ES Parking / Gladstones claim

1505grandad

As per post #9 the opening should read:-

"I am XXXX The Defendant in this matter and registered keeper, but not the driver, of vehicle reg XXXX on the material date."


Para 2 - ".......is an access road to XXXX NCP car park, there is no signage to suggest that (you are) now entering private property.)

- perhaps keep it consistent - (the driver is)

Coupon-mad

3) The Notice to Keeper from The Claimant does not comply with the mandatory terms of Schedule 4 of the Protection of Freedoms Act (PoFA) 2012. As such they cannot invoke keeper liability and should pursue the driver. The driver has not been identified; the Defendant was not the driver and has no obligation to name the driver under the applicable law, that stopped short of giving private parking firms that level of power in 2012 when the POFA was enacted.

therugbyfan

Thanks to you all for the additional comments, I have taken them all on board and made the necessary amendments.

Hopefully the revised Defence below if good to go, unless there are any final comments?

In The County Court
Claim No: XXXXXXX
Between
ES Parking Enforcement Ltd (Claimant)

-and-

XXXXXXX (Defendant)

____________
DEFENCE
____________


I am XXXX The Defendant in this matter and registered keeper, but not the driver, of vehicle reg XXXX on the material date. I deny that The Claimant is entitled to relief in the sum claimed, or at all, for each and every one of the following reasons:

1) The Particulars of the Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.

2) The facts are that the driver of vehicle registration XXXX was in the area on the material date to drop off an occupant of the vehicle to meet someone close to XXXX. As that occupant is disabled, and a holder of a blue badge, the driver was trying to get as close to the meeting point as possible. Being unfamiliar with the area, but seeing a sign for XXXX Car Park, the driver turned into XXXX Street hoping this would be the closest point. The driver pulled over for a very short time on double yellow lines (as allowed within the blue badge scheme) to check a map. Once the driver realised the location was incorrect, they immediately left the area with all occupants still on-board. At that time it was not known the road in question was classed as private land. XXXX Street, which is accessed directly from XXXX Street, is an access road to XXXX NCP car park, there is no signage to suggest that the driver is now entering private property. The road is u shaped and returns back to the highway at the other end. A PCN was received through the post and The Defendant acknowledged receipt as the registered keeper, but not the driver. The photographic evidence supplied by The Claimant covers a period of just 21 seconds using time stamped data. The Claimant also supplied an enlarged photo with a time stamp in a different format to the original photos; if this is deemed admissible, it would make the total time from first photo to last photo 5 minutes & 9 seconds.

3) The Notice to Keeper from The Claimant does not comply with the mandatory terms of Schedule 4 of the Protection of Freedoms Act (PoFA) 2012. As such they cannot invoke keeper liability and should pursue the driver. The driver has not been identified; the Defendant was not the driver and has no obligation to name the driver under the applicable law, that stopped short of giving private parking firms that level of power in 2012 when the POFA was enacted.

4) The Particulars of Claim state that the driver of the vehicle parked in breach of the terms of parking stipulated on the signage at XXXX on XXXX, thus incurring the parking charge.

5) Para 9(2)(a) of the PoFA states The Claimant must provide a period of parking. Their Notice states only that a contravention occurred in the time that immediately preceded XX:XX. As a period of parking was not provided there is no evidence of a contravention and The Defendant considers none occurred.

6) The Defendant is aware that the KADOE contract under which The Claimant operates only covers parking, not stopping, when accessing keeper details from the DVLA. This is therefore a breach of the Data Protection Act as stopping is not covered.

7) The IPC Code of Practice states The Claimant should allow a grace period at Part B Paragraph 15. This is to allow the driver a sufficient amount of time to spot signage, go up to it, read it and then make an informed decision whether or not to remain on site. A reasonable grace period would be 10-15 minutes from the period of stopping. By not providing a period of parking there is no evidence The Claimant has allowed the driver a grace period of any length. Without a grace period, a driver cannot be deemed to accept terms and conditions of a ‘contract’ that is displayed on any signage.

8) The copies of signage provided by The Claimant at appeal stage are generic and they do not include a close-up photograph of the actual sign they contend was at the specific location on the material date.

9) The signage, which is now known to be positioned on the edge of footpaths, is misleading. They are not positioned at the entrance of the road. The Claimant also states they are positioned ‘where bound to be seen’, however, the text is small and cannot be ‘read’ without stopping and alighting from a vehicle, so a driver cannot be bound by its terms without closer inspection. The Claimant’s Notice stating the reason for issue as being “Parked in a ‘No Stopping at all’ area” is forbidding.

10) It is therefore denied that The Defendant, or any driver of the vehicle, entered into any contractual agreement with The Claimant, whether express, implied, or by conduct.

11) The parking charge, and the artificially inflated total claim, is in breach of the Consumer Rights Act 2015, Schedule 2, paras 6, 10 and 14 (terms that are likely to be unfair).

12) The parking charge is also in breach of the Consumer Protection from Unfair Trading Regulations 2008, Part 2, Prohibitions, Misleading omissions section.

13) In the case between ES Parking v Mrs Q [C0GF4C5K], where a similar no stopping signage case lost in court. In this case the main point that they were trying to establish was that a contract existed, but the judge said this was not possible. The Defendant suggests the same can be found here.

14) The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that there are specific terms in its contract to bring an action on its own behalf. As a third-party agent, The Claimant may not pursue any charge, unless specifically authorised by the Landowner. The Defendant has the reasonable belief that The Claimant does not have the authority to issue charges on this land in their own name, and that they have no right to bring any action regarding this claim.

15) The Claimant is attempting to dress up what can, at the very most, be a matter that could fall under the tort of trespass (an issue that is in the gift of the landowner in possession only) and engineering the facts to pass it off as if it was a contractually agreed charge on offer under an agreed parking licence. This is absurd and the signage has no legal effect.

16) The Defendant has the reasonable belief that the Claimant has not incurred £60 costs to pursue an alleged £100 debt. The Protection of Freedoms Act 2012, in Schedule 4, Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100.


17) In summary, it is The Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to dismiss the claim in its entirety, using its case management powers pursuant to CPR 3.4.

Statement of Truth:

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

Name
Signature
Date

Coupon-mad

Looks good.

Stick around and follow outcomes in other Gladstones cases and come back at WS and evidence stage.

therugbyfan

I will do & thanks again for the help,

therugbyfan

Hi, I've received the Directions Questionnaire from the court and have a couple of queries. It says to 'file it with the court office and serve copies on all other parties' - does that just mean post to the address shown on N149A and also post a copy to Gladstone's? Or can this be sent electronically? If posted is it best to send recorded? The other question I have is about the hearing venue. The incident was in Central Manchester and I live in Greater Manchester - should I ask for Manchester CC or should I ask for the Court in my local town which is slightly closer? I just recall reading that the courts in Manchester have better success rates against Gladstone's parking fine cases relating to a well known part of Central Manchester! Advice please.

Coupon-mad

Please just read the section and links under the red heading in the NEWBIES thread.

As for the venue, I suspect the same Judges cover both courts.

therugbyfan

Sorry, I thought about doing that after posting my question! I have read the info thanks.

therugbyfan

I have one more quick question relating to witnesses ... the situation was that 3 persons were in the vehicle, the driver was not necessarily the keeper and one of the passengers was in possession of a blue badge. Will all 3 people need to write a witness statement and will all 3 people be required to attend the court hearing?

Coupon-mad

No they don't have to but it might be good if the one with the Blue badge does.