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LINK PARKING COURT ACTION, County Court Stage
BRANSTON47
post Fri, 5 Oct 2018 - 20:06
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Hello Everyone!!!

New to this so I have read through quite a few threads and I was so pleased to see so many success stories and support. I also need everyones support, I understand everyones time is very valuable so whenever anyone can help it would be greatly appreciated.

Link Parking and their solicitors want to take me to court for Issue Reason Not Parked In A Designated Area.

The first time I took action was when I received the LBC letter, whereby I responded to them by stating that I had no information on this contravention and that I needed the details such as photos and dates and times. Instead of responding to my letter, they decided to take it to court although it was signed for. I then wrote my defence which was basically stating that I did not have any details on the contravention and then sent it to the court. Two things happened after this:

1) Gladstones sent me a letter stating that they wanted it dealt via paper instead of an oral hearing. And that the claimant was happy to discuss payment plans over the phone.

2) The judge ordered the claim shall stand struck out without further order UNLESS by a certain date the claimant files at court and serves all copies of documents related to this case.

Since then they have sent me all the info and im not sure how to tackle it as the sign seems like it is correct but i'm unsure. They also sent a copy of what looks like some agreement between the clink and the client. Can anyone helpppppp please
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post Fri, 5 Oct 2018 - 20:06
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Dave65
post Fri, 5 Oct 2018 - 21:54
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Have you got copies of the original PPN, if so can you post it up with all personal details redacted but leave the dates.
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kommando
post Sat, 6 Oct 2018 - 09:36
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And if you can remember give the date it arrived through the letterbox.

Do not identify the driver on the forum or in any submission to the claim unless advised otherwise.
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SchoolRunMum
post Sun, 7 Oct 2018 - 15:26
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QUOTE
I then wrote my defence which was basically stating that I did not have any details on the contravention and then sent it to the court. Two things happened after this:

1) Gladstones sent me a letter stating that they wanted it dealt via paper instead of an oral hearing. And that the claimant was happy to discuss payment plans over the phone.

2) The judge ordered the claim shall stand struck out without further order UNLESS by a certain date the claimant files at court and serves all copies of documents related to this case.

Since then they have sent me all the info and i'm not sure how to tackle it as the sign seems like it is correct but i'm unsure.


Surely the Order said the Defendant can then submit a defence?

That's what you need to do, a proper defence like all the others you see on here and on MSE forum.

So far you have NO DEFENCE, because what you submitted, wasn't one. I also worry you do not mention returning your Directions Questionnaire naming your local court and objecting to the case being heard on the papers?


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BRANSTON47
post Mon, 8 Oct 2018 - 13:59
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Hello,

Yes I can still file a defence and I have a template thanks to research on MSE, just looking for the pain point that I will be focusing on.

I have responded to the questionnaire and I have stated that I want a Oral Hearing and I do not want a paper hearing. I have not contacted Gladstone or Link to arrange or negotiate anything.













NTK came through Mid March 2018
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BRANSTON47
post Sat, 13 Oct 2018 - 22:36
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If anyone is able to please let me know as soon as I do want to go into court as prepared as I can. Thank you so much
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ostell
post Sat, 13 Oct 2018 - 22:52
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The signs are forbidding. Parking is only for valid permits There is no offer of parking for those without a permit therefore the only claimant is the landowner. No contract was offered therefore there an be no breach. You cant forbid and action on one hand and then permit it with the other hand

Did you get a notice to Keeper?
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kommando
post Sun, 14 Oct 2018 - 09:03
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Need to see the agreement between link and the landowner also. it may not be what it purports to be.
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ostell
post Sun, 14 Oct 2018 - 09:23
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Found this on another thread which could be useful

QUOTE
The signage in the car park is of a “forbidding” nature. It is limited to cars displaying a valid permit only and therefore the terms cannot apply to cars without a permit because the signage does not offer an invitation to park on certain terms. The terms are forbidding. This means that there was never a contractual relationship. I refer you to the following case law: PCM-UK v Bull et all B4GF26K6 [2016], UKPC v Masterson B4GF26K6[2016], Horizon Parking v Mr J C5GF17X2 [2016] – In all three of these cases the signage was found to be forbidding and thus only a trespass had occurred and would be a matter for the landowner.
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BRANSTON47
post Sun, 14 Oct 2018 - 12:47
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QUOTE (ostell @ Sat, 13 Oct 2018 - 23:52) *
The signs are forbidding. Parking is only for valid permits There is no offer of parking for those without a permit therefore the only claimant is the landowner. No contract was offered therefore there an be no breach. You cant forbid and action on one hand and then permit it with the other hand

Did you get a notice to Keeper?


Yes they sent one through. I will post it up on here

QUOTE (kommando @ Sun, 14 Oct 2018 - 10:03) *
Need to see the agreement between link and the landowner also. it may not be what it purports to be.


I have a copy of that as well as the solicitors sent that through, I will also post that up on here.
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BRANSTON47
post Sun, 14 Oct 2018 - 13:14
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Please see below



















Thanks guys for all your support. The previous info in regards to the signage was exactly what I was looking for!!! All added to defence and defence is almost complete
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kommando
post Mon, 15 Oct 2018 - 07:56
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The contract is between Link and a management company, this management company is not the Land Owner.
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BRANSTON47
post Mon, 15 Oct 2018 - 22:03
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QUOTE (kommando @ Mon, 15 Oct 2018 - 08:56) *
The contract is between Link and a management company, this management company is not the Land Owner.





YOU THE MANNNNNN!!!!!!
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SchoolRunMum
post Tue, 16 Oct 2018 - 00:28
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Not a silver bullet though; PPCs normally have contracts with Managing Agents...this is all as expected.

Usual rubbish contract we've seen before from Link, where they say the 'client' must display the permit (the 'client' is the MA, not a driver!). And the contract only allows PCNs to be issued for 'no permit' (nothing there about not parking in a 'designated area') and the scheme is aimed squarely at penalising unauthorised vehicles...again those with no permit, that seems to be the sum total of their remit.

All been said before, have a look on other Link defence threads.

QUOTE
Yes I can still file a defence and I have a template thanks to research on MSE
Hope the template is relevant, show us please?

How soon do you have to get your defence in, and what date do you then have to file & serve your (later, separate) witness statement and your evidence?
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kommando
post Tue, 16 Oct 2018 - 13:06
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As SRM suggests not a silver bullet, but you can include that the management company is not the land owner (ask the local council who pays the rates and they will be the landowner), as the name of the management company is redacted there is no way to find out if they are a legal entity who can engage contracts and no proof the management company has the authority to sign the landowners rights to the parking company.
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BRANSTON47
post Thu, 18 Oct 2018 - 20:15
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DEFENCE


Preliminary


1. The Particulars of Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.



2. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct.



Background


3. It is admitted that at all material times the Defendant is the registered keeper of vehicle registration mark ????? which is the subject of these proceedings.


4. It is admitted that on ????? the Defendant's vehicle was parked at ?????



5. It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof. 

5.1. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA")

5.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:

5.2.1. There was a relevant obligation; either by way of a breach of contract, trespass or other tort; and

5.2.2. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
It is not admitted that the Claimant has complied with the relevant statutory requirements.  


5.3. To the extent that the Claimant may seek to allege that any such presumption exists, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.


Authority to Park and Primacy of Contract


6. The signage in the car park is of a “forbidding” nature. It is limited to cars displaying a valid permit only and therefore the terms cannot apply to cars without a permit because the signage does not offer an invitation to park on certain terms. The terms are forbidding. This means that there was never a contractual relationship. I refer you to the following case law: PCM-UK v Bull et all B4GF26K6 [2016], UKPC v Masterson B4GF26K6[2016], Horizon Parking v Mr J C5GF17X2 [2016] – In all three of these cases the signage was found to be forbidding and thus only a trespass had occurred and would be a matter for the landowner.


7. The contract is between Link and a management company, this management company is not the Land Owner.

7. Accordingly it is denied that:


7.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant

7.2. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

Alternative Defence - Failure to set out clearly parking terms

8. In the alternative, the Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to consider the imposition of a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.

8.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate. 

8.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation; 

8.1.2. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee!!!8217;s ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and

8.1.3. The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3
8.2. The Defendant avers that the residential site that is the subject of these proceedings is not a site where there is a commercial value to be protected. The Claimant has not suffered loss or pecuniary disadvantage. The penalty charge is, accordingly, unconscionable in this context, with ParkingEye distinguished.


9. It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking parking management. The Claimant has provided no proof of any such entitlement.



10. It is denied that the Claimant has any entitlement to the sums sought.



11. 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.

12. It is implicit in 5.1 insofar as the claimant is limited to POFA, that they can only recover what POFA allows. At 10 and 11 the sums then claimed are denied (usually £160 by then) and interest on that. Under the county court rules, the interest may well accrue on £100 if awarded, but not a greater sum than they are permitted to recover.



STATEMENT OF TRUTH


I confirm that the contents of this Defence are true.


Definitely understand there is no silver bullets, been here before and I know its hard work as well. but thank you everyone for the support. I don't have a time for the defence to be handed in and the witness statement and evidence because since gladstone's sent the evidence before the claim was struck out, I have not heard anything.
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SchoolRunMum
post Thu, 18 Oct 2018 - 23:13
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That's an old template from a few years ago, gets the IPC's name wrong (old name). Not the best.

Don't like the way point #12 is phrased and there are so many better recent defences on any Gladstones thread on both forums in the past few months, easy to search for.


QUOTE
5. It is denied that the Defendant was the driver of the vehicle.


You REALLY want to DENY? Are you sure? Don't use that word unless you were not the driver.

You haven't mentioned anything about the landowner contract flaws or the fact neither it, nor the sign, allows them to charge for 'not being in a designated area'.
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BRANSTON47
post Sat, 20 Oct 2018 - 21:18
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Noted! Will update final draft soon!
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BRANSTON47
post Tue, 25 Dec 2018 - 21:50
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Sorry it took so long, never heard anything from the courts for a while. This is the updated draft! Thanks again everyone!




1. The Defendant …… denies that the Claimant is entitled to relief in the sum claimed, or at all. 



2. The Particulars of Claim on the N1 Claim Form refer to “Parking Charge(s)” incurred on ..... However, they do not state the basis of any purported liability for these charges, in that they do not state what the terms of parking were, or in what way they are alleged to have been breached. In addition, the particulars state “The Defendant was driving the vehicle and/or is the keeper of the vehicle”, which indicates that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. 


3. The Particulars refer to the material location as ………. At some point in 2017 the managing agents contracted with the Claimant company to enforce parking conditions at the estate.


4. It is admitted that at all material times the Defendant is the registered keeper of vehicle registration mark ……. which is the subject of these proceedings.


5. The erection of the Claimant’s signage, and the purported contractual terms conveyed therein, are incapable of binding the Defendant in any way, and their existence does not constitute a legally binding contract. The signage in the car park is of a “forbidding” nature. It is limited to cars displaying a valid permit only and therefore the terms cannot apply to cars without a permit because the signage does not offer an invitation to park on certain terms. The terms are forbidding. This means that there was never a contractual relationship. I refer you to the following case law: PCM-UK v Bull et all B4GF26K6 [2016], UKPC v Masterson B4GF26K6[2016], Horizon Parking v Mr J C5GF17X2 [2016] – In all three of these cases the signage was found to be forbidding and thus only a trespass had occurred and would be a matter for the landowner. Accordingly, the Defendant denies having breached any contractual terms whether express, implied, or by conduct. 


6. The contract is between Link and a management company, this management company is not the Land Owner. Accordingly, it is denied that:

6.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant

6.2. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.



7. The Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to consider the imposition of a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.

7.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate. 

7.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;

7.1.2. The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3

7.2. The Defendant avers that the residential site that is the subject of these proceedings is not a site where there is a commercial value to be protected. The Claimant has not suffered loss or pecuniary disadvantage. The penalty charge is, accordingly, unconscionable in this context, with ParkingEye distinguished.



8. The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 as a binding precedent on the lower court. However, that only assists the Claimant if the facts of the case are the same, or broadly the same. In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas it is the Defendant’s position that no such breach occurred in this case, because there was no valid contract, and also because the ‘legitimate interest’ in enforcing parking rules for retailers and shoppers in Beavis does not apply to these circumstances. Therefore, this case can be distinguished from Beavis on the facts and circumstances.



9. The Claimant, or their legal representatives, has added an additional sum of £60 to the original £100 parking charge, for which no explanation or justification has been provided. Schedule 4 of the Protection of Freedoms Act, at 4(5), states that the maximum sum which can be recovered is that specified in the Notice to Keeper, which is £100 in this instance. It is submitted that this is an attempt at double recovery by the Claimant, which the Court should not uphold, even in the event that Judgment for Claimant is awarded.



10. For all or any of the reasons stated above, the Court is invited to dismiss the Claim in its entirety, and to award the Defendant such costs as are allowable on the small claims track, pursuant to Civil Procedure Rule 27.14. 



Statement of Truth

I believe that the facts stated in this Defence are true. 


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SchoolRunMum
post Tue, 25 Dec 2018 - 22:52
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Presumably you have submitted that defence in November and are just showing us?

Have you had and returned, your Directions Questionnaire N180?
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