ES Parking / Gladstones claim

Redx

For your questions and to keep up to date with developments like c19 , I suggest you read this thread

https://forums.moneysavingexpert.com/discussion/6130456/telephone-hearings-re-parking-firm-claims-can-we-all-discuss-strategy-and-outcomes-here/p1

Especially read what coupon mad and bargepole say about postponements costing money and how refusing a telephone hearing may go against you as a papers only hearing

Question 3 , nothing is normal in these extraordinary times , but the deadline date isn't a mandatory date to exchange documents , no reason why they cannot be exchanged early , it's also irrelevant to the case and not worth debating, there are more important matters to worry about

Question 5 has been answered in numerous court case threads on here , read the threads by gbbe

For question 6 a, ring the court

You have two question sixes

therugbyfan

Thanks Redx, I've now read through the thread.  Sorry about the two question 6's.  Can you still use a lay rep via. phone if based in the same home?
Hopefully someone can offer a few comments on the content of my WS.

Umkomaas

Can you still use a lay rep via. phone if based in the same home?

Just like for you, the current times are extraordinary, and we have never seen anything like this before. You are just as able to answer that question as we are. We have never been here before.  Ever. 

Redx

As above , you are asking questions nobody can answer , like c19 the facts and events change daily , it's never happened before so nobody has the answers , only best guesses

I would expect that the defendant plus lay rep being together is no problem , but it's a best guess

therugbyfan

Thanks for the posts above, I understand and will just see what happens.  In the meantime, I have updated my Witness Statement, taken out the Abuse of Process section and put it in a separate Supplementary WS.  Please could someone have a glance over it and let me know if it looks ok?

I, XXXXX, of <address> WILL SAY as follows:

1. I am XXXXX The Defendant in this case and registered keeper, but not the driver, of vehicle reg XXXXX on the material date. 

2. The driver, along with its other two occupants, was in the XXXXX area of Manchester on <DATE> with the intent of dropping one of the occupants off to meet a friend at XXXX Spinningfields Restaurant.

3. That occupant, namely XXXXX, is disabled and the driver was trying to get as close to the meeting point as possible so that XXXXX did not have to walk too far.

4. Being unfamiliar with the area, but seeing a sign for XXXXX Car Park, the driver turned into XXXXX Street hoping this would be the closest point.

5. The driver pulled over for a very short time, in a quiet corner on double yellow lines and causing no obstruction, to check a map on a smart phone.  XXXXX holds a blue badge and he pointed out that pulling over on double yellow lines is allowed within the scheme. 

6. Once the driver had found the address for XXXXX Restaurant, located it on the map and realised they could get a little closer than this to the restaurant, they immediately left the area with all occupants still on-board.  The engine remained running the whole time and nobody alighted the vehicle. 

7. At that time, I did not notice any parking control sign in front of the area where the vehicle stopped and having since returned to the site, I have obtained photographic evidence to show there is indeed NO sign on the post directly in front of where the vehicle was stopped  (see photograph at page X of XX, labelled Exhibit XX-01).

 

8. Also, at that time, it was not known the road in question was classed as ‘private land’.  XXXXX Street, which is accessed directly from XXXXX Street, is an access road to XXXXX NCP Car Park.  The road is U shaped and returns back to the highway at the other end.

9. On entering XXXXX Street from XXXXX Street, there is NO signage to distinguish it as private land or that it was subject to parking controls (see photograph at page X of XX, labelled Exhibit XX-02).

10. I was surprised to receive a PCN from the Claimant through the post relating to this incident and appealed immediately on the basis that I was not the driver, the vehicle was not ‘parked’, a contract was not formed, terms and conditions had not been accepted and therefore no breach or contravention occurred.

11. The photographic evidence supplied by the Claimant covers a period of just 21 seconds using time stamped data (from XX:XX:XX and XX:XX:XX).  The Claimant’s PCN states the parking charge occurred at XX:XX. The Claimant also supplied an enlarged photo with a time stamp in a different format to the original photos – i.e. XX:XX but showing no seconds data, if this is admissible it would make the total time from first photo to last photo (where motion is clearly captured within the still) as just 5 minutes. It is clear that a maximum of 5 minutes “stopped” does not constitute "parking" in any sense of the word.

12. A generic letter was received from the Claimant to confirm the appeal had been rejected due to them having photographic evidence and clear signage on site.

13. I exercised a right to escalate my appeal to the Independent Appeals Service (IAS) and this too was rejected. 

14. The next correspondence received in relation to the matter was in the form of a generic ‘letter before claim’ from the Claimant’s legal representatives, Gladstones Solicitors.  The charge amount had now increased by an additional £60 to £160 to include an amount for the ‘time spent and resource facilitating the recovery of the charge’.

15. This is considered an Abuse of Process, please refer to Supplementary Witness Statement for further detail.

16. 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.

17. Furthermore, I am 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.  The vehicle was not parked.

18. Following my return to site on a later date to view the signage claimed to be situated ‘where bound to be seen’ and finding that the actual sign shown in the Claimants photographs did not exist.  I attempted to read the sign erected in the closest position to the area and, as shown on the photos I exhibit at XX.XX, it is not even possible to read the whole sign properly as it is positioned too high and the lower writing is too small.

19. If the driver had seen any of these signs, in order to read them and make a decision as to whether to stay in the area or not, they would have had to park up, alight the vehicle, walk over to the sign, read it and return to the vehicle.  If this were the case, a reasonable grace period of at least 10 minutes should have been afforded as per the IPC Code of Practice Part B Paragraph 15.  By not providing an actual 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.

20. ES Parking Enforcement Ltd is not the lawful occupier of the land. I have reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no rights to bring this case.

21. ES Parking Enforcement Ltd is not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract.

22. The Claimant is put to proof that it has sufficient 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. I have reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no right to bring action regarding this claim.

23. 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, see XX.XX.

Le_Kirk

1. registered keeper, but not the driver, 
2. The driver, along with its other two occupants, was in the XXXXX area of Manchester on <DATE> with the intent of dropping one of the occupants off to meet a friend at XXXX Spinningfields Restaurant.
3. That occupant, namely XXXXX, is disabled and the driver was trying to get as close to the meeting point as possible so that XXXXX did not have to walk too far.
4. Being unfamiliar with the area, but seeing a sign for XXXXX Car Park, the driver turned into XXXXX Street hoping this would be the closest point.
5. The driver pulled over for a very short time, 
6. Once the driver had found the address for XXXXX Restaurant,

All good so far

The engine remained running the whole time and nobody alighted the vehicle. 

Irrelevant

7. At that time, I did not notice any parking control sign in front of the area where the vehicle stopped 

Oops, all of a sudden you are the driver again.

and having since returned to the site, I have obtained photographic evidence to show there is indeed NO sign on the post directly in front of where the vehicle was stopped  (see photograph at page X of XX, labelled Exhibit XX-01).

This is good.

therugbyfan

Thanks Le_Kirk, I have corrected those details.
The other witness statement for the passenger with the blue badge is as follows:

I, 2nd witness NAME, of <address> WILL SAY as follows:

1. I was a passenger in the vehicle on the material date. 

2. The driver and other passenger, were taking me to Manchester so that I could meet a friend at XXXX Spinningfields Restaurant.

3. I am registered disabled and the driver was trying to get as close to the restaurant for me as possible as I can not walk too far without difficulty.

4. We were all unfamiliar with the area, but we saw a sign for XXXXX Car Park, so the driver turned into XXXXX Street hoping this would be the closest point to drop me off.

5. The driver saw a quiet corner where they could safely pull over whilst they checked the location on a map with their phone.

6.  There were double yellow lines on that corner but I told the driver that I had my blue badge with me and pulling over there is permissible within the scheme.  Copy badge appended at XX.1.

6. Once the driver had found the Restaurant on the map and realised we could get closer, they left the area immediately. 

7. We got back on to XXXXX Street and proceeded to another location just up the road to drop me off safely.

Umkomaas

3. I am registered disabled and the driver was trying to get as close to the restaurant for me as possible as I can not walk too far without difficulty.

There isn't a register of disabled people, so no one is 'registered disabled'. 

Why not get the witness to state that they are disabled, with the nature of the disability stated, and how it affects them, especially if it is mobility-related. 

Redx

As above there is no disabled register

Use words like Umkomaas says to show entitlement under the EA 2010 and that they have a blue badge which is an indicator of entitlement to reasonable adjustments under the law , state the disease if there is a diagnosis , the one that qualifies them under the EA

Do not say registered disabled , it's meaningless and not true , even though the statement of truth is added , making sure that both of you add the latest April 2020 statement of truth at the end , because it's missing him both of the above statements

therugbyfan

Thanks Redx.  I didn't put the statement of truth on for above checking, but it is on both of the actual documents as follows:

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

Name

Signature

Date

When you say 'latest April 2020 statement of truth' has it changed & should it be different from the above?
I phoned the courts today to obtain the email address to send my papers to and they advised that particular court is not doing any face to face OR telephone hearings and that it will be done on papers.  She said to make sure we send in every bit of paper that we would have taken to court on the day.  She said we can submit by email up to 50 pages or so (wouldn't argue if it was one or two over 50) as that is all they can print per case.  She said there is a post box that is open outside the court where we can also submit paperwork.  I am thinking of emailing using the letter Coupon-Mad drafted and then also dropping a bundle off at the Court / posting to Claimant Rep.  I've done a draft order as suggested and a schedule of costs.  CM suggested adding a paragraph at the bottom of the email to explain any personal circumstances, so I propose to add:

May I also add that I am an ex-military Veteran who suffers PTSD, anxiety and a stutter.  For this reason, I was hoping to use a lay representative to speak for me at the hearing as dealing with this claim has already caused a spike in my anxiety levels and I fear it will be worse still if I should have to undertake a hearing by telephone.  Furthermore, the other witness in my case is disabled and presently shielding for 12 weeks as he is in the vulnerable category.

Is that OK?