PCM/Gladstones Court Claim

TheSecretSocialist

"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 outlined is not accepted and denied by my Company."

How does this in anyway undermine the defendants claim? Why would the defendant not knowing the finer details of the laws and policies they quote mean that those laws and policies were not relevant to the case?

Coupon-mad

Coupon-mad said:

Yes PLEEEASE use it!  

I want to see how posters adapt it to suit, replacing the example (about an Airport no stopping case, within that WS) with suitable similar stuff to support your case.

I encourage everyone to use it and to use the DLUHC 2022 temporarily withdrawn but now 'live' again Code of Practice, which I'm afraid you must read in order to find the definitions & clauses where they say useful things that support your case.

I helped create that statutory Code and there are silver bullets throughout that can be quoted by defendants to show that a reasonable PPC would have cancelled the PCN, or not raised one at all.

The example WS has just been edited so that the second link (to the DLUHC's analysis) now works:
https://forums.moneysavingexpert.com/discussion/comment/80206828/#Comment_80206828

Defendants can ignore it where the other side accuse them of the heinous crime of 'using a template from t'internet'....!

Judges do not care.  You are entitled to seek assistance and the allegation if using a template  WS is better aimed at parking firm bulk litigators.  Most Judges are not stupid and will see right through this rubbish!

DrAculaGonzo

Coupon-mad said:

The example WS has just been edited so that the second link (to the DLUHC's analysis) now works:
https://forums.moneysavingexpert.com/discussion/comment/80206828/#Comment_80206828

Oh no. Can you tell me what you've changed? I just spent hours adapting the previous template and was about to post it here for some final feedback.

Coupon-mad

I haven't changed anything.

DrAculaGonzo

Coupon-mad said:

I haven't changed anything.

coolio, I misread your post to imply that you changed other things than just the link. I will post my WS shortly.

DrAculaGonzo

Guys, thanks as ever for all help and comments:

Few points:
1. It was suggested earlier in my thread that I should consider using a blurry photo of the sign hidden by foliage etc in my case. I somehow don't think this adds to the weight of my arguments. The signage is visible, was just next to the car. The problem is with its contents, but that's obvious from the sign exhibits the claimant has included in their WS. Am I ok to not submit anything on that front? 
2. In relation to above, the only thing I am thinking that is worthwhile, from having read some other comments, is a video, image from the road showing no entrance signs. As the contravention in question happened in loading bays adjacent to a public road the only signs that exist are positioned on the pavement next to the loading bay. Please advise if to include anything here and if so where to plot it into the WS?
3. With regards to all the cases relied upon in the defence, i take it I only need to include them as exhibits where the template suggests? E.g. in this para in template WS no mention of including anything as exhibit is mentioned? 

"In support of my contention that the sum sought is unconscionably exaggerated and thus unrecoverable, attention is drawn to paras 98, 100, 193, 198 of ParkingEye Ltd v Beavis [2015] UKSC67 ('the Beavis case'). Also ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was £75, discounted to £37.50 for prompt payment. Whilst £75 was reasonable, HHJ Hegarty (decision later ratified by the CoA) held in paras 419-428 that unspecified 'admin costs' inflating a parking charge to £135 was not a true reflection of the cost of a template letter and 'would appear to be penal'."

My facts and sequence of events paras are below - please give feedback on what needs 

3. I am the leaseholder of a flat in the residential development concerned. PCM has been introduced to the site in late 2014 without consultation with residents and, in my specific case, without prior notice (the letter which supposedly informed residents of PCM starting to enforce the ‘rules’ was never delivered to me). After initial (and informal) ‘grace’ period where enforcement was patchy, PCM started issuing ‘PCNs’ en masse.

4. Loading bays in question have been originally intended for the commercial units on the ground floors of the development’s buildings however, due to the fact that these units remain largely unoccupied (15 years from completion of the development), these bays are virtually always empty and unused. Given the lack of any other genuine usage local residents have for years used these bays in order to load, unload or temporarily stop for other reasons. This was the case both prior to and after introduction of PCM to site and is an indirect proof that residents’ life would be nigh impossible should they not be able to resort to use these bays from time to time for the purposes described.

5. My vehicle, driven by a family member who, like me, is a resident at the development, has been ‘stopped’ in the loading bay in order to gain reasonable access to the property. While the details of specific events on the day are not known to the me due to the lack of direct involvement, the only reason why the vehicle is ever stopped in the loading bay is for the purposes of loading and unloading. Typically the ‘stay’ does not last longer than 10 minutes taken to bring the shopping bags home and unload frozen/refrigerated goods before returning to the car to take it to the off site car park. Neither myself nor any other drivers of my vehicle actually park the car in the loading bays in question.

6. Family member in question is frequently required to stop in the loading bay in order to unload and deliver multiple heavy shopping bags to home before returning to park the car in the off site car park. To avoid doing so would require the person in question to carry bags weighing as much as half their body weight for several hundred meters from the location of the off site car park (refer to local area map in exhibit LM1), which would be a severe hindrance in daily life.

7. Due to previous experience of appeals process against these private PCNs and realisation that they are completely arbitrary and unfair I have not challenged the PCN at any stage.

The Private Parking Code of Practice - the below is all I've managed to find - am I missing something substantial?

12. This Private Parking Code of Practice includes the following which supports my case:

In Annex F, section F.1, point 2 it says: “It is also good practice, where possible (e.g. at hospitals or GP surgeries), to mark dedicated drop-off and/or loading areas with adjacent signs stating the maximum time allowed”

In Annex G, section G.2, it is expected that “landowner confirms that they have considered with the operator (…) arrangements and exemptions for loading/unloading and deliveries”

The point below was slightly changed from original, hopefully for the benefit of my case, but please advise:

14. The car was stopped for a very brief period of time consistent with a consideration period, only to allow unloading the goods which, as the Jopson vs Homeguard (case number B9GF0A9E) case has established, does not constitute parking. It was then moved from the private land, thereby signalling that the driver did not accept any contract (if such were to exist and be valid - but no such contract was seen or in view).

I am not clear on what template WS says here - why is the below being stated please?

22. In addition, pursuant to Schedule 4 paragraph 4(5) of the Protection of Freedoms Act 2012 ('the POFA') the sum claimed exceeds the maximum potentially recoverable. It is also disproportionate and in breach of the Consumer Rights Act 2015.

Per below and in line with my initial two points, I've added reference to Claimant's evidence in terms of signage. I see no benefit in including this myself unless you convince me otherwise?

26. The Supreme Court clarified that ‘the penalty rule is plainly engaged’ in parking cases, which must be determined on their own facts. That 'unique' case met a commercial justification test, given the location and clear signs with the charges in the largest/boldest text. Rather than causing other parking charges to be automatically justified, that case, in particular, the brief, conspicuous yellow & black warning signs (see Exhibit LM 2) - set a high bar that this Claimant has failed to reach (as shown in penultimate page of Exhibit GS 4 of Claimant’s Witness Statement)

For para below I wasn't sure which paragraph from Beavis I was meant to include so I just included what follows. Can you please let me know if I am on the right track and/or missing something?

27. Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of a 'legitimate interest' in performance extending beyond the prospect of compensation flowing directly from the alleged breach. The intention cannot be to punish a driver, nor to present them with hidden terms, unexpected/cumbersome obligations nor 'concealed pitfalls or traps'. (See Exhibit LM 3 for a paragraph from ParkingEye v Beavis).

Exhibit LM 3

205. (…) The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer. Fair dealing requires that a supplier should not, whether deliberately or unconsciously, take advantage of the consumer’s necessity, indigence, lack of experience, unfamiliarity with the subject matter of the contract, weak bargaining position or any other factor listed in or analogous to those listed in Schedule 2 to the Regulations. Good faith in this context is not an artificial or technical concept; nor, since Lord Mansfield was its champion, is it a concept wholly unfamiliar to British lawyers. It looks to good standards of commercial morality and practice. Regulation 4(1) lays down a composite test, covering both the making and the substance of the contract, and must be applied bearing clearly in mind the objective which the Regulations are designed to promote.”

For below, I am not sure the sentence structure makes sense - what are we trying to say here?

28. In the present case, the Claimant has fallen foul of those tests. Court of Appeal authorities which are on all fours with a case involving a lack of ‘adequate notice’ of a charge, include:

Observations re Claimant's WS - I tried - let me know how it worked out in your view. I am not super clear on the first point (point 26 of the new template WS) which in the template talked about PoFA, but in not very clear terms (to me anyway). Am I ok to omit this or is it saying something important that I need to reinsert?

29.  Most of Claimant’s witness statement, but especially Paragraphs 4 and 17 are clearly a template response. This is easily seen by looking at paragraph 22, which falsely claims that the PCN was appealed, which I can certainly confirm has not been the case.

30. In paragraph 28 the Defendant states that no images were provided of the unloading activity. I would like to point to the fact that it cannot be reasonably expected for anyone to be photographing their shopping in front of the car in the remote expectation that a rouge parking management company decides to pursue false claims against them.

31. In paragraph 29 the Defendant fails to address paragraph 4 of my submitted Defence. Furthermore, in the last page of exhibit GS 4 they assert that postal notice was chosen “to avoid conflict with driver”, which is laughable given the driver was a short (160cm) skinny lady.

33. In paragraph 31 the Defendant appears to conflate the off site car park (which I have a permit for) with the loading bays in question in this court case which are accessible from and adjacent to a public road. The conclusions reached by the Claimant are therefore too far reaching and simply wrong.

Re response to their WS I am also not sure if I should respond to paras below. Re 30 - not sure if it's worth responding and if so how? For 31 should I include leasehold agreement and address the fact that in my defence I referred to it as tenancy agreement? 

30. Whilst they claim that they were not afforded a grace period, the breach had already occurred as

they had parked in the hatched area. The permit was not valid as they were not parked in a bay

corresponding to the permit, and they were not parked within a bay at all. Given that the breach

had already taken place, a grace period was not applicable.

31. The Defendant cites their tenancy agreement states that there is no requirement to pay parking

charges, however they have failed to provide a copy of the tenancy agreement to substantiate their

position. Notwithstanding this, they are in possession of a permit and therefore are aware of the

scheme put in place by the Claimant, they chose to park otherwise in accordance with the terms.

Point 28 of original template is in tact.
Point 29 - I'm not so clear what to include as exhibit? Can you help?
Point 30 is unchanged.
Point 31 I propose to delete as they do have a contract with landowner and included it in their WS?
Points 32-35 are unchanged, but re point 34 what does that mean in £ value? Do I need to be prepared to answer some questions about this?

Finally, how do I submit it? Is it the just the court where the case is being heard or also the original email address where the defence was submitted? I need to get it in by the 14th.

Many thanks to all who can help.

YankeeBrit

Your WS should be written in the First Person. It is your WS in your own words. Your court paperwork assigning your case to your local court should have the deadline for submitting your WS bundle. Usually, it is required no less than 14 days before the hearing. You don't send anything to the CCBC.

Find a court or tribunalGOV.UKhttps://www.gov.uk › find-court-tribunal for email address to send your WS to (and the claimants solicitor)

Coupon-mad

Point 29 - I'm not so clear what to include as exhibit? Can you help?

I don't know which para is which but these are standard exhibits seen in the exemplar WS Bundle by posters like @aphex007

I agree: don't show signage pics if you think they don't help.  It's your case so you know it best.

DrAculaGonzo

Thanks, is anything from what I've written jumping out as needing more though/rewriting etc?

Coupon-mad

No idea.  Show us the whole thing (redacting your data)!  Copy & paste it across two or three replies.