Claim Form | Gladstones | Premier Park Ltd - assistance required

AxelMoney

KeithP said:

Yes, discontinuance is still a possibility, especially after they have seen your 'overhauled' Witness Statement and evidence.

My own evidence is thin on the ground. This situation has arisen when a PPC took over the management of a site, changed the terms & conditions unknown to the driver (a family member) and 2 PCNs were issued.

I’m not able to provide evidence in the WS.  Only poke holes at the evidence submitted by the claimant.  Therefore I am relying that the judge is more focused on the badly pleaded claim & CPR breaches. And/or if the PPC stands down. 

AxelMoney

Hi all, please provide any final critiques below. 

W/S has to go out on Monday.  I have now followed the proven Citizen_K exemplar.

AxelMoney

3. As a preliminary matter, I would like to bring to the Court's attention that the Claimant's Witness Statement, signed by xx xxxx of Gladstone Solicitors Ltd, does not comply with CPR 32.4 and Practice Direction 32, which require that a witness statement be made by an individual with direct knowledge of the facts. Furthermore, Practice Direction 32, paragraph 18.2, stipulates that the statement must be in the witness's own words and include details of how the witness has direct knowledge of the matters stated. As xx  xxx  does not have direct involvement in the events in question, the Witness Statement fails to meet these requirements. In light of this noncompliance, I respectfully request that the Court strike out the claim pursuant to CPR 3.4(2)(c) due to the Claimant's failure to comply with the relevant rules and practice directions.

4.  Furthermore this claimant is also in breach of the hearing order.  The directions to this claim state ‘that documents to be sent to the other party must include statements of all witnesses (including the parties themselves).  Gladstone Solicitors Ltd are not a ‘party to the case’.

5. I would like to draw to the attention of the court that there is now a persuasive Appeal judgment to support striking out the claim (in these exact circumstances of typically poorly pleaded private parking claims, and the extant PoC seen here are far worse than the one seen on Appeal). I believe that dismissing this meritless claim is the correct course, with the Overriding Objective in mind. Bulk litigators (legal firms) should know better than to make little or no attempt to comply with the Practice Direction. By continuing to plead cases with generic auto-fill unspecific wording, private parking firms should not be surprised when courts strike out their claims based in the following persuasive authority

6. A recent persuasive appeal judgment in Civil Enforcement Limited v Chan (Ref. E7GM9W44) would indicate the POC fails to comply with Civil Procedure Rule 16.4 and Practice Direction Part 16. On the 15th August 2023, in the cited case, HHJ Murch held that 'the particulars of the claim as filed and served did not set out the conduct which amounted to the breach in reliance upon which the claimant would be able to bring a claim for breach of contract'. The same is true in this case and in view of the CEL vs Chan judgment followed by many other cases where District Judges have taken the same view, the Court should strike out the claim, using its powers pursuant to CPR 3.4 (See Exhibit 01).

7. Similarly, at the Wakefield County Court on 8th September 2023, District Judge Robinson considered mirror image POC in claim K3GF9183 (Parallel Parking v anon) and struck the Claim out without a hearing. (See Exhibit 02).

8.  Likewise, in January 2023 (also without a hearing) District Judge Sprague, sitting at the County Court at Luton, struck out a similarly badly-pleaded parking claim with a full explanation of his reasoning. (See Exhibit 03).

 

9.  Furthermore, at Manchester District Judge McMurtrie and District Judge Ranson also struck out a claim (again without a hearing) on the grounds of POC’s lacking clarity, detail, and precision. As stated in the final image below, the Claimant’s solicitors confirmed they would not file an amended POC, demonstrating again the reliance of a number of firms on robo-letters and illegitimate practices. (See Exhibit 04).

10. I believe the Claim should be struck out and should not have been accepted by the CNBC due to a represented parking firm Claimant knowingly breaching basic CPRs. The specifics of this case lack clarity, as no explicit statement has been provided to indicate which specific term of the alleged contract was purportedly breached.  This lack of specificity places me, the Defendant, at a distinct disadvantage, as I find myself in the position of having to mount a defence without a clear understanding of the precise nature of the alleged violation.

11. There are further references to several recent cases (in addition to exhibits) where claims, largely analogous to the present one, were dismissed on account of their failure to meet the requisite level of specificity and clarity, as mandated by the Civil Procedure Rules (CPR).

https://www.dropbox.com/scl/fi/2jef4c7bljyp6dse24p70/Judgments.pdf?rlkey=jsgusx180wzjz2f6er0436xw2&e=2&st=03x4tsbq&dl=0

Background

12. I visited The Priory Shopping Centre car park, Instone Road, Dartford on two occasions (14 July ’22 & 3 Aug ’22) and in two different vehicles.

13.   No signage was noticed at the entrance to the parking area and I did not use the multi-storey car park so I could not possibly be bound by signs within there. The fact that signs were not seen at surface level suggests to me (and I take this point in support of my defence) that the signs and any terms were inadequate and certainly not prominent. If they had been, and if the Claimants had put a ticket on my car or posted the Notice to Keeper swiftly, I would not have returned to the Supermarket and done the exact same thing, weeks later.

14.  In addition there were no additional (temporary) notices that alerted me to a change to pre-existing terms and conditions.  This is stipulated in clause 19.10 within the private parking sector single Code of Practice published by the BPA (British Parking Association) in Jan 2020.  

This claimant took over the running of the parking location in May 2022.  There was a clear need for the installation of additional/temporary signage throughout the site. 

15. The alleged contraventions occurred shortly after the claimant took over management of the parking site.   Being a regular visitor I was unaware that new terms and condition had been instituted.  I would contend that the claimant did not follow the mandatory guidance outlined in the 2020 code of practice.

https://www.britishparking.co.uk/write/Documents/AOS/NEW%20Redesigned%20Documents/sectorsingleCodeofPracticeVersion1260624.pdf

16.  For the two alleged contraventions, the duration of the stay was approximately 43 minutes (3rd Aug ’22) and 15 minutes (14th July ’22) respectively.

Poor Signage

17. As shown by the claimants own evidence (Exhibit GS-3) the claimant’s signs have vague/hidden terms and a mix of small font, and positioned above head height.  Parking meters were inadequately maintained. Car parking signs were damaged and either posted too high. 

18. Lettering on signs were of mixed font and sizing making them extremely difficult to read; important contractual information being especially small and illegible. Photo evidence supplied with the Claimants WS (p28) shows signage located in the multi-story carpark, when the alleged contravention took place at surface level. 

Exaggerated Claim and Unreasonable Charge(s)

19.  For all or any of the reasons stated above, the Court is invited to dismiss the Claim in its entirety, and to award me such costs as are allowable on the small claims track, pursuant to Civil Procedure Rule 27.14. Given that the claim is based on an alleged contractual parking charges of £100 - already significantly inflated and mostly representing profit, as was found in Beavis - but the amount claimed on the claim form for each claim is inexplicably circa £200 plus, I aver that this inflation of the considered amount is a gross abuse of process.

20. This Claimant has routinely pursued a disproportionate additional fixed sum (inexplicably added per PCN) despite knowing that the will of Parliament is to ban or substantially reduce the disproportionate 'Debt Fees'. This case is a classic example where the unjust enrichment of exaggerated fees encourages the 'numbers game' of inappropriate and out of control bulk litigation of weak/archive parking cases. No pre-action checks and balances are likely to have been made to ensure facts, merit, position of signs/the vehicle, or a proper cause of action.

21. The Department for Levelling Up, Housing and Communities (the DLUHC) first published its statutory Parking Code of Practice on 7th February 2022, here: 

"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."

22. Despite legal challenges delaying the Code's implementation (marking it as temporarily 'withdrawn' as shown in the link above) a draft Impact Assessment (IA) to finalise the DLUHC Code was recently published on 30th July 2023, which has exposed some industry-gleaned facts about supposed 'Debt Fees'. This is revealed in the Government's analysis, found here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1171438/Draft_IA_-_Private_Parking_Code_of_Practice_.pdf

23.  Paragraphs 4.31 and 5.19 state that the parking industry has shown the DLUHC that the true minor cost of pre-action stage totals a mere £8.42 per case (not per PCN).

24.  This claim has been enhanced by a disproportionate sum, believed to enrich the litigating legal team. It appears to be double recovery, duplicating the intended 'legal fees' cap set by small claims track rules.

25. The draft IA shows that the intimidating letter-chains endured by Defendants cost 'eight times less' than the fixed +£70 per PCN. This causes immense consumer harm in the form of some half a million wrongly-enhanced CCJs each year, that Judges are powerless to prevent.  MoJ statistics reveal several hundred thousand parking claims per annum, with c90% causing default CCJs totalling hundreds of millions of pounds. The false fee was enabled by the self-serving Codes of Practice of the rival parking Trade Bodies who aligned in 2021 to allow +£70, each led by a Board comprising the parking and debt firms who stood to gain from it. 

26. 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.

27. This Claimant has not incurred any additional costs because the full parking charge (after expiry of discount) is already high and more than covers what the Supreme Court called an 'automated letter-chain' business model that generates a healthy profit. In Beavis, there were 4 or 5 letters in total, including pre-action phase reminders. The £85 parking charge was held to cover the 'costs of the operation' and the DLUHC's IA suggests it should still be the case that the parking charge itself more than covers the minor costs of pre-action stage, even if and when the Government reduces the level of parking charges.

28. Whilst the new Code is not retrospective, the majority of the clauses went unchallenged by the parking industry and it stands to become a creature of statute due to the failure of the self-serving BPA & IPC Codes. The DLUHC's Secretary of State mentions they are addressing 'market failure' more than once in the draft IA, a phrase which should be a clear steer for Courts in 2023 to scrutinise every aspect of claims like this one.

29. 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 (CRA).

30. Gladstones indisputably issue tens of thousands of inflated parking claims every year and the unconscionably enhanced £60 or £70 (per PCN) which can add hundreds to some claims. Given that the MoJ's quarterly statistics show that 90% of small claims go to default CCJs, this is clearly an abuse, and it appears to be for the profit of Gladstones and nothing to do with the Claimant's alleged £100 PCN. I hope the Judge addresses this in the final judgment, at the very least to warn or sanction Gladstones as the court sees fit. 

CRA Breaches

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

32. 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. Signage must be prominent, plentiful, well-placed (and lit in hours of darkness/dusk) and all terms must be unambiguous and contractual obligations clear.

33. 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/open dealing and good faith (NB: this does not necessarily mean there has to be a finding of bad faith).

34. Now for the first time, the DLUHC's draft IA exposes that template 'debt chaser' stage costs less than £9. This shows that HHJ Jackson was right all along in Excel v Wilkinson. (See Exhibit 5)

The Beavis Case Is Against This Claim

35. 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 6) - set a high bar that this Claimant has failed to reach.

36. To paraphrase 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 7) for paragraphs from ParkingEye v Beavis).

AxelMoney

37. In the present case, the Claimant has fallen foul of those tests. There is one main issue that render this parking charge to be purely penal (i.e. no legitimate interest saves it) and thus, it is unenforceable:

(i). Hidden Terms:

The £100 penalty clause is positively buried in small print, as seen on the signs in evidence.  The purported added (false) 'costs' are even more hidden and are also unspecified as a sum.  Their (unlawful, due to the CRA Schedule 2 grey list of unfair terms) suggestion is that they can hide a vague sentence within a wordy sign, in the smallest possible print, then add whatever their trade body lets them, until the DLUHC bans it in 2024. And the driver has no idea about any risk nor even how much they might layer on top.  None of this was agreed by me, let alone known or even seen as I attempted to gain entry to the store. Court of Appeal authorities which are on all fours with a case involving a lack of ‘adequate notice’ of a charge, include:

(i)                  Spurling v Bradshaw [1956] 1 WLR 461 (‘red hand rule’) and

 

(ii)                Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ2both leading authorities confirming that a clause cannot be incorporated after a contract has been concluded; and

 

(iii)               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, due to "the absence of any notice on the wall opposite the parking space".

Conclusion

38. This 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 mine.  

I would ask the the judge to read the persuasive Judgment from His Honour Judge Murch (August 2023) in the Civil Enforcement v Chan case, and deliver the same outcome given this Claimant has submitted a similarly vague POC.  It is worth noting that in the Civil Enforcement v Chan case the POC, while still ambiguous, did contain a subtle indication of the alleged contravention, specifically regarding the duration of the defendant's parking on the premises. In contrast, the POC in this case lacks even a minimal effort to hint at the nature of the alleged violation.  In the Civil Enforcement v Chan case, full costs were awarded to the motorist and the claim was struck out.

39. 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. I believe 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. 

40.  In the matter of costs, I ask: (a) 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.

AxelMoney

Witness Statement gone to my local court + Gladstone

I can't see that the latter have any form for discontinuance.   There are a surfeit of examples for DCB legal on the forum. 

Coupon-mad

Yep, expect to attend the hearing.

AxelMoney

Witness Statement yet to be acknowledged by the court + Gladstones
Following up with the court.  Should i be chasing Gladstone too?
thanks

Coupon-mad

You don't get an acknowledgement.

AxelMoney

Coupon-mad said:

You don't get an acknowledgement.

The county court has confirmed receipt.  The PPC solicitor hasn’t. So  I’ll presume they have the W/S.

Anything else to do before the hearing?

Gr1pr

Read recent concluded cases with the feedback by the defendant, especially about taking copies of your WS in case they try it on stating that their clients or lawyers didn't receive a copy of your bundle, a common ploy in hearings 

Have proof that it was sent correctly and where to and when