Help needed with Claim form defence for Gladstone/UKPCM, parking charge in residential parking

Nellymoser

The do nothing costs £0 you would just have add CNBC, Gladstones and PPC onto your list of 'change address when move house'.

Could i ask you to please support/sign this petition demanding the re-launch of a Government-backed Parking Code of Practice. 🙏

https://petition.parliament.uk/petitions/701453

Coupon-mad

My advice hasn't changed. I already knew everything that you were told.

My advice to email the CNBC was to protect your address data position. It wasn't intended to 'make a difference', merely to sit on file as a heads up under UK GDPR 2018 that your current address is not good for service for ever). Copy in Gladstones too.

Then do nothing more.

ANOTHER ONE BITES THE DUST!

aa5085

just to update ended up getting the DQ which I have completed and emailed and cc'ed to Gladstones. No option in new form for opting out of mediation. Just waiting on further action now.

aa5085

Has anyone gone through mediation recently as it is now compulsory? any advice on how to prevent it getting to hearing?

Coupon-mad

aa5085 said:

Has anyone gone through mediation recently as it is now compulsory? any advice on how to prevent it getting to hearing?

Yes, of course it's compulsory. Has been for over a year and this stage is covered in the Template Defence thread first 12 steps.

aa5085

Hi All,

Need some serious help please. I had the mediation appointment today and the mediator was heavily in favour of Gladstone solicitors. They kept mentioning what my argument was and was trying to break it down repeatedly. I gave some arguments from my witness statement (see earlier in thread) and they just said it's a 'copy paste from the net' i.e. imposing a ticket does not mean I have joined into a contract with the parking company, no mention of particulars on the ticket etc I even mentioned our managing agency even got rid of the parking company as they were giving out rogue tickets repeatedly to leaseholders like me. He said my arguments were poor and I when I offered £5 he said that's not serious and said looks like you are going to court but you have a very weak defence.

I am in dire need of your expertise at this stage.

aa5085

Mediator also questioned why I hadn't appealed with POPLA

Coupon-mad

Why on earth did you engage that much?

I signposted you to the Template Defence thread that coaches everyone to say 'no offer' and NOT discuss your case with a Mediator. When he bullied you and demanded that you spell out your case...why take that crap from him?

Should have said:

Mr Mediator: Stop. You aren't a judge. I'm a leaseholder with prior rights and if you don't get that legal point and are intent on (frankly, stupidly) favouring this rogue unwanted parking firm Claimant and not being impartial, thank God you aren't a judge mate. Byeeee!

Right:

NOW YOU MUST DO 3 THINGS:

1. Re-read the Template Defence steps because you need to get back in piste and regain your "I have a strong defence" MOJO.

2. COMPLAIN TO THE COURT MEDIATION SERVICE (FEEDBACK) ABOUT THAT MEDIATOR FOR TRYING TO BE A (VERY BADLY INFORMED) LAWYER AND WRONGLY TELLING YOU THAT A LEASEHOLD OWNER HAS A 'WEAK DEFENCE'. UTTERLY UNACCEPTABLE.

3. Please read this message and do the current Public Consultation in August:

https://forums.moneysavingexpert.com/discussion/comment/81552148/#Comment_81552148

It's vital the Government hears from people with unfair charges who are facing horrific, scary court claims.

The link shows the two vital points to concentrate on, IMHO:

- banning DRA fee add-ons completely

- making sure a new SINGLE appeals service replaces POPLA and the IAS which are seen as not fully independent and involved in a 'race to the bottom'.

Do not be deterred by the fact that some questions are for the parking industry only.

See the link and follow it through to the main thread about the new statutory Code plans, where we are discussing how to respond. Please join us in doing this Consultation.

In your case, tell the MHCLG how you are being hounded for parking at your own home where you are a leaseholder with rights.

Tell them how appalling the court Mediator was and this is why the public need the bespoke ADR of a proper, impartial Single Appeals Service to resolve cases outside of court and with clear knowledge of parking cases, to protect leaseholders.

This is your one chance to make a difference re the imminent regulation of private parking. It is coming. Help shape the final decisions.

aa5085

Will do thank you but I really tried to follow the advice. I was not engaging but I was surprised because the mediator said you need to engage with this service otherwise it can be seen that you did not and will be to your detriment. He kept talking about the fact I should have been parked within the bays and that seemed like a strong argument so unless I could refute this or that I don't necessarily need to park in allocated bays then I had a weak argument. I was very surprised by his aggressive nature towards me.

I will certainly follow step 2 and 3.

aa5085

Could you please help me with the hearing stage now and the witness statement? Is this any difference from my defence?

So I have just completed the mediation stage and it is going to hearing.

Just a recap I am the leaseholder of my flat and have an allocated bay. The supposed 'ticket' relates to the fact that about 5 years ago my tenant was using my bay on his first day moving in and I was helping him so parked in an unmarked area within the housing car park grounds and got a ticket. I appealed but was unsuccessful as expected but didn't go down the POPLA route (which the mediator grilled me on). Interesting to note the managing agent of my block stopped business with PCM a year ago because they were repeatedly giving leaseholders tickets rather than the initial purpose of stopping rogue intruders onto the parking court/bays.


This is my witness statement which is an amalgamation of several statements. Please could you have a general read and apologies if some of it is what you have seen on here before. I really want to destroy these leaches in court so need to ensure it's solid and that I am saying only relevant points to my case. I understand some things have changed from last year when this whole issue started.



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 in breach of any term.  Further, it is denied that this Claimant (understood to have a bare licence as agents) 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 boilerplate text in the Particulars of Claim ('the POC').

Preliminary matter: The claim should be struck out

2. The Defendant draws to the attention of the allocating Judge 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).  The Defendant believes 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.

3. 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(1)(e) and Practice Direction Part 16.7.5. 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 Chan judgment (transcript below) the Court should strike out the claim, using its powers pursuant to CPR 3.4. 

 

The facts known to the Defendant:

4. The facts in this defence come from the Defendant's own knowledge and honest belief.  Conversely, the Claimant sets out a cut-and-paste incoherent and sparse statement of case. The POC appear to be in breach of CPR 16.4, 16PD3 and 16PD7, and fail to "state all facts necessary for the purpose of formulating a complete cause of action". The Defendant is unable, on the basis of the POC, to understand with certainty what case, allegation(s) and what heads of cost are being pursued, making it difficult to respond. However, the vehicle is recognised and it is admitted that the Defendant was the registered keeper and driver.

5. The Particulars refer to the material location as X. The Defendant has, since Y, held legal title under the terms of a lease, to Z at this location. The Defendant has access to an outside allocated parking space (Bay A) as well as general access to the entire parking areas on site. All residents are also provided underground parking fob access enabling loading/unloading of items. All residents of the building have access to the underground car park as well as the outdoor car park.

6. On this specific occasion the defendant arrived at their bay to find it was occupied by a third party vehicle. In order to find the owner of the vehicle that was parked in the defendant’s allocated parking bay, the defendant parked their car temporarily on an unmarked space next to the allocated parking bay and then the defendant proceeded out of their own car to locate the owner of the third party vehicle and/or seek a member of the car park management for enforcement. In the space of less than five minutes of the defendant wandering around the car park and estate on foot, they returned to find a ticket had been issued on their vehicle.

7. At some point, the managing agents contracted with the Claimant company as a contractor, but they are strangers to the lease and in common with other residents, The defendant was led to believe that the regime was intended to deter trespassers. No 'relevant contract' or 'relevant obligation' was communicated to residents, nor would the defendant have accepted a contract foisted upon them with onerous terms and charges. It is not enough to put signs up and ride roughshod over the rights of residents that already exist, and which take precedence, given the leasehold title held.

8. Trying to re-offer a parking/loading (in or out of the allocated bay) right or easement that the defendant already enjoys by express or implied right under their lease, lacks any aspect of consideration.

9. There is no licence to park that this Claimant can possibly offer the defendant that they do not already have as an unfettered right. The Claimant is trying to run the defandant’s property car park like a commercial site, on the same punitive terms as a trespasser would be charged. This would clearly be a derogation from grant and the defendant would wish to make clear that they did not agree to contractual terms, just because a permit was imposed upon them with no opt out offered. Permits were displayed as a courtesy only, to show other residents who was parked, and there has always previously been the ability to stop to unload or load items anywhere in the car park area.

10. There are no terms within the lease requiring lessees to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same. Therefore, the defendant’s case relies on Primacy of Contract. The defendant refers to previous cases such as Pace v Mr N [2016] C6GF14F0 [2016] (Exhibit C), where it was found that the parking company could not override the tenant's right to park by requiring a permit to park.

11. The defendant did, at all material times, park in accordance with the terms granted by the lease. The erection of the Claimant's signage, and the purported contractual terms conveyed therein, are incapable of binding the defendant in any way, and their existence does not constitute a legally valid variation of the terms of the lease. Accordingly, thew defendant deny having breached any contractual terms whether express, implied, or by conduct.

12. The defendant’s vehicle clearly was 'authorised' as per the lease and primacy of contract and avers that the Claimant's conduct in aggressive ticketing is in fact a matter of tortious interference, being a private nuisance to residents. In this case the Claimant continues to cause a substantial and unreasonable interference with the defendant’s land/property, or his use or enjoyment of that land/property.

13. The Claimant, or Managing Agent, in order to establish a right to impose unilateral terms which vary the terms of the lease, must have such variation approved by at least 75% of the leaseholders, pursuant to s37 of the Landlord & Tenant Act 1987, and the defendant is unaware of any such vote having been passed by the residents.

14. The claimant may argue that the defendant parked outside of the allocated bay for loading. I refer to the case of Jopson v Homeguard [2016] B9GF0A9E, where on appeal it was found that the parking company could not override the tenant's right to temporarily stop near the building entrance for loading/unloading.

15. Furthermore in this case, by providing an underground car parking fob for all residents (regardless of whether their allocated parking space is underground or outside) the managing agents have provided all residents access to the entire car parking space.

16. The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 as a binding precedent on the lower court. However, that only assists the Claimant if the facts of the case are the same, or broadly the same. In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas it is the defendant’s position that no such breach occurred in this case, because there was no valid contract, and also because the 'legitimate interest' in enforcing parking rules for retailers and shoppers in Beavis does not apply to these circumstances. Therefore, this case can be distinguished from Beavis on the facts and circumstances.

17. The defendant would also like to state the Claimant did not display clear, large, prominent signs within the site that were capable of being read from the driver's seat and/or forming a contract, contrary to the IPC AoS, BPA CoP, PoFA and the Beavis Vs ParkingEye 2015 case. The font type is incredibly small and would not be legible from the driver’s seat, and is purely aimed at only an unauthorised driver, not the defendant.

18. Even if the court is minded to accept that a sign was visible, the wording on the sign was prohibitive. Unlike in the Beavis vs ParkingEye case, the Claimant offered no licence to park if not a ‘permit holder’. A purported licence to stop without a permit, in exchange for payment of a ‘charge’ on the one hand, cannot be offered when that same conduct is, on the other hand, expressly prohibited in the signage wording. This does not create any possible contract.

19. This is clear from several cases. An example in PCM-UK v Bull et al B4GF26K6 [2016], residents were parking on access roads. The signage forbade parking and so no contract was in place. A trespass had occurred, but that meant only the landowner could claim, not the parking company.

20. The Claimant will concede that no financial loss has arisen and that in order to impose an inflated parking charge, as well as proving a term was breached, there must be:

(i). a strong 'legitimate interest' extending beyond mere compensation for loss, and

(ii). 'adequate notice' of the 'penalty clause' charge which, in the case of a car park, requires prominent signs and lines.

21. The alleged 'core debt' from any parking charge cannot exceed £100 (the industry cap).  It is denied that any 'Debt Fees' or damages were actually paid or incurred.

22. This claim is unfair and inflated and it is denied that any sum is due in debt or damages. This Claimant routinely pursues an unconscionable fixed sum added per PCN, despite knowing that the will of Parliament is to ban it.

23. This is a classic example where adding exaggerated fees funds bulk litigation of weak and/or archive parking cases. No checks and balances are likely to have been made to ensure facts, merit or a cause of action (given away by the woefully inadequate POC).

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. 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 from a registered keeper. The Claimant is put to strict proof of POFA compliance if seeking 'keeper liability'.

26. The Defendant avers that there was no agreement to pay a parking charge or added 'damages' which were not even incurred, let alone quantified in bold, prominent text. This Claimant's lack of large, readable signs are nothing like the yellow & black warnings seen in Beavis, nor do they meet the signage requirements in the DLUHC Code which reflects the already statutory requirement for 'prominence' (Consumer Rights Act 2015 - the 'CRA').

27. Section 71 CRA creates a statutory duty upon Courts to consider the test of fairness whether a party raises it or not. Further, claiming costs on an indemnity basis is unfair, per the Unfair Contract Terms Guidance (CMA37, para 5.14.3): link

28. The CRA introduced new requirements for 'prominence' of both terms and 'consumer notices'.  In a parking context, this includes a test of fairness and clarity of 'signs & lines' and all communications (written or otherwise). Signs must be prominent (lit in hours of darkness/dusk) and all terms must be unambiguous and contractual obligations clear.

29.  The Defendant avers that the CRA has been breached due to unfair/unclear terms and notices, pursuant to s62 and paying regard to examples 6, 10, 14 & 18 of Schedule 2 and the duties of fair/open dealing and good faith (NB: this does not necessarily mean there has to be a finding of bad faith).  

30. DVLA data is only supplied if there is an agreement flowing from the landholder (ref: KADOE rules). It is not accepted that this Claimant (an agent of a principal) has authority to form contracts at this site in their name. The Claimant is put to strict proof of their standing to litigate.

31. The Claimant failed to offer a genuinely independent Alternative Dispute Resolution (ADR). The DLUHC Code shows that genuine disputes such as this should see PCNs cancelled, had a fair ADR existed. The rival Trade Bodies' time-limited and opaque 'appeals' services fail to properly consider facts or rules of law and reject most disputes: e.g. the IAS upheld appeals in a woeful 4% of decided cases (ref: Annual Report).  This consumer blame culture and reliance upon their own 'appeals service' (described by MPs as a kangaroo court and about to be replaced by the Government) should satisfy Judges that a fair appeal was never on offer.

Conclusion

32. There is now evidence to support the view - long held by many District Judges - that these are knowingly exaggerated claims that are causing consumer harm.  The July 2023 DLUHC IA analysis shows that the usual letter-chain costs eight times less than the sum claimed for it.  The claim is entirely without merit and the POC embarrassing.  The Defendant believes that it is in the public interest that poorly pleaded claims like this should be struck out.

33. In the matter of costs, the Defendant seeks:

(a) standard witness costs for attendance at Court, pursuant to CPR 27.14, and

(b) a finding of unreasonable conduct by this Claimant, and further costs pursuant to CPR 46.5. 

34.  Attention is drawn to the (often-seen) distinct 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))."   

 35. Finally, the defendant encourages the court to strike out the claims against the defendant as there are no sound grounds of claim and to grant compensation in accordance to the defendant cost of schedule.

Also please let me know what evidence I should provide with this statement?