Claim Form from Gladtones re Contractual PCN from G24

sensahuma

Thanks @1505Grandad.


Those lines were used in another defence of a similar issue but you have raised a fair challenge.

Not sure if the following can be said anymore "[FONT=&quot]s such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached." ?
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If points#3 and #4 were to be combined into a single para as follows, would that work better then?

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[FONT=&quot]3. The Particulars of the claim state that the Defendant XXXX, as the driver of the vehicle: ABXX YYY allegedly parked in breach of conditions of the ‘Contract’ at the said location. The defendant puts the claimant to strict proof to show that in the absence of any parking meters or pay stations, there was enough clear signage to show the store parking was chargeable to patrons of the store and that there was ANPR surveillance being conducted. [/FONT]

Le_Kirk

8.6 Unlike this mendacious and greedy Claimant, ParkingEye themselves took on board the Beavis case outcome and they never add fake costs on top of the parking charge. It is indisputable that an alleged 'parking charge' penalty is a sum which the Supreme Court found is already inflated to more than comfortably cover all costs. The case provides a finding of fact by way of precedent, that the £85 (or up to a Trade Body ceiling of £100 depending upon the parking firm) covers the costs of the letters, and all parking firms are very familiar with 'ParkingEye V Beavis' case, from which the defendant quotes: -

8.6.1 at para 98. {re ...The desirability of running that parking scheme at no cost, or ideally some profit, to themselves} ''Against this background, it can be seen that the £85 charge had two main objects. One was to manage the efficient use of parking space in the interests of the retail outlets, and of the users of those outlets who wish to find spaces in which to park their cars [...] The other purpose was to provide an income stream to enable ParkingEye to meet the costs of operating the scheme and make a profit from its services...

8.6.2 at para 193. ''Judging by ParkingEye’s accounts, and unless the Chelmsford car park was out of the ordinary, the scheme also covered ParkingEye's costs of operation and gave their shareholders a healthy annual profit.''

8.6.3 at para 198. ''The charge has to be and is set at a level which enables the managers to recover the costs of operating the scheme. It is here also set at a level enabling ParkingEye to make a profit.

8.7 Any purported 'legal costs' are also made up out of thin air. Given the fact that roboclaim.......

I am not a fan of complicated numbering, simple numbering is preferred but since you used it, I carried on in the same manner. The reason for having EVERY paragraph numbered is so that you can refer the judge to it in court (if you have to) by saying "Can I refer you to paragraph 8.6.2" rather then "Can I refer you to the bit in between paragraph 8.6 and 8.7 that begins 'at para 193......'"

sensahuma

@Le_Kirk - thanks again.
Finalising the defence now and will email soon.
Re response to @1505grandad's point, is it ok now that point no#3 has been updated (removed "menu of choices" and other references to Civil procedure/practice) and merged with point#4 as follows??


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[FONT=&quot]3. The Particulars of the claim state that the Defendant XXXX, as the driver of the vehicle: ABXX YYY allegedly parked in breach of conditions of the ‘Contract’ at the said location. The defendant puts the claimant to strict proof to show that in the absence of any parking meters or pay stations, there was enough clear signage to show the store parking was chargeable to patrons of the store and that there was ANPR surveillance being conducted. [/FONT]

sensahuma

FYI - The defendant received acknowledgement of the defence (that was submitted on 11/11) from the court by post. The same is also recorded on the website.

The letter says:
"I acknowledge receipt of your defence. A copy has been served on the claimant (or claimant's solicitor). The claimant many contact you direct to attempt to resolve any dispute. If the dispute cannot be resolved informally, the claimant will inform the court that he wishes to proceed. The court will then inform you of what will happen.

Where he wishes to proceed, the claimant must contact the court within 28 days after receiving a copy of your defence. After that period has elapsed, the claim will be stayed. The only action the claimant can then take will be to apply to a judge for an order lifting the stay."

sensahuma

The defendant has received the witness statement from the Claimant's solicitors via email; it carries legal points arguing against some of the facts/points raised by the Defendant in their official defence. Since the store went into administration soon after the initial PCN was issued, the site became inaccessible to normal public. Therefore the defendant was unable to take photo evidences of any notices (or lack of) to  then record them formally in Defendant's evidence statement.

The images of the notices provided by the Claimant's solicitors appear to be standard (old) pictures that the claimant would have first recorded as part of their agreement with the store. It has multiple images of just the images, but no where does their evidence statement indicate, the positioning/location of all these notices. Moreover the entry/exit photo the parking lot actually shows the name and banner of another store; i.e. this facility used to be run by another office products company - call it Store-A, which later became Store- B. The defendant had visited Store-B, however the evidence statement of the Claimant shows the Store-A banners in the photo showing entry/exit ramp to the parking space on the rooftop of the store.

 The defendant is finalising the evidence statement, which will be posted here for your review/feedback soon.

 1) Reiterating the key points of their defence, i.e.

   "....that the PCN was prematurely issued considering it was a free parking zone for the patrons of the store and   that NO overstay occurred, given that it would certainly have taken more than 2 minutes on arrival to drive in/up/round and finding a space, then parked (and read the terms if they were visible) thereby just leaving less than 10 minutes after the expiry of the allowed parking time, and that is fully covered in IPC CoP (Part-B Section #15) section on the mandatory 'grace period'. "

 2) Providing a copy of the credit card statement showing purchase from the store that day thereby evidencing that the defendant was indeed a store customer.

 

Apart from the above, the defendant is unsure what else to include in terms of the guidance provided in the Newbies thread, e.g. where it says ".........(a) a copy of the Beavis case sign as a comparison to show how awful the small print sign was in yours case;
(b) photos proving the scarce and illegible small print signs in your case, a view showing the lack of entrance signs, etc............"

 

Ques-1: Does the approach outlined above make sense?

 Ques-2: Would the experts like to see the entire witness statement from the claimant? It's in pdf format, so to redact sensitive info, the defendant will need to copy into word or similar to make only relevant bits available, OR, is there a way that the original pdf file can be uploaded/emailed to a restricted set of experts on this forum who may wish to see it for providing feedback?

 The defendant wishes to post the witness statement to the court by cob 10/02/2020, so hopefully this is doable in terms of review.

Coupon-mad

 Would the experts like to see the entire witness statement from the claimant?

Yes, and your costs schedule and your supplementary WS, like you see in the other cases since November.  There is an example on page one right now, and it's a thread I just replied on tonight - easy to find.

We assume you have been reading the forum since November and saw CEC16's thread about the Southampton hearing, and how to argue about the added £60 on the back of that case - hence the 'supplementary WS'.

sensahuma

Thanks Coupon-mad. The defendant has not been tracking this off-late, however will go through the relevant posts as advised. Until then, the WS from Claimant's solicitors follows (splitting into Parts because of character limit):

*****************************************************************

PART-A

IN THE ABCD COMBINED COURT CENTRE

FRAUD LIMITED (CLATMANT)

.AND.

xxxxxxxxxx  (DEFENDANT)

CLAIM NO: yyyyyyyyyy

WITNESS STATEMENT OF abababababab

l, Cleopatra, OF zzzzzzz WILL SAY AS FOLLOWS:

1. I am the Operations Manager of the Claimant Company ('my Company') and I am duly authorised

to make this statement on its behalf. The facts and matters set out in this statement are within

my own knowledge unless otherwise stated and I believe them to be true. Where I refer to

information supplied by others, the source of the information is identified; facts and matters

derived from other sources are true to the best of my knowledge and belief.

 2. Exhibited to this Witness Statement at 'GSLI 'are the following documents which my Company

wishes to rely upon;

i) The Agreement authorising my Company to manage parking on the relevant land (as

described therein and hereinafter referred to as 'the Relevant Land');

ii) The Sign ('the Contract');

iii) The Site Plan;

iv) Notices;

v) Photographs of the incident.

 3. The Defendant is liable for a parking charge relating to the parking of a vehicle on the Relevant

Land in a manner so as to incur the same pursuant to the Contract (i.e. the Sign). Set out in the

Schedule below are details of the parking charge;

PCN Number: xxxxxx

Description: Exceeded Permitted Stay

 The Defence

4.This car park is managed by ANPR technology, which logs a vehicle's entry and exit. The timings

are then checked to see how long each vehicle remained parked on the Land to ensure it did not

exceed the allowed time or return within an hour.

 5. The signage on the Relevant Land is clear and unambiguous; the car park is for the exclusive use

of Customers who remain on Site there is a 60 minute maximum stay with no return within an

hour. Customers must remain on the site for the entire period of parking As is evident from my

Company's photographs captured by the ANPR camera exhibited to this Statement showing the

Defendant's vehicle entering the car park at xx.20 pm and exiting the Land at. yy.32 pm as such the

Defendant remained on the Land for 72 minutes as such the parking charge was issued correctly

and remains owed.

 6. The signage at the site is clearly visible and the information on the signage informs the driver of

the parking conditions at the location. Signage is prominent throughout the parking area.

Signage location, size, content and font has been audited and approved by the lnternational

Parking Community ("the lPC"). lt is the driver's responsibility, to check for signage, check the

Iegality and obtain any authorisation for parking before leaving their vehicle. The signage on site

is the contractual document. By parking in the manner in which they did, the charge was

properly incurred.

 7. lt is an integral part of the parking scheme that drivers do not exceed the permitted time as

otherwise the scheme would be unmanageable. lf my Company were to waive one charge on the

basis put forward in the Defence it would open the floodgates to the waiver of many more

charges, making the parking management process that has been put in place entirely redundant.

It is the Defendant's obligation to ensure compliance with my Companys parking obligations.

8. Breach of any term of condition will result in the Driver being liable for a parking charge of £100.

By entering or remaining on this land you agree to abide by all the terms and conditions.

 Unfair/ lmmoraI/unethical

 9. The Defendant's opinion on the fairness of the parking charge cannot impact their liability to

pay. Quite simply, in parking in the manner they did, they understood a charge would apply. My

Company's charges are issued in accordance with the guidelines set out by its trade association

and are industry standard.

 10. Paragraph 108 of the Judgment in the Supreme Court case of Parking Eye and Beavis (2015) said

"the concept of a negotiated agreement to enter a car park is somewhat artificial but it is

perfectly workable provided one bears in mind it is objective..." ... "ln our view a reasonable

motorist would have agreed to the term." I submit that the term in my Company's contract was

no more, or no less unreasonable than that in the ParkingEye case.

 

Targeted charges

11. The Defendant alleges that my Company targets certain motorists. Without concession, this is

unsubstantiated. My Company issues charges to all vehicles that it finds to be parked in a

manner which incurs a charge. lt would be of no benefit whatsoever to my Company to be

selective about which motorists to charge. The fact that another vehicle may not have been

issued with a charge would not impact on the validity of a charge issued to the defendant.

sensahuma

PART-B of Claimant's WS

No contract

12. The Defendant suggest there was no contract. The rules of interpretation require simply that the

parties knew of their obligations to one-another. The Defendant was offered to use the Land and

thereafter either follow the rules and park for free or in breach of the rules agree to pay £100.

The rules here just so happen to be that to park, they need to be no longer than "60 minutes

free parking".

 

13. ln the case of Alder v Moore (1961) The court concluded that one should consider the obligations

imposed by the agreement, not the terminology used i.e. the agreement's substance, not form.

 

14. The principles in this case are the same as in the Parking Eye case, save that in the Parking Eye

case/ as the particular parking rules were different, the rule breached was that motorists must

leave the site within 2 hours, whereas here, as set out above, the rule was to be no longer than

"60 minutes free parking “. ln that case it was accepted as an established principle that a valid

contract can be made by an offer in the form of the terms and conditions set out on the sign, and

accepted by the driver's actions as prescribed therein.

 

15. The Court may conclude that the Land is managed as follows; the Claimant grants a contractual

license to all; this license allows anyone permission to be on the Land. This is inferred by the

nature of the Iand and the lack of any general prohibition of entry on the signage. ln this regard,

the Defendant (as were all the motorists) was offered to comply with the normal conditions (as

clear on the sign), or park otherwise than in accordance with the normal conditions and incur a

£100 charge. The acceptance was at the point the Defendant decided to park, having read the

sign, and his consideration was the promise to pay £100 for the privilege of parking outside the

normal conditions. The Claimant's consideration is the provision of parking services.

 

16. I refer to the Court to Judge Hegarty's comments in ParkingEye v Somerfield (2011) that "lf this is

the price payable for the privilege, it does not seem to me that it can be regarded as a penalty,

even though it is substantial and obviously intended to discourage motorists from leaving their

cars on the car park".

 

17. Alternatively; it could be concluded that, any person can use the Land provided they do not

exceed the licensed activity as set out on the sign and in failing to comply with the license

granted to them, they in turn agree to the Claimant's entirely distinct offer from that license

which is 'to park otherwise than in accordance with the license for a charge of £100'.

 

18. My Company relies on the case of Parking Eye -v- Beavis [2015], in which it was accepted as an

established principle that a valid contract can be made by an offer in the form of the terms and

conditions set out on the sign, and accepted by the driver's actions as prescribed therein.

 

19. The signs on the Land are clear and unambiguous. By parking in the manner in which they did,

the charge was/were properly incurred.

 

Did not see the signs/the terms are unfair

 

20. My Company rejects any argument that the Defendant did not see the sign. lt is evident from the

site plan that there are sufficient signs.

 

21. What is more, without concession, even in the unlikely event the Defendant didn't see the signs I

submit they ought to have done so. As Lord Justice Roch observed in the Court of Appeal case of

Vine v London Borough of Waltham Forrest 2000;

 

"Once it is established thot sufficient and adequate warning notices were in place, o cor

driver cannot be heard to say that he or she did not see the notice. Were that to be the

low, it would be too easy for car drivers who trespass with their cars to evade the only

method land owners hove of stopping the unauthorised parking of cars in parking spaces

or parking areas on their property"

No authoritv to enforce charges

 22. As the contract is between my Company and the Defendant, my Company does have the

authority to enforce parking charges. However, both VCS v HM Revenue & Customs (2013) and

Parking Eye v Beavis (CA 2015) made 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 (in the case of a

parking operator) the agreement between Operator and Landowner of any relevance. ln any

event, and without concession, the Agreement exhibited to this Witness Statement evidences

my Company's authorisation to operate / manage the Relevant Land on behalf of the

Landowner.

 

23. Lord Justice Lewison commented in VCS v HM Revenue & Customs [2013] EWCA Civ 186;

(l) 'The Upper Tribunal’s reasoning on this part of the case was thot since VCS did not have

the right under its contract with the car pork owner to grant a licence to park, it could not

have contracted with the motorist to grant such a right. ln my judgment there is a serious

flaw in this reasoning.

(2) The flaw in the reasoning is that it confuses the making of a contract with the power to

perform it. There is no legal impediment to my contracting to sell you Buckingham Palace.

lf (inevitably) I fail to honour my contract then I can be sued for damages. On the stock

market it is commonplace for traders to sell short; in other words, to sell shares that they

do not own in the hope of buying them later at o lower price. ln order to perform the

contract the trader will have to acquire the required number of shares after the contract

of sale is made. Moreover, in some cases o contracting party may not only be able to

contract to confer rights over property that he does not own, but may also be able to

perform the contract without acquiring any such right. Thus in Bruton v London and

Quodront Housing Trust [2000] 1 AC 406 o housing trust with no interest in land was held

to hove validly granted o tenancy of the land to o residential occupier. The tenancy would

not hove been binding on the landowner, but bound the two contracting parties in

precisely the same way as it would have done if the grantor had had an interest in the

land.

(3) Thus in my judgment the Upper Tribunal were wrong to reverse the decision of the FTT on

the question whether VCS had the power to enter into a contract. Having the power to

enter into o contract does not, of course, mean that VCS necessarily did enter into a

contract with the motorist to permit parking"

sensahuma

PART-C of Claimant's WS

Charge is excessive/ no loss suffered

 24. The charge sought is industry standard and is set at a rate so as to suitably satisfy my Company's

. legitimate interest. ln the case of Parking Eye -v- Beavis [2015] it was held that an £85.00 charge

was neither extravagant nor unconscionable. The Accredited Trade Associations of which parking

operators must be a member in order to apply for DVLA data prescribe a maximum charge of

£100. My Company's charges are within this level. The charge is therefore not excessive.

 

25. The decision of the Supreme Court made it clear that the charges are not penal, nor do they have

to be reflective of the parking operator's loss. Further, the charges can be set at a level that

provides a deterrent effect.

 

Solicitors Costs

 26. My Company has included a claim for costs as is its right on issuing proceedings. The costs

claimed are in accordance with CPR 27.14 and CPR 45.

 

Notice to Keeper

 27.fhe Defendant avers the Notice to Keeper does not comply with the requirements of the Act. My

Company has complied with the Act, specifically paragraph gZXa)-(i) as the Notice specifies:

 

a. The vehicle, the Relevant Land and the period of parking;

b. The driver is required to pay the charge and the charge has not been paid in full;

c. The parking charge due from the driver, the circumstances in which the requirement to

pay them arose and the other facts that made them payable;

d. The amount which remains unpaid;

e. The driver's name and address is not known and invited the keeper to pay or transfer

liability;

f. The warning to the keeper that if at the end of 28 days the amount has not been paid and

the creditor does not know the name and address of the driver the creditor will have the

right to recover from the keeper any amount that remains unpaid;

g. To the keeper the arrangements for resolution of disputes/ complaints;

h. Any discount offered for prompt payment

i. The identity of the creditor and specifies how and to whom payment or notification to

the creditor may be made; and

j. The date on which the notice is sent.

 

28. The Notice was also sent within the time period laid down in paragraph 9(5) of the Act, i.e. within

14 days beginning with the day after the charge was incurred / period for parking ended. My

Company's Notice therefore complies with the requirements of the Act and is able to pursue the

Defendant.

 

The Current Debt

 29. ln view of the Defendant not paying the charge within the 28 days allowed they are in breach of

the contract. Breach of contract entitles the innocent party to damages as of right in addition to

the parking charge incurred.

 

30. My Company is an Accredited Operator of the lnternational Parking Community (lPC) who

prescribes a maximum charge of £100. The Code of Practice states:

 

"Parking charges must not exceed £100 unless agreed in advance with the lPC. Where

there is a prospect of additional charges, reference should be made to this where

appropriate on the signage and/ or other documentation.

 

Where a parking charge becomes overdue a reasonable sum may be added. This sum

must not exceed £60 (inclusive of VAT where applicable) unless Court Proceedings have

been initiated."

 

31. ln view of the Defendant not paying the charge within the initial 28 days allowed or the further

28 days allowed after the Notice to Keeper has been sent, the parking charge has become

overdue and a reasonable sum of £60 has been added.

 

32. The Sign states the prescribed charge for failing to comply with the terms is £100, however it

also specifies "lf the charge remains unpaid 28 days after issue we will instruct our debt recovery

agent and further charges will be added to the amount outstanding." Further the Letter Before

Claim also made it clear the debt may increase in respect of costs and interest if a claim had to

be issued. Due to the Defendant not paying the charge the matter was passed to my Company's

legal representatives, Gladstones Solicitors Ltd, who were instructed to commence legal

proceedings. The potential additional costs mentioned above are now sought.

 

33.The debt has, as a result of this referral risen as my Company's staff have spent time and

material in facilitating the recovery of this debt. This time could have been better spent on other

elements of my Company's business. My Company believes the costs associated with such time

spent were incurred naturally as a direct result of the Defendant's breach and as such asks that

this element of the claim be awarded as a damage. The costs claimed are a pre-determined and

nominal contribution to the actual losses. Alternatively, my Company does have a right to costs

pursuant to the sign (i.e. the contract).

 

STATEMENT OF TRUTH

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

 

CLEOPATRA for FRAUD Ltd.

Coupon-mad

Is the signature a facsimile? 
If so, take a scan of that WS in full, and email it with a complaint to the Solicitors' Regulation Authority, copying those that have been done before Xmas in UKCPM cases, but change the details to suit this person's name/G24 instead of UKCPM, of course.
The reason is, that WS is very clearly a template written by Gladstones - not by the supposed signatory - and I want the SRA (who are currently investigating Gladstones' template WS) to see a G24 one, to see that it matches the rest!
Search the forum for Jack Chapman signature SRA and find the email address for the SRA and copy the writing style of the other complaints already in, about Gladstones. 

I am well aware this signatory is not Jack Chapman.  But the WS is a flipping template.  The SRA need to see more.