the Defendant is the registered keeper of this vehicle.

2. I confirm that my vehicle was parked in bay xx allocated to Apartment xx, the Spires, Station Road West, Canterbury, CT2 8SD.

3. In the Formal Demand (issued by the claimant – item A) the claimant states that the ‘driver became liable for a parking charge at St Dunstans that we are authorised to manage by our client’.
3.1 No evidence of this authority over ‘St Dunstans’ has been provided – which is understandable give St Dunstan’s is an urban area of Canterbury (item D).
3.2 Perhaps more significantly the Particulars of Claim (item state the vehicle ‘parked in breach of the terms of parking stipulated on the signage (the ‘Contract’) at ST DUNSTAN’s – STATION ROAD WEST KIRBY’S LANE ORIENT PLACE THE SPIRES HO CANTERBURY KENT CT2 8AW’.
CT2 8AW is an entirely different location (as evidenced by item C) to that in which the vehicle was parked, namely the space allocated to apartment xx at CT2 8SD.
The Claim Form asserts that by parking my car in my allocated space in CT2 8SD I was in breach of a contract ‘stipulated on the signage’ in a different postcode.

4. In the Particulars of Claim (item the claimant asserts that the signage establishes a ‘contract’ between myself (as the owner of the vehicle) and the claimant, and that I was parked ‘in breach of contract’, ‘thus incurring the parking charge’.
This assertion (and with it any liability to pay the ‘parking charge’) is rejected in its entirety on the basis of the established legal principle of ‘primacy of contract’.
4.1 The tenancy agreement (item E) between the landlord and the tenant extends to the use of the specified allocated parking space and overrides any purported contract conveyed by the claimant’s signage.
4.2 The tenant’s contract makes no stipulation that a permit must be displayed to use the bay, nor that a penalty of £100 must be paid in the event of a failure to do so. The tenancy agreement’s lack of specificity on any conditions related to parking in the relevant bay can only be construed that none of the restrictions asserted by the claimant apply.

5 The signage that the claimant asserts establishes a contract does not itself conform to the IPC Code of Practice (item F):

“If parking enforcement takes place outside of daylight hours you should ensure that signs are
illuminated or there is sufficient other lighting. You will need to ensure all signs are readable
during the hours of enforcement as they form the legal basis of any charge.”

Item A includes a photograph taken by the claimant’s employee at the time the parking charge was issued.
5.1 The time of ‘enforcement’ is 1:19 AM during the hours of darkness
5.2. The included photograph makes it very apparent that the sign was not illuminated in accordance with the Code or Practice

5.3 On this matter, the defendant defers to the ruling of ParkingEye Ltd v Barry Beavis (2015) UKSC 67, insofar as the Court were willing to consider the imposition of a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any alleged breach of parking terms were clear – both upon entry to the site and throughout.
Item A clearly demonstrates that the signage in this instance was deficient to reasonably convey a contractual obligation to which a driver could wilfully agree.

6. I contend, therefore, that the tenant’s agreement provides an unfettered right to park in their allocated bay (bay xx in this case corresponding to Apartment xx). This cannot be superseded, altered, or ignored by a parking management company post hoc.

7. The residential site that is the subject of these proceedings is not a site where there is a commercial value to be protected (it is not possible to pay for a ticket to park). The claimant has not suffered loss or pecuniary disadvantage. The penalty charge is, accordingly, unconscionable in this context, with ParkyingEye distinguished.

8. Given that there is no commercial value to be protected, it is reasonable to argue that the intended purpose of engaging the claimant as a parking management company (although this authorisation to act in this manner has not been established) was to protect the residents’ unfettered rights to park in their allocated bays, and as such if a resident can establish that it was their vehicle parked in their allocated space any parking charge claimed by the claimant should be rescinded.

9. In addition to the £100 ‘parking charge’ the Particulars of Claim (item includes an additional £60 ‘contractual costs pursuant to the Contract’. This is a common tactic adopted by Gladstones which has been judged to be an ‘abuse of process’.

9.1 In Claim number F0DP201T on 10th June 2019, District Judge Taylor sitting at the County Court at Southampton, echoed an earlier General Judgment or Order of DJ Grand, who on 21st February 2019 sitting at the Newport (IOW) County Court, had struck out a parking firm claim. One was a BPA member serial Claimant (Britannia) and one an IPC member serial Claimant (UKCPM) yet the Order was identical in striking out both claims without a hearing:
''IT IS ORDERED THAT The claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in ParkingEye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998...''


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



XXX
16th June 2019

Thanks
Matt

BonzoGonzales

Hello

I've still not received a WS from Gladstones but given the due date is the 20th I will have to finalise mine without seeing theirs. Guess that's a tactic they've adopted.

I've modified the WS as posted above by removing all references to the Beavis case as all the more recent posts I read suggest it's no longer valid to use.

I don't reference the legal cases in the WS that I did in my SoD so I'm not sure if I am supposed to include the SoD with the referenced cases in the bundle I deliver to court.

Any advice / opinions on the WS appreciated - it's getting a little late!
Thanks
Matt