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Court date - Gladstones Solicitors
pokerish
post Mon, 14 Jan 2019 - 11:45
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Hi all,

I have a court date coming up on 30th January, sorry for the late post I have only just discovered this forum. I am aiming to submit my WS today, but would like help on my points for the actual court date. It would also be great if someone could proof read my WS today.

The incident:
Own Space parking for a rented apartment. The parking permit was mostly hidden by a tissue. The defendant received a parking ticket for "no permit" and I appealed the parking ticket with proof of my permit but they rejected it as it was not fully on display.

My tenancy agreement only has one clause relating to the parking permit which is
"The Tenants must use the parking permit supplied when parking in the allocated parking space which belongs to the property to avoid being issued with a parking ticket." so it isn't too helpful but I am going to use it still as the clause merely states I should use the parking permit, and I have proof that this was used (a photo of the permit in the windscreen at the time, about a quarter of it can be seen).

I have been really struggling with points, and used a draft Defence from MSE forum.

Below is my witness statement:

In the County Court at xxx County Court
Claim No.xxx
Between
Parking and Property Management Limited (Claimant)
and
xxx(Defendant)
-------------------------
Witness Statement
-------------------------
1. I am xxx, of xxx, the Defendant in this matter. I am unrepresented, with no experience of Court procedures. If I do not set out documents in the way that the Claimant may do, I trust the Court will excuse my inexperience.

2. I was a resident of xxx, and attach evidence of my tenancy agreement as Exhibit A.

3. On xxx I parked my vehicle registration number xxx in the car park.

4. My tenancy agreement granted me a parking permit and my own parking space. Evidence of this is contained in Clause 13 which states

“The Tenants must use the parking permit supplied when parking in the allocated parking space which belongs to the property to avoid being issued with a parking ticket.”
This gives absolutely authority to myself to park in the allocated bay given that I have used the parking permit.

The parking permit is dated August 2017 and a picture of it is attached as Exhibit B.

5. My parking permit was in the windscreen at the time. It is noted that a tissue had accidentally been placed in the windscreen on top of the parking ticket. However it could still be seen that this was a relevant parking permit. A picture of this is attached as Exhibit C.

6. Upon receipt of a parking charge notice from the Claimant, I supplied them with this evidence, however they have elected to pursue this matter via litigation.

7. I invite the Court to dismiss this claim in its entirety, and to award my costs of attendance at the hearing, such as are allowable pursuant to CPR 27.14.

Statement of Truth
I believe that the facts stated in this Witness Statement are true.
Signature
Date


Please could someone help me with points for the actual court date.

The only point I have is:
1. primacy of contract. my tenancy agreement states parking permit should be used, and it was so this overrides the signs in use.
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post Mon, 14 Jan 2019 - 11:45
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Sheffield Dave
post Mon, 14 Jan 2019 - 12:25
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What did you submit as your defence? a WS is too late to be introducing defence points.
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nosferatu1001
post Mon, 14 Jan 2019 - 14:24
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All documents must be referenced from within your WS
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pokerish
post Mon, 21 Jan 2019 - 11:04
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Hi,

Thanks for your response. My defence is below.

I am hoping to have all my points/argument completed this week. Are the points in my defence enough? Thanks!


DEFENCE
Background
1. It is admitted that at all material times the Defendant is the registered keeper of vehicle
registration mark xxxxxxx which is the subject of these proceedings. The vehicle is insured with
Admiral with 2 of named drivers permitted to use it.
2. It is admitted that on [date] the Defendant's vehicle was parked at the car park in question with
a valid permit displayed in the windscreen at the specified time 
3. It is accepted that the Defendant was the driver of the vehicle
No Breach of Contract
4. No breach of contract has occurred as a valid permit was displayed in the windscreen. 
Authority to Park and Primacy of Contract
5. It is denied that the Defendant or lawful users of the vehicle were in breach of any parking
conditions or were not permitted to park in circumstances where an express permission to park
had been granted to the Defendant permitting the above mentioned vehicle to be parked by the
current occupier and leaseholder of xxxx, whose tenancy agreement permits the parking of a
vehicle on land. The Defendant avers that there was an absolute entitlement to park deriving
from the terms of the lease, which cannot be fettered by any alleged parking terms. The lease
terms provide the right to park a vehicle in the relevant allocated bay, without limitation as to type
of vehicle, ownership of vehicle or the user of the vehicle. 
5. The Defendant avers that the operator signs cannot (i) override the existing rights enjoyed by
residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally
be restricted where provided for within the lease. The Defendant will rely upon the judgments on
appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher
Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. The Court will be referred to
further similar fact cases in the event that this matter proceeds to trial.
6. This Claimant has unilaterally attempted to foist upon residents a change of rules, in complete
disregard to any existing rights and grants; the Claimant being a stranger to the various
residents' Agreements. No variation of residents' Agreements has taken place and any such
variation would be solely a matter between the landowner and the resident, in any case.
7. The Defendant denies any separate contract with the Claimant in respect of parking
arrangements. The Claimant has offered nothing by way of consideration, given the primacy of
contract enjoyed by residents who already have rights of way, and have been parking in that
space for many months and have a reasonable expectation to continue to do so, free of
harassment, predatory conduct and 'parking charges'.
8. It is denied that there was any breach of contract or of any relevant parking terms, or that there
is a lawful basis to pursue a claim for loss. The Claimant's claim is wholly misconceived.

9. It is admitted that interest may be applicable, subject to the discretion of the Court on any sum
(if awarded), but it is denied that interest is applicable on the total sums claimed by the Claimant.
10. The amount claimed for the parking charge is explicitly at odds with POFA. The Claimant has
at no time provided an explanation as to how the ‘parking charge’ has been calculated or how the
amount has escalated from £100 in the NTK to £166.46. This appears to be an added cost with
apparently no qualification and an attempt at double recovery, which POFA Schedule 4
paragraph 4(6) specifically disallows. POFA Para 4(5) states that the maximum sum that may be
recovered from the keeper is the charge stated on the Notice to Keeper - which was £100.
11. The Claimant has not incurred, nor can charge for legal representative's costs. The
Defendant has the reasonable belief that the Claimant has not incurred £50 costs to pursue an
alleged £100 debt. Notwithstanding the Defendant's belief, the costs are in any case not
recoverable. The Claimant described the charge of £50.00 "legal representative’s costs" not
"contractual costs". CPR 27.14 does not permit these to be recovered in the Small Claims Court.
The claim is unreasonable, vexatious and has no real prospect of success
12. As such, the Defendant is keeping careful note of all wasted time/costs in dealing with this
matter and should the case continue to trial (or in the event of the Claimant filing a Notice of
Discontinuance) the Defendant will seek further costs, pursuant to Civil Procedure Rule
27.14(2)(g).
13. The Claimant's solicitors are known to be a serial issuer of generic claims similar to this one,
with no due diligence, no scrutiny of details nor even checking for a true cause of action. HMCS
have identified thousands of similar poorly pleaded claims.
14. The Court is invited to take Judicial Notice of the fact that the Claimant's solicitors,
Gladstones, is engaged in a course of conduct which involves issuing tens of thousands of
meritless Claims, which are routinely dismissed by District Judges sitting in this Court, and other
County Court hearing centres in all parts of England & Wales. The Court is therefore invited to
refer the matter to the Designated Civil Judge, for consideration of the issuing an Extended Civil
Restraint Order against the Claimant, pursuant to CPR Practice Direction 3.1(3).
15. The Defendant respectfully suggests that parking companies using the small claims track as
a form of aggressive, automated monetary demands against motorists, for parking where they
are lawfully entitled to (with valid permits displayed) is not something the Courts should be seen
to support.
On the basis of the above, the defendant requests the court strike out the claim.
In the alternative the defendant requests the court to give a summary judgement against the
claimant because the claim has no real prospect of succeeding given the prima facie injustice of
the claim.
STATEMENT OF TRUTH

I confirm that the contents of this Defence are true.
Signed
Dated
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nosferatu1001
post Mon, 21 Jan 2019 - 13:17
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You asked a worrying question

You cannot, without paying £255, alter your existing defence
You can only write a witness statement, which is facts and can support your defence (ex. Defence - there were no signs capable of conveying a contract. Witness statement - no signs were visible, see photos exhibited at...)

Youve not returned in a week, so what have you done since then? Have you updated your witness statement so it now references your evidence?
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pokerish
post Sat, 26 Jan 2019 - 18:40
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Hi,

I haven't updated my witness statement as I had submitted it before this post.

What are my options now?

Thanks
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nosferatu1001
post Sun, 27 Jan 2019 - 13:43
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Well you could do somethjng obvious, which is send in a new witness statement, with the evidence referenced in it, in red so the court can see that s all you have changed , and apologise. Send to claimant as well.

Or prevaricate for another week
It's your case, not ours. If you want help I'd suggest actually reading respins3s in a timely fashion otherwise you just waste our time.

This post has been edited by nosferatu1001: Sun, 27 Jan 2019 - 13:43
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