Defence Help Gladstone Court Claim

Le_Kirk

KickingNinja12 said:

I parked in a car park that had always been free on a Sunday, for 24 minutes.

Do you mean it was free for 24 minutes or you parked there for 24 minutes? In the defence you have posted you might want to elaborate (slightly) to say that for XX years it has been free on a Sunday and there were no signs to tell locals/regulars about the change. Not sure that your second sentence adds anything to the defence, in fact the judge might ask why you left the car park and then re-entered it.

Coupon-mad

Grizebeck said:

Coupon-mad said:

This lot?  An IPC member that I've never heard of:

http://parkitmanagement.co.uk/

I don't think I have a leg to stand on

100% wrong, thank Goodness.  You need to read the forum more...we win 99% of defended cases and we know what we are doing.

These lot are a little different from a lot of ppcs as in a lot of cases they are PAID by the Landowner to deal with issues

Interesting.

Got any evidence of that financial set up that you can email to me?  Good timing for sharing non 'PCN enforcement-focussed' models with the DLUHC.

KickingNinja12

Le_Kirk said:

KickingNinja12 said:

I parked in a car park that had always been free on a Sunday, for 24 minutes.

Do you mean it was free for 24 minutes or you parked there for 24 minutes? In the defence you have posted you might want to elaborate (slightly) to say that for XX years it has been free on a Sunday and there were no signs to tell locals/regulars about the change. Not sure that your second sentence adds anything to the defence, in fact the judge might ask why you left the car park and then re-entered it.

Sorry I was in the car park 24 mins.

I meant when I left on foot it was down a side entrance and returned to my vehicle that same way therefore didn't pass the pay machine or signage above it.

Google maps shows it hasn't been free for 4 years on a Sunday. I just never really go in to town so just assumed really it was the same as it was the last time I parked there.

KickingNinja12

As this is a company paid to deal with these issues what do you think my chances are?
amended defence below, is this better?

3. The defendant entered the car park under the impression it was a still a free to park space. This was a free to park carpark on Sundays for a number of years. 

The defendant hadn’t used the carpark in recent years and there was insufficient additional signage to make the change in terms clear and obvious.

The defendant exited/and re-entered the car park on foot via the side entrance where there were no visible meters or signs to indicate parking must now be paid for.

KickingNinja12

Hi All,

I now have a court date...could someone check over my witness statement please? Thank You

WITNESS STATEMENT OF DEFENDANT FOR COURT HEARING ON 03/07/2023

 

1.      I am xxxxxx of xxxx, and I am the defendant against whom this claim is made. The facts below are true to the best of my belief and my account has been prepared based upon my own knowledge.

2.      In my statement I shall refer to exhibits within the evidence supplied with this statement, referring to page and reference numbers where appropriate. My defence is repeated, and I will say as follows:

Sequence of events and signage

3.      Firstly, it should be noted that the claimant has appended to their witness statement signage that did not exist at this car park at the time of the alleged contravention. I have appended the actual signage, taken from Google images in the year of the alleged contravention, plus images and a video taken by myself showing the visible signage on entrance and will refer to them throughout.

4.      The approach and entrance to the car park is on a single-track road with double yellow lines (exhibit 01). A Small sign is visible stating Private Land, as per the defence submitted, this was acknowledged but in previous years did not apply to Sundays.  Due to Covid and the resulting changes in the way people shop it had been some time since I had used the car park I used to frequent on a weekly basis.

5.      At the point of entry, the entrance sign does not state any terms and conditions or an indication these had been changed from the previous conditions accepted. (exhibit 01 and 02). In the BPA CoP V7 in para 18.10 regarding change of terms it states “Where there is a change in the terms and conditions that materially affects the motorist then you must make these terms and conditions clear on your signage” The only viewable signage is the entry sign (exhibit 01) which does not mention anything related to a risk of paying £100 or that tickets must be purchased within 10 minutes.

6.      After parking in one of the bays on the right (Circled Red exhibit 03) I left through the exit (Circled blue exhibit 03) on foot. There were no visible signs showing the terms and conditions of the updated parking terms. 

7.      On returning to the vehicle I entered the car park through the same entrance I initially exited the car park, and drove out of the same entrance I entered through, there were no terms and conditions signs in this half of the car park.

8.      5 weeks later I received a PCN for £100.

 

Redacted Landowner Contract

 

9.      The Claimant has appended a redacted ‘landowner contract’ 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 penalise genuine patrons, and even the signatories could be anyone (even a stranger to the land?). It is clear that two Directors have not signed this contract for either party, contrary to the Companies Act. The network of contracts are key in these cases, since the parking charges are argued to be contractual and the authority to sue visitors must flow from the landowner, not an agent.

10.  In the recent Court of Appeal case of Hancock v Promontoria (Chestnut) Limited [2020] (exhibit 04) EWCA Civ 907 the Court of Appeal are now clear that most redactions are improper where the Court are being asked to interpret the contract. https://www.bailii.org/ew/cases/EWCA/Civ/2020/907.html Ref. paras 74 & 75 ''...The document must in all normal circumstances be placed before the court as a whole. Seldom, if ever, can it be appropriate for one party unilaterally to redact provisions in a contractual document which the court is being asked to construe, merely on grounds of confidentiality...confidentiality alone cannot be good reason for redacting an otherwise relevant provision...''

 

Abuse of process - the quantum

 

11.  The Claimant has added a sum disingenuously described as 'damages/admin' or 'debt collection costs'. The added £75 constitutes double recovery and the court is invited to find the quantum claimed is false and an abuse of process - see exhibit 05 - transcript of the Approved judgment in Britannia Parking v Crosby (Southampton Court 11.11.19). That case was not appealed and the decision stands.

12.  Whilst it is known that another case that was struck out on the same basis was appealed to Salisbury Court (the Semark-Jullien case), the parking industry did not get any finding one way or the other about the illegality of adding the same costs twice. The Appeal Judge merely pointed out that he felt that insufficient information was known about the Semark-Jullien facts of the case (the Defendant had not engaged with the process and no evidence was in play, unlike in the Crosby case) and so the Judge listed it for a hearing and felt that case (alone) should not have been summarily struck out due to a lack of any facts and evidence.

13.  The Judge at Salisbury correctly identified as an aside, that costs were not added in the Beavis case. That is because this had already been addressed in ParkingEye's earlier claim, the Beavis High Court (endorsed by the Court of Appeal) case ParkingEye v Somerfield (ref para 419): https://www.bailii.org/ew/cases/EWHC/QB/2011/4023.html ''It seems to me that, in the present case, it would be difficult for ParkingEye to justify, as against any motorist, a claim for payment of the enhanced sum of £135 if the motorist took the point that the additional £60 over and above the original figure of £75 constituted a penalty. It might be possible for ParkingEye to show that the additional administrative costs involved were substantial, though I very much doubt whether they would be able to justify this very large increase on that basis. On the face of it, it seems to me that the predominant contractual function of this additional payment must have been to deter the motorist from breaking his contractual obligation to pay the basic charge of £75 within the time specified, rather than to compensate ParkingEye for late payment. Applying the formula adopted by Colman J. in the Lordsvale case, therefore, the additional £60 would appear to be penal in nature; and it is well established that, in those circumstances, it cannot be recovered, though the other party would have at least a theoretical right to damages for breach of the primary obligation.''

14.  This stopped ParkingEye from using that business model again, particularly because HHJ Hegarty had found them to have committed the 'tort of deceit' by their debt demands. So, the Beavis case only considered an £85 parking charge but was clear at paras 98, 193 and 198 that the rationale of that inflated sum (well over any possible loss/damages) was precisely because it included (the Judges held, three times) 'all the costs of the operation'. It is an abuse of process to add sums that were not incurred. Costs must already be included in the parking charge rationale if a parking operator wishes to base their model on the ParkingEye v Beavis case and not a damages/loss model. This Claimant can't have both.

15.  This Claimant knew or should have known, that by adding £75 in costs over and above the purpose of the 'parking charge' to the global sum claimed is unrecoverable, due to the POFA at 4(5), the Beavis case paras 98, 193 and 198 (exhibit - 06), the earlier ParkingEye Ltd v Somerfield High Court case and the Consumer Rights Act 2015 ('CRA') Sch 2, paras 6, 10 and 14. All of those seem to be breached in my case and the claim is pleaded on an incorrect premise with a complete lack of any legitimate interest.

16.  This Claimant has failed to provide adequate notice of any terms, let alone the parking charge, which is not 'prominent' in reality. It is noted that the Claimant is relying upon 'stock' images of signs which are not as they appear in situ, and a mock-up 'aerial view' where an unidentified person has dotted markings all over the image yet with no evidence that this is true. I am local and took the evidence video appended to this statement myself (in June 2022), as well as taking images from Google Maps dated November 2020 showing the view of the car park as it still stands now. I can state from my own knowledge that there are nothing like that many signs in this car park.

17.  Not drawing onerous terms to the attention of a consumer breaches Lord Denning's 'red hand rule' and in addition the global sum on the particulars of claim is unfair under the CRA. Consumer notices are never exempt from the test of fairness and the court has a duty under s71 of the CRA to consider the terms and the signs to identify the breaches of the CRA. Not only is the added vague sum not stated on the notices at all (despite the Claimant claiming it is in their Witness Statement in writing and by appending signage that does not exist at the car park), but the official CMA guidance to the CRA covers this and makes it clear that words like 'indemnity' are objectionable in themselves and any term trying to allow a trader to recover costs twice would (of course) be void, even if the added sum was on the signs.

Statement of truth:

I believe that the facts stated in this Witness Statement 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.

SIGNATURE

Coupon-mad

Grizebeck said:

Coupon-mad said:

This lot?  An IPC member that I've never heard of:

http://parkitmanagement.co.uk/

I don't think I have a leg to stand on

100% wrong, thank Goodness.  You need to read the forum more...we win 99% of defended cases and we know what we are doing.

These lot are a little different from a lot of ppcs as in a lot of cases they are PAID by the Landowner to deal with issues

Thought it was this IPC firm?

You can't quote from the wrong Code of Practice.

The rest is good except doesn't seem up to date as it doesn't mention the new incoming statutory CoP, nor does it include Excel v Wilkinson as seen in the recent exemplar WS by @aphex007 and @SJRRJS

Le_Kirk

3.      Firstly, it should be noted that the The claimant has appended to their witness statement signage that did not exist at this car................

Why do you need "Firstly" as you do not go on to say secondly or thirdly. Just start as indicated above.