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

Fruitcake

If/when you receive the scammers WS and exhibits, please post them here for the regulars to pick apart.

Hold off sending yours for as long as possible but obviously without missing the court's deadline. Ideally you want to see the scammers WS so you can comment on it in yours if you get the chance.

Coupon-mad

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

There isn't one.  Transcripts cost a lot of money!

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

Yes.

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

Things like PCM v Bull, yes.  Beavis case, no.  But a pic of the Beavis sign next to their sign is good evidence.

I notice you are DENYING being the driver - are you sure?  You do know not to use that word if it's a lie (just checking you iunderstand not to use that word when you mean 'I don't know who was driving and there is no identification').

swooshy

Claimant WS is as follows...

I, Jack Chapman, OF 49 Station Road, Polegate BN26 6EA WILL SAY AS FOLLOWS:

1. I am the Employee of the Claimant Company ('my Company') and I am duly authorised to make

this statement on its behalf. The facts and matters set out in this statement are within my own

knowledge unless otherwise stated and I believe them to be true. Where I refer to information

supplied by others, the source of the information is identified; facts and matters derived from

other sources are true to the best of my knowledge and belief.

 

2. Exhibited to this Witness Statement at 'GSL1' are the following documents which my Company

wishes to rely upon;

 

(i)The Agreement authorising my Company to manage parking on the Site (as

described therein and hereinafter referred to as 'the Site);

(ii) The Sign (the Contract');

(iii) The Site Plan;

(iv) Notices;

(v) Photographs of the incident.

 

3. The Defendant is liable for a parking charge relating to the parking of a vehicle on the Site in a

manner so as to incur the same pursuant to the Contract (i.e. the Sign). Set out in the Schedule

below are details of the parking charge;

 

PCN Number

xxxx

xxxx

Date of Charge

xx/02/2019

xx/02/2019

Location

xxxx

xxxxx

Description

No Parking On Access Roads/

Roadways

No Parking On Access Roads/

Roadways

 

4. My Company is and was at all material times involved in the management and enforcement of

parking on private land. We achieve this by way of a variety of schemes including warden-

controlled sites, CCTV and ANPR. We are a member of an accredited Trade Association, the

International Parking Community (IPC) and a signatory to the KADOE (keeper at the date of the

event). As a result, we are audited on a regular basis by both the IPC and the DVLA.

 

5. My Company were instructed to operate a parking management and enforcement scheme at

xxxxx. At all material times we acted with the authority of xxx the Managing Agents of the landholder pursuant to an agreement dated the xxxxxx, the same having chosen to restrict parking on the land that they manage and enforce parking on the land in question.

 

6. There is clear and unambiguous signage at the site which informs users that it is Private Land and

that Terms and Conditions apply. Users are also informed that by entering or remaining on the

land they agree to abide by all the terms and conditions failing which the driver will be liable for

a parking charge of £100. The terms and conditions for parking at the site include inter alia that:

 

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 LINES/ PAVED/ HATCHED OR LANDSCAPED AREAS

 

7. As can been seen from the site plan these signs are repeated throughout the site and there is

clear signage at the entrance to the site with clear road markings showing the private land

begins. The rules of interpretation require simply that the parties knew of their obligations to

one-another. Users of the site are offered the opportunity of using the Land and thereafter

either follow the rules and park for free or park in breach of the rules and agree to pay £100.

 

8. It is the driver's responsibility, to check for signage, check the legality and obtain any

authorisation for parking before leaving their vehicle. The signage on site is the contractual

document.

swooshy

THE BREACH

9. On the xth and the xth February 2019 vehicle registration number x was observed to be

parked and unattended at the site between x y and x y respectively. The photographic evidence shows that on each occasion, the vehicle is not parked within a marked bay but is parked on an access road/roadway and therefore no parking was allowed. The vehicle is therefore parked in clear contravention of the terms and conditions

applicable at the site.

 

10. My Company therefore requested the registered keeper's details from the DVLA under the terms

of the KADOE. These were supplied to us by the DVLA and postal PCNs were sent to the registered keeper, the Defendant in this case on the xth and the xth February 2019. Those notices gave the registered keeper three options:

i. If they were the driver to pay the £100 charge within 28 days (discounted to £60 if paid within 14 days).

ii. If they were not the driver to transfer liability for the charge by supplying the Company with the driver's full name and address.

iii. Appeal the PCN initially via my Company's internal appeals department and if

dissatisfied with the outcome to the IPC.

 

11. Those PCNs were not returned to my office, no payment was received, no appeal was lodged and

liability was not transferred. Further notices were therefore sent to the registered keeper on

xth March 2019. These notices were also not returned to my office and we received no

response.

 

INTERNET DEFENCE

12. My Company would like the Court to note that the Defendant is using a generic defence which

can be found on the internet and it is highly doubtful that the Defendant would understand the

complexities of all the references to the Civil Procedure Rules, the requirements in the

Protection and Freedoms Act (POFA) and in established case law, which is often the case when a

Defendant is questioned about such references at Court. Therefore, everything that the

Defendant has outlined is not accepted and denied by my Company.

 

THE DEFENCE

Not the Driver

13. The Criminal Case of Elliott v Loake 1983 Crim LR 36 held that the Registered Keeper of a vehicle

may be presumed to have been the driver unless they sufficiently rebut this presumption. To

date the Registered Keeper has been invited on numerous occasions to identify the driver, yet

has failed to do so. The Court is therefore invited to conclude it more likely than not that the

Registered Keeper (i.e. the Defendant) was the driver.

 

14. In the alternative, if the Court is not able to infer that the Defendant was the driver then the

Defendant is pursued as the Registered Keeper of the vehicle pursuant to Schedule 4 of the

Protection of Freedoms Act 2012 ('the Act') Paragraph 4(1) which states: "The creditor has the

right to recover any unpaid parking charges from the keeper of the vehicle".

 

15. Paragraph 2 of the Act states that; the "keeper" means the person by whom the vehicle is kept

at the time the vehicle was parked, which in the case of a registered vehicle is to be presumed,

unless the contrary is proved, to be the registered keeper. The relevant Notices were sent to the

Defendant in accordance with the Act and the Registered Keeper (the Defendant) failed to

nominate who was driving the vehicle prior to these proceedings which is required under

paragraph 5(2) of the Act.

 

Particulars of Claim

16. The Claim is issued via the County Court Business Centre which is a procedure specifically

provided for in the Civil Procedure Rules. This only allows the Claimant to insert brief details of the Claim. In any event, I can confirm that the Particulars of Claim contained sufficient information for the Defendant to be aware of what the claim relates to.

 

17.I refer to paragraph 5.2A of Practice Direction 7E which states that "the requirement in paragraph 7.3 of Practice Direction 16 for documents to be attached to the particulars of contract claims does not apply to claims started using an online Claim Form".

Further, prior to proceedings being issued, the Defendant was sent notices in accordance with the Act and a Letter Before Claim. As such, the Defendant would have been aware of the charge which are the subject of this claim.

 

No contract

18. My Company relies on the case of Parking Eye -v- Beavis [2015], in which it was accepted as an

established principle that a valid contract can be made by an offer in the form of the terms and

conditions set out on the sign, and accepted by the driver's actions as prescribed therein. The

signs on the Land are clear and unambiguous. By parking in the manner in which they did, the

charges were properly incurred.

 

Serial Litigant

19. The Defendant has submitted the Claim against him is a 'robo-claims'. It is denied that my

Company is a serial litigant or uses the small claims track as a form of aggressive automated debt

collection. My Company is a member of the IPC which is an accredited trade association within

the parking sector, authorised to issue charges and seek recovery of unpaid charges via the Court

process.

 

20. The Defendant failed to engage with Gladstones who were instructed to recover the debt, when

a letter before claim was sent. The letter before claim invited the Defendant to make payment

of the charge or engage with Gladstones to narrow the issue in dispute. I confirm neither my

Company nor Gladstones received a response to the letter before claim and this led to

proceedings being subsequently issued due the Defendant's failure to adhere to the aims of the

Pre-Action Protocol for Debt Claims.

swooshy

Consumer Credit Act 1974

21. It is denied that the contract constitutes a 'consumer credit contract' within the meaning of the

Consumer Credit Act 1974. In particular:

 i)                    That the contract is a credit agreement by which the creditor provides the debtor with

credit amount;

ii)                   That the contract includes a cash loan or any other form of financial accommodation;

iii)                 That a running-account credit facility was offered or a fixed-sum or any other under

a credit agreement whereby the debtor is enabled to receive credit (whether in one

amount or by instalments).

 

22. In view of the above, it is my Company's position that the Defendant's submissions in respect of

the Act do not apply as no credit facilities were offered and, on this basis, there was no

requirement to serve a default notice.

 

No Signage

23. The parking contravention occurred in March 2019 and on the basis of the Defendant's

submissions, he returned to the site in or around October/November 2019 after he received

Gladstones' letter before claim. Therefore, any submissions the Defendant makes in relation to

the Site and signage are not relevant as they relate to after the event.

 

24. My Company rejects any argument that the Defendant did not see the signs at the material time.

It is evident from the site plan that there are sufficient signs. Further, the photographs evidence

the Defendant parked adjacent to one of my Company's signs and therefore, we can think of no

reason as to why they would not have been seen.

 

25. What is more, without concession, even in the unlikely event the Defendant didn't see the signs

submit they ought to have done so. As Lord Justice Roch observed in the Court of Appeal case of

Vine v London Borough of Waltham Forrest 2000:

 

"Once it is established that sufficient and adequate warning notices were in place, a car driver cannot be heard to say that he or she did not see the notice. Were that to be the law, it would be too easy for car drivers who trespass with their cars to evade the only method land owners have of stopping the unauthorised parking of cars in parking spaces or parking areas on their property".

26. Signage is prominent throughout the parking area. Signage location, size, content and font has

been audited by the International Parking Community.

 

No Notice was affixed to the Vehicle

27. It is the Defendant's case that the existence of the parking charges only became apparent upon

receipt of the Court claim. This is contradictory to paragraph 7) of the Defence in which the

Defendant states "after receipt of the court claim letter...", This suggests that the Defendant was

in receipt of the letter before claim sent by Gladstones notifying him of the intention to

commence Court proceedings.

 

28. In any event, the contract was formed at the time of parking; whether there was a notice on the

windscreen does not impact the Defendant's liability to pay the charge. Pursuant to POFA a

Notice to Keeper was sent in the post thereafter, the Defendant was written to on many

occasions at the same address; as such there is no reasonable explanation as to why they wouldn't have been received. That said, this would not impact the Defendant's liability for the

charges as all such correspondence occurred after liability for the charge arose.

 

29. The Defendant seeks to rely upon the Court of Appeal case of Vine v London Borough of

Waltham Forrest 2000 on the basis that where terms on a parking sign are not seen/known, then

there can be no contract. This is not the case and as set out above Lord Justice Roch observed:

 

"Once it is established that sufficient and adequate warning notices were in place, a car driver cannot be heard to say that he or she did not see the notice. Were that to be the law, it would be too easy for car drivers who trespass with their cars to evade the only method land owners have of stopping the unauthorised parking of cars in parking spaces or parking areas on their property".

 

Distinguishing from Beavis

30. The Defendant infers that this case is distinguishable from the Beavis Case. In this regard, it is my

Company's view that this is not the case. In the VCS case, Judge Saffman found at paragraph 52

the following:

 

"In the particular circumstances of the case, as was the case indeed with Mr Crutchley, the outcome, to the effect that Mr Ward is penalised for stopping for no more than 4 seconds to deal with the unforeseen illumination of his car's engine management light, may be seen to be a harsh one. Nonetheless, that is where the authorities clearly lead me. I really cannot find any basis for a proper distinction between this case and Beavis. It is true that one relates to Overstaying in the car park for almost an hour and the other relates to stopping on a road for a matter of seconds but the principles in both are identical. Not only are the principles in Crutchley identical, but the facts are almost identical".

31. It is therefore our view that the principles of the contractual license in this matter are no more or

less different than in the VCS Appeal and therefore, this matter cannot be distinguished from the

Beavis case.

 

No authority to enforce charges

32. My Company has been instructed to manage and enforce parking at the site pursuant to an

agreement on behalf of the landowner and without concession, the Defendant has failed to

prove otherwise.

 

33. As the contract is between my Company and the Defendant, my Company does have the

authority to enforce parking charges. However, both VCS v HM Revenue & Customs (2013) and

Parking Eye v Beavis (CA 2015) made it clear that a contracting party need not show they have a

right to do what they have promised in the performance of a contract, nor is (in the case of a

parking operator) the agreement between Operator and Landowner of any relevance. In any

event, and without concession, the Agreement exhibited to this Witness Statement evidences

my Company's authorisation to operate / manage the Site on behalf of the Landowner.

34. Lord Justice Lewison commented in VCS v HM Revenue & Customs [2013] EWCA Civ 186:

(1) "The Upper Tribunal's reasoning on this part of the case was that since VCS did not have the right under its contract with the car park owner to grant a licence to park, it could not have contracted with the motorist to grant such a right.  In my judgment there is a serious flaw in this reasoning.

(2) The flaw in the reasoning is that it confuses the making of a contract with the power to perform it. There is no legal impediment to my contracting to sell you Buckingham Palace. If (inevitably) I fail to honour my contract then I can be sued for damages. On the stock market it is commonplace for traders to sell short; in other words to sell shares that they do not own in the hope of buying them later at a lower price. In order to perform the contract the trader will have to acquire the required number of shares after the contract of sale is made. More0ver, in some cases a contracting party may not only be able to contract to confer rights over property that he does not own, but may also be able to perform the contract without acquiring any such right. Thus in Bruton v London and Quadrant Housing Trust [2000] 1 AC 406 a housing trust with no interest in land was held to have validly granted a tenancy of the land to a residential occupier. The tenancy would not have been binding on the landowner, but bound the two contracting parties in precisely the same way as it would have done if the grantor had had an interest in the land.

(3) Thus in my judgment the Upper Tribunal were wrong to reverse the decision of the FTT on the question whether VcS had the power to enter into a contract. Having the power to enter into a contract does not, of course, mean that Vcs necessarily did enter into a contract with the motorist to permit parking'".

Permit

35. The issue of a permit has no relevance to this claim. The parking contravention relates to the

Defendant's failure to park in a marked bay and not on a roadway. Even if the Defendant

Displayed a valid permit, which isn't accepted at present, the vehicle was still parked in breach of

the parking terms and conditions.

swooshy

Sums added to the charge/ double recovery

36. My Company denies the assertion it is seeking more than £100 for the parking charges and is

therefore attempting 'double recovery. My Company seeks its legal costs which are recoverable

pursuant to CPR 27 and CPR 45. In this regard, my Company relies upon CPR 27.14 (2)(a)(i) and

CPR 27.14 (c). My Company is further able to seek recovery of interest of the Claim amount at a

rate of 8% pursuant to S.69 of the County Courts Act 1984.

 

Maximum sum recoverable

37.The Defendant avers the maximum amount recoverable is £100.00. The Sign does indicate the

applicable charge for failing to comply with the terms of the sign is £100.00, however, the sign is

clear that enforcement action may incur additional costs for which the Defendant will beliable

on an indemnity basis. Further, the Letter Before Claim also highlights the amount due may

increase in respect of costs and interest if a claim has to be issued.

Consumer Rights Act

 

38. The Defendant avers the Act apply to parking charges, in this regard we rely on paragraph 104 of

the ParkingEye v Beavis [2015] which found as follows; "104. in our opinion, the same

considerations which show that the £85 charge is not a penalty, demonstrate that it is not unfair

for the purpose of the Regulations." In view of the above, it is our position that the Defendant's

submissions in respect of the Act do not apply.

 

THE CONTRACT

39. The rules of interpretation require simply that the parties knew of their obligations to one

another. The Defendant was offered to use the Land and thereafter either follow the rules and

park for free or in breach of the rules agree to pay £100.

 

40. The Court has concluded that one should consider the obligations imposed by the agreement,

not the terminology used i.e. the agreement's substance, not form.

 

41. The principles in this case are the same as in the Parking Eye case, save that in the Parking Eye

case, as the particular parking rules were different, the rule breached was that motorists must

leave the Site within 2 hours, whereas here, as set out above, the rule was "You Must Park

Wholly Within A Marked Bay. No Parking On Roadways / Yellow Lines/Paved/ Hatched Or

Landscaped Areas.". In that case it was accepted as an established principle that a valid contract

can be made by an offer in the form of the terms and conditions set out on the sign, and

accepted by the driver's actions as prescribed therein.

 

42. The Court may conclude that the Site is managed as follows; the Claimant grants a contractual

license to all; this license allows anyone permission to be on the Site. This is inferred by the

nature of the land and the lack of any general prohibition of entry on the signage. In this regard,

the Defendant (as were all the motorists) was offered to comply with the normal conditions (as

clear on the sign), or park otherwise than in accordance with the normal conditions and incur a

£100 charge. The acceptance was at the point the Defendant decided to park, having read the

sign, and his consideration was the promise to pay £100 for the privilege of parking outside the

normal conditions. The Claimant's consideration is the provision of parking services.

 

43.I refer to the Court to Judge Hegarty's comments in ParkingEye v Somerfield [2011] that "if this

is the price payable for the privilege, it does not seem to me that it can be regarded as a penalty,

even though it is substantial and obviously intended to discourage motorists from leaving their

cars on the car park".

 

44. Alternatively; it could be concluded that, any person can use the Site provided they do not

exceed the licensed activity as set out on the sign and in failing to comply with the license

granted to them, they in turn agree to the Claimant's entirely distinct offer from that license

which is 'to park otherwise than in accordance with the license for a charge of £100'.

 

45. The signage at the Site is clearly visible and the information on the signage informs the driver of

the parking conditions at the location. Signage is prominent throughout the parking area.

Signage location, size, content and font has been audited and approved by the International

Parking Community ("the IPC"). It is the driver's responsibility, to check for signage, check the

legality and obtain any authorisation for parking before leaving their vehicle. The signage on Site

is the contractual document. By parking in the manner in which they did, the charge was

properly incurred.

 

THE CURRENT DEBT

46. My Company is an Accredited Operator of the International Parking Community (1PC) who

prescribes a maximum charge of £100. The Code of Practice states:

 

"Parking charges must not exceed £100 unless agreed in advance with the IPC. Where

there is a prospect of additional charges, reference should be made to this where

appropriate on the signage and/ or other documentation.

 

Where a parking charge becomes overdue a reasonable sum may be added. This sum

must not exceed £60 (inclusive of VAT where applicable) unless Court Proceedings have

been initiated."

 

47. The debt has, as a result of this referral risen as my Company's staff have spent time and

material in facilitating the recovery of this debt. This time could have been better spent on other

elements of my Company's business. My Company believes the costs associated with such time

spent were incurred naturally as a direct result of the Defendant's breach and as such asks that

this element of the claim be awarded as a damage. The costs claimed are a pre-determined and

nominal contribution to the actual losses. Further the Letter before Claim also made it clear the

debt may increase in respect of costs and interest if a claim had to be issued. Due to the

Defendant not paying the charge the matter was passed to my Company's legal representatives,

Gladstone's Solicitors Ltd, who were instructed to commence legal proceedings. The potential

additional costs mentioned above are now sought. Alternatively, my Company does have a right

to costs pursuant to the sign (i.e. the contract).

 

48. In view of the Defendant not paying the charge within the 28 days allowed they are in breach of

the contract. Breach of contract entitles the innocent party to damages as of right in addition to

the parking charge incurred.

 

49. The signage (the contract) states "Where a parking charge becomes due an application may be

made to the DVLA for the keeper's details. Non-payment will result in additional charges which

will be added to the value of the parking charge and for which the keeper will be liable on an

indemnity basis".

 

STATEMENT OF TRUTH

The Claimant believes 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. I can confirm to the Honourable court, that after having approved the contents of this my statement, authorised my electronic signature to be applied to the same.

Jack Chapman

Coupon-mad

We really needed to see a link to the file - the actual WS and evidence - no-one really cares about the template words.  We wanted to see his 'signature' and the evidence - especially the landowner authority.

nosferatu1001

Yep, we need to see the real WS document. 

Le_Kirk

Coupon-mad said:

We really needed to see a link to the file - the actual WS and evidence - no-one really cares about the template words.  We wanted to see his 'signature' and the evidence - especially the landowner authority.

.............. and you need to teach Jack Chapman about split infinitives!

Coupon-mad

And statements of truth:

STATEMENT OF TRUTH
The Claimant believes

No, the signatory is providing the WS, so it should firmly state ''I believe'' and the truth statement shouldn't not be altered like that (@Johnersh first pointed that out).

This bit is new and mental - we never plead this in defence so what IS he on?

Consumer Credit Act 1974
21. It is denied that the contract constitutes a 'consumer credit contract' within the meaning of the Consumer Credit Act 1974. In particular:
 i)                    That the contract is a credit agreement by which the creditor provides the debtor with credit amount;
ii)                   That the contract includes a cash loan or any other form of financial accommodation;
iii)                 That a running-account credit facility was offered or a fixed-sum or any other under a credit agreement whereby the debtor is enabled to receive credit (whether in one amount or by instalments).
 
22. In view of the above, it is my Company's position that the Defendant's submissions in respect of the Act do not apply as no credit facilities were offered and, on this basis, there was no requirement to serve a default notice.