Minster Baywatch Ltd Claim Issued through Gladstones Solicitors LTD - CASE DISMISSED!!

Yanness

Umkomaas said:

Yanness said:

How should I respond to this email? 

It's funny how certain companies are happy to share data between sister companies but when it's time to cough up what we ask, they hide behind such excuse.

What exactly did you ask for?

This is what I sent:

Quote:

"Dear Sir or Madam

Subject access request ( Data Protection Act 2018 / General Data Protection Regulations (GDPR) )

Please supply the data about me that I am entitled to under data protection law relating to myself.

For that purpose, I am including a copy of one of my utility bill. 
  

- what personal information your organisation holds about me;

- a copy of ALL photos taken
- all letters/emails sent and received, including any appeal correspondence earlier
- if the car park was Pay and Display, I ask for a complete PDT machine record from that day, of payments made, including VRNs.
- all data held, all evidence you rely on, and a full copy of the PCN, NTK

- and a list of all PCNs outstanding against me and/or VRN concerning me as a vehicle registered keeper, and I remind you that any claim must be for all PCNs, not several separate claims. 

If you need any more data from me to confirm my identity please let me know as soon as possible. It may be helpful for you to know that data protection law requires you to respond to a request for data within one calendar month.

If you do not normally deal with these requests, please pass this letter to your Data Protection Officer, or relevant staff member. If you need advice on dealing with this request, the Information Commissioner’s Office can assist you. Its website is ico.org.uk or it can be contacted on ‪0303 123 1113‬.

Yours faithfully"

They partially complied with my request (giving me PDFs of mail correspondence) but omitted the PDT machine data. I guess in purpose as it would have revealed their dodgy and questionable practices. So I sent another email asking to comply with my request in full and to include the PDT data.

I will now send them a reply. 

Yanness

Hi all, 

This is their reply below. They just don't intend to cooperate. 

Quote:

"Good morning,

Bransby Wilson is the management agent of the site and therefore all payment records go to them.

We are the enforcement company.

We are unable to provide the records you request as the Subject Access Request pertains only to your data regarding PCNs.

We will not enter into further discussion regarding the matter.

Kind regards,

Patricia

Minster Baywatch Team"

Coupon-mad

Well they'll have to cough up evidence for the witness statement stage.  No worries!

Yanness

Hi All,

Here is my defence, some of them are hypothesis and need confirmation:

"The Defendant was driving in the area and was looking for a place to stop to feed his daughter and have a bite with his family.

There was no signage at the entrance to the land from the public highway such as the Defendant had no ability to know about any conditions for parking there before getting recorded by their camera. (I will take pictures to confirm this but from the picture they provided, you have to actually enter quite deep inside the car park entrance before finding the signage, I will also check if there is a grace period).

The location has signs which are not contracts. The small and short description, which is not visible from the highway, is merely an "invitations to treat" and could only be deemed to be accepted as a contract when you pay into the meter.

The Claimant is supposed to get a planning permission for their signage. A search on the Cotswold District Council planning applications or decided applications for ANPR cameras on pole has not given any entry for this particular parking company. Therefore, the Claimant has not complied with all laws and regulations relating to the running of the car park at this location. The Claimant are in breach of the Town and Country (advertisements) Regulations 2007 by not having the necessary permission despite the fact that it is illegal not to have permission and a contract cannot be formed from an illegal act. However, the offense is also covered by The Consumer Protection from Unfair Trading Regulations 2008 - Section 5 Misleading Actions [3] [b].

Their ability to collect or store data from the DVLA is questionable since it was revealed to me in an exchange email with the Claimant that the recorded data of the PDT machine belongs to a company named Bransby Wilson and not Minster Baywatch. Therefore, feeding into the confusion to which parking company do the Defendant is supposed to enter into contract with, the Claimant or Bransby Wilson? The claimant is again in breach of the Consumer Protection from Unfair Trading Regulations 2008 - Section 5 Misleading Actions [3] [b].

(I would like to add The Consumer Protection from Unfair Trading Regulations 2008 Section 5 Misleading Actions as regulation they are following, in the subsequent defense body) ".

If you guys believe there is more to add, let me know.

Cheers

Yanness

Coupon-mad

Defence has no 's'.

What you have shown us there doesn't look like a defence, as advised with links earlier in this thread.

Yanness

I should have read better the following as there are good and valid points that I can add to mine. :

https://forums.moneysavingexpert.com/discussion/5563884/looks-like-i-am-going-to-court-with-gladstones/p9

KeithP

Haven't you already filed a Defence?

Remember back in August I wrote on your thread...

...you have until 4pm on Monday 12th September 2022 to file your Defence.

Yanness

No I have not. I think I missed it. 
Is there a way to sort it out? Or is it too late? 

Yanness

I am late, but I still want to send my defence today.

What do you guys think?

DEFENCE

1. The parking charges referred to in this claim did not arise from any agreement of terms. The charge and the claim were an unexpected shock to me. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that any conduct by the driver was a breach of any prominent term and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue or form contracts in their own name. Liability is denied, whether or not the Claimant is claiming 'keeper liability', which is unclear from the Particulars.

The facts as known to the Defendant:

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

3. More facts

3.1 The Defendant was driving in the area and was looking for a place to stop to feed his daughter and have a bite with his family

3.1.1 There was no signage at the entrance to the land from the public highway such as the Defendant had no ability to know about any conditions for parking there before getting recorded by their camera.

3.1.2 The location has inadequate signs which are not contract. Therefore no contract was entered. The small and short description, which is not visible from the highway, is merely an "invitations to treat" and could only be deemed to be accepted as a contract when you feed the meter. Therefore the site contains no appropriate entrance signage that would have been seen adequately by the driver from the highway – this is a stipulation of the IPC code of practice part E schedule 1 and is believed by the defendant to be an example of predatory tactics as stipulated in the IPC code of conduct 14.1. Furthermore, unlike in Beavis V Parking eye, which was dependent upon an un-denied contract formed by entrance signs as well as prominent signage with large lettering, the lettering of the charge claimed against the defendant is neither prominent or in sufficiently large font size to form a clear contract and as such does not comply with legislation for transparency as stipulated in the unfair terms of the consumer rights act 2015 which states that “A term is prominent if it is brought to the consumer's attention in such a way that a reasonably well-informed, observant and circumspect consumer would be aware of the term “.

This supports a legal principle in that when there is an unsigned agreement and an onerous clause then this clause must be bought to the attention of the trader. Indeed, this approach is inserted into the IPC Code of Practice where 'adequate notice of the parking charge' is mandatory. The defendant believes that the signs used by the claimant do not clearly mention the ‘onerous’ clause of the charge and contractual terms in accordance with this trite of law because it is hidden in smaller print underneath far larger lettering used to state that “parking is for valid permit holders”.

This approach to contract law which assesses the nature of the clause alongside the notice given was held in Thornton v Shoe Lane Parking Ltd where the respondent did not do what was necessary to draw a clause to the appellant’s attention.
Under Lord Denning's Red Hand Rule, the contractual terms and charge should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'.

A reasonable interpretation of the 'red hand rule' and the IPC Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently in far larger lettering than that used by the claimant. In consideration of this, the Defendant denies that they would have agreed to pay the original demand of £100 and or agree to the alleged contract had the terms and conditions of the contract been properly displayed

3.1.3 The Claimant is supposed to get a planning permission for their signage. A search on the Cotswold District Council planning applications or decided applications for ANPR cameras on pole has not given any entry for this particular parking company. Therefore, the Claimant has not complied with all laws and regulations relating to the running of the car park at this location. The Claimant are in breach of the Town and Country (advertisements) Regulations 2007 by not having the necessary permission despite the fact that it is illegal not to have permission and a contract cannot be formed from an illegal act. However, the offence is also covered by The Consumer Protection from Unfair Trading Regulations 2008 - Section 5 Misleading Actions [3] [b].

3.1.4 Their ability to collect or store data from the DVLA is questionable since it was revealed to me in an exchange email with the Claimant that the recorded data of the PDT machine belongs to a company named Bransby Wilson and not Minster Baywatch. Therefore, feeding into the confusion to which parking company do the Defendant is supposed to enter into contract with, the Claimant or Bransby Wilson? The claimant is again in breach of the Consumer Protection from Unfair Trading Regulations 2008 - Section 5 Misleading Actions [3] [b].

(I have added The Consumer Protection from Unfair Trading Regulations 2008 Section 5 Misleading Actions in point 24)

3.1.5 The originally submitted particulars of claim filed by the Claimant’s solicitors failed to comply with 6c of the Practice Direction which states that steps in pre-action protocol should include “the parties disclosing key documents relevant to the issues in dispute”. In accordance with the Over-riding Objective and CPR 1.1(2) (a) & 31.14 the defendant wrote to the claimant’s solicitors on the 16/08/22 & 23/06/22 asking:

a) To provide personal information about the Defendant
b) To provide all photo taken
c) A copy of all letters and emails
d) A complete PDT machine record from that day of payment made including VRNs
e) All data and evidence and full copy of PCN and NTK
f) A list of all PCNs outstanding against me

The claimant’s solicitors did not respond fully to the requests as they refuses to provide point d) above. By willingly withholding relevant documents the claimant were in breach of their own SRA code as well as over-riding objective’ in the pre action protocol.

3.1.6 No contract formed due to the failure to provide adequate grace periods: The purpose of which is to provide sufficient time for an individual to read the terms of a contract and decide he they agree to them. Adequate grace periods range from 5 – 15 minutes.

3.1.7 Even if there was a contract it would be non-binding as the contract fails informational requirements for contracts laid down in the Consumer Contracts (Information, Cancellation And Additional Charges) Regulations 2013, enacted 13 June 2014. Clause 13(1) of the act states that a contract is not binding on a consumer if the correct ...

3.1.8 The reasons for the charge issued by the claimant, as evidenced by the PCN and NTK, show this charge to be a penalty and not merely an invoice as would be expected as part of an agreed contract. Therefore, the alleged charge is not saved by the case law established in ParkingEye v Beavis [2015] UKSC 67 which confirmed that the penalty rule is engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case resulting from prominent lettering on the signs, which do not resemble this claim.

3.1.9 The claimant believes the defendant to be in breach of contract based on a contractually agreed sum for the provision of parking however the defendant has not been provided with a valid VAT invoice for this 'service'.

3.1.10 As per the IPC Code of Practice 15 paragraphs 1 it made clear that drivers should be allowed a sufficient amount of time to park and read any signs so they may make an informed decision as to whether or not to remain on the site. I submit that 5 minutes isn’t sufficient time and so this requirement of the IPC code of conduct was breached. Furthermore, the defendant believes the claimant has also breached the IPC code of practice paragraph 14.1 by not allowing any grace period

3.1.11 The defendant believes that stopping a car for 5 minutes whilst asking for directions to a destination cannot be construed in any way as parking. Indeed, the definition of parking was clarified in a recent appeal case - Oxford County Court, JOPSON V HOME GUARD SERVICES, case number: B9GF0A9E - on 29.6.16 by Senior Circuit Judge, Charles Harris QC. The Judge drew a distinction between brief stopping for a 'minor vicissitude' and parking, which he defined as more long-term.

This echoes the view of Lord Neuberger in Moncrieff and Another v Jamieson and others: HL 17 Oct 2007 where at paragraph 123 Lord Neuberger held that to 'park vehicles' was 'to station them on a longer term basis' as opposed to 'the coming and going of motor vehicles along the way...[including]...the right to turn round such vehicles, and to station such vehicles for the purpose of loading and unloading (people and goods)...'

Therefore it is appealed that the conduct of the defendant was merely the normal action of coming and going while looking for a destination. Given the time elapsed, it is believed that the operation of Link Parking is one of several private parking entrapment sites notorious up and down the Country; what else can explain why there be a employee immediately available in such a place inadequately signed and not marked as a no-stopping zone? The parking attendant was clearly on site – why did they not politely ask me to move on or explain the rules of the car park which would surely be expected to avoid said predatory tactics.

It would appear that this is an example of the predatory situation that the Government announced it was taking steps to end. In a press release entitled 'New measures to protect consumers from debt claims' parking companies have been especially singled out in a promise to: ''assess the role of parking companies and examine how drivers are informed of fines...And the Department for Communities and Local Government will be taking further steps in due course to tackle poor practice by private parking companies.''

3.1.12 No sum payable to this Claimant was accepted nor even known about by the defendant as they were not given a fair opportunity to discover the onerous terms by which they would later be bound due to inadequate grace period given.

3.1.13 The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper. In this case, £100 & not the £242.69 previously requested

It is important to note that after the judge requested an explanation of this sum, the claimant and their solicitors reduced this to £150 (plus a minimal amount of interest) omitting a £25 court fee & £50 legal representative fees. The defendant understands that such costs are not recoverable in small claims whilst the now requested £150, includes an additional cost of £50 for damages. No explanation has been given to explain what these damages are despite a request by Judge XXX to do so. In any case, as with the additional fees that have now been removed, £50 in damages cannot be claimed in a small claims court – qualified solicitors who are experienced in this area of law would know this.

The defendant believes the £100 ‘debt’, a sum which also hasn’t been broken down, will have included all nominal charges so no losses have occurred. Indeed, in the case of Parkingeye v Beavis (2015) a lesser sum of £85 was set high enough to cover the costs of the car park enforcement business model whilst also allowing for profit. Therefore, the defendant believes the claimant to be making a clear attempt to extort money from the defendant by adding costs with no clear reason and as such, may be deemed to be an attempt at double recovery, which the POFA Schedule 4 specifically disallows. The protection of freedom act (5) does not allow for more than the original charge to be collected.

3.1.14 The claimant has failed to establish their legal right to bring a claim against the defendant either as the landowner or the agent of the landowner by not providing a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). No indication has been given as to the Claimants contractual authority to operate there or bring this claim as required by the Claimants Trade Association's Code of Practice B1.1 which says:

” If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the ‘Creditor’ within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges…”

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. 

5. With regard to template statements, the Defendant observes after researching other parking claims, that the Particulars of Claim ('POC') set out a cut-and-paste incoherent statement of case.  Prior to this - and in breach of the pre-action protocol for 'Debt' Claims - no copy of the contract (sign) accompanied any Letter of Claim.  The POC is sparse on facts about the allegation which makes it difficult to respond in depth at this time; however the claim is unfair, objectionable, generic and inflated.  

..............

The Consumer Protection from Unfair Trading Regulations 2008

Section 5 Misleading Actions

24. Misleading actions

5.—(1) A commercial practice is a misleading action if it satisfies the conditions in either paragraph (2) or paragraph (3).

(3) A commercial practice satisfies the conditions of this paragraph if—

(b)it concerns any failure by a trader to comply with a commitment contained in a code of conduct which the trader has undertaken to comply with, if—

(i)the trader indicates in a commercial practice that he is bound by that code of conduct, and

(ii)the commitment is firm and capable of being verified and is not aspirational,

and it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise, taking account of its factual context and of all its features and circumstances.

Le_Kirk

That still looks like a witness statement.  Read some other defences that posters have based on the defence template.  Have a look at your status page on MCOL and see if the claimant has applied for and been granted a judgment in default.  The (slightly) good news is that even if you send your defence today it will be shown as being received tomorrow.