IMPORTANT: Please make sure your posts do not contain any personally identifiable information (both your own and that of others). When uploading images, please take care that you have redacted all personal information including QR codes, number plates and reference numbers.
County court advice needed
Dollshouse
Posts: 27 Forumite
I have a few days before the deadline for sending an Acknowledgement of service and I need to decide whether or not to defend.
I don’t want to give out identifying details because I am gathering evidence and don’t want to alert the claimant about my defence until I have to. So I will explain the basic facts without giving away too much.
The driver was visiting a friend in a town some distance away and they went into town in the evening. She told the driver to park in a private car park which she was convinced was a free car park in the evening. When the driver returned to the car a Notice of Parking Charge was stuck to the windscreen. Working on out-of-date information it was thrown away. When paperwork arrived at my home address I threw it all away (I know, I know, you don’t need to say it). Now I have a County Court claim against me.
Because I have none of the paperwork I think my defence will have to rely entirely on the signs at the car park. I think I have a very strong case but and I want advice on whether or not I can win.
There is a prominent notice at the entrance to the car park that indicates it is a free customer car park. The car park is unlit but there are street lights on the street at the front. There are the fairly standard private car park notices further back in the car park. The trump card seems to me to be the sign saying it’s a free car park. The lettering of the word ‘free’ is about 95mm high, the sign is at the entrance is at eye level and positioned where headlights hit it at night. The car was parked just inside the entrance after dark and no other signs were looked at before parking.
There are private car park notices around the car park but these are all further back and all in positions where headlights would not hit them. They all have lettering much smaller than the big ‘free’ sign at the entrance.
I have been and had a close look at all the signs and there are other contradictions in the signs. I have been told that it used to be a free car park and they have put up new signs but left the old signs in place.
The new signs say: Terms and conditions ... Pay and Display ... breach of any term or condition will result in ... charge of £***... By entering or remaining on this land you agree to abide by all of the terms and conditions. In the middle of all the small print in letters 6mm high it says. Terms and conditions apply 24hrs a day... that is the only indication that they expect payment 24hrs a day.
I don’t know if it matters but there are two sets of terms and condition on display. One set is in small print on the new signs and another set is more prominent and in much bigger lettering which I assume is from an earlier time and which make no mention of payment. Is that relevant? It does say on the new small sign that you have to abide by all terms and conditions.
The friend knew it was a paying car park during the day but assumed it was free when the payment kiosk was not manned. I have spoken to another local who told me he also assumed it was free when the kiosk was closed and that he often parks there on Sundays without paying.
I am still gathering evidence and now have, including me, four witnesses who are willing to make written statements.
It seems to me that I have a very strong argument but I have doubts. I can’t believe they would be so stupid to try and take me to court if their case was so weak. Is their case weak or am I being niave?
I have trawled through stuff on this forum and it all looks very complicated. My case seems very simple and straightforward to me but other defences on here have a large number of points. If I decide to defend would I really need to write such a long and complicated defence in such a short time?
I don’t want to give out identifying details because I am gathering evidence and don’t want to alert the claimant about my defence until I have to. So I will explain the basic facts without giving away too much.
The driver was visiting a friend in a town some distance away and they went into town in the evening. She told the driver to park in a private car park which she was convinced was a free car park in the evening. When the driver returned to the car a Notice of Parking Charge was stuck to the windscreen. Working on out-of-date information it was thrown away. When paperwork arrived at my home address I threw it all away (I know, I know, you don’t need to say it). Now I have a County Court claim against me.
Because I have none of the paperwork I think my defence will have to rely entirely on the signs at the car park. I think I have a very strong case but and I want advice on whether or not I can win.
There is a prominent notice at the entrance to the car park that indicates it is a free customer car park. The car park is unlit but there are street lights on the street at the front. There are the fairly standard private car park notices further back in the car park. The trump card seems to me to be the sign saying it’s a free car park. The lettering of the word ‘free’ is about 95mm high, the sign is at the entrance is at eye level and positioned where headlights hit it at night. The car was parked just inside the entrance after dark and no other signs were looked at before parking.
There are private car park notices around the car park but these are all further back and all in positions where headlights would not hit them. They all have lettering much smaller than the big ‘free’ sign at the entrance.
I have been and had a close look at all the signs and there are other contradictions in the signs. I have been told that it used to be a free car park and they have put up new signs but left the old signs in place.
The new signs say: Terms and conditions ... Pay and Display ... breach of any term or condition will result in ... charge of £***... By entering or remaining on this land you agree to abide by all of the terms and conditions. In the middle of all the small print in letters 6mm high it says. Terms and conditions apply 24hrs a day... that is the only indication that they expect payment 24hrs a day.
I don’t know if it matters but there are two sets of terms and condition on display. One set is in small print on the new signs and another set is more prominent and in much bigger lettering which I assume is from an earlier time and which make no mention of payment. Is that relevant? It does say on the new small sign that you have to abide by all terms and conditions.
The friend knew it was a paying car park during the day but assumed it was free when the payment kiosk was not manned. I have spoken to another local who told me he also assumed it was free when the kiosk was closed and that he often parks there on Sundays without paying.
I am still gathering evidence and now have, including me, four witnesses who are willing to make written statements.
It seems to me that I have a very strong argument but I have doubts. I can’t believe they would be so stupid to try and take me to court if their case was so weak. Is their case weak or am I being niave?
I have trawled through stuff on this forum and it all looks very complicated. My case seems very simple and straightforward to me but other defences on here have a large number of points. If I decide to defend would I really need to write such a long and complicated defence in such a short time?
0
Comments
-
Just acknowledge anyway
You can always settle. THis just means you dont miss the deadline
No, you dont just defend on that one point. You defend on ALL usual points - standing, signage, no keeper liability etc.
So you edit your post above NOW and call teh driver "the driver". Nothing else.0 -
Thanks for your reply. I find it very difficult to understand all the points made in the lengthy and complicated defences. To write a similarly lengthy defence I would have to understand the exact relevance of all the points. I will keep reading.
Most of the points made in most of the defences I have read are about the paperwork and I have no paperwork apart from the claim form send by the County Court Business Centre.
Do they really have to claim in the name of the landowner? The claimant is the company who put up the new signs. And it appears to be a different company named on the parking tickets that they sell at the car park.
Why would I claim no keeper liability? As I understand it, if I refuse to identify the driver then as the keeper I could be liable. The County Court claim says "The defendant was driving the vehicle and/or is the keeper of the vehicle."
Why would I want to say that they aren't following the British Parking Council code of practice regarding signs? Surely they aren't bound by law to do that.
I'm sorry if these questions are too basic and are answered elsewhere but there is an enormous amount of mixed up stuff to trawl through.0 -
No, probably not, if their contract allows the parking operator to sue.Do they really have to claim in the name of the landowner?
That's a point of defence, but you know you would get much more bespoke advice if you trust us with the name of the parking firm. There is no need to stay secret, they will see the defence within a couple of weeks! Who was this?The claimant is the company who put up the new signs. And it appears to be a different company named on the parking tickets that they sell at the car park.
...ONLY if the company has complied with every mandatory point of the POFA Schedule 4, from 'adequate notice' of the charge (on signs) to the wording and date of the Notice to Keeper they posted. Any slip and they an be argued not to be able to recover the charge from the keeper, so of course you argue 'no keeper liability' and let them prove it.Why would I claim no keeper liability? As I understand it, if I refuse to identify the driver then as the keeper I could be liable.Most of the points made in most of the defences I have read are about the paperwork and I have no paperwork
Really, it doesn't matter. The PCN and letters will be in their evidence anyway and I would disagree that 'most of the points made in most of the defences I have read are about the paperwork'(?) as I would say that's not usually a feature of defences!Why would I want to say that they aren't following the British Parking Council code of practice regarding signs? Surely they aren't bound by law to do that.
- Contract law says they have to have clear signs, or no contract with the driver is possible.
- The Consumer Rights Act 2015 talks about transparency and mandatory clear and fair terms, not hidden in small print.
- The POFA says there has to be 'adequate notice' of the parking charge.
- In the Beavis case, PE survived their charge being condemned as a penalty, partly because they showed lots of prominent and very clear signs with the charge in the largest font, that Mr Beavis was 'bound to have seen'. It was vital.
- The BPA CoP has rules that the Supreme Court said were akin to or 'practically regulation', and they placed a lot of weight on the fact they believed(ho hum!) that PE complied with the CoP. Judges would generally and reasonably expect a company to comply with rules set by their Trade Body. So does the CPUTRs 2008 in the section about misleading actions.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top of this/any page where it says:
Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Thank you very much for that helpful information.
I have made an Acknowledgement of Service by using MCOL. I now have until the first week of October.
Please bear with me for a few days. I will tell you who the companies involved are. I will tell you that it is an IPC company and I have a copy of their code of practice.0 -
The solicitors are Gladstones. The claimant is ES Parking Enforcement LTD.
The car park is operated by Parking Places LTD who run it as a pay and display but ES do the ‘enforcing’.
During the day there is an attendant who sells tickets and the price of a day ticket is displayed prominently at the entrance on a moveable sign. At around 4.00pm the attendant removes the price sign to reveal a sign underneath that says ‘P FREE CUSTOMER’ very prominently in large letters. The attendant then closes up his cabin and leaves the site. I have been told that somebody comes around later with the parking charge notices.
The car park is adjacent to a large retail premises which is closed and vacant and the car park would have been the free customer car park for that shop when it was operating. I assume there is at present no power supply to the car park which is why it is not illuminated. After dark the front of the car park, the entrance area and the large ‘FREE’ sign are lit by lights in the street but further back the car park is in relative darkness.
After dark the few cars that are usually there are parked along the front of the car park where it is lit by the street lights. Nobody could be expected to go further back into the dark car park and find the smaller signs with very small lettering. Nobody would even think of doing that once they had seen a sign saying FREE.
The forum won't let me post photos.0 -
Dollshouse wrote: »... I can’t believe they would be so stupid to try and take me to court if their case was so weak. Is their case weak or am I being niave?
Have you read the Parking Prankster blogs?
Gladstones routinely take cases to court which are even weaker and more flimsy than this one.
They rely on ignorance of the general public as to defence points, and dozy District Judges who don't bother to properly examine the evidence.
But in most cases, the Judges will throw out their pathetic court bundles, and often criticise Gladstones for wasting the Court's time, while making a further costs award to the Defendant for the Claimant's unreasonable behaviour.
I have been providing assistance, including Lay Representation at Court hearings (current score: won 57, lost 14), to defendants in parking cases for over 5 years. I have an LLB (Hons) degree, and have a Graduate Diploma in Civil Litigation from CILEx. However, any advice given on these forums by me is NOT formal legal advice, and I accept no liability for its accuracy.0 -
Thanks bargepole. I've read a bit about Gladstones but unfortunately I have to assume they will turn up in court and I do need to write a good defense.
I've looked at some of the defenses in the newby post and I can't see one that is mainly concerned with misleading and inadequate signs. I could do with some pointers.
I wonder why there has been no discussion of the Nicholas Bowen case on this forum. He was awarded £1550 costs and I wonder how he got to that figure. Can I claim a similar amount?
Should I be writing anything to Gladstones at present? I have read a post on this forum saying you should write and ask questions about keeper liabilty. The problem is really can't get my head around this keeper liabilty question.0 -
Dollshouse wrote: »Thanks bargepole. I've read a bit about Gladstones but unfortunately I have to assume they will turn up in court and I do need to write a good defense.
I've looked at some of the defenses in the newby post and I can't see one that is mainly concerned with misleading and inadequate signs. I could do with some pointers.
I wonder why there has been no discussion of the Nicholas Bowen case on this forum. He was awarded £1550 costs and I wonder how he got to that figure. Can I claim a similar amount?
Should I be writing anything to Gladstones at present? I have read a post on this forum saying you should write and ask questions about keeper liabilty. The problem is really can't get my head around this keeper liabilty question.
Nicholas Bowen is a barrister and knows his way around
the courts.
His award is not normal and is not a precedent in county courts
As a rule, judges will look over their glasses for such large
amounts and as you are not a barrister, best to request
normal costs.
However, as said above, Gladstones are completely
useless and highly incompetent
Read this thread and do what is says
http://forums.moneysavingexpert.com/showthread.php?t=57127630 -
Unless this is going to an American court, you need to get the basics right. Defence/defences.I've looked at some of the defenses
Most defences will have a wide range of points to make; signage will be just one of them. Use other (linked in the sticky) defences as a framework around which to build your own. Use the wording structure, but don't copy and paste blindly, feed your own case into the wording while removing the bits relating to the original case.I can't see one that is mainly concerned with misleading and inadequate signs. I could do with some pointers.
There has.I wonder why there has been no discussion of the Nicholas Bowen case on this forum.
http://forums.moneysavingexpert.com/showthread.php?t=5709213
Once you've achieved barrister status and can browbeat a district judge into agreeing such an unusually high amount for a county court small claim case. You'll also need good reason for a punitive cost claim too. Harrassment has the bar set high.He was awarded £1550 costs and I wonder how he got to that figure. Can I claim a similar amount?
For what it's now worth (it's 9 months old) here's a thread which started with a draft defence for an ESPEL claim and some comments for improvement, but like many (despite the contributions made by volunteers to help them) the poster just didn't bother to update on the outcome.
http://forums.moneysavingexpert.com/showthread.php?p=71728574&highlight=espel+defence#post71728574Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.Private Parking Firms - Killing the High Street0 -
I don't see why a barrister should be awarded more just because he is a barrister. The costs that are awarded are an insult. Gladstones's 'business plan' has already cost me more than the typical costs awarded.
I read the thread about writing to Gladstones and I don't understand it. Is he saying I should write to them and ask to prove their whole case? Surely they do that in court. It says something about the correct address and the keeper. What's that about?0
This discussion has been closed.
Categories
- All Categories
- 343.1K Banking & Borrowing
- 250.1K Reduce Debt & Boost Income
- 449.7K Spending & Discounts
- 235.2K Work, Benefits & Business
- 607.9K Mortgages, Homes & Bills
- 173K Life & Family
- 247.8K Travel & Transport
- 1.5M Hobbies & Leisure
- 15.9K Discuss & Feedback
- 15.1K Coronavirus Support Boards