Court Summons - Gladstone Solicitors (PRIVATE PARKING SOLUTIONS (LONDON) LTD)

Cisse913

Hi All, 

I have been issued with a court summons by Gladstone Solicitors on behalf of PRIVATE PARKING SOLUTIONS (LONDON) LTD.

Back in August 2018, I visited my local Tesco Express with my former partner. There is a car park to the rear of the Tesco Express which has a handful of car parking spaces to be used by customers. However, on the date in question a large tesco HGV had parked across all of the customer bays whilst awaiting their loading bay to become available (captured in photographs of my vehicle)

There is limited to no street parking for the store, as the store is located besides a roundabout. 

With no other options, and with knowing that we would only be a couple of minutes. My partner and I decided to part in one of the available disabled bays. We urgently needed an item for our sick child, and were in the store for no longer than 3 minutes. Normally, we would have parked within one of the normal customer bays, or on the street should that have been possible at this particular location. 

On exiting the store we simply got back into the vehicle and left. 2 days later I allegedly received a PCN via post relating to the matter. I cannot recall ever receiving the letter. I was then issued with another letter demanding that I pay a sum of £100 (I cannot ever recall receiving this letter too, however have received copies of both having submitted a Subject Access Request).

The nearest signage to the parking bay identifying the terms and conditions of the car park were located to the right hand side of the drivers vehicle, and partially obstructed by a clothes bin. 

I hadn't heard anything for over 4 years until Nov 22  when I received a court summons. 

I wrote to the CEO of Tesco, who at first denied that they were in contract with PRIVATE PARKING SOLUTIONS (LONDON) LTD at the time of the alleged contravention, and then changed their story to state that they were not the land owner (although the Tesco logo features on Private Parking Solutions signage within the car park). Lastly, Tesco claimed as they are no longer in contract with Private Parking Solutions they were unable to intervene with having the PCN cancelled.  

The case has now been relisted to take place in early Aug 23. 

Private Parking Solutions have also sent their witness statement. I am at a slight loss as to what to add in my witness statement. 

Is anybody on this forum able to further advise? Also, is the deadline for the submission of the witness statement at least x2 weeks prior to the court date (this information was not included within the court bundle)? I have also queried the date with the court.

All advice is welcomed .

KeithP

Hello and welcome.

Firstly, there is no summons. You are free to attend any resulting court hearing or not - your choice. It might be foolish not to attend, but there is no compulsion and you won't be arrested and dragged to court.

Can you please show us word for word what you filed as a Defence?

Cisse913

KeithP said:

Hello and welcome.

Firstly, there is no summons. You are free to attend any resulting court hearing or not - your choice. It might be foolish not to attend, but there is no compulsion and you won't be arrested and dragged to court.

Can you please show us word for word what you filed as a Defence?

Thanks for the clarification here Keith. I will definitely be attending the the court case to defend the claim. Please find below my defence word for word (with only redactions of personal information) Just to add, I received no letters from Gladstones regarding the case. The first I heard of Gladstones being involved was on receiving the claim papers:

1. The parking charges referred to in this claim did not arise from any agreement of terms. The charge and the claim was an unexpected shock. 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 was the registered keeper and driver of the vehicle in question.

 

3. On 19/08/2018, the Defendant visited Tesco Express South Harrow (6023) HA2 0AT – 28 Shaftesbury Circle, South Harrow, HA2 0AT to purchase goods. The Defendant parked within the marked bays of the store car park, before proceeding to enter the store. The Defendant recalls the car park being near to full capacity at the time of the visit, with many vehicles having been parked sporadically and outside of marked parking bays. The Defendant was in the Tesco Express Store for no longer than 15 minutes, before exiting the store having purchased goods. This information can be verified by CCTV recordings from the store taken on the day. The Defendant left the store having purchased goods. There was no PCN attached to the Defendants vehicle at the point of arriving at his car and exiting the car park. To date, the Defendant has not seen a copy of a PCN, nor received any other correspondence in relation to the PCN. On 08/11/2022, the Defendant has submitted a Subject Access Request to the Claimant, and their appointed solicitors Gladstones Solicitors Limited. The Defendant awaits response to the Subject Access Request within the relevant legislative time frames.

 

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.

 

6. This Claimant continues to pursue a hugely disproportionate fixed sum (routinely added per PCN) despite knowing that this is now banned. It is denied that the quantum sought is recoverable (authorities: two well-known ParkingEye cases where modern penalty law rationale was applied). Attention is drawn to paras 98, 100, 193, 198 of ParkingEye Ltd v Beavis [2015] UKSC67. 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 (sitting at the High Court; later ratified by the CoA) held in paras 419-428 that unspecified 'admin costs' inflating it to £135 'would appear to be penal'.

 

7. This finding is underpinned by the Government, who have now stated that attempts to gild the lily by adding 'debt recovery costs' were 'extorting money'. The Department for Levelling Up, Housing and Communities ('DLUHC') published in February 2022, a statutory Code of Practice, found here : (new so cannot post this link on here yet)

 

8. Adding costs/damages/fees (however described) onto a parking charge is now banned. In a section called 'Escalation of costs' the incoming statutory Code of Practice says: "The parking operator must not levy additional costs over and above the level of a parking charge or parking tariff as originally issued."

 

9. The Code's Ministerial Foreword is unequivocal about abusive existing cases such as the present claim: "Private firms issue roughly 22,000 parking tickets every day, often adopting a labyrinthine system of misleading and confusing signage, opaque appeals services, aggressive debt collection and unreasonable fees designed to extort money from motorists."

 

10. The DLUHC consulted for over two years and considered evidence from a wide range of stakeholders. Almost a fifth of all respondents to the 2021 Technical Consultation called for false fees to be scrapped altogether; this despite the parking industry flooding both public consultations, some even masquerading as consumers. The DLUHC saw through this and in a published Response, they identified that some respondents were 'parking firms posing as motorists'. Genuine consumer replies pointed out that successful debt recovery does not trigger court proceedings and the debt recovery/robo-claim law firms operate on a 'no win, no fee' basis, seeking to inflate the sum of the parking charge, which in itself is already sufficiently enhanced.

 

11. This Claimant has not incurred any additional costs (not even for reminder letters) because the (already high) parking charge more than covers what the Supreme Court in Beavis called an automated letter-chain business model that generates a healthy profit.

 

12. The driver did not agree to pay a parking charge, let alone unknown costs, which were not quantified in prominent text on signage. It comes too late when purported debt recovery fees are only quantified after the event.

 

13. Whilst the new Code and Act is not retrospective, it was enacted due to the failure of the selfserving BPA & IPC Codes of Practice. The Minister is indisputably talking about existing (not future) cases when declaring that 'recovery' fees were 'designed to extort money'. A clear steer for the Courts.

 

14. This overrides mistakes made in the appeal cases that the parking industry try to rely upon (Britannia v Semark-Jullien, One Parking Solution v Wilshaw, Vehicle Control Services v Ward and Vehicle Control Services v Percy). Far from being persuasive, regrettably these onesided appeals were findings by Circuit Judges who appeared to be inexperienced in the nuances of private parking law and were led in one direction by Counsel for parking firms, and the litigantin-person consumers lacked the wherewithal to appeal further. In case this Claimant tries to rely upon those cases, the Defendant avers that significant errors were made. Evidence was either overlooked (including inconspicuous signage in Wilshaw, where the Judge was also oblivious to the BPA Code of Practice, including rules for surveillance cameras and the DVLA KADOE requirement for landowner authority) or the Judge inexplicably sought out and quoted from the wrong Code altogether (Percy). In Ward, a few seconds' emergency stop out of the control of the driver was unfairly aligned with the admitted contract in Beavis. Those learned Judges were not in possession of the same level of facts and evidence as the DLUHC, whose Code now clarifies all such matters. POFA and CRA breaches

 

15. Pursuant to Schedule 4 paragraph 4(5) of the Protection of Freedoms Act 2012 ('the POFA') the sum claimed exceeds the maximum potentially recoverable from a registered keeper, even in cases where a firm may have complied with other POFA requirements (adequate signage, Notice to Keeper wording/dates, and a properly communicated 'relevant contract/relevant obligation'). If seeking keeper/hirer liability - unclear from the POC - the Claimant is put to strict proof of full compliance and liability transferred.

16. Claiming costs on an indemnity basis is unfair, per the Unfair Contract Terms Guidance (CMA37, para 5.14.3), the Government guidance on the Consumer Rights Act 2015 ('CRA'). The CRA introduced new requirements for 'prominence' of both contract terms and 'consumer notices'. In a parking context, this includes signage and all notices, letters and other communications intended to be read by the consumer.

 

17. Section 71 creates a duty upon courts to consider the test of fairness, including (but not limited to) whether all terms/notices were unambiguously and conspicuously brought to the attention of a consumer. In the case of a 'PCN', this must have been served to the driver whilst the vehicle was stationary or, at sites remotely monitored by ANPR/CCTV, served to the keeper so that the motorist learns about it quickly. Signage must be prominent, plentiful, well placed and lit, and all terms unambiguous and obligations clear. The Defendant avers that the CRA has been breached due to unfair/unclear terms and notices, pursuant to s62 and paying due regard to examples 6, 10, 14 & 18 of Schedule 2 and the requirements for fair dealing and good faith. ParkingEye v Beavis is distinguished (lack of legitimate interest/prominence of terms)

 

18. ParkingEye overcame the possibility of their £85 charge being dismissed as punitive, however 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 parking charge in the largest/boldest text. Rather than causing other parking charges to be automatically justified, the Beavis case facts (in particular, the brief, conspicuous yellow & black warning signs) set a high bar that this Claimant has failed to reach.

 

19. Without the Beavis case to support the claim and no alternative calculation of loss/damage, this claim must fail. 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 any 'concealed pitfalls or traps'.

 

20. In the present case, the Claimant has fallen foul of those tests. The Claimant’s small signs have vague/hidden terms and a mix of small font, and are considered incapable of binding a driver. Consequently, it remains the Defendant’s position that no contract to pay an onerous penalty was seen or agreed. Binding Court of Appeal authorities which are on all fours with a case involving unclear terms and a lack of ‘adequate notice’ of a parking charge, include: (i) Spurling v Bradshaw [1956] 1 WLR 461 (‘red hand rule’) and (ii) Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ2, both leading authorities confirming that a clause cannot be incorporated after a contract has been concluded; and (ii) Vine v London Borough of Waltham Forest: CA 5 Apr 2000, where Ms Vine won because it was held that she had not seen the terms by which she would later be bound. It was unsurprising that she did not see the sign, due to "the absence of any notice on the wall opposite the parking space'' (NB: when parking operator Claimants cite Vine, they often mislead courts by quoting out of context, Roch LJ's words about the Respondent’s losing case, and not from the ratio).

 

21. Fairness and clarity of terms and notices are paramount in the statutory Code and this is supported by the BPA & IPC Trade Bodies. In November 2020's Parking Review, solicitor Will Hurley, CEO of the IPC, observed: "Any regulation or instruction either has clarity or it doesn’t. If it’s clear to one person but not another, there is no clarity. The same is true for fairness. Something that is fair, by definition, has to be all-inclusive of all parties involved – it’s either fair or it isn’t. The introduction of a new ‘Code of Practice for Parking’ provides a wonderful opportunity to provide clarity and fairness for motorists and landowners alike." Lack of landowner authority evidence and lack of ADR 22. DVLA data is only supplied to pursue parking charges if there is an agreement flowing from the landholder (ref: KADOE rules). It is not accepted that the Claimant has adhered to a defined enforcement boundary, grace period or exemptions (whatever the landowner's definitions were) nor that this Claimant has authority from the landowner to issue charges in this specific area. The Claimant is put to strict proof of all of this, and that they have standing to make contracts with drivers and litigate in their own name, rather than merely acting as agents.

 

23. The Claimant failed to offer a genuinely independent Alternative Dispute Resolution (ADR). The Appeals Annex in the new Code shows that genuine disputes such as this - even if the facts were narrowed later - would have seen the charge cancelled, had a fair ADR existed. Whether or not a person engaged with it, the Claimant's consumer blame culture and reliance upon the industry's own 'appeals service' should not sway the court into a belief that a fair ADR was ever on offer. The rival Trade Bodies' time-limited and opaque 'appeals' services fail to properly consider facts or rules of law and would have rejected almost any dispute: e.g. the IAS upheld appeals in a woeful 4% of decided cases (IPC's 2020 Annual Report). Conclusion

 

24. The claim is entirely without merit and the Claimant is urged to discontinue now, to avoid incurring costs and wasting the court's time and that of the Defendant.

 

25. With the DLUHC's ban on the false 'costs' there is ample evidence to support the view - long held by many District Judges - that these are knowingly exaggerated claims. For HMCTS to only disallow those costs in the tiny percentage of cases that reach hearings whilst other claims to continue to flood the courts unabated, is to fail hundreds of thousands of consumers who suffer CCJs or pay inflated amounts, in fear of the intimidating pre-action demands. The Defendant believes that it is in the public interest that claims like this should be struck out because knowingly enhanced parking claims like this one cause consumer harm on a grand scale.

 

26. In the matter of costs, the Defendant asks: (a) at the very least, for standard witness costs for attendance at Court, pursuant to CPR 27.14, and (b) for a finding of unreasonable conduct by this Claimant, seeking costs pursuant to CPR 46.5. 27. Attention is drawn specifically to the (often-seen from this industry) possibility of an unreasonably late Notice of Discontinuance. Whilst CPR r.38.6 states that the Claimant is liable for the Defendant's costs after discontinuance (r.38.6(1)) this does not normally apply to claims allocated to the small claims track (r.38.6(3)). However, the White Book states (annotation 38.6.1): "Note that the normal rule as to costs does not apply if a claimant in a case allocated to the small claims track serves a notice of discontinuance although it might be contended that costs should be awarded if a party has behaved unreasonably (r.27.14(2)(dg))." Statement of Truth I believe that the facts stated in this defence are true. 

Johnersh

Start again.

A possibly controversial view.... We really need to delete the 'unexpected shock' nonsense from the PoC template. It adds nothing at all and merely assists to identify precedents that that have not been tailored/adapted by individual defendants.

Has the o/p thought about pleading no authority to issue proceedings or to operate, based on the signage and correspondence available?

Has the o/p thought about the inherent contradiction of urging discontinuance whilst seeking costs for unreasonable behaviour if they do?

Coupon-mad

@Johnersh, I am listening and will be changing the Template Defence when/after the Impact Assessment comes out.  I reckon there will be useful stuff there...

Le_Kirk

When you write the witness statement (WS), and its due date will be on the Notice of Allocation either as a date or "14 days before...." you need to get your story straight.  In the defence that you showed us as having been submitted, you say you were in the store for no more than 15 minutes but in the your opening post (OP) you state no more than 3 minutes!  Your defence reads more like a WS anyway.  Look at the most recent exemplar WS by @aphex007 for guidance as to format and style but obviously the content will be yours and will back up and support your defence with evidence.

Umkomaas

This information can be verified by CCTV recordings from the store taken on the day.

Do you have that evidence?  If not, you can't rely on the statement. Think about it .... most CCTV archives self cleanse after a few weeks, and in any case, how would Tesco identify you and your wife, even if they were prepared to invest a significant amount of staff time to work through any footage, especially as they have brushed you off unceremoniously a few times already.

There is no prospect of a civil court ever requiring Tesco to release any CCTV footage - even if they still had it from almost 5 years ago - this is a dispute about a relatively small amount of money, it's not a murder trial. 

Cisse913

Umkomaas said:

This information can be verified by CCTV recordings from the store taken on the day.

Do you have that evidence?  If not, you can't rely on the statement. Think about it .... most CCTV archives self cleanse after a few weeks, and in any case, how would Tesco identify you and your wife, even if they were prepared to invest a significant amount of staff time to work through any footage, especially as they have brushed you off unceremoniously a few times already.

There is no prospect of a civil court ever requiring Tesco to release any CCTV footage - even if they still had it from almost 5 years ago - this is a dispute about a relatively small amount of money, it's not a murder trial. 

Thanks for the feedback Umkomaas, unfortunately I do not have any still's of the CCTV take of my visit from the date in question. Although, as I usually pay for most items via debit card, I could mostly likely produce a statement to corroborate the visit. 

AmikoFrizz982

About your defence, I'd investigate the Authority to Operate on the Land. CEO of Tesco, who at first denied that they were in contract with the PPC, and then changed their story to state that they were not the land owner (although the Tesco logo features on Private Parking Solutions signage within the car park), left you unable to assess and accept its legality and prevented from complaining to the Landowner itself. All this puts enough doubt on the current authority to Operate on the Land, and any erected sign does not automatically authorize and permit the parking operator to issue court claims in relation to the land. PRIVATE PARKING SOLUTIONS (LONDON) LTD is put to strict proof that what they declare is true, and provide the requested adequate evidence, or to void the issued parking payment request.

On a separate track, without much hope on it, won't create any damage writing a robust complaint to your MP asking him to raise this with the parking operator on your behalf, and then with their AOS, which I think it's BPA as they mention once POPLA on their dodgy website. He will contact you again once received a substantive response.

Cisse913

Johnersh said:

Start again.

A possibly controversial view.... We really need to delete the 'unexpected shock' nonsense from the PoC template. It adds nothing at all and merely assists to identify precedents that that have not been tailored/adapted by individual defendants.

Has the o/p thought about pleading no authority to issue proceedings or to operate, based on the signage and correspondence available?

Has the o/p thought about the inherent contradiction of urging discontinuance whilst seeking costs for unreasonable behaviour if they do?

Below are x2 photos of the same signage taken by the parking warden at the time of the alleged contravention. Are there any holes to pick with the wording within the signage etc?

In addition, there was no signinge affixed to the fixture of the Tesco store directly in front of the parking bay. Moreso, the signage was somewhat concealed (at least from anybody choosing to not reverse into the bay) by a green clothes bin. 

I also have a photo of my vehicle being blocked in by a DPD van, in addition to the Tesco HGV clearly obstructing the customer parking bays. However, Gladstones have conveniently attempted to crop this frm photos supplied as part of their witness statement. 

Gladstones have not produced any proof of having ever written to me regarding the alleged contravention,. Instead, PPS have supplied x2 letters that they allege to have sent. The only correspondence I have received via post has been from the courts, and I have not changed addresses between the date of the contravention to date. 

Thanks too for the suggestion regarding the inherent contradiction between urging discontinuance and the seeking of costs. 


 

Coupon-mad

I can't see those photos but if this is true:

"the Tesco logo features on Private Parking Solutions signage within the car park"

...then it is possible to add in that the alleged contract has Tesco logo on it, so the terms are offered by Tesco; this is the wrong Claimant.