BigDosser Claim Defence Help - Gladstones. Help appreciated.

BigDosser

Here is my latest version of my WS (just the main body of text) - i think its there or there abouts. Would appreciate any last minute feedback. 

1.     I am XXXXXX, the Defendant in this matter. I will say as follows:

2.     Any documentary evidence to my witness statement will be referred to as Exhibit XX01, XX02 and so on, and can be found at the end of this document.

3.     The Claimant’s legal representatives informed me that their assumption is that the Claimant’s witness will not attend the hearing, presenting a significant disadvantage for me.  If the Claimant’s witness does not attend the court hearing to give evidence, I will be unable to question the witness for the statement’s validity.

4.     On XXXX 20XX, the vehicle with registration XXXX, of which I was the registered keeper at the time, was parked at XXXXX My vehicle was parked in what I understand to be a legitimate parking space. There were no obvious signs or road markings in the vicinity to confirm that parking was restricted in the area where my vehicle was parked.

5.     I will now present the numerous points in which it is the defendant’s belief that the claim should be struck out in its entirety and full costs awarded to the defendant as per the defendants cost schedule. Please see Exhibit XX01.

6.     Invalid Contract

 6.1 The contract, (please see Exhibit XX02 & XX03) is not valid and does not comply with the required rules under the Companies Act 2006, section 44 which states that for a contract to be validly executed "by" the company, it must be signed on the company's behalf by two authorised signatories or a director of the company in the presence of a witness.

 6.2 As you can see in Exhibit XX02 & XX03, the contract provided by the Claimant does not show the contract has been signed according to the Companies Act 2006.

 6.3  In addition, the contract confirms the company contracting is “UK Car Parking Management Ltd” (please see Exhibit XX02 & XX03) which is a different company to the name of the claimant in this case which is “UK Car Park Management Ltd”. The signs (Please see exhibit XX09) displayed in the car park where my vehicle was parked also displays the company name “UK Car Park Management Ltd”, which again is different to the Contract.

 6.4  This leads me to believe, the company contracting “UK Car Parking Management Ltd” is not given any rights to offer parking at the car park at XXXXX where my vehicle was parked. Furthermore, it also leads me to believe that the Claimant, UK Car Park Management Ltd does not have the right to take a motorist to court in their own name.

 6.5  Furthermore, the claimants witness, Jack Chapman in point XX of the witness statement, states that “my company does have the authority to enforce parking charges”. This is despite the fact that the contract clearly states the contract is between XXXXX and “UK Car Parking Management Ltd”. This reiterates the defendant’s belief that the claimant’s company does not have the right to take myself to court and claim any parking charges and also throws doubt on the validity of the entire witness statement provided by the claimant.

 6.6  The defendant invites the court to strike out this claim on the basis the claimant has no right to offer parking at the XXX where my vehicle was parked, and no right to enforce parking charges, and no right to take the defendant to court in their own name.

7.     The Claimants Witness and Witness Statement

 7.1 The witness statement appears to not actually be signed by Mr Jack Chapman, and the Defendant is in the process of making a formal complaint to the Solicitors Regulation Authority (SRA) having come across through research a similar UK Car Park Management Limited (UKCPM) case where this exact same UKCPM 'electronic signature' was exposed by a lay representative a few months ago, to be a facsimile and that UKCPM could not have signed the statement on the date stated under the facsimile signature, or at all.

 7.2 In the two cases in October, Claim Nos. E9GF9M7K and E4GF8M1R, UKCPM -v- Mrs A, before Deputy District Judge Chohan at High Wycombe statements purported to have been signed by 'Jack Chapman', an employee of the Claimant company, could not have been. A comparison of the signatures on these two statements showed that the signatures are 100% identical in every respect, down to the last pixel. It was highly improbable, if not impossible, that any person would sign his name twice in a completely identical manner on two separate occasions, three months apart.

7.3 The complaint to the SRA continued: The only possible conclusion to be drawn from this, is that Gladstone’s have copied, traced, or otherwise forged Mr Chapman's signature, and that in fact Mr Chapman has never seen or signed these statements.

 7.4 The complaint, currently under investigation against Gladstone’s, suggested that the SRA needs to take urgent action on this matter, as it is more likely than not that this is an ongoing and regular practice.

 7.5 In the case of UKCPM v Mrs A on 17th October, 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 witness statement, 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.

 7.6 This case has the same facsimile signature (Please see Exhibit XXXX) from a person who was not a witness. It is a template statement and 'Jack Chapman' from UKCPM is most likely not going to be in court to be cross examined.

 7.7 I am in the process of reporting Gladstone’s solicitors to the Solicitors' Regulation Authority (SRA) in view of the fact that this Witness Statement is a template and almost exact match for others, is not written by any UKCPM employee and that is it unlikely, on the balance of probabilities, that the UKCPM employee whose facsimile signature had been screen-dumped onto the document, has 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. Please see Exhibit XX05.

BigDosser

8.     Abuse of Process

8.1 The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that the driver who parked the vehicle entered into any contractual agreement, whether express, implied, or by conduct, to pay a ‘parking charge’ (over and above the tariff paid) to the Claimant. 

8.2 In relation to parking on private land, it is settled law that for any penalty to escape being struck out under the penalty rule, it must be set at a level which already includes recovery of the costs of operating the scheme. However, this Claimant routinely claims (as in this case) a global sum of £160 per alleged PCN. This figure is a penalty, far exceeding the charge in the ParkingEye Ltd v Beavis [2015] UKSC 67case and falling foul of the binding authority in ParkingEye Ltd v Somerfield Stores [2012] EWCA Civ 1338.In the 2012 case, the Court of Appeal held that £135 would be an unrecoverable penalty but a claim for the PCN itself would not [ref: para 419]. Thereafter, ParkingEye quietly dropped their ’PCN plus indemnity costs ‘double recovery business model and pursued £85 in the Beavis case, where it was determined by the Supreme Court that a significant justification for that private PCN was that it already included all operational costs [ref: paragraphs 98, 193 and 198].

 8.3 It is an abuse of process for a Claimant to issue an inflated claim for a sum which it is not entitled to recover.  The above authorities could not be clearer. Parking firms must choose between a ‘Beavis-level’ charge calculation or loss-based damages. A parking firm cannot seek to plead their claim in both but this Claimant routinely does-and has done in this case.

 8.4 The global sum claimed is unconscionable and it was not shown in large lettering on any consumer signs, and it is averred that the charge offends against Schedule 2 of the Consumer Rights Act 2015 (‘the CRA’), where s71(2) creates a duty on the Court to consider the fairness of a consumer contract.  The court’s attention is drawn (but not limited to) parts 6, 10, 14 and 18 of the list of terms that are likely to be unfair. Even if the Claimant had shown the global sum claimed in the largest font on clear and prominent signs - which is denied - they are attempting double recovery of costs. The sum exceeds the maximum amount which can be recovered from a registered keeper Defendant, as prescribed in Schedule 4, Section 4(5) of the Protection of Freedoms Act 2012 (‘the POFA’).

 8.5 The Claimant’s notices/demands vaguely allude to unidentified sums being claimed ‘on an indemnity basis’. Such imprecise terms would be considered incapable of binding any person reading them under common contract law, and would also be considered void pursuant to Schedule 2 of the CRA. Claims pleaded on this basis by multiple parking firms have routinely been struck out ab initio in various County Court areas. Recent examples include multiple Orders from District Judge Fay Wright sitting at Skipton County Court, with similar Orders seen in the public domain from Deputy District Judge Josephs sitting at Warwick County Court, District Judge Taylor at the Isle of Wight and Deputy District Judge Colquhoun sitting at Luton County court in March 2020. All were summarily struck out, solely due to parking firms falsely adding £60 to inflate the claim.

 8.6 This matter was recently determined by District Judge Grand, sitting at Southampton County Court on 11 November 2019, where the Claimants sought to have multiple strike out Orders set aside. The application was dismissed, and a copy of the Approved Judgment is included in the Exhibits section at the end of this witness statement (Please see Exhibit XX07). No appeal was made in that case, where the learned Judge found that £160 parking claims represented an abuse of process that ‘tainted’ each case.

 8.7 This matter was also determined by District Judge Wright, sitting at the County Court at Skipton on 13th February 2020, who ordered that the claim is struck out as an abuse of process due for the claimant to issue a knowingly inflated claim for an additional sum in which it was not entitled to recover. Please see Exhibit XX06.

 8.8 The Claimant will no doubt try to mislead the court by pointing to a clause in their own Trade Body's CoP that appears to 'allow' added sums by way of damages, as if somehow that supports the false sum that taints this claim.  The Defendant reminds the court that the IPC CoP is a self-serving document, written by and for the parking firms themselves.  Until a relatively recent re-shuffle of Companies House officers, the IPC Trade Body shared directors with the solicitor firm, Gladstone’s in a clear conflict of interests. 

 8.9 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 Defendant is of the view that this Claimant knew or should have known that an exaggerated claim in excess of £100 for a parking charge which cannot have the same costs added again, is disallowed under the Beavis case, the POFA and the CRA.  

 The Court is invited to summarily strike out the entire claim, as other Court circuits continue to do. 

9.     No Grace Period

 9.1  The British Parking Association’s guidelines 13.1 states that if the driver is parking without permission, or at locations where parking is not normally permitted they must have the chance to read the terms and conditions before they enter into the ‘parking contract’. If, having had that opportunity they decided not to park and chose to leave the car park the operators must provide them with a reasonable grace period to leave, as they will not be bound by the operator’s parking contract. The BPA guidelines further state that in such instances the grace period must be a minimum of 10 minutes. 

 9.2  The International Parking Community’s code of practice Section B Paragraph 15.1 states that drivers should be allowed a sufficient amount of time to park and read any signs so they may make an informed decision as to whether or not to remain on the site. Paragraph 15.2 states that drivers must be allowed a minimum period of 10 minutes to leave a site.

 9.3  The Claimant did not offer the sufficient grace period to the driver which they have confirmed in their own witness statement (point 9), where they state “XXXX was observed to be parked and unattended at the site between 1X:02 and 1X:08”, which is within the 10-minute grace period as outlined in point 11, and therefore a parking contract was not entered. Please see Exhibit XX08.

10.     Assumption of the Driver­­

10.1 The claimant has assumed that myself, the defendant and registered keeper of the vehicle was also the driver of the vehicle, however they have failed to prove this, and have used an irrelevant Criminal case of Elliott v Loake 1983 to support this claim.

 10.2 In point 10 of the claimants witness statement, the claimant alleges that a Notice to Driver was placed on the windscreen of the vehicle, but has not provided evidence of this. The Claimants evidence does not show that a Notice to Driver was placed on the windscreen of the defendant’s vehicle, and therefore it can only be concluded that a notice to driver/PCN was not affixated to the vehicle. Therefore, in accordance with the Protection of Freedoms Act 2012, the defendant, as registered keeper, cannot be held to account for the alleged debt of the driver.

 11.     Signage

 11.1 The claimant has failed to prove that the defendant’s vehicle was parked in an area where signs are visible and has failed to show the true location of the signs in relation to the defendant’s vehicle. They have shown in their evidence a rear shot of the defendant’s vehicle, in which a large coach can be seen. It is likely, that If they were any signs in the area, that this large coach would have obscured the view of any parking signs. They have failed to prove that a parking sign was in a reasonable distance to the defendant’s vehicle, and therefore it is denied that any signage was capable of creating a legally binding contract.

 11.2 The claimant has also included a close-up screenshot of a parking sign, which is not timestamped and therefore cannot be proven to be in place at the alleged time of the charge. Furthermore, the claimant has provided a “google maps” screenshot of the area, and has manually added green dots onto the map image, to assumingly insinuate the locations of parking signs and the defendant’s vehicle – this does not prove anything, and is the opinion of the defendant that this is a deliberate attempt to mislead the court. Please see Exhibit XX04.

 

This therefore confirms my earlier statement in which the claimant has failed to prove the locations of the signs in relation to the defendant’s vehicle. It is therefore again denied that the signage was capable of creating a legally binding contract and that the evidence put forward by the claimant was a deliberate attempt to pressure and manipulate the defendant into paying the inflated charge.

 12. I would like the Court to strike out this claim in its entirety and consider awarding my full costs (see Exhibit XX01 for my cost schedule). It is my position that the multiple points raised above, including an invalid contract, the purported witness statement which is a false instrument and a deliberate attempt to mislead the court, the clear abuse of the court process shown by the claimant, the failure to recognise any grace period, the assumption that the registered keeper was the driver, the lack of evidence of any signage and the deliberate attempt to create false evidence by adding dots to a site image in order to manipulate and pressure the defendant, as well as misleading the court again, forms a legitimate argument for the claim to be struck out and full costs awarded to the defendant.

 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. I can confirm to the honourable court, that having approved the contents of this, my witness statement, I authorise my electronic signature to be applied to the same.

 

 

BigDosser

Im not a fan of this wording, "I can confirm to the honourable court, that having approved the contents of this, my witness statement, I authorise my electronic signature to be applied to the same." ive tried to search for an appropriate line to explain im using my electronic signature, but couldnt find anything, so copied the witness statement from GS (pains me to say that). 
Would appreciate an alternative. 
Thanks

Coupon-mad

Add the company numbers of both Ltd companies and evidence with screenshots from the CH website, to show that the one the contract was with, is a dissolved company!

https://beta.companieshouse.gov.uk/company/11881490

They share directors but the wrong company is named on the so-called landowner authority.

Therefore the Claimant had no locus standi and could not offer contracts to drivers and nor did they comply with the Code of Practice because they cannot issue PCNs or get DVLA data without having a contract with the landowner.  Limited companies are separate legal entities.  Another entity run by the same directors cannot just adopt the contracts of a dissolved company.

Go for 'unreasonable conduct' costs and ask your Judge to grant your full costs because this claim is not just without merit, it is fundamentally unlawful that this Ltd company Claimant even got your data, or issued PCNs to anyone at this location.

Oh, and put that point waaaaaay before the minor stuff about signatures!

BigDosser

Coupon-mad said:

Add the company numbers of both Ltd companies and evidence with screenshots from the CH website, to show that the one the contract was with, is a dissolved company!

https://beta.companieshouse.gov.uk/company/11881490

They share directors but the wrong company is named on the so-called landowner authority.

Therefore the Claimaint had no locus standi and could not offer contracts to drivers and nor did they comply with the Code of Practice because they cannot issue PCNs or get DVLA data without having a contract with the landowner.  Limited companies are separate legal entities.  Another entity run by the same directors cannot just adopt the contracts of a dissolved company.

Go for 'unreasonable conduct' costs and ask your Judge to grant your full costs because this claim is not just without merit, it is fundamentally unlawful that this Ltd company Claimant even got your data, or issued PCNs to anyone at this location.

Oh, and put that point waaaaaay before the minor stuff about signatures!

Thanks will update my WS accordingly. Any other feedback/changes?

Coupon-mad

Im not a fan of this wording, "I can confirm to the honourable court, that having approved the contents of this, my witness statement, I authorise my electronic signature to be applied to the same." ive tried to search for an appropriate line to explain im using my electronic signature, but couldnt find anything, so copied the witness statement from GS (pains me to say that). 

You don't need to say anything about that.  The PPC has done it to try to stop people talking about their robo-claim solicitors writing the WS themselves.  That doesn't apply to a litigant in person who has clearly written it themselves.  If we recommended that was needed in a WS, the NEWBIES thread section about WS stage would say it - check back and re-read it and you will notice that it doesn't!

Your WS looks good, except remove this and don't tell us (never tell us...) that some stupid logo on a sign tells you that UKCPM are in the BPA AOS scheme as well as the IPC (please...it's is covered in the first post of the NEWBIES thread and UKCPM are mentioned specifically):

9.1  The British Parking Association’s guidelines 13.1 states that if the driver is parking without permission, or at locations where parking is not normally permitted they must have the chance to read the terms and conditions before they enter into the ‘parking contract’. If, having had that opportunity they decided not to park and chose to leave the car park the operators must provide them with a reasonable grace period to leave, as they will not be bound by the operator’s parking contract. The BPA guidelines further state that in such instances the grace period must be a minimum of 10 minutes. 

Fruitcake

To support your point about the contract not conforming to S44 of the Companies Act 2006, I suggest you include the judgement from this case where the judge said a person could not have signed the agreement because she was not a director of the owner.
The post you want was by Surferone at 4.53 on 7/7/20.

District Judge Simon Middleton in Truro County Court, 3/7/20, claim number F1DP92KF.

https://forums.moneysavingexpert.com/discussion/6024485/lbc-stage-but-who-is-my-parking-contract-with/p4

BigDosser

Thanks all, ive submitted my witness statement to the courts and to Gladstones via email. 
I did notice on previous emails from Gladstones, they say at the bottom they do not accept court documents via email so ill send in the post too to make sure. 

nosferatu1001

Nope, theyve been accepting service. 

Coupon-mad

They haven't got a choice during lockdown.  That's an old footer note from pre-pandemic.