Court claim received Gladstones Solicitors OBO CPM (UK Car Park management)

Mullered

Evening all.

bit of a late post, but hoping you can help. Received a county court claim form from Gladstones OBO CPM, issued 8th Sept. I have acknowledged claim on MCOL and stated my intent to defend fully.

I have SAR to CPM, waiting for ID verification, they then state reply within 28 days
I have CPR to Gladstones, which they have replied to today.

This is rather confusing and i seem to be going round in circles clicking on different links etc and getting myself even more unsure- claim was issued on 8th September, so from what I understand service would be deemed on 13th- having acknowledged any defence would have to be submitted by 14th Oct? although I read something today that the time does not include weekends?? any clarification on this would be appreciated.

long story short I went to collect a bed for my youngest on a cold dark and very rainy evening- not knowing the "modern" estate where it was located, I did not realise the parking controls in place, and was advised to park by the door by the person selling me the bed which was being dismantled. there were no markings or hatchings where I parked indicating no parking and I left my hazard lights on as I was going backwards and forwards from the flat to the car with the pieces of the cabin bed. No windscreen PCN.
Car registered at parents address and at some point I seem to recall opening the initial letter ( I think) I certainly do not recall ever receiving any further notices, although Gladstones have kindly sent me the original PCN and the subsequent formal demand..along with some photos of the vehicle in situ.

this was my CPR request which from memory I found on here/legal beagles:

1. The contract between UK Car Park Management and the landowner that assigns the right to enter into contracts with the public and make claims in their own name.

2. Proof of planning permission granted for signage etc under the Town and Country Planning Act 2007 and photos of this signage

3. Copies of the notice to driver, notice to keeper and any other correspondence from Uk Car Park Management & Gladstones Solicitors to the defendant that they intend to rely upon in court.

Todays reply from Gladstones is this:

In reference to point 1 and point 2, please see response below:

 

1. Without concession any contract entered at the time of the incident was between you and our Client and therefore the doctrine of 'privity' applies. In view of this it is irrelevant what our Client's agreement with any third party contained. In any event, we confirm that our Client had such authority, but given that the contractual arrangement between our Client and their Client is commercially sensitive, it will only be disclosed should it be necessary for a Court to view it.

 

2. It is noted you state the Town and Country Planning Act (Control of Advertisements) Regulations 2007 (the ‘Regulations’) require our Client to seek and evidence planning permission in order for it to display signs at the location. This is not accepted.

 

Whilst it is admitted our Client’s signs are advertisements for the purposes of the Regulations; Our Client’s position is that its signs have been granted deemed consent pursuant to Part 1 of Schedule 3 of the same. Our Client’s signs fall within Class 2A of the Regulations, which requires them to have the following characteristics: 

 

“2A. An advertisement displayed for the purposes of identification, direction or warning, with respect to the land or building on which it is displayed. 

 

2A. – (1) No advertisements may exceed 0.3 square meters in area. (2) Illumination is not permitted. (3) No character or symbol on the advertisement may be more than 0.75 metre in height, or 0.3 metre in an area of special control. (4) No part of the advertisements may be more than 4.6 metres above ground level, or 3.6 metres in an area of special control.”

 

As our Client’s signs fall within the category of Class 2A as described above, our Client’s position is consent has already been granted pursuant to its compliance with Part 1, Schedule 3 of the Regulations. 

 

Notwithstanding the above, our Client is required to display signs pursuant to an enactment (i.e. the Protection of Freedoms Act 2012). As a result, our Client’s position is also that advertising consent would not be necessary on the basis of its compliance with regulatory obligations. 

apologies for the long post, I realise I need to write defence, but really unsure on  what if anything to focus on- I thought POFA given their reply and the advertising consent but I am tying myself up in knots- any clarity would be greatfully received!

Thanks

KeithP

Mullered said:

Received a county court claim form from Gladstones OBO CPM, issued 8th Sept. I have acknowledged claim on MCOL and stated my intent to defend fully.

This is rather confusing and i seem to be going round in circles clicking on different links etc and getting myself even more unsure- claim was issued on 8th September, so from what I understand service would be deemed on 13th- having acknowledged any defence would have to be submitted by 14th Oct? although I read something today that the time does not include weekends?? any clarification on this would be appreciated.

Hello and welcome.

For the moment I am going to assume that you filed an Acknowledgment of Service sometime after 10th September and before 27th September. Please confirm. Your MCOL Claim History will have the definitive answer to that.

With a Claim Issue Date of 8th September, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 11th October 2021 to file your Defence.

That's not long, less time than you thought, but plenty of time to produce a Defence.

To create a Defence, and then file a Defence by email, look at the second post in the NEWBIES thread.

Don't miss the deadline for filing a Defence.

Do not try and file a Defence via the MoneyClaimOnline website. Once an Acknowledgment of Service has been filed, the MCOL website should be treated as 'read only'.


By the way... what is OBO in your thread title?

Mullered

hi Keith, yes acknowledged 21 Sept so all good there.

Will have a look at the 2nd post in newbies thread, think I may have glanced at it earlier, but will have another look.

OBO = on behalf of, i'm getting lazy in my old age ;-)

D_P_Dance

Have you complained to your MP?

Le_Kirk

Your defence is that a) you didn't see any signs, so they were obviously not illuminated nor prominent and b) you were not "parked" you were loading/unloading.  It might pay you to get a written statement from the person from whom you bought the bed for later inclusion in your WS.  This statement could state the facts that you were invited onto the land by a resident and were loading a bulky object. Also for later inclusion in your WS and evidence search the forum for "loading is not parking" as there is a court case (that went in favour of the defendant) about this exact issue.

Mullered

D_P_Dance said:

Have you complained to your MP?

I haven't- there was a big thing about it few years ago, but then seems to have gone quiet-maybe people are just paying them? will draft a letter to the MP, and think I read somewhere about michael gove being responsible for new code of practice for car parking companies

Coupon-mad

Fewer and fewer people are paying these and the industry is so out of control that the Government has stepped in to regulate them next year.

Read this and do the same, only replace 'VCS' with your ex-clamper parking firm and for 'no stoping zones' change to asking your MP to ask Mr Gove what he is doing to protect residents and their visitors, and people loading/unloading:

https://forums.moneysavingexpert.com/discussion/comment/78667388/#Comment_78667388

Read the links there to understand the issues and new legislation.  The new Code of Practice isn't finalised yet after the summer consultation and Mr Gove has only just taken over the Housing role,   This is a PERFECT time for MPs to ask searching questions and show examples like yours of what is wrong with letting self ticketers lurk in bushes taking pics on their mobile phone for a bounty that the APA trade bodies say doesn't happen.

KeithP

Whilst you are getting lots of good suggestions, do not lose sight of the fact...

...you have until 4pm on Monday 11th October 2021 to file your Defence.

That is the only deadline you have at the moment.

Fruitcake

Le_Kirk said:

Your defence is that a) you didn't see any signs, so they were obviously not illuminated nor prominent and b) you were not "parked" you were loading/unloading.  It might pay you to get a written statement from the person from whom you bought the bed for later inclusion in your WS.  This statement could state the facts that you were invited onto the land by a resident and were loading a bulky object. Also for later inclusion in your WS and evidence search the forum for "loading is not parking" as there is a court case (that went in favour of the defendant) about this exact issue.

The case referred to by Le Kirk is that of (Laura) Jopson versus Homeguard (Services). It was an appeal court case so is persuasive on the lower courts, and the transcript is available online. Have a look around paragraphs 19 and 20, and quote the judge's comments. Also include the judge's name and case number.

With regards to signage and advertising consent requirements where they say consent is not required because it is covered by section 2 A.

“2A. An advertisement displayed for the purposes of identification, direction or warning, with respect to the land or building on which it is displayed."

From memory, this section is further qualified to explain it refers to signs saying such things as, Doctor's Surgery, or Entrance or Exit or similar. Look it up if you want to pursue this point further.

With regards to signage, Para 12 of the PoFA refers to signage required by statutory instrument, so not having advertising consent breaches both the T & C Planning Act and the strict requirements of the PoFA.

You don't need to go into great detail about these two points because you can elaborate on them at the witness statement stage. You just need a couple of one liners to aver that loading/unloading is not parking, ref the Jopson case, and that the lack of advertising consent for the signs breach para 12 (1) and (2) of the PoFA.

12

(1)The fourth condition is that any applicable requirements prescribed under this paragraph were met at the beginning of the period of parking to which the unpaid parking charges relate.

(2)The appropriate national authority may by regulations made by statutory instrument prescribe requirements as to the display of notices on relevant land where parking charges may be incurred in respect of the parking of vehicles on the land.

Mullered

still plugging away at the defence, hoping to have it finished this evening.

have looked again at the docs sent by gladstones in response to the cpr request, firstly the pcn was not "issued" until 2 days after the alleged "parking" and was only followed a notice a month later by another notice titled "formal demand"

is this anything to use in addition to the other things suggested?

I have a cropped image of the titling on the 2nd notice stating formal demand but cant post  a link to it

thanks

Mullered

Think I am just about there.. my head is going to explode lol.

here is the defence, any advice or suggestions or good to email off first thing in the morning?

thanks again for all your help so far..

IN THE COUNTY COURT

Claim No.: 

Between

UK Car Park Management LTD 

(Claimant) 

- and -  

                                             

 (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 and driver of the vehicle in question but liability is denied. 

 

3.  The defendant attended Pembroke Park upon invitation from a resident to purchase and collect a bed for his son. It was dark and the weather was wet with heavy rain. The defendant was shown an empty space by the resident which was by the door into the flats and therefore situated the vehicle there, with hazard lights lit, in the absence of any no stopping/parking/unloading or other markings which would indicate to any reasonable person that stopping/parking/unloading or loading there would be contrary to anything, in order to load the bed into the vehicle without it being damaged by the bad weather.

4. within the appeal case of Jopson vs Homeguard - (case no. 9GF0A9E Judge HARRIS) Para 19 - it states the definition of whether a car is parked or loading/unloading which applies to the defendants case. 

 

‘Whether a car is parked, or simply stopped, or left for a moment while unloading, or (to take an example discussed in argument) accompanying a frail person inside, must be a question of fact or degree.’

‘I am quite satisfied, and I find as a fact, that while the appellant’s car had been stationary for more than a minute and without its driver for the same period (whatever precisely it was), while she carried it in her desk, it was not “parked”. Accordingly, for that reason too, the appellant was not liable to the charge stipulated in the respondent’s notice.’

Furthermore, the images supplied by the claimant show the hazard warning lights illuminated, and were all taken over the course of about 30 seconds from first to last according to the timestamps. As soon as the bed was loaded into the vehicle the defendant immediately left.

 

 

5.  The Particulars of Claim set out an incoherent statement of case and the quantum has been enhanced in excess of any sum hidden in small print on the signage that the Claimant may be relying upon.  Claiming ‘costs/damages’ on an indemnity basis is stated to be unfair in the Unfair Contract Terms Guidance, CMA37, para 5.14.3.  That is the official Government guidance on the Consumer Rights Act 2015 ('CRA 2015') legislation which must be considered, given the duty in s71.  The Defendant avers that the CRA 2015 has been breached due to unfair terms and/or unclear notices (signs), pursuant to s62 and with regard to the requirements for transparency and good faith, and paying regard to examples 6, 10, 14 and 18 in Sch2.  NB: this is different from the UTCCRs considered by the Supreme Court, in that there is now a requirement for contract terms and notices to be fair.

6.       It is denied that the exaggerated sum sought is recoverable.  The Defendant's position is that this moneyclaim is in part/wholly a penalty, applying the authority in ParkingEye cases (ref: paras 98, 100, 193, 198) ParkingEye Ltd v Beavis [2015] UKSC 67 and para 419 of HHJ Hegarty’s High Court decision in ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was set at £75 (discounted to £37.50 for prompt payment) then increasing ultimately to £135.  Much like the situation in this claim, the business model involved sending a series of automated demands to the keeper.  At para 419, HHJ Hegarty found that adding £60 to an already increased parking charge 'would appear to be penal' and unrecoverable.  ParkingEye had dropped this punitive enhancement by the time of Mr Beavis' famous parking event.

7.       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 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.  

8.  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 point #5 above and 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').

9.  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 being introduced shortly, which evolved because the two Trade Bodies have failed to properly govern this industry.

 

The ParkingEye Ltd v Beavis [2015] UKSC 67 case is distinguished

10.       Unlike in this case, ParkingEye demonstrated a commercial justification for their £85 private PCN, which included all operational costs, and they were able to overcome the real possibility of the charge being dismissed as punitive and unrecoverable.  However, their Lordships were very clear that ‘the penalty rule is plainly engaged’ in such cases.  

11.       Their decision was specific to what was stated to be a unique set of facts: the legitimate interest/commercial justification, the car park location and prominent and clear signs with the parking charge itself in the largest/boldest text.  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 (and in particular, the brief and very conspicuous yellow/black signs) set a high bar that this Claimant has failed to reach.

12.   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.  

13.   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.

14.       The Claimant’s signs have vague/hidden terms and a mix of small font, such that they would be considered incapable of binding any person reading them under common contract law, and would also be considered void pursuant to Sch2 of the CRA.  Consequently, it is the Defendant’s position that no contract to pay an onerous penalty was seen, known or agreed.

15.   Binding Court of Appeal authorities which are on all fours 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 (the ‘red hand rule’ case) and

(ii)                Thornton v Shoe Lane Parking Ltd  [1970] EWCA Civ 2,

both leading authorities confirming that an unseen/hidden clause cannot be incorporated after a contract has been concluded; and

(ii)                 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''.  In many cases where parking firm Claimants have cited Vine in their template witness statements, they have misled courts by quoting out of context from Roch LJ, whose words related to the Respondent’s losing case, and not from the ratio.  To pre-empt that, in fact Miss Vine won because it was held as a fact that she was not afforded a fair opportunity to learn of the terms by which she would be bound.

16.   Fairness and clarity are paramount in the new statutory CoP being finalised by the MHCLG and this stance is supported by the BPA and IPC alike. In the November 2020 issue of Parking Review, solicitor Will Hurley, the Chief Executive of the IPC Trade Body, observed:  'Any regulation or instruction either has clarity or it doesn’t. If it’s clear to one person but not another, there is no clarity. The same is true for fairness. Something that is fair, by definition, has to be all-inclusive of all parties involved – it’s either fair or it isn’t. The introduction of a new ‘Code of Practice for Parking’ provides a wonderful opportunity to provide clarity and fairness for motorists and landowners alike."   The Defendant's position is that the signs and terms the Claimant is relying upon were not clear, and were in fact, unfair and the Beavis case is fully distinguished.

17. The claimant has not sought Advertising consent in respect of what signage there is. This is in breach of para 12 (1) and (2) of the PoFA 2012.

18.  In the alternative, the Claimant is also put to strict proof, by means of contemporaneous and unredacted evidence, of a chain of authority flowing from the landholder of the relevant land to the Claimant.  It is not accepted that the Claimant has adhered to the landholder's definitions, exemptions, grace period, hours of operation, etc. and any instructions to cancel charges due to complaints.  There is no evidence that the freeholder authorises this Claimant to issue parking charges or what the land enforcement boundary and start/expiry dates are, nor whether this Claimant has standing to enforce such charges by means of civil litigation in their own name rather than a bare licence to act as an agent ‘on behalf of’ the landowner.

 

In the matter of costs, the Defendant seeks:

19.   (a) standard witness costs for attendance at Court, pursuant to CPR 27.14, and

(b) that any hearing is not vacated but continues as a costs hearing, in the event of a late Notice of Discontinuance.  The Defendant seeks a finding of unreasonable behaviour in the pre-and post-action phases by this Claimant, and will seek further costs pursuant to CPR 46.5.

20.   The Defendant invites the court to find that this exaggerated claim is entirely without merit and to dismiss the claim. 

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:

Date: