Defence/Witness statement

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Hi,
I understand you are probably bombarded with these sorts of inquiries, but I would really appreciate some advice on this subject if anyone can help.

I received a LBC from Gladstones, in anticipation of a Court Claim Form I have drafted a defence. In your opinion, could anything be added or subtracted? The PCN was issued in 2018 in Essex. Also, reading the WS templates I am unsure of how to relate my defence to a WS.
Any advice would be greatly received.

Thanks in advance

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DEFENCE 

1.      The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that the driver of the vehicle entered into any contractual agreement, whether express, implied, or by conduct, to pay a ‘parking charge’ to the Claimant.

 

2.     In relation to parking on private land, it is settled law from the Supreme Court, that a parking charge must be set at a level which includes recovery of the costs of operating a scheme.  However, this Claimant is claiming a global sum of £160. This figure is a penalty, far exceeding the £85 parking charge in the ParkingEye Ltd v Beavis case. 

 

3.     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.

 

 

4.     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. It is worth noting that in the Beavis case where the driver was known, the Supreme Court considered and referred more than once to the POFA. The courts attention is drawn to Section 4(5) of the POFA.

 

 

5.     Claims pleaded on this basis by multiple parking firms have routinely been struck out ab initio in various County Court areas in England and Wales since 2019.  Recent examples are appended to this defence; a February 2020 Order from District Judge Fay Wright, sitting at Skipton County Court (Appendix A) and a similar Order from Deputy District Judge Josephs, sitting at Warwick County Court (Appendix .

 

 

6.     Applications by AOS member parking firms to try to reach the usually low threshold to set aside multiple strike-out orders have been reviewed by more than one area Circuit Judge, including His Honour Iain Hughes QC, occasioning District Judge Grand at Southampton to hear submissions from a barrister on 11th November 2019. The court refused to set aside the Orders and, tellingly, no appeal was made. 

 

 

7.     The Judge found that the claims - both trying to claim £160, with some ten or more similar cases stayed - represented an abuse of process that ‘tainted’ each claim.  It was held to be not in the public interest for a court to let such claims proceed and merely disallow £60 in a case-by-case basis, thus restricting and reserving the proper application of the relevant consumer rights legislation only for those relatively few consumers who reach hearing stage.  That Judgment is appended (Appendix C).

 

8.     The CCBC and/or the allocated Court Judge is invited to read the Appendices at the earliest opportunity.  The Defendant avers that parking firm claims which add a duplicitous ‘costs’ sum to the parking charge are now easily identified to be unlawful. Such claims are against the public interest, requiring no further assessment, and listing such cases for trial should be avoided.  The Court is invited to exercise its case management powers pursuant to CPR 3.4 to strike out this claim, which is entirely tainted by abuse of process and breaches of the CRA.

 

 

9.     Should this claim continue, the Claimant will no doubt try to mislead the court by pointing to their Trade Association ‘ATA’ Code of Practice (‘CoP’) that now includes a hastily-added clause 'allowing' added costs/damages.  The Defendant points out that the CoP is a self-serving document, written in the parking firms’ interests. Further, the ‘admin fee’ model was reportedly invented by a member of the British Parking Association Board, Gary Osner, whose previous firm, Roxburghe (UK) Limited, folded after being declared ‘unfit’ by the Office of Fair Trading who refused to renew their consumer credit licence due to ‘unfair and misleading’ business practices. Mr Osner states in an article that has been in the public domain since 2018: ''I created the model of ‘admin fees’ for debt recovery because ticket value was so low that nobody would make any money. Parking is business and business is about money, after all.''  

 

10.  The two competing ATAs have engineered a veil of legitimacy to protect this industry for too long.  They are not regulators and have failed consumers so badly, that Parliament is currently working on replacing them with a new CoP overseen by the Secretary of State, following the enactment of the Parking (Code of Practice) Act 2019.  Many courts have now recognised that a predatory parking firm Claimant using unfair and predatory business practices and inflating their claims with false ‘admin fees’, is not the ‘innocent party’ in a dispute.  In stark contrast to the BPA Board member’s mindset, the will of Parliament as set out in the new 2019 Act is very much consumer-focussed, aiming for:  ''good practice...in the operation or management of private parking facilities as appears to the Secretary of State to be desirable having regard to the interests of persons using such facilities.''  

 

 

 

 

 

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 10.  The two competing ATAs have engineered a veil of legitimacy to protect this industry for too long.  They are not regulators and have failed consumers so badly, that Parliament is currently working on replacing them with a new CoP overseen by the Secretary of State, following the enactment of the Parking (Code of Practice) Act 2019.  Many courts have now recognised that a predatory parking firm Claimant using unfair and predatory business practices and inflating their claims with false ‘admin fees’, is not the ‘innocent party’ in a dispute.  In stark contrast to the BPA Board member’s mindset, the will of Parliament as set out in the new 2019 Act is very much consumer-focussed, aiming for:  ''good practice...in the operation or management of private parking facilities as appears to the Secretary of State to be desirable having regard to the interests of persons using such facilities.''  

 

 

11.  In the alternative, the defence is prejudiced and the court is invited to note that, contrary to the Pre-Action Protocol for Debt Claims, the Letter Before Claim omitted evidence of any breach and failed to append the wording of the sign or consumer notice.  Further, the Particulars of Claim are incoherent, lacking specificity re the status of the contracting parties and failing to detail any conduct or liability that could give rise to a cause of action.  There is insufficient detail to ascertain the nature, basis and facts of the case but the sum claimed includes unrecoverable costs/damages and is clearly an abuse of process.

 

 

12.  The court is invited to note that the Beavis case would not have passed had it been pleaded in damages by ParkingEye, and the penalty rule applies to charges that are penal or unconscionable in their construction.  The Supreme Court held at [14] ‘‘where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty.’’  And at [99] ‘‘the penalty rule is plainly engaged.’’

 

13.  Unlike in this case, ParkingEye demonstrated a commercial justification for their £85 parking charge which included all operational costs and was constructed in such a way and offered on such ‘brief and clear’ signs with terms set in the interests of the landowner, that they were able to overcome the real possibility of the charge being struck out as penal and unrecoverable.  The unintended consequence is that, rather than persuade courts considering other cases that all parking charges are automatically justified, the Beavis case facts and pleadings set a high bar that other claims fail to reach.  Unusually for this industry, it is worth noting that ParkingEye do not add false ‘debt letter costs/damages’ to their parking charges and as a consequence, their own claims have escaped any reports of being summarily struck out.

 

 

14.   This Claimant has failed to plead their case, or to set out their terms or construct their contractual charges in the same way as in Beavis and the penalty rule remains firmly engaged.  Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of an overriding legitimate interest in performance extending beyond the prospect of compensation flowing directly from the alleged breach.  The intention cannot be to punish drivers nor to present a motorist with concealed pitfalls or traps, nor to claim an unconscionable total sum.

 

 

15.  Should this poorly pleaded claim not be summarily struck out for any/all of the reasons stated above, the Defendant sets out this defence as clearly as possible in the circumstances, insofar as the facts below are known.

 

 

16.  Gladstones Solicitors had the Defendants most current address as of 07/11/2019 yet continue to send important letters to old addresses which would suggest they have not acted in a reasonable and proportionate manner – Paragraph 2.1(c) of the Pre Action Protocol (PAP) for Debt Claims referred to by Gladstones Solicitors within their Letter Before Claim. Letters were received as redirected mail.

 

17.  Paragraph 3.4 of the PAP for Debt Claims states ‘If the debtor does not reply to the Letter of Claim within 30 days of the date at the top of the letter, the creditor may start court proceedings’. The Letter Before Claim provides 14 days to acknowledge the alleged debt had it been sent to the correct address, which it was not. Thereby, the Defendant was not granted a reasonable time frame in which to form a response.

 

18.  The Defendant had explicitly requested correspondence via email rather than letter or telephone. This was to ensure correspondence was received and in a timely manner.. However they have knowingly continued to send postal letters to old addresses. This shows further disregard for the Pre-Action Procedures and Protocols – Paragraph 3.3 of the PAP for Debt Claims which states, ‘If the debtor has made an explicit request that correspondence should not be sent by post, and has provided alternative contact details, the creditor should use those details….’

 

 

19.  This Letter Before Claim does not comply with the Practice Direction – Pre-Action Conduct and Protocols - Paragraph 6 or PAP for Debt Claims - Paragraph 3. The Letter Before Claim lacks sufficient information/evidence/key documents required to assist in the resolution of the dispute.

 

20.  The Defendant has requested this information in order to gain some clarity of the alleged debt and form a response utilising the Pre-Action Protocol Reply Form at the request of Gladstones Solicitors.

As per the PAP for Debt claims – Paragraph 5, the Defendant has requested the disclosure of documents and disputes the alleged debt due to a lack of specificities entailed within the Letter before claim.

Paragraph 5.2 states ‘If the debtor requests a document or information, the creditor must –

(a) provide the document or information; or

(b) explain why the document or information is unavailable,

within 30 days of receipt of the request’.

 

 

21.  The Defendant has made multiple attempts to engage and communicate with Gladstones Solicitors. The Defendant had been instructed by Gladstones Solicitors that all correspondence be with them rather than their client. As the ’30 days on receipt of request’ expired. The Defendant requested this information directly from the Claimant. This has delayed the possibility of Alternative Dispute Resolution prior to court proceedings as per Practice Direction Paragraph 8 and Paragraph 6 of the PAP for Debt Claims. However, information was finally received by the Claimant.

 

22.  It is denied that the location included prominent signs giving ‘adequate notice’ of the onerous parking charge.

 

23.  The signage declares that the Claimant operates under the Independent Parking Committee (IPC) Code of Practice wherein it states:

 

(a)   Signs must be fixed in place and must be immediately apparent to the Motorist that they convey important information regarding the Private Land upon which they are placed.

(b)   Where a Car Park has a defined entrance, Operators should display entrance signs. Otherwise the signage within the Car Park must be such as to be obvious to the Motorist.

(c)   If parking enforcement takes place outside of daylight hours you should ensure that signs are illuminated or there is sufficient other lighting. You will need to ensure all signs are readable during the hours of enforcement as they form the legal basis of any charge.

 

It is denied The Claimant’s sign is immediately apparent nor obvious to the motorist. Photographic evidence will show, the signage is placed behind the communal bin facility and no signage exists to the entrance of the parking area. The sign is not illuminated and in the hours of darkness completely imperceptible. As such, there are no permanent light fixtures within the parking area, particularly any for the purpose of illuminating signs. Therefore, the Defendant argues that no contract was entered into with the Claimant.

 

24.  The Claimant’s sign has vague/hidden terms and a mix of small font, such that they would be considered incapable of binding any person reading it under common contract law, and would also be considered void pursuant to Schedule 2 of the CRA. Consequently, it is the Defendant’s position that no contract to pay an onerous penalty was entered into with the Claimant, whether express, implied, or by conduct.

 

 

25.  In addition, the disproportionate sanction and ambiguous ‘additional charges’ for a fallacious breach of contract and to recuperate losses on behalf of the Claimant are asserted by the Defendant unjustified as per Schedule 2 of the CRA – Fairness and Transparency.

 

 

26.  The Beavis case is fully distinguished and a more relevant list of binding Court of Appeal authorities with a case involving unclear terms and a lack of ‘adequate notice’ of an onerous parking charge, would include:

(i) Spurling v Bradshaw [1956] 1 WLR 461 and (ii) Thornton v Shoe Lane Parking Ltd  [1970] EWCA Civ 2, both leading examples of the ‘red hand’ rule - i.e. that an unseen/hidden clause cannot be incorporated after a contract has been concluded; and

(iii) Vine v London Borough of Waltham Forest: CA 5 Apr 2000, where the Court of Appeal held that it was unsurprising that the appellant did not see the sign ''in view of the absence of any notice on the wall opposite the southern parking space''.

 

 

 

27.  The Claimant had no legitimate interest issuing the PCN at 0450 as no other vehicle could have had the benefit of the parking space. The Defendant was entitled to park the vehicle in the specified bay, per se, there is no commercial justification and no loss suffered by the Claimant. As such it would be considered an unenforceable penalty.

 

28.  The Claimants sign states:

·       Residents and Visitors must display a valid permit

·       Park fully within a marked bay

·       No parking on double yellow lines

·       No over staying in a time sensitive bay

·       Authorisation to park in an allocated bay must be granted by the landowner

·       No disabled bays are available

 

It is denied that he Defendant has breached any of these terms or conditions. Subsequently, there was no reasonable cause to access the Registered Keepers details.

 

 

29.  This practice does not comply with the Keeper At Date Of Event (KADOE) contract with the DVLA. The Claimant has therefore obtained and processed personal data fraudulently.

 

30.  Where no KADOE contract exists, a V888/3 form is completed and submitted to the DVLA. In which case under Section 55 of the Data Protection Act 1998, it is a criminal offence to unlawfully procure or sell personal information.

 

 

 

 

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 30.  Where no KADOE contract exists, a V888/3 form is completed and submitted to the DVLA. In which case under Section 55 of the Data Protection Act 1998, it is a criminal offence to unlawfully procure or sell personal information.

 

31.  Further and in the alternative, the Claimant is put to strict proof that it has sufficient proprietary interest in the land, or the necessary landowner authorisation, not merely another contractor or site agent not in possession, to issue PCNs under these circumstances and to pursue keepers by means of civil litigation.

 

32.  Onerous terms cannot be imposed upon residents merely by a third party putting some signs up and beginning a predatory charging regime - even with the authority of a site agent - since this would be a derogation from grant.

 

33.  The Defendant maintains that the Claimant cannot:

(i) override the existing rights enjoyed by residents and their visitors, or

(ii) offer parking on more onerous terms than were already granted and agreed in the lease/tenancy Agreement.

 

34.  Parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Defendant will rely upon the judgments on appeal of In Pace v Mr N [2016] C6GF14F0 [2016] and of Link Parking v Ms P C7GF50J7 [2016].

 

35.  It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking parking management. The Claimant has provided no proof of any such entitlement.

 

36.  The Defendant parked legitimately in the bay allocated to the private rental property of which the Defendant resided, and could not be described as ''unauthorised'' (i.e. a trespasser). In any case, a parking operator firm not in possession of the land, cannot recover such damages.

 

37.  There is no evidence that the freeholder authorises this particular Claimant (Companies House lists their company number as ****).  Any purported landowner 'contract' which fails to properly identify the two contracting parties and/or which is in any way redacted (including the signatories, which in some parking claims have been revealed not to be that of the landowner) should be disregarded, along with any undated and/or unsubstantiated records, documents, boundary maps or aerial views, or photos which are capable of manipulation.

 

38.   Further and in the alternative, the Claimant states they are an approved member of the British Parking Association. As such, the Claimant has not complied with the BPA Code of Practice section 9.3 wherein it states;

 ‘You must respect the needs of the emergency services to carry out their duties without your taking enforcement action against them. This means that you must not issue parking charge notices to:

·       vehicles being used by a doctor or other health worker (such as a midwife or district nurse) who is on an emergency call at the address under control,

·       and the vehicle is displaying a BMA badge or authorised Health Emergency badge.

 

39.  The Defendant only utilised their ‘Health Emergency badge’ when on duty. The Defendant had only frequented this location once on duty, a night shift and tending to a patient who was at the End of Life.

 

40.  As there are no specified visitor bays available at the site the Defendant utilised the most appropriate and judicious parking bay which they had authority to use. Subsequently, there was no reasonable cause to access the Registered Keepers details

 

41.   For any or all of the reasons stated above, the Court is invited to dismiss this claim.

 

 

 

1505grandad

Who is the PPC?

"23.  The signage declares that the Claimant operates under the Independent Parking Committee (IPC) Code of Practice wherein it states:"

IPC = International Parking Community

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Hi 1505grandad, 
PPC is New World Facilities East Essex

Coupon-mad

#30 makes no sense, so remove that. 

But defence is not needed yet.  I suspect you can see this cancelled.

If the letters are being sent to an old address still, and you are not yet at claim stage, you need to respond and tell Gladstones that you:
(1) are not living at that address and they must erase it and tell their client the same;
(2) your address for service is xxxx xxx (new address);
(3) you are a NHS keyworker and how dare their client demand from money and intimidate you at such a difficult time;
(4) the incident relates to a location you once attended when on duty displaying your NHS Health Card, on a night shift with a patient who was at an End of Life stage.
(5) if this is a BPA member (which PPC is it then*?) quote the BPA CoP and also send a complaint to the BPA as well, that this parking firm issued a PCN when you were (blah blah as above) and this is a breach of the CoP.


*are you sure it's a BPA AOS member?  No telling us that they display IPC and BPA logos, please...

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H Coupon-mad,
Thanks for that, I have removed no.30.
I have notified them of my change address and have received notification of this in hardcopy. I have also confirmed to them that I am currently working for the NHS. Ive just checked they're website and they seem to have removed the BPA AOS mention but yes they are listed as an IPC member.

beamerguy

New World Facilities East Essex ???? Using the incompetent Gladstones ????  Oh well, each to their own

Clearly New World don't know what happens next ?
You refer to the fake £60 which is abuse of process and you can see what happens to dodgy legal like Gladstones who attempt to scam people.   

If this goes to court you will no doubt win and New World Facilities will pay your costs ?   compliments of a scammer who fakes claims ?
https://forums.moneysavingexpert.com/discussion/6014081/abuse-of-process-district-judge-tells-bwlegal/p1?new=1

You have a LBC which means Gladstones think you are a mug, they think that you don't know about their £60 scam

Here is a letter to reply to the LBC.   
A REPLY FOR GLADSTONES CLAIMS
https://forums.moneysavingexpert.com/discussion/6129744/bwlegal-the-scam/p1?new=1

It does not matter if they reply or not, you have a letter to show a judge

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Hi Beamerguy,

Thank you, these are helpful links. Yes, the infamous Gladstones. I have replied to their LBC, as such, there has been no reply however that was expected.

Coupon-mad

OK, so I repeat what I said before:

 I suspect you can see this cancelled.

You need to respond and tell Gladstones:
(1)  that you are a NHS keyworker and how dare their client intimidate you at such a difficult time;
(2) the incident relates to a location you once attended when on duty displaying your NHS Health Card, on a night shift with a patient who was at an End of Life stage;
(3) quote the IPC CoP at them if there's a section about not ticketing Health workers on call;
(4) you are about to go to the press about this case and you urge them to review this PCN with their client.

D_P_Dance

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.