Gladstones & UKCPM Ltd claim Private property PCN

hsc911

Umkomaas wrote: »

and whatever parking fee you have to pay for the hearing (maybe £5-£10?)

£100 based on their charges :rotfl:

Thanks :beer:

Fruitcake

Don't take your eye off the ball. Keep a diary or set reminders so you know what you need to do and when it has to be submitted. Do the same for things the scammers should be doing. If they miss something, otr miss a date, complain to the court or include it in your WS.

When you get to the exhibits stage, go through everything you want to include in yours, and go through theirs with a fine tooth comb.
Look at their photos, signage and contract. The latter must be with the landowner or with a landowner agent who must also have a contract with the landowner. The contract must be with, or flow from the landowner. Have you determined who that is? A copy of the Land Registry entry only costs a few quid and is well worth.

Show us anything you want us to comment on, especially signs and the contract.

salimnina

Hello,


I parked whilst on a Sunday market, on my way back there was nothing on the windscreen to suggest that I had a fine.


about four weeks later I received a letter from a parking management company requesting money for breaching some sort of parking restriction.


Now I am receiving letter from the court



I also requested SAR from both UKPARK & GLADSTON, but UK Car refused, then accepted after two weeks.


I am relying on this template, is OK ? Thank you in advance for this, I stil have time to defend till 6th of Jan 2020, but as I am away I will need this sorted ideally today.





1. The Defendant was the registered keeper of vehicle registration number XXXXX on the material date. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The Particulars of Claim lack specificity. 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.

3. At best, parking without authorisation could be a matter for the landowner to pursue, in the event that damages were caused by a trespass. As the Defendant is in possession of a valid permit for VEHICLE REG to park there was no trespass. A parking charge cannot be dressed up by a non-landowner parking firm, as a fee, or a sum in damages owed to that firm for positively inviting and allowing a car to trespass. The Supreme Court decision in ParkingEye Ltd v Beavis [2015] UKSC 67, confirmed that ParkingEye could not have pursued a sum in damages for trespass.

4. Further and in the alternative, it is denied that the claimant's signage at LOCATION sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. There is no offer to park so the defendant has not entered into any contract with the Claimant. The signage also advises that "YOU MUST PARK WHOLLY WITHIN A MARKED BAY". There are many flaws in the structure of these bays with a lack of line marking. It is, therefore, strictly denied that the Claimant's signage is capable of creating a legally binding contract.

5. The POFA, at Section 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. This erroneus claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery. The Defendant has the reasonable belief that the Claimant has not incurred £60 costs to pursue an alleged £100 or £160 debt. The Claimant's particulars disclose no legal basis for the sum claimed and it is the Defendant's position that the poorly pleaded claim discloses no cause of action and no liability in law for any sum at all. The Claimant's conduct from the outset has been intimidating, misleading and indeed mendacious in terms of the added costs alleged.

6. 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 strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.


OR EXTENSIVE


1. I am the defendant in this matter. Any evidence to my statement will be referred to the attached documents as Exhibit AM01, Exhibit AM02 and so on.


2. In this Witness statement, the facts and matters stated are true and within my own knowledge, except where indicated otherwise.

3. I am not liable to the Claimant for the sum claimed, or any amount at all.

4. I am the registered keeper of the vehicle (Reg – XXXXXX) in question in this case. No evidence has been supplied by this Claimant as to who parked the vehicle (if it was parked) or that I was the driver. As this event has been resurrected from over a year ago, it is not possible to expect a keeper to recall who might have been driving. At the time of the alleged charge, the car was used by several family and friends.

5. According to the Notice to Keeper, the alleged charges were for an ‘unauthorised parking’ on 05.08.2018. UK CPM issued a Parking Charge Notice (PCN) letter . No windscreen ticket in this case. Copy of the Notice to Keeper is attached as Exhibit AM__.

6. As the Claimant is a member of the International Parking Community (IPC), they are required to subscribe to the Approval Operator Scheme (AOS) and adhere to this Code of Practice which defines the core standards necessary to ensure transparency and fairness. The Claimant has failed to comply with the IPC Code of Practice (See Exhibit AM__) as follows:









9. The Claimant failed to comply IPC Code of Practice Part B 2.2 which states ‘Signs must conform to the requirements as set out in a schedule 1 to the Code’ (PART E Schedule 1 – Signage).

10. I have visited the location of the alleged parking charge and have found that the signage did not comply with the requirements of the Code of Practice of the IPC as deviated in the following paragraphs with evidence, further more, where the car was parked, there was no specific signage erected.


11. The signage was deficient in number, distribution, tiny wording and lighting to reasonably convey a contractual obligation. It is difficult to notice the signs during the day let alone see them at the night as there is no adequate light on that road or beside the signage. (See Exhibit AM__)

12. There was no signage at the entrance of the retail park that indicates to the driver that they are entering private land. (See Exhibit AM__) Also this was designed for customers.



13. It is denied that the signs used by this Claimant can have created a fair or transparent contract with a driver in any event hence incapable of binding the driver, which distinguishes this case from the Parking Eye Ltd v Beavis case 2015.

14. From my inspection of the signs as best I could, I found no mention of the alleged "debt collection charges". (See Exhibit AM__)

15. The Claimant has not provided any evidence of a contract with the landholder that demonstrated that UK CPM had any authority to operate in the land per to the IPC Code of Practice Part B 1. - 1.1. As a third party agent, the Claimant may not pursue any charge, unless specifically authorised by the principal. 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.

16. The Claimant is yet to provide evidence of relevant planning permission from the local authority to put up signage in the car park.

17. If the Claimant is using The Protection of Freedoms Act 2012 (POFA 12) to create a keeper liability, POFA 12 Schedule 4, (See Exhibit AM__) at Section 4(5) states that ‘The maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the Notice to Keeper’ in this case £100. The purported added 'costs' for which no calculation or explanation is given are disproportionate, a disingenuous double recovery attempt, vague and in breach of both the Civil Procedure Rules 1998 (CPR) (See Exhibit AM__), and the Consumer Rights Act ('the CRA') 2015 Schedule 2 'terms that may be unfair'. (See Exhibit AM__)

18. The arbitrary addition of a fixed sum purporting to cover 'recovery costs' is also potentially open to challenge as an unfair commercial practice under the CPRs, where 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.

19. Alleging that the letters the parking firm sent have caused an additional loss, is simply untrue. The standard wording for parking charge/debt recovery contracts is/was on the Debt Recovery Plus website - ''no recovery/no fee'', thus establishing an argument that the Claimant is breaching the indemnity principle - claiming reimbursement for a cost which has never, in fact, been incurred. This is true, whether or not they used a third party debt collector during the process.

19. The Defendant has the reasonable belief that the Claimant has not incurred an additional £60 in damages or costs to pursue an alleged £100 debt. The arbitrary addition of a fixed sum purporting to cover 'damages/costs' is also potentially open to challenge as an unfair commercial practice under the CPRs, where 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.

19.1. Whilst quantified costs can be considered on a standard basis, this Claimant's purported added £60 'damages/costs' are wholly disproportionate, are not genuine losses at all and do not stand up to scrutiny. This has finally been recognised in many court areas. Differently from almost any other trader/consumer agreement, when it comes to parking charges on private land, binding case law and two statute laws have the effect that the parking firm's own business/operational costs cannot be added to the 'parking charge' as if they are additional losses.

The Beavis case is against this Claim
25. Parking Eye Ltd v Beavis [2015] UKSC 67 ('the Beavis case') is the authority for the recovery of the parking charge itself and no more, since that sum (£85 in the Beavis case) was held to already incorporate the costs of an automated private parking business model including recovery letters. 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 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

25.1. This charge is unconscionable and devoid of any 'legitimate interest', given the facts. To quote from the decision in the Beavis case at Para [108]: ''But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85''. Ad at [199]: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests.''

25.2. In the Beavis case, it was said 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.''

25.3. 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...''

25.4. 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.'' and 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.''

The POFA 12 and the Accredited Trade Association (ATA) Code of Practice (See Exhibit AM__) are against this Claim
26. POFA 12, Schedule 4 at paras 4(5) and 4(6) 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' (further, 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.

The CRA is against this claim
27. Further, the purported added 'costs' are disproportionate, vague and in breach of the CRA 2015 Schedule 2 'terms that may be unfair'. This Claimant has arbitrarily added an extra 60% of the parking charge in a disingenuous double recovery attempt that has already been exposed and routinely disallowed by many Courts in England and Wales. It is atrocious that this has been allowed to continue unabated for so many years, considering the number of victims receiving this Claimant's exaggerated Letter before Claim, or the claim form, who then either pay an inflated amount or suffer a default judgment for a sum that could not otherwise be recovered. It is only those who defend, who draw individual cases to the attention of the courts one by one, but at last in 2019, some areas noticed the pattern and have moved to stop this abuse of process at source.

27.1. In the Caernarfon Court in Case number FTQZ4W28 (Vehicle Control Services Ltd (VCS) v Davies) (See Exhibit AM__) on 4th September 2019, District Judge Jones-Evans stated: ''Upon it being recorded that District Judge Jones-Evans has over a very significant period of time warned advocates [...] in many cases of this nature before this court that their claim for £60 is unenforceable in law and is an abuse of process and is nothing more than a poor attempt to go behind the decision of the Supreme Court in Beavis which inter alia decided that a figure of £160 as a global sum claimed in this case would be a penalty and not a genuine pre-estimate of loss and therefore unenforceable in law and if the practice continued he would treat all cases as a claim for £160 and therefore a penalty and unenforceable in law it is hereby declared [...] the claim is struck out and declared to be wholly without merit and an abuse of process.''

27.2. That decision in Wales was contested in a N244 application by VCS, but the added £60 was still disallowed on 30 Oct 2019. District Judge Jones-Evans stated that even in cases parking firms win, he never allows the £60 add on, and despite parking firms continuing to include it in their Particulars, most advocates have now stopped pushing for it at hearings. The Judge said that a contract formed by signage is a deemed contract, which the motorist does not have the opportunity to negotiate. That, and the fact that there is no specified sum on the signage, means that the extra £60 cannot possibly be recoverable. He said that the £60 was clearly a penalty, and an abuse of process. The considered sum in that case was reduced to £100 with a full case hearing to follow, but the £60 would not be awarded under any circumstances, and further, he ordered that the Claimant must now produce a statement of how they pleaded claims prior to Beavis, and subsequently.

27.3. In Claim numbers, F0DP806M and F0DP201T (See Exhibit AM__, a court report) - BRITANNIA PARKING -v- Mr C and another - less than two weeks later - the courts went further in a landmark judgment in November 2019 which followed several parking charge claims being struck out in the area overseen by His Honour Judge Iain Hamilton-Douglas Hughes QC, the Designated Civil Judge for Dorset, Hampshire, Isle of Wight & Wiltshire.

27.3.1. Cases summarily struck out in that circuit included British Parking Association (BPA) members using BW Legal's robo-claim model and IPC members using Gladstones' robo-claim model, and the Orders from that court were identical in striking out all such claims without a hearing during a prolonged period in 2019, with the Judge stating: ''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 POFA 12, Schedule 4 nor with reference to the judgment in the Beavis case. 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...''

27.3.2. BW Legal made an application objecting to two 'test' cases that had been struck out by District Judge Taylor against a parking firm for trying to claim for £160 instead of £100 parking charge. This has been repeated conduct in recent years, on the back of the Beavis case, where parking firms have almost unanimously contrived to add £60, or more, on top of the 'parking charge'. Members of both ATAs who have influence on their self-serving 'Trade Bodies' have even voted to have this imaginary 'damages/debt collection' sum added to their respective two Codes of Practice, to create a veil of legitimacy, no doubt to allow their members to confuse consumers and to enable them to continue to 'get away with it' in several court areas which are still allowing this double recovery.

27.3.3. That N244 application to try to protect the cartel-like position of some of the 'bigger player' parking firms, was placed before the area Circuit Judge and a hearing was held on 11th November 2019, with other parking charge cases in that circuit remaining struck out or stayed, pending the outcome. The Defendants successfully argued on points including a citation of the CRA 2015 and the duty of the court to apply the 'test of fairness' to a consumer notice (a statutory duty that falls upon the courts, whether a consumer raises the issue or not). All three points below were robustly upheld by District Judge Grand, sitting at the Southampton Court, who agreed that:
(a) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was in breach of POFA 12, due to paras 4(5) and 4(6).
(b) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was unconscionable, due to the Beavis case paras 98, 193, 198 and 287.
(c) The Claimant knew or should have known, that £160 charge where the additional 'recovery' sum was in small print, hidden, or in the cases before him, not there at all, is void for uncertainty and in breach of the CRA 2015, Schedule 2 (the 'grey list' of terms that may be unfair) paragraphs 6, 10 and 14.

27.3.4. At the hearing, the Judge refused their request to appeal. It was successfully argued that the parking firm's consumer notice stood in breach of the CRA 2015, Schedule 2 (the 'grey list' of terms that may be unfair) paragraphs 6, 10 and 14. Using the statutory duty upon the Courts to consider the test of fairness and properly apply schedule 2 of the CRA 2015 it was irrelevant whether or not the consumers' defences had raised it before, which they had not. The same issues apply to this claim.

.

31. In summary, the Claimant's particulars disclose no legal basis for the sum claimed and it is the Defendant's position that the poorly pleaded claim discloses no cause of action and no liability in law for any sum at all. The Claimant's vexatious conduct from the outset has been intimidating, misleading, harassing and indeed untrue in terms of the added costs alleged and the statements made.


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

salimnina

sorry it wasn't easy to post...i will amend accordingly regarding numbering.

hsc911

Be even better if you can start your own thread, as it's Xmas you may borrow mine for the time being LOL!

salimnina

hsc911 wrote: »

Be even better if you can start your own thread, as it's Xmas you may borrow mine for the time being LOL!

what's funny ?? not eveyone celebrates xmas... either says something useful, or just keep quite !

Redx

It's his thread , not yours

Please start your own thread , don't hijack other people's

salimnina

Redx wrote: »

It's his thread , not yours

Please start your own thread , don't hijack other people's

didn't realise...i am doing it, but still not a reason to make silly comments

hsc911

Notice or Proposed Allocation form arrived today., dated 3rd Jan.

I have until 20th Jan to complete the DQ from.

i will read up on what to do and when over the next day or two.

Speak soon and Happy New Year...to those that celebrate it that is LOL!!!

hsc911

4. Local court then confirms small claims allocation and sends out an order (called the Notice of Allocation) with a timetable for exchanging witness statements and documents, Lists of Documents, the final hearing and who is to file the court bundle for the final hearing and when (sometimes the order doesn't provide for a bundle for the final hearing, in which case you need to prepare your own at the time of the hearing).


So I am here from my understanding.

The NofPA just states 2 things:

1) Date I must return the DQ by, and

2) the DQ forms.

The DQ asks:

A Mediation
B Contact details
C Track
D About the hearing

And that's all.


I did hit the multiquote button, then reply but the quotes do not appear so here is my attempt at quoting:

KEITHP said:
"If you haven't done so already, now is the time to familiarise yourself with what happens next - details in post #2 of the NEWBIES thread.
You will need to complete and return your DQ.
Then write your Witness Statement.
Then gather your evidence.
Not forgetting to file a Costs Schedule"



So do I await ANOTHER letter from the court asking for my WS? I am assuming this is the case from what I have read and from what Redx posted.

Redx said:
"If you haven't done so already, now is the time to familiarise yourself with what happens next - details in post #2 of the NEWBIES thread.
You will need to complete and return your DQ.
Then write your Witness Statement.
Then gather your evidence.
Not forgetting to file a Costs Schedule"





If I have got this correct then I will send the form back and say NO to mediation.

Thanks in advance