Help with witness statement against UKCPM/Gladstones please!

ANTIUKCPM

Coupon-mad said:

You need to add in the usual wording about Henderson v Henderson (search the forum and find a defence already with that paragraph). 

Remove the word 'penalty'. It's not a fine!

And this is wrong, DYL do NOT mean no parking:
The defendant is aware that double yellow lines mean no parking. 

Thanks Ill look that up and add it in, is there anything that I've included already that I should omit? 

I will remove this section - The defendant is aware that double yellow lines mean no parking. 

thank you!!

ANTIUKCPM

Trainerman said:

No they are two different claims with separate dates. 

The date of issue is 14/06/22 for both PCNS, the same PPC, same solicitor, same car and site.
Date of claim 1 is 15/08/2019 
Date of claim 2 is 26/07/2019

Yes but are they the same alleged contravention? For example, are they both 'overstaying'?

No, one is for stopping outside the apartment block see (honestly don't remember how long for, not sure they will know either but likely more than ten mins but not hours). 

Coupon-mad

Jopson v Homeguard then. Search the forum.

ANTIUKCPM

Hi all, this is my completed defence. For both claims its pretty much the same, is that ok? 

Please can someone kindly check its ok and I will email it off tomorrow. Thank you !

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

3.1. The defendant does not accept fault with regards to the claim as the vehicle was engaged in loading and was not parked. As it was not parked, no contract was entered into, and the claimants access to the DVLA keeper database was unlawful and in breach of DPA 2018. It is important to draw the distinction between "parking" and "loading/unloading", as this would not constitute a breach of contract. 

In Jopson Vs. Homeguard, case no: B9GF0A9E, which had seen this appeal allowed, his honour Judge Harris QC mentions that loading/unloading is not parking:

"19. The purported prohibition was upon "parking", and it is possible to draw a real and sensible distinction between pausing for a few moments or minutes to enable passengers to alight or for awkward or heavy items to be unloaded, and parking in the sense of leaving a car for some significant duration of time”

and

"20. Neither party was able to direct the court to any authority on the meaning of the word “park”. However, the Shorter Oxford Dictionary has the following: “To leave a vehicle in a carpark or other reserved space” and “To leave in a suitable place until required.” The concept of parking, as opposed to stopping, is that of leaving a car for some duration of time beyond that needed for getting in or out of it, loading or unloading it, and perhaps coping with some vicissitude of short duration, such as changing a wheel in the event of a puncture. Merely to stop a vehicle cannot be to park it; otherwise traffic jams would consist of lines of parked cars. Delivery vans, whether for post, newspapers, groceries, or anything else, would not be accommodated on an interpretation which included vehicles stopping for a few moment for these purposes. Discussion in this area left the respondent in obvious difficulties, from which the attractive advocacy of Miss Fenwick was unable to rescue it."

and

 

"21. 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 think in the end this was agreed. A milkman leaving his float to carry bottles to the flat would not be “parked”. Nor would a postman delivering letters, a wine merchant delivering a case of wine, and nor, I am satisfied, a retailer’s van, or indeed the appellant, unloading an awkward piece of furniture. Any other approach would leave life in the block of flats close to unworkable, a consideration which those instructing Miss Fenwick seemed reluctant to accept. 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 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."

3.2. The defendant suffers with several autoimmune disorders which they feel the claimant should take into consideration as part of the clients accessibility policy for the less abled.

3.3. The car was not left parked for a significant period of time and was simply stopped for the purpose of offloading into the residence. The signage is poorly placed and not easily legible for a common layperson to comply with. The signage in the alleged area of offence is inadequate in its visibility, lighting, selected font usage and positioning to consider an ability to communicate a contract clearly.

It is a reasonable belief that it was fundamentally designed with a view to confuse and mislead drivers. Further to this, the defendant is aware that there is a legally binding grace period (BPA Approved Operator Scheme's Code of Practice) before the issuing of a fine and feels they were not granted this period. 

3.4 . Should this poorly pleaded claim not be summarily struck out for any/all of the reasons stated above, it is the Defendant’s position that no contract was entered into with the Claimant, whether express, implied, or by conduct.  Therefore, as a matter of contract as well as consumer law, the Defendant cannot be held liable to the Claimant for any charge or damages arising from any alleged breach of the purported terms.  Whilst there is a lack of evidence from the Claimant, the Defendant sets out this defence as clearly as possible in the circumstances, insofar as the facts below are known.

 

3.5.  The defendant believes the term for such conduct is ‘robo-claims’ which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. The defendant has reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to their significant detriment as an unrepresented Defendant.

3.6. The defendant suggests that parking companies using the small claims track as a form of aggressive, automated debt collection is not something the courts should be seen to support.

3.7. Even if there are signs put up, terms cannot be retrospectively added into a contract by a third party; a parking firm cannot disregard the rights of tenants and their visitors, delivery drivers etc. as was found by a Senior Circuit Judge, Charles Harris QC, in June 2016.

3.8. Authorities to support the defendant include but are not limited to the (higher court level) Appeal case heard at Oxford County Court by Senior Circuit Judge Charles Harris QC, in Jopson v Homeguard [2016] B9GF0A9E. Similar Small Claim decisions in 2016 include Pace v Mr N C6GF14F0 and Link Parking v Ms P - C7GF50J7. All three cases were brought by Gladstones for parking operators (including the original Jopson claim which went to appeal and is persuasive on the lower Courts). In all cases, it was found that the parking company could not override residents’ existing rights by requiring a permit to park and that the signs were of no consequence, due to the primacy of contract enjoyed by the Defendants. His Honour Charles Harris QC remarked in the Jopson appeal case decision that life in a residents block would be unworkable if visitors, delivery drivers etc. were expected to park immediately obtaining a permit (which a visitor would not have).

3.9. The defendant requests the court to strike out the claim for reasons cited by District Judge Cross of St Albans County Court on 20/09/16 where a similar claim was struck out without a hearing, due to Gladstones' template particulars for a private parking firm being 'incoherent', failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''

3.10. It is not believed that the Claimant has incurred additional costs - be it legal or debt collector costs or even their unlawful, fixed sum card surcharge for payments - and they are put to strict proof that they have actually incurred and can lawfully add an extra sums and that those sums formed part of the permit/parking contract formed with the resident in the first instance

4. The facts in this defence come from the Defendant's own knowledge and honest belief.  To pre-empt the usual template responses from this serial litigator: the court process is outside of the Defendant's life experience and they cannot be criticised for adapting some pre-written wording from a reliable advice resource. The Claimant is urged not to patronise the Defendant with (ironically template) unfounded accusations of not understanding their defence. 

Coupon-mad

UKCPM are not in the BPA AOS.

You point 2 has not been edited to add 'and driver' (if true) as the Template defence tells you to.

You have repetition of Jopson there and should lose at least half of those paragraphs, as it's too long.  Then re-number the whole defence with normal sequential numbering, not 3.1, 3.2, 3.3 etc.

Umkomaas

I will email it off tomorrow.

Don't do that. 

So many have 'got lost' during weekend emailing, with disastrous consequences in a few cases. Forum advice is to only email during M-F business hours, and if on a Friday, not much later than midday. Then check that you receive an (almost immediate) email acknowledgement of receipt. Check your spam folder as well as your Inbox. 

ANTIUKCPM

Coupon-mad said:

UKCPM are not in the BPA AOS.

You point 2 has not been edited to add 'and driver' (if true) as the Template defence tells you to.

You have repetition of Jopson there and should lose at least half of those paragraphs, as it's too long.  Then re-number the whole defence with normal sequential numbering, not 3.1, 3.2, 3.3 etc.

Thanks.  

Also which of the points do you think I should cut out as you said its too long?

thanks!

I will email tomorrow. 

Fruitcake

"Popping into Sainsbugs" implies the vehicle was parked whilst occupants went shopping.
This is not the same as loading and unloading. 

ANTIUKCPM

Fruitcake said:

"Popping into Sainsbugs" implies the vehicle was parked whilst occupants went shopping.
This is not the same as loading and unloading. 

Okay so best to not mention, thanks

ANTIUKCPM

Hi guys, I am back again and have a court hearing on the 29th June - I was shocked and didn't expect it. I also have one in August but their WS I received today says they received my request to consolidate claims, so I don't know if the one in August is going ahead.

Gladstones has just sent me their WS bundle and they are not attending the hearing. 

Their WS says they believe I copied my defence from things circulating on the internet, which isn't great. 


Please can someone help me with my WS, is it even worth it? It seems there are no points I can fight against, I am not a professional within the legal system and I feel they are just going to catch me out. I don't know what points to argue when it seems they have quashed all of mine. 

Below is Gladstones WS - 

https://file.io/KW8eY9MVUcA0

If you see on their bundle, their parking signage has changed since the time of the fine. It was far less clear then. I don't see the point of collecting evidence as signage has changed.

Also where can I request recovery of costs? I am self employed and this court hearing is a full day off work with no pay. 

Many thanks all.