UKCPM Gladstones Hospital PCN Court Claim

The_Deep

In all probability this claim is likely to be thrown out. Why do the scammers waste their and court time wit claims which have little chance of success.

IMO this claim is unreasonable, as it flies in the face of NHS guidelines. I hope that you will be asking for unreasonable behaviour costs, (CPR27.14(2)(g) if you win OP.

ishrav

Thank you so much Le_Kirk. I appreciate you taking the time to read through it and I've made the suggested corrections.
I will definitely be pursuing the costs, The Deep, thank you.
I shall post here again when I get the DQ back and start preparing my witness statement.

ishrav

Do I print the defence, sign it, scan it to my pc and then send it via email as an attachment?
To this email address?

Claim responses & directions: ccbcaq@hmcts.gsi.gov.uk

Thank you

KeithP

ishrav wrote: »

Do I print the defence, sign it, scan it to my pc and then send it via email as an attachment?
To this email address?

Claim responses & directions: ccbcaq@hmcts.gsi.gov.uk

Thank you

No, that is an out of date email address.

Follow the guidance I posted in post #8 above - in your very own thread.

ishrav

Hi again.
So I’ve just returned home and was expecting to find a Direct Questionnaire in the post but I haven't received it.
I logged onto the MCOL website and I’ve noticed that even though I submitted my defence on the 19th before 4pm (and have the email to prove it) it says it was received on the 20th.
Does this mean that they’re saying that it was late? I submitted it on time though? Is that going to cause problems?
I’m worrying a bit and don’t know what will happen now.

KeithP

You are worrying unnecessarily.

Wait patiently for a Directions Questionnaire from the CCBC or print your own if you wish - as described in item 8 in the list in post #8 above.

ishrav

Hi everyone.
I’ve received the Direct Questionnaire and the claimants have offered mediation
Is it worth going down that route? And what is to be expected about mediation?
Thank you

KeithP

Please have another look at the information I pointed you towards when I last posted here. You thanked that post earlier today.

That's now three times in as many posts that I have directed you there.

The answer to every single question on that form is explained in bargepole's 'what happens when' post linked from there.

ishrav

Hi everyone
I have now received a court date and am in the process of drafting my witness Statement.

Could you please check this for me and let me know how it can be improved? thank you so much


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 as already filed.

The exhibits which I, as Defendant, intend to rely upon are as follows:



The facts of the case are as set out in my Statement of Defence, filed in response to the original claim and verified by a statement of truth. They do not bear further repetition here, but by this statement I now adduce evidence in order to prove my case. A copy of the statement of defence can be seen in Exhibit XX.

Equality Act 2010 Not Complied With

At the time of the alleged contravention, I was the holder of a valid Disabled Badge as my medical condition meant that I met the definition of disability under the Equality Act 2010 and I was therefore entitled to ‘reasonable adjustments’ by law.

Under the Equality Act 2010 (EqA 2010) a public service provider, like the Claimant, has a ‘duty to make reasonable adjustments’ in certain circumstances (Section 29 (7) EqA 2010). Where a provision, criterion or practice of the service provider puts disabled persons generally at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, the service provider is required to take such steps as it is reasonable to have to take to avoid the disadvantage (Section 20(3) and Schedule 2(2), EqA 2010).

The duty to make reasonable adjustments aims to make sure that a disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people. When the duty arises, the service providers are under a positive and proactive duty to take steps to remove or prevent these obstacles.

The Claimant is a member of the International Parking Community (IPC) Accredited Operator Scheme and has failed to comply with the ‘Reasonable Adjustments’ criteria of the EqA 2010 by not following the IPC’s Code of Practice General Terms regarding disabled motorists (Exhibit RN25):

7 Disabled motorists

7.1 Under the Equality Act 2010 it is your duty to make “reasonable adjustments” to assist disabled people to use any services you provide. It is incumbent on operators to determine what is necessary on their individual sites. Adjustments could include lowered pay and display meters, lowered signage and wider parking bays marked specifically for disabled drivers.

According to the EqA 2010, the duty of the service provider to make ‘reasonable adjustments’ is ‘anticipatory’. This means that they cannot wait until a disabled person wants to use their services, but must think in advance (and on an ongoing basis) about what disabled people with a range of impairments, such as mobility impairment, might reasonably need.

Chapter 5 of the Equality Act 2010 Code of Practice explains ‘indirect discrimination’ which may occur when a service provider applies an apparently neutral provision, criterion or practice which puts people sharing a protected characteristic (such as disability) at a particular disadvantage.


No Contract Offered

I understand from correspondence with the Claimant that their case relies upon the signage at the site consulting a ‘contract’ between myself and the Claimant as per Parking Eye vs Beavis. The ‘breaching of terms’ on the Particulars of Claim presumably refers to the supposed ‘contract’ formed by this signage.

In ‘Parking Eye vs Beavis’, on which the Claimant relies to justify this charge, it was found that a contract could exist because there was a meaningful ‘offer’ made to the Defendant (that of a licence allowing free parking for a set period of time) and that the Defendant’s agreeing not to overstay this period could constitute a ‘consideration’ in respect of this. There is no such ‘offer’ made by the signage in this case, no ‘contractual licence’, no ‘benefit of free parking‘ and no conceivable way I could have benefitted from this alleged ‘contract’ without breaching its terms.. The ‘Parking Eye vs Beavis’ judgement is littered with references to the disputed charge being justifiable only in the context of the ‘contractual licence to park’ being given to the Defendant, e.g. ‘They must regard the risk of having to pay £85 for overstaying as an acceptable price for the convenience of parking there’.

The Supreme Court Judges in the Parking Eye vs Beavis case also said (Exhibit XX, Para 107) ''in our opinion the term imposing the £85 charge was not unfair. The term does not exclude any right which the consumer may be said to enjoy under the general law or by statute''. But in this case, the imposition of a fine IS unfair and DOES breach 'general law or statute' that is the Equality Act 2010.

The parking contract in ‘ParkingEye vs Beavis’ case was judged to be ‘objectively reasonable’ partly because ‘motorists generally’ did accept it (Exhibit XX, Para 108). The landowner wanted as many people as possible to use the car park in question so the contractual arrangements were designed to be attractive to the average motorist. This is the complete antithesis of the supposed ‘contract’ in this case which is designed to actively discourage motorists from parking at the site. The terms of this ‘contract’ are not ‘objectively reasonable’, but deliberately designed to be so heinous that no one in their right mind would agree to them. It follows that this is not a ‘contract’ but a prohibitory notice masquerading as such.

If the wording of the signage forbids parking, then there is no offer to park and therefore no contract. This is clear from several Court cases in which it was ruled that if any contractual arrangement could be implied by such signage then it only applied to vehicles which were ‘authorised’ to park and therefore charges could not be made on a contractual basis for vehicles that were not ‘authorised’ to park:

In PCM-UK v Bull et all B4GF26K6 [2016] (Exhibit XX) , residents were parking on access roads. The signage forbade parking and so no contract was in place. A trespass had occurred, but that meant only the landowner could claim, not the parking company. District Judge Glen at High Wycombe dismissed all three claims, stating in his judgment that:

“If the notice had said no more than if you park on this roadway you agree to pay a charge then it would have been implicit that PCM was saying we will allow you to park on this roadway if you pay £100 and I would agree with Mr Samuels’ first analysis that essentially the £100 was a part of the core consideration for the licence and was not a penalty for breach. The difficulty is that this notice does not say that at all. This notice is an absolute prohibition against parking at any time, for any period, on the roadway. It is impossible to construct out of this in any way, either actually or contingently or conditionally, any permission for anyone to park on the roadway. All this is essentially saying is you must not trespass on the roadway. If you do we are giving ourselves, and we are dressing it up in the form of a contract, the right to charge you a sum of money which really would be damages for trespass, assuming of course that the claimant had any interest in the land in order to proceed in trespass.”

While this is a County Court decision and therefore not binding, it is similar in nature to the present case and may be considered as persuasive.

In Horizon Parking v Mr J Guildford C5GF17X2 [2016] (no transcript available) it was also found the signage was forbidding and so the matter was one of trespass. The parking company did not have standing to claim.

In the alternative, if it was held that the signage was contractually valid, it would be impossible for a motorist to have read the terms and conditions contained therein from a moving or stopped vehicle, and if the vehicle is stopped, the ‘contravention’ according to the Claimant is already committed.

I believe it is also relevant to note here the “Red Hand Rule”, as set out in the leading judgment in J Spurling v Bradshaw [1956] EWCA Civ 3 (Exhibit XX) which was an English contract law case on exclusion clauses and bailment. In his judgement Lord Justice Denning stated: “I quite agree that the more unreasonable a clause is, the greater the notice which must be given of it. Some clauses which I have seen would need to be printed in red ink on the face of the document with a red hand pointing to it before the notice could be held to be sufficient”.

In the Parking Eye vs Beavis case (Exhibit XX) the Supreme Court Judges reiterated the requirement for fair and open dealing, at Para 205: “The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.”

The Court must consider the fairness of a term, where it is not 'prominent and transparent’. At the roadway where the PCN was issued, it was not transparent that anyone was agreeing to some sort of contract to pay £100 to park under some sort of licence. In this case, the unfair terms include the penalty fine itself and also the added 'costs' bolted onto this claim from thin air which are unfair and breach Part 2 'Unfair Contract Terms' of the Consumer Rights Act 2015 (CRA).

No obstruction caused by the Vehicle

I would also like to state that the vehicle in question was not impeding other motorists or restricting traffic flow in any way on the day of the incident, as is evident in the photos taken by the Claimant.

Unfair and additional costs

The Claimant’s representatives, Gladstones Solicitors, have artificially inflated the value of the Claim from £100 to £252.87. I submit the added costs have not actually been incurred by the Claimant. Any additional charges were not stated on the parking signs and these figures have been plucked out of thin air and applied regardless of facts, as part of their robo-claim litigation model, in an attempt at double recovery, circumventing the Small Claims costs rules. Further, Gladstones Solicitor appear to be in contravention of the Solicitors’ Regulation Authority Code of Conduct.

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.

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.

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.

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.

According to Ladak v DRC Locums UKEAT/0488/13/LA 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.

The Protection of Freedoms Act 2012, Schedule 4 (POFA) 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.

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 and here are the defendant quotes from the case(s) cited above:

''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…''

The original PCN (Exhibit RN2) posted by the Claimant states a charge of £100.00 (Discounted to £60.00 if paid within 14 days) however the Claimant's legal firm now inflates these sums, in a deliberate or negligent attempt at more than double recovery:
1. £x Principal debt
2. Legal representative’s costs £x
3. Interest £x
4. Court fee £x
5. Outstanding balance to pay now £x

The charged claimed include £x over and above the original ‘parking charge’. I have no idea what these charges refer to as there appears to be no contractual basis for them, even if one were to take the Claimant’s somewhat far-fetched view as to what constitutes a ‘contract’ into account. The Claimant is put to strict proof that these additional charges are justified.

The Particulars of Claim include £50 for ‘solicitors costs’ yet all I have received from the Claimant’s solicitors are automated letters. The Claimant is put to strict proof that these ‘solicitors costs’ are justified.

Landowner Authority

In order to issue parking charges, and to pursue unpaid charges via litigation, the Claimant is required to have the written authority of the landowner, on whose behalf they are acting as an agent. No evidence of such authority has been supplied by the Claimant or their legal representatives, and the Claimant is put to strict proof of the same, in the form of an unreacted and contemporaneous contract, or chain of authority, from the landowner to the Claimant. A Managing Agent is not the Landowner.

The Claimant has failed to supply the Defendant with details of the landowner even upon the Defendant’s written request (Exhibit XX). Hence, the Defendant has been unable to contact the landowners to explain the circumstances to them and to request a cancellation of the PCN.

Despite being asked, the Claimant has not provided any indication that they are authorised by the landowner to issue parking charges and carry out Court proceedings on their behalf. The Claimant is put to strict proof that they have the authority to do this, and that the terms and conditions of parking they impose at the site are in line with what they have been authorised to do.

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

Coupon-mad

Don't exhibit your defence. the Judge and the C has that:

A copy of the statement of defence can be seen in Exhibit XX.

Do exhibit the Blue Badge as Exhibit 1.

Your WS looks good and includes stuff about the added £60, but make sure you also take to court Sch 2 of the CRA 215, as per CEC16's thread. I assume you've read that case and know what happened in November at Southampton court, even though you haven't been here for months?

Search the forum for Jack Chapman signature and do the same complaint (please) to the SRA as everyone else, as soon as you get the WS with Jack Chapman's facsimile signature in it. You can also mention this in your WS.

You also need a costs schedule at this stage.