Gladstone/ES Parking - County Court Claim Form

el_patron

Hi All
I received a parking ticket from ES Parking Enforcement. The reason stated on the notice was "Leaving a site whilst in a 'Free Parking whilst in Premises only' Car Park". I had no idea what this means and the rest of the notice was also so inadequate. It didn't contain a picture of the car, and the picture of the sign is so far out all you can see is a white board.  It also didn't contain the times the car was parked, just an "incident time". The driver was in the car park for about 10 to 15 minutes and never saw any signage. ES aren't a member of the BPA so I decided just to ignore it.

I've now received a County Court Claim Form from Gladstone. They sent 1 previous letter but I was at a term time address so didn't see it until after the claim form. The LBC also didn't follow the necessary protocol.

I was wondering what my best defence would be? Obviously the lack of clear signage is one, but would that then be for driver liability?
Also is it worth making a counter claim for harassment?

Many Thanks

el_patron

Sorry I forgot to add they're also asking for an extra £60, I've read in places this is unlawful

Umkomaas

Please read the NEWBIES FAQ sticky, second post, which provides professional advice and guidance on dealing with a court case. 

You also need to send ES a SAR asking for copies of all correspondence sent to you, and copies of all photographs they have recording the incident they allege (which will flush out whether they have any of anyone leaving your vehicle and leaving the site).  Start building your evidence portfolio. 

Also is it worth making a counter claim for harassment?

Absolutely no mileage in that whatsoever. Forget it. 

KeithP

What is the Issue Date on your County Court Claim Form?

el_patron

KeithP said:

What is the Issue Date on your County Court Claim Form?

The issue date was 9th March, I've made an AoS online but with the whole Covid situation I'm not sure how it will affect the timetable/deadlines.

Umkomaas

el_patron said:

KeithP said:

What is the Issue Date on your County Court Claim Form?

The issue date was 9th March, I've made an AoS online but with the whole Covid situation I'm not sure how it will affect the timetable/deadlines.

You must work to the deadlines as at any other 'normal' time, as a lot of this stuff is automated, a failure to meet the deadlines is very likely to see you receiving a judgment in default against you, with hardly anyone in the chain lifting a finger. 

KeithP

el_patron said:

KeithP said:

What is the Issue Date on your County Court Claim Form?

The issue date was 9th March, I've made an AoS online but with the whole Covid situation I'm not sure how it will affect the timetable/deadlines.

I'm going to assume that you filed an Acknowledgment of Service some time after Friday 13th March. Please confirm.

With a Claim Issue Date of 9th March, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Tuesday 14th April 2020 to file your Defence.

That's over two weeks away. Plenty of time to produce a Defence, but please don't leave it to the last minute.

To file a Defence, follow the guidance in this post:

https://forums.moneysavingexpert.com/discussion/comment/76880595#Comment_76880595

Guidance on creating a Defence is also in that thread - in the first post on that thread.

Don't miss the deadline for filing a Defence.

el_patron

Thanks for all your help guys its much appreciated. 

KeithP said:

I'm going to assume that you filed an Acknowledgment of Service some time after Friday 13th March. Please confirm.

Yes I filed it on the 23rd

D_P_Dance

Leaving site breach of contract claims rarely succeed. in court.  They may well be contrary to The Human Rights Act, and also constitute an unfair term in a  consumer contract under The Consumer Rights Act 2015. 

Have Gladstones added an unlawful £60, if so read this

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

and  complain to the SRA

https://www.sra.org.uk/

Nine times out of ten these tickets are scams, so consider complaining to your MP, it can cause the scammer extra costs and work, and has been known to get the charge cancelled.

Parliament is well aware of the MO of these private parking companies, many of whom are former clampers, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, persistent offenders denied access to the DVLA database and unable to operate.

Hopefully, when life gets back to normal, it will become impossible for those scammers who are left to continue their vile trade, but until this is done you should still complain to your MP, citing the new legislation.

http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted

Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.

 n 

el_patron

Hi, my draft defence is post below, any feedback would be greatly appreciated.

The driver claims they never saw any signs when entering car park, I've had a look on google maps and there's a sign on the passenger side as you enter which states "Max Stay 90 Minutes" and then in smaller font see terms and conditions.. The car was only in the car park for about 10 minutes so didnt breach the max stay.

 

el_patron

________________________________

DEFENCE

_________________________________

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

 

2. The facts are that the vehicle, registration XXXX, of which the Defendant is the registered keeper, was parked on the date in question in a marked bay for approximately 10 minutes. However, the defendant was not the driver on the occasion mentioned in the Particulars of Claim and has no lawful obligation under any applicable law to name the driver and subject them to the level of harassment the Defendant has suffered from this Claimant and their notorious agents. 'Keeper liability' where the keeper was not the driver on private land, is not an automatic right. It is dependent upon the Claimant fully complying with the statute, including issuing prescribed documents served in time/with mandatory wording, which the Claimant has failed to do so.

 

3. In this respect and in all other facts - including the lack of prominence and clarity of the signage and the small font used to hide the onerous terms, the Supreme Court case of Parking Eye Ltd v Beavis [2015] UKSC 67 ('the Beavis case') is fully distinguished.

 

4. The Claimant has failed to issue a Letter Before Action compliant with Pre-Action Protocol for Debt Claims (paragraphs 3.1(a)to (d), 5.1 and 5.2 or provide any details of the claim prior to issuing a claim at court. As such, the Claimant has failed to comply with the Practice Direction – Pre-Action Conduct and Protocols, para 6 (a) & (c).

 

5. The Particulars of Claim state that the Defendant was the “driver/keeper of the vehicle”. These assertions indicate that the Claimant has failed to identify a Cause of Action and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16, 7.5 as there is nothing which specifies how the terms were breached.

 

6. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, 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.

 

7. Further and in the alternative, it is denied that the Claimant’s signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. It is submitted that the terms were confusing and contradictory to other signage in the car park and were sparsely located on unremarkable signs which were far from prominent.

 

8. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. The signage is also positioned in such a way that they are easily missed or unnoticed. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

 

9. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

 

10. The Notice To Keeper does not specify the period of parking, or provide a picture of the vehicle in question as required by the Protection of Freedoms Act 2012, Schedule 4, Section 8 (2)(a)&(b) and therefore cannot hold the keeper liable.

 

11. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. Further, the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is no more than £100. The claim includes an additional £63, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

 

12. Further, the purported added 'costs' are disproportionate, vague and in breach of the CRA Schedule 2 'terms that may be unfair'. This Claimant has arbitrarily added an extra 63% to the parking charge, in a double recovery attempt that has already been exposed and routinely disallowed by many Courts in England and Wales. It is astounding to this Defendant, that this has been allowed to continue unabated for so many years. Even if most courts are routinely disallowing the added £60 'costs' of all parking charge cases now (and it is clear from online reports that almost all courts are disallowing that sum) this is not enough.

 

12.1. It is especially unacceptable that parking firms are still filing claims including what they know is a tainted and unrecoverable sum, 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 judgement 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, including 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.''

 

12.2. 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 judgement 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. Cases summarily struck out in that circuit, included BPA members using BW Legal's 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...''

 

12.3. 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.

 

12.4. That N244 application to try to protect the cartel-like position of some of the 'bigger player' parking firms, was placed before the area Circuit Judge and a hearing was held on 11th November 2019, with other parking charge cases in that circuit remaining struck out or stayed, pending the outcome. The Defendants successfully argued on points including a citation of the CRA 2015 and the duty of the court to apply the 'test of fairness' to a consumer notice (a statutory duty that falls upon the courts, whether a consumer raises the issue or not). All three points below were robustly upheld by District Judge Grand, sitting at the Southampton Court, who agreed that:

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

(b) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was unconscionable, due to the Beavis case paras 98, 193, 198 and 287.

(c) The Claimant knew or should have known, that £160 charge where the additional 'recovery' sum was in small print, hidden, or in the cases before him, not there at all, is void for uncertainty and in breach of the CRA, Schedule 2 (the 'grey list' of terms that may be unfair) paragraphs 6, 10 and 14.

 

12.5. At the hearing, the Judge refused their request to appeal. 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 judgements 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 judgement of a knowingly inflated amount. So I conclude by saying that I dismiss the application to set aside Judge Taylor’s ruling.''

 

12.6. 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.

 

12.7. 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.''

 

13. In December 2019 in a different Court circuit, Deputy District Judge Joseph sitting at Warwick County Court summarily struck out another parking ticket claim. The Judge mentioned the POFA 2012 and 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 Order without a hearing, the Judge stated that he had ''considered S71(2) of the CRA 2015 for the fairness of the contract terms and determined that the provision of the additional charge breached examples 6, 10 and 14''.

 

14. The Defendant requests that this Court - using its case management powers pursuant to CPR 3.4. - recognises its duty to consider the CRA 2015 in the same way as the Southampton and Warwick courts recently have done, and opts to summarily strike out this claim due to the Claimant's flagrant disregard for consumer rights as set out in statute.

 

15. 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 POFA and the CRA 2015, and that relief from sanctions should be refused.

 

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

 

17. 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.