Claim from UKCP/Gladstone

Rosie_apples

Hi guys

So WS has to be with the court by 9th Sept but we're on holiday so the 30th Aug is the last day we can get the docs there. If you have chance I'd really appreciate your critique of the WS and help with a couple of queries

- Does it have to be the defendant that delivers to the court?
- Should I use 'I' or 'the Defendant' within the WS, I currently have a mixture but will change to be consistent.
- Should the case law Exhibits be full copies of the transcripts?

I'm not confident I've put this together right but the bits underlined I'm really unsure should be there.

Here goes....

In the County Court at Mansfield, The Court House Rosemary Street,
Mansfield NG19 6EE

Claim No. XXXXXXX

Between

UK Car Park Management Limited (Claimant)

and

XXXXXXXXX (Defendant)


WITNESS STATEMENT


1. Preliminary

1.1 I, XXXXX, of XXXXX am the Defendant in this case. I am unrepresented, with no experience of Court procedures. If I do not set out documents in the correct way, I trust the Court will excuse my inexperience.

1.2 Attached to this statement is a paginated bundle of documents marked JR1, JR2 etc., to which I will refer.

1.3 The facts in this statement come from my personal knowledge. Where they are not within my own knowledge, they are true to the best of my information and belief.

1.4 The claim refers to an incident involving vehicle XXXXX, of which I was the registered keeper, on 27th March 2018 at Bridge Street, Birmingham B1 2JH. 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.

1.5 I am not liable to the Claimant for the sum claimed, or any amount at all, and this is my Witness Statement in support of my Defence already submitted.

2. Sequence of Events

2.1 On 27th March 2018 the vehicle turned left onto Bridge Street, Exhibit JR1 and JR2 shows no signage to indicate any parking restrictions/conditions on entering this area.

2.2 The vehicle was parked in an off road area to the rear of an unoccupied public house as shown in Exhibit JR3.The vehicle had been parked there numerous times after the Defendant had checked with a passing parking enforcement officer that it was ok to do so; to which the response had been it is private land not managed by us.

2.3 Being parked off the highway the vehicle was in no way contravening any Highway Regulations.

2.4 There was no reason to think that the area where the vehicle was parked was privately managed or required any kind of permit to park because there was no such signage.

2.5 Since the incident there have been numerous letters from debt collection agencies and solicitors, distinctly threatening and aggressive in tone as Exhibit JR4 shows. The Claimant has pursued an entirely unreasonable and vexatious process designed to deny any reasonable opportunity for explanation or appeal process, which has led to the current Court action. I respectfully suggest that parking companies using the Small Claims track as a form of aggressive, automated monetary demand against motorists is not something the Court should be seen to support.

2.6 Upon putting together this witness statement I do not know how I am meant to have breached terms of parking as the particulars of the claim do not meet the requirement of the Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

2.7 The Claimant has also failed to show they have sufficient interest in the area in question. Liability for the alleged debt is disputed in its entirety based on the well-established legal principle of primacy of contract.

3. Inadequate Signage

3.1 On entering Bridge Street, I did not see any signage from my vehicle clearly indicating the parking restrictions. When parked there were no signs adjacent to the area, or in the vicinity that could possibly be read from the vehicle. In the case of Vine v London Borough of Waltham Forest; CA 5 APR 2000 the Court of Appeal ruled that a person cannot be presumed bound by terms and conditions on signage that they have not seen, Exhibit JR5. In this case, which found in favour of the motorist, the signage was deemed insufficient because there was no signage directly adjacent to the Appellant’s parking bay and the only signage that was displayed could not have been seen from within the vehicle when parking, as in the case here.

3.2 If signage is present within the area it is not clear or large enough to be seen. A key factor in the case of ParkingEye vs Beavis was that 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” and that “the charge is prominently displayed in large letters and at frequent intervals within it”, Exhibit JR6. That is not the case here.

3.3 The IPC guidelines (14) state ‘You must not use predatory or misleading tactics to lure drivers into incurring parking charges. Such instances will be viewed as a serious instance of non-compliance’, Exhibit JR7. The fact that there is no signage around this area and that it is known that other motorists use this area to park, as seen in Exhibit JR8, I would question that the Claimant is deliberately obscuring this fact to generate spurious Parking Charge Notices solely for financial gain.

4. Contract

4.1 It is unclear as to whether it is even possible for the defendant to have entered into a contract with the Claimant as the Claimant has failed to provide details showing they have sufficient interest in the land or provide specific terms in its contract to bring action on its own behalf. As a third party agent, the Claimant may not pursue any charge, unless specifically authorised by the principal.

4.2 As mentioned at 3.1, any contract that was established would have been invalid under the doctrine of impossibility of performance. The defendant had no information how to obtain a valid parking permit and no means of securing one, as discussed in PACE Recovery and Storage v Lengyel C7GF6E3R, Exhibit JR 9.

4.3 The defendant also expects that any signage or operational practice around the area would fail to fulfil the Claimant’s own accredited parking operator scheme (The Independent Parking Committee (IPC)), on the basis that the signage would not be adequate to form a contract as it would fail to fulfil the IPC requirements for signage.

4.4 The IPC guidelines state that text on signage ‘should be of such a size and in a font that can be easily read by a motorist having regard to the likely position of the motorist in relation to the sign.’ The text on the Claimants signage is known to be very small, particularly that which refers to ‘contractual terms’ and a ‘parking charge’. This, coupled with the fact that the signs are often mounted at high off the ground, makes them very hard to read and impossible to read from a vehicle.

4.5 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.

5. Costs on the claim

5.1 CPR 44.3 (2) states: ''Where the amount of costs is to be assessed on the standard basis, the court will –
(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and
(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.

5.2 Whilst quantified costs can be considered on a standard basis, this Claimant's purported costs are wholly disproportionate and do not stand up to scrutiny. In fact it is averred that the Claimant has not paid or incurred such damages/costs or 'legal fees' at all. Any debt collection letters were a standard feature of a low cost business model and are already counted within the parking charge itself.

5.3 The Parking Eye Ltd v Beavis case is the authority for recovery of the parking charge itself and no more, since that sum (£85 in Beavis) was held to already incorporate the minor costs of an automated private parking business model. There are no losses or damages caused by this business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages. It is indisputable that the alleged 'parking charge' itself is a sum which the Supreme Court found is already inflated to more than comfortably cover the cost of all letters.

5.4 Any purported 'legal costs' are also made up out of thin air. Given the fact that robo-claim solicitors and parking firms process tens of thousands of claims handled by an admin team or paralegals, the Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste claims. The court is invited to note that no named Solicitor has signed the Particulars, in breach of Practice Direction 22, and rendering the statement of truth a nullity.

5.5 According to Ladak v DRC Locums UKEAT/0488/13/LA, Exhibit JR10, a Claimant can only recover the direct and provable costs of the time spent preparing the claim in a legal capacity, not any administration costs allegedly incurred by already remunerated administrative staff.

5.6 The Protection of Freedoms Act 2012, Schedule 4 (POFA), Exhibit JR11, makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant 'Notice to Keeper' (and the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is £100). This also depends upon the Claimant fully complying with the statute, including 'adequate notice' of the parking charge and prescribed documents served in time/with mandatory wording. It is submitted the Claimant has failed on all counts and the Claimant is well aware their artificially inflated claim, as pleaded, constitutes double recovery.

5.7 Judges have disallowed all added parking firm 'costs' in County courts up and down the Country. 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, using BW Legal's robo-claim model) and one an IPC member serial Claimant (UKCPM, using Gladstones' robo-claim model) 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...''

5.8 In summary, the Claimant's particulars disclose no legal basis for the sum claimed and it is the Defendant's position that the poorly pleaded claim discloses no cause of action and no liability in law for any sum at all. The Claimant's vexatious conduct from the outset has been intimidating, misleading and indeed mendacious in terms of the added costs alleged.

5.9 There are several options available within the Courts' case management powers to prevent vexatious litigants pursuing a wide range of individuals for matters which are near-identical, with meritless claims and artificially inflated costs. The Defendant is of the view that private parking firms operate as vexatious litigants and that relief from sanctions should be refused.


6. Declaration

The Court is invited to make an Order of its own initiative, dismissing this claim in its entirety and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14 on the indemnity basis, taking judicial note of the wholly unreasonable conduct of this Claimant, not least due to the abuse of process in repeatedly attempting to claim fanciful costs which they are not entitled to recover.

Statement of Truth

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


Signature

Date


JR1Left turn to bridge street
JR2 right turn to bridge street
JR3 Area parked in
JR4 debt collection and solicitor letter
JR5 3.1 Vine v London Borough of Waltham Forest; CA 5 APR 2000 the Court of Appeal
JR6 3.2 V ParkingEye vs Beavis
JR7 3.3 The IPC guidelines (14)
JR8 Photo of other cars parked there
JR9 4.2 PACE Recovery and Storage v Lengyel C7GF6E3R
JR10 5.5 Ladak v DRC Locums UKEAT/0488/13/LA
JR11 Schedule 4 of the POFA

Redx

Anyone can hand deliver to the court

Hand in a bundle that includes the WS , the exhibits and the costs schedule too

Also Email the same bundle to the claimant , as detailed on your court order

Before it is ordered , add something like , The judges stated

Umkomaas

- Should I use 'I' or 'the Defendant' within the WS, I currently have a mixture but will change to be consistent.
- Should the case law Exhibits be full copies of the transcripts?

Your WS should be in the first person.

Use relevant extracts appropriate to the argument you are making.

Rosie_apples

A few more queries you may be able to help me with

- which bits of the Bevis case law is relevant to signage? and detailing that the minor costs of an automated private parking business model are already incorporate in the cost? I’m struggling to understand what most of the document is saying and the best I’ve managed so far is

90. At all material times since then, ParkingEye has displayed about 20 signs at the entrance to the car park and at frequent intervals throughout it. The signs are large, prominent and legible, so that any reasonable user of the car park would be aware of their existence and nature, and would have a fair opportunity to read them if he or she wished to do so.

We don’t want to go to court and not have used the relevant bits but the document is so large!

- do I send copies to Gladstone or UKCPM? And does anyone know which email? I’ve looked on my paperwork and MCOL but can’t see one.

- do I send the email as late as possible or does it really not matter?

Your help as always is greatly appreciated.

Rosie_apples

Hi all

We filed our WS with the Court, sent to Gladrags and they failed to file but the court gave them another date by which to file their evidence, which is actually really annoying but never mind.

We have now received the following from Gladrags

Without Prejudice Save as to Costs

Our Client has instructed us to contact you in relation to the above matter.

Our Client has agreed to cease proceedings with both parties walking away from the Claim and bearing their own costs.

This decision has been made for purely commercial reasons, in an attempt to save time and costs for both parties.

Please confirm by no later than 12 Noon on Thursday 26th September 2019 if you wish to agree to the above by contacting molly@gladstonessolicitors.co.uk and the relevant documentation will be served upon you and filed with the Court.

I've had a quick look on the site and looking at the advice on this thread https://forums.moneysavingexpert.com/discussion/5628270/ias-appeal-feedback-appreciated&highlight=cease+proceedings have decided the best thing to do is accept their offer to discontinue.

Thanks for all your help along the way I most certainly couldn't have done it without you and this site. Hopefully one day soon something will be done about this sh!*ty practice.

Thanks
K