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

Yanness

Morning guys, 

I was wondering if it will be wise to actually communicate with you, Coupon-mad and Umkomaas in private messages about my defense as it seems like they are monitoring cases online. 

And I don't want to give them the tools to bring me down.

What do you guys think? 

Cheers 

Le_Kirk

Always best to put your defence on the forum and that way more of the regulars will be able to read and critique it for you.  Just keep personal details out of the defence but if you are using the template defence or @Johny86's defence they all over the forum anyway!

Yanness

I forgot to mention you in the list Le-Kirk  . My bad.

It is only because in their response to the judge they mentioned, me getting my information from "those online websites".

My plan was to post on the forum, all relevant discussions I had in private with you guys, after the court date.

Because I'm sure they are monitoring us to find any relevant information against me or others. 

Fruitcake

There is nothing wrong from researching court procedures and self help online forums in order to assist you. When a claimant has brought this up in court, some judges have been known to say, "So what?"

The claimant will see everything you submit/have submitted to them and the court. It won't matter what you put on this forum as long as it is redacted. 

Not every regular on this forum accepts PMs, and in any case, you would only get one opinion in response, not the collective knowledge of all the regulars.

B789

Stop being paranoid about the men in black who are monitoring you. They are a figment of your imagination. Just consider how many cases these robo-claim scammers have going on at any one time. Do you really think they employ enough dedicated staff to be scraping the internet for individual cases in order to get some kind of advantage? 

Coupon-mad

Yanness said:

I forgot to mention you in the list Le-Kirk  . My bad.

It is only because in their response to the judge they mentioned, me getting my information from "those online websites".

My plan was to post on the forum, all relevant discussions I had in private with you guys, after the court date.

Because I'm sure they are monitoring us...

That's standard.  They always say that. It us desperation and a Judge will say "so what?"

They are not monitoring this specific thread; they can tell from your submissions that you are on MSE, that's all.

I rarely reply to pm's.  No time -  and there is honestly no need to ask for help off forum.

Yanness

Grizebeck said:

Yanness said:

Afternoon guys,

I have received a letter from the Court titled "Notice of Allocation to the Small Claims Track (Hearing). I guess I've got my hearing date now which will be on June 26th.

But it is strange that the WS deadline is on February 7th. It's so early. Is that weird?

Cheers

No quite normal

Hi guys, 

I am getting ready to post my analysis of the claimant's witness statements. 

Is it wrong to put the actual name of their witnesses? 

And also can I ask the court to reject all documents submitted after the deadline of 7 February 2023, including the witness statement of a second witness as they have submitted it past the deadline the judge gave? 

I submitted my witness statement on 7th of February 2023, their first witness statement was submitted 7th of February and a second one was submitted as a Supplementary witness statement on 21st of April 2023 including other document as per the picture below. 

Coupon-mad

That's a Trial Bundle and it is perfectly proper that they have supplied it to assist the court, so that you, their legal rep and the Judge are literally on the same page.

You can raise at the hearing that they added a very late witness statement two months after the deadline without asking for relief from sanctions. 

Some Judges would strike it out.

Other Judges would say you haven't been disadvantaged and have had  2 months to read it.

Yanness

Hi everyone,

Here is the claimant analysis. Please bear with me as I am not an expert and my English language is limited because I'm not a native speaker. If necessary I will edit this post to correct certain things.

Also I have omitted certain points which are known i.e. the witnesses' explanation that their client comply to the rules and regulations.

I have also done the analysis in chronological order as they appeared in the witness statements.

----------------------------------------------------------------------------------------------

 

TABLE OF CONTENT

1.     Witness Statement 1

1.1.      Background

1.1.1.       Landlord Agreement

1.1.2.       Membership of a parking association

1.1.3.       KADOE

1.2.      Claim

1.2.1.       Site details

1.2.2.       Format of the contract

1.2.3.       Defendant breach of ToC

1.2.4.       PCN

1.2.5.       Use of ANPR

1.3.      The defence

1.4.      Claimant’s response

2.     Witness Statement 2

2.1.      Claimant’s response

 

 

The defendant has rejected the claimant’s claim due to parking under mitigating circumstances (my child was crying and quite hungry) and the irregularities observed at the parking location afterward.

The claimant witness 1 started their witness statement by explaining the background, their claim itself, the defence assertion and the claimant’s response.

The claimant witness 2 said its witness statement is dealing with points which have not been raised by the 1st witness statement dated 6th February 2023 and got on directly with the claimant’s response to the defendant’s allegations.

    1.         Witness Statement 1

                1.1.         Background

The witness went on about Minster Baywatch involvement in the enforcement of parking on private land and doing so with a Landlord agreement. They explained they are members of the BPA, conform to strict codes of practice and are signatory to the KADOE. All this to give them credibility in this business.

                            1.1.1.         Landlord Agreement

The claimant has a Landlord agreement authorizing the management and enforcement of parking on the land in return for a right to raise charges from users of vehicles who infringe the regulation. The agreement was added as an exhibit. But there are questions about it later on.

                            1.1.2.          Membership of a parking association

The claimant is a member of an accredited Trade Association, the British Parking Association (BPA) and has Approved Operator Status

                            1.1.3.         KADOE

The claimant is signatory of the KADOE.

                1.2.         Claim

                            1.2.1.         Site details

The claimant manages the Cotswold, Lakeside Car Park with agreement shown in its exhibit.

The claimant alleged the “regulations” or Terms and Conditions are displayed on large highly prominent signs, conforming to the BPA Code of Practice and erected by the claimant at various points throughout the car park.

And they said:

 “The signs are clearly displayed throughout the site as evidenced by the attached site plan (exhibit reference below), and the defendant would have had 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 Term and Conditions. It is the signage that forms the basis of the contract between the driver and the Claimant (the Contract) ...

… terms and conditions are clear and fair… however, if the motorist believes them not to be, they always have the option to leave, and not enjoy the benefits offered from using the private car park. If they chose to remain in breach of the terms and conditions of parking at the site, the claimant avers that they agree to pay the parking charge, detailed on the signage.

… the recipient of the PCN is afforded the opportunity of appealing the PCN... In the event that the recipient fails to exercise their right to appeal via internal appeals process or they are dissatisfied with the outcome they have the right to make an appeal to the POPLA service.”

Then the witness explained what the POPLA service is.

If I remember reading right, the BPA Code of Practice says the words “Terms and Conditions” MUST BE written on signs and there must be a good contrast and illumination.

Do you guys think I can argue that as per BPA rules. I surely cannot read the writings on the signs as they are white writing on yellow background for example. See their exhibit pictures from there witness statement.

Note the signs are different to the ones I have taken in the car park. But it shows how careless they are.

                            1.2.2.         Format of the contract

The witness continued with an explanation of the contract:

“The signage situated across the car park forms a unilateral offer to anyone wishing to park their vehicle at the location. As the offer is a unilateral one, there is no need for the motorist to communicate their acceptance, as the act of parking or remaining (as opposed to leaving) in accordance with the Terms and Conditions, is the act of acceptance.

The defendant, by entering and proceeding to park the vehicle at the car park, willfully agreed to abide by the Terms and Conditions, including those terms applicable to any breach.”

But the signs were not displayed at the entrance directly from the highway (red line shown in picture below) and at various other locations in the car park (red circles in picture below added by the defendant) notably where I have parked.

As per claimant’s legend, the red line is the sole entrance and exit onto the site, the blue triangle represents the entrance sign, tariff board and payment terminal and the yellow circles are the enforcement signs. See picture below.

And the claimant said again that they have a legitimate interest and sufficient standing to issue PCNs and bring proceedings in its own name.

                            1.2.3.         Defendant breach of ToC

The claimant said the defendant breached the ToC of the contract since the registration number of the car doesn’t appear on the record of vehicles which paid for their stay concluding that the vehicle was parked in contravention of the ToC.

                            1.2.4.         PCN

The claimant explained that a PCN was issued after the details were obtained from the DVLA under the terms of the KADOE.

And that the defendant has duly responded by making a SAR and because no payment was made, the claimant made a liability notice - demand for payment of unpaid charge.

                            1.2.5.         Use of ANPR

I am wondering if this is important but I am not sure the claimant has signed up to the Surveillance Camera Commissioner's Code of Practice as said in the BPA Code 21.5.

 

 

                1.3.         The defence

The claimant listed the defence’s claims as per this threat saying:

the defendant does not deny being the driver, the registered keeper of the vehicle, parking at the location, ignoring the claimant's letters and failing to make a payment which has led to the proceedings being issued and a final hearing.

It concluded that the defence is entirely without merit.

                1.4.         Claimant’s Response

                                1.4.1.         The claimant was patronizing and condescending. And so, what? I have all the right to do my own research.

Quoting the claimant:

“The claimant would like the court to note that the Defendant is using a generic defence which can be found on the internet and it is highly doubtful that the defendant would understand the complexities of all the references to the Civil Procedure Rules, the requirements in the Protection and Freedoms Act (POFA) and in established case law, which is often the case when a defendant is questioned about such references at Court. Therefore, everything that the Defendant has outlines is not accepted and denied by the Claimant”.

                                1.4.2.         The claimant said the mention of not being able to turn around, if the motorist doesn't want to park at the location is irrelevant because the defendant had all the intentions to park anyway.

But the point was to show the irregularities and difficulties of their parking location.

                                1.4.3.         The claimant mentioned that the signs were just at the front of the vehicle when entering and exiting the car park. But my point is the defendant didn’t see the sign as the defendant was focused on parking quickly to feed the child who was really hungry and crying. So, the defendant was already stressed and in a difficult situation.

                                1.4.4.         The claimant simply rejected the defendant's points where the defendant mentioned the small and short description not being visible from the highway when entering the car park from the highway, as shown as a red line in their picture and the ‘onerous’ clause of the charge and contractual terms in accordance with this trite of law because it is hidden in small print. Because for them there are sufficient signs on the site. But there was no sign in front of me where I was parked.

                                1.4.5.         The claimant claimed they have dealt with the SAR but they have not provided the Whitelist which is the record of all payment on that day. So, this was not provided.

 

Yanness

 

    2.         Witness Statement 2

I intend to raise at the hearing that they added a very late witness statement two months after the deadline without asking for relief from sanctions as stated by Coupon-Mad

I will ask the Court to not consider this Witness Statement 2 dated 27th of April 2023 and other added documents as they have been filled later than the deadline for submission as stated by the statement "which have not been raised by the 1st witness statement dated 6th February 2023".

The deadline was 7th of February 2023.

                2.1.         The Claimant’s response

                                2.1.1.         The Claimant said it grants a contractual license to all which is inferred by the nature of the land and the lack of any general prohibitions of entry of signage. Basically, pay or be charged £100.

And said: “the acceptance was at the point the defendant decided to park, having read the sign, and the consideration was the promise to pay £100 for the privilege of parking outside normal conditions.

...The rules of interpretation require that the parties know of their obligations to one-another. The defendant was offered to use the land and thereafter either follow the rules and park for free or in breach of the rules and agree to pay £100.”

The claimant cited ParkingEye v Beavis saying:” it was accepted as an established principle that a valid contract can be made by an offer in the form of the terms and conditions set out on the sign, and accepted by the driver’s actions.”

But I have not read the sign as I was quite busy with my child and there was no sign in front of the car where I parked.

                                2.1.2.         The claimant rejected the KADOE claim because they have an agreement with DVLA.

The claimant rejected Schedule 4(1) of the Protection of Freedoms Act 2012 citing their right to recover any unpaid charges.

But I can still argue that the maximum they can claim is what is listed in the PCN.

They argue they had legitimate grounds for collecting and using data.

 

                                2.1.3.         Issue of authority

The agreement shown in the witness statement is between Cotswold Water Park Society Limited and Minster Baywatch only.

But the claimant Minster Baywatch says it manages parking at the site in accordance with a license agreement with Bransby Wilson Parking Solution Limited - BWPSL (formally Bransby Wilson Limited) with the latter having entered into an agreement with Mecca Bingo Limited to implement a parking management scheme at the site?

And apparently under the terms of that agreement BWPSL is authorized to appoint an agent/third party to carry out the enforcement works at the car park.

Now BWPSL is not a party in the agreement between Minster Baywatch and the Landlord Cotswold Water Park Society Limited. And this is the first time I hear of this Mecca Bingo Limited which is not mentioned anywhere on their signages.

And the claimant is citing Vehicle Control Services vs HM Revenue & Customs [2013] EWCA 186 and the Beavis case to justify that parties need not to show they have a right to do what they have promised in the performance of a contract, nor is (in the case of a parking operator) the agreement between Operator and Landowner of any relevance.

But the agreement is between Minster Baywatch and Cotswold Water Park Society.

All this is really suspect and dodgy. 

 

                                2.1.4.         Prejudice.

The claimant decided there is no prejudice to the defendant as he/she was able to produce a substantive defence.

                                2.1.5.         Similarity or not with Beavis Case

The claimant specified that this case is similar to the Beavis case while the defence thinks otherwise as per defence document.

The claimant listed the VCS case, where judge Saffman found at paragraph 52:

“In the particular circumstances of the case, as was the case indeed with Mr Crutchley, the outcome, to the effect that Mr Ward is penalised for stopping for no more than 4 seconds to deal with the unforeseen illumination of his car’s engine management light, may be seen to be a harsh one. Nonetheless, that is where the authorities clearly lead me. I really cannot find any basis for a proper distinction between this case and Beavis. It is true that one relates to overstaying in the car park for almost an hour and the other relates to stopping on a road for a matter of seconds but the principles in both are identical. Not only are the principles in Crutchley identical, but the facts are almost identical.”

                                2.1.6.         Claimant’s ability to claim additional costs

The claimant rejected each point the defendant raised because of the following cases.

Vehicle Control Services Ltd and Mr Adam Percy [County Court at Leeds] [28th September 2021] (the “VCS” Appeal”) where HH Judge Saffman found the following regarding costs at paragraph 37:

“Had Mr Percy paid as a result of the PCN (stage 1) there would have been no further work for the appellant to undertake. Because he did not pay, the appellant was obliged to proceed to stage 2 consisting of sending a final notice and … instructing solicitors to send a letter before claim and those solicitors sending the letter of claim. The £60.00 is clearly for stage 2 work.”

The defendant’s submissions with respect to exaggerated costs is addressed in VCS Appeal at para. 39:

“... it is inevitable that further work of some kind is necessary where the motorist does not respond to the PCN. Fundamentally, it requires the appellant to undertake the stage 2 activity which would have been avoided if payment had been made at stage 1. Whether £60.00 is fair for stage 2 work is a different question. It might be unfair but it is not double recovery. It is an attempt to recover in respect of stage 2 work that would not have been incurred if payment had been made in stage 1.”

Furthermore, citing HH Judge Saffman in the aforementioned appeal case, which says at para. 57 that:

“... I am satisfied that the Additional Charges Term is not unfair and the District Judge, in common with a large cohort of his colleagues, has erred in finding that it was.”

The claimant adds due to POFA schedule 4(4.5) the maximum amount of £100 is the one found on the notice to the keeper. But furthermore, it cites POFA schedule 4(6) which states that the paragraph does not affect any other remedy the creditor may have against the keeper. So, it is looking to recover additional costs due to the defendant’s breach of contract.

And listing its contractual right, the claimant cited the information on the signage saying:

“Non-payment will result in additional charges which will be added to the value of the charge and for which the river will be liable on an indemnity basis”

 

                                2.1.7.         Claimant’s no compliance with Protection of Freedoms Act 2012 (The Act)

The claimant says it has complied with the Act specifically paragraph 9(2)(a)-(i) and lists points of the paragraph.

 

                                2.1.8.         The claimant denied the fairness of the ADR as the defendant had the opportunity to appeal the charge internally and further to the IAS and to respond to the Letter before Claim LBC but failed to do so.

 

                                2.1.9.         Defendant’s costs

The claimant denied the cost as the charge was issued correctly. And adding that the driver accepted the charge by parking in breach of the applicable terms.