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  • FIRST POST
    • muleskinner
    • By muleskinner 10th Oct 17, 5:52 PM
    • 109Posts
    • 104Thanks
    muleskinner
    WON! - Court Hearing vs Gladstones & PPM Ltd
    • #1
    • 10th Oct 17, 5:52 PM
    WON! - Court Hearing vs Gladstones & PPM Ltd 10th Oct 17 at 5:52 PM
    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.

    ===

    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!

    =====

    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.
    Last edited by muleskinner; 12-02-2018 at 5:32 PM. Reason: Update
Page 4
    • Loadsofchildren123
    • By Loadsofchildren123 5th Jan 18, 2:10 PM
    • 2,139 Posts
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    Loadsofchildren123
    make those points in your WS, the bay being outside the boundary of their operation is dynamite.
    Although a practising Solicitor, my posts here are NOT legal advice, but are personal opinion based on limited facts provided anonymously by forum users. I accept no liability for the accuracy of any such posts and users are advised that, if they wish to obtain formal legal advice specific to their case, they must seek instruct and pay a solicitor.
    • Loadsofchildren123
    • By Loadsofchildren123 5th Jan 18, 2:11 PM
    • 2,139 Posts
    • 3,592 Thanks
    Loadsofchildren123
    after you file your WS send them a drop hands offer of settlement and point out that their case has no prospect of success and if it proceeds you will apply for Rule 27.14(2)(g) costs.
    Although a practising Solicitor, my posts here are NOT legal advice, but are personal opinion based on limited facts provided anonymously by forum users. I accept no liability for the accuracy of any such posts and users are advised that, if they wish to obtain formal legal advice specific to their case, they must seek instruct and pay a solicitor.
    • claxtome
    • By claxtome 5th Jan 18, 2:24 PM
    • 575 Posts
    • 678 Thanks
    claxtome
    muleskinner I suggest you redact (blank out - PCN number/dates) further bits on your last post #60 so no one can work out details of your case and maybe use it against you
    • muleskinner
    • By muleskinner 5th Jan 18, 3:19 PM
    • 109 Posts
    • 104 Thanks
    muleskinner
    Thanks again for the input folks.

    I did add something regarding the bay being outside of their operation in the WS.

    Does anyone have any input on the points made in their WS? Most of this I know how to counter as it's basically quotes from Beavis and Vine taken way out of context (and they are changing their position on the charge yet again, now saying it's 'consideration for parking services' as opposed to a charge for 'breach of terms' on the Particulars and for 'Unauthorised Parking' on all the documentation leading up to that)!

    I am a bit confused by their argument in points 13/14. They actually seem to be arguing that they don't need any kind of authority from the landowner to enforce a contract(!) Again the quote seems out of context - in VCS vs HMRC the issue in question as I understand it was land ownership, there was never any question that VCS didn't have the landowner's authority to operate there.
    • nosferatu1001
    • By nosferatu1001 5th Jan 18, 5:59 PM
    • 2,748 Posts
    • 3,413 Thanks
    nosferatu1001
    No, 13 or 14 is their standard section. They always add that in, hoping beyond hope that someone believes it

    If they!!!8217;ve changed their stance, then not only do they not show a cause of action they!!!8217;ve changed their mind repeatedly. You ask the court how this can be - surely they cannot try to claim anything under the sun, hoping something sticks?
    • muleskinner
    • By muleskinner 5th Jan 18, 10:58 PM
    • 109 Posts
    • 104 Thanks
    muleskinner
    No, 13 or 14 is their standard section. They always add that in, hoping beyond hope that someone believes it

    If they’ve changed their stance, then not only do they not show a cause of action they’ve changed their mind repeatedly. You ask the court how this can be - surely they cannot try to claim anything under the sun, hoping something sticks?
    Originally posted by nosferatu1001
    Thanks, that's good to know. I thought a lot of it looked pretty 'cut and paste', they refer to 'signs' when there was only one for example and 15(i) and (iii) make absolutely no sense in the context of this case.

    I will bring up the constant changing of stance when I hit them for a claim for costs due to unreasonable behaviour. I have already mentioned the fact that they've done this in the WS.
    • nosferatu1001
    • By nosferatu1001 6th Jan 18, 2:56 AM
    • 2,748 Posts
    • 3,413 Thanks
    nosferatu1001
    Read up on Denton to give the tests fir unreasonable behaviour
    Remember to submit the schedule 24 hours before or more, and to submit two sections fir costs. Normal (half day capped at £95, take along proof, Parking and mileage ) and then add on unreasonable costs
    • muleskinner
    • By muleskinner 30th Jan 18, 5:29 PM
    • 109 Posts
    • 104 Thanks
    muleskinner
    Costs Schedule
    Hi,

    Just under two weeks to go! MCOL has gone very quiet - no indication that WS has been received from myself or PPM and nothing to say court fee has been paid - is this normal?

    Below is what I am drafting to send to the court re unreasonable behaviour costs after going through the stuff in the noobs thread. I would appreciate any feedback - do I need to send the reasoning to the Claimant or just the 'bill' as it were?

    ====

    In xxxx County Court

    Claimant: Parking and Property Management Ltd
    Defendant: xxxx
    Claim No: xxxx
    Date: 30.01.2018

    Application for further costs for Claimant’s unreasonable behaviour, pursuant to Civil Procedure Rule 27.14(2)(g)

    1. I am xxxx of xxxx, the Defendant in this case.

    2. It is my belief that the Claimant has acted unreasonably in this case and has failed to comply with their pre-action obligations as specified in the Practice Direction, specifically:

    3. The Claimant, when asked in correspondence dated 17.04.2017, refused to supply any evidence of authority to operate a parking scheme on the land in question. This is particularly relevant in this case as the land appears to be public highway. Satisfactory evidence of authority has still not been provided even at witness statement stage. This is a direct contravention of para 6(c) of the Practice Direction (‘the parties disclosing key documents relevant to the issues in dispute’).

    4. The Claimant’s ‘Letter Before Claim’ (LBC) does not provide any details of the legal basis on which this claim is made (e.g. damages for trespass, charge for breach of contract, or payment for parking services). The Claimant appears to change their position on this on a whim with all early correspondence referring to damages for trespass (‘unauthorised parking’), correspondence dated 05.05.17 referring to a ‘consideration for parking’, the Particulars of Claim referring to breach of contract, and the witness statement back to to a ‘consideration for parking services’.

    5. The Defendant wrote to Gladstones Solicitors on 28.12.17 specifically asking for clarification on 4 and received no response. Consquently the Defendant will have no idea when attending the hearing as to on what legal basis this claim is being made.

    6. The behaviour described in 4 and 5 is a direct contravention of para 6(a) of the Practice Direction (‘The Claimant writing to the Defendant with concise details of the claim. The letter should include the basis on which the claim is made’). This behaviour also directly contravenes para 3(a, b, e and f) of the Practice Direction in that, without detail of the legal basis on which a claim is being made the Defendant cannot fully understand the Claimant’s position, cannot make a decision as to how to proceed and incurs considerable wasted time and energy researching issues that may not even be relevant to the Claimant’s case.

    6. The LBC states ‘We now require you to pay the full amount within 14 days. Alternatively, you should provide an acknowledgement of receipt of this letter and a full written response with 14 days. Your response should provide your full account of the circumstances that have led to the charges being imposed and should include confirmation as to who the driver(s) of the vehicle were at the time’. The Defendant responded exactly as instructed to the LBC yet proceedings were issued without further warning.

    7. The Claimant wrote to the Defendant on 05.05.17 stating that proceedings against them had been halted. This letter post-dates the LBC. No indication was given by the Claimant or their agents that proceedings were to recommence before the claim was filed.

    8. The Defendant has, in all correspondence with the Claimant, requested arbritration via the Consumer Ombudsman in order to avoid litigation as specified in the Practice Direction. The Claimant has refused arbritration via this body without giving any reasonable explanation as to why. This is a direct contravention of para3(d) of the Pratice Direction (‘consider a form of Alternative Dispute Resolution (ADR) to assist with settlement ‘).

    9. I hope that the above points demonstrate that the Claimant’s behaviour in this matter falls comfortably outside of their pre-action obligations as specified in the Practice Direction and that my application for further costs pursuant to Civil Procedure Rule 27.14(2)(g) will be considered.

    Defendants Schedule Of Costs

    Ordinary Costs
    Loss of earnings/leave, incurred through attendance at Court 12/02/2018 £60.00
    Return mileage from BA152ND to Court (15 miles x £0.45) £6.75

    Sub-total £66.75


    Further costs for Claimant’s unreasonable behaviour, pursuant to Civil Procedure Rule 27.14(2)(g) at Litigant in Person rate of £19 per hour.

    Correspondence with Claimant (3hrs x £19) £57.00
    Research, preparation and drafting of defence: (8hrs x £19) £152
    Response to Directions Questionairre (inc Special Directions): (1hr x £19) £19.00
    Three site visits of approx 30 mins: (1.5hrs x £19) £28.50
    Phone calls to court 15 mins x 2 (0.5hrs x £19) £9.50
    Round trips to Post Office 20 mins x 6 (2hrs x £19) £38.00
    Research, preparation and drafting of witness statement: (6hrs x £19) £114.00
    Collation and preparation of Evidence Bundle: (5hrs x £19) £95.00
    Postage: £13.28
    Printing (approx 200 pages @ 10p per page) £20.00

    Sub-total £546.28

    Total £613.03
    • Coupon-mad
    • By Coupon-mad 31st Jan 18, 12:13 AM
    • 58,434 Posts
    • 71,939 Thanks
    Coupon-mad
    do I need to send the reasoning to the Claimant or just the 'bill' as it were?
    You must share everything with the claimant, or their solicitor.


    no indication that WS has been received from myself or PPM and nothing to say court fee has been paid - is this normal?
    Yes, search the forum for Denton and the latest thread of LOADS (that you should read) is:

    http://forums.moneysavingexpert.com/showthread.php?p=73794973#post73794973
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • muleskinner
    • By muleskinner 31st Jan 18, 8:32 AM
    • 109 Posts
    • 104 Thanks
    muleskinner
    Yes, search the forum for Denton and the latest thread of LOADS (that you should read) is:

    http://forums.moneysavingexpert.com/showthread.php?p=73794973#post73794973
    Originally posted by Coupon-mad
    Thanks for that CM, I have found Denton after some trawling. If anyone else comes to this thread looking for it a link to the transcript is here.

    All the cases listed in Denton seem to be due to handing in court documents late which doesn't really apply in my case, however I still think they have failed to comply with the PD as stated above so I will push this and make a reference to para 41 of Denton which seems to be key. Certainly I would class refusal to supply proof of landowner authority as a 'non trivial' breach of PD.

    Still have to read the judgement in its entirety - it's long!

    Is the link to the LOADS thread correct? I can't see any postings from LOADS in that thread?
    • Coupon-mad
    • By Coupon-mad 31st Jan 18, 9:22 AM
    • 58,434 Posts
    • 71,939 Thanks
    Coupon-mad
    Haha, I meant do the search I did and read 'loads of threads'!
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • muleskinner
    • By muleskinner 31st Jan 18, 9:30 AM
    • 109 Posts
    • 104 Thanks
    muleskinner
    Haha, I meant do the search I did and read 'loads of threads'!
    Originally posted by Coupon-mad
    Haha
    • Loadsofchildren123
    • By Loadsofchildren123 31st Jan 18, 10:27 AM
    • 2,139 Posts
    • 3,592 Thanks
    Loadsofchildren123
    I know it's a small amount but add in your costs of parking at court, and I'd also add time spent travelling to and from court, waiting and in court (which will be several hours).
    Although a practising Solicitor, my posts here are NOT legal advice, but are personal opinion based on limited facts provided anonymously by forum users. I accept no liability for the accuracy of any such posts and users are advised that, if they wish to obtain formal legal advice specific to their case, they must seek instruct and pay a solicitor.
    • muleskinner
    • By muleskinner 31st Jan 18, 4:36 PM
    • 109 Posts
    • 104 Thanks
    muleskinner
    Fixed Messed Up Formatting
    OK, here's another go. I have redone the costs based on what someone (successfully) did in another thread where they broke down all the reading they have done. I knocked a bit off the 'drafting' times to compensate but the total has gone up significantly as a result. I think this is actually a much more accurate representation of time spent.

    I have fleshed out the justification a lot as well. Tried to emphasise not just what the Claimant did wrong but how it has affected the Defendant (which seems to be key from reading Denton).

    I found it hard to get anything specific from Denton as so much of that is about handing in documents late. Everything has been on time in this case, just shoddy an inconsistent as hell! I have included the reference to Denton at the end though (actually it's Mitchell quoted in the context of Denton).

    Any feedback much appreciated, especially if there are obvious clangers.

    ====

    Defendants Schedule Of Costs

    Ordinary Costs
    Loss of earnings/leave, incurred through attendance at Court 12/02/2018 £60.00
    Return mileage from xxxx to Court (15 miles x £0.45) £6.75
    Parking at court (estimate) £5.00

    Sub-total £71.75

    Further costs for Claimant's unreasonable behaviour, pursuant to Civil Procedure Rule 27.14(2)(g) at Litigant in Person rate of £19 per hour.

    Reading and writing correspondence with Claimant (3hrs x £19) £57.00
    Reading ParkingEye vs Beavis (2hrs x £19) £38.00
    Reading PCM vs Bull and other 'forbidding contract' cases (2hrs x £19) £38.00
    Reading Vine vs Waltham (1hr x £19) £19.00
    Reading VCS vs Ibbotsen (0.5hr x £19) £9.50
    Reading Consumer Contracts Regulations (2hrs x £19) £38.00
    Research on online forums etc (5hrs x £19) £95.00
    Preparation and drafting of defence: (4hrs x £19) £76
    Response to Directions Questionairre (inc Special Directions): (1hr x £19) £19.00
    Three site visits of approx 30 mins: (1.5hrs x £19) £28.50
    Phone calls to court 15 mins x 2 (0.5hrs x £19) £9.50
    Round trips to Post Office 20 mins x 6 (2hrs x £19) £38.00
    Preparation and drafting of witness statement: (5hrs x £19) £114.00
    Reading additional cases mentioned in Claimant's WS (1.5hrs x £19) £27.50
    Reading Claimant's WS and bundle (1hrs x £19) £19.00
    Collation and preparation of Evidence Bundle: (5hrs x £19) £95.00
    Postage £13.28
    Printing (approx 200 pages @ 10p per page) £20.00
    Travel to and from court (2hrs x £19) £38.00

    Sub-total £792.28

    Total £864.03

    ====

    Application for further costs for Claimant's unreasonable behaviour, pursuant to Civil Procedure Rule 27.14(2)(g)

    1. I am xxxxx of xxxxx, the Defendant in this case.

    2. It is my belief that the Claimant has acted unreasonably in this case and has failed to comply with their pre-action obligations as specified in the Practice Direction. Compliance with the Practice Direction is not voluntary, nor is it a guide to best
    practice. It is part of the Civil Procedure Rules and is binding. Parties are expected to comply with it and the court may punish those who do not. The court's powers include a costs order, and this may be on the indemnity basis (16(a) and (b)) and the power to remit (or increase) interest 16(c)/(d). Such sanctions can apply even against
    a successful party (paragraph 16).

    3. The Claimant's behaviour in this case significantly contravenes that specified in the Practice Direction. Specifically:

    4. The Claimant, when asked in correspondence dated 17.04.2017, refused to supply any evidence of authority to operate a parking scheme on the land in question. This is particularly relevant in this case as the land appears to be public highway and it is therefore perfectly reasonable for the Defendant to ask for evidence that the Claimant is authorised to issue charges there before paying. Satisfactory evidence of authority has still not been provided even at witness statement stage. This is a direct contravention of para 6(c) of the Practice Direction ('the parties disclosing key documents relevant to the issues in dispute').

    5. The Claimant's 'Letter Before Claim' (LBC) does not provide any details of the legal basis on which this claim is made (e.g. damages for trespass, charge for breach of contract, or payment for parking services). The Claimant appears to change their position on this on a whim with all early correspondence referring to damages for trespass ('unauthorised parking'), correspondence dated 05.05.17 referring to a 'consideration for parking', the Particulars of Claim referring to breach of contract, and the witness statement back to to a 'consideration for parking services'.

    5. The Defendant wrote to Gladstones Solicitors on 09.12.17 specifically stating their confusion on point 4 and asked , in no uncertain terms, for clarification. They received no response. The Defendant wrote, again, to Gladstones Solicitors on 28.12.17 stating that no response had been received but again received no response. Consequently the Defendant will have no idea when attending the hearing as to on what legal basis this claim is being made which puts them at a distinct disadvantage.

    6. The behaviour described in 4 and 5 is a direct contravention of para 6(a) of the Practice Direction ('The Claimant writing to the Defendant with concise details of the claim. The letter should include the basis on which the claim is made'). This behaviour also directly contravenes para 3(a, b, e and f) of the Practice Direction in that, without detail of the legal basis on which a claim is being made the Defendant cannot fully understand the Claimant's position, cannot make a decision as to how to proceed, and incurs considerable wasted time and energy researching issues that may not even be relevant to the Claimant's case.

    7. Part of the point of the Practice Direction is to ensure both parties are on an 'equal footing'. By refusing to clarify their position on the legal basis for this claim the Claimant has prevented the Defendant from being on an 'equal footing'.

    8. The LBC states 'We now require you to pay the full amount within 14 days. Alternatively, you should provide an acknowledgement of receipt of this letter and a full written response with 14 days. Your response should provide your full account of the circumstances that have led to the charges being imposed and should include confirmation as to who the driver(s) of the vehicle were at the time'. The Defendant responded exactly as instructed to the LBC yet proceedings were issued without further warning.

    9. The LBC, as with much of the communication from the Claimant and their agents, is unduly threatening. It mentions sanctions for failure to comply with Civil Procedure Rules which is completely irrelevant until proceedings have been issued and misleadingly implies that the LBC has some kind of court authority.

    10. The Claimant wrote to the Defendant on 05.05.17 stating that proceedings against them had been halted. This letter post-dates the LBC. No indication was given by the Claimant or their agents that proceedings were to recommence before the claim was filed.

    11. The Defendant has, in all correspondence with the Claimant, requested arbritration via the Consumer Ombudsman in order to avoid litigation as specified in the Practice Direction. The Claimant has refused arbritration via this body without giving any reasonable explanation as to why. This is a direct contravention of para3(d) of the Pratice Direction ('consider a form of Alternative Dispute Resolution (ADR) to assist with settlement').

    12. The Claimant and their agents Gladstones Solicitors are serial litigants and are well aware of the Civil Procedure Rules. They have, in the LBC, even used the threat of punitive costs for failure to comply with them as a method of intimidating the Defendant. There can be no resonable excuse for their own failure to comply.

    13. The Claimant's failure to comply with the Practice Direction has caused the Defendant considerable wasted time and stress, prevented the possible avoidance of litigation, and prevented the Defendant from being on an 'equal footing' with the Claimant. It cannot therefore be described as 'trivial' and as a result sanctions should be imposed as per para 41 of Mitchell v. News Group Newspapers Ltd [2013]
    EWCA Civ 1537, [2014] 1 WLR 795 which is re-iterated in Denton v T H White Ltd
    [2014] EWCA Civ 906.
    Last edited by muleskinner; 31-01-2018 at 4:41 PM.
    • Castle
    • By Castle 31st Jan 18, 4:54 PM
    • 1,767 Posts
    • 2,392 Thanks
    Castle
    Preparation and drafting of witness statement: (5hrs x £19) £114.00
    Reading additional cases mentioned in Claimant's WS (1.5hrs x £19) £27.50
    Originally posted by muleskinner
    Check your maths!
    • muleskinner
    • By muleskinner 31st Jan 18, 4:56 PM
    • 109 Posts
    • 104 Thanks
    muleskinner
    Check your maths!
    Originally posted by Castle
    Never was my strong point! I will go through and double-check all those figures!

    EDIT: I see I have two point 5s on there too!
    Last edited by muleskinner; 31-01-2018 at 5:01 PM.
    • muleskinner
    • By muleskinner 1st Feb 18, 9:00 AM
    • 109 Posts
    • 104 Thanks
    muleskinner
    OK, final draft of argument and last call for feedback - costs are as above with a few tweaks (I've double-checked the maths)!

    Have added a few points and brough Denton more up-front.

    ====

    Application for further costs for Claimant’s unreasonable behaviour, pursuant to Civil Procedure Rule 27.14(2)(g)

    1. I am xxxx of 44 xxxx, the Defendant in this case.

    2. It is my belief that the Claimant has acted unreasonably in this case and has failed to comply with their pre-action obligations as specified in the Practice Direction. Compliance with the Practice Direction is part of the Civil Procedure Rules and is binding. Parties are expected to comply with it and the court may punish those who do not. The court’s powers include a costs order, and this may be on the indemnity basis (16(a) and (b)) and the power to remit (or increase) interest 16(c)/(d). Such sanctions can apply even against a successful party (paragraph 16).

    3. The Claimant’s failure to comply with the Practice Direction in this cse has caused the Defendant considerable wasted time and stress, prevented the possible avoidance of litigation, and prevented the Defendant from being on an ‘equal footing’ with the Claimant. It cannot therefore be described as ‘trivial’ and as a result sanctions should be imposed as per para 41 of Mitchell v. News Group Newspapers Ltd [2013] EWCA Civ 1537, [2014] 1 WLR 795 which is re-iterated in para 24 of Denton v T H White Ltd [2014] EWCA Civ 906.

    4. The Claimant’s behaviour in this case significantly contravenes that specified in the Practice Direction in the following ways:

    5. The Claimant, when asked in correspondence dated 26.04.2017, refused to supply any evidence of authority to operate a parking scheme on the land in question. This is particularly relevant in this case as the land appears to be public highway and it is therefore perfectly reasonable, indeed sensible, for the Defendant to ask for evidence that the Claimant is authorised to issue charges there. Satisfactory evidence of authority has still not been provided even at witness statement stage. This is a direct contravention of para 6(c) of the Practice Direction (‘the parties disclosing key documents relevant to the issues in dispute’).

    6. The Claimant’s ‘Letter Before Claim’ (LBC) does not provide any details of the legal basis on which this claim is made (e.g. damages for trespass, charge for breach of contract, or payment for parking services). The Claimant appears to change their position on this on a whim with all early correspondence referring to damages for trespass (‘unauthorised parking’), correspondence dated 05.05.17 referring to a ‘consideration for parking’, the Particulars of Claim referring to breach of contract, and the witness statement appearing to return to a ‘consideration for parking services’ (paras 6 and 9 of Claimant’s witness statement).

    7. The Defendant wrote to Gladstones Solicitors on 09.12.17 specifically stating their confusion on point 4 and asked , in no uncertain terms, for clarification. They received no response. The Defendant wrote, again, to Gladstones Solicitors on 28.12.17 stating that no response had been received but again received no response. Consequently the Defendant will have no idea when attending the hearing as to on what legal basis this claim is being made which puts them at a distinct disadvantage.

    8. The behaviour described in 4 and 5 is a direct contravention of para 6(a) of the Practice Direction (‘The Claimant writing to the Defendant with concise details of the claim. The letter should include the basis on which the claim is made’). This behaviour also directly contravenes para 3(a, b, e and f) of the Practice Direction in that, without detail of the legal basis on which a claim is being made the Defendant cannot fully understand the Claimant’s position, cannot make a decision as to how to proceed, and incurs considerable wasted time and energy researching issues that may not even be relevant to the Claimant’s case.

    9. Part of the point of the Practice Direction is to ensure both parties are on an ‘equal footing’. By refusing to clarify their position on the legal basis for this claim the Claimant has prevented the Defendant from being on an ‘equal footing’.

    10. The LBC states ‘We now require you to pay the full amount within 14 days. Alternatively, you should provide an acknowledgement of receipt of this letter and a full written response with 14 days. Your response should provide your full account of the circumstances that have led to the charges being imposed and should include confirmation as to who the driver(s) of the vehicle were at the time’. The Defendant responded exactly as instructed to the LBC yet proceedings were issued without further warning.

    11. The Claimant wrote to the Defendant on 05.05.17 stating that proceedings against them had been halted. This letter post-dates the LBC. No indication was given by the Claimant or their agents that proceedings were to recommence before the claim was filed.

    12. Communication from the Claimant is, on the whole, unduly threatening and does not represent a genuine effort to avoid litigation and resolve this dispute. Most communication includes the threat of increased costs if the Defendant does not comply with their demands. The Notice To Keeper says that the Defendant’s details have been requested from the DVLA when in fact no such request was made and the Claimant’s letter dated 05.05.2017 misquotes key case law (Vine vs Waltham) and makes all sorts of statements about the positioning of signage at the site which are completely false.

    13. Communication from the Claimant’s agents Gladstone Solictitors is also unduly threatening and does not represent a genuine effort to avoid litigation and resolve this dispute. All communication includes the threat of increased costs if the Defendant does not comply with their demands. The LBC mentions sanctions for failure to comply with Civil Procedure Rules which is completely irrelevant until proceedings have been issued and misleadingly implies that Gladstone Solictitors have some kind of court authority. This is a blatant attempt to intimidate the Defendant.

    14. The Claimant’s witness statement is a ‘cut and paste job’ containing many irrelevant references to case law and rebuttals to points not even raised by the Defendant. The Claimant’s evidence bundle contains over thirty pages of completely irrelevant material and doesn’t even include a copy of the signage on which their case relies. Filing documents in this manner wastes both the Defendant’s time and the court’s time and is an abuse of the court process.

    15. The Defendant has, in all correspondence with the Claimant, requested arbritration via the Consumer Ombudsman in order to avoid litigation as specified in the Practice Direction. The Claimant has refused arbritration via this body without giving any reasonable explanation as to why. This is a direct contravention of para3(d) of the Pratice Direction (‘consider a form of Alternative Dispute Resolution (ADR) to assist with settlement‘).

    16. The Claimant and their agents Gladstones Solicitors are serial litigants and are well aware of the Civil Procedure Rules. They have, in the LBC, even used the threat of punitive costs for failure to comply with them as a method of intimidating the Defendant. There can be no resonable excuse for their own failure to comply.

    17. I hope that the above points demonstrate that the Claimant’s behaviour in this matter falls comfortably outside of their pre-action obligations as specified in the Practice Direction and that my application for further costs pursuant to Civil Procedure Rule 27.14(2)(g) will be considered.

    I believe that the facts stated in the document are true

    Yours Sincerely



    xxxxx
    • Loadsofchildren123
    • By Loadsofchildren123 1st Feb 18, 11:00 AM
    • 2,139 Posts
    • 3,592 Thanks
    Loadsofchildren123
    Your costs schedule:
    "Research on online forums etc (5hrs x £19) £95.00"
    I wouldn't mention forums. I'd just say "research of private parking law, case law and court rules."


    The costs argument: attach copies of the letters/documents you are referring to (not the PD, obvs). Can you flesh this out at all? Have they been late with anything? Can you refer to the vague PoC in the original claim form and say that they have never, until the WS stage, properly explained the basis of the claim. Have a look at Peperlini's thread to see if you can get anything out of her costs argument document.
    Although a practising Solicitor, my posts here are NOT legal advice, but are personal opinion based on limited facts provided anonymously by forum users. I accept no liability for the accuracy of any such posts and users are advised that, if they wish to obtain formal legal advice specific to their case, they must seek instruct and pay a solicitor.
    • Loadsofchildren123
    • By Loadsofchildren123 1st Feb 18, 11:05 AM
    • 2,139 Posts
    • 3,592 Thanks
    Loadsofchildren123
    Peperlini's thread contains a document which makes costs arguments both under R27.14 and also under the PD itself. It contains all the case law too.


    Are you just relying on failure to comply with the PD or are you saying that the claim was so weak it should never have been brought, or that they have behaved badly during the litigation? The latter point doesn't come out much and whilst it's always worth going for UB costs I don't see the strength of the argument here.


    The purpose of the PD is wider than putting you on an equal footing. it is to ensure an adequate exchange of information, with the C explaining their case and how they will evidence it so that you can understand that, and with the D responding with questions and their own defence, so that the C can understand his position. Both parties are then meant to "take stock", and to try to narrow the issues, or settle. This can only be done with a fair exchange of information at the pre-action phase.


    Basically, all the issues that would be aired in a claim are aired in correspondence first, with the hope that some matters can be agreed or even settled. All of this takes place in what one case calls the "low cost atmosphere of the pre-action phase" as opposed to during proceedings, which are much more adversarial and cost much more because you have to draft formal court documents, attend court and so on.


    All of this is set out in detail in Peperlini's documents, which are on her thread.


    No need to start with your para 1, this is just a legal arguments document, not a statement, just delete it.
    Although a practising Solicitor, my posts here are NOT legal advice, but are personal opinion based on limited facts provided anonymously by forum users. I accept no liability for the accuracy of any such posts and users are advised that, if they wish to obtain formal legal advice specific to their case, they must seek instruct and pay a solicitor.
    • muleskinner
    • By muleskinner 1st Feb 18, 11:47 AM
    • 109 Posts
    • 104 Thanks
    muleskinner
    Peperlini's thread contains a document which makes costs arguments both under R27.14 and also under the PD itself. It contains all the case law too.

    Are you just relying on failure to comply with the PD or are you saying that the claim was so weak it should never have been brought, or that they have behaved badly during the litigation? The latter point doesn't come out much and whilst it's always worth going for UB costs I don't see the strength of the argument here.
    Originally posted by Loadsofchildren123
    Thanks for the input LoC.

    I'm saying that they did not comply with the PD and that that caused the Defendant undue wasted time and prevented possible settlement of the claim. This would seem to be enough from my reading of Denton (which could well be wrong)!

    The main cause of this is the shoddy PoC and the contradictory correspondence leading up to it that fails to state their position clearly.

    Also, IMO, failing to supply landowner authority is a massive omission as

    a) No sensible person would really pay a charge like this (on what appears to be public highway) without it and

    b) The 'authority' that they eventually supplied at WS stage when you analyse it does not cover the bay in question. There's literally a big red line on one of the diagrams with text from the landowner saying 'cover from this point only' and the bay in question is well outside of the line! If this could have been covered off earlier litigation could have been avoided entirely (though that would depend on the C being reasonable of course)!

    They haven't been late with any filings.

    All the correspondence apart from one letter is included in the Defendant's WS, and the Claimant's. Do you think I need to duplicate it here?
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