HXCPM/Gladstones vanishing Windscreen PCN claimform - Flipped Ticket - St Georges Car Park, Fitzwilliam St, Huddersfield ***Claim Dismissed***

[dx100uk]

so where is the proof the 'contract' has been paid for 2019-2020 period?

 

dx

 

[skeet23]

Hmmm. Or indeed any evidence the contract was still in force in October 2018 ?

Is it worth mentioning this in my witness statement ?

 

--skeet23

[dx100uk]

god yes 1000% 

cases have been won on that very point.

 

 

[shamrocker]

10 hours ago, skeet23 said:

Hmmm. Or indeed any evidence the contract was still in force in October 2018 ?

Is it worth mentioning this in my witness statement ?

 

--skeet23

 

If it were me, and this is open to discussion, I would simply mention in your WS that the Claimant requires authority from the landowner/occupier, and they will be expected to demonstrate this if their claim is to have any merit. Quote the relevant bits of POFA and also the operator Code of Practice and include both documents in your WS. You can then take them to task at the hearing on this point. If you give them warning that you're onto their expired agreement with the landowner, they may suddenly find a valid agreement down the back of the sofa and then introduce it as supplemental evidence.

P.S. You should probably also positively assert/mention that you don't believe this authority exists (if you haven't already), so that you're effectively pleading it as a line of defence (have you included this point in your defence), rather than it being something you've just thrown into the mixer for the hell of it. This isn't the same as pointing out that the agreement they've disclosed is invalid - just leaves it open to examination.

Edited October 4, 2019 by shamrocker

[skeet23]

Thanks for your comments ... attaching an updated WS.

I'd appreciate any further feedabck etc ... I need to file this by the end of the week.

Regards

--skeet23

skeet23_witness_statement_02.pdf

[FTMDave]

Firstly, you've obviously put a massive amount of work into your WS - well done!

I'm not an expert - they will be on tomorrow - but I pop in from time to time and would disagree with a couple of tiny things.

In (2), is it necessary to describe all the appeal procedure?  You don't harm yourself, and in a way you underline their dishonesty with kangaroo courts, but it seems a bit off the point about "de minimis".

In (3) I would retitle "Mitigation".  It isn't mitigation.  Mitigation is "I'm guilty as hell but please be lenient because of x, y, z".  Not your case at all.

In 6.6 lay it on heavily that lack of planning permission is a criminal offence, and it is impossible to enter a contract which involves a crime.  

I would move "De Minimis" up and make it point 4.  Not only is "De Minimis" a logical conclusion from what you've described in (3), it's one of your most forceful points and could get the judge to kick the idiots' claim out at that point.

However, just IMHO, what you've prepared is excellent and could be a brilliant template for anyone getting these "fluttering ticket" (copyright you!) claims in future.

Edited October 14, 2019 by FTMDave

[skeet23]

Thanks, @FTMDave for your feedback, I will take your points on board.

I was using the title "Mitigation" in an attempt to convey how reasonably I have behaved, and how stubborn and overzealous (i.e. unreasonable) the claimant and their solicitors are.

Any suggestions for a more appropriate title ?

Cheers

--skeet23

[brassnecked]

Mitigation is used as a plea for leniency, how can you mitigate something you have not done wrong?  I wouldn't use it as a term in a WS as it might give the judge ideas that you are admitting to something.

[skeet23]

Thanks, @brassnecked. Understood.

I was using "mitigation" in the way we use it in my profession ... for example, in an IT project we would try to "mitigate" risk (i.e. take actions to alleviate it or reduce its impact) ... I was unaware that in a legal context it would imply "I am guilty but please be lenient because ...".

Would "Mitigating Factors" be a better title ... as I mentioned in post #82, I am trying to convey how reasonably I have behaved, and how unreasonable the claimant's behaviour has been, and how trivial the "transgression" really is, leading to the "de minimis" conclusion.

Best Regards,

--skeet23

Edited October 15, 2019 by skeet23

[brassnecked]

Personally I would avoid the term in any legal submission, as it is construed differently in Law than it's use in IT or business, or H & S as in mitigating risk.  It is used as a means to reduce a sentence in a guilty plea, say for speeding at 35 in a 30 as you were rushing someone to hospital about to give birth etc.   A judge may see it in the legal context, not how we would understand it  in IT or business.   In a legal context someone who is found guilty or admitted guilt would use mitigating circumstances to try to get a reduced sentence.

 

I would await ericsbrother's comments as he will be able to put a good realistic perspective on it.

[skeet23]

Hi All.

I've made the suggested changes.

Posting for a final review as I need to print and mail it on Friday.

Best Regards,

--skeet23skeet23_witness_statement_03.pdf

[brassnecked]

Almost there, but again the use of Mitigation at 2.9.1 is harmful, to your case imho, others may well add thoughts

 

"2.9.1 The mitigating circumstances outlined in this complaint were dismissed out of hand, and
the Claimant insisted the PCN was [in their opinion] issued correctly and fairly."

 

The fact the ticket although flipped was seen in the pics by the operator.  You had paid, the position of the ticket is de-minmis and irrelevant a  claim of mitigation is admitting to a breach of their cockamamy alleged T & Cs, you cannot mitigate lack of guilt,  that is how a judge might see it in the legal context, and take it as admission of breaching their T & Cs.

Others may have  further thoughts. as that is my view, I wouldn't use  any reference to a mitigation in a WS.  Could do with ericsbrother's input before final edit.

[skeet23]

Evening All!

I've amended to reflect @brassnecked's comments (as per post #86, simply changed "mitigating circumstances" to "facts").

Everyone keeps suggesting @ericsbrother should give it the once-over but time is running short - I'm out of the country for a week from tomorrow morning, and my return will fall inside the 14 day period that the WS must be served - i.e. too late!

I don't want this to sound like an ultimatum, but if EB hasn't replied by mid morning tomorrow, I am going to have to send it with or without his blessing.

Best Regards,

--skeet23

 

[ericsbrother]

Ok to go through your WS starting with the m,itigation bit.

firstly dont call it that as already explained, that is when you admit wromg but are saying the claimant is owed less than they are asking for because.....

so

3.2 jusr state that the correct ticket was displayed

3.3 there is no contractual condition saying how the ticket should be displayed nor any warning that displaying it tin  the manner it was presented would be a breach of the offered terms. This meand there has been no breach of contract and thus no cause for action against the defendant.

3.4 irrelevant so  you might want to drop or reword

3.5 the operative will have known he issued the ticket so the later actions were not doen in good faith or with a reasonable belief that the temrs had been broken. the evidence offered by the parking co illustrate that subterfuge was used to ensure that the defendant was unaware of any supposed problem until the issuing of the NTK some xx days later when the attendnat could had mitigated his own actions by either speaking to the driver or even correctly issuing a notice to driver by placing it on the windscreen and thus inviting the driver to make direct representatiosn to the person issuing the notice.

 

4.1 make reference to the correct aprt of the pOFA and make it clear that the NTK is not compliant so no keeper liability created. make sure that you put a referenec number in that points to the POFA which will be in your evidence bundle

4.2 you are writinga statement so dont ask rhetorical questiosn. Just state that you believe that it would be inmpossible for the defendant to ahve paid this previosue because they knew nothing about it etc

4.3 drop this, you dotn want to antagonise the judge. If the self seal plastic bag affixed to the car was exactly the same format as a proper penalty charge notice you would ahve something to beef about but that is not the case here

4.4 your comments are not facts, drop them or reword so ti reads from your personal  experiance, ie just state that you belive the methods used in this case is in breach of the IPC CoP. You will also need a reference number for this and a copy of the IPC and BPA CoP's in your evidence bundle. The BPA is the gold standard so where there is a clash the higher spec version will reign, hence taking and referring to both. they will ahve to expalin why their system is better than the BPA version

 

5.1 dont teach your grnadmother to suck eggs, drop this

5.3 you will have to get a copy of Hansard to prove this, the IPC founders are lawyers and deliberately use the wording of the law rather than the intent so you will lose the argument unless you can show the will f parliament was different

 

6.2 irrelevant, the court isnt going to dock them 25% of their winnings for procedural impropriety, you are most likely to bat away the claim rather than get invlved in that argument and succeed.

6.3 I woul state that you havent seen sucha contract and do not believe they have the necessary permissions and thus no locus standi

 

6.5 what is active now or the day before the incident is irrelevant, did they have the necessary permissions on that day? You can state that you do not belive they did but dont guess about any other time. what is likely si the redacted contract was for a year and then automatically renewed. Now a judge decided this wasnt enough to allow a company to make contarcts witht eh public so look up that casea and refer to it ( parkingparankstesr blogspot soemwhere) again print off the case report or screen dump will do as long as it has the case reference)

6.6 if you are staing they ahve no permission for their sigange then say that you cannot find that and thus you cant enter into a criminal compact with them even if you wished to. again find trhe references ( in think it was lord Scarman's quotes)) you dotn need permission to run a car park so dont confuse the two.

6.8 repeating yourself

 

7.1 dont be flippant, you satte that this term amkes the contract a nonsense and so void under S62 of the Consumer rights Act

 

dont invite the court to do anything , as already said this is YOUR witness statement so stick to the facts and events from your perspective.

8 if you want to argue de minimis then you start of with by saying " in any case" to show that this applies if all else fails

8.1.1 is incorrect if there was a breach of a binding contract. The wording fo the signage is the contract so if it is  a lawful one then the Beavis decision will apply so dont argue that beavis is wrong. if you believe that it doesnt apply say why or drop the argument

8.2 very true but you have to quote them or thsi statement is meaningless. Show your evidence or only say this on the day rather than inwriting so people can attack you for it. If you use stuff that you cant prove yourr entire evidnec will be called into question by the other side as being unreliable and on a 50/50 case that will tilt the scales to the person who appears to be the most honest

9 this should be much higher up the page, just below the bits about bying a ticket that day

 

11 drop the sracasm and dont guess what they might or might not do. Stick to the facts from your perspective

11.2.1

give a load of cases where ELLiott V Loaks has been thrown out as irrelevant and add them to your bundle. again parking Pranksters blog will be a good source of data

11.2.2 yu have made it clear that it is about you, dont start playing grandmothers footsteps. You stated earlier on that they have failed to create a keeper liability and you can add to that that they havent made it clear under waht capacity the are suing you or what reason they had to obtain your keeper details if they are not relying on the POFA to create a keeper liabity. effectively they cant use the DVLA to go on a fishing expedition and teh "reasonable grounds" argument isnt there. Now this doesnt drop you into a dead end argument over who was driving and then having to look stupid or tell lies, it merely pints out that their actions of getting your anme and address was unlawful and so they are unlawfully continuing an action ( processing your personal data) and they know it It is unlikely thsi argument will save the day but it adds to the weight to tip the balance of probability in your favour and you never know what a judge will use to decide which straw that broke the camels back.

 

 

 

 

 

[skeet23]

Hi All,

Well - I had my day in court. No show from Gladstones.

The Judge stated that he was "aware" of this car park and the "cloakroom tickets" that they issue.

He thought some of my arguments were legally tenuous (my words, not his) but he accepted the "de minimis" argument, in that a ticket was purchased and displayed in good faith, and that in this respect, the terms and conditions had been met.

The claim was thrown out and he awarded my incidental costs plus loss of earnings.

I had chanced my arm and asked for 10 hours of "litigant in person" research costs but the Judge told me that this was not applicable to the small claims court.

Still, a win is a win!

When those nice people at Gladstones and HX send me a cheque, I will be making a donation to the CAG.

My thanks to everyone on this forum for the help and support I have received.

Best Regards

--skeet23

 

[honeybee13]

That sounds like excellent news, well done everyone.

 

HB

[AndyOrch]

Yes well done ...thread title updated.

 

Andy

[brassnecked]

Excellent, looks like one judge has come to the end of their rope with Gladdy's.

[ericsbrother]

you could ahve got 5 hours of LiP research as part of an unreasonable behaviours costs claim. slapping in a vrbal request for 10 hours was bound to fail I'm afraid.

Note to all others rweading this post, you take a letter with you with all of your costs laid out in it and submit it  to court when you beat off the claim. the judge has discretion on whetehr to award a bean or a million quid but if you dotn have anything on paper you get you bus fare at best.

 

Hpwever, well done for your tenacity in wanting to see this off and getting another result against these bandits as HX are currently going through a lot of court cases and losing them will make them wonder why they hired Gladdys to be their mouthpiece.

I am also interested to note that the judge looked at the de minimis argument more important than  some of the others but perhaps they were just running through the oprder and would have found for you on other points as well. It does show that when you pay to aoprk and get a receipt it is just that, the paying to be there is the important bit that is almost unshakeable as far as the contract goes.

Edited November 12, 2019 by ericsbrother

[skeet23]

Hi Everyone,

Well, they (gladdys) finally paid up ... and only one day after the "due" date.

Thanks again for all of your help.

I've made a donation ... keep up the good work.

Best Regards,

--skeet23.

[BankFodder]

[ericsbrother]

Well done for you.

 

Interestng that Gladdys coughed up.

This seems to reinforce the opinion  held by some that they are pursuing these claims by way of Champerty and Maintenance rather than acting solely on the clients instruction.

 

I think that stooping this low might get them barred from the golf course they use as their registered office.

It is not illegal to use someone else's address as your registered office without permission as long as you pick the post up.

 

The same applies to registering a vehicle but try insuring it for the wrong address with the wrong person's name and you will be in bother.

 

Still, this is why they are the parking worlds greatest lawyers, they know evey underhand scheme by heart but remain the model of propiety.

[lookinforinfo]

 

Interesting that your thread and the two below it have all been won by the motorists. And all three were ticketed around about this time last year.  So well done to all three of you for sticking it out despite the pressures put upon you.