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  • FIRST POST
    • LewiiiD
    • By LewiiiD 13th Sep 18, 12:50 AM
    • 63Posts
    • 24Thanks
    LewiiiD
    UKCPM - Take Two
    • #1
    • 13th Sep 18, 12:50 AM
    UKCPM - Take Two 13th Sep 18 at 12:50 AM
    Hi everyone,

    Some of you may have followed my previous case against UK CPM and Gladstones back towards the end of last year with it concluding in February. Well I'm back again with the same issue basically.


    This time around they are chasing me for parking outside of a marked bay in the same residential estate. This PCN dates back to May 2017.

    I have acknowledged MCOL, but unfortunately work has been hectic and I've only now managed to draft my defense. It needs to be submitted in a couple of days, could someone have a once over........

    I did also ask for the evidence to be sent to me as per the Practice Direction on Pre-Action Conduct and they failed to get back to me in 30 days.

    However yesterday afternoon I received a rather lengthy email from Gladstones with various cases quoted stating that I still owed the debt...blah blah blah. Interestingly though towards the end of the email they stated: It has been noted that legal proceedings have been issued prematurely and as such, we are willing to offer you the chance to pay a reduced amount of £160

    Has anyone seen this before? And is this something worthwhile adding into the defense?



    Please see drafted defense below: Comments greatly appreciated.



    Introduction


    1. It is admitted that the Defendant was the authorised registered keeper of the vehicle in question at the time of the alleged incident.

    2. This is my statement of truth and my defence.
    3. The Particulars of Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant as an unrepresented litigant-in-person I seek the Court’s permission to amend and supplement this defence as may be required upon disclosure of the claimant’s case.
    4. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct. The Defendant further notes the Claimant's failure to engage in pre-action correspondence in accordance with the pre-action protocol and with the express aim of avoiding contested litigation.
    5. The residential area in question has particularly poor lighting at night when the car was parked. The terms and conditions of parking have no lighting and were unreadable. It was not made clear that there was any restriction regarding parking outside of marked bays and a valid permit was on display,

    6. It is believed that it will be a matter of common ground that claim relates to a purported debt as the result of the issue of a Parking Charge Notice (PCN) in relation to an alleged breach of the terms and conditions by the driver of the vehicle WV02 ATK when it was parked at Pembroke Park, Crawley. The PCN stated the contravention as “No Parking Outside Of A Marked Bay”.


    Rebuttal of Claim

    7. It is denied that:

    a. A contract was formed
    b. There was an agreement to pay a parking charge.
    c. That there were Terms and Conditions prominently displayed around the site.
    d. That in addition to the parking charge there was an agreement to pay additional and unspecified additional sums.
    e. The claimant company fully complied with their obligations within the terms of Schedule 4 of the Protections of Freedoms Act 2012.
    f. The claimant company fully complied with their obligations within the International Parking Community Code of Practice of which they were member at the time.
    g. That the Defendant is liable for the purported debt.


    8. It is further denied that the Defendant owes any debt to the claimant or that any debt is in fact owed or that any debt exists or could ever exist or has ever existed. That in any event the claimant has failed to comply with the requirements of the Civil Procedure Rules and that their claim is both unfounded and vexatious.

    9. The Defendant did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.

    10. The claimant is put to the strictest proof of their assertions.



    My Defence

    11. My defence will reply principally upon the following points:
    12. The signage on this site was inadequate to form a contract with the motorist. Further it is trite law that a term that is forbidding cannot also constitute an offer. It is therefore denied that any contract was formed or was capable of being formed.
    a. The signage on and around the site in question was unclear and not prominent and did not meet the British Parking Association (BPA) Code of Practice or the International Parking Community (IPC) Code of Practice. The Claimant was a member of the IPC at the time and committed to follow its requirements. Therefore no contract has been formed with driver to pay the amount demanded by the Claimant, or any additional fee charged if unpaid in 28 days.
    b. Further, Lord Denning’s ‘Red Hand Rule’ can be seen as applicable in this case, as the parking charge notice of £100 (being ‘out of all proportion’ with expectations of drivers in this car park and thus being an onerous term) 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. Lord Denning stated this in the case of Spurling vs Bradshaw Ltd; “The more unreasonable a clause is, the greater the notice which must be given of it. Some clauses would need to be printed in red ink with a red hand pointing to it before the notice could be held to be sufficient”.
    c. The claimant is put to strict proof that the signage on the date in question clearly sets out the onerous terms of a parking charge notice, to sufficiently draw the attention of a visitor, as set out in the leading judgement of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3.
    d. In the absence of ‘adequate notice’ of the terms and the charge (which must be in large prominent letters such as the brief, clear and multiple signs in the Beavis case) this fails to meet the requirements of Schedule 4 of the POFA.

    13. Should the claimant rely on the case of ParkingEye v Beavis, I wish to point out that there is a test of good faith.
    Para 205: “The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.”

    14. Underlining that is Section B.2.1, B.2.2 of the IPC Code of Practice, which gives clear instructions as to the placing, visibility, and clarity of any signs that are used to form contracts. It says:

    2.1 Where the basis of your parking charges is based in the law of contract it will usually be by way of the driver of a vehicle agreeing to contractual terms identified by signage in and around a controlled zone. It is therefore of fundamental importance that the signage meets the minimum standards under The Code as this underpins the validity of any such charge. Similarly, where charges are founded in the law of trespass and form liquidated damages, these too must be communicated to drivers in the same way.

    2.2 Signs must conform to the requirements as set out in a schedule 1 to the Code

    15. The defendant refutes that there were clear and visible signs, with Terms that formed the basis of a contact and which met the specifications above


    16. Section B.1.1 of the IPC Code of Practice outlines to operators:

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

    a. The Claimant is put to strict proof they have such authority to operate on site and to take action in their own name. The same is a requirement of any contract based on conduct.
    b. The Claimant is not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract.
    c. The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question
    d. The Claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge

    17. If in the alternative it is the claimant's case that his claim is founded in trespass (which is in any event denied) then in a residential car park setting any damages in trespass can only be assessed based on a calculation of the proportion of income lost based on the time of the alleged occupation. Any sum sought could therefore only be minimal and de-minimis
    Only the landowner can pursue a case under the tort of trespass not this Claimant, and as the Supreme Court in the Beavis vs ParkingEye (2015) [2015] UKSC 67 case confirmed, such a matter would be limited to the landowner themselves.
    18. It is denied that the Defendant was the driver of the vehicle. The claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedom Act 2012 (“POFA”). The claimant is put to strict proof.
    19. If the Claimant seeks to allege that any such presumption exists, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provisions. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strict limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.
    20. The case of Elliot v Loake (1982) is often cited by UK Car Park Management Ltd, however it is a criminal case with forensic evidence, whereby the keeper of the vehicle was also proved to be the driver at the time of an offence and thus has no basis upon this case or contract law. This is supported by the ruling of the Judge in Excel v M. X (Manchester) C8DP5C7T, who dismissed Elliot v Loake as it is a criminal case that doesn’t bear any weight in the small claims court.
    21. Similarly CPS vs AJH Films (2015) is another case heavily relied upon by UK Car Park Management. However time and time again this gets thrown out of court. As recently as 22nd June 2017, DJ McKay dismissed Excel Parking Services Ltd vs Mrs. L. Evans (Cardiff) C8DP79CC as the judge fully agreed with Mrs L. Evans witness statement which correctly pointed out that this case involved employer/employee liability. As this claim was not a comparable situation, it also had no relevance to Excel’s case.
    22. The Defendant denies that they would have agreed to pay the original demand of £100 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible. The amount demanded is excessive and unconscionable and especially so when compared to the level of Penalty Charge Notice issued by the local Council, which is set at £50 or £25 if paid within 14 days.
    23. The Claimant’s representatives, Gladstones, have artificially inflated the value of the Claim from £100 to £241.32. The Defendant submits the added costs have not actually been incurred by the Claimant; that these are figures plucked out of thin air and applied regardless of facts.
    a. If the “parking charge” listed in the particulars of claim is to be considered a written agreement between Defendant and Claimant then under 7.3, the particulars fail to include “a copy of the contract or documents constituting the agreement”.
    b. The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.

    24. The Defendant researched the matter online, and discovered that the Claimant is a member of the Independent Parking Committee (IPC), an organisation operated by Gladstones Solicitors. They also operate the Independent Appeals Service (IAS), the allegedly independent body appointed by the Claimant’s trade body, the IPC. This research revealed that the IAS, far from being independent, is a subsidiary of the IPC, which in turn is owned and run by the same two Directors who also run Gladstones Solicitors. The individuals in question are John Davies, and William Hurley. These findings indicate a conflict of interest. Such an incestuous relationship is incapable of providing any fair means for motorists to challenge parking charges, as well as potentially breaching the Solicitors Regulation Authority Code of Conduct.

    25. The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking for a true cause of action. Her Majesty's Courts and Tribunals Service have identified over one thousand similar poorly produced claims and the solicitors conduct in many of these cases is believed to be currently the subject of an active investigation by the Solicitors Regulation Authority.

    26. The Defendant respectfully suggests that parking companies using the small claims track as a form of aggressive, automated debt collection is not something the Courts should be seen to support.

    27. In view of all the foregoing the court is invited to strike the matter out of its own motion.

    28. The claimant is put to strict proof of the assertions they have made or may make in their fuller claim.



    This statement is true to the best of my knowledge and belief.

Page 2
    • LewiiiD
    • By LewiiiD 14th Sep 18, 9:53 PM
    • 63 Posts
    • 24 Thanks
    LewiiiD
    Okay, I’ll amend and send it off this evening. Thanks for your help again Coupon ��
    • LewiiiD
    • By LewiiiD 14th Sep 18, 10:33 PM
    • 63 Posts
    • 24 Thanks
    LewiiiD
    Just double checking email address to send Defence into:



    I had ccbcaq@hmcts.gsi.gov.uk from the previous case but ccbcaq@justice.gov.uk has been quoted in another post?



    Thanks
    • KeithP
    • By KeithP 14th Sep 18, 10:34 PM
    • 9,197 Posts
    • 9,371 Thanks
    KeithP
    Just double checking email address to send Defence into:



    I had ccbcaq@hmcts.gsi.gov.uk from the previous case but ccbcaq@justice.gov.uk has been quoted in previous posts?



    Thanks
    Originally posted by LewiiiD
    Either of those will work.

    The 'justice' one is newer.
    .
    • LewiiiD
    • By LewiiiD 14th Sep 18, 10:42 PM
    • 63 Posts
    • 24 Thanks
    LewiiiD
    Either of those will work.

    The 'justice' one is newer.
    Originally posted by KeithP

    Thank you! All sent.
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