Park Watch (Defence Systems ltd) /Gladstone claimform - PCN - Now £234.87

[dx100uk]

god why don't you wait till less than a week prior to WS

after 10 weeks away

dx

[dx100uk]

you can easily win now after that CPR rebuttal.

it DOEs apply

[kkkoyes]

i know sorry guys i am panicking more then anything.

 

i actually misplaced the letter with the court date and was under the impression that they have backed out as i hadnt heard anthing.

 

found the letter and its bit late but i cant go back

[removed - dx ] but suppose as the claim is for under £250 dont really want to fork out more for a solicitor for that amount.

 

 

God. help me!!

Edited January 1, 2017 by dx100uk
please read our rules

[dx100uk]

Then stop panicking

Doesn't help at all

No you don't need legal help

 

If you go read a few like threads here

You'll see this has been dealt with numerous times

 

Have you been sent their WS yet

[dx100uk]

Unless you are doing it when not logged in

You haven't bothered to read even one other relevant thread so far

 

CAG is self help too!!!!

[kkkoyes]

Then stop panicking

Doesn't help at all

No you don't need legal help

 

If you go read a few like threads here

You'll see this has been dealt with numerous times

 

Have you been sent their WS yet

 

thanks dx100uk

 

I assume by WS you mean witness statement? If so, no haven't received anything.

The deadline for which is 3rd Jan.

 

I have already searched CAG for all the posts related to those that were fined at the same location as me to understand possible defences.

 

And all the steps I've took so far have been following advice and templates from the forum.

 

as far as self help goes its in my interests to research these

but if you can offer some specific threads you think would be useful

then i'd be happy to see it.

 

this is the reason im here after all!

And perhaps i can help CAG and its members in return too.

 

I have searched and bookmarked those threads which were at the same location as me

but none seems to have gone to court or do they go into the detail about what happened there.

 

I suppose that's what I'd really appreciate some direction on more than anything

- what should i say at the court?

 

would you suggest i serve some documents/witness statements also

[dx100uk]

trying to gauge where you are at in the process

 

so you got the notice of allocation and you sent it back saying no to mediations etc etc.

 

 

dx

[kkkoyes]

Yes past that stage now - acknowledged service.

And they tried to do a paper hearing.

 

They actually said they do not want to mediate.

We did not accept the paper hearing and asked for an oral hearing.

Also sent CPR request.

 

They responded to CPR saying it does not apply.

 

The court accepted the oral hearing and set the date now for 17 January at Birmingham court. Eek.

 

Need to get my head together.

 

Have been reading posts but would like to know best form of defence and how to tackle this.

 

Considering everything said and done so far.

[ericsbrother]

You have 1 day to write your witness statement.

 

This should include what happened from your point of view,

why their claim is rubbish and reference to all the other cases you wish to use as examples of why their claim is nonsense.

 

Get it written and post it here tomorrow and then fax it to the the court in Birmingham after we have had a chance to comment.

 

All of the supporting notes, photos etc need to be part of your bundle you send to court and to the other side.

 

As hearing is on 17th you had better get this done at the same time.

 

You have had 4 months to sort this out and you come back here with less than a day to go. That doesnt leave us much time to help.

[kkkoyes]

Thanks guys, I appreciate it is very short timescale any help you can offer I am very grateful for. I have looked at some previous threads and had a go below:

 

Example Witness Statement [Please correct or amend my wording as appropriate]

1. It is admitted that Defendant is the owner of [motor vehicle].

 

2. The Defendant is unable to admit or deny the precise times he was stopped in the area designated as a red route “no stopping” zone at one stop shopping centre, as he has no recollection of this. The Claimant is put to proof of the same.

 

3. It is an offence to claim money by misrepresentation and using a false instrument to gain a pecuniary advantage such as claiming red lines painted on private land

mean anything under law is misrepresentation. The Claimant is to put to provide Proof of planning permission granted for signage and the painted cross hatches under the Town and Country Planning Act 2007.

 

4. It is denied that the Claimant entered into a contract with the Defendant. As held by the Upper Tax Tribunal in Vehicle Control Services Limited v HMRC [2012] UKUT 129 (TCC), any contract requires offer and acceptance. The Claimant was simply contracted by the landowner to provide car-park management services and is not capable of entering into a contract with the Defendant on its own account, as the carpark is owned by and the terms of entry set by the landowner. Accordingly, it is denied that the Claimant has authority to bring this claim. The proper Claimant is the landowner. The Claimant is to provide Proof of assignment from the land owner to create contracts and make claims in their own name.

 

5. If there was a contract, it is denied that the penalty charge is incorporated into the contract. As per Thornton v Shoe Lane Parking [1971] 2 QB 163, the relevant term must be made known before a contract was formed. Here, the charge was not incorporated into the contract because the signage could only be viewed after stopping of the car. A vehicle will naturally pass through this land as the “no stopping zone” forms part of a roundabout that vehicles and shoppers are free to use and the Defendant will not have been able to read and agree to the contract by the time that the Claimant defined as “stopping” in the zone for which the Claimant is claiming the parking charge for.

 

6. Alternatively, even if there was a contract, the provision requiring payment of £234.87 is an unenforceable penalty clause. Following Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915] AC 847, clauses designed to punish a party for breach of contract may only be upheld if they represent a genuine pre-estimate of loss. The provision is a penalty and not a genuine pre-estimate of loss for the following reasons: (a) as the Claimant is not the landowner and suffers no loss whatsoever as a result of the stopping of a vehicle in the zone; (b) the amount claimed is evidently disproportionate to any loss suffered by the Claimant; © the penalty bears no relation to the circumstances because it remains the same no matter whether a motorist stopped for ten seconds or ten years; and (d) the clause is specifically expressed to be a penalty on the Claimant's signs.

 

7. Further and alternatively, the provision requiring payment of £234.87 is unenforceable as an unfair term contrary to Regulation 5 of The Unfair Terms in Consumer Contracts Regulations 1999. This is a term which falls within Schedule 1, paragraph (e) of the Regulations being a term "requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation". The term was not individually negotiated and causes a significant imbalance in the parties' respective rights and obligations, because the charge is heavily disproportionate in respect of a stopping and is imposed even where consumers are legitimately using the road for its designated purpose.

 

8. Save as expressly mentioned above, the Particulars of Claim is denied in its entirety. It is denied that the Claimant is entitled to the relief claimed or any relief at all.

 

Also ericbro just drawing on some previous posts and threads that you’ve commented on. Can I ask if these points still apply at this stage and should I bring them to the court’s attention?

• The arrangement between them, this claim, the IPC and how they are being paid as there is a stink of Champerty and maintenance – please advise what this means in laymen terms and whether this is still applicable?

• Can I ask they justify the monies claimed using the decision of Cavendish Square Holdings v El Makdessi (2012) (saw this mentioned in another thread – not entirely sure if this is applicable and how to use this argument?)

 

Also earlier you said I could send a letter to court saying that they have failed to show cause for action and locus standi by way of CPR 31.14 request and that the particulars of claim fail to meet the requirements of CPR16.4 and therefore ask that the claim be struck out for this reason.

Now I did send them CPR 31.14 Request (letter in the previous post) on 11th October – but as mentioned before they replied saying quite simply:

“Part 31 Requests do not apply to the small claims Track.”

Would you say now I can write the letter to the court as mentioned above – or should this be included in the above witness statement?

 

Once again many thanks to the forum and in particular dx and ericsbro – hoping to nail this in the coffin with your support and hope it can serve as an example for anybody else who finds themselves in a similar situation at that location.

 

Look forward to your helpful advice, as always

[ericsbrother]

point 2,

As this is not POFA compliant you dont even admit being the driver

- have you read nothing on these matters at all?

 

The main point of all of this is that

"no Stopping is a prohibition, not a contractual matter open to offer and consideration.

 

 

Look at the parking pranksters blog for recent examples you can quote.

the rest is just internet lifted stuff that is largely of very minor relevance.

 

The £234.87 is a made up figure as you are being sued for a supposed breach of contract and that contract says £100 (for example)

no other amounts were mentioned in the signage

so again that is an unfair contract clause and against the current consumer law

 

 

Look up the CC regs of 2015 and quote the exact part this statute law makes Dunlop redundant in your case.

 

Cavendish square was about a penalty clause in a forward contract being acceptable, tied in with Beavis because is was about PENALTIES.

 

As you havent looked up Champerty and cant prove it leave that alone as well.

 

When you made the CPR request a court track hadnt been decided so it is relevant that they havent produced any paperwork to shpw locus standi and cause for action against the DEFENDANT

( you are not the driver but the keeper, dont forget this and correct your work on point 2.

 

Get the point in about prohibition not offer of a contract and the rest can stay as it is with adjustment to point7 regarding current consumer contract law.

 

Then read up on it and make notes so when you get to say your piece you arent caught out having to explain the case law you quote.

[kkkoyes]

Thanks ericbro

 

Just to give all an update.

 

 

I did a lot of reading on these cases and had a look at parking pranksters blog which I thank you for directing to me.

 

 

My amended defence statements has taken into account the primary point of no stopping being a prohibition.

(BIG CREDIT TO PARKING PRANKSTER BLOG)

 

4. The Claimant’s relevant signage at this site states

“ALL VEHICLES NO STOPPING AT ANY TIME. TAXI’S, VEHICLE’S LOADING & UNLOADING. £100 Parking Charge. Reduced to £60 if paid within 14 days” I

 

 

t is submitted that if these notices are attempting to make a contractual offer, then as they are forbidding they do not fulfil the basic requirement of a contract, which is that each party to the contract must offer valuable consideration to the other party, on clear terms capable of acceptance.

 

 

In this case neither the Claimant, nor their principal the landowner, is offering anything to motorists.

The notices cannot, therefore, reasonably be construed as having created a contractual relationship between the Claimant and the Defendant.

 

The above point was recently tested in the County Court at High Wycombe, in the case of Parking Control Management (UK) Ltd v Bull & 2 Others (B4GF26K6, 21 April 2016), where District Judge Glen dismissed all three claims, stating in his judgment that:

 

“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.”

 

While this is a County Court decision and therefore not binding, it is on all fours with the present case and may be considered as persuasive.

 

 

7. It is denied that the Claimant entered into a contract with the Defendant.

As held by the Upper Tax Tribunal in Vehicle Control Services Limited v HMRC [2012] UKUT 129 (TCC), any contract requires offer and acceptance.

 

 

The Claimant appears to have been contracted by the landowner to provide car-park management services and is not capable of entering into a contract with the Defendant on its own account, as the land is owned by and the terms of entry set by the landowner.

 

 

Accordingly, it is denied that the Claimant has authority to bring this claim.

The proper Claimant is the landowner.

The Claimant is to provide Proof of assignment from the land owner to create contracts and make claims in their own name.

 

8. In the alternative, if it was held that the signage was contractually valid, it would be impossible for a motorist to have read the terms and conditions contained therein from a moving or stopped vehicle, and if the vehicle is stopped, the ‘contravention’ according to the Claimant is already committed.

 

The above point was recently tested in several cases regarding Hayes and Harlington station. There a similar situation arises as the vehicles were charged for briefly stopping but the signs are far away from vehicles and high up

 

In all cases it was ruled that no contract was entered by performance as the signage could not be read from a vehicle.

The case references are; C3GF46K8, C3GF44K8, C3GFY8K8

 

11. Additionally, the charge of £100 is a penalty and unfair consumer charge.

The leading case on this matter is ParkingEye v Beavis [2015] UKSC 67. In that case it was ruled that the penalties rule was engaged but the charge was not unfair because the motorist had the bargain of 2 hours of valuable free parking in exchange for the risk of paying £100 for overstaying.

 

 

The risk was clearly brought to the attention of the consumer in a huge font.

Here, there is no valuable consideration on offer and no bargain for the consumer, and the charge is applied immediately.

It is submitted that no motorist would agree to pay £100 instantly on stopping and this is therefore and unfair consumer term in breach of the Consumer Rights Act 2015.

 

so all points included and summarised as:

1. The signage cannot be safely read while driving. There can therefore be no meeting of minds and no contract by performance

 

2. The signage is forbidding and makes no offer to the motorist. There can therefore be no contract.

 

3. Even if there was a contract the signage fails informational requirements for contracts established in the Consumer Contracts (Information, Cancellation And Additional Charges) Regulations 2013, enacted 13 June 2014, and so any contract would be non-bindng on the consumer

 

4. Even if there were a binding contract the charge would be a penalty and unfair consumer term as it is not a genuine pre-estimate of loss and is not saved by the case law in ParkingEye v Beavis.

 

If it's of interest to see the full defence statement i'd be happy to upload it and send it via email.

But like you say there is recent example on the parking prankster blog which largely owe credit to.

 

Funnily enough as soon as I submitted my witness statement

- they have just responded to me with their pack. uploaded here:

 

 

 

have also attached my photos of the location itself:

 

Just to clarify the bus access sign they have included in their pack

(visible on the no entry sign on my uploaded images)

is referring to a different piece of land than where the vehicle is question was stopped.

 

 

The vehicle did not enter the bus zone and this can be seen on the pictures.

The vehicle was stopped where the yellow cross hatches are and the sign refering to "no stopping in this zone" can be seen on in the top left area of the images uploaded.

 

I have also noticed that there is a bullet point sentence which they have blocked out on page 4 of their pack

- this is their ccustomer lisence agreement.

Can they do that?

 

Little bit more worried now they have sent their pack.

They haven't responded to all my points but what do you think considering everything.....

merged.pdf

Edited January 6, 2017 by dx100uk
merged uploads to PDF

[ericsbrother]

well,

they have confused a contractual charge with damages for breach of contract,

if the sign says no parking then you park and that is a breach of contract,

they cant say no parking or we charge you £100

 

because one is a prohibition and the other is conditional that is against the other regarding performance of that contract.

 

It is like me saying you now owe me £100 for reading this line of text.

How is anyone supposed to consider and accept the terms if they dont stop?

 

As for blocking out their agreement,

they will claim commercial confidentiality

but I reckon it is because they dont have the necessary permissions from the landowner to sue in their own name

 

and they certainly dont have any say over a matter of trespass,

which this is as you ignored the signs saying no parking or whatever.

 

There is also the point about whether you are liable anyway as there may well be no keeper liability.

 

I cant remember if you have admitted being the driver,

if you havent then you should read up on this point and take note of para 9 of the POFA

 

another thing,

challenge the amount claimed

because if they are relying on a contract

then they cant add all of these other costs on

 

because there was no mention of them in the sign

( unfait trading terms regs, now superceded by unfair contracts clauses part of Consumer Contracts regs 2015)

[kkkoyes]

Thanks Ericbro

 

"It is like me saying you now owe me £100 for reading this line of text.

 

How is anyone supposed to consider and accept the terms if they dont stop?"

 

Lol Exactly

. Makes me wonder if I can put a sign up on my doorstep saying NO STOPPING HERE.

£100 Charge! - and expect to sue anyone who did so! Ridiculous.

 

there has been no admission of driver so will argue the keeper liability point certainly too and check out para 9 thanks

 

i assume they are not saying this is trespass?

what happens if they do go down the angle of damages for breach of contract

- is that a valid argument for them?

it seems like that's the angle they are gonna try to pursue

 

i am just trying to anticipate what their main points might be so i've deffo covered it in my counter response

 

We'll see what happens on the big day:wink:

[ericsbrother]

they cant claim trespass,

the landowner can sue you for trespass but only to recover money for the damage caused by that trespass.

 

 

You arent going to damage a car park by parking in it so no monies due.

 

If you owe money for a breach of contract

then that contract must allow for a sum to be paid becuse of that breach.

 

 

If they are claiming money is owed as a contractual condition

(ie for overstaying where they say that parking over 2 hrs is £100)

then they must offer you that choice.

 

 

they cant say no stoping r yoy agree to pay £100 as the first is prohibitive so there is nothing to offer.

 

 

The sign should say park here for £100 and then they will have a cause to chase you.

[kkkoyes]

Hey all - update on the outcome of the case

 

I will give a brief but detailed run through of what happened.

I had everything prepared witness statements, my key points, full print out of the previous cases i had referenced as well as the laws i was relying on (copy for everyone) and had thoroughly researched and felt confident of all points i was making and that i knew what I was talking about.

 

At the start,

Gladstone’s tried to make a point that i had submitted my witness statement late (it was dated 2nd Jan [exactly 14 days] but yes i was 2 days late in posting) it turned out he was saying he only RECIEVED the papers from his office yesterday

- which is something completely different then trying to accuse me of not sending within time!

 

 

the Judge also mentioned he did not receive a copy of my witness statement at all (this was shock to me - as i had sent it BY HAND to the county court) but nonetheless he asked if I had print out of the statement so gave the judge the copy.

 

 

Worst of all the claimant had actually submitted their statement AFTER they received mine via email

(you will read this on my posts here)

in fact they had opportunity to review it before responding to the points in my witness statements in theirs

- how could they accuse me of sending my witness statement in late?

They obviously sent theirs after mine as their statement referred to mine! Bizarre!

 

In terms of the procedural rules I also responded in kind to add:

 

Their particulars fail to comply with Civil Procedure Rule 16.4 and Practice Direction 16, paragraphs 7.3 – 7.5 as they do not contain a copy of the contract, and do not explain how the contract was concluded. The claimant tried to add new particulars of claim in their witness statement by supplying a copy of the contract. The defence points could not be added until the contract was filed.

the Judge wished to hear the case today and did not want to play the game of technicalities

asked if either felt the need to adjourn the case to resubmit statements

- but we accepted we are happy to run with the case on the facts today.

 

First off the judge instantly made a bid to the other party to limit the charges being claimed to £100

(this was great as it felt like this judge was on my side!)

After some hesitation Gladstone guy agreed that he would not be able justify the additional charges and agreed.

 

The judge asked if the claimant wanted to say anything and they summarised their case and showed time stamped photos that seemed to suggest the vehicle was parked for approximately 14 min or 17 mins (can’t remember exactly)

I was asked if there was anything i would like to put to the claimant.

 

 

firstly I mentioned the fact that the area of land that the claimant is alleging that I had stopped is not relevant to the pictures of the signs that the claimant included in their bundle.

 

 

These signs were related to “bus access zone”

– this is a different piece of land to which the vehicle is shown to have entered/stopped in.

 

 

I put it to the claimant to advise whether they had planning permission from the council for the signs and the cross hatches that were painted on the private land and the double red lines as it is misrepresentation to suggest that these mean anything under law.

 

 

The judge asked under what law they need planning permissions and I answered the Town and Country Planning Act 2007.

I also reiterated that if it is the case that this is not Private Land then the proper claimant is the Council and Park Watch are unable to bring this case against me.

 

 

The judge reviewed the drawings and asked the claimant to point out where in the drawings this piece of land was.

 

Secondly I pointed out that the claimant has not been compliant with the Protection of Freedoms Act so they were not able to bring this claim against me (as the keeper) - The NTK does not have the text required in 9.2.e and 9.2.f, and so is not valid.

The judge was confused whether this was an actual law that they had to abide by as the print out I provided contained the heading of the British Parking Association.

 

 

I was able to advice of the Act and the schedule 14

– to refer to and the paragraph was highlighted for his reference.

 

 

The claimant went on to state that they are not relying on the POFA / bringing the claim under the POFA.

(Not sure what his point was, as this is law!). T

 

 

he judge put to the claimant what the paragraph says the NTK must contain and the claimant AGREED that the NTK did not follow the requirements in POFA.

 

However it all went a bit pear shaped from here on in!

 

The judge asked me directly whether I was the Driver of the Vehicle.

I wasn’t prepared for this direct level of questioning.

 

 

I responded and repeated my statement that I was unable to admit or deny being the driver of the vehicle as I have no recollection of this.

 

 

The judge was not impressed by my response and felt I was being evasive.

On pressing me I responded to say no

– he then reminded me that its criminal offence etc the claimant may bring further evidence.

 

 

I really felt the pressure from Judge as he was determined to finger me as the driver all of a sudden.

I reminded him that the date of this incident was 2 years ago

I honestly can’t remember.

 

 

He continued to question on me on how many people were insured to drive the vehicle (myself and my wife) and also how many cars where in household. Who was the main driver in either car?

 

 

I responded that we shared the cars and it could’ve been either of us.

He put it to me that it is probable that I was the driver and was not satisfied until I agreed with the statement that it was probable that I could’ve been the driver of the vehicle.

 

 

I added him that it was also entirely probable that I was not the driver of the vehicle and the claimant is provide proof of the same.

 

I did not want to get hung up on this point nor force a nasty situation with the Judge, as I had other points to make.

I continued with my statement next it was:

 

4. The Claimant’s relevant signage at this site states “ALL VEHICLES NO STOPPING AT ANY TIME. TAXI’S, VEHICLE’S LOADING & UNLOADING. £100 Parking Charge. Reduced to £60 if paid within 14 days” It is submitted that if these notices are attempting to make a contractual offer, then as they are forbidding they do not fulfil the basic requirement of a contract, which is that each party to the contract must offer valuable consideration to the other party, on clear terms capable of acceptance. In this case neither the Claimant, nor their principal the landowner, is offering anything to motorists. The notices cannot, therefore, reasonably be construed as having created a contractual relationship between the Claimant and the Defendant.

 

The above point was recently tested in the County Court at High Wycombe, in the case of Parking Control Management (UK) Ltd v Bull & 2 Others (B4GF26K6, 21 April 2016), where District Judge Glen dismissed all three claims, stating in his judgment that:

 

“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.”

 

While this is a County Court decision and therefore not binding, it is on all fours with the present case and may be considered as persuasive.

The judge asked what level this judge was and asked for the full transcript which I provided.

He read this through and asked whether the defendants in this case were all tenants at this estate – which they were.

 

he asked me whether there was further parking round the back on this land – which there was.

 

8. In the alternative, if it was held that the signage was contractually valid, it would be impossible for a motorist to have read the terms and conditions contained therein from a moving or stopped vehicle, and if the vehicle is stopped, the ‘contravention’ according to the Claimant is already committed.

 

The above point was recently tested in several cases regarding Hayes and Harlington station. There a similar situation arises as the vehicles were charged for briefly stopping but the signs are far away from vehicles and high up

 

In all cases it was ruled that no contract was entered by performance as the signage could not be read from a vehicle. The case references are; C3GF46K8, C3GF44K8, C3GFY8K8

At this point as I did not have the transcripts of the cases I was referencing – he dismissed my point.

9. The IPC code of conduct states that a grace period must be allowed in order that a driver might spot signage, go up to it, read it and then decide whether to accept the terms or not. A reasonable grace period in any car park would be from 5-15 minutes from the period of stopping. This grace period was not observed and therefore the operator is in breach of the industry code of practice. Additionally no contract can be in place by conduct until a reasonable period elapses. Thus the signage is simply a device to entrap motorists into a situation whereby the Claimant sends them invoices for unwarranted and unjustified charges, for which motorists can have no contractual liability due to the terms and conditions not having been sufficiently brought to their attention. This activity is bordering on, if not actually crossing the boundary of, a criminal offence of Fraud by False Representation.

At this point the judge sided with the claimant as the time stamps showed the vehicle was stopped for sufficient time to read the signs.

10. Additionally, the contract fails informational requirements for contracts established in the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, enacted 13 June 2014. Any alleged contract would be a distance contract for services as defined in The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.

 

The regulations define a distance contract as:

“distance contract” means 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 is clearly an organised service-provision scheme (for parking)

• The contract is clearly concluded without the simultaneous physical presence of the trader and the consumer.

• 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.

This is therefore a distance contract.

 

None of the exemptions in regulation (6) apply. No vending machine or automated premises was used to conclude the contract. Any contract would be concluded by stopping in the area.

 

Regulation 13 lists information to be provided before making a distance contract. The contract fails to provide the required information listed in Schedule 2. As per 13(1) the contract is therefore not binding.

 

Alternatively if the contract is on or off-premises, the information rules still apply and the contract is not binding as per either 9(1) or 10(1).

 

11. Additionally, the charge of £100 is a penalty and unfair consumer charge. The leading case on this matter is ParkingEye v Beavis [2015] UKSC 67. In that case it was ruled that the penalties rule was engaged but the charge was not unfair because the motorist had the bargain of 2 hours of valuable free parking in exchange for the risk of paying £100 for overstaying. The risk was clearly brought to the attention of the consumer in a huge font. Here, there is no valuable consideration on offer and no bargain for the consumer, and the charge is applied immediately on stopping. It is submitted that no motorist would agree to pay £100 instantly on stopping and this is therefore and unfair consumer term in breach of the Consumer Rights Act 2015.

I summarised my case by saying:

1. The signage cannot be safely read while driving. There can therefore be no meeting of minds and no contract by performance

2. The signage is forbidding and makes no offer to the motorist. There can therefore be no contract.

3. Even if there was a contract the signage fails informational requirements for contracts established in the Consumer Contracts (Information, Cancellation And Additional Charges) Regulations 2013, enacted 13 June 2014, and so any contract would be non-bindng on the consumer.

4. Even if there were a binding contract the charge would be a penalty and unfair consumer term as it is not a genuine pre-estimate of loss and is not saved by the case law in ParkingEye v Beavis.

The judge then proceed to question me directly again and with the steel faced angry look on his face and asked me:

“Under what circumstances would anybody think that it was ok to park here?”

 

I was put back by the question again and was not sure how to answer it at the time.

I said I am unable to answer the question.

 

 

He thought I was being clever not to indicate myself as the driver and reminded me the question he is asking is why ANYBODY would think that it was appropriate to park here.

 

 

I could not give the judge a satisfactory answer and to be honest

I did not feel prepared for this level of questioning.

I am reflector in nature and therefore on the spot responses is not something am used to providing.

 

He then proceeded to make his judgement as the claimant had nothing to add.

 

The deputy district judge ruled in favour of the claimant

ruling that on the balance of probabilities he believed I was the driver

 

 

– from my response to his earlier questioning.

He stated that he found me evasive.

 

 

The signage was clear in that £100 fine would be payable if anybody stopped there.

He ruled that my answer to why anybody would think that it was appropriate to park here

– made it clear that I knew I shouldn’t park there.

 

 

He did not feel the consumer contracts regulations are relevant here.

And nonetheless IF IT was trespass he would award £100 to the claimant anyways.

 

The claimant requested additional payment for some court fees, solicitor fees and interest which came up to another £103. And this was awarded to the claimant so in total £203.

 

Obviously this is not a full transcript of what happened and I may have missed bits out etc but best of my recollection.

 

 

I understand I may have made some textbook errors in my responses and the way I handled the case

– but please bear in mind I’d never been to court before and was completely untrained on how the law works.

 

 

If i had a chance again lot of things i would've done different but we are where we are.

I was asked by the Judge if I would be appealing which he tried to discourage me from.

I asked if I needed to make the decision now – which I didn’t – I think it was 21 or 28 days.

 

Overall I feel quite let down and deflated from this judgement and did not feel the judge was being fair to me.

He did not seem to have full understanding of the laws I was referring to me and was more interested in the direct questioning of me rather than the law as it stands.

 

 

I’m not sure what to do now?

Do I suck it up and pay the money – should I appeal?

 

 

Is it worth getting the transcript and how can I go about this?

 

 

If I was to appeal how would it work

– does the judge make a fresh decision or is it a judgement on whether the deputy district judge was right in making his decision?

 

Whatever the case I appreciate all your help guys especially ericbro and dx

– not happy that Gladstone’s came out on top on this one but interested to hear your thoughts.

 

 

It has been a fascinating journey and learning curve that either way I have benefited from.

[dx100uk]

well I hope the judge didn't use the word 'fine'

[Oddfellow]

Using the word 'fine' is the least of this judge's worries. He's a joke, and a menace to the judicial system.

[ericsbrother]

DDJ is the lowest level of judge so he is obliged to take into consideration the decisions made in other courts.

He is also wrong about the parking co being owed money for trespass,

that is down to the landowner only so that is a matter of fact and a matter of law he got wrong.

You can appeal.

 

Who represnted from Gladdys and there are only 2 of them, Will Huirley and John Davies.

 

 

If it wasnt them who pitched up?

If you had read the parking pranksters latest blog you would be aware that if the parking people who signed the witness statements were not present then no-one else has a right of audience so another thing to consider in an appeal.

 

You should have said you wanted to appeal as the decision was made but you have 14 days to submit one.

 

 

Serious errors in law but you need to get the detail of the land sorted out and beef up the Planning permission statement

[kkkoyes]

Thanks guys for the support

- I do feel also he got it so wrong and serious errors of law have been made so would like to appeal.

I wasn't given any information on how to do this or even what the next steps are...

 

Just want to know if anyone knows will I receive something in the post to confirm the judgement and/or transcript - will that need to be requested? and if so, how?

 

After reviewing this it will help me to make a decision on whether to proceed with an appeal and obv it would be interesting to see what words the DDJ is prepared to put on paper!

 

I can't remember the name of the guy from Gladstone's tbh but it wasn't one of those guys mentioned in the above post..

 

Does anyone know how i can get the detail of who owns that specific land from?

I just want to check if it actually the council

- due to the painted yellow cross hatches and council signage.

 

 

If this was the case then clearly parkawatch are not the proper claimant

[dx100uk]

well they are the proper claimant...

 

 

you mean if the land owner has given them permission to take people to court

 

 

land registry site?

[ericsbrother]

ask the council highways dept where their roads start and stop.

 

The point about the driver is that under the human rights act you are not obliged to incriminate yourself or others and you should have simply said that it wasnt you rather than playing grandmothers footsteps.

 

 

It is for them to prove they have a claim against the person they name on the form,

not just that they have a claim against someone who fulfils a function.

 

On this point I think that the judge has used a method of determining responsiblity that has been used since the 1300's and should have gone out of use when defined evidential rules were brough into the criminal justice system about 3 dacades ago, ie he looks a bit shifty so must be at it..

Edited January 23, 2017 by honeybee13
Paras.

[ericsbrother]

ask the court about an appeal, if you get it in quicly you dont have to pay the money to Park Watch.

 

 

Also ask the court who it was who was representing them as you can use this as per the method suggested in the parking pranksters blog of last week.

[kkkoyes]

It feels like i did a lot right, if not all in my responses to the judges questioning, but to be honest i think it appears more so that I came up against a rogue judge.

 

He should not have been asking:

“Under what circumstances would anybody think that it was ok to park here?”

The correct question should be:

Under what circumstances is a charge of £100 legally allowed

 

He said the signage was clear in that £100 fine would be payable if anybody stopped there.

If the signs in the bundle related to a different place, that would be incorrect. But i should of checked this properly beforehand - a learning point for me.

The signs ARE forbidding and do not offer a contract. Also, the £100 is not clear!

 

He did not feel the consumer contracts regulations are relevant here. They are relevant to all contracts, apart from those listed in schedule 6 of the act. He cant just say he doesn't 'feel' they are not relevant

And him saying even IF IT was trespass he would award £100 to the claimant anyways. But If it was a trespass, then only the landowner could claim, and then only for actual damages, as stated in ParkingEye v Beavis

 

Sadly, he seems to have forgotten his role. He made a number of fundamental flaws in his judgment

 

The problem is, it would cost me £255 to appeal and fear is (as in my experiences in other areas) of the judges sticking together, so its not a guaranteed a win. Although justice would be sweet it might be wasted time and money.

To get a transcript of the judgment costs about £50 also. If money wasn't an issue trust me i would love to appeal just to get that victory feeling and say the words you've been gladstoned lol but sadly i don't have more money to risk so its with a heavy heart that i've made the decision to suck this up.

 

@ericbro i was looking for the post you are referring to in the prankster blog - was it the right of audience and solicitors agent? little confused about this does this mean the solicitor is not allowed to send an agent on their behalf - as they do not have right of audience? If so then i'm sure a lot of these claims are probably being represented by agents that legally are not allowed to do so.... and suspect that was the case in this case also.

 

Nonetheless on another note i have been blessed (or cursed - depending how you look at it!) with ANOTHER parking court claim from different but equally notorious company - Civil Enforcement Ltd - so will have to apply what I've learnt from this in an effort to redeem myself. These cronies did not even send a letter before claim - but i'll be posting about it separately so not to mix it up with this post. I could no doubt do with the wisdom and advice of CAG , ericbro, dx - please follow it on the separate post..

[ericsbrother]

yes, the sols cant choose an agent as they are only reps of client

so client has to be there or the agnet cant speak.

 

AS for an appeal,

you can contact the parking prankster,

who is a member of an organisation that provides lay representation in these matters.

 

 

He is helping other foum members with appeals on judgements at the moment so all is not lost.

 

 

Dont forget, you get all the money back when you win.