County Court Defence against Gladstone+UKCPM advice needed!!!

swooshy

I am about to send off my defence. I would be grateful if somebody could please critique this.
Also, I am planning on emailing it as suggested, is there a word limit in doing this?
Thanks.
DEFENCE

1.Each and every allegation in the Claimants statement of case is denied unless specifically admitted in this Defence.

Preliminary matters:

2. The Defendant was not the driver of the vehicle on the dates in question. The Defendant was the registered keeper of the vehicle in question at the time of the alleged contravention.

3.The Claimant failed to include a copy of their written contract nor any detail or reason for - nor clear particulars pertaining to - this claim (Practice Directions 16 7.3(1) and 7C 1.4(3A) refer).

4. The Particulars of Claim (PoC) do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how any terms were breached. Indeed, the PoC are not clear and concise as is required by CPR 16.4 1(a) and CPR 1.4. It just vaguely states “parking charges” which does not give any indication of on what basis the claim is brought, for example whether this charge is founded upon an allegation of trespass or 'breach of contract', so the defendant has had to cover all eventualities being denied a fair chance to defend this in an informed way.

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

5. The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no diligence, no scrutiny of details nor even checking for a true cause of action. HMCS have identified over 1000 similar sparse claims. I believe the term for such conduct is ‘roboclaims’ which is against the public interest, unfair on unrepresented consumers and parking companies using the small claims track as a form of aggressive, automated debt collection is not something the courts should be seen to support. On the basis of the above, I request the court strike out the claim.

6. It is denied that “UK CAR PARK MANAGEMENT LIMITED” served any Default notice on the Defendant pursuant to s87 Consumer Credit Act 1974. The Claimant is required to prove that a compliant Default Notice was served upon the Defendant. The Claimant is required to prove that the any Default notice relied upon complied with the requirements of s88(4A) Consumer Credit Act 1974 and that the notice was in the prescribed form as required by The Consumer Credit Enforcement Default and Termination Notice Regulations 1983.

No clear signage or basis for binding contract:

7. Subsequent to receipt of the court claim letter, as the keeper at the time of the alleged contravention. I carried out some research and visited the site in question. The PCN issued relates to a poorly signed private road. There are no entrance signs, or other evidence that this site was 'private land' or being enforced by any restrictive terms. Referring to the IPC Code of Practice (CoP) Part E, it is clear that adequate and clear entrance signs are required. The road was not marked as a no-stopping zone nor transparently signed as a permit-holders or 'managed' site, as their CoP requires

8. The Defendant avers that the lack of any signage prior to entry to the car park setting out terms in a clear manner makes it impossible for any binding contract to be formed.

9. The only signage seen on reviewing the site was attached to a temporary concrete barrier around 80 centimetres in height itself, which could easily be obscured by parked vans making it invisible.

(a) Furthermore, nothing else suggested restrictive measures were in place; the kerb was unmarked, there was no clearway sign nor coloured lines/hatched lines to communicate 'no stopping' and certainly nothing was seen about permits or how to obtain one, or indeed any charges.

10. There was no PCN placed on the car windscreen. Therefore, the existence of the 'parking charges' only became apparent when a court claim was received for 'parking charges' apparently incurred on two separate days, five days apart.

11. No ‘parking charges’ were received, and the defendant has only recently been notified of the alleged ‘offence’ via the claim form. Thus, there was no fair chance to read or respond to any terms at all arising from it.

12. Due to lack of clear signage, the elements of a contract and agreement on any (unknown) charge are absent

(a) Furthermore, where terms on a parking sign are not seen/known, then there can be no contract. One can refer to 'Vine v London Borough of Waltham Forest; CA 5 APR 2000, a case won by the consumer on appeal where the Judges also found that clear entrance signs are expected.

13. Any ‘charge’ or terms on signage on the day would not have been on clear display, but even if the court believes this to not be the case, the terms were in such small print as to be illegible, contrary to the Consumer Rights Act 2015.

(a) The Claimant may try to rely upon ParkingEye Ltd v Beavis [2015] UKSC 67, ('the Beavis case') yet such an assertion is not supported by any similarity in the location, circumstances, nor signage. Absent any offer or agreement on a charge, the Beavis case does not assist the claimant and in fact, supports this defence. Further, there is no ‘legitimate interest’ served by immediate ‘fining’ of a car on arrival, with no attempt to mitigate loss or draw terms to the attention of drivers, or allow any period of grace to obtain any permit or even read the signs.

?. It is submitted that the Claimant is merely an agent acting ‘on behalf of’ the landowner who would be the only proper claimant. Strict proof is required of a chain of contracts leading from the landowner to this Claimant, to allow them the right to form contracts and to sue in their name.

?. Even if this is produced, it is submitted that there is no contract offered to drivers not displaying a permit, so alleged 'unauthorised' parking (denied) can only be an event falling under the tort of trespass.

?. As was confirmed in the Beavis case, ParkingEye could not have claimed any sum at all for trespass, whereby only a party in possession of title in the land could claim nominal damages suffered (and there were none in this material case).

Abuse of process:

14. It is submitted that (apart from properly incurred court fees) any added solicitors fees or otherwise are simply numbers made up out of thin air, and are an attempt at double recovery by the Claimant, which would not be recoverable in any event.

(a) Not only are such costs not permitted (CPR 27.14) but the Defendant believes that the Claimant has not incurred legal costs, the defendant avers that no solicitor is likely to have supervised this ‘cut and paste’ ‘roboclaim’ at all, on the balance of probability.

15. There has been no explanation provided as to how the claimant has justified £335 for two 'parking charges'.

(a) 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.

Continued...

swooshy

...

The Beavis case is against this Claim

21. To quote para [97] from the judgement of ‘Parking Eye Ltd v Beavis [2015]; “ParkingEye could not recover damages, unless it was in possession, in which case it may be able to recover a small amount of damages for trespass. This is because it lost nothing by the unauthorised use resulting from Mr Beavis overstaying.” The sum of money (£85 in the Beavis case) held was 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. The Supreme Court Judges held that a parking firm not in ownership of the land 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.

 

(a) 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''. And at [199]: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests.''

 

(b) 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.''

 

(c) 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...''

 

(d) 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 2012 and the ATA Code of Practice are against this Claim

22. The Protection of Freedoms Act 2012, Schedule 4 ('the POFA') 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 Consumer Rights Act 2015 ('the CRA') is against this claim

23. 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 over 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.

 

(a) In the Caernarfon Court in Case number F2QZ4W28 (Vehicle Control Services Ltd v Davies) 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.''

 

(b) 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.

 

(c) In Claim numbers F0DP806M and F0DP201T - 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.

 

(d) Cases similarly struck out in that circuit included 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 Protection of Freedoms Act 2012, 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...''

 

(e) 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.

 

(f) 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:

(i) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was in breach of POFA, due to paras 4(5) and 4(6).

(ii) 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.

(iii) 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 Consumer Rights Act 2015, Schedule 2 (the 'grey list' of terms that may be unfair) paragraphs 6, 10 and 14.

 

(g) 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.

 

(h) A transcript will be publicly available shortly. In his summing up, it was noted that District Judge Grand stated: ''When I come to consider whether the striking out of the whole claim is appropriate, that the inclusion of the £60 charge means that the whole claim is tainted by it, the claimant should well know that it is not entitled to the £60. The very fact that they bring a claim in these circumstances seems to me that it is an abuse of process of the court, and in saying that, I observe that with any claim that can be brought before the court that if a party doesn't put in a defence to the claim, default judgments are entered. So, the Claimant, in bringing the claims is, in other cases, aware that if the defendant doesn’t submit a defence, the Claimant is going to get a judgment of a knowingly inflated amount. So I conclude by saying that I dismiss the application to set aside Judge Taylor’s ruling.''

 

(i) Consumer notices - such as car park signs - are not excused by the CRA 'core exemption'. The CMA Official Government Guidance to the CRA says: ''2.43 In addition, terms defining the main subject matter and setting the price can only benefit from the main exemption from the fairness test ('the core exemption') if they are transparent (and prominent) – see part 3 of the guidance.'' and at 3.2 ''The Act includes an exemption from the fairness test in Part 2 for terms that deal with the main subject matter of the contract or the adequacy of the price, provided they are transparent and prominent. (This exemption does not extend to consumer notices but businesses are unlikely to wish to use wording that has no legal force to determine 'core' contractual issues).'' The parking industry is the exception to this rule because they have no consumer 'customers' yet are consumer-facing. Their intention is very clearly in many cases (including this case) for a consumer not to see the onerous terms hidden in their notices and it is averred that no regard is paid to consumer law.

 

(j) The definition of a consumer notice is given at 1.19 and the test of fairness is expanded at 1.20: ''A consumer notice is defined broadly in the Act as a notice that relates to rights or obligations between a trader and a consumer, or a notice which appears to exclude or restrict a trader’s liability to a consumer. It includes an announcement or other communication, whether or not in writing, as long as it is reasonable to assume that it is intended to be seen or heard by a consumer. Consumer notices are often used, for instance, in public places such as shops or car parks as well as online and in documentation that is otherwise contractual in nature. [...] Consumer notices are, therefore, subject to control for fairness under the Act even where it could be argued that they do not form part of the contract as a matter of law. Part 2 of the Act covers consumer notices as well as terms, ensuring that, in a broad sense any wording directed by traders to consumers which has an effect comparable to that of a potentially unfair contract term is open to challenge in the same way as such a term. There is no need for technical legal arguments about whether a contract exists and whether, if it does, the wording under consideration forms part of it.''

 

24. In December 2019 in a different Court circuit, Deputy District Judge Joseph sitting at Warwick County Court had clearly heard about the decisions affecting the Isle Of Wight, Hampshire, Dorset and Wiltshire circuit because he summarily struck out multiple parking ticket claims from various firms all due to the adding of the false £60 costs to £100 parking charge, that already indisputably (in law and case law) includes those costs.

 

(a) The Judge determined that ''it is an abuse of process for the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover.'' further, in issuing his Orders striking out several £160 parking claims without a hearing, the Judge stated that he had ''considered S71(2) of the Consumer Rights Act 2015 for the fairness of the contract terms and determined that the provision of the additional charge breached examples 6, 10 and 14''.

 Continued...

swooshy

...

25. The Defendant is of the view that this Claimant knew or should have known that to claim in excess of £100 for a parking charge on private land is disallowed under the CPRs, the Beavis case, the POFA and the CRA 2015, and that relief from sanctions should be refused.

 26. If this claim is not summarily struck out for the same reasons as the Judges cited in the multiple Caernarfon, Southampton, IOW and Warwick County Court decisions, then due to this Claimant knowingly proceeding with a claim that amounts to an abuse of process, full costs will be sought by the Defendant at the hearing, such as are allowable pursuant to CPR 27.14.

27. The court is invited to respectfully strike out the claim in light of the afore mentioned points.

28. The facts and information in this defence are true and the Defendant is not liable for the sum claimed, nor any sum at all.

Le_Kirk

I think you should make it clear that your comments in paragraph 7 are as a result of research having been carried out by you as keeper, since the receipt of the PCN, not as a result of having been driving the car on that date.  I know you allude to it later but I think it should be at the forefront of paragraph 7 so there can be no doubt!

1505grandad

The fact you are quoting "Ladak v DRC Locums" shows you are including old Abuse of Process paras.

See long post by Coupon-mad which, before new forum, was post #14 in the AoP thread for the required paras 

and instructions:-

https://forums.moneysavingexpert.com/discussion/6014081/abuse-of-process-district-judge-tells-bwlegal

Also the landowner paras are stated before the AoP 

beamerguy

1505grandad said:

https://forums.moneysavingexpert.com/discussion/6014081/abuse-of-process-district-judge-tells-bwlegal

Also the landowner paras are stated before the AoP 

The link above is erratic and defaults to different page numbers
THE ABUSE OF PROCESS LINK FROM PAGE # 1 IS NOW ...
https://forums.moneysavingexpert.com/discussion/6014081/abuse-of-process-district-judge-tells-bwlegal/p1

swooshy

1505grandad said:

The fact you are quoting "Ladak v DRC Locums" shows you are including old Abuse of Process paras.

See long post by Coupon-mad which, before new forum, was post #14 in the AoP thread for the required paras 

and instructions:-

https://forums.moneysavingexpert.com/discussion/6014081/abuse-of-process-district-judge-tells-bwlegal

Also the landowner paras are stated before the AoP 

I have removed the old abuse of process paras.
I have moved the landowners paras, it is now before the AoP section.
If there is anything else that I should amend at this stage please let me know.

swooshy

Below is my WS. Court date (video) set for 14/8/20.

Additionally, I had a few questions:

1.       Do I need the transcript for Judge Chohan case? - See point 2.2

2.       Will the signatures provided by 'bargepole' suffice?

3.       Do I need to provide a transcript for every case mentioned?

--------------

1.1   I am xx, of xx. I am the Defendant in this case. I am an unrepresented consumer with no experience of Court procedure. Should I not present my case as professionally as the Claimant’s, I trust that the Court excuses my inexperience and reserves any criticism for the extremely sparse particulars filed by the Claimant’s Solicitors.

1.2 I can confirm that this statement has been read to me in my native language. I confirm that I understand and agree with the contents of this statement. I may not be able to read the statement in form produced as English is not my primary language.

1.3 I assert I am not liable to the claimant for the sum claimed, or any amount and this is my Witness Statement in support of my defence as already filed.

1.4 This claim refers to two parking incidents on a private road at Kier Park – Cowley Mill Road Uxbridge Greater London. UB8 2GG. The dates provided by the Claimant were x/2/19 and x/2/19.

1.5 I was the registered keeper of the vehicle in question at the time of the alleged contravention. I cannot recall who was driving the vehicle on the day. I was not the driver of the vehicle on the dates in question at the site stated above.

1.6 I have not had any correspondence from the Claimant until receiving the Claim Form letter (issue date 13/01/20).

2. The Claimant has no authority to pursue parking charges on this land

 

2.1 The Claimant Witness Statement (CWS), Paragraph 32, states that they have an agreement with the landowner to enforce parking at the site.

 

2.2 The Claimant has attached a document entitled “Parking Enforcement Contractual Agreement” (Exhibit G). This shows the agreement was made between ‘Cushman & Wakefield’ and ‘UK Car Park Management Ltd’.

 

2.3 ‘Cushman & Wakefield’ appear not to be a landholder for this site. They are a commercial real estate provider. A publicly available pre-application request from the Hillingdon Council Website reflects this (Exhibit H). This is in reference to the site in question. Page 7, paragraph 7 reads as follows, “The appeal decision approved the entire trade park which has since been built out in two phases and sold to two sperate owners, Kier (Phase 1) and DTZi (Phase2).”

 

2.4 The ‘Particulars of Claim’ in the ‘Claim Form’ letter (Exhibit O) read as follows, "The driver of the vehicle with registration xxx xxx (the "Vehicle") parked in breach of the terms of parking stipulated on the signage (the 'Contract') at Kier Park - Cowley Mill Road Uxbridge Greater London UB8 2GG."

 

2.5 It is apparent from the above that ‘Kier’ are the landowners on this site.

 

2.6 No other contract proving the Claimant has authority to operate, manage or enforce parking conditions were provided.

 

2.7 It is therefore rejected that Claimant has the authority from the landowner to establish them as the creditor within the meaning of Schedule 4: 2(1) (b) Protection Of Freedoms Act (2012) (POFA) (Exhibit Q), nor establish them as a person who is able to recover parking charges, as laid out by the Claimants Trade Association Code of Practice B1.1. (Exhibit I).

 

2.8 In light of there being no valid contract or agreement between Claimant and Landowner, the defendant asks the court to dismiss this case as having no rights to bring the action regarding this claim.

 

2.9 The CWS, Paragraph 34, mentions VCS vs HM Revenue & Customs 2013 EWCA Civ 186 to support the notion that a contract between Operator and Landowner is not relevant.

 

2.10 The VCS vs HM Revenue & Customs 2013 Judgement (Exhibit J) has no relevance here as it was related to permit holders parking outside the acceptable zones. Paragraph 24 of the judgement:

 

“It is common ground that the charges with which this appeal is concerned are charges levied on motorists who were permit holders but, for example, who parked in the wrong place or parked outside the markings of a bay. It is not concerned with "pure" trespassers. Accordingly, in my judgment the place to begin is the terms on which permits were issued.”

 

2.11 Furthermore, Paragraph 26 of the same judgement includes, “VCS can in fact perform the contract because the landowner allows it to.” The Claimant has not provided any landowner authority in this case as already stated above.

 

2.12 In the Parking Eye vs Beavis 2015 Judgement (Exhibit F) it is apparent that Parking Eye had landowner authority here, thus distinguishing it from this case. Paragraph 99 states, “The scheme in operation here (and in many similar car parks) is that the landowner authorises ParkingEye to control access to the car park and to impose the agreed charges…”.

 

3 The Claimant Witness Statement (CWS) Is Invalid

 

3.1 The CWS appears not to be actually signed by Mr Jack Chapman.

 

3.2 It is obvious that Mr Jack Chapman has not signed the CWS. It is most likely that Gladstone’s solicitors have electronically copied his signature from another document. Copies of signatures used in Claim Nos. E9GF9M7K and E4GF8M1R, UKCPM vs Mrs A, before Deputy District Judge Chohan at High Wycombe have been attached (Exhibits A1 and A2).

 

3.2.1 Deputy District Judge Chohan at High Wycombe struck out both conjoined claims. He also agreed that the two factors of late service, and a defective WS, crossed the threshold of unreasonable behaviour, and awarded Mrs A her full costs in the sum of £331.80, which he said was a very reasonable figure.

 

3.2.2 My case has the same facsimile signature from a person who was not a witness. It is a templated statement.

 

3.3 This is a significant and serious act of dishonesty, for which Lesley Layton of Lance Mason Solicitors was struck off the Roll of Solicitors in 2017 following a hearing on 10/10/17 (Exhibit B

 

3.4 I have reported Gladstone’s solicitors to the SRA. The Witness Statement appears to be a template. It is most likely UK-CPM employee’s signature has been copied at the bottom, and he has no even seen the statement let alone signed it. The SRA are known to be currently actively investigating these specific 'Jack Chapman' signed witness statements which have been sent to the SRA due to an apparent failure to ensure that the UKCPM witness has written, read and signed it himself. This appears to be a serious abuse of the Court process and compromises the Claimant's entire position.

 

3.5 I am aware that this person 'Jack Chapman' will not appear to be questioned and my position as Defendant is prejudiced in view of the background and current ongoing SRA investigation. In view of this, the Defendant asks that the WS and the enclosures are considered hearsay at best, and disregarded.

 

3.6. I would like the Court to consider awarding my full costs. It is my position that this purported Witness Statement is a false instrument and is the final straw in a long list of vexatious and 'wholly unreasonable' conduct on the part of the Claimant, in this case. A revised costs schedule is appended to this statement, setting out actual costs incurred by the Defendant which are now sought, on the Indemnity basis.

4. The Sign is ambiguous and signage on the site is not prominent

4.1 The CWS was accompanied by some documents. One of these documents is a print out of a photo taken of a sign attached to a temporary concrete block (Exhibit C1). No other clear photographic evidence of signage was provided. The sign is attached to a temporary structure, specifically a concrete block which is no longer present on the site. The Claimant suggests the Sign has contract equivalence as reflected in CWS Paragraphs 3 and 45.

4.1.1 The Claimant asserts that signage is prominent throughout the parking area. The photograph they have provided (Exhibit C2) shows a cordoned off zone which contains signage present in the distance (red encircled), this would clearly not be legible or even noticed due to this distance. Therefore, the Claimant site plan (Exhibit C3) is not relevant to this case; it is not contemporaneous to the parking incidents, and does not accurately reflect the site at the time.

4.2 The signage is ambiguous and the CWS contains contradictory statements. The CWS states, on paragraph 6:

“A VALID UK CPM PERMIT MUST BE CLEARLY DISPLAYED IN THE FRONT WINDSCREEN AT ALL TIMES.

YOU MUST PARK WHOLLY WITHIN A MARKED BAY. NO PARKING ON ROADWAYS/YELLOW LINE/PAVED/HATCHED OR LANDSCAPED AREAS

IF UNSURE PLEASE SEEK FURTHER ADVICE FROM CPM OR REFRAIN FROM PARKING”

4.3 The word ‘permit’ is mentioned. Yet it doesn’t state how one may obtain a permit.

4.4. The CWS states, on paragraph 35, “the issue of a permit has no relevance to this claim”. Simultaneously stated is “a permit is not accepted in any case”. This statement contradicts the message on the sign (Exhibit C1). I cannot understand why there is mention of a permit on the sign, if it is not accepted. There is both ambiguity and contradiction present here.

4.5 This is relevant to this claim which is based on “clear and unambiguous signage”, CWS Paragraph 6, upon which the Claimant has made basis for contractual agreement giving rise to a parking charge.

5. The Sign is inappropriately placed

5.1 The Claimant is an International Parking Community (IPC) member. They should be familiar with its Code of Practice. Part E - Schedule 1 – Signage:

“You must adequately display any signs intended to form the basis of contract between the

creditor and the driver

 

…4) Be clearly legible and placed in such a position (or positions) such that a driver of a vehicle is able to see them clearly upon entering the site or parking a vehicle within the site”              

 

5) Have clear and intelligible wording and be designed such that it is clear to the reasonable driver that he is entering into a contract with the creditor or committing a trespass as the case may be;

 

6) Contain text appropriate to the position of the sign and the relative position of the person who it is aimed at.”

5.1.1 The photo (Exhibit C3) provided by the Claimant, shows a very low-lying sign relative to the parked vehicle. It is argued that a driver operating the vehicle would not be able to visualise the sign or have their attention brought to it. Please note the position of the “P” logo which would ordinarily bring one’s attention to a parking notice. It is not far off the ground and would not be visible from a moving or even a parked car. The motorist would no doubt be focussing on the road as is expected to prevent a collision.

5.1.2 The camera operator working on behalf of the Claimant has taken a photo of a sign (Exhibit C1) from what appears to be a metre away. They have had to angle the camera around 45 degrees downward to capture the sign. This further reflects poor sign positioning.

5.1.3 The photo taken by the camera operator working on behalf of the Claimant (Exhibit C4) shows the sign is completely obscured by the parked vehicles. In addition to the vehicle in question there are two other different vehicles similarly parked in the photos provided by the Claimant (Exhibit C2, C4). It is my assertion that motorists would not knowingly park their vehicles in such a position if the signage had been appropriately placed in the first instance.

5.2 Due to poor positioning of the sign; the Claimant did not uphold their obligation between themselves and the Landowners as per “Parking Enforcement Contractual Agreement” which they provided with the CWS. Point 2.1 of this contract under the heading “THE CONTRACTOR OBLIGATION” states:

“To erect and/or place free of charge such numbers of Notices as shall be agreed with the proprietor in clear unobscured positions on the Premises…”

5.3 One can establish from the above that the Claimant, who is the Contractor did not carry out their obligation as per the “Parking Enforcement Contractual Agreement” set out between themselves and the Proprietor. The sign is not in a ‘clear, unobscured’ position. Therefore, they have not fulfilled the contract by upholding this obligation.

5.4 The IPC Code of Practice under Schedule 5 – Auditing states:

“Only when the IPC is satisfied that an operator has met the relevant criteria will they be allowed to access DVLA data. The audit process will be ongoing.”

5.5 I assert that the claimant accessed DVLA data inappropriately by using a sign which does not meet the IPC standard as stated above. CWS Paragraph 4 mentions that they are regular audited by the IPC. The temporary Sign present is unlikely to fulfil IPC criteria. The Claimant has not provided any evidence that an audit on this sign was carried out.

5.6 CWS, Paragraph 29, states that the Vine vs London Borough of Waltham Forest 2000 cannot be relied upon. This is not true. In fact, Ms Vine’s appeal was allowed. Lord Justice Roch observed, in Paragraph 19 (Exhibit P; page 6, final paragraph):

"… To show that the car owner consented or willingly assumed the risk of his car being clamped, it has to be established that the car owner was aware of the consequences of his parking his car so that it trespassed on the land of another; that will be done by establishing that the car owner saw and understood the significance of a warning notice or notices that cars in that place without permission were liable to be clamped. Normally the presence of notices which are posted where they are bound to be seen, for example at the entrance to a private car park, which are of a type which the car driver would be bound to have read, will lead to a finding that the car driver had knowledge of and appreciated the warning. In this case the recorder might have reached such a conclusion about the plaintiff's state of knowledge, but he did not do so; the recorder made a clear finding of fact that the plaintiff did not see the sign. That finding is not surprising in view of the absence of any notice on the wall opposite the southern parking space and the plaintiff's distressed state, the reason why the plaintiff parked and left her car hurriedly, it was the plaintiff's evidence that she did not see the sign."

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6. Use of Predatory Tactics and no provision of a Grace Period

6.1 CWS Paragraph 9, shows that the car in question was parked and unattended at the site for 5 minutes and 29 seconds on the 9th of February 2019 and then for 3 minutes and 53 seconds on the 14th of February 2019.

6.2 The IPC of which the claimant is a member states the following:

“A Grace Period is a period of time, after the expiry of a parking time limit, for a motorist

to exit a car park without incurring a parking charge. This is to cover situations like

inadvertent overstays. Currently all motorists parking on private land are afforded 10

minutes after the expiry of their time limit. It is important that this safeguard is maintained.”

 

6.2.1 There was no ‘Grace Period’ provided as per the CWS which clearly states that the car in question was parked and unattended for less than 10 minutes on two separate occasions.

 

6.2.2 If the claimant suggests that a ‘Grace Period’ doesn’t apply to this particular situation as it is not related to inadvertent overstay. How can they simultaneously claim that this case is indistinguishable from the Beavis case which was related to overstay?

In their perspective, if this case is indistinguishable from the Beavis case which was related to overstay. They should honour the Grace Period as per the IPC.

 

6.3 The IPC guidelines (14) state:

‘You must not use predatory or misleading tactics to lure drivers into incurring parking charges. Such instances will be viewed as a serious instance of non-compliance’.

 

6.3.1 Given the timings involved, the balance of probability strongly suggests that the Claimant’s representative watched the Driver at the time park and leave the vehicle before taking photos. This apparently occurred on two separate occasions. This is evidence of repeatable behaviour that can be construed as a strategy to entrap and unfairly penalise individuals. Not to warn the Driver that they would incur a parking charge, particularly when there are temporary structures in place which have altered the original parking layout of the site, in my opinion constitutes ‘predatory tactics’.

 

6.5 The Sign states the following as per the CWS Para 6:

 

“IF UNSURE PLEASE SEEK FURTHER ADVICE FROM CPM OR REFRAIN FROM PARKING”

 

6.5.1 From the CWS, Paragraph 9, it is alleged the car in question was parked and left unattended on two separate occasions for 5 minutes and 29 seconds and then for 3 minutes and 53 seconds. These incidents allegedly occurred 5 days apart. If the individual who parked the car in question was indeed unsure and wanted to seek further advice, it is not apparent they were given a reasonable time in which to do so on either occasion.

 

7. No entrance sign

 

7.1 The IPC – Code of Practice Part E, Schedule 1 – Signage, states the following:

 

“Entrance Signs should:

a) Make it clear that the motorist is entering onto private land

b) Refer the motorist to the signs within the car park which display the full terms

and conditions.”

 

7.2 There is no entrance sign related to parking. This evidenced by Google ‘Street View’ (2017) outlining the site at street level from point of private land entry up to the area where the parking incidents allegedly occurred (Exhibit E). This is also evidenced by the site plan provided by the claimant (Exhibit D1).

 

8. No repeater sign

 

8.1 The IPC – Code of Practice - Part E - Schedule 1 – Signage states:

 

“You are required to provide a sufficient number of signs on each site commensurate with its

size and other characteristics to ensure that any parking conditions are adequately brought to the attention of the motorist.”

 

8.2 As evidenced by the photos provided by the claimant, there are no legible repeater signs, only a single low lying easily obscured sign on a long row of concrete blocks. The only signs that may be observed as repeater signs are only visible in the distance not legible to the human eye in an area that is cordoned off by concrete blocks. This as evidenced by the photo sent to me with the CWS (Exhibit C2). As previously mentioned, the site plan provided by the Claimant did not reflect the site at the time which had zones cordoned off as evidenced by the photos. Therefore, the signs highlighted in the Claimant site plan have no relevance here.

 

9. The claimant has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge

 

9.1 It is denied that the Defendant was the driver of the vehicle. The claimant has offered nothing in the way of evidence as to the identity of the driver and if they wish to pursue the Defendant as driver rather than keeper, then they must produce strict proof.

 

9.2 In light of this, the claimant may only pursue the defendant as keeper of the vehicle in strict adherence to the stipulations outlined by Schedule 4 of the Protection of Freedoms Act 2012 (POFA 2012).

 

9.3 It is averred that the claimant has failed to do this on numerous points

 

9.4 Furthermore, the claimant may allege that there is a reasonable presumption that the registered keeper was also the driver, allowing them to circumvent the regulations of POFA 2012. The defendant expressly denies that there is any presumption in law that the keeper is the driver. The defendant denies that the keeper is obliged to name the driver to the private parking firm. POFA 2012 makes no such requirement for a keeper to do this.

 

9.5 The claimant may seek to rely on the findings of Elliot vs Loake, 1982, in alleging that the keeper can be presumed to have been the driver. In this criminal case, forensic evidence was produced to a criminal standard. Therefore, the same logic can absolutely not be applied in this instance.

 

10. This case is distinguishable from Beavis vs Parking Eye

 

10.1 The Claimant may rely on Beavis vs Parking Eye (2015) (Exhibit F) as a binding precedent on the lower court. However, that only assists the Claimant if the facts of the case are the same, or broadly the same.

 

10.2 In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas it is my position that no such breach occurred in this case, because there was no valid contract, and also because the 'legitimate interest' in enforcing parking rules for retailers and shoppers in Beavis does not apply to these circumstances. Therefore, this case can be distinguished from Beavis on the facts and circumstances.

 

10.3 In the Beavis vs Parking Eye case, the defendant was the driver of the vehicle. There was a free parking licence offered. There was a “legitimate interest” in the contract/parking charges being enforced so that visitors did not overstay the two-hour free period in a retail park so as to ensure a turnover of visitors to the retail units, and a complex contractual arrangement. All of this together disengaged the “penalty rule”. The sign from the Beavis case reflects this (Exhibit R).

 

10.4 None of those facts apply in this case and in respect of the Relevant Land: The Claimant has failed to follow its binding Code of Practice issued by the IPC.

 

10.5 Unlike the Beavis case, the Defendant was not the driver. It is not common ground that a contract was agreed. A contract cannot have been formed because the wording on the signage was inadequate. The signs were not clear or prominent. The commercial interest in ensuring a changeover of visitors to what was a retail site, and the requirement of the Claimant to meet its costs by recovering parking charges do not apply to this case. The photos (Exhibit C2, C4) do not show any obstructing vehicles that would impact local business. The penalty rule therefore applies to this case and the charges claimed are quite clearly a penalty and are not recoverable.

 

10.6 Even if the court is minded to accept that a sign was visible, the wording on the sign was prohibitive. Unlike in the Beavis vs Parking Eye case, the Claimant offered no licence to park if not a ‘permit holder’. A purported licence to stop without a permit, in exchange for payment of a ‘charge’ on the one hand, cannot be offered when that same conduct is, on the other hand, expressly prohibited in the signage wording. This does not create any possible contract.

 

10.7 This is clear from several cases. In PCM-UK vs Bull 2016 (Exhibit M); residents were parking on access roads. The signage forbade parking and so no contract was in place. A trespass had occurred, but that meant only the landowner could claim, not the parking company. The Judge distinguished this case from the Beavis case. District Judge Glen observed, paragraph 18:

 

“I am afraid that in my judgment that analysis just does not work in this case. It does not work for this reason. If the notice had said no more than if you park on this roadway you agree to pay a charge then it would have been implicit that PCM was  saying we will allow you to park on this roadway if you pay £100 and I would agree with Mr Samuels’ first analysis that essentially the £100 was a part of the core  consideration for the licence and was not a penalty for breach. The difficulty is that this notice does not say that at all. This notice is an absolute prohibition against parking at any time, for any period, on the roadway. It is impossible to construct out of this in any way, either actually or contingently or conditionally, any permission for anyone to park on the roadway. All this is essentially saying is you must not trespass on the roadway. If you do we are giving ourselves, and we are dressing it up in the form of a contract, the right to charge you a sum of money which really would be damages for trespass, assuming of course that the claimant had any interest in the land in order to proceed in trespass.”

10.8 There is no mention of contract or agreement on the Claimants signs. Pace vs Lengyel 2017 (Exhibit K) highlighted that ‘Terms and Conditions’ is not synonymous with contract and as such no contract could be entered into. As observed by Judge Iyer, paragraph 13:

 

“Nowhere within this sign does it inform the reader that by parking in the car park, he is entering into a contract with the Claimant. Indeed, the words “contract” or “agreement” do no appear at all within the signs” which merely refers to the driver “accepting liability for a charge”. The phrase “terms and conditions” are not synonymous with a contract”

 

10.9 The CWS Para 30 and 31 make reference to the VCS vs Ward. This case is distinguishable from the VCS appeal which involved a no stopping sign. This is unrelated to parking. As Judge Harrice QC observed in the court of Appeal case of Jopson vs Homeguard 2016 (Exhibit N), Paragraph 28:

 

“In the circumstances, it is not necessary to deal with arguments about the Unfair Contract Terms, and the factual circumstances are quite different from those in Parking Eye v Beavis [2015] supra. Inter alia, in that case the agreed motorist was not exercising a right ancillary to a right of way, and clearly was parking.”

 

10.10 The photo of sign (Exhibit C1) provided by the claimant in this case is titled with “Parking Conditions” – there is no mention of any prohibition related to stopping on this sign.

 

10.11 UKCPM did not provide clear signage thus also differentiating it from the VCS vs Ward and the Beavis vs Parking Eye case. Therefore, there is no contractual license. Judge Moloney QC observed in the Court of Appeal case of Ransomes vs Anderson 2014 (Exhibit L), in Paragraph 15:

 

“Although the doctrine of acceptance by conduct, on the basis of the terms set out on a notice in a parking place or similar zone, is an obviously right, valuable and useful one, it is an essential minimum that the contract be sufficiently simple and clear that the motorist is in no doubt before he performs the accepting conduct what he is letting himself in for.”

 

10.6.3 This appeal cause carries far more persuasive weight than VCS vs Ward in which the Defendant did not adduce Ransomes vs Anderson 2014 (Exhibit L) or Jopson vs Homeguard 2016 (Exhibit N), or even appear at the appeal hearing to argue his side.

 

 

11. Claim that an internet defence is being used

 

11.1 Para 12 of the claimant’s witness statement is suggestive of their intent to disparage the defendant and coerce them into making unwarranted payments. Hence their patronising statement under the heading “Internet Defence”. It appears that they would rather the defendant is ignorant of their rights so they can purse unwarranted claims from which they can profiteer. It is illogical from the claimant to expect denial from the court of the defendant’s statement on this premise.

 

11.2 It is stated in Article 6 of the human rights act, para 1: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

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12. Claimant Witness Statement is misleading

 

12.1 CWS Paragraph 27 is misleading. There is no mention in the Defence that the Defendant was in receipt of the letter before claim which is not even mentioned here. In fact, the Claimant has misquoted the Defence Statement which actually reads “Subsequent to receipt of the court claim letter, as the keeper at the time of the alleged contravention. I carried out some research and visited the site in question.”

 

12.2 I cannot understand how the Claimant reached the conclusion that the Defence statement infers that a letter before claim was received.

 

13 Claimant attempts at ‘double recovery’

 

13.1 The Claimant is trying to recover more that the initial involve price of more than £100. This is forbidden in POFA regulations (Exhibit Q), Schedule 4, paragraph 4(5):

 

“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”

 

13.2 The Judgement for VCS Ltd v Davies September 2019 (Exhibit F1) supports this.

 

“Upon it being recorded that District Judge Jones-Evans has over a very significant period of time warned advocates appearing on behalf of Claimants in many cases of this nature before this court that their claim for £60.00 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.''

 

13.3 The Judgement for UKCPM vs Esplanade 2018 (Exhibit F2) supports this:

 

“The claim is struck out as an abuse of process.

Reasons

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 Protection of freedoms act POFA 2012 Schedule 4 nor with reference to the judgment in Parking Eye v Beavis. It is an abuse of process for the Claimant to issue knowingly inflated claim for an additional sum which it is not entitled to recover

This order has been made by in the court of its own initiative without a hearing pursuant to Rule 3.3(4)of the Civil Procedure Rules 1998 and a party affected by the order may apply to have it set aside varied or stayed not more than 7 days after the date the order was served upon that party.”

 

14 Request for Defendant costs

 

14.1 The Defendant had no choice but to serve a fully comprehensive and inclusive defence in response to the claim and therefore should be used in determining the facts.

 

14.2 The Defendant’s view is that the witness statement is merely a ‘copy and paste’ exercise by the Claimant by reason that several paragraphs are not related to this case and propagates irrelevant points.

 

14.3. The Claimant seeks to apportion liability to the Defendant for not replying to their letters or identifying the driver, and suggests that this conduct caused the Claimant costs.

 

14.4 The Defendant has demonstrated to the Court that the Claimant has been wholly unreasonable. It is also argued that the conduct of the Claimant cannot be overlooked and has therefore put forward a statement of costs in accordance with CPR 27.14(g) for consideration by the Court.

 

14.5 The Defendant would like to ask that the case is dismissed with no relief from sanctions and that my full costs are granted on the indemnity basis, including (as well as my ordinary costs for attendance) my hours of time at the Litigant in Person rate. The full schedule of costs is attached.

 

Finally, having outlined my witness statement with supporting evidence, I encourage the court to strike out the claims against the Defendant as there are no sound grounds of claim.

 

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.