SIP/Gladstones claimform - PCN Walmer street in Manchester

[june_]

Hi,

my car was parked at Walmer street in Manchester and received a PCN for exceeding time limit.

I was not the driver and so no ticket was received by myself.

 

A few months later I received a 'Final Reminder' and then a 'Letter before claim'.

I tried to get information from SIP as to what and when of the situation but they didn't want to know.

Court proceedings began and I filed a defence which I have pasted below.

 

Now on Friday I received the Claimants witness statement for the court date which is next week.

The statement is dated 5th March, not sure why it has been delivered so much after.

This statement is quite long and I have attached it to this post.

 

Any help with this would be extremely appreciated.

The previous advice I was following was quite confident that it wouldn't go to court.

I even chose arbitration, but the claimant declined.

 

Thank you

 

Defence:

 

1. I am the Defendant, and reside at .

 

2.The Defendant denies any liability whatsoever to the Claimant.

 

3. A valid ticket was purchased by the driver to cover the*estimated*duration of stay.

 

4.*If the Claimant is intending to pursue this claim against the Defendant on the basis that the Defendant is the registered keeper then the Claimant has failed to show that the conditions for recovering this charge under Schedule 4 of the Protection of Freedoms Act 2012 have been met. The Defendant disputes that any of the conditions necessary for a claim to be pursued against the keeper of the vehicle have been met.

 

5.a)*No evidence has been provided to show a valid Notice to Driver was given to the driver in accordance with Paragraph 7, Schedule 4 of the Protection of Freedoms Act 2012.

5.b)*Where a Notice to Driver was given no evidence has been provided to show that a valid Notice to Keeper was served in accordance with Paragraph 8, Schedule 4 of the Protection of Freedoms Act 2012.

5.c)*No evidence has been provided to show that the Creditor has made a valid application for keepers details in accordance with Paragraph 11, Schedule 4 of the Protection of Freedoms Act 2012.

 

6.*It is believed that the Claimant has no standing to bring this claim. The proper Claimant is the landowner. The claimant has failed to establish their legal right to bring a claim either as the landholder or the agent of the landholder. Strict proof is required that there is a chain of contracts leading from the landowner to SIP PARKING LTD. The Defendant claims that the Claimant does not have the authority to issue charges on this land in their own name and that they have no locus standi to bring this case.

 

7. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landowner can pursue a case under the tort of trespass, not this Claimant, and as the Supreme Court in the ParkingEye Ltd v Beavis [2015] UKSC 67, such a matter would be limited to the landowner themselves claiming for a nominal sum.

 

8.The Claimant might argue that the Supreme Court’s decision in Parking Eye v. Beavis is applicable. The Defendant will argue that the present case meets none of the conditions that the Supreme Court stated were required for a parking notice to be exempt from the well-established principle that penalty charges cannot be recovered. The main difference is that the Supreme Court determined that, in a retail park, there was a public interest in ensuring a turnover of visitors that justified a disincentive to overstay. There is clearly no such interest in a third party attempting to impose its conditions where there is no public interest in ensuring a turnover of visitors.

 

9.*The Defendant also disputes that the Claimant has incurred £50 solicitor cost and interest. The Particulars of Claim are spectacularly deficient and woefully inadequate to show a cause of action.

 

10.*The Claimant has not complied with the pre-court protocol. 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 defendant therefore asks that the court orders the case to be struck out for want of a detailed course of action and/or for the claim as having no prospect of success.

 

I believe the facts stated in this defence are true.

Gladstones - witstat-2.pdf

Edited March 19, 2018 by DragonFly1967
Removed spurious characters

[DragonFly1967]

That statement looks familiar.

 

https://www.consumeractiongroup.co.uk/forum/showthread.php?485027-SIP-Gladstones-claimform-overstay-PCN.-Walmer-Street-Car-Park-Manchester

[dx100uk]

what date is your hearing?

have you been to take photos yourself

as that's a genric sign?

 

and can you put the sigs etc all back on the signing of the contract please

and what happened to their pictures at the end

they are all black.

[june_]

Thank you very much for the replies.

 

Court hearing is next Tuesday.

I have not been to take any photos as this carpark is close to 100miles from where I live.

 

As mentioned, I was not the driver of the vehicle.

Should I go take some pictures myself?

I believe it is a generic sign.

 

I have removed the black boxes from the sigs and the pictures at the end.

 

Thank you

Gladstones - witstat-2a.pdf

Edited March 19, 2018 by dx100uk
spacing

[dx100uk]

https://www.consumeractiongroup.co.uk/forum/showthread.php?485027-SIP-Parking-Ltd-Gladstones.-Walmer-Street-Car-Park-Manchester-court-case

might help

 

your witness statement should have been in 7 days ago!

[dx100uk]

black boxe still on pages 6,

[june_]

black boxe still on pages 6,

 

Page 6 on the second one I uploaded, version 2a has the black boxes removed.

Thanks

[june_]

Also about the witness statement, should I submit one tomorrow?

Thanks

[ericsbrother]

google streetview pictures will suffice if you can see anything at all. If they then claim the signs at the entrance arent the contract them they have shot themselves in the foot as you werent offered a contract but an "invitation to treat".

 

Dont forget to hammer them on planning permission for their signage, copy and read the article that is llnked to the parking pranksters blog written by a lawyer and hammer the point home that no PP = criminal conduct and therefore no contract can EVER be enterered into

Edited March 20, 2018 by DragonFly1967
Spacing

[june_]

I have managed to find some pictures from another recent thread on this forum which someone above kindly linked. I have attached the pictures.

 

From what I can see there is no mention on the signs of any fine for overstaying and the signs state the 'You'. As I wasn't the driver at the time no contract was made with me so I should not be liable?

 

Also I was unable to find anything with regards to the Witness Statement I should have sent? Any help would be greatly appreciated.

 

Thank you

walmer_st_carpark.pdf

[dx100uk]

Fine?

[june_]

That statement looks familiar.

 

 

Thanks for that DragonFly1967, I have had a thorough read of that thread and it is indeed very similar to mine. However a few seemingly important messages seem to have been PM'd to the OP of that thread. Also the WS from Gladstones keeps stating the defendant should have seen the signs etc, but the defendant was NOT the driver. Any idea how I could pursue this angle further? thank you

[DragonFly1967]

Fine?

 

Calm down, she didn't mean it

[DragonFly1967]

Thanks for that DragonFly1967, I have had a thorough read of that thread and it is indeed very similar to mine. However a few seemingly important messages seem to have been PM'd to the OP of that thread. Also the WS from Gladstones keeps stating the defendant should have seen the signs etc, but the defendant was NOT the driver. Any idea how I could pursue this angle further? thank you

 

Unless you've told them that you were the driver, they have no proof at all as to whether you were or not or even if you were there.

[june_]

Sorry, by fine I meant Parking charge. The signs specifically state ' You the driver are agreeing to the following contractual terms' You agree to pay consideration in the form of a 'parking charge' in the sum of £100....

[june_]

Unless you've told them that you were the driver, they have no proof at all as to whether you were or not or even if you were there.

 

I have not told them who the driver was. I was not the driver, nor was I there at the time. Can just saying this in court hold up? Also as they have produced a NTK in the witness statement, which I don't believe I received around the date stated on it, are they still within their right to pursue me as the keeper and NOT the driver?

 

Thanks

Edited March 21, 2018 by june_

[DragonFly1967]

They'll claim they are.

 

Unfortunately, because your WS has not been submitted, this is going to be a little more difficult, although it's not impossible. You'll still get the chance to speak in court (take a WS with you, you never know, the Judge may allow it) to challenge their WS and (so called) evidence.

 

I'll take a good look through what you've received later on and give you some notes & pointers that you can use in court.

 

 

However, I have to say that because we're coming to this very late on there is more of a chance that you will lose. You should be ready for that eventuality. Hope for the best, prepare for the worst etc

[june_]

Thank you very much for all your efforts.

I am a bit confused to the witness statement requirement, I did not receive any letter from the court notifying me of such a requirement, am I just supposed to know it? That doesn't sound quite fair.

 

Also, I had to call the court up to find out what was going on with the case as I had not heard from them in months, at which point they gave me the date of the hearing. I specifically told the court clerk/phone support that I had NOT received any communication.

[DragonFly1967]

OK. You may be able to use that to your advantage. But that really is up to the Judge on the day. Only they decide what is and isn't allowed in their court.

 

It's definitely worth mentioning at the start though. As you've received nothing giving you the date (only really finding out by accident) you've had very little time to prepare. You'd be surprised at how much leeway a Judge will give you as you're there on your own against some legal suit representing SIP.

[june_]

The court clerk/phone support did state however that they had sent a letter (which I did not recieve, I was abroad at the time as well).

[june_]

They'll claim they are.

 

Unfortunately, because your WS has not been submitted, this is going to be a little more difficult, although it's not impossible. You'll still get the chance to speak in court (take a WS with you, you never know, the Judge may allow it) to challenge their WS and (so called) evidence.

 

I'll take a good look through what you've received later on and give you some notes & pointers that you can use in court.

 

 

However, I have to say that because we're coming to this very late on there is more of a chance that you will lose. You should be ready for that eventuality. Hope for the best, prepare for the worst etc

 

Also, as I was not the driver of the vehicle at that time, if I am able to find who the driver was at that time, should I take said driver to the court as a witness with me? As their signs clearly state 'You, the driver are agreeing to the following contractual terms' I am not the driver therefore I have not entered into any contract?

[june_]

I have found this on another forum:

 

- Penalty charge not incorporated into the contract - This will be applicable where the signage was not clear or was not visible to the motorist until after he parked his car. This argument is based on the case Thornton v Shoe Lane Parking, where it was held that a carpark could not enforce a disclaimer on the back of a parking ticket, since a contract had already been formed before the ticket was provided.

 

Now according to the driver, the car park entrance had a barrier that was manned where cash was given to purchase a ticket from the cashier. The contract sign was not visible until after the driver parked the car. I have checked the pictures and although there is a sign at the barrier, it is not the same as the contract sign. The map they have given in the witness statement however labels that sign as the contract sign?

[ericsbrother]

the contract is that offered upon enetring so the man on the barrier should have warned the driver of any conditions of parking.

 

Other than that the sign at the barrier would normally be the contract UNLESS it refers to other signage in which case it ws an invitation to treat. This is a bit like inviting people to come into your shop with a sign saying 50% of most items. That sign doesnt force people to buy anything when they come in ( enter into a contract after negotiation) and nor does it force the shopkeeper to sell everything at 50% off.

 

So in the cisrcumstances of a car park, you may accept the first invitation but if you dont like the conditions of the contract you are not obliged to be bound by them and nor do you have to leave!

 

As fr their WSW. it is commopn for these companies to send out computer mock ups and out of date maps so you will need you own pictures. CHALLENGE their witness over the veracity of the statement and show where it is wrong (different) as they wont axtually have the person there who wrote the WS you can then ask the judge to have tyhe WS struck out as being unreliabe with obvious differences and the lack of anyone to cross examine over this. What commonly happens then i the judge says they prefer your version rather than agreeing to removing theirs frok the record but the effect is the same

Edited March 23, 2018 by honeybee13
Paras

[june_]

Thank you so much for the advice.

I have prepared a WS, could you Kindly check I have the POFA 7.2(e) angle correct here or not?

The notice to driver being the PCN which I have attached.

Also should I challenge their WS with respect to the confusion about whom they are claiming from the keeper or the driver?

 

Hi, thank you very much for all the advice so far.

I have prepared my WS which I need to submit tomorrow.

Could you kindly see if this will be sufficient?

 

Witness Statement

 

I am ----- defendant in this matter and deny liability for the entirety of the claim.

 

1. This matter relates to a manned barrier entry pay point car park with pay & display and on the material day, 10.1.2017, The driver bought a ticket for 2 hours from the man at the barrier.

 

2. The driver purchased a valid ticket to cover the estimated duration of stay from the man at the manned barrier pay point, prior to entry to the carpark.

 

3. The man at the barrier pay point did not state any conditions of parking and only asked how many hours the driver wanted to stay and then produced a ticket upon payment.

 

4. Exhibit 1, shows a photo of the car park entrance, the barrier, the pay point sign and a sign displaying the cost of parking. No contractual sign stating terms and conditions can be seen, furthermore the sign the claimant is referring to is not visible anywhere prior to entering the car park at the barrier.

 

5. Even if the signs at the entrance pointed to other signs inside the car park, it would be an invitation to treat. For example; shop sign saying 50% off most items. Such a sign does not force people to buy anything when they come in nor does it force the shop keeper to sell everything at 50% off. In the case of this car park, the driver may accept the first invitation but if the driver does not like the terms of the contract once entered the car park, the driver is not obliged to be bound by them nor does the driver have to leave.

 

6. Exhibit 2, shows the sign the claimant is referring to and is well inside the car park. The sign ONLY refers to the driver of the vehicle. I was NOT the driver of the vehicle and therefore did not enter into any contract with the claimant.

 

7. The claimant refers to POFA 2012 allowing the creditor to recover any unpaid parking charges from the keeper of the vehicle. However, POFA 2012 paragraph 7.2(e) states “Identify the creditor and specify how and to whom payment be made.” Exhibit 3 which serves as the notice to driver does not identify who the creditor is at all. Therefore, the claimant has not met the conditions of POFA 2012.

 

8. In VCS vs Sarah Quayle, Deputy District Judge Gourley states:

“For me to find that there has been a breach of contract I have to find that the defendant, that is, Miss Quayle now Miss Wilson, entered into that contract by virtue of the fact that she was the driver at the time that the parking charge notice was issued and at the time that that car was parked in the Princes Dock area on 28th December 2014.”

 

I was not the driver at the time and did not enter into a contract with the claimant. Exhibit 4 (Vehicle insurance papers) show two additional named drivers who could have been the driver of the vehicle.

 

Deputy District Judge Gourley further states:

“Therefore it strikes me that there is a simple question that the court has to ask itself. Is there evidence produced by the claimant to show that Miss Quayle, and I will call her Miss Quayle for the remainder of the judgment, is there evidence to show from the claimant that Miss Quayle was on a balance of probabilities the driver on 28th December 2014 when the car was parked in the Princes Dock area? The claimant has produced absolutely no evidence that the defendant was the driver and simply says that they are entitled to presume that the defendant was the driver because effectively she was the registered keeper at the time.”

 

The claimant has not provided any evidence to show whether I was the driver at the time.

Furthermore, Deputy District Judge Gourley further states:

 

“I disagree. I disagree particularly in light of the evidence that has been produced by Miss Quayle showing that there are two other people who are on the contract of insurance for this car. She is not the owner of the car albeit she is the registered keeper. The owner of the car is her partner, Mr Green, who also appears on the contract of insurance as one of the named drivers. She says in her witness statement that she was not the driver, but even if I ignore everything that Miss Quayle has produced and look solely at the evidence that is produced by the claimant, the claimant comes nowhere close to satisfying me on a balance of probabilities that the defendant was the driver at the time. They may have had a claim had they complied with the requirements of the Protection of Freedoms Act, but they have not and they cannot pursue Miss Quayle on the basis of a breach of contract in the absence of any evidence at all that she was actually the driver at the time of the incurrence of the parking charge notice.”

 

The defendant rejects any liability, rejects having ever entered into a contract with the claimant, was not the driver of the vehicle at the time and the claimant has not met the conditions of POFA 2012.

 

I believe that the facts stated in this witness statement are true.

 

Evidence is attached

PCN.pdf

[ericsbrother]

on point 8 do NOT offer any help to the claimants, I can drive your car with your permissioon as I am insured for any vehicle. A plice officer can drive your car under crown immunity so I would advise dropping that bit and just leave it as I was not th driver at the time