my draft defence Gladstones - PCM Court action

Hi All
Thanks for all can help me for my case as PCM want to take me to court for 3 PCNs. As PCM replace their signage from POFA12 to Contract term I sent to them Notice of Cancellation letter long time ago. Agian same process up to reach to court claim from Gladestones which that was my 1 st time. I spent all last 3 weeks digging and please find my draft defence for advise.

https://www.keepandshare.com/doc16/16884/epson007-pdf-801k?da=y


Statement of Defence
IN THE COUNTY COURT BUSINESS CENTRE

CLAIM No:

BETWEEN:

PARKING CONTROL MANAGEMENT (UK) LIMITED (Claimant)

-and-

xxxxxx (Defendant)

I am representing myself due to the cost of a solicitor and due to this I request some leeway or in other words please take it easy on me I am new at this.

(1) It is admitted that the Defendant was the authorised registered keeper of the vehicle in question at the time of the alleged incident.
(2) As the car mentioned in the particulars of claim was a company car which all company employees & others are insured to drive that car & the parking events / alleged breaches were 7-10 months ago, so nobody can remember who was driving. It’s strictly requested that PCM to provide any evidence of who the driver was.
(3) I never knew what are Gladstones Solicitors was talking about as their letters dated xxxxx have no cross reference to any PCN numbers up to I received Letter Before Claim dated xxxxx so all of that time Gladstones Solicitors was misleading me.
(4) I have received no copies of any disclosure of any documents from Gladstones Solicitors Ltd with the exception of the Letter Before Claim & court summons. Although I asked for that documents on my letters to Gladestones Solicitors dated xxxxxx & on my letters to PCM dated xxxxx but they never send the requested documents. This is likely to mean I may have to alter my defence in light of any new evidence.
So in light of the little information I have please find below:
(a) Charge dated xxxxx:
- There is no contract in force between the claimant & defendant as Cancelation Of Contact Notice (COCN sent to PCM on xxxxx before issuing the charge in question. The signage on the site stated that parking will be under contractual terms and Gladstones Solicitors letter dated xxxxxx saying ‘’your contract was with our client’’ while there is no contract in force as mentioned above. (Signage photo, COCN letter, Proof of post & confirmation photo attached).
- The signage was located on UKPN property which I was working for & I can confirm there is no contract between PCM & UKPN, so it’s strictly requested that PCM to show they have a permission to fix their signage on UKPN property.
- Claimant & their representative strictly required to provide the full documents requested in the above mentioned letters.

(b) Charges dated 10/10/2016:
- I have only unclear copy of NTK dated xxxxx saying ‘’this notice is given in line with schedule 4 of the POFA 2012’’ while the the signage on the site stated that parking will be under contractual terms and Gladstones Solicitors letter dated xxxxx saying ‘’your contract was with our client’’. That makes confusion of the reason of that charge.

- Claimant & their representative strictly required to provide the full documents requested in the above mentioned letters.

(c) Charge date xxxx: I have no documents relating to that charge so Claimant & their representative strictly required to provide the full documents requested in the above mentioned letters. The signage on the site stated that parking will be under contractual terms and Gladstones Solicitors letter dated xxxxx saying ‘’your contract was with our client’’ while there is no contract in force as mentioned above.
(5) I have no idea at this stage whether I am being pursued under the Protection of Freedoms Act 2012 for this debt or whether this is for civil trespass. A parking charge can be for trespass, breach of contract or a contractual charge. All these are treated differently in law and require a different defence. The wording of any contract will naturally be a key element in this matter, and a copy of the alleged contract has never been provided to the Defendant.

(6) I have never been supplied with any confirmation from the claimant or his agents that they actually own or have a contract with the landowner of the land in question which would allow them issue penalty tickets although I asked them several times to provide that contract but they never responded. So I have no idea if this is just a speculative invoice.

(7) I am yet to have knowledge of all documents provided to the court in support of the application, despite sending a CPR 31.14 request to the claimant's solicitors on xxxxxx.

(8) Claimant & his representative should supply a contract with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no locus stand to bring this case.
(9) Gladstones Solicitors Ltd has supplied no contract showing they have the right to pursue cases on behalf of Parking Control Management (UK) Ltd. It is request that this right is confirmed with a signed unredacted contract.
(10) The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. The Defendant also has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have actually been incurred. Even if they have been incurred, the Claimant has described them as "legal representative’s costs". These cannot be recovered in the Small Claims Court.
(11) Whilst it is admitted that the Defendant was the registered keeper of the above vehicle at the time of the alleged events it is averred that the Defendant was not the driver on the date and time mentioned in the particulars and the Claimant is put to strict proof in this respect.
PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, "There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and operators should never suggest anything of the sort" (POPLA report 2015).

(12) The government have put in place a mechanism whereby liability can be transferred from driver to keeper, under the Protection Of Freedoms Act 2012, sch 4. The claimant has made the conscious decision not to avail themselves of this legislation and use a notice to keeper which fails to comply with 8.1, 8.2a, 8.2c, 8.2f, 8.8b, 9.2.a, 9.8b of the Act.
- 17. Further the Claimant must also demonstrate that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the Registered Keeper.
- The Claimant is put to strict proof that such a “relevant obligation” existed and that the Claimant has followed the correct procedure to transfer liability to the Registered Keeper.
- In the absence of strict proof as to the existence or otherwise of a “relevant obligation” and as to properly transferring liability to the Registered Keeper the court is invited to strike the matter out.
(13) On the other hand it is believed that the Claimant may seek to rely on a rather
unique interpretation of the judgement in Elliott -v- Loake
- endeavour to persuade the court that the case created a precedent amounting to a presumption that the registered keeper is the driver where no other evidence or admission exists and thereby prove his allegations.
- I submit that this interpretation actually represents a very considerable reworking of the case and does not fairly convey the findings.
- The reality is that no such precedent was created and that Mr Loake was found guilty (it was a criminal matter) on a surfeit of evidence including forensic evidence of being the driver at the time of a road traffic accident which he had previously lied to the police about. Crucially this evidence proved the case to a criminal standard not simply on a balance of probabilities as applies in the instant matter.
(14) This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. None of this applies in this material case.
(15) The Claimant has not complied with the pre-court protocol.
- No Letter of Claim was sent to the Defendant showing the PCN numbers mentioned in Letter Before Claim and no initial information was sent to the Defendant although it was requested.
- I'd refer the court to Para 4 on non-compliance and sanction, and I'd also point out that there can be no reasonable excuse for the Claimant's failure to follow the Pre-action Conduct process, especially bearing in mind that the Claim was issued by their own Solicitors so they clearly had legal advice before issuing proceedings.
(16) The claim form itself is vague and lacks pertinent information as to the grounds for the claimant’s case. The particulars of claim fail to meet CPR16.4 and PD16 7.3-7.5 and merely provide a date, due date, and an "amount" consisting of a completely unsubstantiated and inflated three-figure sum, vaguely and incoherently adduced by the claimant's solicitors.
- Direction 16, paragraphs 7.3 – 7.5: CPR 16.4 Contents of the particulars of claim
(1) Particulars of claim must include –
(a) a concise statement of the facts on which the claimant relies
(b) if the claimant is seeking interest, a statement to that effect and the details set out in paragraph (2);They have stated they are seeking interest from date x to date y, but provide no details (the defendant clearly told the Claimant that the debt was denied and that they were not the driver. The Defendant is not therefore liable for the Claimant’s delay in bringing a claim).
(e) such other matters as may be set out in a practice direction.

- PD 16 paras 7.3 – 7.5
7.3 Where a claim is based upon a written agreement:
(1) a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing, and
(2) any general conditions of sale incorporated in the contract should also be attached (but where the contract is or the documents constituting the agreement are bulky this practice direction is complied with by attaching or serving only the relevant parts of the contract or documents).
7.4 Where a claim is based upon an oral agreement, the particulars of claim should set out the contractual words used and state by whom, to whom, when and where they were spoken.
7.5 Where a claim is based upon an agreement by conduct, the particulars of claim must specify the conduct relied on and state by whom, when and where the acts constituting the conduct were done.
(17) 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 over 1000 similar poorly produced claims and the solicitor's conduct in many of these cases is believed to be currently the subject of an active investigation by the SRA.
I believe the term for such conduct is ‘robo-claims’ which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers.
I have reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to my significant detriment as an unrepresented Defendant.
(18) The defendant wrote to the claimant on 06/1/2017asking for:

1. Who is the party that contracted with your Client for that claim? I require their contact details and the full identity of the landowner.
2. Is that charge based on damages for breach of contract? Answer yes or no.
3. If the charge is based on damages for breach of contract please provide your justification of this sum.
4. Is that charge based on an agreed 'fee' for the provision of parking? Answer yes or no. If so, please provide a valid VAT invoice for this 'service'.
5. Please provide a copy of the signs that you can evidence were on site & locations of all signs at the site as well as all photographs taken of this vehicle.


The claimant has responded on his letter dated 31/01/2017 refusing to provide the documents requested.Withholding any relevant photos of the car, particularly the windscreen and dashboard, and the signage terms, despite being asked for by the Defendant at the outset, is against the SRA code as well as contrary to the ‘overiding objective’ in the pre action protocol.

- As Gladsones are a firm of solicitors whose Directors also run the IPC Trade Body and deal with private parking issues every single day of the week there can be no excuse for these omissions.

The Defendant asks that the court orders Further and Better Particulars of Claim and asks leave to amend the Defence.
(19) In the pre court stage the Claimant’s solicitor refused to provide me with the necessary information I requested in order to defend myself against the alleged debt.
They did not send me a Letter before Action that complied with the Practice direction on pre-action conduct. The Letter before Action can be seen to miss the following information
a) A clear summary of facts on which the claim is based.
b) A list of the relevant documents on which your client intends to rely.
c) How the “charge amount” of 160 pounds has been calculated and justified.
d) Any form of possible negotiation or ADR offered.
(20) I suggest that parking companies using the small claims track as a form of aggressive, automated debt collection is not something the courts should be seen to support.
(21) If the court is minded to accept that the Claimant has standing then I submit that the signs on site at the time of the alleged event were insufficient in terms of their numbers, distribution, wording and lighting to reasonably convey a contractual obligation and did not in any event at the time comply with the requirements of the Code of Practice of the Independent Parking Committee’s Accredited Operators Scheme a signatory to which the Claimant was at the relevant time.
- It is denied that the signs used by this claimant can have created a fair or transparent contract with a driver in any event. The signs were insufficient in terms of their distribution, wording and lighting hence incapable of binding the driver, which distinguishes this case from the Beavis case:
a) Sporadic and illegible (charge not prominent nor large lettering) site/entrance signage - breach of the BPA Code of Practice and no contract formed to pay any clearly stated sum.
b) The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.
c) The signage was not lit and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Unfair Terms in Consumer Contracts Regulations 1999.
d) No promise was made by the driver that could constitute consideration because there was no offer known nor accepted. No consideration flowed from the Claimant.
e) Absent the elements of a contract, there can be no breach of contract.
f) It is denied that the signs on display fall under any of the classes in Schedule 1 or Schedule 3 of The Town and Country Planning (Control of Advertisements) (England) Regulations 2007 or that the Claimant has advertisement consent for the signs.
g) The Claimant is therefore put to strict proof that at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs.
h) In the absence of strict proof I submit that the Claimant was committing an offence by displaying their signs and therefore no contract could have been entered into between the driver and the Claimant.
(22)It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious. As such, I am keeping a note of my wasted time/costs in dealing with this matter.

The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons and I respectfully ask that the court dismiss the claim
I believe the facts contained in this Defence Statement are true