Gladstone's directions questionnaire

Shortcat

Yeah fair enough, and as you said before I guess it's on them to prove otherwise :)

Shortcat

So I am just finishing off my WS now, am at the evidence gathering part and just wanted some clarification.

5.
The first persuasive appeal judgment in Civil Enforcement Limited v
Chan (Ref. E7GM9W44) would indicate thatthe
POCs fail to comply with CPR 16.4(1)(e) and Practice Direction Part
16.7.5. On 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”.
(Exhibit JR-02)

With this, am I linking to the whole CEL v Chan case? Like in this URL https://www.dropbox.com/scl/fi/2jef4c7bljyp6dse24p70/Judgments.pdf?rlkey=jsgusx180wzjz2f6er0436xw2&st=03x4tsbq&e=1&dl=0

Or do I need to find a specific part of said case?

Looking
at Schedule 2 (examples 6, 10, 14, and 18) and section 62, which
require fair, open dealing and good faith, the Defendant notes that
this Claimant is well known to use unclear and potentially unfair
terms and notices. Based on the sparse information provided in this
case, the situation appears to be very similar. The Claimant is
therefore required to strictly prove their case with contemporaneous
photographs. (Exhibit JR-04)

and for this one, would I just be linking to Schedule 2 or do I need to specificly link to section 62?

Are links acceptable as evidence or do I need to put them onto a seperate sheet? Thanks :)

Shortcat

Final draft of WS:

1.
I am XXX of XXX, and I am the defendant against whom this claim is
made. The facts below are true to the best of my knowledge and
belief.

2.
In my statement I shall refer to exhibits within the evidence
supplied with this statement, referring to page and reference numbers
where appropriate. I am a litigant in person with no formal legal
training. I have done my best to present my case and evidence clearly
and truthfully, and I respectfully ask the court to take this into
account. My defence is repeated, and I will say as follows:

Defective
Particulars of Claim

3.
The Claimant’s case is vague, lacking thedetail
required under Civil Procedure Rule (CPR) 16.4, 16PD3 and 16PD7,
which requiresa claimant to set out all facts necessary to establish a complete
cause of action. The Particulars of Claim (POC) simply allege that“the
driver of the vehicle with registration XXX parked in breach of the
terms of parking stipulated on the signage”.
However, the Claimant provides no information on the specific termsclaimedto have been breached, anyconduct that allegedly broke those terms, or how a contract was
formed between
the relevant parties.
This absence of essential detail fails to justify the claim and has
also made it verydifficult
for me to respond to it in
an effective manner.Even
with the lack
of details as to the alleged breach of terms,
I have attached a bank statement which shows a £10 payment toYOURPARKINGSPACE.CO.UKleaving
my accounton 3 November 2024, which
was the payment for 24 hours of parking at the car park. (Exhibit
JR-01 BANK
STATEMENT)

4.
I draw to the attention of the Judge that there are many recent and
persuasive Appeal judgments to support dismissing or striking out
this claim (in these exact circumstances of typically poorly pleaded
private parking claims. The POC seen here are much worse than the
ones seen on the below Appeals).

5.
The first persuasive appeal judgment in Civil Enforcement Limited v
Chan (Ref. E7GM9W44) would indicate thatthe
POCs fail to comply with CPR 16.4(1)(e) and Practice Direction Part
16.7.5. On 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”.
(Exhibit JR-02)

6.
The second recent persuasive appeal judgment in Car Park Management
Services (CPMS) Ltd. v Akande (Ref. K0DP5J30) would also indicate the
POCs fail to comply with Part 16. On 10th May 2024, in the cited
case, HHJ Evans held that “Particulars
of Claim have to set out the basic facts upon which a party relies in
order to prove his or her claim”.
(Exhibit JR-03)

The
Claimants Authority to Issue Parking Charges

7.
DVLA keeper data is only supplied on the basis of prior written
landowner authority. The Claimant (an agent) is put to strict proof
of their standing to sue and the terms, scope and dates of the
landowner agreement, including the contract, updates, schedules and a
map of the site boundary set by the landowner (not an unverified
Google Maps aerial view). The Claimant has failed to provide any
evidence to prove landowner authority.

No
Valid Contract Formed

8.
It is neither admitted nor denied that any contract term were
breached. Under section 71 of the Consumer Rights Act 2015, the Court
must apply a 'test of fairness' and this requires contract terms and
any “consumer notices” to be clear and prominent.

Looking
at Schedule 2 (examples 6, 10, 14, and 18) and section 62, which
require fair, open dealing and good faith, the Defendant notes that
this Claimant is well known to use unclear and potentially unfair
terms and notices. Based on the sparse information provided in this
case, the situation appears to be very similar. The Claimant is
therefore required to strictly prove their case with contemporaneous
photographs. (Exhibit JR-04)

9.
With a lack of clear, accurate, and consistent evidence demonstrating
the location and visibility of contractual signage, the Claimant has
not, and is unable, to prove that the terms were effectively
communicated. As such, no contract could have been formed with the
driver of the vehicle.

KeeperLiability
and the Protection of Freedoms Act 2012 (POFA)

10.
I confirm that I was the registered keeper of the vehicle with
registration number XXX at the time in question and deny any
liability.

11.
The Claimant has relied solely on assumptions as to whom the driver
of the vehicle was at the time. However, there is no legal
requirement for a registered keeper of a vehicle to name a driver in
a private parking matter, and no such presumption exists in law.

12.
If the Claimant wishes to pursue the Defendant as the driver, then
the burden of proof rests entirely on them, on the balance of
probabilities, that the Defendant was in fact driving. Mere
speculation or assumption as to whom the driver was is not enough.

13.
In April 2023, HHJ Gargan sitting at Teesside Combined Court (on
appeal re-claim H0KF6C9C) held in Vehicle Control Services Ltd v Ian
Edward (Exhibit JR-05)
that a registered keeper of
a vehicle cannot
be assumed to have beenthe driver.Furthermore,
noadverse inference couldbe
drawn if a keeper is unable or unwilling (or indeed too late, post
litigation) to nominate the driver, because the POFA does not invoke
any such obligations.
HHJ Gargan concluded at 35.2 and 35.3. "my
decision preserves and respects the important general freedom from
being required to give information, absent a legal duty upon you to
do so; and it is consistent with the appropriate probability analysis
whereby simply because somebody is a registered keeper, it does not
mean on the balance of probability they were driving on
this
occasion…"
Mr Edward's appeal succeeded and the Claim was dismissed.

14.
If, instead, the Claimant wishes to pursue the Defendant as the
keeper, then they must meet the strict requirements of POFA 2012
(Schedule 4) to transfer liability from the unknown driver to the
Defendant as the keeper. (Exhibit JR-06)

15.
Accordingly, the Claimant has failed to comply with POFA and is
unable to transfer liability to me as the keeper. There is therefore
no lawful basis for this claim against me.

16.
The fact that parking firms cannot invoke keeper liability in case of
non-compliance with POFA, has been tested on appeal in private
parking cases including in the case of Excel Parking Services Ltd v
Anthony Smith at Manchester Court (Exhibit JR-07), on appeal re-claim
number C0DP9C4E, HHJ Smith overturned an error by a District Judge
and pointed out that, where the registered keeper was not shown to
have been driving (or was not driving) a Defendant cannot be held
liable without the POFA. Additionally, there is no argument to be
made by using a loose interpretation of the law of agency (if that
was applicable then the POFA Schedule 4 legislation would not have
been needed at all). HHJ Smith criticised Excel for attempting to
rely on assumptions that the Defendant was driving or that the driver
was acting 'on behalf of' the keeper, which was without merit. Excel
could have used the POFA but did not. Excel's claim was dismissed.

17.
The Claimant’s failure to comply with POFA 2012 is not a surprise,
as it arises from their own longstanding decision not to adopt the
requirements of Schedule 4 before early 2025. At the time of the
drivers alleged contravention, Horizon Parking’s notices were
deliberately issued on a driver-liability-only basis. The Claimant
was among a small number of parking companies that chose not to use
the statutory wording or follow the strict timelines required to
establish keeper liability under Schedule 4. (Exhibit JR-08)

18.
It is completely the Claimant’s—and permitted by the DVLA—to
choose not to have complied with POFA 2012. However, one of the
consequences of the choice not to be bound by the statutory wording
and timescales of Schedule 4 is that keeper liability cannot arise.
Where POFA is not complied with, liability (if any) remains solely
with the driver of the vehicle. In this case, the Claimant has
nevertheless suggested to the court that keeper liability applies,
despite purposely issuing a non-POFA notice. This is very misleading
and wholly inconsistent with their own established operating model at
the time, and with the legal requirements of Schedule 4.

Inflated
and Unlawful Charges

19.
In accordance with Schedule 4, paragraph 4(5) of the POFA 2012, the
Claimant is unable to recover from the keeper any sum larger than the
amount of the alleged unpaid parking charges as they were at the time
the Notice to Driver was issued. The sum claimed in these proceedings
exceeds that statutory maximum and is therefore unrecoverable from
the keeper under POFA. (Exhibit JR-09 SCHED 4 URL)

20.
Explanatory Note 221 to Schedule 4 confirms that a creditor “may
not make a claim against the keeper of a vehicle for more than the
amount of the unpaid parking related charges as they stood when the
notice to the driver was issued.”
Any added sums—such as “debt recovery fees”, “late fees”,
or other invented add-ons—are not “parking related charges”
within the meaning of POFA. These additional amounts fail
to appear
on signage, are not part of any contractual parking charge, and are
created solely by third-party debt recovery agents. POFA provides no
legal basis to impose keeper liability for such DRA-fabricated fees,
even if (which is denied) the Claimant had otherwise complied with
POFA’s conditions.

21.Toimpose a PC, as well as a breach, the Claimant must
show two things: (i) a strong 'legitimate interest' extending beyond
compensation for loss, and (ii) 'adequate notice' (prominence) of the
PC and any relevant obligation(s). None of which have been
demonstrated by
the Claimant.
This PC is a penalty arising as a result of a 'concealed pitfall or
trap', poor signs and covert surveillance, thus it is fully
distinguished from ParkingEye
v Beavis [2015]
UKSC67.

22.
This Claimant is
pursuinga highlydisproportionate sum; it is denied that the amountsought
is recoverable, indeed it represents a penalty. Attention is drawn to
paragraphs 98, 100, 193, 198 of Beavis(an
£85 PC comfortably covered all letter chain costs and generated a
profit shared with the landowner); the court should also read
paragraph 3.4 of the original judgment by HHJ Moloney in Beavis,
confirming what that authority means by 'costs of the operation'.
(Exhibit JR-10BEAVIS
98, 100, 193, 198 ON SEPERATE SHEET)

23.
The binding judgment in ParkingEye
v Somerfield Stores ChD
[2011] EWHC 4023(QB) remains unaffected by Beavis and stands as the
only parking case law that deals with costs abuse. HHJ Hegarty held
in paras 419-428 (High Court, later ratified by the CoA) that 'admin
costs' inflating a £75 PC (already increased from £37.50) to £135
were disproportionate to the minor cost of an automated letter-chain
and 'would appear to be penal'. (Exhibit JR-11PARKING EYE V SOMERFIELD)
The court should note that HHJ Moloney referenced this case in
Beavis.

24.
In addition to this, the ‘additional charges’ constitutes a
double recovery of capped legal fees (already listed in the claim)
and are not monies genuinely owed to, or incurred by, this Claimant.
The court is invited to find the amount claimed is false and an abuse
of process as found by HHJ Jackson in Excel v Wilkinson in which £60
had been added to a parking charge. (Exhibit JR-12 EXCEL V
WILKINSON)

25.
Exaggerated claims for impermissible sums are good reason for the
court to intervene. Following the before mentioned exaggerated costs
and charges, the court is invited to strike out or dismiss the claim
using its powers under CPR 3.4.

Conclusion

26.
For all the reasons set out in this statement, the Claimant has
failed to establish a valid cause of action. The Particulars of Claim
do not meet the requirements of the Civil Procedure Rules, fail to
specify which contractual terms were allegedly breached, provide no
details of the conduct said to amount to a breach, and give no
explanation as to how any contract was formed. This lack of essential
information mirrors the defective pleadings repeatedly criticised and
struck out in persuasive appeal authorities and has made it difficult
to effectively and properly respond in my defence.

27.
The Claimant has also failed to demonstrate that any contractual
terms were prominently displayed, consistent, or capable of forming a
binding agreement with the driver at the time. Without clear,
reliable, and contemporaneous evidence of the terms allegedly relied
upon, no contract could have been accepted and no liability could
therefore arise.

28.
Furthermore, the Claimant has neither identified the driver nor have
they complied with the strict statutory requirements of the
Protection of Freedoms Act 2012 necessary to pursue the registered
keeper. The Claimant’s attempt to imply keeper liability despite
issuing a non-POFA Notice to Keeper is both legally unsound and
inconsistent with their own operating model at the time.

29.
The Claimant also seeks an inflated sum that includes unlawful and
unrecoverable additions. These extra charges have been widely
condemned in higher court decisions as disproportionate, penal, and
an abuse of process. Such exaggerations further undermine the
credibility and validity of the claim.

30.
In light of the defective pleadings, non-compliant notices,
unreliable and misleading evidence, and exaggerated charges, I
respectfully submit that this claim is without merit. I therefore
invite the court to strike out or dismiss the claim in its entirety.

31.Should
the Court agree, I seek my Litigant-in-Person
costs for time reasonably spent researching, drafting and preparing
my defence and witness evidence, in accordance with the applicable
LiP rate.

STATEMENT
OF TRUTH

I
believe that the facts stated in this witness statement 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.

(The bits in bold are just reminding me what evidence to attach where and wont be sent off)

Coupon-mad

You are attaching exhibits, all numbered, which includes any photos or other evidence you are relying on and the actual transcripts (actual full PDFs - not just links) of

Chan

Akande

VCS v Edward

Excel v Smith

Excel v Wilkinson

HHJ Moloney's judgment in Beavis NOT merely the paragraphs from the final judgment on a sheet. HHJ Moloney's full first judgment too. NOT ParkingEye v Somerfield…).

But you'll need to compress them because you are not allowed to exceed 50 pages.

You don't need to link or exhibit the Consumer Rights Act 2015 as it's the law.

You should refer to and link the CMA's Open Letter from July (a link to Gov.uk is fine) and say to pursue a keeper when the C knows their 2024 NTK wasn't capable of keeper liability is a misleading omission which is plainly unfair (CRA 2015 and DMCC Act 2024 both apply) and not at the required legal level of transparency and 'open dealing' set out by the CMA who warned this industry last month.

Shortcat

actual transcripts (actual full PDFs - not just links) of

Mhmm mhmm. And let's say, hypothetically speaking, one had not done that and just sent links, how screwed would one be (hypothetically speaking)

Coupon-mad

Not at all if it goes to a hearing (most don't) and the judge is happy to click on links.

If the hearing takes place just take 2 printouts of those cases.

And a printed set of everything in a folder so you can follow what the judge says about page numbers.

I don't think you even provided a link to HHJ Moloney's Beavis case (first hearing) transcript which is odd because it is there in JackR1's version?! It is vital as a safety net if you lose the case. It kills the added £70.

Shortcat

Okay great. Yeahhhh I won't get too much into it but an overwhelming amount of mental health and procrastination may or may not have led to me seriously starting to do the witness statement about 2 hours before it was due :P

I know I'm an idiot don't worry :P also shocker but Gladstones haven't sent me anything surprised Pikachu face

Coupon-mad

https://forums.moneysavingexpert.com/discussion/comment/82098564#Comment_82098564

Totally on the same page as you…!

Last minute work is the norm.

Le_Kirk

For Chan & Akande, use this link: -

Chan_Akande

Shortcat

Hi very helpful people,

Last step now, I've got a meeting at court next week, Gladstones aren't turning up though.

I assume my best bet is to hope it gets struck out?

Assuming that doesn't happen, how much can I bring up the fact they got their WS nearly 2 weeks late and used it to respond to my WS?

Thank you all so much :)