County Court Defense - Gladstones Solicitors Limited and private Parking Solutions (LONDON) LTD

haibtcr

Hi Everyone - thanks for all the info here.  I have tried reading a lot and have prepared my defense.  Could you please comment and let me know if I am on the right track and what I could improve on?  I have only put the points I am editing or adding.  Need help in Point 8 below, not sure if I should mention Abuse of Process. 
Claim Issue date - 19th April 2023
AOS date - 24th April 2023

Thanks in advance,

The facts as known to the Defendant:

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

3. The Claimant mentions Zone A+B, Holloway Street Hounslow in the Parking Charge Notice issued to the Defendant, but the picture taken was on Matisse Rd.  Holloway street is not accessible by cars. 

4. The Defendant entered a dead-end public road called Matisse Rd in Hounslow.  The defendant then took a U-turn and stopped by the side of the road to ask for directions and re buckle the car seat belt of one of his daughters who had managed to unbuckle it.  The Defendant’s car was stopped partially on a white striped patch and partially on the road which was considerably away from the parking bays marked.   This is clear in the pictures taken by the Claimant.

The Defendant claims that the private parking area does not have a clear demarcation from the public road. The parking bays next to the signage are separated from the public road by white stripes on the public road. When the defendant stopped his car on the side of the road he was not trying to enter the private space.  From pictures taken by the Claimant it can be clearly shown that there is no clear demarcation on the road showing where the private space begins. 

The driver did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.

The Defendant denies that he would have agreed to pay the parking charge of £100 to agree to the alleged contract had the terms and conditions of the contract been legally binding and properly displayed and accessible to a driver.

The alleged contract does not permit parking, but states a parking charge of £100, which is contradictory and confusing. The pictures also show parking bays but signage says no parking at any time.

The Defendant denies that the signs at this location meet the mandatory test of transparency of terms that are 'bound to be seen', as set out within the Consumer Rights Act 2015. For a driver any terms relating to a parking contract would have had to have been extremely clear in all places within the site, in very large letters to ensure all drivers were 'bound to see' the terms. The text used to display the £100 Parking charge is very small and unreadable compared to the ‘NO PARKING AT ANY TIME’ text.

The Defendant claims that the area belonging to the Claimant is not clearly marked.  As seen in the pictures the Defendant has stopped the vehicle at the edge of the white striped area, not in any parking bays. The Defendant is on the edge of a public road and understood that the white striped area is also public access.

8. The Claimant claims an additional sum of £70 as contractual costs and an additional £ 23.18 as interest. 

KeithP

haibtcr said:

Claim Issue date - 19th April 2023
AOS date - 24th April 2023

Hello and welcome.

Matisse Road in Hounslow is mentioned in a couple of very recent threads, but neither have yet reached a court claim. 

With a Claim Issue Date of 19th April, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 22nd May 2023 to file your Defence.

That's less than a week away. Plenty of time to produce a Defence, but please don't leave it to the last minute.

To create a Defence, and then file a Defence by email, look at the second post in the NEWBIES thread.

Don't miss the deadline for filing a Defence.

Do not try and file a Defence via the MoneyClaimOnline website. Once an Acknowledgment of Service has been filed, the MCOL website should be treated as 'read only'.

Coupon-mad

It doesn't look like the template defence is being used?

Maybe it is but that addition is too much detail.  You can save that for WS stage.

Don't add old stuff like 'abuse of process', no.

All paragraphs need a number.

I'd also remove these words (no more and no less):

"The Defendant’s car was stopped partially on a white striped patch and partially on the road which was considerably away from the parking bays marked.   This is clear in the pictures taken by the Claimant. 

The Defendant claims that the private parking area does not have a clear demarcation from the public road. The parking bays next to the signage are separated from the public road by white stripes on the public road."

haibtcr

Thanks KeithP and Coupon-mad for the quick response.  
I am using the defense template from - Template defence to adapt for all parking cases where they add false admin costs - edited March 2022 — MoneySavingExpert Forum

I was thinking of keeping everything that is there in the template. Is it wise to keep everything in, would that be seen as trying everything.  I am just not sure how the judge would see it.    -

In place of Point No.3 in the template I have added the following.  I have kept everything else as it is in the template. Please see below updated - I also agree that this seems like too much detail - Please recommend what to remove.  I have removed what you asked - but also added Point 7.

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

3. The Claimant mentions Zone A+B, Holloway Street Hounslow in the Parking Charge Notice issued to the Defendant, but the picture taken was on Matisse Rd.  Holloway street is not accessible by cars. 

4. The Defendant entered a dead-end public road called Matisse Rd in Hounslow.  The defendant then took a U-turn and stopped by the side of the road to ask for directions and re buckle the car seat belt of one of his daughters who had managed to unbuckle it.  

5. When the defendant stopped his car on the side of the road he was not trying to enter the private space.  From pictures taken by the Claimant it can be clearly shown that there is no clear demarcation on the road showing where the private space begins. 

6. The driver did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.

7. The signage in the car park is of a forbidding nature. The terms are forbidding. This means that there was never a contractual relationship. I refer you to the following case law: PCM-UK v Bull et all B4GF26K6 [2016], UKPC v Masterson B4GF26K6[2016], Horizon Parking v Mr J C5GF17X2 [2016]. In all three of these cases the signage was found to be forbidding and thus only a trespass had occurred and would be a matter for the landowner.

8. The Defendant denies that he would have agreed to pay the parking charge of £100 to agree to the alleged contract had the terms and conditions of the contract been legally binding and properly displayed and accessible to a driver.

9. The alleged contract does not permit parking, but states a parking charge of £100, which is contradictory and confusing. The pictures also show parking bays but signage says no parking at any time.

10. The Defendant denies that the signs at this location meet the mandatory test of transparency of terms that are 'bound to be seen', as set out within the Consumer Rights Act 2015. For a driver any terms relating to a parking contract would have had to have been extremely clear in all places within the site, in very large letters to ensure all drivers were 'bound to see' the terms. The text used to display the £100 Parking charge is very small and unreadable compared to the ‘NO PARKING AT ANY TIME’ text.

11. The Defendant claims that the area belonging to the Claimant is not clearly marked.  As seen in the pictures the Defendant has stopped the vehicle at the edge of the white striped area, not in any parking bays. The Defendant is on the edge of a public road and understood that the white striped area is also public access.

haibtcr

Pics sent through SAR

Coupon-mad

Remove para 10 as this is already fully covered letter in the Template Defence (and yes, you should use it all).

I would add here:

"...and thus, at best, only a de minimis trespass had occurred and that would be a matter for the landowner."

B789

For clarification on para #7 these notes from the "Guidance on Section 56 and Schedule 4 of the Protection of Freedoms Act 2012: Recovery of Unpaid Parking Charges"

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/9155/guidance-unpaid-parking-charges.pdf 

For Schedule 4 to apply the driver of a vehicle must first be liable for unpaid parking charges. There are broadly two situations where a driver could become liable for parking charges:

a. where a driver has entered into a contract to park on private land and failed to comply with the terms and conditions of that contract; or

b. where a driver has trespassed on private land where signs showing charges for unauthorised parking are displayed.

8.1 A driver can be liable to pay a charge for parking on land where parking is not invited and they are trespassing. For Schedule 4 to apply to trespass situations the landholder needs, as a minimum, to place clear signs stating that parking is not permitted and setting out the charge that will be sought for unauthorised parking (i.e. damages for trespass). For example “No parking – charge £50 for unauthorised parking”. Charges sought for trespass must be appropriate (see Q1 of FAQ).

From Q1: "Schedule 4 also provides for parking charges in England and Wales to be recoverable from the registered keeper where a person trespasses on private land by parking a vehicle on the land without permission. In those circumstances a landholder must be able to show he or she has suffered a loss and justify the damages they are seeking to recover for the trespass."

So, are you being sued for 'breach of contract" or for "trespass"?

haibtcr

Thanks B789 

The claim form says that the - The driver parked in breach of the terms of parking stipulated on the signage at xxxx  on xxx thus incurring the parking charge(the 'PCN')
I am guessing that means breach of contract.  The signage says No Parking at any time

haibtcr

Thanks Coupon-mad

Removed Para 10 and updated 7.  Now just waiting for B789 to understand if Para 7 should be included or modified in any way.

Coupon-mad

Just make the small changes advised.

B789

Do as advised by @Coupon-mad.

 was just trying to highlight, maybe for future reference, that these claims are being issued for the wrong reasons. This location has already been featured here several times, very recently. Each claim was for breach of terms but the signage is solely forbidding, not as stipulated for PoFA with the necessary wording and should be for trespass.

8.1 A driver can be liable to pay a charge for parking on land where parking is not invited and they are trespassing. For Schedule 4 to apply to trespass situations the landholder needs, as a minimum, to place clear signs stating that parking is not permitted and setting out the charge that will be sought for unauthorised parking (i.e. damages for trespass). For example “No parking – charge £50 for unauthorised parking”. Charges sought for trespass must be appropriate