Link Parking / Gladstones - unclear signage Court Defence by 23 July

IN THE COUNTY COURT - CLAIM No: <CLAIMNUM>

BETWEEN:
LINK PARKING LIMITED (Claimant)
AND:
<MYNAME> (Defendant) of address: <ADDRESS>
_____________________________________

DEFENCE

---

Preface

---

1. I am <MYNAME>, the Defendant and Registered Keeper of the vehicle in question (<REG> - the Vehicle). This is my Defence and Statement of Truth.

2. It will be common ground that the Claim concerns a private Penalty Charge Notice (PCN ref <PCN REF>) issued on SUNDAY <DATE> at approx <TIME> at night for the Vehicle, in relation to an alleged breach of the terms and conditions of parking by the driver at that time.

3. I assert that I am not liable to the Claimant for the sum claimed, or any amount at all, for the reasons detailed in this Defence.

4. As an unrepresented litigant-in-person, and given that the Particulars of this Claim are vague and ambiguously worded (as detailed below), I seek the Court's permission to amend and supplement this Defence as may be required upon disclosure of the Claimant's case.

---

Particulars of Claim fail to comply with Civil Procedure Rules - Request to strike out

---

5. The Particulars of Claim are sparse, vague and ambiguous, and have no reasonable prospect of success as currently drafted. They fail to comply with Civil Procedure Rules (CPR) and relevant Practice Direction (PD) on multiple points. Therefore the Court is invited to strike out the claim of its own initiative at the earliest opportunity, using its case management powers.

a. The Claimant's solicitors (Gladstones) are known to be a serial issuer of tens of thousands of automated generic claims similar to this one (so called 'robo claims'), with no due diligence, no scrutiny of details, or even checking for a valid Cause of Action. HMCS have reported identifying thousands of similar poorly pleaded claims, which are routinely dismissed by District Judges sitting in this Court and others throughout England & Wales.

i. It is understood that Gladstones are under an active investigation by the Solicitors Regulation Authority as a result of its poor conduct. The firm was one of a handful specifically highlighted for unfair practices by MPs during 2018 debates of Sir Greg Knight MP's 'Parking (Code of Practice) Bill' in Parliament.

ii. The Defendant argues that the Claimant's conduct in aggressively pursuing unrepresented consumers through the small claims track using an automated system provided by their solicitors is against the public interest and not something the courts should support.

b. In common with other 'robo claims', the Particulars are sparse and fail to state what specific "terms of parking" are claimed to have been breached - i.e., no proper Cause of Action. A parking charge could be for trespass, breach of contract or a contractual charge; each is treated differently in law and requires a different defence.

c. The Particulars fail to provide a copy of the alleged contract or general terms as required under PD part 16 paragraphs 7.3(1) and (2). The wording of any contract will naturally be vital, and a copy of the claimed terms has never been provided to the Defendant.

d. The Particulars state a claim amount substantially higher than those on the PCN and Notice to Keeper (NTK), including unrecoverable charges addressed later in this Defence. The charges are ambiguously described with a menu of choices ("Parking Charges / Damages and indemnity costs if applicable" - differing from prior descriptions), with no breakdown of the amount.

e. For these reasons, the Defendant is unable to prepare a full and complete Defence.

i. The Claimant's solicitors are understood to habitually delay providing detailed claims that can be properly responded to until late in proceedings - an abuse of process that significantly disadvantages unrepresented Defendants and shows contempt for the court.

ii. Should the Claimant add to or expand their Particulars at a later stage of these proceedings, such as through their Witness Statement, the Defendant asks the Court permission to amend or supplement his Defence, and/or to limit the Claimant only to unevidenced allegations in the Particulars.

iii. Alternatively, the Defendant asks that the Claimant is required to file Particulars which comply with Practice Directions and include at least the following information (some of which has already been requested by the Defendant but the Claimant has refused to provide), after which the Defendant be allowed reasonable time to file an updated Defence:

* Whether the matter is being brought for trespass, breach of contract or a contractual charge, and a clear description of the exact alleged cause of action;
* A copy of any contract it is alleged was in place at the time of the incident;
* How any contract was concluded (if by performance, then copies of signage maps in place at the time);
* Whether the Defendant is being pursued as alleged driver, subject to strict proof, or as Registered Keeper.
* Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter to provide strict proof;
* The full legal identity of the landholder, with their contact details and a copy of the Claimant's contract (or full chain of contracts) with the landholder.
* If charges over and above the initial charge are still being claimed, the specific claimed basis for these additions;
* If interest charges are still being claimed, the detailed basis and calculation.

---

Background & Claimant refusal to hear appeal

---

6. The primary driver of the Vehicle during in 2017 was a driver other than the Defendant. No evidence has been supplied by the Claimant as to the identity of the driver at the time of the PCN. The Defendant has at all times declined to identify the driver to the Claimant, as they are under no obligation to provide such information to a private company.

a. The Claimant's chosen Alternative Dispute Resolution (ADR) organisation, the Independent Appeals Service (IAS), state in their website Frequently Asked Questions, under the heading "Do I Have To Name The Driver?": "If your appeal relaters to a parking charge issued in England or Wales then you do not have to name the driver."

7. Soon after the PCN issue date, the Claimant was supplied with a full appeal including photos of signage next to the parking space in question showing unrestricted parking on Sundays (the day of parking). Despite receiving and reading this, the Claimant repeatedly refused to consider the appeal unless the driver was identified, even after their attention was drawn to their own ADR organisation's guidance (6.a above).

a. The Claimant's ADR organisation, the IAS, only consider appeals after the parking operator has reviewed the appeal; therefore the Claimant's refusal to hear the Defendant's appeal meant no ADR method was available. It is believed this arrangement is deliberate to discourage appeals and encourage unwanted payments, which would qualify as vexatious behaviour.

b. Considering appeals and offering ADR are requirements under Protection of Freedoms Act 2012 Schedule 4 (POFA), as well as the Code of Practice set by their Accredited Trade Association (ATA) the IPC, so the Claimant failed to even attempt to meet its basic obligations to verify whether the PCN was issued correctly.

c. By refusing to hear an appeal, and later refusing to engage with the Defendant and provide requested information, the Claimant also failed in its requirements under PAP rules to exchange information with a view to avoiding unnecessary escalation and court proceedings. This failure extended to the Claimant's solicitors, who failed to even acknowledge our communications.

---

Unclear, conflicting and misleading signage

---

8. The public parking sign that shows no restrictions on Sundays is right by the entrance and a meter or so from the Parking Space, as can be seen in evidence photos. It is the ONLY sign visible from the Parking Space and clearly indicates parking was unrestricted on the evening in question.

a. The public parking sign lists controlled hours as "Mon - Sat, 8am - 8pm", which means Sundays are unrestricted. This is confirmed in the Department for Transport's official 'Know Your Traffic Signs' guide, which shows a very similar parking sign on P49, and clearly states: "The top panel indicates that the parking controls apply from Monday to Saturday. [.] At all other times and on Sunday the bay may be used by any vehicle without any time limit."

i. The Vehicle was moved from the site soon after the time of the PCN and before midnight.

b. The Claimant's PCN was accompanied with a blurry photo of a small sign stating permits were required. In preparing this Defence, the Defendant searched the parking site for this sign, and found it some distance from the parking space in question (the 'Parking Space', by the site entrance), embedded into an overgrown hedge that curves away from the entrance, so the sign is completely out of sight from the entrance and Parking Space.

i. The Claimant's sign is positioned above head height, with charges and terms in small print, as can be seen in evidence photos. The positioning, font size, overgrown shrubbery and lack of illumination mean the sign is hard to read even if a visitor knows where to find it, particularly at night. It is invisible sitting in the Parking Space.

ii. The sign does not conform to the IPC's Code of Practice (Schedule 1 - Signage), which states: "Signs must, where practicable, be placed at the entrance to a site. Otherwise the signage within the site must be such that it is obvious to the motorist." The sign is not located nor mentioned near the site entrance, nor is it obviously located, as required ("Entrance signs").

c. No other signs from the Claimant were found during a scout of the nearby area. A forbidding permit sign not mentioning the Claimant is located to the side of the entrance - but it is unlit and obscured by vehicles in parking spaces immediately in front of it (as it is believed was the case on the evening in question), so is easy to miss when driving into the car park, particularly at night - this is shown in evidence photos.

i. In small print, the sign mentions different terms from the Claimant's, including the availability of paid public parking on Saturdays, but makes no mention of specific penalty terms. The sign has a plain back so can't be read from inside the car park, and is hard to spot at all as it forms part of a row of bollards.

ii. The entrance sign does not conform to the IPC's Code of Practice (Schedule 1 - Signage): it uses non-standard wording and fails to direct drivers to other more detailed terms signs. The heading text can't be read by drivers "without needing to look more than 10 degrees away from the road ahead" when vehicles are parked in front of it ("Text size"). The sign is neither illuminated nor "made of retro-reflective material" - "You need to ensure that all signs are readable during the hours of enforcement as they form the legal basis of any charge. If signs cannot be read then resulting charges that depend upon their content will not be enforceable." ("Contrast and illumination").

d. It should be obvious from the above that signage at this location is entirely inadequate, misleading and incapable of creating a contract with the Defendant. The only clearly visible signage stated parking was unrestricted at the time; the Claimant cannot place a contradictory sign out of sight and expect it to override the unrestricted sign adjacent to the Parking Space.

i. For the reasons described, the signage at this location fails to meet the Code of Practice regulations (Schedule 1 - Signage) set by the Claimant's ATA, the IPC. Part B.2.1 states: "It is therefore of fundamental importance that the signage meets the minimum standards under this Code as this underpins the validity of any such charge."

ii. The elements of offer, acceptance and consideration both ways have not been satisfied, therefore no contract can exist and the Claimant has no case. No promise was made by the driver that could constitute consideration because there was no offer known nor accepted. No consideration flowed from the Claimant.

iii. Even if a contract had been formed, which is denied; the unclear, conflicting and misleading signage would render the contract unfair and unenforceable under the Consumer Rights Act 2015.

iv. Even if the driver had managed to spot one of the contradictory signs, which is denied, they could not reasonably be expected to comply with different terms of parking claimed by different signs on the same land, and the principle of contra proferentem would mean that such ambiguity should be resolved in the Defendant's favour.

v. Further it is noted as trite law that a term that is forbidding cannot also constitute an offer; the signage does not offer an invitation to park on certain terms, so no contract can exist.

---

Protection of Freedoms Act 2012 Schedule 4 (POFA)

---

9. The Defendant's pre-NTK appeal clearly demonstrated unclear, conflicting and misleading signage that violates the IPC Code of Practice and fails to give the "adequate notice of parking charge" via signs that "are adequate to bring the charge to the notice of drivers" in accordance with POFA Schedule 4 part 2(3)(b)(ii). Without compliance, there is no "relevant obligation" in order to transfer liability to the Registered Keeper under POFA.

a. Later pre-NTK communications to the Claimant also highlighted that it was a breach of the Data Protection Act to request Registered Keeper details via POFA without reasonable cause; that their threats to add additional charges beyond the PCN amount were unrecoverable under POFA; that denying the right to appeal is a violation of POFA pre-conditions; and that the Defendant had no evidence of the Claimant's authority to issue PCNs for the land, given their refusal to provide documents showing authorisation from the landholder.

b. Despite reading the appeal, the Claimant chose to still refuse to consider it and applied to the DVLA for Registered Keeper details under a POFA request, despite being made aware of clear violations of the Schedule 4 pre-conditions.

c. Given these violations, and the detailed signage failings described under part 8 of this Defence, it is therefore denied that there was an 'relevant obligation' or 'relevant contract' relating to the Defendant, and denied that liability was transferred to the Registered Keeper under POFA, and therefore the Claimant has no case.

i. In the case of Excel v Mr L. (17/11/2016, Skipton), the judge dismissed the claim, summing up that: ether the claimant could prove the defendant was the driver, which they could not; or the claimant could comply with POFA to pursue the defendant as the keeper, which it was proved they did not.

10. Should the Claimant try to claim "reasonable presumption" that the Registered Keeper was the driver, the court's attention is drawn to POPLA's 'Annual Report of the Lead Adjudicator 2015', where under 'Understanding Keeper Liability', the expert opinion of PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, was that:

"However keeper information is obtained, there is no 'reasonable presumption' in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver."

---

Claimant has added non-recoverable charges to claim amount

---

11. The Claimant is attempting to claim additional non recoverable charges, such as debt collection, solicitors and legal costs (with varying descriptions through the paperwork). POFA does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued, in accordance with Schedule 4 part 8(2)(d). The Claimant cannot in any case recover additional charges above the £100 specified as the PCN amount.

a. The Defendant has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have indeed been incurred. This appears to be an attempt at double recovery, which POFA Schedule 4 paragraph 4(6) specifically disallows.

i. It is disputed that the Claimant has incurred £60 in debt collection charges and £50 "Legal representative's costs" to pursue an alleged £100 debt. It is believed that all paperwork in this case was drawn up by salaried employees (or fully/semi-automated software) using templates, so the claimed costs are simple not credible.

b. Should the Claimant try to justify additional charges because an out-of-sight sign states in small print: "Enforcement action may incur additional costs that will be added to the parking charge"; the sign fails to specify the amount, justification or cause of action for these "additional costs", so is too vague to qualify as a contractual charge - in accordance with contra proferentem.

i. For avoidance of doubt, no other mention of additional charges is present on any sign.

c. Furthermore, the claimed legal costs are non-contractual, therefore cannot be recovered in the Small Claims Court and should be struck out as unrecoverable under CPR 27.14.

12. It is denied that the Claimant is due any interest whatsoever, given their various failures to comply with PAP, POFA and Code of Practice rules, and failure to mitigate costs (see part 15).

a. Should the court nonetheless disagree, and the Defendant is being pursued as Registered Keeper, it is submitted that the start of liability for the claim amount, and therefore the start date for interest calculations, would be the NTK service date.

---

Distinction from UKSC 67 ParkingEye v Beavis (2015)

---

13. This case can be distinguished from ParkingEye v Beavis (2015) ("the Beavis case"), which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer, and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the ATA's Code of Practice (more stringent BPA rather than IPC) was paramount, and Mr Beavis was an admitted driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. None of this applies in this material case.

---

Claimant landowner authority

---

14. The Claimant is put to strict proof that they have standing to bring any claim, in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking parking management as an agent for the landowner.

a. The Claimant, who is not a party to the Tenancy Agreement, and has no proprietary interest in the land, has provided no proof of any such entitlement despite repeated requests from the Defendant since soon after initial issue of the PCN, through to formal response to the NTK. A Managing Agent is not the landowner.

b. The Defendant's appeal emphasised to the Claimant the importance of verifying the chain of authority, as it is not uncommon for unscrupulous parking operators to practice without authority. Nonetheless the Claimant refused to provide any form of evidence (which would have taken 5 minutes to attach to an e-mail), leaving the Defendant doubting the company has legitimacy.

c. The IPC's Code of Practice Part B ("Establishing Yourself as the 'Creditor'") 1.1 states clearly:

"If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the 'Creditor' within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges. There is no prescribed form for such agreement and it need not necessarily be as part of a contract but it must include the express ability for an operator to recover parking charges on the landowner's behalf or provide sufficient right to occupy the land in question so that charges can be recovered by the operator directly. This applies whether or not you intend to use the keeper liability provisions."

d. In an agent capacity, the Claimant has no legal right to bring a claim in their own name, rather than that of the landowner. The Beavis case confirmed the fact that, if it is a matter of trespass (not breach of any contract, which is believed to be the currently claimed basis), a parking firm has no standing as a non-landowner to pursue even nominal damages.

---

Claim is unreasonable, vexatious and has no real prospect of success

---

15. Given the following non-exhaustive list of failings, it is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable, vexatious and ill-founded and is therefore an abuse of the process of the court according to CPR 3.4(2)(b):

a. clear photo evidence and explanation provided at the PCN appeal stage to the Claimant and their solicitors that signage at this location is unclear, misleading and conflicting;

b. Claimant's refusal to consider the PCN appeal they'd received, which also prevented use of an ADR appeal, in response to the initial PCN Notice to Driver;

c. refusal of the Claimant to provide even basic requested clarifications on the nature of their claim, let alone requested documentation, in accordance with the PAP;

d. failure to mitigate costs for both sides by pursuing a meritless claim long after it became clear there was no real prospect of success, including instructing solicitors instead of engaging;

e. Claimant's repeated refusal to acknowledge Section 10 Notices (withdrawal of consent to share personal data with third parties) as a Data Controller under the Data Protection Act 1998;

f. inflation of the claim amount through extravagant non-contractual additional charges (increasing it by nearly 150%), which the Claimant and their solicitors are fully aware are non-recoverable, but serve to scare defendants into paying;

16. TODO: Gladstones + IPC conflict of interest.

17. As such, the Defendant is keeping careful note of all wasted time/costs in dealing with this matter and should the case continue to trial (or in the event of the Claimant filing a Notice of Discontinuance) the Defendant will seek further costs, pursuant to Civil Procedure Rule 27.14(2)(g).

---

Request to strike out Claim

---

18. A few examples from many similar PCN cases that have been dismissed recently:

a. On the 20th September 2016 another relevant poorly pleaded private parking charge claim by Gladstones was struck out by District Judge Cross of St Albans County Court without a hearing due to their 'roboclaim' particulars being incoherent, failing to comply with CPR. 16.4 and 'providing no facts that could give rise to any apparent claim in law.'

b. On the 27th July 2016 DJ Anson sitting at Preston County Court ruled that the very similar parking charge particulars of claim were deficient and failing to meet CPR 16.4 and PD 16 paragraphs 7.3 - 7.6. He ordered the Claimant in that case to file new particulars which they failed to do and so the court confirmed that the claim be struck out.

c. TODO: check comparability, possibly expand list.

19. In view of all the foregoing, the Defendant requests the court strike out the claim, and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14.

a. In the alternative, the Defendant requests the court to give a summary judgement against the Claimant because the claim has no real prospect of succeeding, given the weight of evidence against the Claimant and the prima facie injustice of the claim.
_____________________________________

Statement of Truth: I believe the facts stated in this Defence are true.

<MYNAME> (Defendant)
<DATE>