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LBC received from Gladstones for UKCPM PPC

24567

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  • KeithP
    KeithP Posts: 37,430
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    ...will post a first draft on new thread ASAP.
    No, no, no.

    Not on a new thread please.

    Please continue the saga on this existing thread.

    You will find a lot of knowledgable people will not be bothered to search to find the history of your case.

    Help them to help you. ;)
  • The hire company cannot possibly have named you as the driver, as they have no such informaiton in their possession. They cannot do such a nomination. So of course POFA failure is included.
  • KeithP wrote: »
    No, no, no.

    Not on a new thread please.

    Please continue the saga on this existing thread.

    You will find a lot of knowledgable people will not be bothered to search to find the history of your case.

    Help them to help you. ;)



    Understood, continuation here it is :j
  • Afternoon folks


    Below my defence. I look forward to you all tearing it apart such that the final draft is the real deal! :D Not sure what's happened to the formatting at the bottom there but it looks fine in my Word Doc.


    As I said in one of the paragraphs I have been this week and taken a video of vehicle driving in and a number of photographs of their signs. How do I properly exhibit these as part of the defence?

    As ever my grateful thanks, Ben



    In The County Court


    Claim No. ********


    Between


    UK Car Park Management LTD (Claimant) V *******(Defendant)


    DEFENCE STATEMENT




    • It is submitted that the Claimant is merely an agent acting ‘on behalf of’ the landowner who would be the only proper claimant. Strict proof is required of a chain of contracts leading from the landowner to this Claimant, to allow them the right to form contracts and to sue in their name. Even if this is produced, it is submitted that the alleged 'unauthorised' parking (denied) can only be an event falling under the tort of trespass. As was confirmed in the Beavis case, ParkingEye could not have claimed any sum at all under this tort, whereby only a party in possession of title in the land could claim nominal damages suffered (and there were none).
    • The PCN states in paragraph three that the defendant has been named as the driver following a transfer of liability. The registered keeper of the vehicle does not have the authority to name the defendant as the driver, only as the hirer of the vehicle. In this case the claimant has failed to exercise the correct process in order to pursue me as hirer as laid out in POFA 2014, Schedule 4, Paragraph 14 section (2) subsection (a) as follows “the creditor has within the relevant period given the hirer a notice in accordance with sub-paragraph (5) (a “notice to hirer”), together with a copy of the documents mentioned in paragraph 13(2) and the notice to keeper;” No such documents were received by the defendant despite a request to the claimant for any such documents in the defendant’s response to their Letter Before Claim.
    • Even if the Defendant is found to be liable under the POFA 2012, that law only permits a claimant to recover no more than the sum stated on the PCN. It is submitted that any added fees are simply numbers made up out of thin air, and are an attempt at double recovery by the Claimant, which would not be recoverable in any event.
    • The Claimant’s signs are in small print, the terms are illegible and a driver would could not reasonably be expected to read and understand the terms of parking on entering the car park. Photographs taken by the defendant and a video of a vehicle entering the car park demonstrate the insufficient signage.

    The claimant’s photographs on the PCN do not prove that the vehicle was in breach of the terms of parking, which in any event were not adequately stated as per paragraph No contract was formed with the driver to pay £10, £20, £100 or any sum at all, since the signs have no legible ‘charge’ which could be visible on arrival. No sum payable to this Claimant was accepted nor even known about by any driver who was not given a fair opportunity to discover the onerous terms by which they would later be pursued. Where terms on a parking sign are not seen then there can be no contract (the Defendant relies upon the case of Vine v London Borough of Waltham Forest; CA 5 APR 2000 in this regard).

  • KeithP
    KeithP Posts: 37,430
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    As an aside Benny, you might like to read this thread:
  • Coupon-mad
    Coupon-mad Posts: 130,624
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    edited 9 March 2018 at 11:46PM
    As I said in one of the paragraphs I have been this week and taken a video of vehicle driving in and a number of photographs of their signs. How do I properly exhibit these as part of the defence?

    Not at this stage.

    Evidence is filed with the local court (and Claimant's solicitor) weeks before the hearing, with your Witness Statement, as explained in the NEWBIES thread post #2 (especially read the 'what happens when' links).

    Also, I see nothing to explain what actually happened - is this a lack of permit, not enough pay and display tariff paid, a residential car park where the driver was an authorised tenant, or what?
    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 THREAD
  • Morning Coupon

    Lack of permit is the particulars here. The photographs on the PCN are one of the rear of the vehicle and and of the side. These do not prove that there was no permit, is this a point of defence?

    I'll get on the generic Gladstone's stuff this morning.

    Thanks
    Ben
  • Coupon-mad
    Coupon-mad Posts: 130,624
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    edited 9 March 2018 at 11:47PM
    I'll get on the generic Gladstone's stuff this morning.

    You need to zone in on the fact they haven't met the practice direction nor set out specific particulars of claim. This is done to death in other Gladstones defences.
    Lack of permit is the particulars here. The photographs on the PCN are one of the rear of the vehicle and and of the side. These do not prove that there was no permit, is this a point of defence?
    Definitely, think of everything and cover it now, as you need to hang your hat on these points later in your WS and evidence, ready for a hearing.

    I'm sure there's a permit case example defence in post #2 of the NEWBIES thread.

    And if this is a residents car park you may have missed a trick hugely. ''Own space'' defences are much stronger in terms of case law (Johnersh's example in the NEWBIES thread post #2 springs to mind). A resident has rights of way and possibly a right to park already, as might their visitors.
    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 THREAD
  • Coupon-mad wrote: »
    You need to zone in on the fact they haven't met the practice direction nor set out specific particulars of claim. This is done to death in other Gladstones defences found in 5 seconds flat using the search terms I gave you above.

    Definitely, think of everything and cover it now, as you need to hang your hat on these points later in your WS and evidence, ready for a hearing.

    I'm sure there's a permit case example defence in post #2 of the NEWBIES thread.

    And if this is a residents car park you may have missed a trick hugely. ''Own space'' defences are much stronger in terms of case law (Johnersh's example in the NEWBIES thread post #2 springs to mind). A resident has rights of way and possibly a right to park already, as might their visitors.

    Afternoon, not a resident's car park. Public House car park it is.


    So I have updated defence (copied from notepad this time) with the Gladstones stuff. 33 days after 4th September means I must submit by 7th October if my math is any good? Hopefully i'm somewhere close to having it presentable. Not sure on my paragraph numbering and sub-numbering?


    DEFENCE STATEMENT
    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;
    “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.” UK Car Park Management Ltd are not 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 rights to bring action regarding this claim. 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.
    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 Claimants are known to be serial issuers of generic claims similar to this one. HM Courts Service have identified over 1000 similar sparse claims. I believe the term for such behaviour is ‘roboclaims’ and as such is against the public interest. Practice Direction 3A which references Civil Procedure Rule 3.4 illustrates this point;
    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):
    2.1. Those which set out no facts indicating what the claim is about, for example ‘Money owed £5000’.
    2.2. Those which are incoherent and make no sense.
    2.3. Those which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable claim against the defendant.
    2.4. The claimant has not provided enough details in the particulars of claim to file a full defence:
    2.4.1. The Claimant has disclosed no cause of action to give rise to any debt.
    2.4.2. The Claimant has stated that a ‘parking charge’ was incurred.
    2.4.3. 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.
    2.4.4. 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.
    2.4.5. The Particulars of Claim are incompetent in disclosing no cause of action.
    2.4.5.1 On the 20th September 2016 another relevant poorly pleaded private parking
    charge claim by Gladstones was struck out by District Judge Cross of St Albans County Court without a hearing due to their ‘roboclaim’ particulars being incoherent, failing to comply with CPR. 16.4 and ‘providing no facts that could give rise to any apparent claim in law.’
    2.4.5.2. On the 27thJuly 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 – 7.6. He ordered the Claimant in that case to file new particulars which they failed to do and so the court confirmed that the claim be struck out.
    3. The Claimant has at no time provided an explanation how the ‘parking charge’ has been calculated, the conduct that gave rise to it or how the amount has escalated from £100 to £160. This appears to be an added cost with apparently no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.
    3.1. 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.
    3.2. The driver did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.
    3.2.1. The Defendant denies that the driver would have agreed to pay the original demand of £100 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible. As no contract was formed with the driver to pay £100, or any sum at all, since the signs have no legible ‘charge’ which could be visible on arrival. No sum payable to this Claimant was accepted nor even known about by any driver who was not given a fair opportunity to discover the onerous terms by which they would later be pursued. Where terms on a parking sign are not seen then there can be no contract (the Defendant relies upon the case of Vine v London Borough of Waltham Forest; CA 5 APR 2000 in this regard).
    4. The Claimant’s signs are in small print, the terms are illegible and a driver would could not reasonably be expected to read and understand the terms of parking on entering the car park. Photographs taken by the defendant and a video of a vehicle entering the car park demonstrate the insufficient signage.
    4.1. The claimant’s photographs on the PCN do not prove that the vehicle was in breach of the terms of parking, which in any event are inadequately stated. The small print on the claimant’s signs states “Permits must be clearly displayed in windscreen at all times”. The PCN issued includes two photographs, neither of which include any view of the vehicle windscreen and are therefore wholly inappropriate to rely on in attempting to prove that the terms have been breached.
    5. The PCN states in paragraph three that the defendant has been named as the driver following a transfer of liability. The registered keeper of the vehicle does not have the authority to name the defendant as the driver, only as the hirer of the vehicle. In this case the claimant has failed to exercise the correct process in order to pursue me as hirer as laid out in POFA 2014, Schedule 4, Paragraph 14 section (2) subsection (a) as follows “the creditor has within the relevant period given the hirer a notice in accordance with sub-paragraph (5) (a “notice to hirer”), together with a copy of the documents mentioned in paragraph 13(2) and the notice to keeper;” No such documents were received by the defendant despite a request to the claimant for any such documents in the defendant’s response to their Letter Before Claim. Even if the Defendant is found to be liable under the POFA 2012, that law only permits a claimant to recover no more than the sum stated on the PCN. It is submitted that any added fees are simply numbers made up out of thin air, and are an attempt at double recovery by the Claimant, which would not be recoverable in any event.
  • Also, I think most or all of the following can go in there too. And I should probably refer more specifically to CPM's original appeal rejection letter arguing against the points on which they have rejected the appeal. they list the following -
    1. Our records indicate that the vehicle reg ****** (as shown in the photos) was not authorised to be parked at the location, therefore vehicle in breach of terms and conditions stipulated on all signage displayed within the car park.
    2. It is the driver's responsibility when leaving their vehicle unattended to observe the area and check parking is permitted. There is clear signage placed throughout the parking area stating that the land is private property and restrictions apply.
    3. The photographic evidence of your vehicle show that you are within clear view of one of the many warning signs throughout the development; I have circled in yellow above to alleviate any doubt (how thoughtful of them!!). all signage states terms and conditions of parking within the restricted area. Upon reading the signage you have contractually agreed to pay a parking charge fee as restrictions were breached. It is the driver's responsibility to ensure parking is permitted prior to leaving the vehicle unattended in the restricted area.


    Actually, having typed that our I think I probably have it all covered in my draft above?


    The extra to go in as follows though... ignore para numbers, straight cut and paste from another thread into here.


    The Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to impose 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.
    10.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, woefully inadequate.
    10.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;
    10.1.2. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee’s ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and
    10.1.3. 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
    The Claimant has sent threatening and misleading demands which stated that further debt recovery action would be taken to recover what is owed by passing the debt to a recovery agent (which suggested to the Defendant they would be calling round like bailiffs) adding further unexplained charges with no evidence of how these extra charges have been calculated.
    No figure for additional charges was 'agreed' nor could it have formed part of the alleged 'contract' because no such indemnity costs were quantified on the signs. Terms cannot be bolted on later with figures plucked out of thin air, as if they were incorporated into the small print when they were not.
    Wholly unreasonable and vexatious claim
    12. It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. 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 Defendant respectfully suggests that parking companies using the small claims track as a form of aggressive, automated monetary demands against motorists, alleging 'debts' for parking on free customer parking areas is not something the Courts should be seen to support.
    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 totally 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 denies the claim in its entirety, voiding any liability to the Claimant for all amounts due to the aforementioned reasons. The Defendant asks that the court gives consideration to exercise its discretion to order the case to be struck out under CPR Rule 3.4, for want of a detailed cause of action and/or for the claim having no realistic prospects of success.
    16. If the court is not minded to make such an order, then when Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because it is expected that the Claimant will use its witness statement to provide the sort of detail which should have been disclosed much earlier, and the Defendant should have the opportunity to consider it, prior to serving evidence and witness statements in support of this defence.
    I confirm that the above facts and statements are true to the best of my knowledge and recollection.
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