Witness Statement due

Parking And Property Management Limited(CLAIMANT)

-and-

XXXXX XXXXXX (DEFENDANT)

________

DEFENCE
________



Background
1. It is admitted that the defendant, XXXX XXXXX, is the registered keeper of the vehicle.

1.1. It is denied that there was any 'relevant obligation' or 'relevant contract' relating to any parking event, in fact it is denied that the car was actually parked/left for any period of time that can warrant any 'contractual parking charge'.

1.2. It is denied that any 'parking charges or indemnity costs' (whatever they might be) are owed. Any purported 'debt' is denied in its entirety.

2. The alleged parking charge relates to two minutes whilst the vehicle was present at the stated location, before the driver could ascertain parking terms

2.1. It is apparent the ticketer must have lurked, watched and immediately ticketed, conduct that is clearly predatory.


2016 Appeal case (a Gladstones parking claim turning on similar facts) is persuasive
3. The facts of this case are similar to those in the Appeal case of Jopson v Homeguard Services (B9GF0A9E, Oxford County Court, 2016), where a car had stopped temporarily near the entrance in order to unload some furniture. HHJ Harris QC held, in his Judgment at [18], that ''a right of access permitted short incidental stops for the purpose of access to her flat''. Specifically, it was stated that brief stops for delivering or unloading items, dropping off passengers, etc. were not 'parking'; a definition which was fully explored by this Senior Circuit Judge, who observed that life at a block of flats would be ''unworkable'' if every resident or visitor ran a risk of immediate ticketing, when the vehicle was not in fact parked, and before any contract could possibly have been agreed.

4. The Judgment in Jopson also makes it clear that the factual circumstances are quite different from those which applied in ParkingEye Ltd v Beavis [2015] UKSC 67, and that case is distinguished.

Poor Signage
5 The signage on and around the site in question was damaged, unclear and not prominent and did not meet the British Parking Association (BPA) Code of Practice or the Independent Parking Committee (IPC) Code of Practice. Evidence was supplied to the claimant of broken and obstructed signs. The Claimant is a member of the IPC at the time and committed to follow its requirements. Therefore no contract has been formed with driver to pay the amount demanded by the claimant.

No Reasonable Grace Period Allowed by the Claimant - no contract formed
5. Two minutes cannot be reasonably considered a 'grace period'; in which time the driver may find a sufficiently legible sign, so as to ascertain the terms of use of the parking bays. This is in breach of the the International Parking Community (IPC) code of practice, to which the claimant is an Accredited operator, and by which they must therefore abide. Whilst this Code of Practice is not statutory, compliance with the Code is mandatory in order for parking operators to obtain vehicle keeper details from the DVLA.

5.1. Full compliance with the equivalent BPA Code of Practice was held to be 'effectively a regulatory framework' and given significant weight by the Supreme Court in Parkingeye Ltd v Beavis [2015] UKSC 67 (the Beavis case), where the decision turned on very prominent signs, a commercial justification that (unusually) disengaged the penalty rule in that case alone, and the fact that Mr Beavis was given ample opportunity and time, to learn of the terms by which he would later be bound.

5.2. The IPC Code states: 'Drivers should be allowed sufficient amount of time to park and read any signs so they may make an informed decision as to whether or not to remain on the site'.


Unfairness - no regard for the Trader's duty for 'Fair Dealing' and Misleading Trading Practices
6. Trade Body Codes of Practice are 'effectively binding' according to the Supreme Court in the Beavis case.

6.1. Further, the Consumer Protection from Unfair Trading Regulations identifies at section 5 'Misleading Actions': (3) A commercial practice satisfies the conditions of this paragraph if - (b) it concerns any failure by a trader to comply with a commitment contained in a code of conduct which the trader has undertaken to comply with, if;
(i) the trader indicates in a commercial practice that he is bound by that code of conduct, and
(ii) the commitment is firm and capable of being verified and is not aspirational.

6.2. The Court's attention is drawn to the ''Red Hand Rule'', as set out in the leading judgment in J Spurling v Bradshaw [1956] EWCA Civ 3, where Denning MR stated:''The more unreasonable a clause is, the greater the notice which must be given of it. Some clauses would need to be printed in red ink with a red hand pointing to it before the notice could be held to be sufficient''.

6.3. Underlining that is Section B.2.1, B.2.2 of the IPC Code of Practice which gives clear instructions as to the placing, visibility and clarity of any signs that must be used to form contracts. It says: ''It is therefore of fundamental importance that the signage meets the minimum standards under The Code as this underpins the validity of any such charge.''

6.4. In the Beavis case, the Supreme Court Judges reiterated the requirement for fair and open dealing, at paragraph 205:''The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer''

6.5. Courts must now consider the fairness of a term, where it is not 'prominent and transparent'. Unfair terms here include the penalty fine itself, charges hidden in small print, lack of any fair grace period for the driver to seek out, read decide whether to accept any advertised parking contract, misleading and predatory conduct, added costs not specified prominently in the alleged contract, disproportionate default charges, non-observance of a Code of Practice. Such conduct and terms breach Part 2 'Unfair Contract Terms' of the Consumer Rights Act 2015 (the CRA) which was enacted after the Beavis case final hearing, and remains untested in the context of unfair parking penalty charges.

6.5.1. The Court's attention is drawn to the CRA at SCHEDULE 2, a non-exhaustive list of 'Consumer contract terms which may be regarded as unfair' which include clear references to conduct that is on all fours with that of this Claimant, and their solicitors.

6.5.2. The CRA requires that key terms of a contract, including price, must be assessed for fairness by a court, where those terms are not both 'prominent and transparent' (which the Defendant avers they are not).
The CRA, at para 71, sets out the duty of court to consider fairness of a consumer contract term: ''(2) The court must consider whether the term is fair even if none of the parties to the proceedings has raised that issue or indicated that it intends to raise it''.

7. An honest, timely and concerted effort was made to appeal, but the points made to both the Claimant and the supposedly 'independent' IAS were effectively ignored, contrary to the IPC Code of Practice. It is now apparent to the Defendant that 'appeal' to IPC members and/or the IAS is futile, and that it is widely held to be a kangaroo court, luring members to the IPC under a well-publicised promise of 80% appeals going in favour of the parking firm. It is averred that this is why this Claimant moved from the BPA, where POPLA is independent from that Trade Body and consistently finds in consumers' favour in over half of appeal cases.

7.1. The Defendant's research into the Claimant company reveals that, on Thursday 28th May 2015, the BBC Watchdog programme sent an undercover reporter into the Claimant's offices, to reveal the unscrupulous practices employed by the Claimant. Amongst many revelations, at one point their appeals handler stated on camera ''I make it up most of the time''; (a screenshot will be provided as evidence).

7.2. Further research reveals that the IPC, and its supposedly independent appeals service ('IAS'), are all controlled by the two Directors of Gladstones Solicitors, who are acting for the Claimant in this matter. This can be confirmed by reference to Companies House records, and is evidence of a conflict of interest by which it is unlikely that any appeal would be fairly adjudicated. As such, this is a further indication that the Claimant does not come to the matter with clean hands.


No commercial justification to penalise a prospective tenant - predatory conduct
8. This Claimant is not the lawful occupier of the land is at best acting 'on behalf of' another agent. It is averred that this Claimant has no more than a bare licence to put signs up under an agency agreement, and this punitive charge is in conflict with any purported commercial justification.

8.1. It is averred that there is no agreement from the landholder that bestows any rights to this non-landholder Claimant, to pursue visitors in the courts, in its own name.

8.2. Specifically, it is the Defendant's honest belief that, even if there is a chain of authority from the landowner conferring such a right to pursue drivers of cars that have actually been parked/left at the location, this cannot reasonably allow immediate, predatory ticketing of drivers whilst the driver was seeking out terms of parking.

8.3. The Claimant is put to strict proof of its legitimate interest and cause of action, given the facts of the case.


This Claim is artificially inflated, but is embarrassing for scarce Particulars
9. It is denied that the Claimant has any entitlement to the sums sought, and it is noted that this Claim has inflated the 'charges' in a typically routine attempt at double recovery of a sum which bears no relation to the sum on any sign or parking charge notice.

10. No indemnity costs or damages have been incurred, nor were any debt collection 'fees' paid by this Claimant, and it is averred that the sum claimed is invented out of thin air as part of the Claimant's solicitors' robo-claim model, which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. The defendant has reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to the significant detriment of the unrepresented Defendant.


11. The Claimant's solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence and no scrutiny of details. HMCS have identified thousands of similar poorly produced claims, and the solicitor's conduct in many of these cases is believed to be currently the subject of an active investigation by the SRA.

10) It is suggested by the defendant that parking companies using the small claims track as a form of aggressive, automated debt collection is not something the courts should be seen to support.

12. As stated within a letter sent by the defendant to Gladstone’s solicitors, it is the belief of the defendant that the letter of claim does not comply with the requirements of the Practice Direction on Pre-action Conduct and Protocols. The defendant requested a fully compliant Letter Before Claim from the claimant in order to assess the facts and produce a more detailed response to their correspondence. Two separate requests were made, but the same automated ‘robo’ response was received


12. The Particulars of Claim lack specificity and are embarrassing. The Court is respectfully invited to strike out the claim, for similar reasons cited by District Judge Cross of St Albans County Court on 20/09/16 where a parking claim was struck out without a hearing, due to Gladstones' template particulars for a private parking firm being 'incoherent', failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''.

13. Should the Claim not be struck out by the Court, as an alternative when Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange). This is because it is expected that the Claimant/Gladstones will use the witness statement to finally provide the sort of detail which should have been disclosed much earlier in the missing Particulars of Claim. The Defendant should have the opportunity to consider the full particulars/evidence, prior to serving evidence and witness statements in support of this Defence.

I believe that the facts contained in this Defence are true.

parking company (Parking & Property Management Limited)
v
******** (defendant)

Claim no:



I am the Defendant in this matter, I am unrepresented, with no experience of Court procedures. If I do not set out documents in the way that the Claimant may do, I trust the Court will excuse my inexperience.
In this Witness statement, the facts and matters stated are true and within my own knowledge, except where indicated otherwise.

1. Whilst I was the Registered Keeper of the vehicle concerned, there is no evidence of the driver. The claimant has issued a notice to keeper which is not compliant with the strict requirements of the Protection of Freedoms Act 2012 as it fails to show any period of parking as per paragraph 8 (2)c PoFA 2012. Please see Exhibit 1

2. The Defendant neither admits nor denies being the driver at the time of the supposed event, and therefore puts parking company to strict proof that any contract can exist between the Claimant and themselves.

3. At the time in their notice to driver was issued it is possible for a number of people to have been the driver, but I have no obligation to name them to a private parking firm. It remains the burden of the Claimant to prove their case.

4. Despite what appeared to be junk mail, impersonating a parking ticket I emailed PP&M on May XX 2017, email attached (Exhibit 2), requesting any documentation and relevant contracts with the land owners that allow the claimant to issue claims upon the landowner’s behalf. My request was denied.

5. May XX 2017, I followed the appeal process and appealed to the IAS supplying photographic evidence of broken sign and failure to supply contract with landowner. (Exhibit 3 – Broken sign photo attached)

6. The IAS rejected my appeal and ruled against me. Subsequent research into the IAS revealed that the IAS appears to blatantly disregard recognised standards of law and justice. the IAS carries official standing, but does not met the legal minimum criteria for an ADR Entity, It is used by operators to give the appearance of a fair hearing, although internally they know they are just going through the motions. (EXHIBIT 4 - FIND And Attach Something disregarding IAS)

7. I received various threatening and intimidating letters from Gladstone Solicitors, demanding various amounts of money, threatening court action. I have researched this and discovered that parking company and Gladstone are issuing robo-claims for 'parking charges' in their thousands. (Exhibit 5)

8. August 2017 – received letter before claim from Gladstone Solicitors. The letter was not compliant with the requirements of Annex A Para 2 of the Practice Direction on Pre-action Conduct (Exhibit 6 – Copy of LBC)

9. In reply, I sent an email to Gladstone solicitors requesting a Letter Before Claim which complied with the requirements of Annex A Para 2 of the Practice Direction on Pre-action Conduct (Exhibit 7 – Copy of email sent)

10 November 2017 – receive an identical Letter Before Claim from Gladstone Solicitors, again not compliant with the requirements of Annex A Para 2 of the Practice Direction on Pre-action Conduct (Exhibit 8- Copy of second LBC)

11. In Reply to second Letter Before Claim, I sent another email pointing out the deficiencies in the letter before claim and again requesting a compliant LBC (Exhibit 9 – Copy of Email)

12. May 2018: I received a Claim Form from Northampton CCBC, without ever having received a 'Letter Before Claim' that was compliant with Court Pre-Action Conduct.

a. The Particulars of Claim (“PoC”) were sparse and lacking in detail.
b. I checked the Civil Procedure Rules (“CPR”) and found that they did not comply with CPR
c. 16.4 and Practice Direction (“PD”) 16.

13. I am no more liable now than I was then, but this unwarranted harassment and baseless litigation has caused me significant alarm and distress, such that I intend to report Parking company to the Information Commissioner for misuse of my data, obtained from the DVLA.

14. My DVLA data was supplied for the single strict purpose of enquiring who was driving, not for suing me as if I can now be held liable, in the hope I will not defend/will have lost the paperwork/will have moved house, or even better, that I will be so scared that I will pay over £160 for what was apparently an unproven £100 charge, allegedly incurred by another party, if incurred at all.

15. It is apparent from court records reported in the public domain that this Claimant has been obtaining payments from keepers under false pretences - using the court as a cheap form of debt collection from the wrong 'registered keeper' parties - and has obtained default CCJs in the hundreds, despite never complying with the POFA 2012 and even bringing pre-POFA cases to the Courts.

16. I have also visited the Car Park to take more photos in daylight hours and attached are photos of broken and obscure signs (Exhibit 10 and 11)

17. The Defendant is at a serious disadvantage in this case.

a. The case involves a well-funded Claimant who is a serial litigant with unlimited access to the services
of qualified legal professionals, and who will be legally represented in this case; against an unrepresented Litigant in Person with no legal knowledge or experience of court process.

b. The Claimant has issued vague and incoherent PoC such that the Defendant does not have enough information to know how to properly defend this claim.

c. The Claimant has ignored the Defendant’s reasonable request for additional information, made so that he could properly understand the claim and respond/defend accordingly. This is contrary to pre-action protocols and the ‘Overriding Object’ (CPR 1)

d. I therefore reserve my position to add further points once I have seen the Claimant’s court bundle containing their evidence and Witness Statement.

I believe that the facts stated in this Witness Statement are true.



Signed xxxxxxxxxxxxxxxx