Gladstones Claim Form - is contesting worth the risk?

nosferatu1001

You can try, but the court will likely reply that you need to make an Application (costing £100) if you want them to formally look into this.

It isnt struck off, but struck out.
You shoudl call the court and ask if THEY have a copy of Gladstones bundle; if they dont, then that adds to the issue - theyve failed to deliver to court AND to you. EITHER WAY you want the court to record that, as of 24th... you do NOT have it, this is in breach of the order of... by X days and this is of serious detriment to a litigant in person.

BonzoGonzales

By way of an update we received the WS from Gladstones on the 5th of July (the deadline was the 20th of June).

This is the WS we submitted:


In the county court at Kingston-upon-Thames

Claim no.: XXXX

Claimant: UK Car Park Management Limited

XXX XXX (defendant)
XXXX


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.

Primacy of Contract
3. 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’.

3.1 The tenancy agreement (item E) between the landlord and the tenant extends to the use of the specified allocated parking space (apartment XX, bay XX) and overrides any purported contract conveyed by the claimant’s signage.

3.2 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.

4. I contend that the tenant’s agreement provides an unfettered right to park in their allocated bay (bay 45 in this case corresponding to Apartment XX). This cannot be superseded, altered, or ignored by a parking management company post hoc.

5. The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 as a binding precedent on the lower court. However, that only assists the Claimant if the facts of the case are the same, or broadly the same. In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas it is my position that no such breach occurred in this case, because there was no valid contract, and also because the 'legitimate interest' in enforcing parking rules for retailers and shoppers in Beavis does not apply to these circumstances. Therefore, this case can be distinguished from Beavis on the facts and circumstances.

6. As shown on the case of Pace v Mr N [2016] C6GF14F0 [2016] (Item G) it was found that the parking company could not override the tenant's right to park by requiring a permit to park. The same was found in Link Parking v Ms P C7GF50J7 [2016] (item H) it was also found that the parking company could not override the tenant's right to park by requiring a permit to park.
The case of Jopson v Homeguard [2016] B9GF0A9E (item I), won on appeal, again found that the tenant’s right to park cannot be overridden.

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.

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.

Dubious Claim of Authorisation/ Incorrect Postcode
9. 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’.

9.1 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).

9.2 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’ situated in a different postcode.

Inadequacy of Signage
10. 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.

10.1 The time of ‘enforcement’ is 1:19 AM during the hours of darkness.

10.2. The included photograph (item A) makes it very apparent that the sign was not illuminated in accordance with the Code or Practice. As such the signage in this instance was deficient to reasonably convey a contractual obligation to which a driver could wilfully agree.

‘Abuse of Process’ Through Inclusion of Additional Fees
11. 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’.

11.1 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

----

Gladstones sent their pack refuting the arguments we put forward in ours - using the two weeks between receiving ours and sending theirs - which seems a bit unfair.

Should I post the arguments Gladstones are making in their WS here?

Appreciate any help - hearing is in September so I have some time.

Coupon-mad

Should I post the arguments Gladstones are making in their WS here?

Yes, especially if there is anything different from the usual template WS seen in other Gladstones completed threads.

BonzoGonzales

Hello

It's been a while - real life getting in the way...

Here are the key points from the Gladstones WS:


They include the contract between UK CPM and Ringleys which relates ‘the following site: St Dunstans, Canterbury, CT2 8HY, herein after referred to as The Site’.

The postcode specified is not the postcode of my son’s flat (CT2 8SD). It is also not the postcode specified on the PCN (CT2 8AW).

They also include a ‘Site Plan’ which includes a large area of St Dunstans which encompasses numerous postcodes.

The defence:

3. Defendant is liable for a PC relating to the parking of a vehicle on the Relevant Land in a manner so as to incur so to as incur the same pursuant to the Contract (the sign). Set out in the Schedule below…

No authority to enforce charges
4. As the contract is between my Company and the Defendant, my company does have the authority to enforce parking charges. Both VCS v HM RC (2013) and Parking Eye v Beavis (CA 2015) make 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 the agreement between operator and landowner of any relevance. In any event, and without concession, the Agreement (in the WS) evidences my company’s authorisation to operate / manage the Relevant Land on behalf of the landowner.

5. it then quotes Justice Lewison commenting in VCS v HM R&C [2013] EWCA Civ 186.

Did not see the signs
…
They argue the signs were clear and that the defendant quotes the IPC Code of Practice requiring a sign to be placed at an entrance of the relevant land.

What we actually allege is that the sign was not illuminated as per the IPC Code.

The Defendant’s Right to Park

10. The evidence provided by the defendant may suggest they are at liberty to park on the Relevant Land, however pursuant to the same evidence, this was always subject to amendment (i.e. parking scheme and conditions as per the signage).

11. My company have been unable to locate a copy of the lease in relation to this property, however, I am aware that the majority of leases contain the provision that allows for estate regulations to be brought in from time to time for better estate management which I respectfully submit, includes the right to bring in a parking management scheme. As such any lease would be subject to this provision.

12 Exhibited in the WS is a copy of the judgement laid down… Link v Blaney (C9GF03Q9 May 2017). Para 22… it was held that the landowner’s rights were subject to regulations brought in from time to time and therefore “any agreement… must be subject to it as well”. In light of this, any right the defendant alleges he may have to park would have always encumbered as the Defendant’s Landlord could not have given a right which was not his/hers to give.

Charge is excessive / no loss suffered

13. The Charge.. is industry standard so as to satisfy my Company’s legitimate interest. Parking Eye… £85 charge was not extravagant.

14. Supreme court Parking Eye v Beavis made it clear that the charges are not penal nor do they have to reflect the parking operator’s loss. Further the charges provide a deterrent.

No contract
15. The defendant suggests there was no contract. Rules of interpretation require simply that the parties knew of their obligations… The Defendant was offered to use the land thereafter either follow the rules or in breach of the rules agree to pay £100.

16. Alder v Moore (1961) one should consider the obligations imposed by the agreement, not the terminology used.

17. The principles in this case are the same as in the Parking Eye case, save that he rules were different (leave in two hours) where as here it was to display a valid permit. In that case it was accepted as established principle that a valid contract can be made by an offer in the form of the T&Cs set out in the sign, and accepted by the driver’s actions.

18. The court may conclude that the land is managed as follows; the Claimant grants a contractual licence to all; this licence allows anyone permission to be on the land. This is inferred by the lack of any general prohibition… In this reagard the Defendant was offered to comply with the normal conditions (the sign), or park otherwise than in accordance with the normal conditions and incur a charge. The acceptance was at the point the defendant decided to park, having read the sign, and his condsideraton was the promise to pay the £100 for privilege of parking outside of normal conditons.

19. Refers to Judge Hegarty’s comments in Parking Eye v Somerfield (2011) “If this is the price payable for the privilege it cannot be regarded as a penalty”

The Current Debt

22. Not paying with the 28 days is a breach of contract therefore they are entitled to damages.

24. the parking charge has become overdue and a reasonable sum of £60 has been added

25. Sign also specifies non-payment will result in additional charges

26. his company have spent time facilitating the recovery of this debt and… asks that this element of the claim be awarded as a damage.


Any killer insights appreciated!
Hearing is on the 19th of September.

Thanks
Matt

BonzoGonzales

Hello All

The hearing is in 9 days - so any views on the Gladstones WS above would be really useful at this point!

Hoping we will win but not very convinced we will.

Thanks anyway
Matt

[Deleted User]

My son rented a flat with a tenancy agreement that gave him an allocated parking space (denoted by the flat number).

Do you have this? It is the obvious riposte to #10 and #11 in the witness statement. Do bear in mind it is for the Claimant to prove his case. This is a witness statement. It is not good enough to introduce in their statement of fact that there is PROBABLY a clause allowing the landlord to vary terms. It is not for them to vary those terms or to claim authority to do so, unless they can prove it.

The car park is managed by UK Car Park Management who issue resident permits. He broke up with his girlfriend who left taking the permit with her. In between getting the replacement permit he received two parking tickets which he refused to pay as he thought he was entitled to park in his allocated space by dint of his tenancy agreement.

The sign/contract (which you've not posted) requires a permit to be displayed, so:
(i) If Miss GF dumps the O/P's son on Monday PM
(ii) O/P's son applies for a replacement on Tuesday AM
(iii) No permit is supplied until Monday +1 week
What they are in fact doing is issuing a charge to a permit holder when they have failed to supply him with the permit he reasonably and appropriately requested. In effect they are charging for their own material failure to comply with an essential part of the contract (the initial supply of the permit) and probably the contract with the managing agent too (i've not seen that either). Put simply at the point the permit was lost and UKCPM didn't immediately supply a new one or allow the O/P son a moratorium, then the contract they claim breach for was impossible to perform. I assume immediate complaints were raised to chase up said permit when PCNs were being issued.

Jeez that statement is a mess (and it misstates the law too)...

They include the contract between UK CPM and Ringleys which relates ‘the following site: St Dunstans, Canterbury, CT2 8HY, herein after referred to as The Site’.

The postcode specified is not the postcode of my son’s flat (CT2 8SD). It is also not the postcode specified on the PCN (CT2 8AW).

This may be because the managing agent for the site is St Dunstans (Canterbury) Management Ltd - the directors may be Ringleys, but the company (in which the O/Ps landlord may be a shareholder) is a different corporate entity. Worth checking on companies house.

nor is the agreement between operator and landowner of any relevance.

Well actually it is, otherwise the PPC is trespassing and interrupting the O/Ps sons lawful use of his own property

Did not see the signs
…
They argue the signs were clear and that the defendant quotes the IPC Code of Practice requiring a sign to be placed at an entrance of the relevant land.

What we actually allege is that the sign was not illuminated as per the IPC Code.

Really not a great point if you live at the site and have applied for the permit which it asks you to display. I can't see that the DJ is ever going to be with you on this point. But i've been surprised before on this forum...

14. Supreme court Parking Eye v Beavis made it clear that the charges are not penal nor do they have to reflect the parking operator’s loss. Further the charges provide a deterrent.

Deterrent from parking on your own demised space? come again?
Let's look at what the super-brain that is Lord Sumption actually said at para 32 of the judgment:
32. The true test is whether the impugned provision is a secondary obligation
which imposes a detriment on the contract-breaker out of all proportion to any
legitimate interest of the innocent party in the enforcement of the primary obligation.
The innocent party can have no proper interest in simply punishing the defaulter.
His interest is in performance or in some appropriate alternative to performance.
So basically you cannot punish for the hell of it. He continues...
In the case of a straightforward damages clause, that interest will rarely extend beyond
compensation for the breach... But compensation is
not necessarily the only legitimate interest that the innocent party may have in the
performance of the defaulter’s primary obligations. [/I
So that may - if the Court is against you - stretch to the £100 forewarned as a breach of the contract, but as is noted compensation is necessarily the legitimate interest.

Classically in Beavis it was ensuring a "churn" of cars coming and going and in this case it is to ensure only residents park. Here, the PPC wants to impose a charge which in fact achieves the opposite of the aim - it restricts residents from parking. It is contrary to the legitimate interest. The argument is wholly misconceived.

Link v Blaney presumably turns on the specific lease in that case? It is not enough for the claimant to say "all leases are probably the same." Taken to it's logical conclusion, we'd all pay the same rent each month! It's well known leases vary and the powers within them. It's for them to prove that the variation within the lease exists if they rely on one. Presumably they could prove it if the argument was a cogent one. It is merely a land registry search - why haven't they produced it to the court?

£85 may be fine for a parking charge, but i'll sit comfortably whilst they try to explain how the unspecified £60 is quantified (there's a lot of argument on here about that, to include some ideas from me, beyond simply referring to the Soton judgments.

Alder v Moore is a TERRIBLE example - the Defendant (Booby Moore) had to repay insurance monies received when it transpired that his injuries were not such that they prevented him playing football and where he agreed that as a term of receipt. That was the effect of the term. I'm not sure what the PPC argues for here is quite as equitable...

Parking Eye v Beavis is not the same as this case at all, but it is established principle that a sign can be a contract, yes.

18. The court may conclude that the land is managed as follows; the Claimant grants a contractual licence to all; this licence allows anyone permission to be on the land. This is inferred by the lack of any general prohibition… In this reagard the Defendant was offered to comply with the normal conditions (the sign), or park otherwise than in accordance with the normal conditions and incur a charge. The acceptance was at the point the defendant decided to park, having read the sign, and his condsideraton was the promise to pay the £100 for privilege of parking outside of normal conditons.

Take them one at a time
(i) contract open to all. Is it? Does it say residents only?
(ii) license open to all to come onto the land? Come again. How does that work? Are residents really agreeing to allow a PPC to permit others to park in their spaces for a fee of £100 that they don't derive any benefit from. I don't think so.
(iii) So the PPC claims the O/Ps son derives benefit from parking in a space without a permit. I see. But if they don't issue a permit to someone so entitled, then the contract becomes impossible to perform.

19. Refers to Judge Hegarty’s comments in Parking Eye v Somerfield (2011) “If this is the price payable for the privilege it cannot be regarded as a penalty”

This is not a binding authority, nor is it a residential case (as will be plain) - it also pre-dates Beavis. What the DJ has to do is to apply the test in Beavis. Critically (and the PPCs like to gloss this, is that the penalty rule is engaged - the fee is capable of being a penalty, but was found not to be because of the legitimate aim to encourage churn. Here the aim must be to prevent non-residents parking and the scheme paid for by tickets. It's harder to see that charging residents is legitimate in this context.

Not paying with the 28 days is a breach of contract therefore they are entitled to damages.

The claim is for contractual damages

the parking charge has become overdue and a reasonable sum of £60 has been added

Where does that come from? How is it calculated? If an estimate then the pre-estimate of loss point does apply as it is in effect a liquidated damages sum that should have been specified in the agreement (the sign) When £60 was imposed when the charge became overdue (at least a month after the parking event) why is interest claimed on it from the date of the parking event (before the loss).

Sign also specifies non-payment will result in additional charges

That does not permit unfettered charges. The PPC has arbitrarily increased the debt by more than 50% and sought interest without being able to quantify it as a loss. Does it say WILL or MAY, too?

See if you can get hold of the lease. We've seen own property cases fail. That said, the whole point of the permit is simply to identify residents cars. There's nothing to stop them from noting down registrations to "white list" a vehicle. The essential characteristic is residency. You should post the sign as the case turns on that wording

BonzoGonzales

Thanks all for the help. Court case is this week.

My son is the defendant but I know more about the case than he does - having spent a lot of time on this forum... am I able to attend the case with him and speak in his defence or does he have to do this alone?

I'm sure I've read a what to do on the day guide on this forum somewhere but I can't find it - is there a link anywhere?

Thanks again.

Matt

Umkomaas

am I able to attend the case with him and speak in his defence or does he have to do this alone?

Yes inform the Usher on arrival.

Check out these terms on Google so you know the different levels of 'representation'. 'Lay Representative' and 'McKenzie Friend'. It's LR you need to undertake, but the occasional Judge has (incorrectly) only allowed MF representation.

BonzoGonzales

Update!
The court case was actually on the 18th (today) - so it was lucky we checked and turned up at the due date and time, unlike Gladstones who did not make an appearance.
The judge was not impressed and after some discussion asked if we wanted the case dismissed which of course we were more than happy to agree to. We then asked for expenses which we were duly award. The judge then narrated his his judgement as he wrote it down describing Gladstones' non-appearance, the awarding of expenses, and crucially that my son's tenancy agreement gave him the right to park in his allocated space. This made me think he had actually read our WS and had in effect agreed with it. This last part of the judgement might be especially useful to us as UK PCM issued more that one PCN, so I am half expecting them to try and pursue these also through the courts.

Just want to say many thanks to all of you who donate your time and energy equipping people like me (and my son) with the knowledge and belief to take on and beat these cowboys; I would not have known where to start without the help you all gave.

Matt

nosferatu1001

You should get a copy of the judgement, and if it includes that element in it then laugh

I would suggest that you now tell UK PCM to CANCEL any and all PCNs they have left, and to cease processing your sons data. They must do so as you have a court judgement showing they have no chance of winning any claim, and as the matter is already judged (res judicata) any potential claim would be vexatious and a waste of the courts and yours time.

You suggest they whitelist your son as any furthe rissuing of PCNs will be further breaches of the DPA, for which you will hold them AND THEIR PRINCIPAL fully liable for.