ES/Gladstones Claimform - PCN Kent Street Lpool - ***Claim Discontinued***

[hayho1]

sorry I realise you did ask this of me the first time.

 

WS statement below:

 

 

 

Part 1 – Witness Statement

 

 

This is the witness statement of xxx, defendant in the case of ES Parking Enforcement Limited v xxx (Case ref: xxx).

 

 

I am the registered keeper of the vehicle - Registration Number: xxx. It is alleged that money is owed by the defendant as a result of a breach of contract at Kent Street Car Park, Kent Street, Liverpool, L1 5DA.

 

 

This is denied for the following reasons.

 

 

1.

 

ES Parking have failed to show locus standi by producing a contract with the landowner that assigns the right to enter into contracts with the public and to make civil claims in their own name. ES Parking have failed to show this contractual authority in their evidence.

 

 

2.

 

The claimants have failed to show in what capacity they are claiming monies from the defendant. They are deliberately confusing the matter by not stating this. The defendant is the keeper but not the driver, yet there is no keeper liability in this matter as ES Parking have failed to follow the protocols of the Protection of Freedoms Act 2012 (POFA) to create one for the following reasons:

 

 

2(A).

 

The Notice to keeper (NTK) was not issued until the 3rd August and not received until the 7th August, both dates too late to create a keeper liability under para 4 and 9 of the POFA.

 

 

2(B).

 

The early payment discount is advertised as £50 on the car park signage, yet the demand in the Notice to Keeper (NTK) is £60 – an unfair contractual term as it was not advertised at the time. This renders the entire demand void as it thus fails to meet the criteria of para 4 of the POFA to create any liability whatsoever.

 

 

2©.

 

ES Parking claim to be a member of the British Parking association (BPA) and the International Parking Community (IPC) but their signage is not compliant with the codes of practice for either of these Accredited Trade Associations. The signage cannot be said to be an adequate notice of a contract. The application for keeper details is also in breach of the Data Protection Act, so again unlawful conduct which voids any contract.

 

The defendant therefore puts it to STRICT PROOF as to who was the driver at the time; or, they state clearly that they are suing the keeper in that capacity and produce evidence that they have followed the protocols of the Protection of Freedoms Act 2012 (POFA) to create a keeper liability because this is denied.

 

 

3.

 

There was no offer of a contract so therefore it follows that there cannot be a claim for a

breach of contract.

 

 

3(A).

 

There was no such condition in the contract offered by the signage that could lead to the alleged breach, so no possible cause for action against the defendant or anyone else.

 

The signage at the entrance to the site and the signage at various other parts of the car park are contradictory and confusing. They lack the coherence to offer terms that may be clearly understood so it cannot be said to be fair or enforceable.

 

There is a clamping release fee of £125 - clamping on private land is unlawful and the threat to commit an unlawful act cannot be part of a contractual term. The whole contract thus becomes void.

 

The tariffs listed are contradictory so again cannot be said to be an offer of a contract under the Consumer rights Act 2015 (CRA), with particular reference to para 62(2).

 

 

3(B).

 

The claimant has not shown proof of planning permission granted for signage under the Town and Country Planning Act 2007, which they rely on to make contracts with the public. Without the necessary planning permission, their signage is there illegally and it is therefore not possible to enter into a criminal compact. So again, no offer has been made by the signage.

 

 

4.

 

The amount claimed has not been explained as to how it is constructed. The maximum amount that can ever be due as a result of keeper liability would be £100 as para 9(d) of the POFA. Any other terms regarding indemnity could only apply to the driver at the time and that would require notice being given to the driver under paras 5 and 8 of the POFA and that has not been done.

 

 

The claim breaches CPR 16.4 as a result of their failures to show a cause for action as outlined in points 1, 2, 3 and 4.

 

 

 

This is my statement of truth.

 

Dated: 9th April 2018

 

(sign)

[hayho1]

sorry EB I realise that now.

 

Doing my additional searches today.

[ericsbrother]

3(b) not no offer has been made, it is that no contract can be entered into (even if you wanted to) this is an important difference and also makes it impossibe for them to perform their side of the bargain

when you say the claim fails muster on CPR16.4 ask that the claim be struck out and move this point up to 1 and renumber the rest.

[hayho1]

Final WS submitted to court today (along with additional attached material)

 

 

Part 1 – Witness Statement

 

 

This is the witness statement of xxx, defendant in the case of ES Parking Enforcement Limited v xxx (Case ref: xxx).

 

I am the registered keeper of the vehicle - Registration Number: xxx. It is alleged that money is owed by the defendant as a result of a breach of contract at Kent Street Car Park, Kent Street, Liverpool, L1 5DA.

 

This is denied for the following reasons.

 

1.

 

The claim breaches CPR 16.4 as a result of the ES Parking Enforcement Ltd failure to show a cause for action as outlined in points 2, 3 and 5. The Defendant therefore request that the claim be struck out under CPR 16.4 as the Claimant have not shown a cause for action against the Defendant, the registered keeper of the vehicle.

 

 

2.

 

ES Parking have failed to show locus standi by producing a contract with the landowner that assigns the right to enter into contracts with the public and to make civil claims in their own name. ES Parking have failed to show this contractual authority in their evidence.

 

 

3.

 

The claimants have failed to show in what capacity they are claiming monies from the defendant. They are deliberately confusing the matter by not stating this. The defendant is the keeper but not the driver, yet there is no keeper liability in this matter as ES Parking have failed to follow the protocols of the Protection of Freedoms Act 2012 (POFA) to create one for the following reasons:

 

 

3(A).

 

The Notice to keeper (NTK) was not issued until the 3rd August and not received until the 7th August, both dates too late to create a keeper liability under para 4 and 9 of the POFA.

 

 

3(B).

 

The early payment discount is advertised as £50 on the car park signage, yet the demand in the Notice to Keeper (NTK) is £60 – an unfair contractual term as it was not advertised at the time. This renders the entire demand void as it thus fails to meet the criteria of para 4 of the POFA to create any liability whatsoever.

 

 

3©.

 

ES Parking claim to be a member of the British Parking association (BPA) and the International Parking Community (IPC) but their signage is not compliant with the codes of practice for either of these Accredited Trade Associations. The signage cannot be said to be an adequate notice of a contract. The application for keeper details is also in breach of the Data Protection Act, so again unlawful conduct which voids any contract.

 

The defendant therefore puts it to STRICT PROOF as to who was the driver at the time; or, they state clearly that they are suing the keeper in that capacity and produce evidence that they have followed the protocols of the Protection of Freedoms Act 2012 (POFA) to create a keeper liability because this is denied.

 

 

4.

 

There was no offer of a contract so therefore it follows that there cannot be a claim for a breach of contract.

 

 

4(A).

 

There was no such condition in the contract offered by the signage that could lead to the alleged breach, so no possible cause for action against the defendant or anyone else.

 

 

The signage at the entrance to the site and the signage at various other parts of the car park are contradictory and confusing. They lack the coherence to offer terms that may be clearly understood so it cannot be said to be fair or enforceable.

 

 

There is a clamping release fee of £125 - clamping on private land is unlawful and the threat to commit an unlawful act cannot be part of a contractual term. The whole contract thus becomes void.

 

 

The tariffs listed are contradictory so again cannot be said to be an offer of a contract under the Consumer rights Act 2015 (CRA), with particular reference to para 62(2).

 

 

 

4(B).

 

The claimant has not shown proof of planning permission granted for signage under the Town and Country Planning Act 2007, which they rely on to make contracts with the public. Without the necessary planning permission, their signage is there illegally and it is therefore not possible to enter into a criminal compact.

 

 

5.

 

The amount claimed has not been explained as to how it is constructed. The maximum amount that can ever be due as a result of keeper liability would be £100 as para 9(d) of the POFA. Any other terms regarding indemnity could only apply to the driver at the time and that would require notice being given to the driver under paras 5 and 8 of the POFA and that has not been done.

 

This is my statement of truth.

 

Dated: 8th April 2018

WS Part 1 Evidence Bundle + Part 2 (Rebuttal of Claimant WS) Evidence Bundle.pdf

[hayho1]

Thank you for advice as always CAG

 

I will update with any correspondence.

[hayho1]

today was the court hearing...

. The case was adjourned on the basis that the Claimant alleged they had not received the defendant WS! The claimant arrived with no papers and only an IPAD to rely upon.

 

The Judge seemed unimpressed and allowed a ten-minute break for the Claimant to review the Defendant' copy of their own WS. The Claimant insisted this was too comprehensive, and they would be unable to defend at this time.

 

To make matters worse, the judge didn't even have a copy of Part 2 of the Defendant' WS (Rebuttal of Claimant' WS). The judge stated this must have been lost within the court system!

 

What a waste of time.

 

Attempt was made by the Claimant to settle out of court - he was told we would meet again in court.

[dx100uk]

Well done!!

[hayho1]

so the plot thickens....

 

(Approx 12:49) - I (the defendant) contacted the court to discuss my concerns re: the loss of Defendant WS Pt2 (rebuttal of Claimant WS). Defendant also explained they had submitted proof of delivery (and signage by SOLS) to rely upon in court. Defendant was transferred to a member of the filing/evidence dept. He insisted he would investigate.

 

(Approx 12:57) - The court member returned the call. He informed the defendant that the Defendant WS (full bundle) was there, and was able to quote the full appendix range.

Yet the judge did not have this on his person and suggested it had been lost????

 

The caller also seemed concerned / confused by the judges notes from the hearing. These appeared to indicate that it was in fact the defendant claiming they had not received the other parties WS, and could not defend themselves against this. The caller was therefore confused why the defendant was calling to submit proof of delivery of WS to Claiamant!!! DOES THE DEFENDANT HAVE THE RIGHT TO REQUEST COPIES OF COURT DOCUMENTS?

 

Then the caller officially LET THE CAT OUT OF THE BAG..... apparently all of the Defendant's documents had been received and were on file but there was NOTHING RECEIVED BY THE COURT FROM THE CLAIMANT!!!!

After airing extreme concerns and frustration re: all of the inconsistencies, the caller again sounded concerned and suggested he needs to speak to the judge AGAIN.

 

 

I'm still waiting .....

Edited April 25, 2018 by hayho1
clarity

[hayho1]

And now I have been contacted:

 

The feedback I am given is that neither party could produce evidence of what they had / not sent

 

Re: the Claimant court bundle, this has still not been located ("could be lost/somewhere in the office") .... Defendant was informed Claimant needs to provide proof of delivery to Court and Defendant (WS was by email!)

 

BUT MY QUESTION IS .... if the judge did not have the Claimant WS to hand, why did he allow the trial to go ahead and adjourn it on basis of both parties not being able to prove x,y, and z. When in fact it looks as though the Claimant failed to ever submit anything to the court and therefore the case should have been dismissed!

 

Still , I only learn of this information through the caller and not the court notes!

[ericsbrother]

so you now wait to hear from the court about a new date.

You claim costs for both hearings. I

 

n the meanwhile send a paper copy of your stuff to the court again.

 

Never rely on email and certainly dont use email to conduct any business with the claimant or their solicitors.

In fact block their email address and set it to bounce back so they know this.

 

The point about never using email is made in many threads and this is one of the reasons why I say this. If possible actually TAKE the documents there by hand

[hayho1]

2 emails received from SOLS to date - SOLS obtained my email following online defence submission. I will continue to return and block SOLS as advised.

 

I will also send the WS + evidence bundle to the courts, particularly given that I am including new documents which I intend to rely on in court.

 

To clarify, shall I send my bundle before receiving the court date - I wondered if I would be receiving a new reference number?

 

Finally, as you will see from post #109, it seems the judge did not have the Claimant WS to hand nor has anything been submitted to the court.

Yet I only learn this through speaking to someone within justice support.

This is incredibly frustrating and a breach of the court conditions.

Do I need to do something about this?

Can you advise please

[DragonFly1967]

Do not send anything to anyone until you have a new court date. Once that is ordered, it will also order that you have to submit everything to the court and the claimant at least 14 days before the hearing.

 

You leave your submission until the last possible moment (allowing for accepted delivery/service of two (working) days).

 

 

That way they can't have a good read of what you've written and then come back with a new WS that finds ways around your defence. Not that Gladrags are that organised

[ericsbrother]

the judge has decided to have a hearing in the interests of justice.

The claimant could ask for a rehearing anyway unless the matter was dismissed as being hopeless in the first place and TBH most judges are loath to punish people for getting the paperwork slightly wrong so they have taken a decision they are entitled to.

 

Just get your costs written up and presented so you can claim the maximum you can for the 2 days.

No paperwork and you just get the bus fare for the new hearing

[hayho1]

Thanks for advice. I will have the new bundle produced, including costings. I will take multiple copies with me in case.

Edited April 28, 2018 by dx100uk
Quote

[hayho1]

Thanks for advice. I will have the new bundle produced, including costings. I will take multiple copies with me in case.

 

I received my new court date (30.05.18) after the 1st hearing was adjourned on the grounds that the Claimant claimed to have not received the defendant WS.

 

As required, I submitted my WS to all parties 2 weeks prior to the court date. This was sent by special delivery on Tuesday and received/signed by SOLS wednesday.

 

Today I have received an email from the SOLS (from yet another email address which has now been blocked). This states that the Claimant has issued the court with a notice of discontinuance and this matter is now concluded!

 

I will not be trusting the email and will be ringing the court myself for clarification. I have attached the notice which looks suspect to me and has not yet been authorised by the court/judge!

 

Any advice regarding next move would be much appreciated. I already have my schedule of costs produced which I will rely upon in court if we get there

letter of discontinuance.pdf

[dx100uk]

Looks like a win then!!!!!

[dx100uk]

Had to hide you att

Again youve left pers info showing

[ericsbrother]

right, ask for your costs for their unreasonable behaviour under CPR 27.14.2(g). they knew that they had no case to answer because they have done this thousands of times before and always drop it at the last moment. it is a breach of Civil procedure to use the courts to coerce a payment when they know non eis due.

You may get your costs or you may not but it wont hurt to ask. you want 5 hours research time @£19.50 ph, your copying and postage costs and travel and any other expenses for the first hearing. List it all out in a letter adn send it to the court

[hayho1]

apologies for this. For my reference, please could you confirm what details were showing?

 

I tripled checked and more and cannot see where I have missed.

 

Thank you.

[hayho1]

I still haven't heard from the courts so will follow up with a call tomorrow.

 

In the meantime, I have produced my costings letter (attached). Any feedback would be appreciated prior to sending.

COSTINGS.pdf

[dx100uk]

wrong thread sorry HH

good win don't forget to donate.

[hayho1]

wrong thread sorry HH

good win don't forget to donate.

 

 

 

thanks for clarifying. And of course I'd more than happy to donate for the fantastic support of the CAG team throughout this process.

[DragonFly1967]

Blimey! Where are you buying your ink?

[ericsbrother]

also state that the first hearing was abandoned due to the defendant's failings causing the costs to be increased by having to resned documents etc

so they know that it isnt printed in gold leaf on vellum

[hayho1]

also state that the first hearing was abandoned due to the defendant's failings causing the costs to be increased by having to resned documents etc

so they know that it isnt printed in gold leaf on vellum

 

 

Thanks EB. I'll amend the document and send it tracked tomorrow.

 

I rang the courts yesterday and they confirmed the case has been discontinued.