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Urgent advice kindly requested - County Claim (Gladstone Solicitors)
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Hi all, many thanks once again. Please find below my amended, final draft of the defence letter that I intend to print and post shortly. 2 quick questions:
1) Does the letter look ok after the edits (suggested by coupon-mad)? My only concern is that I don't actually know what the references mean (e.g. 7.3(1) and CPR 16.4) - in all honest these have been copied so I just want to make sure I'm saying accurate things!
2) I have photos of the inadequate signage at the site, and in addition I also have a First Person View video of driving inside a vehicle and parking at the site, to reiterate the lack of signage from the perspective of the driver of a vehicle. I remember reading in an earlier thread that this would be helpful. Am I better off referencing these here, or in the "witness statement" that is to come later?
Thanks again!
Preliminary matters
[1]
The claimant failed to include a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the Claimants contractual authority to operate there as required by the Claimants Trade Association's Code of Practice B1.1 which says:
[1.1]
If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the ‘Creditor’ within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges. There is no prescribed form for such agreement and it need not necessarily be as part of a contract but it must include the express ability for an operator to recover parking charges on the landowner’s behalf or provide sufficient right to occupy the land in question so that charges can be recovered by the operator directly. This applies whether or not you intend to use the keeper liability provisions.
[2]
The particulars of claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached. Indeed the particulars of claim are not clear and concise as is required by CPR 16.4 1(a). 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. The defendant believes the term for such conduct is “roboclaims” 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.
[2.1]
Practice Direction 3A which references Civil Procedure Rule 3.4 illustrates this point:!
1.4 The following are examples of cases where the court may conclude that particulars of claim (whether contained in a claim form or filed separately) fall within rule 3.4(2)(a):
(i) those which set out no facts indicating what the claim is about, for example ‘Money owed £5000’, (ii) those which are incoherent and make no sense, (iii) those which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable claim against the defendant
On the basis of the above, the defendant respectfully requests the court strike out the claim for want of a cause of action.
Statement of Defence
I am XXXXX, defendant in this matter and deny liability for the entirety of the claim for the following reasons:
[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]
It is denied that any "parking charges" as stated on the Particulars of claim are owed and any debt is denied in its entirety. The date of the alleged incident is XX XX 2015, and after having received a Notice to Keeper (NtK) invoice, the defendant wrote a polite and clear response on XX XX 2016 (attached), to which the defendant received no reply. It is therefore confusing why the claimant should wait well over a year, until now to bring proceedings. No advice whatsoever on appeals via the POPLA service has been provided by the claimant.
[3]
As per the photographs attached, the signage was vastly inadequate on the date in question, to form a contract with the motorist:
(a) the signage on this site is lacking and where present is inadequate to form a contract
(b) in the absence of ‘adequate notice’ of the terms and the charge (which must be in large prominent letters such as the brief, clear and multiple signs in the Beavis case) this fails to meet the requirements of Schedule 4 of the POFA
Can I here also mention the video I've taken? And if so, how do I physically send it - attached to a USB?
[4]
As a result of inadequate signage, the driver did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.
[5]
The identity of the driver of the vehicle on the date in question has not been ascertained:
(a) the Claimant did not identify the driver
(b) the Defendant has no liability, as they are the Keeper of the vehicle and the Claimant must rely upon the strict provisions of the Protection of Freedoms Act 2012 in order to hold the defendant responsible for the driver’s alleged breach.
(c) the Claimant's increasingly demanding letters failed to evidence any clear/prominent signage
[6]
The claimant has not provided enough details in the particulars of claim to file a full defence. In particular, the full details of the contract which it is alleged was broken have not been provided:
(a) the Claim discloses no cause of action to give rise to any debt
(b) the Claimant has simply stated that a parking charge was incurred
(c) the Claimant has given no indication of the nature of the alleged charge in the Particulars of Claim. The Claimant has therefore disclosed no cause of action.
(d) the Particulars of Claim contains no details and fails to establish a cause of action which would enable the Defendant to prepare a specific defence.
It just states “parking charges” which does not give any indication of on what basis the claim is brought. There is no information regarding why the charge arose, what the original charge was, what the alleged contract was nor anything which could be considered a fair exchange of information. The Particulars of Claim are incompetent in disclosing no cause of action.
(e) on the 19th August 2016 DJ Anson sitting at Preston County Court ruled that the very similar parking charge particulars of claim were deficient and failing to meet CPR 16.4 and PD 16 paragraphs 7.3 - 7.5. He ordered the Claimant in that case to file new particulars which they failed to do, and the court confirmed the claim will now be struck out.
Therefore, as an unrepresented litigant-in-person I respectfully ask that I be permitted to amend and or supplement this interim defence as may be required following a fuller disclosure of the Claimant's case.
[7]
The Claimant has at no time provided an explanation how the final sum has been calculated, the conduct that gave rise to it or how the amount has climbed to £17X.XX (excluding court fees and alleged legal costs). This appears to be an added cost with no apparently no qualification. The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.
[8]
(a) The Defendant has the reasonable belief that the Claimant has not incurred £50 “legal representative’s” costs to pursue an alleged £160 debt.
(b) Notwithstanding the Defendant's belief, the costs are in any case not recoverable.
(c) 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.
[9]
On XX XX 2016, the defendant wrote to the claimant asking for:
(a) the legal basis of the charge, which was not clear (i.e. breach, trespass or contractual fee?):
(i) if alleging breach of contract, a breakdown of the alleged 'loss'
(ii) if alleging trespass, evidence of the perpetrator, proof of the liquidated damages alleged and the calculation of this sum by the landholder.
(iii) if alleging 'contractual fee', a VAT invoice by return and an explanation of how the company can allow drivers to park 'in breach' for a fee when the client originally contracted them in order to disallow and deter - not allow and profit from - unauthorised parking.
(b) proof of the locus standi to offer contracts to drivers at this site and to bring a claim in their own right for this particular contravention. In addition, the claimant was asked to provide a copy of the contract, showing the restrictions, the charges, the dates and terms of business including any payments between the company and the client and the definition of their status as agents or contractors and your assigned rights (if any).
(c) the claimant was advised the following:
“The Failure to divulge your landowner contract (or heavily redacting it) will be deemed as withholding pertinent information and, of course, I will require it to be shown at independent appeal stage anyway. A witness statement will not suffice, nor a site agreement with a managing agent or other party who is not the landowner.”
(d) the claimant’s explanation of the consideration that they believe flowed from the driver, and from the claimant, as consideration from both sides is required for a contract.
(e) a copy of the signage site map and close-up pictures of the signs in situ at the time, taken at a comparable time of day in similar light conditions.
(f) the means to make an appeal to POPLA or the IAS.
(g) the claimant was advised of the following:
“This must not be withheld or delayed, which would be a breach of the Code of Practice.”
The claimant had not responded to any of the above. Withholding any relevant photos of the signage terms, despite being asked for by the Defendant at the outset, is against the SRA code as well as contrary to the ‘overriding objective’ in the pre action protocol.
[10]
Parking & Property Management LTD are not the lawful occupier of the land. The defendant has 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 rights to bring this case:
(a) the Claimant is not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract.
(b) the claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question
(c) the Claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge. The defendant has 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 right to bring action regarding this claim.
[11]
This case can be easily distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes. Charges cannot exist merely to punish drivers. This claimant has failed to show any comparable 'legitimate interest' to save their charge from Lord Dunedin's four tests for a penalty, which the Supreme Court Judges found was still adequate in less complex cases, such as this allegation.
[12]
The defendant respectfully suggests that the courts should not be seen to support parking companies using the small claims track as a form of aggressive, automated debt collection.
[13]
The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons. It is submitted that the conduct of the Claimant in ignoring the defendant is wholly unreasonable. As such, the defendant will keep a note of their wasted time/costs in dealing with this matter.
The defendant respectfully requests the court strike out this claim for the reasons stated above, and for similar reasons cited by District Judge Cross of St Albans County Court on 20/09/16 where a similar claim was struck out without a hearing, due to Gladstones' template particulars for a private parking firm being 'incoherent', failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''.
Statement of Truth: I confirm that the contents of this statement are true to the best of my knowledge and belief.
(Name) (Signature) (Date)0 -
For those who are reading this and want to see Bargepole's step by step advice, that coupon-mad was referring to, I've linked it below - it's very helpful (and reassuring).1. You have received a Claim Form from a private parking company. It is not a summons, it is not a CCJ, it is what it says on the tin, and they (or their solicitors) are claiming that you owe them a specified sum of money, for alleged unpaid ticket(s). You must NOT ignore this (unless you really want to appear on Can't Pay? We'll Take It Away), and you have just 14 days to Acknowledge Service of the Claim.
2. You should now Acknowledge Service of the claim, ticking the box that says you will defend in full. Do NOT put anything in the 'Defence and Counterclaim' text box, not even a full stop. By doing this, you have extended the time to submit a defence to 28 days from date of service, which is the date printed on the claim form plus 5 days. Now it's time to burn the midnight oil, and research relevant defences on these forums. Only look at recent stuff, and don't just blindly cut and paste text, you must adapt it so that it's relevant to your claim.
3. Your Defence does not need to be War and Peace, but it must mention, however briefly, every point of fact and law that you intend to rely on. You won't be able to amend it or add extra points later without paying a court fee, but you can expand on the original points in more detail. The Defence should be headed 'In The County Court', then show the case number, the names of the parties indicating who is the Claimant and who is the Defendant, and have the word 'Defence' at the top, and at the bottom say 'I believe the facts stated in this Defence are true' then your signature and date. It should all be formatted with numbered paragraphs and pages, in Times Roman 12pt, with 1.5 line spacing. I recommend printing and posting (registered) to Northampton, trying to fit it in the online box destroys the formatting, and makes it hard for the Judge to read.
4. After sending off your Defence, the Northampton Business centre will send a copy to the Claimant, and then send a Directions Questionnaire (form N180) to both Claimant and Defendant. You must complete this by the date given, and send it back to Northampton, with a copy to the other side (or their solicitors if they've nominated one as the address for service). The recommended answers to the questions are as follows:- A1 = NO to mediation (they want the whole amount, you want to pay them nothing, so no scope for mediation. This will not go against you)
- B = fill in all the details, name, address, etc
- C1 = YES to small claims track – this is the limited costs track for claims up to £10,000 in value
- D1 = name of your local County Court – unless you are a Ltd company, the case files will be transferred there
- D2 = NO to expert evidence (this relates to medical negligence cases and suchlike)
- D3 = 1 witness (that’s you) (or more if you are going to get another person to provide a statement)
- D4 = Put down the dates of any pre-booked holidays, NO to interpreter (unless you need one).
5. The case file will then be transferred to your local County Court, and you will eventually receive a Notice of Allocation, giving you a date and time for the hearing. It will also specify a deadline for you to submit a Witness Statement, and any other documents you intend to rely on, usually 14 days before the hearing but sometimes earlier than that. Your Witness Statement can expand upon the points made in your original Defence, and must start with the following "I, Joe Bloggs, of 23 Acacia Avenue, Anytown, AN1 2BC, am the Defendant in this matter, and will say as follows". You should attach to your Witness Statement any evidence to support your assertions, eg photos of signage, etc. Optionally, you may also want to include a Skeleton Argument to flesh out the legal points, or you could include those as part of your Witness Statement.
6. On the day of the hearing, turn up at least 30 minutes before the listed time, give your name to the Court Usher, and make sure you know which hearing room your case will be heard in. These small claims cases are very often heard in a side room, and it will just be the Judge, you, and the other side's representative sitting around a table - no gowns, wigs or juries, and you won't be hauled off to Guantanamo Bay in an orange jumpsuit if you lose, so nothing to be scared of. Dress as if you are going to a job interview, address the Judge as Sir or Madam, and only address your remarks to the Judge, not to the other side. Be polite at all times, don't rant or get into an argument, and if the Judge is against you on one point, move on to the next. Also bear in mind that Courts often overbook cases, and yours may not be called at the scheduled time, so if taking time off work, it's best to book the whole day.
7. The usual procedure is that the Claimant gives a summary of their case, then the Defendant gives a summary of theirs. The Judge may interrupt at any point, and ask questions of either side. Having heard from both sides, the Judge will then sum up and give Judgment (a bit like Lord Sugar on The Apprentice, so keep quiet during this). if he finds for the Claimant, you will have to pay the amount on the Claim Form, plus a hearing fee (£25 if the claim is under £300). If he finds for the Defendant, the claim is dismissed, and you have nothing to pay. You can also ask the Judge to award your costs, which are max £95 for lost earnings, return mileage to court at 45p per mile, and parking. Payment is normally due within 14 days, so if you have to pay, make sure you do that and nothing will appear on your credit file.
As with most things, good preparation is the key - make sure you know your arguments back to front and inside out, and can articulate them well on the day.
Edit: Also see this thread about how to avoid irrelevant defences: http://forums.moneysavingexpert.com/showthread.php?p=71597350#post71597350
NEWBIES - THIS THREAD IS FOR INFORMATION ONLY. DO NOT POST QUESTIONS ABOUT YOUR CASE HERE, YOU WON'T GET ANSWERS. PLEASE START A NEW THREAD OF YOUR OWN.0 -
Googling will tell you!I don't actually know what the references mean (e.g. 7.3(1) and CPR 16.4)
You won't be attaching photos or evidence at all yet, so not ''as per photos attached''.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top of this/any page where it says:
Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Thank you all so far. My defence has been received by MCOL Northampton so now I wait...0
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Hi all,
I have followed the advice here, thanks very much. My case has been transferred to my local county court, as expected.
The trial actually is set to be heard start 2018, which may seem a while off, but whilst everything is fresh in my mind, I would like to get all my documents etc in order.
1) What should I actually do between now and the court date? The letter from the court doesn't actually give any guidance as to what is expected from me on the day itself. It references the "documents on which the party intends to rely on" + witness statements (I don't have any). So is it safe to assume that I basically need proof that the signage was inadequate (photos + video) and also just for me to get the chronology/story straight? I have already printed out the photos (which I would need to send to the court + claimant) but how is the best way to get the video across? Put it on a small USB stick as a video file? Link to a youtube upload or dropbox file? Also, given how far off the case is (start 2018), I'd be unkeen to give the claimant plenty of time to review my (compelling) evidence and mount a response, so is it best for me to wait as late as possible (within the correct time limits - 14 days pre-hearing) before sharing?
2) Also, has anyone had any luck contacting the claimant at this stage? To basically say - "look, you've taken it this far, now's your last chance to throw out the claim because I will claim my costs against you and my evidence is very compelling. Let's save everyone's time here" - perhaps by email or formal letter...?
Thanks!0 -
What should I actually do between now and the court date? The letter from the court doesn't actually give any guidance as to what is expected from me on the day itself. It references the "documents on which the party intends to rely on" + witness statements (I don't have any).
Yes, you do - yours! Read post #2 of the NEWBIES thread, it is covered there, just like DQ stage was.
You must NOT miss filing YOUR WS, along with your photos and any other evidence. You can lose by not filing your WS!
Yes (but rarely, most go to a hearing), but again that is shown in the NEWBIES thread post #2, as a couple of linked examples of robust replies to Gladstones, in cases where they have suggested the Defendant 'settles' - LOC123 posted a version I linked there, that you could adapt and show us.Also, has anyone had any luck contacting the claimant at this stage? To basically say - "look, you've taken it this far, now's your last chance to throw out the claim because I will claim my costs against you and my evidence is very compelling. Let's save everyone's time here" - perhaps by email or formal letter...?
But mainly we need you to stick around and show us your WS and photos. What date do you have to file these by?PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top of this/any page where it says:
Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
... but how is the best way to get the video across? Put it on a small USB stick as a video file? Link to a youtube upload or dropbox file?
If you are going to use a video clip as part of your evidence, you need to write separately to the local court and forewarn them of that.
Some of the more modern courts will have laptops in the courtroom where you can just plug in a USB stick and play it; others are still running on very old IT, so best to bring your own laptop or tablet with the file already pre-loaded.
I have been providing assistance, including Lay Representation at Court hearings (current score: won 57, lost 14), to defendants in parking cases for over 5 years. I have an LLB (Hons) degree, and have a Graduate Diploma in Civil Litigation from CILEx. However, any advice given on these forums by me is NOT formal legal advice, and I accept no liability for its accuracy.0 -
Hi all,
Just wanted to double check I am sending the correct documents in preparation for my case at the start of Feb:- a copy of the Beavis case sign as a comparison to show how awful the small print sign was in yours case
- photos proving the scarce and illegible small print signs
- a video of how it looks from a car
- a pdf copy of Schedule 4 of the POFA - is this relevant for my case?
- PCM v Bull case transcript
Is there an example as to how a Witness Statement should look?
Thanks!0 - a copy of the Beavis case sign as a comparison to show how awful the small print sign was in yours case
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FYI court date is 2nd Feb, so filing should be 14 days before which is 19th Jan.0
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Pofa - only if you are relying on the no keeper liability argument in your defence?0
This discussion has been closed.
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