Gladstones/Euro Parking Services PCN Hearing

rseale89

I have copied the defence from the helpful thread on here, but the money claim website will not allow me more than 122 lines.
What do I do?

Coupon-mad

rseale89 said:

I have copied the defence from the helpful thread on here, but the money claim website will not allow me more than 122 lines.
What do I do?

I already answered in the Template Defence thread. Please re-read the first post of it.

Of course you aren't putting a defence in on MCOL. Please just read the instructions in the thread.

KeithP

Hello and welcome.

Didn't that checklist in the opening post of that 'helpful thread' explain how to file a Defence?

What is the Issue Date on your Claim Form?

Can you please show us a picture of the Particulars of Claim - with all your personal detail hidden of course.

Who is the Claimant?

Have you filed an Acknowledgment of Service?
If so, upon what date did you do so?
Your MCOL Claim History will have the definitive answer to that.

rseale89

Aaahhhhh I am so sorry. I read it so many times but I must have kept skipping over the part that says to submit an email. Thank you!

Thank you both for your fast responses. I am not at home currently so don't have the particular details on me but I do appreciate your responses. Thank you again.

rseale89

OK, court date is approaching and I have submitted the following witness statement...
I guess I'm just after some moral support?

I'm not the best with forums and only have my phone to navigate, so haven't posted any updates so far because I didn't think I'd be able to keep up appropriately...

I am XXX of XXX, and I am the Defendant in this matter, and will say as follows:

Introduction

1. I make this witness statement in readiness for the hearing listed on XXX at XXX Court. The facts in this statement come from my personal knowledge. Where they are not within my personal knowledge, they are true to the best of my information and belief.

2. Within this statement, I make reference to various documents, which I will produce in court as exhibits, and specifically refer to within the statement by reference to their exhibit numbers. These exhibits have been sourced by myself, with reference to how I came by the exhibit. Any reference to an exhibit number within this witness statement is a reference to the corresponding exhibit unless otherwise expressed to the contrary.

Preliminary matter: The claim should be struck out

3. (Exhibit XX-1) The Department for transport's Guidance on Section 56 and Schedule 4 of the Protection of Freedoms Act 2012: Recovery of Unpaid Parking Charges, 6.2 states: Where a contravention is detected remotely (such as by cameras), the landholder may request registered keeper data from the DVLA immediately and must write to the registered keeper within 14 days seeking details of the driver or payment of the parking charge. The PCN issue date was 16 days after the alleged contravention.

4. (Exhibit XX-2) The Notice to Keeper is not compliant with the Protection of Freedoms Act 2012 (POFA). As no notice was placed on the vehicle at the time of the alleged contravention, the requirements of POFA 2012 have not been met. POFA mandates that a Notice to Driver must be issued on the vehicle or handed directly to the driver for the charge to be enforceable against the registered keeper. The failure to issue a Notice to Driver renders the current charge unenforceable under POFA.

POFA 2012 cites: “The notice must be given by—

(a) handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or

(b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.’’

The applicable section here is (b) as the Parking Charge Notice was delivered by post. Furthermore, paragraph 9(5) states:

“The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended”

5. A recent persuasive appeal judgment in Civil Enforcement Limited v Chan (Ref. E7GM9W44) (Exhibit XX-3) 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 Chan judgment, the Court should strike out the claim, using its powers pursuant to CPR 3.4.

6. 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.

7. 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. 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.

Facts and Sequence of events

8. Date and Time of the Incident: On XXX, I attended a wedding at XXX, located on XXX.

9. Car Park Approach: On entering XXX, I did not see any signage about parking restrictions. I continued driving up the road until I saw some marked parking bays on the road. I saw one sign and assumed it would be some sort of fee to pay so I continued driving until I reached a dead end. I turned around and returned to the sign to park in a marked bay. At this point I had not actually read any words on the sign due to writing being too small whilst driving.

10. Insufficient signage: Exhibit XX-4 Demonstrates that there are no clear, visible signs of parking notice for the drivers while entering XXX. This image, found on Google Maps street view, depicts a small sign on the other side of the road, opposite to the direction I was driving, and practically hidden in the bushes. It is argued there was no clear, visible signage upon entry to the road, and the terms and conditions were insufficiently conveyed, therefore it is denied I entered into any contract at that point in time.

11. Brief stoppage: I had stopped the car, momentarily, in a bay, so I could find a meter to pay for parking. At this point, I still hadn't read a sign. When I couldn't find a payment meter, I returned to read the sign, although I found it unclear, full of small print very wordy text. I was able to read some large print text, about pre-authorised vehicles or valid permits. I did not read the small print text as I was then in a rush to move my car. Even if the court is minded to accept that a sign was visible, the wording on the sign was prohibitive.

12. Church guest: I decided to find someone inside the church and ask where they had parked. I returned to the car and relocated it, all within 10 minutes. As a wedding guest, unfamiliar with the site, I find it unreasonable and unfair to expect someone attending the church to have pre-authorisation or a valid permit.

13. No Windscreen PCN: It is denied that a windscreen notice was ever attached to notify me of this alleged contravention on XXX, despite the Claimant's photos obviously taken by a patrolled worker on foot.

Consumer Rights Act (CRA, 2015) breaches

14. 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) (See Exhibit XX-5)

15. It is of my understanding that there was no agreement to pay a parking charge. This

Claimant's lack of large, readable signs, that do not meet the signage requirements in the Department for Levelling Up, Housing and Communities (DLUHC) Code which reflects the already statutory requirement for 'prominence' (Consumer Rights Act 2015 - the 'CRA') (See Exhibit XX-6).

16. 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.

17. It is my understanding 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.

18. Even if the court is minded to accept that a sign was visible, the wording on the sign was prohibitive. Unlike in the Parkingeye v Beavis 2015 case (Exhibit XX-7), 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. 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 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. Again, the Department for Transport's Guidance on Section 56 and Schedule 4 of the Protection of Freedoms Act 2012: Recovery of Unpaid Parking Charges, state that if it can be shown that a contractual term was unfair, it follows that the term cannot be relied upon to enforce a parking charge (7.2). In section 8.1 it refers to trespass for unauthorised parking, ie parking without a permit. Therefore the claim of breaching terms and conditions is denied, as it is unclear if it was contractual or trespassing, which is a different matter. And if it is unclear, then it isnt a fair contract.

21. Fairness and clarity of terms and notices are paramount in the DLUHC Code and these clauses are supported by the British Parking Association and International Parking Community (IPC). In the official publication 'Parking Review' the IPC's CEO 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." (Exhibit XX-8).

22. It is noted that the Claimant is a member of the IPC, who state they operate in accordance with their code of practice.

23. Exhibit XX-9: The IPC Code of practice (Version 8) allowed a 10 minute grace period in 2023, unless signage specifically states in clear prominant font, that no grace period applies on that land. Upon looking at the signage, I can see it does not specify this.

24. Claimant has photo evidence of my car being stopped between the time 14:16 and 14:17, which I will assume was when I had left the car to find someone to speak to about parking elsewhere.

25. Only now on reading the small print of the sign, I can see that it states it will obtain vehicle registration on entry and exit to calculate the length of stay. Therefore, the photographic evidence, timed for less that one minute, will be of no value to the Claimant, as it lacks any grace period, let alone any actual parking violation.

Exaggerated Claim and 'market failure' currently being addressed by UK Government

26. 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.

27. 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.

28. 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.

ParkingEye v Beavis is distinguished

29. Unlike in Beavis, the penalty rule remains engaged. The CRA covers disproportionate sums, which are not exempt from being assessed for fairness because a 'fee' is not the core price term and neither was it prominently proclaimed on the signs.

30. The Supreme Court held that 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 alleged breach. The intention cannot be to punish a driver, nor to present them with hidden terms or cumbersome obligations ('concealed pitfalls or traps'). This Claimant has failed those tests, with small signs, hidden terms and minuscule small print that is incapable of binding a driver. Court of Appeal authorities about a lack of ‘adequate notice’ of a parking charge include:

(i) Spurling v Bradshaw [1956] 1 WLR 461 (Lord Denning's ‘red hand rule’) (ExhibitRS10) and

(ii) Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ2 (Exhibit RS-11),

both leading authorities 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''. (Exhibit XX-12).

Conclusion

31. 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.

32. Finally, having outlined my witness statement with supporting evidence, I encourage the court to strike out the claims against the Defendant, and to grant compensation in accordance to the defendant cost of schedule:

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

Claim for loss of earnings

Petrol

Parking

Time taken to learn about the law

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

46.5.

33. 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))."

Statement of Truth

I believe that the facts stated in this defence are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

Defendant

Signed 

Date 

Gr1pr

The statement of truth is incorrect 

Coupon-mad

Which PPC?

Which solicitor?

You say you've already sent it?

Have they sent you theirs yet?

Your statement of truth at the end says it's a defence.

Points 3 & 4 are not relevant to your case at all because yiu are the admitted driver. POFA doesn't apply in your case. If the Judge starts concentrating on that tell him/her you concede that it doesn't apply to an alleged 'driver liability' case.

But due to this (below) you will win (the fact that they only have you stopped for a minute whilst you tried to locate signs/rules on where to park:

24. Claimant has photo evidence of my car being stopped between the time 14:16 and 14:17, which I will assume was when I had left the car to find someone to speak to about parking elsewhere. 

25. Only now on reading the small print of the sign, I can see that it states it will obtain vehicle registration on entry and exit to calculate the length of stay. Therefore, the photographic evidence, timed for less that one minute, will be of no value to the Claimant, as it lacks any grace period, let alone any actual parking violation. 

rseale89

It's Euro Car Parks with Gladstones Solicitors.

They court emailed me back saying they can't accept because the document is too long! So I have a chance to edit and post a hard copy.

Ok thanks, I wasn't sure if I should still keep it, in hope, as it still goes against POFA rules.

I will edit the statement of truth also.

Thanks for your support 🙏 

LDast

Are you sure it's Euro Car Parks and not Euro Parking Services?

ECP tend to use DCB Legal and EPS use Gladrags.

Coupon-mad

I was about to say the same.

It isn't Euro Car Parks.

rseale89 said:

They court emailed me back saying they can't accept because the document is too long! So I have a chance to edit and post a hard copy.

Ok thanks, I wasn't sure if I should still keep it, in hope, as it still goes against POFA rules.

I will edit the statement of truth also.

Oh good!  You need to do more than just those little tweaks. I hope you didn't put the Claimant as Euro Car Parks in that WS headings?!

Now you can email a proper WS and evidence bundle that's under 50 pages.

What exhibits did you have?

You seem to have attached Chan and some strike out cases but missed Akande?!

Search the forum for

Chan Akande link witness

rseale89

Haha sorry you're right! It is Euro Parking Services (I did it correctly in the witness statement, just an exhausted lapse moment after so much reading and research I think!)

There were a few cases that I just couldn't for the life of me find the evidence for, but I will have another look tonight before submitting it in.

Many thanks again guys