Help Requested With WS - Court Hearing vs Gladstones & PPM Ltd

UPDATE 12.12.17

Court hearing set for 12th Feb. WS needs to be in by 2nd Jan (great timing) so I've started working on it now.

I've posted my fifth (and hopefully final) draft WS at the end of this thread and would be really grateful for any input. Thanks again for input thus far.

Thanks in advance.

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Hi,

So, it looks like I'm finally going to court to fight a PCN issued by Parking & Property Management Ltd. PCN issued to my wife so I'm basically fighting this on her behalf.

PCN was issued for five minutes parking in a lay-by opposite a co-op where it had previously been permissible to park for a limited time (20 mins or so) if visiting same. Very poor forbidding signage and absolutely nothing to indicate change of restrictions.

I've just received the DQ from Northampton as well as an email from Gladstones saying they are applying for 'Special Directions' to have it adjudicated 'papers only'. I know how to fill in the DQ but I couldn't find anything indicating how to respond to these 'Special Directions' - do I just write a covering letter saying I do not consent to this and want an oral hearing?

Also I will want to attend court as my wife's 'lay representative' and I can't find any info on this anywhere. Do I need to make any kind of special application to do this?

It seems the next step will be for me to write a witness statement and get evidence together. I would welcome any feedback/advice on this specific to my case. The defence I filed (prepared after much research here and elsewhere) is below.

The 'particulars of claim' state:

'The driver of the vehicle registration XXXXX incurred the parking charge(s) on XXXXX for breaching the terms of parking on the land at Kingston Mills Bradford-on-Avon. The defendant was driving the vehicle and/or is the keeper of the vehicle and the claimant claims £160 for parking charges/damages and indemnity costs if applicable, together with interest etc etc'

I don't have any legal training but have been through the small claims process a few times before, winning two out of three of them!

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Summary of Defence

I am XXX of 44 XXX, Defendant in this matter.

On the 7th January 2017 I parked my car in a unmarked lay-by outside the co-op in Bradford-on-Avon for the purposes of buying groceries from the co-op and delivering a package to the Post Office there. Previous parking restrictions in this spot had always allowed short parking stays on co-op business.

After less than five minutes inside the shop I noticed one of the Claimant’s operatives approach my vehicle. As it appeared he was about to issue a parking ticket I left the shop immediately and returned to my vehicle.

I explained that I was unaware of any changes to parking restrictions and would remove my vehicle immediately. Despite this, and whilst in my presence, the Claimant’s operative took photographs of my vehicle and issued me with the Parking Control Notice (PCN) that is the subject of this claim.

The claim is denied in its entirety. I assert that I am not liable to the Claimant for the sum claimed, or any amount at all, for the following reasons, any one of which fully negates the Claimant’s case.

1. A Contract Cannot Exist For Something That Is Forbidden
The wording on the sign in question expressly forbids parking, therefore it cannot be considered an offer of parking on any terms. Consequently there is no contract and no ‘breach of terms’.

2. The Signage Is Not of a Standard To Constitue A Contract
The signage at the site was not of a standard to constitute a ‘contract’ between myself and the claimant. Without a contract there cannot be a ‘breach of terms’.

3. Consumer Contracts Regulations 2013 and ‘Right Of Cancellation’ Applies
If it was assumed a contract did exist it would be categorised as a ‘distance contract’ under Consumer Contracts Regulations. As such I would have had ‘right of cancellation’ from said contract.

4. The Claimant Has No Standing to Bring a Case
Despite being asked, the claimant has failed to demonstrate that they have any authority to collect parking charges on the land in question.

Particulars of Defence

1. A Contract Cannot Exist For Something That Is Forbidden
The wording on the sign in question forbids parking other than for disabled blue badge holders and co-op delivery vehicles. There is no meaningful ‘offer’ of parking for other vehicles and the original PCN and Notice To Keeper I was served with refer to the charge in question as being for ‘unauthorised parking’. Without an ‘offer’ or benefit to the consumer there cannot be a contract and simply being told not to do something does not constitue a contract.

If the charge of £100 for 24 hours was a genuine ‘offer’ then I fail to see how my parking was ‘unauthorized’ (therefore invalidating the original PCN and Notice To Keeper’ I was sent) or how I have commited any ‘breach’ as stated on the particulars of claim. The Claimant’s position on this seems hopelessly muddled.

There have been at least two other cases where it has been ruled that such ‘forbidding contracts’ cannot be enforced. For examples see ‘Parking Control Management v Bull, Lyndsay and Woolford’ (which refers to signage and wording almost identical to that used in this case) and in which the Judge found as follows:

“If the notice had said no more than if you park on this roadway you agree to pay a charge then it would have been implicit that PCM was saying we will allow you to park on this roadway if you pay £100 and I would agree with Mr Samuels’ first analysis that essentially the £100 was a part of the core consideration for the licence and was not a penalty for breach. The difficulty is that this notice does not say that at all. This notice is an absolute prohibition against parking at any time, for any period, on the roadway. It is impossible to construct out of this in any way, either actually or contingently or conditionally, any permission for anyone to park on the roadway. All this is essentially saying is you must not trespass on the roadway. If you do we are giving ourselves, and we are dressing it up in the form of a contract, the right to charge you a sum of money which really would be damages for trespass, assuming of course that the claimant had any interest in the land in order to proceed in trespass.”

The only difference with the signage in the above case and this particular case is that here certain vehicles (co-op delivery vehicles and disabled blue badge holders) are permitted to park. However, in ‘Horizon Parking v Mr J. Guildford’ and ‘ES Parking Enforcement v Ms A. Manchester’ it was ruled that any contractual arrangement implied by such signage only applies to vehicles which are ‘authorised’ to park. From ‘ES Parking Enforcement v Ms A. Manchester’:

‘I do not find that “Terms of parking apply at all times” in any way invalidates my interpretation of the sign [that it is forbidding] because there are terms which apply to those that are authorised to park.’

According to the claimant my vehicle was not ‘authorised’ to park as stated in the PCN and Notice To Keeper.

Note also that in both these cases it was ruled that ‘ParkingEye vs Beavis’ did not apply as in that case there was an ‘offer’ of free parking for a limited period of time. From ‘Parking Control Management v Bull, Lyndsay and Woolford’:

‘In the Beavis case the scheme was categorised by the permission the ParkingEye gave Mr Beavis to be in the car park for a limited period of time. So whether you call it a contractual licence or whether you simply call it a contractual permission, as Lord Mance in the end did, that was the consideration and the consideration flowing the other way was Mr Beavis’s agreement to be bound by those terms.’

2. The Signage Is Not of a Standard To Constitute A Contract
The signage at the site was not of a standard to constitute a ‘contract’ between myself and the claimant. Without a contract there cannot be a ‘breach of terms’.

Specifically, the signage at the site falls way short of the characteristics defined in the code of practice of the International Parking Community (IPC) (the industry body to which the Claimant subscribes) in the following ways:

i) There are no signs at the entrance to the bay indicating one is entering private land

ii) The bay is unmarked and undifferentiated from the public highway

iii) The only PPM sign that is in place does not contain a large ‘P’ indicating parking restrictions

iv) The sign is not in a position’ such that a driver of a vehicle is able to see it clearly upon entering the site or parking a vehicle within the site’.

v) The sign is not ‘obvious to the motorist’ as it is a small sign containing small text on a post over seven feet high.

vi) The IPC guidelines explicitly state that ‘Where there is any change to any pre-existing terms and conditions that would not be immediately apparent to a person visiting the site and which materially affects the motorist you should place additional (temporary) signage at the entrance making it clear that new terms and conditions/charges apply, such that regular visitors who may be familiar with the old terms do not inadvertently incur parking charges. This signage should be in addition to the signage ordinarily required and left in place for an appropriate period.’ There was a recent change in restrictions here yet there were, and have never been, any such signs at the site.

In addition to the above it should be noted that there is additional co-op branded signage at the site that does not mention any kind of charge for parking, this signage is considerably larger and more apparent than the PPM signage that is the subject of this claim.

3. Consumer Contracts Regulations 2013 and ‘Right Of Cancellation’ Applies
If , despite the above, it was deemed that a valid contract did exist it would be categorised as a ‘distance contract’ under Consumer Contracts Regulations. A ‘distance contract’ is defined as

‘a contract concluded between a trader and a consumer under an organised distance sales or service-provision scheme without the simultaneous physical presence of the trader and the consumer, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded’

This would clearly be defined as an organised service-provision scheme (for parking), the contract is concluded without the simultaneous physical presence of the trader and the consumer and there is clearly the exclusive use of one means of distance communication (signage) up to and including the time at which the contract is concluded.

As such I would have had ‘right of cancellation’ from such a contract and my communicating to the PPM operative that I was not aware of this supposed ‘contractual arrangement’, followed by the immediate removal of my vehicle, should have been taken as a clear indication that I wanted to excersise this right. As this was done within five minutes of the contracts (supposed) acceptance this falls well within the guidelines set out in part 3 of The Consumer Contracts Regulations 2013.

In any case it is perfectly reasonable to expect 5-10 minutes to understand and comprehend any potential contract. ‘ParkingEye v Beavis’ makes it clear that if a charge is not to be a penalty/unfair consumer charge, the driver must have ample time to be able to read and digest the contractual terms so that they can fairly agree to the terms

Not also that the signage does not contain the information required by the Consumer Contracts Regulations 2013. As per clause 13(1), without this information any contract is not binding on the consumer.


4. The Claimant Has No Standing to Bring a Case
Despite being asked, the Claimant has failed to demonstrate that they have any authority to collect parking charges on the land in question. The Claimant is put to strict proof as to on what terms they are permitted to operate by the landowner by disclosing the appropriate parts of their contract.

5. Additional Costs
There is no justification in the particulars of claim for the £60 of ‘damages and indemnity costs’, nor for the £50 ‘legal representatives costs’. Any communication I have received from the Claimant’s legal representatives has consisted of automated letters. The Claimant is put to strict proof as to the validity of these costs.