Parking Ticket - Gladstone Solicitors

beamerguy

Suggest you read this thread to understand the scam you are involved with and Gladstones
IT IS A SCAM
https://forums.moneysavingexpert.com/discussion/6272230/exposing-the-scams-of-the-ias-the-ipc-and-gladstones-all-run-by-william-hurley-john-davies#latest

And then read what happens to these scammers
https://forums.moneysavingexpert.com/discussion/6103933/abuse-of-process-thread-part-2

manutd99

Please see defence. It is quite big (14 pages). so added to onedrive. Please see link
https://1drv.ms/w/s!As8q9p5Hc2NCjSWeSHJTlFoT6-Vb?e=53bAku

Hopefully link works and people are ok with links

KeithP

manutd99 said:

Please see defence. It is quite big (14 pages). so added to onedrive. Please see link
https://1drv.ms/w/s!As8q9p5Hc2NCjSWeSHJTlFoT6-Vb?e=53bAku

Hopefully link works and people are ok with links

That doesn't look like a Defence we normally see here.

Did you look at the template Defence I directed you towards on 22nd May?
Why did you decide not to use it as a basis for your Defence (note: not Defence Statement).

manutd99

KeithP said:

manutd99 said:

Please see defence. It is quite big (14 pages). so added to onedrive. Please see link
https://1drv.ms/w/s!As8q9p5Hc2NCjSWeSHJTlFoT6-Vb?e=53bAku

Hopefully link works and people are ok with links

That doesn't look like a Defence we normally see here.

Did you look at the template Defence I directed you towards on 22nd May?
Why did you decide not to use it as a basis for your Defence (note: not Defence Statement).

Did look at the newbies post. Is it too long? Will it be ok?

KeithP

manutd99 said:

KeithP said:

manutd99 said:

Please see defence. It is quite big (14 pages). so added to onedrive. Please see link
https://1drv.ms/w/s!As8q9p5Hc2NCjSWeSHJTlFoT6-Vb?e=53bAku

Hopefully link works and people are ok with links

That doesn't look like a Defence we normally see here.

Did you look at the template Defence I directed you towards on 22nd May?
Why did you decide not to use it as a basis for your Defence (note: not Defence Statement).

Did look at the newbies post.

Did you see this in the second post of the NEWBIES thread?...

You can see that even your Statement of Truth is way out of date.

Did you create your Defence from scratch, or is it based on something you found elsewhere?

I must say that it is an unusual style - never seen one like that before.

manutd99

I can amend statement of truth
It was not started from scratch. Although I know I was advised not to use my old one but thought use that as a starting base and amend accordingly. Was similar to a defence posted by Loadsofchildren123 who I believe was a solicitor
Should I leave as is and amend statement or create a new one?

Redx

14 pages is far too long !!
A typical defence should fit on one or both sides of one sheet of A4 paper and is typically 18 to 25 paragraphs

You don't seriously expect us to read and check 14 pages of text !! Do you ??

This is a parking charge notice dispute over a couple of hundred pounds , not a murder case !!

manutd99

I have taken the feedback onboard. I have used one of the templates defence and added some paragraphs. Please see new defence in link below. Anything I should add or delete.
Would appreciate feedback. Thanks
https://1drv.ms/w/s!As8q9p5Hc2NCjScmzh4Gi_TfdNMV?e=0MD7dk

Le_Kirk

Straight away I can see you have used "I" whereas it should be "the defendant".  Check through your defence for errors like this and repost.

manutd99

Not sure if people prefer links or posting here. Il post directly - Part one which I amended to suit me - My wording

IN THE COUNTY COURT

Claim No.: XXXXXXXX

Between

(full name of parking firm, not the solicitor!) 

(Claimant) 

- and -  

Defendant’s name from N1 claim (can’t be changed to someone else now)                        

 (Defendant)

____________________

DEFENCE

____________________

1.           The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that a contract was entered into - by conduct or otherwise - whereby it was ‘agreed’ to pay a ‘parking charge’ and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue, nor to form contracts in their own name at the location.

 

The facts as known to the Defendant:

2.           It is admitted that the Defendant was the registered keeper of the vehicle in question but liability is denied. 

3.           There is no direct evidence produced by the Claimant that the defendant was the driver and there is no evidence for the court to infer that the defendant was. There is no case law to support the proposition that there is a presumption (rebuttable by the Defendant) that the keeper was the driver (a reverse burden of proof). R (on the application of Duff) v Secretary of State for Transport [2015] EWHC 1605, CPS v AJH Films [2015] EWCA Civ 1453 and Elliott v Loake do not provide that there is a reasonable presumption that the registered keeper of a vehicle is the driver. This is trite law.

3.1  POPLA’s lead adjudicator Lead Adjudicator Henry Gleenslade, experienced Counsel, states in its 2015 Annual Report that there is no presumption in law that a keeper of a vehicle is its driver, and keepers have no legal obligation whatsoever to disclose the identity of the driver to a private parking company.

3.2  As shown on Pages 12 and 13 of AC1 the Barrister, Parking Law Expert, and POPLA Lead Adjudicator from 2012 until 2015, Mr Henry Greenslade states “The only presumption that anyone else is liable for such a charge is under Schedule 4 of the Protection of Freedoms Act 2012”.“Nevertheless, there appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle. Whether or not the keeper is the owner is not relevant. Unlike the statutory schemes, under Schedule 4 there is no concept of ‘owner liability’”.“ However keeper information is obtained, there is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should NEVER suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where the details of the driver of a vehicle MUST be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver”. Based on the above statement, again, no assumption of driver can be made

3.3  The Claimant’s assertion that the Defendant must name the driver under POFA (paragraph 6) is wrong.

3.4  The Defendant is fully aware that a keeper of a vehicle can potentially be held liable for a charge issued to a driver of that vehicle, but only in the event of strict and full compliance with the applicable statute. There is no other lawful way to hold a keeper liable for the actions of a driver on private land.

 

3.5  Fatally to the Claimant’s case, the document which purports to be a POFA-compliant NtK, dated 14th December 2020 is not compliant with the requirements of Schedule 4 as detailed below.

 

Paragraph 9 (2) (f) states

“warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given”.

(i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and

(ii)the creditor does not know both the name of the driver and a current address for service for the driver,

 

the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;

There is no such warning on the NtK.

3.6  It is clear that the Claimant has not complied with this condition, and there is no legal basis whatsoever to enforce the parking charge against the Defendant as the registered keeper.

3.7  Schedule 4 paragraphs 8 and 9 of the PoFA stipulates the mandatory information that must be included in the Notice to Keeper. If all of this information is not present then the Notice to Keeper is invalid and the condition set out in paragraph 6 of Schedule 4 has not been complied with. Failure to comply with paragraph 6 means that the registered keeper cannot be held to account for the alleged debt of the driver

 

5    Claimant’s case: offer made in signage displayed on the Land/Site. Defendant’s case: burden of proof not satisfied – Claimant has not shown that an offer was made, what its terms were and whether it had any authority or locus to make any offer, the signage it relies on is forbidding and it had no locus to make any offer.

6    Defendant’s case: Claimant falls at the first hurdle - it cannot show that an offer was made, nor its term. The Defendant makes the following points, having gathered evidence and considered the signage at this location:

 

6.1   The terms offered must be clear and unambiguous. They were not. The signage was cluttered, small and illegible to motorists, so any terms were not sufficiently brought to the driver’s attention (all requirements determined by Beavis and by paragraph B18.3 of the CoP ;

6.2  The keeper of the vehicle does have a permit therefore was authorised to park on this land but was not displayed.

6.3  The reception for the building where the land is has a database of all authorised vehicles which should have been checked by ES Parking before issuing a ticket as this is their place of work as the reception issued the permit.

6.4  There is no reference in the sign to parking for unauthorised vehicles being prohibited, no reference to parking charges and no reference to terms and conditions being displayed inside the Land (which would warn drivers to look out for such further signs).

6.5  The wording on the sign is forbidding. The only discernable offer it makes is to permit holders only, it makes no offer to drivers of unauthorised vehicles.

6.6  The sign is not clear to enough to warn drivers parking is not permitted for unauthorised vehicles. The terms on the sign which suggest this is too small

6.7  If an offer is found to have been made by the signage, the offer was for parking in    return for a charge of £100. The amount displayed was too small.

6.8  Where terms on a sign are not seen as it was too small, the driver cannot have consented to an unknown contract, which in turn he/she cannot have breached – the contract is not capable of being established. In Vine v Waltham Forest [2000] EWCA Civ 106 the driver did not see the terms and consequently could not be deemed bound by them.

6.9  The Defendant relies on the following cases:

UKPC v Masterson (forbidding signage) Horizon Parking v Guilford (forbidding signage)

OB Services v Thurlow (forbidding wording)

Civil Enforcement Ltd v McCafferty (signage intended to act as a deterrent and not a genuine offer)

ParkingEyeLd v Lemon & Harris (unclear wording)

Beavis (signage must be clear and prominently displayed)

ParkingEye Ltd v Collins-Daniel (signs unclear, parties to contract unclear, no valid parking contract)

Vine v Waltham Forest LBC EWCA Civ 106 (terms unclear)