Count Court Defence - draft

RegW wrote: »

Hello, I challenged a ticket against Gladstone on the basis of:
- Lack of proof that I am the driver
- Lack of specificity of the claim
- Lack of authority to issue the claim
- Lack of signage
- Conflict of interest between Gladstone and the parking company
The full defence I filed with the County Court can be read here:
forums.moneysavingexpert.com/showthread.php?t=5697634

I just received a statement of witness - so they went to the location, took pictures of the signs, submitted a floor plan etc... a lot of homework to counter my defence. Below the details.
I welcome any help.

GLADSTONE'S STATEMENT AGAINST MY DEFENCE

1. Defendant not the driver
The Criminal Case of Elliott v Loake 1983 Crim LR 36 held that the Registered Keeper of a vehicle
may be presumed to have been the driver unless they sufficiently rebut this presumption. To
date the Registered Keeper has been invited on numerous occasions to identify the driver, yet
has failed to do so. The Court is therefore invited to conclude it more likely than not that the
Registered Keeper (i.e. the Defendant) was the driver.
In the alternative, if the Court is not able to infer that the Defendant was the driver then the
Defendant is pursued as the Registered Keeper of the vehicle pursuant to Schedule 4 of the
Protection of Freedoms Act 2012 (!!!8216;the Act!!!8217;) Paragraph 4(1) which states:
"The creditor has the right to recover any unpaid parking charges from the keeper of the
vehicle."
Paragraph 2 of the Act states that; the !!!8220;keeper!!!8221; means the person by whom the vehicle is kept
at the time the vehicle was parked, which in the case of a registered vehicle is to be presumed,
unless the contrary is proved, to be the registered keeper.
The relevant Notice was sent to the Defendant in accordance with the Act and the Registered
Keeper (the Defendant) failed to nominate who was driving the vehicle prior to these
proceedings which is required under paragraph 5(2) of the Act.

2. Particulars of Claim
The Claim is issued via the County Court Business Centre which a procedure specifically provided
for in the Civil Procedure Rules. This only allows the Claimant to insert brief details of the Claim.
In any event, my Company can confirm that the Particulars of Claim contained sufficient
information for the Defendant to be aware of that the claim relates to; namely;-
i) The date of the charge;
ii) The vehicle registration number
iii) The parking charge notice number;
iv) The amount outstanding;
v) Thai it relates to parking charges; and
vi) That it is debt.

Further Paragraph 5.2A of Practice Direction 7E specifically states the requirement in paragraph
7.3 of Practice Direction 16 for documents to be attached to the particulars of contract claims does
not apply to claims started using an onlinc claim form, unless the particulars of claim are served.

3. No authority to enforce charges
As the contract is between my Company and the Defendant, my Company does have the
authority to enforce parking charges. However, both VCS v HM Revenue & Customs (2013) and
Parking Eye v Beavis (CA 2015) made it clear that a contracting party need not show they have a right to do what they have promised in the performance of a contract, nor is (in the case of a
parking operator) the agreement between Operator and Landowner of any relevance. In any
event, and without concession, the Agreement exhibited to this Witness Statement evidences
my Company!!!8217;s authorisation to operate / manage the Relevant Land on behalf of the
Landowner.

Lord Justice Lewison commented in VCS v HM Revenue 8: Customs [2013] EWCA Civ 186;
(1) "T he Upper Tribunal's reasoning on this part of the case was that since VCS did not have
the right under its contract with the car park owner to grant a licence to park, it could not
have contracted with the motorist to grant such a right. in my judgment there is a serious
flaw in this reasoning.
(2) The flaw in the reasoning is that it confuses the making of a contract with the power to
perform it. There is no legal impediment to my contracting to sell you Buckingham Palace.
if (inevitably) l fail to honour my contract then l can be sued for damages. On the stock
market it is commonplace for traders to sell short; in other words to sell shares that they
do not own in the hope of buying them later at a lower price. in order to perform the
contract the trader will have to acquire the required number of shares after the contract
of sale is made. Moreover, in some cases a contracting party may not only be able to
contract to confer rights over property that he does not own, but may also be able to
perform the contract without acquiring any such right. Thus in Bruton v London and
Quadrant Housing Trust [2000] 1 AC 406 a housing trust with no interest in land was held
to have validly granted a tenancy of the land to a residential occupier. The tenancy would
not have been binding on the landowner, but bound the two contracting parties in
precisely the same way as it would have done if the grantar had had an interest in the
land.
Thus in my judgment the Upper Tribunal were wrong to reverse the decision of the FTT on
the question whether VCS had the power to enter into a contract. Having the power to
enter into a contract does not, of course, mean that VCS necessarily did enter into a
contract with the motorist to permit parking"

4. Did not see the signs
The photographic evidence of the Defendant!!!8217;s vehicle shows the Defendant is within a clear view
of one of the many warning signs throughout the Relevant Land and all signage states the terms
and conditions of parking within the Relevant Land. Upon reading the signage the Defendant
contractually agreed to pay a parking charge fee if restrictions were breached. It is the driver!!!8217;s
responsibility to ensure parking is permitted prior to leaving the vehicle unattended within the
restricted area.
My Company rejects any argument that the Defendant did not see the sign. It is also evident
from the site plan that there are sufficient signs. The signage at the site is clearly visible and the
information on the signage informs the driver of the parking conditions at the location. Signage is
prominent throughout the parking area. Signage location, size, content and font has been
audited by the International Parking Community. It is the driver's responsibility, to check for
signage, check the legality and obtain any authorisation for parking before leaving their vehicle.
The signage on site is the contractual document.
What is more, without concession, even in the unlikely event the Defendant didn!!!8217;t see the signs I
submit they ought to have done so. As Lord Justice Roch observed in the Court of Appeal case of
Vine v London Borough of Waltham Forrest 2000;
Once it is established that sufiicient and adequate warning notices were in place, a car
driver cannot be heard to say that he or she did not see the notice. Were that to be the
law, it would be too easy for car drivers who trespass with their cars to evade the only
method land owners have of stopping the unauthorised parking of cars in parking spaces
or parking areas on their property"

5. Claimant's Solicitors identical to Claimant!!!8217;s Trade Association
The Defendant!!!8217;s opinion on any alleged conflict of interest with a non-party to this claim is
irrelevant and therefore not the subject matter of the claim before us. Gladstones Solicitors and
the International Parking Community used to have the same Directors, however this is no longer
the case, and in any event they remained separate in its entirety.

6. The Current Debt
In view of the Defendant not paying the charge within the 28 days allowed they are in breach of
the contract. Breach of contract entitles the innocent party to damages as of right in addition to
the parking charge incurred.
ln view of the Defendant not paying the charge the matter was passed to my Company!!!8217;s legal
representatives, Gladstones Solicitors Ltd. The debt has, as a result of this referral risen as my
Company's staff have spent time and material in facilitating the recovery of this debt. This time
could have been better spent on other elements of my Company!!!8217;s business. My Company
believes the costs associated with such time spent were incurred naturally as a direct result of
the Defendant!!!8217;s breach and as such asks that this element of the claim be awarded as a damage.
The costs claimed are a pre-determined and nominal contribution to the actual losses.
Alternatively, my Company does have a right to costs pursuant to the sign lie. the contract).