esp/gladstones MNPR PCN Claimform - spinningfields estate manchester - ***Claim Struck Out***

[FTMDave]

Don't worry, you have ample time to defend this.

 

The invoice - that's what it is, not a fine, a private company doesn't have the power to fine anyone - is from October last year.  Have you moved and not updated the vehicle log book with the DVLA?  Could the correspondence have gone elsewhere?

Edited April 19, 2023 by FTMDave
Typo

[FTMDave]

You need to complete the DQ.  Details are on all claim form threads here.

[FTMDave]

If you have proof of posting for the SAR, you can sue them for refusing to comply.

Here is a thread by someone who recently successfully did so  https://www.consumeractiongroup.co.uk/topic/452147-loc-to-ncp-for-failure-to-supply-sar-paid-in-full/#comments

Have a think about if this is a road you want to go down.

[FTMDave]

First and foremost, get the N180 sent off as per dx's instructions.  This is the priority.  You can e-mail the court their copy (click on "return receipt", send Gladstones' off by 2nd class post and get a free Certificate of Posting from the post office.

Once that's done report back, because I'm afraid you'll be going back to the post office in a few days to send a Letter of Claim.

 

[FTMDave]

Well you have none of the original paperwork, Gladstones have ignored your CPR request and the fleecers have refused to respect your SAR, which means you'll be going into court blind unless you can get your hands on the original PCN.

1.  So have a look at post 25 here  https://www.consumeractiongroup.co.uk/topic/452147-loc-to-ncp-for-failure-to-supply-sar-paid-in-full/#comments  Adapt that according to your details and make sure you include the PCN number.  Send off to ES Parking Enforcement Ltd tomorrow and make sure you get a free Certificate of Posting from your much-visited local post office.

2.  As the point of all this is not really to sue them but to get get your hands on the paperwork, I suggest this letter for Gladstones -

Dear Will & John,

Re: claimform no XXXXX, PCN no XXXXX

I enclose a copy of a letter I have today sent to your client, ES Parking Enforcement Ltd.

I received no paperwork regarding this matter from your client prior to the claimform and your client has breached their statutory duty by failing to satisfy my Subject Access Request made on XX April for which I have proof of posting.

I suggest you protect your client's interests by giving them a boot up the backside and telling them to respect my SAR sharpish, otherwise one of the parties involved here will be getting a thrashing in court, and it ain't me.

Yours XXXXX

Send that off tomorrow, enclosing a copy of the letter to ESP, usual 2nd class stamp, usual free CoP.

Hopefully that will get you your paperwork and we can start building up evidence to bat off their claim.

 

 

[FTMDave]

They have 14 days in which to answer.  So sit tight for now.

[FTMDave]

What date was on your letter to them?

[FTMDave]

No confusion.

You did exactly the right thing with the letters.

Sorry to keep bombarding you with questions, but there is a reason.  You have got Certificates of Posting for the SAR, the LoC and the letter to Gladstones, right?

[FTMDave]

Well the 14 days are up tomorrow and this not having the paperwork is going to put you at a massive disadvantage when preparing for the court case.

Can you please confirm about the Certificates of Posting?

[FTMDave]

Sorry to hear about hospital.

I honestly thought involving Gladstones would produce the SAR, but I was wrong.

Not knowing what the hell you're accused of is going to put you in a dire position in the court hearing, unless we can find a solution.

Given that the fleecers will lie and say they never received a SAR request, finding the three CoPs is essential.  Please come back here when you've dug them out.

 

 

 

[FTMDave]

OK, a lot to read through.

Well done for running through a brick wall and eventually getting these idiots to send the paperwork.

It's not really important, but if you're up for revenge you could report them to the ICO for ignoring your SAR, and only jumping into action when you threatened to sue them in the county court.  When they eventually replied there was proof that they had received your communications and simply ignored them.

It is however concerning that you couldn't immediately find the CoPs.  You're in legal dispute with nasty pieces of work and paperwork can't go missing again, otherwise these vile fleecers will take full advantage.

So - is it definitely your car on the Spinningfields Estate?

Is the address on their letters your real address?

I think they have ballsed up the timings to create keeper liability under POFA, but others more knowledgeable will confirm.  This is not an ANPR caputure.  They refer to MNPR.  About 20 minutes after the original photos it looks like some creep has walked up to your car and taken a photo.

Their own photos show their signage to be pants too.

[FTMDave]

You've sent off the N180/DQ, and got the evidence from the fleecers, so the immediate tasks are done.

Ar some point the case will be allocated to your local court and they will inform you.

The best thing to do is to use this "down time" to read similar threads so you get up to speed with the court process.

[FTMDave]

We've already seen the PCN I believe, and the reminder letters aren't important.

The landowner agreement could be very, very useful.  Please upload it.

[FTMDave]

Have a look at the attachment in post 110 here  https://www.consumeractiongroup.co.uk/topic/421775-vcs-spycar-pcn-paploc-now-claimform-no-stopping-east-midlands-airport/page/5/#comments

If it's not in post 110 it'll be a couple of posts above or below, sometimes the post count goes wonky.

Look at how Alaska101 sets out the introduction and the conclusion.  And how the clear headings show the judge instantly which legal arguments are being used.  

Alaska101's case is very different from yours, so I'm not saying to copy the legal arguments.  It's more the style I'm on about.

[FTMDave]

I've just read through your thread from the start.

Your WS sections need to be -

SEQUENCE OF EVENTS - you received a claim form out of the blue, you had never received any earlier letters, you SAR'd ESP but they did not respect their statutory duty, you had to threaten to sue them with a LoC and by writing to their solicitors before they finally sent you a copy of the invoice in dispute.

INSUFFICIENT SIGNAGE - even ESP's own photo shows the signage to be pants.

CONSIDERATION & GRACE PERIODS  - The government and trade association Codes of Practice entitle you to five minutes to read the signs and ten minutes to leave the car park, 15 minutes in total.  ESP's contract with the landowner goes further and allows 20 minutes.  There is no proof you overstayed these times.

MITIGATION - it seems some creep took a close up photo of the car, they could easily have asked you to move, thereby mitigating the matter and indeed stopping vehicles from parking in a non-parking area, instead they did none of this.

PROHIBITION - no contract could be formed as it is a no-stopping area.

ILLEGAL SIGNAGE - they have no planning permission for their signs (I assume you've checked this) and indeed refused to send PP when replying to your CPR request.

LOCUS STANDI - the contract with the landowner that they have sent is heavily redacted and does not entitle them to bring court claims in their own name (you will have to read the contract and note bits that are wrong with it).

INTEREST - it is unreasonable for the claimant to claim 10.25% interest.

DOUBLE RECOVERY - the Unicorn Food Tax they have made up (this is essentially the same for every claim so you can use Alaska101's section).

Edited December 20, 2023 by FTMDave
Extra info added

[FTMDave]

2 hours ago, lookinforinfo said:

Not sure why they charge 10.25 % as opposed to 8% for their interest rate on the Claim form

Well spotted LFI.

Added to the skeleton WS above.

Edited December 17, 2023 by FTMDave
Extra info added

[FTMDave]

Well it's good you've got their WS first.  I'll have a look through it this evening.  I see the deadline for yours is 8 January.

[FTMDave]

I'm starting to read through it now.  Two immediate things.

You've left the claim number and Gladstone's reference number showing.  Please redact these.

Gladstones also says the Claimant will not be appearing at the hearing.  You are not out of the woods yet as Gladdys has previous for lying about these matters, but if their side really does not turn up then you will win.

[FTMDave]

There are points that jump to mind; such as them conveniently not mentioning the 20-minute grace period, talking about the benefits of remaining on site in the car park (they are none, it is a no-stopping area!), the forming of a contract when there cannot be one due to prohibition, etc

However, it would be far easier to undermine their points if they were added to an already-existing Witness Statement you'd prepared.  That's what you need to do now.  Use the points I set out on the previous page.  Just use your own words, there's no need for legalese.  Please post up a first draft when you can and we will suggest how to tweak it.

MORE REDACTION NEEDED - your real name and the claim number are on page 16 of the PDF (as well as page 1 as already mentioned).

[FTMDave]

As a first draft that is absolutely flipping magnificent. Well done.

It would probably be enough to win the case as it is.

However, if work can be done to improve it, so much the better.  I'll have a go this afternoon at expanding certain parts and putting some bits in a more logical order.  But the content is great.

OK, I've done about an hour's work on the WS, also adding bits relevant to Gladdy's WS.

A question for the regulars.  Are we absolutely sure that in a parking attendant case, with no ANPR, no windscreen ticket, no disappearing windscreen ticket, that the 29-56 day rule applies?  I remember @BazzaS setting me right about this regarding one case, saying that if there is no windscreen ticket then the 14-day rule applies.

Also my knowledge of the law on Prohibition is ropey to say the least.  Can someone who understands Prohibition better than me - not difficult! - please tidy that part up.  EDIT  Have done some extra work on this bit myself after looking at previous WSs.

 

Claim Number: xxxxxxxx

In the County Court at Manchester

BETWEEN:

E S Parking Enforcement Ltd (Claimant)

v

XXXXXXXXXX (Defendant)

Witness Statement of XXXXXXXXXX

INTRODUCTION

1. I, [Your Name], am the Defendant in this claim. As a self-represented litigant with no formal legal training, I affirm that everything stated in the following statement is true to the best of my knowledge and belief.

2. In my statement, I will make references to the exhibits found within the evidence section provided in this bundle, specifically citing the relevant page and reference numbers as necessary.

3. I am the registered keeper of the vehicle (Registration) in question in this case,

SEQUENCE OF EVENTS

4. On Saturday, October 22nd, 2022, at 21:40, the driver, working as a private hire driver, halted at Spinningfields Estate in Manchester. This particular area is renowned for being a favoured site for picking up pre-booked customers. The driver remained at the location for a duration without knowingly violating any regulations.  They did not notice any signs

5. A Parking Charge Notice (PCN) was purportedly issued to me; however, I emphatically confirm that I did not receive any correspondence at my mailing address, which is the most up-to-date information registered with the DVLA.

6. ES Parking has failed to present any proof of posting indicating that they sent any communications to me.

7. I became aware of the issuance of a PCN against me only when I received a court claim notification dated 13th April 2023, alleging that I had not acknowledged the invoice or made any payment whatsoever. Once again, I can affirm that no correspondences were sent to me, which is why I was unable to file an appeal against the invoice since I did not receive any notice via Royal Mail.

8. I received a claim form out of the blue, without having received any prior letters or notifications regarding the matter.

9. In response, I decided to exercise my right and submitted a Subject Access Request (SAR) to ESP (ES Parking Ltd) in order to obtain relevant information. Unfortunately, ESP did not fulfil their statutory duty and failed to provide the requested information within the specified timeframe. As a result, I found it necessary to take further action by threatening to sue them with a Letter of Claim and reaching out to their solicitors. It was only after these steps were taken that ESP finally sent me a copy of the disputed invoice, over two months after my SAR.

RIGHT OF APPEAL

10. I never received a PCN and thus was refused the right to appeal in contravention of the Claimant's trade association's Code of Practice (Exhibit XXX).

INSUFFICIENT SIGNAGE

11.  The Claimant's own SAR response shows an issue with insufficient signage.  There is a photograph of just one sign, in the stratosphere, with only a single word ATTENTION legible (Exhibit XXX), even though the photograph was presumably taken close-up at the time by the Claimant's parking attendant.  The signage is clearly insufficient.  The driver simply did not see any signs.

12.  Para 12 Of the Claimant's Witness Statement makes it clear that they rely on signage to form a contract.  If the signage is hidden or illegible, as in this case, no contract can be formed.

13.  Even had the driver seen the sign - they did not - they would have seen "liable for a parking charge of 100" (Claimant's Exhibit GS 2).  100 what?  Pennies?  Pesos?  Dollars?  Euros?  Yen?  Bananas?  Peanuts?  Elephants?  The signage, even if read, is confusing and not capable of creating the contract that the Claimant says it does.

14.  The Claimant is a member of their Accredited Trade Association, IPC and are required to abide by the Code Of Practice to allow them to obtain keeper information under KADOE (Claimant's WS, paras 6 & 7).

IPC Code of Practice Extract

Schedule 2:

Entrance Signs
"Where a Car Park has a defined entrance, Operators should display entrance signs.

Entrance Signs should:
a) make it clear that the Motorist is entering onto private land;
b) refer the Motorist to the signs within the Car Park which display the full terms and conditions.

Signs should, where practicable, be placed at the entrance to a Car Park."

There is NO entrance signage at any entry point to the Spinningfields Estate. Indeed it is impossible to determine when / where a driver is actually entering private land.

15. According to the contract between the landowner and the Claimant (Exhibit XXX) it explicitly states that a sign should be placed in front of the parked car. I find it noteworthy that the contract contains an interesting clause, asserting that the entrance sign does not hold legal significance. Instead, its purpose is to inform motorists about the fact that they are entering private land with specific conditions outlined within the car park. It is crucial to recognize that this sign should be regarded as an integral part of the contractual agreement between all parties involved.

CONSIDERATION & GRACE PERIODS

16. According to the government and trade association Codes of Practice, the driver was entitled to a five-minute consideration period to read the signs and a 10-minute grace period to leave the car park, totalling 15 minutes.

17.  Additionally, ESP's contract with the landowner (Exhibit XXX) provides an extended grace period of 20 minutes. There is no evidence to suggest that the driver exceeded these allotted time periods.

LOADING IS NOT PARKING

18. In the case of Jopson V Homeguard, Claim No. 9GF0A9E, 29.06.2016, also a residential parking case, Judge Harris makes persuasive observations on what constitutes "parking". "The concept of parking, as opposed to stopping, is that of leaving a car for some duration of time beyond that needed for getting in or out of it, loading or unloading it." Judge Harris goes on to list examples. "A milkman leaving his float to carry bottles to the flat would not be “parked”. Nor would a postman delivering letters, a wine merchant delivering a case of wine."

19. In this case the driver was there to collect a paying passenger and never left the vehicle even for a moment.

MITIGATION

20. Regarding mitigation, it appears that the Claimant's parking attendant took a close-up photo of my car without making any effort to approach the driver and request that they move (Exhibit XXX).  Had they taken the initiative to communicate with the driver it could have mitigated the situation and prevented vehicles from parking in a non-parking area. They did not take any such action.

PROHIBITION

21.  In their copy & paste Witness Statement para 14 no doubt copied from another case, the Claimant's solicitor refers to "the benefits offered from using the site".  There are no benefits.  It is a no stopping area.

22. In the case PCM vs Bull, Claim No. B4GF26K6, where the Defendant was issued parking tickets for parking on private roads with signage stating “No parking at any time”, District Judge Glen in his final statement mentioned that: “the notice was prohibitive and didn’t communicate any offer of parking and that landowners may have claim in trespass, but that was not under consideration”.  

23. I question the existence of the alleged contract which the Claimant claims to have been breached by “stopping in a zone where stopping is prohibited”. The signage is wholly prohibitive and makes no offer of consideration. In the absence of consideration, no contract exists.

KEEPER LIABILITY

24. In the PCN in question there is no mention of the driver becoming liable for the charge if payment is not made within 28 days.  The PCN therefore does not comply with the provisions of Schedule 4 of the Protection of Freedoms Act 2012.  Consequently the keeper cannot be held responsible for the invoice.

25. However, on the subsequent page of the PCN, it states that the transfer of liability from the driver to the keeper will occur by November 25th, 2022, if the charge remains unpaid. As a result, it can be inferred that the PCN fails to comply with the Act, rendering the keeper not liable for the charge. Only the driver would be held responsible in this case. 

ILLEGAL SIGNAGE

26.  On 26 October the Claimant's solicitor e-mailed me in response to my request to view documentation under CPR 31.14.  They readily provided me with the original invoice, reminder letter, Letter of Claim as well as their client's contract with the landowner.  They refused to provide me with proof of planning permission for the signage. 

27.  I believe that the Claimant does not possess planning permission. 

28.  Under the Town and Country Planning Act 1990 advertisement consent is mandatory for all business and signs that permit trade etc. The Claimant is in breach of this act and such breach is a criminal offence.  No contract can be formed where illegality is involved.

LOCUS STANDI

29. It seems that according to the contract between Spinningfields management and ES Parking Ltd (EPS), there is no explicit provision granting EPS the authority to take motorists to court. Without proper permission stipulated in the contract, EPS do not have the legal grounds to initiate court proceedings against a driver. Additionally, if the signatories' names on the contract have been redacted, it raises concerns about the authenticity of the signatures. Given previous instances of parking companies misusing or fabricating signatory names, it would be reasonable to demand strict proof from EPS to verify the genuineness of the signatures and ensure they correspond to the individuals they claim to represent.

30. The contract with the landowner that the Claimant includes is heavily redacted and does not entitle them to bring court claims in their own name.

INTEREST

31. I believe it is completely unreasonable for the Claimant in their Particulars of Claim to demand a 10.25% interest rate. Such an exorbitant rate appears excessive and disproportionate when considering the specific circumstances of the case.

32.  In their copy & paste Witness Statement the Claimant's solicitor contradicts this and requests 8% interest.

DOUBLE RECOVERY

33.  The Claimant has artificially inflated their claim for a £100 invoice to £170.  This is simply a poor attempt to circumvent the legal costs cap at small claims.

34.  In Claim Nos. F0DP806M and F0DP201T, District Judge Taylor echoed earlier General Judgment or Orders of District Judge Grand, stating ''It is ordered that the claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in Parking Eye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998...''

35.  The addition of costs not previously specified on signage are also in breach of the Consumer Rights Act 2015, Schedule 2, specifically paras 6, 10 and 14.

36.  It is the Defendant’s position that the Claimant in this case has knowingly submitted inflated costs and thus the entire claim should be similarly struck out in accordance with Civil Procedure Rule 3.3(4)

37.  I was given no right of appeal.  However, in any case paras 16 & 17 of the Claimant's Witness Statement referring to an "independent appeal entity" are simply risible.  Until 2013 there was only one trade association for the industry, the British Parking Association. Its appeals body cancelled too many tickets for the likes of the Claimant, who “jumped ship” and joined a new, rival association, the IPC. This initiative was organised by Mr William Hurley and Mr John Davies of Gladstones Solicitors. The IPC, its appeals body the IAS and the firm of solicitors at the time most associated with parking litigation were all run by the same two people, in a blatant conflict of interest. Of course it is of no surprise that a breakaway biased parking association rubber stamps the Claimant's actions of inventing £70. It is neither here nor there what the IPC considers reasonable or lawful. What is important is what the law in England & Wales considers reasonable and lawful.

38. I respectfully request the Court to dismiss this Claim in its entirety.

Statement of Truth

I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

Edited January 1 by FTMDave
Tidying up

[FTMDave]

Thanks dx.

[FTMDave]

Some work done on the ILLEGAL SIGNAGE section.

The para about the 14 days v the 29-56 days removed.  It can of course be reinstated according to others' views.  Great work by @Nicky Boy

@mkontheroad Did you ever check with the local council if ESP bothered to get planning permission for the signs?

[FTMDave]

Following Nick's suggestion about LOADING IS NOT PARKING I have
   - added a section in red, all nicked from Nick's work on citroenberlingo's case
   - moved some sections round so that the strongest arguments are listed first
   - sorted out the numbering which I'd royally knackered.

@mkontheroad Can you please check this new section in red for accuracy?

4 hours ago, Nicky Boy said:

Also added a suggested  section in red above for Dave's consideration / edit.

Nick, we cross posted.  i haven't inadvertently deleted something you had added to the WS, have I?

Two new paragraphs added in blue.  One regarding the 100 something and I thought Nick's observation was so good I've included it verbatim.

Another to have a laugh at Gladstone's incompetent expense.

[FTMDave]

mk, the draft is saved on the site, so you don't have to do anything.  It's a work in progress but IMO we're 95% of the way there.

I'm off to Turin on Christmas Eve to visit my son until the 28th, so like a lot of people won't be on the forum, but from the 28th still gives plenty of time for fine tuning.  The deadline is the 8th.

Nick, sorry for trashing your work!

[FTMDave]

I've just read through the WS again and it looks excellent - well done.

As I'd knackered the numbering I've unknackered it.

I've moved one paragraph around under the INSUFFICIENT SIGNAGE section to make the arguments flow better.