Gladstones [Link Parking] - Visitor Parking County Court Claim

beamerguy

VSOP wrote: »

Any idea about the success of fighting these parking cowboys in court? And how many cases actually go that far?

If you read all about Gladstones, you will see just how incompetent they are. They do discontinue when they realise their claim is rubbish but they also wait to be spanked by a judge in court

In other words, we never know

VSOP

Thanks for your response. Personally I just find it disgusting that I am paying to rent a property and there are cowboys lurking every night to ticket residents vehicles.

beamerguy

VSOP wrote: »

Thanks for your response. Personally I just find it disgusting that I am paying to rent a property and there are cowboys lurking every night to ticket residents vehicles.

And it's your job to confirm this to a judge

It's also your job to highlight to the court about Abuse of process

https://forums.moneysavingexpert.com/discussion/6014081/abuse-of-process-district-judge-tells-bwlegal

Do you actually know it's the PPC ticketing at night or is it a nosey neighbour earning £10 per ticket

VSOP

That’s a very good question, I can only assume it is the actual parking company giving out tickets as I have caught them in the act before. To which I confronted the man and he told me to ignore them, my response to him probably violates rules on here...

Thanks, will look into this Abuse of Power.

Le_Kirk

VSOP wrote: »

Thanks, will look into this Abuse of Power.

Whilst it may very well be, the phrase you want is Abuse of Process.

VSOP

Thank you all for your support so far. Please see the defence statement and skeleton argument that I submitted:

SKELETON ARGUMENT
_________________________

1. The date of the alleged contravention occurred whilst the Keeper was bound by a tenancy contract as resident of XXX
TENANCY AGREEMENT & INVENTORY ACCOMPANIED BY PARKING PERMIT APPENDED AS EVIDENCE: A.1

2. The original PCN posted in 2018 ago by this Claimant, Link Parking Ltd states ‘parking charge of £100.00 is due from the driver…’
PCN APPENDED AS EVIDENCE: A.2

3. The original PCN (A.2) posted by this Claimant states a Full Charge of £100.00 (£60.00 discounted) however the Claimant’s legal firm now inflates these sums, in a deliberate or negligent attempt at quadruple recovery:
I. £100.00 Principal debt
II. Link Parking’s contractual costs £60.00
III. Interest £4.46 (continuing at £0.04 per day)
IV. Legal representative’s costs £50.00
V. Outstanding balance to pay now: £214.46

4. It is clear that no checks have been made as to the facts of the alleged contract, signs or parking charge, in this Claimant's undue haste to issue robo-claims in their thousands, scraping the barrel of archive cases to bring to court, under excuse of jumping on the bandwagon started by the (completely different and complex) case in ParkingEye Ltd v Beavis [2015] UKSC 67 ('the Beavis case').

5. The tenancy agreement for XXX (A.1) includes parking permits where the landlord has passed on the right of parking. Link Parking cannot unilaterally alter the terms of the existing contract with the landlord by merely erecting poorly visible signage on the premises, overriding existing rights enjoyed by residents and their visitors. The Judge’s attention is drawn to Link Parking v Mr. A (case no. D8GF2F8Z at the Bristol County Court) where such judgement had been established. In addition, judgements on appeal of HHJ Harris QC in Jopson vs Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] Civ 2011. Where it was found the managing parking agent could not reduce the amount of parking spaces available to residents. Similarly, the judgement in Pace Recovery vs Mr. N (CGF14F0), it was established that a parking company cannot override the tenant’s right to park by requiring a permit.

APPENDED AS EVIDENCE in Jopson vs Homeguard Services Ltd (2016) (A.3)
APPENDED AS EVIDENCE in K-Sultana Saeed v Plustrade Ltd [2001] Civ 2011 (A.4)

6. The Claimant had no locus standi at the time of this parking event and at best, were contractors of a principal, the landowner. They have failed to show a cause for action by way of sight of a copy of the contract they have with the landowner to assign the right to enter into contracts with the public and to make claims and take civil action against drivers in their own name, in 2017. Additionally, the copy of the contract with the landowner outlined by the Claimant clearly indicates ‘Number of Signs’ as ‘N/A’.

7. The Claimant places reliance on its provision of signage at the site and upon the content of that signage. However, the Claimant is under a duty to the Court to provide full and fair disclosure by informing it of all relevant issues. The Claimant has failed to advise the Court that a criminal offence was being committed by the display of its signage. At the time the driver allegedly parked at this location, it is contended that a criminal offence was being committed in order to artificially create the appearance of a contract.

8. The commission of an illegal wrong being present at the time of a driver allegedly entering the contract means that the Claimant will not be able to enforce the contract. The illegality is central to the contract (the terms on the signs themselves) and is not merely a minor aspect thus it should not be held to be too remote so as to render the contract enforceable.

9. The Claimant has omitted to obtain Planning Permissions or Advertising Consent from XXX Borough Council & the present Landowner for the Signage. The XXX Borough Council Planning Register does not show any such applications in its planning history.
EVIDENCE FROM THE COUNCIL WEBSITE APPENDED AS EVIDENCE: A.5

10. It is contended that the signs are in place without consent and are therefore illegal advertisements. By virtue of Regulation 30 of the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 (as amended) it is a criminal offence to display an advertisement in contravention of the Regulations. The penalty on conviction for the offence is at level 4 on the standard scale (current maximum £2,500) plus £250 for each day that the offence continues.

11. The Judge’s attention is also drawn to RTA (Business Consultants) Limited v Bracewell [2015] EWHC 630 (QB) 12 March 2015 (the RTA case) which whilst dealing with a different matter, covered at 34, the relevance of the public law principle going back well over 200 years, that no man should profit from his crime. It is submitted that this is particularly relevant in this action. In the RTA case, the Judge cited Lord Mansfield CJ to explain that:
“The principle of public policy is this; ex dolo malo non oritur actio. No Court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff's own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the Court says he has no right to be assisted. It is upon that ground the Court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. So, if the plaintiff and the defendant were to change sides, and the defendant was to bring his action against the plaintiff, the latter would have the advantage of it.''

12. In this claim there has been a transgression of a law (the 2007 Regulations) and it is submitted that the Court should not “lend its aid” to this Claimant “who founds his cause of action upon an illegal act”.
THE RTA CASE IS APPENDED AS EVIDENCE: A.6

13. The Beavis case at 96, draws attention to the Code of Practice of the British Parking Association ('the BPA'). And at 111 the Judge helpfully comments that “while the Code of Practice is not a contractual document, it is in practice binding on the operator since its existence and observance is a condition of his ability to obtain details of the registered keeper from the DVLA. In assessing the fairness of a term, it cannot be right to ignore the regulatory framework which determines how and in what circumstances it may be enforced.” (Defendant’s emphasis of the key point).

THE BEAVIS CASE IS APPENDED AS EVIDENCE A.7

14. The Code sets out how and in what circumstances a term may be enforced. It states: “All AOS members must be aware of their legal obligations and implement the relevant legislation and guidance when operating their businesses.” Broadly, the Code of Practice obliges the Claimant to comply with the law in creating and in enforcing its contract with a motorist and in communicating the terms of that contract. The Claimant failed to do so in several respects.

15. The Code sets out how and in what circumstances a term may be enforced. It states: “All AOS members must be aware of their legal obligations and implement the relevant legislation and guidance when operating their businesses.” Broadly, the Code of Practice obliges the Claimant to comply with the law in creating and in enforcing its contract with a motorist and in communicating the terms of that contract. The Claimant failed to do so in several respects.

16. The Court’s attention has been drawn to the failure of the Claimant to ensure that the relevant legislation had been complied with, thereby resulting in criminal conduct in their operation of parking enforcement. Which indicates a clear breach of the BPA Code of Practice.

APPENDED AS EVIDENCE AS THE ONLY ARCHIVE VERSION IN THE PUBLIC DOMAIN, THE 2012 BPA COP (UPDATED IN OCTOBER 2012 AFTER THE POFA): A.8

17. It is contended that the signs that were in place at the location were unclear and wordy, yet with the actual terms and 'parking charge' buried in small print, thus being incapable of forming a contract and failing to meet the British Parking Association (BPA) Code of Practice or the Independent Parking Committee (IPC) Code of Practice. The Claimant was also a member of the IPC as indicated on signage, whose requirements they did not follow.

XXX SIGNAGE IS APPENDED AS EVIDENCE A.9

18. I would like to draw your attention to the Judge’s findings about Link Parking Ltd parking signage in 2016 in Link Parking v Mr L. (case no. C9GF5875 at the Cardiff Court) resulting in the case being dismissed due to inadequate signage.
AND THE PLAIN LANGUAGE COMISSION ARTICLE ‘PHONEY FINES & DODGY SIGNS TAKE DRIVERS FOR A RIDE’: (A.10)

19. My case can be distinguished from the Beavis case, which was dependent upon Mr Beavis being the driver who accepted a clear contract, formed by unusually prominent signage. Strict compliance with the BPA Code of Practice and the clear, prominent terms on brief signs was held to be paramount. None of this applies in this material case.

THE BEAVIS CASE SIGN IS APPENDED AS EVIDENCE; A.11

20. The Claimant’s signage (A.7) did not set out terms in a sufficient clear manager which would be capable of binding any reasonable person read them. The signage states that vehicles must be “displaying a valid parking permit and parked in the correct allocated bay”, with no indication which bay are allocated to whom and very poor markings applied to each parking bay (A.9.5).

21. The claimant cannot rely on Elliot v Loake ('EvL') to claim that the driver and the keeper can be 'assumed' to be the same, since this was a criminal case and referred to the owner, not the keeper. In any event, in EvL there was overwhelming forensic evidence from other sources that the defendant was the driver at the time. By contrast, in my case this Claimant has not offered any evidence to the driver's identity and cannot make any lawful assumption.

22. The vital matter of 'keeper liability' regarding the law when parking on private land was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015 in the Annual Report where he stated:

23. “There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If... {POFA 2012 Schedule 4 is}... not complied with then keeper liability does not generally pass."

POPLA ANNUAL REPORT 2015 APPENDED AS EVIDENCE: A.12

24. Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator is unable to transfer the liability for the charge using the POFA, in this case because of the indisputable fact that the event pre-dated the law. This claim is founded upon a misrepresentation of facts and misrepresentation of the law.

25. It is noted that in view of all of the above, the Court could decide of its own volition to strike this claim out under CPR 16.4 and as an unrepresented Defendant I ask the presiding Judge to use their case management powers and relieve me of the burden of having to appear to defend myself as registered keeper, in view of the Claimant having supplied no evidence of any basis for a claim against me in law.

I believe that the facts stated in this Skeleton Defence are true.

VSOP

_________________________

WITNESS STATEMENT
_________________________

I am the Defendant in this matter with no experience of Court procedures. If I do not set out documents in the way that the Claimant may do, I trust the Court will excuse my inexperience. In this Witness statement, the facts and matters stated are true and within my own knowledge, except where indicated otherwise.

1. I am XXX, the Defendant in this matter. I will say as follows:

2. Whilst I was the Registered Keeper of the vehicle concerned, there is no evidence of the driver. The claimant has issued a notice to keeper which is not compliant with the strict requirements of the Protection of Freedoms Act 2012 as it fails to show any period of parking as per paragraph 8 (2)c PoFA 2012

3. The Defendant neither admits nor denies being the driver at the time of the supposed event, and therefore puts parking company to strict proof that any contract can exist between the Claimant and themselves.

4. At the time in XXX until now, multiple members of my family have access to this vehicle, who I have no obligation to name to a private parking firm. It remains the burden of the Claimant to prove their case.

5. Having not heard about this matter in months, I suddenly began receiving letters regarding a court claim months later and after doing extensive research I discovered Link Parking are issuing robo-claims for archive ‘parking charges’ in their thousands.

6. This unwarranted harassment and baseless litigation has caused me significant alarm and distress, such that I intend Link Parking to the Information Commissioner for misuse of my data obtained from the DVLA.

7. As a rent paying resident of XXX with designated residency parking permits as part of my tenancy inventory, it is strongly argued the Claimant’s signage has primacy over the tenancy agreement.

8. My DVLA data was supplied for the single strict purpose of enquiring who was driving, not for attempting to sue me as if I can held liable, in hope I will not defend or even better be so scared that I will pay over £260 inclusive of an unproven £60 contractual costs allegedly incurred by another party, if incurred at all.

9. It is apparent from court records reported in the public domain that this Claimant has been obtaining payments from keepers under false pretences - using the court as a cheap form of debt collection from the wrong 'registered keeper' parties - and has obtained default CCJs in the hundreds, despite never complying with the POFA 2012 and even bringing pre-POFA cases to the Courts, as here.

10. The Claimant may try to rely upon ParkingEye Ltd v Beavis, yet the Defendant would like to point out that this car park does not offer a free parking period therefore Parking Eye Ltd v Beavis case does not apply.

11. It is my position that, under the doctrine of promissory estoppel, the Claimant has no standing, or cause of action, to litigate in this matter.

12. I invite the Court to dismiss this claim in its entirety, and to award my costs of attendance at the hearing, such as are allowable pursuant to CPR 27.14.

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

VSOP

Appreciate everybody's input to get be to this point. The court hearing 7th Novemeber and to be honest I am quite scared. I am reading up on the tips on the NEWBIES thread. I am plan on having my other half represent me as a lay rep.

Do you guys have any advice for our hearing? We are complete newbies and have never been in a court before. Bit worried about how technical the judge may get.

Le_Kirk

Your skeleton argument is longer than your witness statement and you call it a skeleton defence at the bottom. A skeleton argument is an aide memoire for you and is to help you in presenting your case to the judge. It normally consists of bullet points that are a pathway through the defence and witness statement.

VSOP

I see what you're saying, does this sort of thing heavily go against people on the day?