LBC received from Gladstones for UKCPM PPC

Hi Coupon


Shall I add the text in my post #21? Or are you saying that it is ok without that? Also, forgive me, i'm struggling to understand what I have to separate in your point about the different types of contract? Changed the other bits though, re-draft below...


DEFENCE STATEMENT
It is not admitted that the Defendant is liable for this charge, since they were the hirer/lessee of the vehicle and the defence will evidence that there can be no hirer liability in law with the Protection of Freedoms Act 2012, Schedule 4, paragraphs 13/14 ('the POFA').

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. This is incorrect and in fact, impossible for the registered keeper (company) of the vehicle to have assumed, if they even did. It seems more likely to the Defendant that this is a presumption made only by the Claimant (and, given the absence of evidence, not a lawful one). The registered keeper company can never name a hirer/lessee as 'the driver', only as the hirer of the vehicle, which is what they did in order to transfer liability. A parking company must then issue a Notice to Hirer in order to find the named party liable in law. 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.