ES Parking / Gladstones claim

therugbyfan

Coupon-mad said:

Can I attach PDFs rather than copy and paste or am I not allowed?

You mean on this forum? 
You can upload a PDF but we prefer to see copy & paste rather than follow unknown links and have to hop about between one page and another...

Ok no problem.  I will copy & paste.

therugbyfan

Beamerguy, I have now sent the email to the Claimant's rep.  Fruitcake, revised WS is below for further comment.  I still need to add the references to my evidence exhibits, I am currently working on that list.

In The XXXXX County Court

Claim No: XXXXX

Between

ES Parking Enforcement Ltd (Claimant)
-and-
XXXXX (Defendant)
___________________________________________
WITNESS STATEMENT OF XXXXX
___________________________________________

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 XXXXX with the intent of dropping one of the occupants off to meet a friend at XXXXX Restaurant.

3. That occupant, namely XXXXX, is disabled and has mobility issues.  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 off XXXXX Street into XXXXX Street hoping this would be close to the Restaurant.

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 stopping 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 to the restaurant, they immediately left the area with all occupants still on-board.    

7. At that time, the driver 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 is accessed directly from XXXXX Street and 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. The Claimant has not provided a clear and close-up photograph of the actual sign they claim would have been in view.  The signs they have provided in the subject access request are generic prints.  The sign shown in their photographic evidence is not clear.

11. 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 in the location claimed.  I attempted to read the sign erected on the lamppost on the opposite side of the service road and, as shown on the photos I exhibit at XX/03, it is not possible to read the whole sign clearly as it is positioned too high and the lower text is too small.

12. This sign appeared to relate to the area directly beyond XXXXX Street, known as XXXXX.  Access to this area by general traffic is prevented by street bollards.  The sign is set back on the path rather than on the edge of the road, so it is rather ambiguous.

13. If the driver had seen any of these signs on the material date, 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.

14. 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 may be displayed on any signage.

15. 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.

16. The initial 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 later 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 vehicle motion is clearly captured within the still) as just 5 minutes.

17. It is clear that a maximum of 5 minutes “stopped” does not constitute "parking" in any sense of the word.

18. 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.

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

20. 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’.

21. This is considered an Abuse of Process, please refer to my Supplementary Witness Statement for further detail on this point.

22. Within the subject access request I made, a copy of a final demand letter for the sum of £125 was supplied.  This letter was never received by myself and I do not know what the additional £25 would have been for.

23. 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.

24. Furthermore, 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.

25. 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.

26. 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.

27. 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.

28. 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 AH/04.

Statement of Truth:

I believe that the facts stated in this witness statement are true.  I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

therugbyfan

I will need to add another paragraph regarding the email I sent to the Solicitor this morning.

therugbyfan

This is the additional paragraph I will add after point 22. 
XX.  Following much research I have been made aware of many cases that have been struck out of court under Abuse of Process for adding an additional £60 to the parking charges.  Most recently the Judgement for case F0DP77KP in the Luton County Court v BWLegal (copy attached at exhibit XX/XX).  As a result of this, I issued an email to the Claimant’s Legal Representative on XXXXX referring to this judgement and inviting them to discontinue the claim.  A response is pending.

beamerguy

therugbyfan said:

This is the additional paragraph I will add after point 22. 
XX.  Following much research I have been made aware of many cases that have been struck out of court under Abuse of Process for adding an additional £60 to the parking charges.  Most recently the Judgement for case F0DP77KP in the Luton County Court v BWLegal (copy attached at exhibit XX/XX).  As a result of this, I issued an email to the Claimant’s Legal Representative on XXXXX referring to this judgement and inviting them to discontinue the claim.  A response is pending.

Good, they will either reply with a fantasy response which they will know wIll make a judge bring out the famous whip again.  Or, they ignore you which is just as good because you can prove you tried to settle the matter and they ignored you which puts in doubt the reliability of their Witness statement and claim

If they do reply, we would love to see it

Coupon-mad

Very good!

At #23, you need to explain in what way the POFA right to 'keeper liability' has not been met.  I'd suggest it's twofold, firstly due to 'inadequate' notice of the parking charge meaning there was not fundamental 'relevant obligation or contract' that was in play.  Secondly, whatever in the NTK fails to meet paragraph 9 of Sch4 (check the wording for full compliance and be pedantic!).

At #17, #18 and #19 I'd amend them to these words, and grab Jopson (appeal judgment transcript) from the Parking Prankster's case law pages online:

17.  It is clear that a maximum of 5 minutes “stopped” does not constitute "parking" in any sense of the word.  In relation to what constitutes parking, the court is invited to consider the definition of parking given in the Cambridge English Dictionary which defines it as “leaving a vehicle in a particular place for a period of time.”   Further, this was a publicly-accessible road, not a car park.  It is a question of construction whether a right of way extends to a right to park but a right to use a forecourt and roadway, or a road, has been held to confer a right to park, and certainly to stop temporarily due to a minor issue.  A contract does not arise or become concluded, unbeknown to the driver who has not yet had a fair opportunity to read any terms, the moment the car draws to a temporary stop.

 

18.  This issue regarding what constitutes 'parking' was considered by HHJ Harris QC in Jopson v Homeguard (2016) at Oxford County Court, allowing an appeal against DDJ Wright who had made a decision on the papers only.  HHJ Harris QC, being a most experienced and learned judge, used a compelling rationale in his judgment against a similar UK private parking company:   ''Neither party was able to direct the court to any authority on the meaning of the word “park”. However, the Shorter Oxford Dictionary has the following: “To leave a vehicle in a carpark or other reserved space” and “To leave in a suitable place until required.” The concept of parking, as opposed to stopping, is that of leaving a car for some duration of time beyond that needed for getting in or out of it, loading or unloading it, and perhaps coping with some vicissitude of short duration, such as changing a wheel in the event of a puncture. Merely to stop a vehicle cannot be to park it; otherwise traffic jams would consist of lines of parked cars. Delivery vans, whether for post, newspapers, groceries, or anything else, would not be accommodated on an interpretation which included vehicles stopping for a few moments for these purposes. Discussion in this area left the respondent in obvious difficulties, from which the attractive advocacy of Miss Fenwick was unable to rescue it.   Whether a car is parked, or simply stopped, or left for a moment while unloading, or (to take an example discussed in argument) accompanying a frail person inside, must be a question of fact or degree. ….A milkman leaving his float to carry bottles to the flat would not be “parked”. Nor would a postman delivering letters, a wine merchant delivering a case of wine, and nor, I am satisfied, a retailer’s van, or indeed the appellant, unloading an awkward piece of furniture.” Jopson v Homeguard (2016) paragraphs 20 and 21 - see xx/0x.

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

therugbyfan

Great, thanks CM.  Point 18 puts across my point perfectly.  I can't get out of my head the fact that this road leads directly to an NCP Car Park and, I imagine, on a very busy Saturday being in the centre of Manchester it would attract a lot of cars trying to get into the Car Park.  If they were all to queue on this road for 5 minutes to get in, would the Claimant consider these vehicles as parked?!  

therugbyfan

Whilst I go back to scrutinising PoFA, would someone mind taking a look at the revised WS of my 2nd witness:

In The XXXXX County Court

Claim No: XXXXX

Between

ES Parking Enforcement Ltd (Claimant)
-and-
XXXXX (Defendant)
___________________________________________
WITNESS STATEMENT OF XXXXX
___________________________________________

I, XXXXX, 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 XXXXX Restaurant.

3. I am disabled with arthritis of the spine and hips, which causes considerable pain, joint stiffness and weakness in my legs.  I am limited to how far I can walk and at risk of falling due to the weakness in my legs.  My disability entitles me to hold a blue badge which, under the Equality Act 2010, is an indicator of entitlement to reasonable adjustments under the law.

4. The driver was therefore trying to get as close to the restaurant for me as possible.

5. 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.

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

7.  There were double yellow lines on that corner, but I told the driver that I had my blue badge with me and stopping on double yellow lines is permissible within the scheme.

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

9. We proceeded to another location just up the road to drop me off safely.

Statement of Truth:

I believe that the facts stated in this witness statement are true.  I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

therugbyfan

CM - I have updated point 23. as follows:
23. 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 due to, a) inadequate notice of the parking charge, and b) failure to meet the conditions of Para 9(2)(a) where it states they “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 is not provided, there is no evidence of a contravention.  It also states that they “must” specify the relevant land on which it was parked.  Their notice states only XXXXX Estate and not specifically the exact location on XXXXX Street.  The Claimant 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

In my appeal to the IAS I mentioned 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.  I suggested the same can be found in my case.  Should I add this to the WS, and if so, where could I find a copy of the transcript to add to the evidence?