Euro/gladstones PCN claimform - Chamberlain Buildings ***Claim Dismissed***

[ericsbrother]

we will guide you through all of this tell us the details of dates, times place etc and what paperwork you have received and when and what if any you have sent to them. saying nothing to them until this point may actually work out in your favour.

 

you also say DRIVER received claim form, explain as they send it to keeper unless driver has been named.

[ericsbrother]

You file your defence with the court.

copy to Gladstones is recommended as good procedure but not compulsory if you are filing online.

 

You acknowledge the claim within 12 days of ts receipt and then get an outline of your defence in within a further 14 days of the cut off for acknowledgement within 4 weeks fo the date the claim form fell on your doorstep.

 

the outline defence is OK for the first point, the second is irrelevant as it isnt a regulated activity unlike council parking  officers or door security. I would state that no lawful contract was offered at the time so there is no cause for action in this matter.

 

We can help you add meat to the bones of that argument when you have to do your witness statement but in the meanwhile pictures of the entrance to the land from the public highway and pictures of the signage ther will aid us enormously as the chances are they have made mistakes in the offer so you cant have been deemed to have accepted.

 

Gladstoes will have used a generic roboclaim layout so it wont have any detail and that helps you as you can rubbish it later as well. Chances are once you file a full defence they will drop the cvlai because they wont want to spend money on somehting where the chances of winning are slim.

 

they have lied about the amount of the claim (added costs that aren't allowed under law) and they use that uplift to do things on the cheap so funding a day out isnt in their plans

[ericsbrother]

yep,

a contract that breaks the law isnt a contract.

Unfair under S62 of the Consumer rights Act as well.

 

You will need pictures of everything,

in detail and also how it appears from the drivers point of view.

 

if ther are no signs at the entrance of the car park then we want pictures of the entrance to show that there are no signs.

that will be more damning than the detail of some small notice halfway up a back wall

 

now for details of the letters ect.

We need exact times and dates for the event,

dates for when they issued the NTK and

when it arrived as these are prescribed by law.

 

What do you have as far as what they sent out. If you dont have the original NTK (first demand) then you will need to ask for sight of it as part of the CPR 31.14 request

 

as daughter is defendant it must be her that signs off everything even if you are doing the legwork.

you can be her lay rep on the day if it gets that far, probably wont

[ericsbrother]

If you have read the POFA you will know that the £60 "contractual sum" or unicorn food tax as we call it isnt applicable but they never let the truth get in the way of thweir activities.

 

When it comes to writing a witness statement you will make this point ( not the crookedness, just the unlawful nature of the demand) and that way it makes the judge look more carefully at what else they are claiming in their WS.

 

The Particulars of Claim will be vague and barely coherent, often getting the capacity of the defendant wrong  ( driver/keeper whe they are not interchangeable) so best to go into that in detail at the beginning of the WS as it may be enough for a halt to be called on the proceedings

 

in truth many judges dotn know that if the parking co doenst follow the POFA to the letter then they get nothing according to its conditions so you will need to ram that home and make a copy of the POFA part of your bundle so the flaws in their NTK and procedures can be pointed out.

 

Now is a good time to start reading up on things like this rather than at the last minute

[ericsbrother]

there is a box that you can fill with text if you use the onlibe submission but we will need to see the exact wording of the POC before you use this approach as it is just a part of your defence so that is why I said about using it in your WITNESS STATEMENT that comes much later on in the proceedings.

You can also send a letter in with the allocation questionnaire rubbishing the clai and asking for it to be summarity struck out under CPR 3.4. It rarely happens but often gets a judge to force them to show some substance by a certain date as a general case management order

[ericsbrother]

post them up asap, the more we have to go on the better the wording fo teh defence and that may well make them drop the claim earlier to save them money once they know they are rumbled

[ericsbrother]

exact wording of the Particular of Claim will also be helpful to rubbish it as suggested but that rarely wins a case even though it should.

 

The contrcat and whether it was actually properly offered and accepted is the main point of this

 

if you cant see the signs from the public highway we want pictures of the entrance to the land that shows you cant see anything so cant consider and accept the offer.

 

Multiple signs around the place dont count for much if there is no warning at the entrance

[ericsbrother]

I need to see that red lettered sign in close up and we need to see the site from the perspective of the drivers position as if turning in from the public highway. Your pictures are all disjointed so not easy to appreciate their meaning.

If this means another visit then do it, all worth it in the long run

 

the sign I refer to has terms on it that may well trump the other signs and there is no mention of paying anyone £100 for anything from what I can see but I cant read it properly or see who is offering tose temrs.

If it is a different company even better.

 

You will need to read up on "invitations to treat" and especially how they apply to parking signs as many a case has been won because the first sign you see says "terms apply" and then don't include the terms but rely on something elsewhere and that appears to be the case here.

 

Now read the Parking Prankster's blogspot and learn.

Also copy all fo the cases that are relevant as you will be using them in your evidence

[ericsbrother]

 

Ok signage first- not only is it likely to be invitation to treat ( see other signs etc) it also prohibits other users so prohibitive for others as well. That means they are damned under 2 different sets of laws and as already said if it was a contract then there is no mention of anyone paying ECP a bean so they are triple damned by their own words..

 

Now as for photography.

The problem here is who is taking the pictures and whet else do they do with that phone.

Is it their own phone and they upload the pictures to ECP somehow?

if so who are they because if they arent an employee of ECP directly they will need their own ICO registration for the data processing.

 

Not wearing a badge  or uniform is irrelevant but if you wrestled them to the ground and claimed that you were suffering from fear or alarm of their likely assault ( doesnt have to be physical contact) they can get done for that  and a free kicking to  remind them you were frightened.

 

Now, I am not suggesting that anyone abuses the law but as it is written if you THOUGHT it was a firearm as far as the law goes they are carrying a firearm or an imitation firearm and can you imagine their face when surrounded by armed coppers because of their suspicious behaviour?  possession with intent to cause fear etc applies to whatever the object turns out to be

 

check the ICO register for data processors and see what they have said they do to collect and process data. If they havent ticked the box saying random blokes snapping with a phone then they are in breach of their registration and apart from a complaint to the ICO it should render any evidence gathered by such methods as inadmissable. This isnt the same for people who happen to film their neighbours and use the footage, these people are doing it for a living

 

Lastly, you could tell their solicitors you will settle for a flat £500 for the breach of the GDPR as this is much less than the cost of going to court, losing a vexatious and pointless claim and then having to pay costs as well as a claim for the same amount as per VCS v Phillip and you wont have to even mention the perjury

[ericsbrother]

I have done a bit more reading about situations like random people with mobile phones taking pictures.

Under the GDPR they need YOUR permission to do so but this could be mitigated by having a sign saying that they employ people to go round taking pictures for a specific purpose and that you have a right to have your personal data deleted upon demand or some similar phrase.

 

We can see that they dont and even if they did it is unlikley that they have covered the actual use they are putting the images to because individual consent wouild be needed as the action they a photographing isnt a general filming of all customers and it isnt for crime detection or prevention.

 

Now these bandits havent got your permission to use the images they have taken, havent  asked you personally or by way of a PROPERLY worded notice so they are in trouble.

 

My approach to this is to let the landowner know that you are intending to use the new arbitration service that deals with data protection breaches that can  award damages of up to £25000 and that THEY are liable under the GDPR, not just the parking co.

 

there is a 2 page article on this in the "Daily Mail" today that is a good starter about this kind of behaviour.

 

Lay it on with a trowel  and dont let the matter rest when they say it is the parking co's responsibility, it isnt.

 

If you get a complaint running wit the ICO about this now you will be able to beat them with their own stick when it comes to your hearing (if they are daft enough to want to go that far)

[ericsbrother]

simple defence based on observations about signage already made.

there was no offer of a contract via the signage at the entrance to the site so there can be no cause for action  because it is not possible to breach terms that do not exist.

 

now all of the rest of the arguments about invitations to treat and the meaning fo the signs they are relying on to create a contractual condition can be added to  your WS along with examples of other cases where the parking co has failed miserably for the same thing. they willargue that the other sigsn are the contract and they are right, it is just you dont ahve to accept their terms because you were invited in to aprk by the first sign that doesnt mention any charges etc.

 

The example I give about invitations to treat is you are walking down the street an a clothes shop has a sign outside saying 50% off most items. Yoy go in, ask to try on a pair of trousers and are told they are not in the sale. now you cant force the shopkeeper to sell you the trousers for %0% off and they cant force you to by them just because you tried them on and nor can they charge you for standing in their shop if you dotn buy anything. the sign aoutside is an invitation to treat, to ake firther enquiries, to try stuff on and then negotiate. The contract is only formed when you say "i'll have those" and PAY for the item. Until that pint it is all up for offer and counter-offer.

 

I the case of the parking signs, you can read them and say to yourself "I dont like those conditions so I wont be bound by them". It is only if you agree to them that they mean anything and that usually means shoving money in a ticket machine for a car park before you can be truly said to accept the terms and if the blurb on the ticket amchine is different to the signs then the ticket amchine terms rule.

[ericsbrother]

uIf you add somehting do so by saying "i believe that" or "I do not belive that" so youdont lose your credibility as a witness by asserting somehting as being true if it later proves not to be so.

 

for example, we always say that people write " the defendant does not belive the claimant has the requesitve planning permission" because they have checked with the council and know it hasnt been granted but if they wrote "the claimant doesnt have plaaning permission" and the judge doesnt understand the differences between the differenct sections of the advertising hoardings regs or that planning was obtained by the landowner then nothing else in that WS will be taken as being reliable.

 

The first example shows the truth, yo dont believe somehting is so and the judge will be asking the claimant about that or you will get to cross examine on that point.

 

now the thing about the use of mobiles is partially down to the wording of the signage as well as their permissions for obtaining different sorts of personal data so if you wnat to mention it you had better be damned sure that it wasnt flagged up in the parking contract and their ICO registration limits them to certain sorts of acquisition and processing of dat, for example number plates and not in your face images of shoppers.

 

It is somehting that is better put to the ICO initially and then take their determinations to court with you if possible otherwise it is the " I do not believe they have the authority under the GDPR to gather and process this sort of personal data (and specify what quoting the GDPR)" It may be that s170 of the 2018 DPA applies and they have committed a criminal offence and that in itself voids any contract that could otherwise apply.

 

the bod with the camera wont be the data controller but in an example we see here quite often, where a resident or shop assistnat is paid by the parking co for sending them pictures of miscreant parkers so they can be sent a ticket it is very likely that would apply

[ericsbrother]

look this is early days so just the outline of what your defence is

- ie no contract, or no contract because..... and in any case....(POFA not created keeper liability for example)

 

If they have got the procedures wrong you can rubbish them and ask for the case to be dismissed under CPR 3.4 or others

 

the common thing that happens there is they are ordered to resubmit or risk getting it struck out

 

that will vary from court to court as some court managers use their powers and others dont, some put it in front of a judge and some just file it until the actual hearing and the judge reads it with the other paperwork the night before.

[ericsbrother]

If you want to use a specific court you put that on the form otherwise it will just default to your local county court.

 

Now many people who work in London opt for a court there so they only lose half a days pay to attend.

 

There have been cases where those in the armed forces have chosen a court that is easy for them to fly back from abroad to.

 

My favourite of that was a squaddie getting over £4k for travel as the judge decided that he did fly in for the hearing and visiting relatives at the same time didnt mitigate the costs of travel because it was not of his choosing to be sued by a cowboy parking co.

 

The idiots should read the correspondence  address properly and if it says BFPO then they should know that it will cost them dearly when they lose. Got a holiday home in Spain?

 

use that address for all court documents and demand a hearing in the local court under English law

[ericsbrother]

it will be the court nearest to where her address is for the service of documents so if her car is registered at your address then that is where it will be.

 

When it comes to getting the exchange of bundles sorted out she can put in a letter for her costs explaining that she resides in Manilla and wants the air fare reimbursed ( regardless of when she flies back to the UK and what she does in the meanwhile- I wish I could poit you to the appeal decision about somone who had to fly back to NI and the parking co lost but appealed the costs order and lost that as well)

[ericsbrother]

10 minute rule is set by BPA code of practice and thus IPC members have to follow suit UNLESS they can show that they have a better system.

 

Stop reading things into this that arent there, it is universal so doesnt matter what the alleged breach is.

This came about as the result of a court case so  no argument against it will stand up in court.

 

The parking co's problem is that they arent saying the breach was a particular thing so they cant later say that you also did this and did that so you still owe us money when it becomes apparent that they are onto a loser with their cause for action written in their claim.

 

they could have said at the time that you breached 3 conditions so owe £100 for each breach but they didnt.

 

Address what they are saying and have all of the other points documented in case but dont offer them a reason for trying to stretch this out to include other points.

 

You have them by the nadgers over the filming of passengers or passers by and their own evidence on timing kills the substance of their claim, they cnat say an event caused you to be liable at a particular time whe you werent even there.

 

If a council issued you a parking ticket for parking on a single yellow line at 12.05 when the limited time started at 12.00 but you had left at 11.46 you would have to apy and the argument that we thought you were going to stop longer so it would have been a breach woldnt wash so this claim is equally flawed.

[ericsbrother]

I know but the 10 minute grace period still applies cos you have to park up and read the signge to know this so they cant say that it is only for overstaying, leaving site, having round wheels  or whatever, it is universal.

 

I am saying dont allow yourself to get into a slippery slope argument or even acknowledge an alternative point of view on this,

they have said you breached a specific condition and you didnt because of the grace rule ( and all of the other arguments)

 

You dont allow them to add other arguments that may cover other things you arent accused of.

[ericsbrother]

you should look up the rules for having a lay rep and get the defendant to send in a letter with the court bundle to state that they will be using one.

 

It isnt compulsory but will make life a damned sight easier and avoid upsetting the judge. Quote the relevant regs, they are easily found.

 

Note that this is different to a Mckenzie friend.

 

No need to tell the other side of the intent t use a lay rep, not thier business.

 

As for the Witness Statement, this has to be sent to court and copy to claimant a fortnight before the hearing unless instructed otherwise. If they failt to get theirs in defendants hands on time then a complaint to court by email, fax or whatever.

 

When you get their bundle post it up so we can pick throught it and allow you to write a rebuttal if there is time

[ericsbrother]

so the sign they have invented actually damages their claim more than the real ones. It says that you cant park and that you need to refer to terms that are not available so breaching S62 of the consumer Rights Act and that means you may reject the entire contract.

[ericsbrother]

your ( daughters)witness statement will fall into 2 parts, first of all her version of the story and secondly the evidence to support that and rebut their claims.

 

Fior the first aprt you need to consider what to say about what actions were taken on that day and whether it is agreed that the signage was seen and accepted as a contract and then why it wasnt breached. So this is where you can say about what was visible at the entrance to the land and whether they were obvious from a motorists viewpoint and then go into the wording of the signs and why no contract was offered or formed.

 

If you want to use the POFA as your friend you say whay they havent followed the protocols and what that menas and always use other examples from court cases.

 

You then rubbish the substance of their claima nd especially the lazy POC where they ahve decided that keeper/driver are the same when they arent and how the POFA makes it clear that the maximum amount that can be claimed is the amount on the NTK so it is clear that the claim is against the driver by adding all the other supposed contractual costs and therefore proof of the defendant being the driver be provided or the claim be limited to the NTK amount (less 25% for abuse of the Civil Procedure- need to lookup where this penalty applies)

 

In the second part you have maps and plans, photographs and copies of the POFA and all of the cases you refer to. As you know the Parking Parnksters website and blog pages have a lot of cases to use as precedents and others that are persuasive. you must know the difference between the two.

[ericsbrother]

yes, your piccies are to be referred to in your WSW and also to show theirs are wrong so they cnat be trusted to tell the truth elsewhere ( worded carefully  in your version of course)

[ericsbrother]

read up on rights of lay reps, my local court staff confuse them with Mckenzie friends, which are different. Lay reps have to be that so yu cant use a solicitor as a lay rep but you can use a professor of law if you know one.

take a copy of the ruls with you as well as telling the court that you will be attending in that capacity with your daughter so the judge isnt surprised by 2 people asking or answering.

can you post up their WS so we can try and pick holes in it, there is nothing attached to your earlier post

[ericsbrother]

they have to try and get you to quit or their client wont be happy they have been misled by the world greatest solicitors

[ericsbrother]

you can still ask for an unreasonable behaviour cost order unless judge said that you cnat at the time.

It is only a letter that needs to be written by you and signed by her so not exactly a Spanish inquisition

[ericsbrother]

thenm do so very quickly.

CPR 27.14.2(g) is the usual route but you will normally not stand a chance if the submission is more than a fortnight after the event as the judge will ahve written everything up. Within a week normally gets it considered though. Nothing to loseapart from a postage stamp and all to win