County Court Claim- Gladstone solicitors on behalf of UK Car Management

Chattyish

Ahh thank you everyone. 

Understood now. Yes I did use that template. However I added several paragraphs for point 3. I have amended it to third person as suggested by Keith. 

No I haven’t approached my MP. 

The paragraphs that I added myself are as follows:- 

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

3. Until the court papers arrived, the Defendant believed that the letters from Debt Recovery Plus were fraudulent. The reason being when the Defendant received the letter dated 30/1/2020 it was more than two months after the alleged parking violation took place. There were no pictures or video link provided to prove the incident. It was also not a PCN but a letter from Debt Recovery Plus.  The only reason the Defendant kept the paperwork was in case she later became a victim of fraud by this company who she believed were demanding unfair parking charges. The letter dated 30/1/2-020 gave no information about the actual incident.  It only mentioned the place and that the charge was for ‘vehicle not registered or exceeded allowed time’. 

4. The Claimant states that the ‘driver of the vehicle with registration xxxx (the vehicle) parked in breach of the terms of parking stipulated on the signage (the contract) at the Atlip Centre ANPR’ Due to the time lapse from November 2019 it is impossible for me to know who was driving the car on 20/11/2019 as other family members and the Defendant’s ex-partner had use of the vehicle. The Defendant also has not been provided with any evidence to the signage the claimant mentions in the claim form.

5. The Defendant is unable to comment on the incident that allegedly occurred on 20/11/2019 without the Claimant providing the signage that was present at the time of the alleged offence and photographic evidence/video evidence of the parking violation, proving the duration of stay.  16. The Defendant would also request the Claimant to provide reasons why she was harassed by Debt Collection letters, without the Defendant receiving a Penalty Charge Notice and a Notice to Keeper. 

6. The Defendant denies not paying the PCN within 28 days, as no PCN was received.  The letter received on 30/1/2020 from Debt Recovery Plus only gave the Defendant 14 days to make the payment.  Furthermore, the amount claimed from Debt Recovery Plus was for £160 and not £90 for the PCN as stated by the Claimant.

7. The Claimant claims the unpaid PCN from the Defendant as the driver/keeper of the vehicle.  It is denied that the Claimant can transfer liability from the driver to the Defendant, because they have not complied with the requirements set out in the Protection of Freedoms Act 2012 (POFA), which is the only mechanism for such a transfer. 

Many thanks everyone. I really appreciate all the help. 

Redx

5 should say Parking , not Penalty

Private parking companies are not allowed to issue Penalties

Chattyish

Thank you Redx. Will amend. 

Le_Kirk

Your paragraph 4# has a "me" which is first person.  Modify this sentence.  However, you seem to be in danger of writing your witness statement (WS) as part of your defence.  Keep the defence short and use technical/legal arguments, not a narrative.  This comes later at WS stage.  Providing you introduce the point in your defence you can expand upon it to support it and back it up with evidence in the WS.

Chattyish

Thank you Le_Kirk. Apologies for the delayed response. I don’t seem to get notifications when I receive a response. I will make the changes suggested. This is what I couldn’t understand … the difference between a defence statement and a witness statement. Is there an example on the forum for a defence statement? I amended my statement according to the witness template on the forum. Many thanks 

Redx

The best defence ( statement) is the Coupon mad template , where 90% is already written for you , paragraph 2 is easy to adapt and only paragraph 3 is your own story , bespoke according to your own circumstances , different from other people's !

The witness statement plus exhibits expands on your Defence , sets the scene in detail and adds suitable exhibits , whilst also rubbishing the claims by the claimant ! This is your story as the defendant who is also a witness , adding evidence to bolster your defence

If this was a london murder case , that you did not commit , your defence would be , Not Guilty ( simple , concise , 2 words )

Your witness statement may say that you were in Brisbane at the time , your exhibits could be CCTV pictures or videos of you signing in at the hotel reception , a copy of the signing in book with your signature , plus bank statements showing purchases in Brisbane !! This witness statement could be several pages long with many exhibits too ( evidence ) , whereas the defence was 2 words !!

Capiche ?

Chattyish

RedX Thank you for clarifying the matter.  I’ll amend it as suggested. Many thanks 

Chattyish

Hi would appreciate it if someone could have a look and see if there are any issues with my witness statement.  Many Thanks

IN THE COUNTY COURT

Claim No.: xxxxx

 

UK Car Park Management Limited

(Claimant)

- and -  

                         xxxxxxxx                   

 (Defendant)

____________________

WITNESS STATEMENT

____________________

1.     My name is xxx xxx and I am the Defendant in this claim.   I am a litigant in person, I trust that the Court excuses my inexperience and reserves any criticism for the Claimant not attending the hearing and due to the extremely sparse particulars filed by the Claimant’s Solicitors. 

     The facts as known to the Defendant:

2.     It is admitted that I am the registered keeper of the vehicle in question, but liability is denied. I cannot confirm who the driver was at the time of the alleged parking violation.  It is denied that a contract was entered into - by conduct or otherwise. 

3.      This claim refers to a parking incident on a road at The Atlip Centre situated in Alperton, Wembley on 20 November 2019.  The Claimant’s statement has continually mentioned that the car registration number XXXXXX breached the terms and conditions of the car park but has failed to provide any evidence to demonstrate that this vehicle entered a car park in the Atlip Centre. 

4.     I was issued with a County Court claim on 19 July 2021 from Gladstone Solicitors on behalf of Uk Car Management.

5.     Until the court papers arrived, I believed that the letters from Debt Recovery Plus and Gladstone Solicitors were fraudulent. The reason being when I received the letter dated 30 January 2020, which was more than two months after the alleged parking breach took place. There was no pictures or video link provided to prove the incident. It was also not a PCN but a letter from Debt Recovery Plus demanding £160.  The only reason I kept the paperwork was in case I later became a victim of fraud by this company who I believed were demanding unfair parking charges. The letter dated 30 January 2020 gave no information about the actual incident.  It only mentioned the place and that the charge was for ‘vehicle not registered or exceeded allowed time’.  I refer to Exhibit XX1.

 

6.     The Claimant stated in the Particular of Claim that the ‘driver of the vehicle with registration XXXXXX (the vehicle) parked in breach of the terms of parking stipulated on the signage (the contract) at the Atlip Centre ANPR’. Due to the time lapse from November 2019, it is impossible for me to know who was driving the car, as other family members and my ex-partner had use of my vehicle. The Claimant claims the unpaid PCN from me as the driver/keeper of the vehicle.  It is denied that the Claimant can transfer liability from the driver to the registered keeper, because they have not complied with the requirements set out in the Protection of Freedoms Act 2012 (POFA), which is the only mechanism for such a transfer. 

 

7.     On 8 August 2021, I requested a Subject Access Request from UK Car Management as I needed more information on the alleged contravention that took place and received a response on 27 August 2021 stating, “There are no results for the below with legal”.  I refer to Exhibit XX2. I would like to highlight that Gladstone Solicitors sent a letter on 1 March 2021 informing me that they had been instructed to start legal proceeding against me which commenced on 19 July 2022.  Therefore, the Claimant’s response to my Subject Access Request failed to comply with the General Data Protection Regulations 2018.  They did provide the PCN and Formal Demand Notice, which allowed me to finally view the photographic evidence of the alleged contravention.  The correspondence received prior to this date did not contain pictures or details of the alleged contravention. 

 

8.     It states in paragraph 14 of the Claimant’s statement, that the regulations are displayed on large highly prominent places throughout the car park. I refer to Exhibit GS2 which was provided by the Claimant as evidence, no photographic evidence has been provided by the Claimant to prove that the car accessed any car park in the named location. The photographs related to the car registration number XXXXXX were taken on a private road and not a car park as alleged by the Claimant. The Claimant has not provided evidence to prove that the car was parked in the location for approximately 26 minutes.  The first picture on the PCN shows the car on one side of the road and the second picture on the other side of the road.  I am unable to provide more information to the incident as I do not know who the driver was that day but looking at the photographs makes me consider an alternative assumption that the driver may have gone down the road to a different location and returned 26 minutes later using the same road.  The road seems to continue past the area managed by UK Car Park Management Ltd. 

 

9.     It states in paragraph 16 of the Claimant’s statement, “The signs are clearly displayed throughout the site as evidenced by the attached site plan.  Exhibit reference GS3, the defendant would have the opportunity to read and understand them when entering and then parking at the car park.  An objective observer would consider this action to have been done in acceptance of the Terms and Conditions.    It is this that forms the basis of the contract between the driver and the Claimant”. The Exhibit GS3 highlights numerous signs in the carpark area.  However, they have not provided any evidence to prove the driver entered the carpark area to view the signs.  On viewing the photographs the Claimant have provided there are no signs in the area that the alleged contravention took place. 

 

10.  It states in paragraph 21 of the Claimant statement “Every recipient of a PCN from the Claimant is afforded the opportunity of appealing the PCN if they consider that it is issued in error or was unlawfully issued”.  As I did not receive the PCN until 27 August 2021 in response to the Subject Access Request, I did not have the opportunity to appeal the PCN. 

 

11.  In the same paragraph, it states “The Claimant has provided their part of the contract by providing a space for the Defendant to park within.  In return, the Defendant is to follow the Terms and Conditions stipulated by the car park”.  The Claimant states in this paragraph and throughout their statement that the contravention was the due to the driver using their car park and not abiding by their terms and conditions. However, the Claimant has failed to provide pictures of vehicle registration number XXXXXX entering/exiting the car park.  Instead they have provided pictures of the car which could have merely being driven through the area they manage.  I would request that the Claimant provide photographic evidence of entering/exiting the car park and/or being stationery in the area for 26 minutes.

 

 

 

Chattyish

No Contract Exists  

 

12.  I understand from the Claimant’s correspondence that the claim relies upon the signage at the site constituting a ‘contract’ between the registered keeper and the Claimant as per ParkingEye vs Beavis. The ‘breach of terms’ on the Particulars of Claim presumably refers to the supposed ‘contract’ formed by this signage.

 

13.  In ‘ParkingEye vs Beavis’, on which the Claimant relies to justify this charge, it was found that a contract could exist because there was a meaningful ‘offer’ made to the Defendant (that of a license allowing free parking for a set period of time) and that the Defendant’s agreeing not to overstay this period could constitute a ‘consideration’ in respect of this. The ‘ParkingEye vs Beavis’ judgement is littered with references to the disputed charge being justifiable only in the context of the ‘contractual license to park’ being given to the Defendant, e.g. ‘They must regard the risk of having to pay £85 for overstaying as an acceptable price for the convenience of parking there’.  There is no such ‘offer’ made by the signage in this case, no ‘contractual license’, no ‘benefit of free parking‘.  I refer to Exhibit XX3.

 

14.  The parking contract in ‘ParkingEye vs Beavis’ case was judged to be ‘objectively reasonable’ partly because ‘motorists generally’ did accept it.  The landowner wanted as many people as possible to use the car park in question so the contractual arrangements were designed to be attractive to the average motorist. This is the complete contrast of the supposed ‘contract’ in this case which is designed to actively discourage motorists from parking at the site. The terms of this ‘contract‘ are not ‘objectively reasonable’, but deliberately designed to be so heinous that no one in their right mind would agree to them.

 

15.  In J Spurling Ltd v Bradshaw in the Court of Appeal, Lord Denning states that ‘the more unreasonable a clause is, the greater the notice which must be given of it’. This is commonly referred to the ‘Red Hand Rule’. As the terms of this ‘contract’ (specifically the clause relating to a £100 parking charge) are designed to discourage motorists from accepting them it follows that they must be ‘unreasonable’ and that therefore Lord Denning’s rule should apply. 

 

16.  The Claimant has not applied Lord Denning’s ‘Red Hand Rule’ to the terms and conditions in this case. I refer to Exhibit GS2 which refers to a ‘parking charge’ is in an extremely small font (one of the smallest on the sign) which, given that this sign is supposed to be read from a vehicle, is inadequate.

 

17.  The PCN that was issued by the Claimant state the reason for the disputed charge as being ‘Vehicle Not Registered Or Exceeded Allowed Time”.   They Claimant has not been clear with what  actual contravention took place,  the Claimant’s statement refers to the contravention having taken place in a car park, though the photographs demonstrate the vehicle on a private road. 

 

Signage Issues

 

18.  In ‘Vine v London Borough of Waltham Forest’ (I refer to Exhibit XX4) the Court of Appeal ruled that a person cannot be presumed bound by terms and conditions on signage that they haven’t seen. In this case, which was found in favour of the motorist, the signage was deemed insufficient because there was no sign directly adjacent to the Appellant’s parking bay and the only signage that was displayed could not have been seen from within the vehicle whilst parking. In this case proved by the photographs they have provided there was no sign adjacent to my car at the location the alleged contravention took place.  My belief is that the driver would not have been able to view the text on the signs that were present from the location the photographs were taken.  I refer to Exhibit GS3) as they seem to be mostly located inside the car parks which was not the location of my car. 

 

19.  It is also noted that the Claimant is relying upon 'stock' images obtained by an image search using ariel view.  The actual text on the signs from these ‘ariel view photographs’ do not demonstrate whether they are clear in person as they are illegible via the photographs provided by the Claimant.  Due to the manner the pictures were captured it is not possible to analyse whether a sign was visible to the driver.  I would also like to highlight that the text in the signage cannot be seen from these exhibits provided by the Claimant.  Furthermore, the alleged incident took place over two years ago so the Claimant should provide photographic evidence of the signs present at the location in November 2019.

 

20.  A key factor in ‘ParkingEye vs Beavis’ was that ParkingEye were found to have operated in line with the relevant parking operator’s code of practice.

 

21.  In this case the photographic evidence provided by the Claimant fails, on numerous counts, to adhere to the standards laid out by the relevant accredited parking operator - The International Parking Community (IPC).

 

22.  The IPC guidelines state that signage at the entrance to the site should ‘Make it clear that the motorist is entering onto private land’. The Claimant has not provided any evidence to prove the existence of these signs.  I have also followed the Claimant’s guidance and taken some screenshots from google images (dated September 2021) of the entrance of the road, which demonstrates that there were no signs to inform motorists that they are entering private land.  I refer to Exhibit XX5.

 

23.  If the Claimant would like to challenge these photographs on the grounds that I mentioned in paragraph 19, that they were not captured at the time of the incident, I would like to state that I believe that it is highly unlikely that there were signs in 2019 which were removed in 2021.

 

24.  The IPC guidelines (14) state ‘You must not use predatory or misleading tactics to lure drivers into incurring parking charges. Such instances will be viewed as a serious instance of non-compliance’. Given the photographic evidence which shows my car on a road and the Claimants lack of clarity to what the actual contravention was I believe is a misleading tactic in trying to recover parking charges to a contravention that did not take place. 

 

Landowner Authority

 

25.  The Claimant has included a redacted ‘landowner contract’ (I refer to Exhibit GS1) which has little or no probative value and which offends against the rules of evidence. There is nothing to say what the landowner's approach (whoever they may be) is to penalize a driver who possibly was just driving through the area. I do not believe the evidence provided by the Claimant proves otherwise. 

 

26.  This is compounded by the Claimant attaching stock images of signs instead of actual images and a redacted 'landowner authority' document that could be from anyone.

 

Additional Costs

 

27.  The Claimant has added a sum describing it to be “Additional costs as referred to in the signage on display at the site and referred to in the Liabilty Notice sent to the Registered Keeper in the sum of £60”.  The added £60 constitutes double recovery and the court is invited to find the quantum claimed is false and an abuse of process.  I refer to Exhibit XX6, a transcript of the Approved judgment in Britannia Parking v Crosby (Southampton Court 11.11.19).   That case was not appealed and the decision stands.  I reiterate that a Notice to Keeper was not received by me. 

 

28.  Even if the Claimant did have prominent signs to be seen by the driver, which is denied - they are attempting double recovery of the cost of their standard automated letter-chain.  It is denied that the Claimants have expended additional costs for the same letters that the Beavis case decision held were a justification for the (already increased from the discount) parking charge sum of £85.  

 

29.  The Claimant cannot be heard to base its charge on the Beavis case, then add damages for automated letter costs; not even if letters were issued by unregulated 'debt recovery' third parties.  It is known that parking firms have been misleading the courts with an appeal at Salisbury Court (the Semark-Jullien case) where the Judge merely reset an almost undefended case back for a hearing.  He indicated to Judges for future cases, how to consider the CRA 2015 properly and he rightly remarked that the Beavis case was not one that included additional 'costs' per se, but he made no finding of fact about the illegality of adding the same 'automated letter costs' twice.  He was not taken by either party to Somerfield in any event it is worth noting that the lead Southampton case of Britannia v Crosby was not appealed.  It is averred that District Judge Grand's rationale remains sound, as long as a court has sufficient facts to properly consider the CRA 2015 s62, 63 and 67 before turning to consider the Protection of Freedoms Act 2012 Sch4 ('the POFA').

 

30.  Pursuant to Sch4 of the POFA at 4(5), the sum claimed exceeds the maximum potentially recoverable from a registered keeper, even in cases where a parking firm has complied with its other requirements (denied in this case).  It is worth noting that even though the driver was known in Beavis, the Supreme Court considered the POFA, given that it was the only legislation specifically dealing with parking on private land.  There is now also the Parking (Code of Practice) Act 2019 with a new, more robust and statutory Code of Practice. 

 

31.  Without the Beavis case to support the claim and no alternative calculation of loss/damage, this claim must fail.  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.  

 

32.  The Supreme Court held that the intention cannot be to punish a motorist - nor to present them with concealed pitfalls, traps, hidden terms or unfair/unexpected obligations - and nor can the operator claim an unconscionable sum. In the present case, the Claimant has fallen foul of the tests in Beavis. 

 

33.  I invite the court to find that this exaggerated claim is entirely without merit and to dismiss the claim. 

 

CPR 44.11 - further costs

 

34.   A fully detailed costs assessment which also covers my proportionate but unavoidable further costs and I invite the court to consider making an award to include these, pursuant to the court's powers in relation to misconduct (CPR 44.11).   In support of that argument, I would like to highlight that the information provided by the Claimant has been contradictory and has lacked any merit.  They have also failed to comply by GDPR 2018 by providing me the required information in response to my SAR.  Not only could this claim have been avoided and the Claimant has no cause of action but it is also vexatious to pursue an inflated sum that includes double recovery, attaching stock images of signs instead of actual images and a redacted 'landowner authority' document that could be from anyone. I refer to Exhibit XX7. 

 

My fixed witness costs - ref PD 27, 7.3(1) and CPR 27.14

 

35.  As I am not from a legal background, I have spent considerable time researching the law online, processing and preparing my defence plus this witness statement.  I ask for my fixed witness costs.  I am advised that costs on the Small Claims track are governed by rule 27.14 of the CPR and (unless a finding of 'wholly unreasonable conduct' is made against the Claimant) the Court may not order a party to pay another party’s costs, except fixed costs such as witness expenses which a party has reasonably incurred in travelling to and from the hearing (including fares and/or parking fees) plus the court may award a set amount allowable for loss of earnings or loss of leave.

 

25.     The fixed sum for loss of earnings/loss of leave apply to any hearing format and are fixed costs at PD 27, 7.3(1) ''The amounts which a party may be ordered to pay under rule 27.14(3)(c) (loss of earnings)... are: (1) for the loss of earnings or loss of leave of each party or witness due to attending a hearing ... a sum not exceeding £95 per day for each person.''

 

Statement of Truth

I believe that the facts stated in this defence 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.

 

Defendant’s signature

Xxxx

 

Date: 17 May 2022

KeithP

Your Statement of Truth is wrongly talking about a Defence.