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  • FIRST POST
    • MORB
    • By MORB 15th Dec 17, 10:15 PM
    • 72Posts
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    MORB
    Judgement for Claim (in default) - PCM & Gladstones
    • #1
    • 15th Dec 17, 10:15 PM
    Judgement for Claim (in default) - PCM & Gladstones 15th Dec 17 at 10:15 PM
    Hi all,
    I have received a JfC in default on behalf of PCM from Gladstones. The matter is regarding 3 alleged parking contraventions that occurred in feb '17. I sent requests for POCs shortly after receiving the invoices initially sent my PCM (do not still have copies, but was a few lines requesting POC's), likely toward the end of May.

    I heard nothing further and presumed PCM were no longer going to to pursue the invoices. In July I left the UK and the address to which initial correspondence were sent. a family member continues to reside there, and in making preparations to return to the UK requested that they open residual mail sent to the address. Amongst the mail was the JfC (in default) dated the 20th Nov. As such no preceding correspondence were received (other letter in the pile was the LBC from Gladstones, but still no POCs!!).
    I have been out of the country and travelling for over 5 months and of no fixed abode during this time. I will be leaving the UK again for a prolonged period again in a few months but am happy to allow PCM/courts/Gladstones to correspond to the original address while this plays out. The claim is for £658 and constitutes 3 alleged contraventions, none of which have merit, and likely pertain to instances of stopping in a loading bay that had no prohibitive markings (no yellow lines -was not a parking space) and which was for the sole use of my previous employer (from whom I obviously had permission to be in the bay).

    Next steps:

    - Fill in the N244 form and return 3 copies to CCBC.
    - Including a statement of my case RATHER than a witness statement
    - Indicate that I'd wish for reimbursement from the claimant of the set aside fee
    - Pay £255.00 via cheque (how very archaic???)

    I will post up my defence shortly for critique but would in lieu of that be very grateful for any comment the great and wise here would be willing to offer?

    Thanks in advance
    Last edited by MORB; 17-02-2019 at 8:10 PM.
Page 7
    • MORB
    • By MORB 25th May 18, 2:51 PM
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    MORB
    UPDATE:
    Just had an Order through the post from the original DJ (Lawrence) confirming the setting aside of the judgement against me.

    Great news, but just a little confused as to why the other DJ made the order of above.
    • MORB
    • By MORB 6th Jul 18, 4:51 PM
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    MORB
    The most tedious & banal saga continues......

    I have just received notification that:

    1) This is now a defended claim

    The defendant has filed a defence

    2) It appears that this case is appropriate to be allocated to the small claims track.

    If you disagree fill in Small Claims in section C1 questionnaire and say why.

    3) File with the court by x date.

    Could someone clarify exactly what is happening now please? I have not raised the matter of cost further so I'm unsure as to what the significance of this letter is.

    Thanks, once more, in advance.
    • Johnersh
    • By Johnersh 6th Jul 18, 7:24 PM
    • 1,225 Posts
    • 2,344 Thanks
    Johnersh
    Its not 100% clear and I cannot access your dropbox. Best guess is that:

    1. you applied to set aside judgment whilst appending a defence
    2. The judgment was set aside (but the case was not struck out)
    3. The claim therefore remains "in play"
    4. Any defence filed with your application is now adopted as the defence
    5. The litigation now proceeds in the usual way - directions, statements and trial.
    "The best advice I ever got was that knowledge is power and to keep reading."
    DISCLAIMER: I post thoughts as & when they occur. I don't advise. You are your own person and decision-maker. I'm unlikely to respond to DMs seeking personal advice. It's ill-advised & you lose the benefit of a group "take" on events.
    • MORB
    • By MORB 6th Jul 18, 8:37 PM
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    MORB
    Ahh - Thanks @Johnesrh - I see.

    So will PCM now have to pay small claim court fees?

    Would it be advisable to object to the allocation to small claims track on the grounds that the claim is baseless and should be struck out?
    • Coupon-mad
    • By Coupon-mad 7th Jul 18, 12:38 AM
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    Coupon-mad
    No, the fact it is allocated to that track just means that's the right route for it, even if it's meritless! So small claims track is the right route.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
    • MORB
    • By MORB 11th Jul 18, 10:50 AM
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    MORB
    Ok - understood.
    Is there any sense in agreeing to consider mediation or should I answer no to this Qu. on the questionnaire?

    Does anyone have any guidance/best guess on what to expect from here?
    • beamerguy
    • By beamerguy 11th Jul 18, 11:18 AM
    • 10,526 Posts
    • 13,919 Thanks
    beamerguy
    Ok - understood.
    Is there any sense in agreeing to consider mediation or should I answer no to this Qu. on the questionnaire?

    Does anyone have any guidance/best guess on what to expect from here?
    Originally posted by MORB
    The problem with mediation is that it's an unknown
    quantity and you will be relying on a person who probably
    is not experienced in the parking scam.

    Best to be heard in front of a REAL judge
    RBS - MNBA - CAPITAL ONE - LLOYDS

    DISGUSTING BEHAVIOUR
    • nosferatu1001
    • By nosferatu1001 11th Jul 18, 2:41 PM
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    nosferatu1001
    Yes, you can use the newbies thread to guide you throught ehe next stages - you MUST bookmark it! You CANNOT miss the important dates as htis is process driven. Miss an dyou lose.

    Also if you do some reading around. Educating yourself on this is much better than being told it
    • Coupon-mad
    • By Coupon-mad 12th Jul 18, 1:28 AM
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    Coupon-mad
    Is there any sense in agreeing to consider mediation
    No. Already covered in the NEWBIES thread in the 'what happens when' post by bargepole.

    Does anyone have any guidance/best guess on what to expect from here?
    Yes, you do! After reading the summaries by bargepole and LoadsofChildren123 in the NEWBIES thread, setting out what happens next.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
    • nosferatu1001
    • By nosferatu1001 12th Jul 18, 1:26 PM
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    nosferatu1001
    You also need to cover the LETTER BEFORE ACTION and respond

    State you require them to cease and deisst from infringing your demised space, enclosing a copy of your lease showing you have rights to / otherwise own that space. Blank out anything sensitive. Leave in only the pertinent sections.

    You give them 14 days to confirm they have ceased this and their current action against you (claim number .... ) before you will issue proceedings against them for torious interference with your lease, terespass against goods, etc.
    • MORB
    • By MORB 17th Jul 18, 2:52 PM
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    MORB
    Noted CM - I wasn't sure if the preceding course of events changed the course of those to come.

    Having already sent off my own Direction Questionnaire, I have received the other side's and they have requested hearing the case on papers which I am going to object to. Does it need anymore than this?:

    IN THE COUNTY COURT (xxxxxxxxx)
    CLAIM No: XXXXXXXXXX

    BETWEEN:

    PARKING CONTROL MANAGEMENT ltd UK (Claimant)
    -and-
    XXXXXXXXXX (Defendant)

    To the Court Manager,

    Following my recent submission to the court of a completed N180 Directions questionnaire, I have received the same from the Gladstones Solicitors on behalf of the Claimant. In the form I note in section D1 the following:

    !!!8220;PD27 (2.4) SEE REQUEST FOR SPECIAL DIRECTION AND N159.!!!8221;

    This refers to a seperate letter received requesting that the case be heard only on the papers without the need for an oral court hearing. I would like to register my objection to this request and wish the case to be heard by a judge in person.

    Yours sincerely,
    • Johnersh
    • By Johnersh 17th Jul 18, 6:48 PM
    • 1,225 Posts
    • 2,344 Thanks
    Johnersh
    I'd do that as a simple letter, but it's sufficient, the point is made
    "The best advice I ever got was that knowledge is power and to keep reading."
    DISCLAIMER: I post thoughts as & when they occur. I don't advise. You are your own person and decision-maker. I'm unlikely to respond to DMs seeking personal advice. It's ill-advised & you lose the benefit of a group "take" on events.
    • MORB
    • By MORB 3rd Feb 19, 3:20 PM
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    MORB
    Hi all once more.

    So Gladstones have paid the court fee (day prior to deadline) and my case is due to be heard shortly. I have received their witness statement and am about to send them and the court my own. I'm now in a position to know what they will say.

    I'm very willing to share their statement with anyone who would be able/willing to cast their eye over it. Similarly I can share my statement from the set aside hearing which I am using to finalise the draft of my witness statement for the case hearing to demonstrate what I am intending to rely on.

    Notable points from their WS is:

    1) They are relying on VCS v HMRC [2013] EWCA Civ 186 & Parking Eye v Beavis [CA 2015] to prove/demo authority to enforce charges.
    2) They make no reference to the email from my former employee confirming I had permission to park/load/unload.
    3) They cite Alder v Moore and [1961] and Judge Hegarty's comment in Parking eye v Somerfield [2011] respectively regarding obligations rather than form of an agreement and the privilege to park being a substantial cost but not a penalty.
    4) They meaningfully misquote me in saying I have alleged that the only sign on site is the one at the entrance. This is not so. I have clearly indicated that there are many signs that are illegible from ground level, yet the entrance sign is most notably illegible and positioned in such place that it would pose a safety hazard to all traffic obeying the highway code when coming on the site in question.

    Is there anyone willing to to compare the 2 and give me their feedback?

    Thanks in advance.
    • Coupon-mad
    • By Coupon-mad 3rd Feb 19, 3:23 PM
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    Coupon-mad
    Why not just search the forum for Alder v Moore Gladstones and see that exact template WS posted about and discussed before, loads of times?

    You will be amazed by the fact almost the entire thing is a template, and we've already given advice about how to address it.

    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
    • MORB
    • By MORB 4th Feb 19, 7:59 PM
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    • 20 Thanks
    MORB
    I've been searching the other threads and used the search term 'Alder v Moore' to bolster my WS for submission tomorrow. I found lots of useful additions to improve my WS but nothing specifically in response to Alder v Moore. (Also it is remarkable how much is a template).

    I'm running a little short of time and have spent all day putting together my WS so please excuse me for asking question where more time may have allowed me to discover the answers myself:

    1) Is the Vine v Waltham case still valid?
    2) Does anyone have a link to a Beavis sign image - I'm not sure whether as per Coupon Mad's newbie guide that it is a specific sign or simply a style that need be evidenced / exhibited?

    As an aside, it has just struck me that the PCN cites the reason for issue as 'Parked without displaying permit' yet I was not in a parking bay and as such even if I was displaying a permit (I actually had access to one but was as claimed unloading / loading in a bay.) I would have been outside a marked bay. On the PCM inadequate signage it does indicate that the driver is required to be within a bay AND displaying a permit when parked. So by virtue of not being in a marked bay and allegedly not displaying a permit, would it not follow that the more appropriate reason for issue would be not in a marked bay. Is this something any thinks worthy of expansion in my WS?
    • MORB
    • By MORB 4th Feb 19, 9:31 PM
    • 72 Posts
    • 20 Thanks
    MORB
    ............
    1. Exhibited to this witness statement are the following documents I wish to rely on:

    -The email from my then employer (xxxx ltd) confirming authorised access/ easement in line with the prevailing commercial lease.
    -Screen print from Companies House confirming the position of the sender of the email as a director/co-founder of the tenant company on the dates of the alleged incident.
    -Annotated photograph of site entrance showing illegibility and poor positioning of PCM signs.
    -Independent Parking Committee code of practise -Part B - Section 15: ‘Grace periods’ & Part E Schedule 1: Signage.
    - Further supporting photographic evidence of insufficient signage.
    - ParkingEye v Beavis [2015] unusually prominent signage Signage.
    - ParkingEye v Beavis [2015] UKSC 67 Transcript
    - Jopson v Homeguard [2016] B9GF0A9E Appeal Transcript
    - Saeed v Plustrade Ltd [2001] EWCA Civ 2011 Transcript
    - Vine v London Borough of Waltham Forest [2000] EWCA Civ 106 (5 April 2000) Transcript.
    - Link Parking v Parkinson C7GF50J7 transcript
    PACE Recovery and Storage v Noor C7GF51J1 (tenancy must be varied correctly) transcript

    Preliminary
    4. The claimant failed to include a copy of their written contract nor any detail or reason for - nor clear and accurate particulars pertaining to - this claim (Practice Directions 16 7.3(1) and 7C 1.4(3A). No indication is given as to the Claimants contractual authority to operate there as required by the Claimants Trade Association's Code of Practice B1.1.

    5. The Particulars of Claim (PoC) do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how any terms were breached. Indeed the PoC are not clear and concise as is required by CPR 16.4 1(a) and CPR 1.4. It just vaguely states “parking charges”; which does not give any indication of on what basis the claim is brought, for example whether this charge is founded upon an allegation of trespass or 'breach of contract', so I have had to cover all eventualities and this has denied me a fair chance to defend this in an informed way.

    6. The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no diligence, no scrutiny of details nor even checking for a true cause of action. HMCS have identified over 1000 similar sparse claims. I believe the term for such conduct is “roboclaims”; which is against the public interest, unfair on unrepresented consumers and parking companies using the the herein engaged method as a form of aggressive, automated debt collection is not something the courts should be seen to support. This practise is against the public interest. Practice Direction 3A which references Civil Procedure Rule 3.4 illustrates this point;

    “The following are examples of cases where the court may conclude that particulars of claim (whether contained in a claim form or filed separately) fall within rule 3.4(2)(a):
    '1.4 those which set out no facts indicating what the claim is about, for example ‘Money owed £5000’,
    B. those which are incoherent and make no sense,
    C. those which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable claim against the defendant ”

    7. The claimant has not provided enough details in the particulars of claim to file a full defence;

    7.1. The Claimant has disclosed no cause of action to give rise to any debt.

    7.2. The Claimant has stated that a ‘parking charge’ was incurred.

    7.3. The Claimant has given no indication of the nature of the alleged charge in the Particulars of Claim. The Claimant has therefore disclosed no cause of action.

    7.4. The Particulars of Claim contains no details and fails to establish a cause of action which would enable the Defendant to prepare a specific defence. It just states “parking charges” which does not give any indication of on what basis the claim is brought.
    There is no information regarding why the charge arose, what the original charge was, what the alleged contract was, nor anything which could be considered a fair exchange of information.
    The Particulars of Claim are incompetent in disclosing no cause of action.

    7.4.1 On the 20th September 2016 another relevant poorly pleaded private parking!
    charge claim by Gladstones Solicitors Limited 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.’

    7.4.2. 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.

    Permission was granted / driver was authorised.

    9. The driver was allowed the right to load/unload by the leasehold business, xxx limited relying on an express permission from the company, specifically from a current and then co-founder & director by the name of xxx xxxxx. The same is confirmed in Document I & II of the exhibits herein included as evidence.

    10. This permission created the prevailing and overriding contract - the only contract - and the business was concluded as agreed, at no cost or penalty.

    11. I also refer to the case of Jopson v Homeguard [2016]. As an employee of a tenant in the Chandelier Building at the time of the ‘charge’, I enjoyed the implied right to load/unload as an ancillary to the easement to pass or re-pass as conferred by my then employers tenancy agreement in the property that sits on the same site. Loading or unloading with the permission of the landholder is not 'parking' and signs cannot override existing rights enjoyed by landowners and their visitors, as was found in the Appeal case decided by His Honour Judge Harris QC at Oxford County Court, in a similar case number B9GF0A9E: 'JOPSON V HOME GUARD SERVICES’ which also adduced a business car park decision, analogous to this present case.

    12(i) In the Jopson appeal in June 2016, the Senior Circuit Judge found that the position was analogous to the right to unload which was the subject of Bulstrode v Lambert [1953] 2 All ER 728. The right of way in that case was: “To pass and re-pass with or without vehicles…for the purposes of obtaining access to the building…known as the auction mart.''

    12(ii) In the Jopson appeal it was also held as a finding of fact, that stopping to unload was not 'parking'.

    12(iii) In the Jopson appeal it was held that ParkingEye Ltd v Beavis [2015] UKSC 67 had no application to a situation involving drivers with a right and expectation to be entitled to park under the grants flowing from a lease.

    12(iv) In the Jopson appeal it was also held that signs added later by a third party parking firm are of no consequence to authorised visitors to premises where other rights prevail and supersede any alleged new 'parking contract’.

    Insufficient & confusing signage. Failure to set clear parking terms.

    13. The PCNs were issued on poorly signed private property where I had stopped to load/unload, not park. I was unaware that the site was enforced by any restrictive terms (that in any instance fail to detail provision for stopping/loading/unloading despite it being permitted under the terms of the prevailing commercial lease granted at the premises) , due to insufficient signage. I refer to the IPC Code of Practice (CoP) Part E, highlighting that adequate and clear entrance signs are required.

    14. The Supreme Court Judges in the Beavis case [2015] held that a CoP is effectively 'regulation' for the private parking industry, full compliance with which is both expected and binding upon any parking operator.

    15. There were no adequate entrance (Exhibited Document III.) signs to show that drivers were entering an area of 'parking enforcement' or 'private land'. The site was not marked as a no-stopping zone nor transparently signed as a permit-holders or 'managed' site, as their CoP requires. The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3.

    16. The signage on entry is clearly insufficient (Exhibited Document III.) and can not be reasonably legible from a moving vehicle (positioned at more than 8 feet from the ground in very small font) entering from the busy main road (Scrubs Lane). Furthermore, it is not possible for a vehicle to stop to attempt to read the signage as they would block the one way flow, and the only entry/exit on/off the site. Not only this, but according to the retrospectively reviewed terms, there is no provision for a driver to stop to acquaint themselves with the terms. It should also be noted that there are number of other commercial entities that use this exclusive entry and exit including large HGVs. As such not only is it unsafe for a motorist to stop in this location to attempt to read the signage but also could have the effect of stopping other tenants freely enjoying the right of entry and exit to the site as per their tenancy, making PCM ltd UK a further accessory to the abuse of other tenants rights to access and egress.

    17. i. I submit that the case of Vine vs Waltham Forest LBC [2002] supports my case. Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the BPA and IPC Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently and in far larger lettering, with fewer words and more 'white space' as background contrast suited to an outdoor sign.

    18. ii. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

    (A) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
    (B) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

    19. iii.The Beavis case signs (Document V) not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.
    This judgment is binding case law from the Court of Appeal. This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established

    20. Supplementary to this, should it be upheld that I was constituted to be parked there are no double yellow lines painted in the bay yet they are present elsewhere accompanied by large font no parking signs as well as PCM terms and conditions signs. This inconsistency is confusing and has the effect of being misleading to anyone wanting to properly abide by the site terms and conditions. Should PCM wish the loading bay to be covered by the same restrictions, double yellow lines, the elsewhere employed ‘No parking’ sign or the relevant T’s & C’s, should also be present, available and legible here. This is especially important as it is possible for a driver to enter the building via this bay and thus not encounter any signage pertaining to restrictions. As demonstrated by the pictures and those taken by PCM’s agent, none of the above are present in the bay (Document V; pics A, B & C, pg ???)

    21. No terms were seen because the car was ticketed in a bay where there are no signs adequately displayed between there and entrance to the building being loaded/unloaded in to . I rely upon the case of Vine v London Borough of Waltham Forest; CA 5 APR 2000, a case won by the consumer on appeal where the Judges also found that clear entrance signs are explicitly expected. I draw attention to the supplied photographs that detail the insufficient signage at the entrance to the Chandelier building ( Document III , pg ?? ).

    22. Specifically, I would like to draw attention to usual route into the building via the roller doors in line with loading / unloading from the vehicle (as per Document D, Pic B, pg ?? ). As such,this route in to the office, due to the absence of a large lettered, transparent sign at site entrance would mean I would not have occasion to pass any of the other small signs attached at elevation to the building.

    23. Any “charge”; or terms on signage on the day was not seen but even if the court believes signs were displayed, the terms were in such small print as to be illegible, contrary to the Consumer Rights Act 2015 & IPC CoP section 1. (Document V pics G, H & I, pg ??) Remarkably, these exhibits, submitted by the claimant, serve to clearly demonstrate the illegibility of the signs even when photographed with equipment using a significant zoom & supplied to PCM’s agent, presumably considered adequate to collect evidence in support of their claims.

    No Illumination

    24. I draw attention to page 62 of the Claimant's’ witness statement, specifically to the 2 photos nearest the end of the page which shows a sign in darkness with no illumination to allow reading at night. Please also note that as per page 11 of the Claimant’s witness statement purporting to show the other sites of signage on the site that there is also a lack of lighting equipment to illuminate these signs also. Most notably even the small entrance sign is lacking the means of illumination. This is in direct contravention of IPC CoP Schedule 1 - signage. (Document IV, pg ?? )

    25. The Claimant wishes to rely upon ParkingEye Ltd v Beavis [2015] UKSC 67, ('the Beavis case') yet such an assertion is not supported by any similarity in the location, circumstances nor signage. Absent any offer or agreement on a charge, the Beavis case does not assist the claimant and in fact, supports this defence. Further, there is no “legitimate interest”; served by the immediate ticketing of a car on arrival, with no attempt to mitigate loss or draw terms to the attention of drivers, or allow any period of grace to obtain any permit or even read the signs. Furthermore Beavis was not party to the enjoyment of a pre-existing easement that gave him a right of access to the site as is so in this case.

    Claimant Has No Authority to act / standing to bring a case

    26. It is denied that the Claimant has authority to bring this claim. The proper Claimant is the landowner. Strict proof is required that there is a chain of contracts leading from the landowner to UK Parking Control Ltd and that they have a right to unilaterally remove or interfere with the overriding rights enjoyed by the lessee company and extended to permitted drivers who were expressly allowed on site.

    27. Alternatively, If there was a contract, it is denied that the penalty charge is incorporated into the contract. The leaseholders' lease is missing any reference to parking permit requirements and involvement of PCM. And there is no evidence that the original lease contract was shared with the defendant nor checked by PCM before introducing their parking scheme.

    28. I suggest no due diligence took place whatsoever and PCM merely arrived with a standard contract of their own and put signs up, without any regard to lessee rights of way. This is wholly unacceptable and conflicts with the existing rights and easements, as was found to be the case in Jopson v Homeguard, decided on appeal in June 2016 by His Honour Charles Harris QC. I also rely on Saeed v Plustrade Ltd [2001] EWCA Civ 2011 and Bulstrode v Lambert [1953] 2 All ER 728 , both of which support rights of way and reinforce the view that a covenant of non-derogation from grant is implied within a lease.

    29. It is submitted that the Claimant is merely an agent acting “on behalf of” another agent of the landowner, who, would be the only proper claimant. Strict proof is required of a chain of contracts leading from the landowner to this Claimant, to allow them the right to form contracts and to sue in their name. This means that the Claimant, as a matter of law, will have no locus standi to litigate in their own name. As such a contract with PCM and the building’s managing agents does not demonstrate such a chain.

    30. Even if this produced, it is submitted that there is no contract offered to drivers not displaying a permit, so alleged 'unauthorised' parking can only be an event falling under the tort of trespass.

    31. As was confirmed in the Beavis case, ParkingEye could not have claimed any sum at all for trespass, whereby only a party in possession of title in the land could claim nominal damages suffered (and there were none in this material case).

    Breach of Promissory Estoppel

    32. This charge represents a breach of the well-known and well-established principle of promissory estoppel, i.e. that a promise is enforceable by law, even if made without formal consideration, when party A has made a promise to party B, who then relies on that promise to his subsequent detriment.

    33. This charge represents a breach of the well-known and well-established principle that 'a grantor shall not derogate from his grant'. This rule embodies a general legal principle that, if A agrees to confer a benefit on B, then A should not do anything that substantially deprives B of the enjoyment of that benefit. Landholders cannot allow or promise this on the one hand, then on the other hand, take away this permission or promise, in allowing a third party to disallow and/or seek to charge for the permitted action by a driver.

    34(i) In 'Saeed v Plustrade Limited [2001] EWCA Civ 2011' a tenant was granted a right in common with others to park on such part of the forecourt as might from time to time be specified by the landholder, who later proposed to reduce the availability of parking and to charge for it. On appeal it was held that the landholder was only entitled to change the location of spaces, not to reduce their number, nor to unreasonably restrict parking previously offered, nor to charge for it. Such restrictions would interfere with easements enjoyed under the lease.

    Grace periods

    35. The Claimant did not comply with the Part B, section 13 of the CoP regarding 'grace periods' (Document 4). 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. The agent acting for PCM and who took ‘supporting’ pictures did not allow this grace period to elapse and issued each ticket prematurely and inside the same period. As such, they can not be considered valid and proper.

    36. The claimant conjects that they ‘find it unlikely that the driver was considering the signs at the time of enforcement’. There is no evidence of this and should be considered a baseless statement without value. As per the time stamped documents/photos submitted by the claimant in each instance between first photo and issued ticket was always under 10 mins and so could whether or not the driver was considering the signs was always necessarily impossible for the agent to discern.

    37. I refer to case Vehicle Services Ltd vs Ibbotson (2012) in which it was agreed that a private parking firm was responsible for mitigating any loss. The parking operative who was not wearing any clothing that clearly marked them out as a such would have seen me going back and forward between vehicle and building and would have had every opportunity to tell me in person to move on, but failed to do so. As per above, this was also not possible due the agents’ speed in issuing the ticket.

    Right of Cancellation

    38. If, despite the above, it was deemed that a valid contract did exist and I was considered to have parked, it would be categorised as a ‘distance contract’ under Consumer Contracts Regulations (particularly, part 3 of The Consumer Contracts Regulations 2013). 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. Had the vehicle in question left the site PCM were enforcing within 10 mins, this would have been an irrefutable indication that I was choosing to cancel said contract. As the parking agent did not allow 10 mins from initial observation to issuing of any of the PCN’s, I was unfairly denied the ability to enjoy this right on each occasion.

    Change to pre-existing Terms and Conditions

    39. PCM Ltd had only recently placed their signage on the wall creating new terms and conditions for motorists. The IPC Code of Practice states 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 are no signs at the entrance at all and no additional signs or notices to alert drivers.

    Costs

    41. The Claimant has sent threatening and misleading demands which stated that further debt recovery action would be taken to recover what is owed by passing the debt to a recovery agent (which suggested to the Defendant they would be calling round like bailiffs) adding further unexplained charges with no evidence of how these extra charges have been calculated.
    No figure for additional charges was 'agreed' nor could it have formed part of the alleged 'contract' because no such indemnity costs were quantified on the signs. Terms cannot be bolted on later with figures plucked out of thin air, as if they were incorporated into the small print when they were not.

    41.1. The Defendant also disputes that the Claimant has incurred £60 costs and points out that Gladstones have accorded no substantive cause or explanation of the cost even in their recently submitted Witness statement.

    42.2. The Defendant has the reasonable belief that the Claimant has not incurred £60 costs to pursue an alleged £100 debt.

    42.3. Notwithstanding the Defendant's belief, the costs are in any case not recoverable.

    42.4. The Claimant described the charge of £60.00 "legal representative’s costs" not "contractual costs". CPR 27.14 does not permit these to be recovered in the Small Claims Court.

    43. It is submitted that (apart from properly incurred court fees) any added solicitors fees are an arbitrary figure, and are an attempt at double recovery by the Claimant, which would not be recoverable in any event. The debt recovery business is widely known to operate on a no win no fee basis.

    44. The court is invited to strike out the claim, due to no cause of action nor prospects of success.

    Statement of Truth
    -------
    If anyone has the time I would greatly appreciate any feedback offered. I have to submit today.
    TIA
    Last edited by MORB; 05-02-2019 at 10:09 AM.
    • Umkomaas
    • By Umkomaas 4th Feb 19, 10:25 PM
    • 21,975 Posts
    • 34,633 Thanks
    Umkomaas
    Have you compared your defence (please, please check the spelling of defence. We are in the UK, not USA!) with the example provided by legally qualified and trusted forum contributor bargepole in the NEWBIES FAQ sticky, post #2?

    Yours looks about 4 times longer.
    Please note, we are not a legal, residential or credit advice forum, rather one that helps motorists fight private parking charges, primarily at the 'front-end' of the process.
    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.
    • MORB
    • By MORB 5th Feb 19, 9:35 AM
    • 72 Posts
    • 20 Thanks
    MORB
    HI Umkomass - bang to rights on 'defense', thanks for pointing it out. Amended now.

    I did read bargepole's example but I don't think I'm able to be as concise as he/she has been if I am to include all the points, I believe, from reading other examples of WS that are relevant/pertinent. My rationale is to be expansive in the WS and more succinct in the skelly.

    Anyway today is the day I need to file my WS, so I am now preparing the pack for the court with index of contents, evidence & case transcripts. Would be great if anyone has the time to look through what I know is a long WS and tell what they would change given the deadline is today, and I must go to work shortly.

    Thanks in advance.
    • nosferatu1001
    • By nosferatu1001 5th Feb 19, 10:38 AM
    • 4,864 Posts
    • 5,879 Thanks
    nosferatu1001
    Unkomass - worse, this isnt even a defence any longer

    ITs supposed to be a witness statement

    MORB - you need to read up on what a WS is about
    It is NOT a defence, whiich is a series of legal arguments
    It is a simple recitation of facts.
    • MORB
    • By MORB 5th Feb 19, 2:01 PM
    • 72 Posts
    • 20 Thanks
    MORB
    Point taken and noted, am a little panicked to get this in on time. I've been back and read through and have this version trying to stick just to the facts, briefly referencing case law where I think it necessary. I'm going to get this over the Gallstones by this evening and have to start printing the pack for the court and get it to the PO by 4:30pm. Hopefully I'm a little less wide of the mark with this. Any further comment?
    ------------
    I, xxxxxx of xxxxxxx WILL SAY AS FOLLOWS:

    I am the Defendant in this matter, I am unrepresented, with no experience of Court procedures. If I do not set out documents in the way that the Claimant may do, I trust the Court will excuse my inexperience. In this Witness statement, the facts and matters stated are true and within my own knowledge, except where indicated otherwise.

    Exhibited to this witness statement are the following documents I wish to rely on in exhibit BM1:
    - The email from my then employer (xxxxx) confirming authorised access/ easement in line with the prevailing commercial lease.
    - Screen print from Companies House confirming the position of the sender of the email as a director/co-founder of the tenant company on the dates of the alleged incident.
    - Annotated photograph of site entrance showing illegibility and poor positioning of PCM signs.
    - Independent Parking Committee code of practise -Part B - Section 15: ‘Grace periods’ & Part E - Schedule 1: Signage.
    - Further supporting photographic evidence of insufficient signage.
    - ParkingEye v Beavis [2015] unusually prominent signage Signage.
    - ParkingEye v Beavis [2015] UKSC 67 Transcript.
    - Jopson v Homeguard [2016] B9GF0A9E Appeal Transcript.
    - Saeed v Plustrade Ltd [2001] EWCA Civ 2011 Transcript.
    - Vine v London Borough of Waltham Forest [2000] EWCA Civ 106 (5 April 2000) Transcript.
    - Link Parking v Parkinson C7GF50J7 transcript.
    - PACE Recovery and Storage v Noor C7GF51J1 (tenancy must be varied correctly) transcript.

    While having business at the xxxxxxx building, xxxxxx, Nxxx xxx (the site) during February 2017 on 3 instances I was wrongly issued with 3 PCN’s by an unidentified agent of PCM ltd whilst unloading/loading.

    I confirm that the essence of my defence to this claim is that:
    a. I did not breach the terms and conditions of parking
    b. The Claimant's signage was not sufficiently clear and legible at the entrance as what their terms and conditions were/are and as such failed to offer a contract,
    c. Even if I did breach the terms, AND I was found to have parked, the Claimant is obliged by the compulsory Code of Practice of its own Accredited Trade Association to apply separate grace periods of at least 10 minutes at the start and end of each period of parking to allow for potential delays in finding a space, exiting the car park and to allow time for drivers to find and read the terms and conditions offered. All 3 tickets have been awarded before this time expired as per the timestamps in GSL1 pg 20-21, 24- 29, 39-40, 44-52, 61-63 & 66-76.


    The PCNs were issued on poorly signed private property where I had stopped to load/unload, not park. I was unaware that the site was enforced by any restrictive terms (that in any instance fail to detail provision for stopping/loading/unloading despite it being permitted under the terms of the prevailing commercial lease granted at the premises) , due to insufficient signage. I refer to the IPC Code of Practice (CoP) Part E, highlighting that adequate and clear entrance signs are required.

    When I was carrying out the activity of loading and unloading, as I was on the days in question I would enter through the roller shutters and closed the behind me as it opened in to the office where others were working. (see BM1 Doc V, pic A, B & C) The consequence of this would be not passing or seeing PCM’s signs on entering the building. As such, the inadequacy of the sign at the entrance is critical (BM1 Document III).

    Upon receipt of a parking charge notices from the Claimant, I requested compliant Particulars of Claim but was never supplied the same. The claimant failed to include a copy of their written contract nor any detail or reason for - nor clear and accurate particulars pertaining to - this claim (Practice Directions 16 7.3(1) and 7C 1.4(3A). No indication is given as to the Claimants contractual authority to operate there as required by the Claimants Trade Association's Code of Practice B1.1.

    The Particulars of Claim (PoC) do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how any terms were breached. Indeed the PoC are not clear and concise as is required by CPR 16.4 1(a) and CPR 1.4. It just vaguely states “parking charges”; which does not give any indication of on what basis the claim is brought, for example whether this charge is founded upon an allegation of trespass or 'breach of contract', so I have had to cover all eventualities and this has denied me a fair chance to defend this in an informed way.

    It is noted, as it was also on the supplied, PoC’s that the location of the site discussed is incorrectly listed as having 3 different postcodes (GSL1, pg1 to of the Claimant’s witness statement). This inaccuracy is either further evidence of the inadequacy of the PoC’s or an indication that the site they refer to is not the one known to be at Chandelier Building, 8 Scrubs Lane, NW10 6RB.

    On all 3 occasions I enjoyed the right to load/unload stemming from my employment at the tenant business, xxx x limited, relying on an express permission from the company, specifically from a current and then co-founder & director by the name of xxxx xxxx. The same is confirmed in Document I & II of the exhibits herein included as evidence.The company’s principal operation is rapid response on-demand delivery. While my role was principally clerical I was often involved in moving, collecting and delivering equipment/clothing/documents, assisting broken down drivers, and was dispatched to satisfy excess demand that the deployed fleet could not fulfil. As such, short access visits to the chandelier building were frequent and common. Had I wished to be park for a prolonged period, I had at my disposal a permit that allowed me to legitimately park in a bay at the front of the premises reserved exclusively for xxxxx, again as per document I & II.

    This permission created the prevailing and overriding contract - the only contract - and the business was concluded as agreed, at no cost or penalty.

    I refer to the case of Jopson v Homeguard [2016]. As an employee of a tenant in the Chandelier Building at the time of the ‘charge’, I enjoyed the implied right to load/unload as an ancillary to the easement to pass or re-pass as conferred by my then employers tenancy agreement in the property that sits on the same site. Loading or unloading with the permission of the landholder is not 'parking' and signs cannot override existing rights enjoyed by landowners and their visitors, as was found in the Appeal case decided by His Honour Judge Harris QC at Oxford County Court, in a similar case number B9GF0A9E: 'JOPSON V HOME GUARD SERVICES’ which also adduced a business car park decision, analogous to this present case. I also reference Bulstrode v Lambert [1953] 2 All ER 728. The right of way in that case was: “To pass and re-pass with or without vehicles…for the purposes of obtaining access to the building…known as the auction mart.''

    In the Jopson appeal it was also held as a finding of fact, that stopping to unload was not 'parking'.

    On returning to the site to gather evidence on examination it was observed that there is an absence of any notices/signage in the loading bay where I was stopped ( Document V; pic A, B & C ). Using a zoom camera lense to take pictures I discovered there are no provisions for vehicles loading or unloading. (Document V; pic D) This is something permitted under the lease the Chandelier building.

    There is no means of illumination at any of the Claimants signage on site detailed in GSL1 pg 11 and further evidenced on pg 62,63, 66-69, 72. Without illumination of the terms and conditions and in direct contravention of IPC CoP Schedule 1 - signage that states: “if parking enforcement takes place outside of daylight hours you should ensure that signs are illuminated or there is sufficient other lighting. You will need to ensure all signs are readable during the hours of enforcement as they form the legal basis of any charge.”

    Supplementary to this, should it be upheld that I was constituted to be parked there are no double yellow lines painted in the bay yet they are present elsewhere accompanied by large font prohibitive, no parking signs as well as PCM terms and conditions signs. This inconsistency is confusing and has the effect of being misleading to anyone wanting to properly abide by the site terms and conditions. Should PCM wish the loading bay to be covered by the same restrictions, double yellow lines, the elsewhere employed ‘No parking’ sign or the relevant T’s & C’s, should also be present, available and legible here. This is especially important as it is possible for a driver to enter the building via this bay and thus not encounter any signage pertaining to restrictions. As demonstrated by the pictures and those taken by PCM’s agent, none of the above are present in the bay (page 4 & 5; pic A, B & C)

    Furthermore, where PCM have demonstrated that they can and do use/employ/produce large fonted and legible signs they have opted not to do the same for the signs carrying their terms and conditions (as pictured Document V; pic E). These notices are positioned at such a level from the ground as to not be legible. This is clearly an intentional obfuscation. The main body of the terms and conditions is printed in the smallest font on the sign. What is more, the large font, more easily readable, ‘No Parking’ signs are closer to the ground than the terms notices in at least 3 locations on the concerned site.

    Considering Document V, pic F (mine) and the 3 pictures taken by PCM agent (Document V; pics G,H,I) whilst referencing Pictures J & K (Document 9 & 10) demonstrating the view standing beneath the notices, there can be no grounds for arguing a valid contract has been entered in to on the basis that PCM have failed to make a clear ‘offer’. Where an offer cannot be readily read by any user with 20/20 vision standing directly beneath the notice on the site, that same user is not able to knowingly engage with, or accept the terms of an implied contract. This positioning would also prejudice the seated disabled and those with less than perfect vision.

    The maximum time elapsed between the first and last picture taken by PCM’s agent is under 5 minutes. This is too short a time to establish if stopping , loading or unloading was taking place, and thus, due to not being afforded the opportunity to enjoy the required grace period, the awarding of a parking ticket is inappropriate and invalid. The Claimant did not comply with the As per Part B, section 13 of the CoP regarding 'grace periods'. 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. The agent acting for PCM and who took ‘supporting’ pictures did not allow this grace period to elapse and issued each ticket prematurely and inside the same period. As such, they can not be considered valid and proper.

    PCM Ltd had just prior to the tickets commenced operation on the aforementioned site on (1 Dec 2016 - GSL1 pg 9) As such they had only recently placed their signage on the wall creating new terms and conditions for motorists. The IPC Code of Practice states 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 are/were no additional signs or notices to alert drivers. As evidenced by comparing GSL1 pg11 to BM1 Document III.

    The Claimant has sent threatening and misleading demands which stated that further debt recovery action would be taken to recover what is owed by passing the debt to a recovery agent (which suggested to the Defendant they would be calling round like bailiffs) adding further unexplained charges with no evidence of how these extra charges have been calculated. No figure for additional charges was 'agreed' nor could it have formed part of the alleged 'contract' because no such indemnity costs were quantified on the signs.

    It is my position that, under the doctrine of promissory estoppel, the Claimant has no standing, or cause of action, to litigate in this matter.

    I invite the Court to dismiss this claim in its entirety, and to award my costs of attendance at the hearing, such as are allowable pursuant to CPR 27.14.
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