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Court Claim Form help please
Comments
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Here's the amended defence.
I would really appreciate your feedback so i can send it off as soon as possible. thank you
I assert that I am not liable to the Claimant for the sum claimed, or any amount at all, 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 and when the Parking Charge Notice (PCN) was issued.
2 It is also admitted that the Defendant was the driver when the alleged incident took place.
3 The Defendant suffers from IgA Nephropathy, a critical kidney disease. and was undergoing a type of dialysis called Peritoneal Dialysis (PD) at the time of the alleged incident.
4 Peritoneal Dialysis involves fluid bag exchanges four times a day, every day (Continuous Ambulatory Peritoneal Dialysis, CAPD).
5 The day of the alleged incident was a Sunday and the Defendant was out with his family. As it was time for him to do his scheduled fluid exchange, they decided to look for a restaurant where he could do the same and also where they could have dinner. So he parked up at the spot to quickly go and check whether the restaurant’s disabled toilet was suitable for him to do the fluid exchange.
6 When he returned to the vehicle to move it, there was already a Parking Charge Notice (PCN) on the windscreen within the few minutes he was gone.
7 The PCN was issued for a 2 minute stay. The Claimant, who is the member of the British Parking Association (BPA), has failed to comply withe Claus 13 of the BPA’s Code Of Practice’s General Condition with regards to grace periods:
13 Grace periods
13.1 Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.
13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.
13.3 You should be prepared to tell us the specific grace period at a site if our compliance team or our agents ask what it is.
13.4 You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action.
8 The Defendant suffers from IgA Nephropathy (Berger’s Disease) which is an autoimmune kidney disease. There is no specific cure for the disease and dialysis is just a treatment to help prevent or delay end-stage kidney disease. It is a progressive disease which is covered by The Equality Act 2010 which states:
Progressive Conditions: A progressive condition is one that gets worse over time. People with progressive conditions can be classed as disabled.
The Defendant does not have a blue badge but clearly has a medical problem which is a recognised disability under the Equality Act 2010. This therefore falls under the ‘reasonable adjustments’ criteria of the Act:
16 Disabled motorists
16.1 The Equality Act 2010 says that providers of services to the public must make ‘reasonable adjustments’ to remove barriers which may discriminate against disabled people.
16.2 ‘Reasonable adjustments’ to prevent discrimination are likely to include larger ‘disabled’ parking spaces near to the entrance or amenities for disabled people whose mobility is impaired. It also could include lowered payment machines and other ways to pay if payment is required: for example, paying by phone. You and your staff also need to realise that some disabled people may take a long time to get to the payment machine.
9 It is denied that there was a contract made between the Claimant and the driver through signage. The signage on site (which is scattered and inadequate) states “No parking on roadways at any time” which is a prohibitive instruction, not a contractual offer of any parking licence. Hence, there was no breach of terms as there was no offer of parking and therefore there was no contract - it was at most a civil trespass (though this is neither admitted nor denied).
10 Should the claimant rely on the case of ParkingEye v Beavis, the Defendant would like to point out that under the circumstances explained in Points 8 and 9 above, a charge is unconscionable as defined in the Beavis case. In the Beavis case there was an undenied contract, both sides agreed a contract was offered. In this case, the signage does not offer a contract, it forbids a driver from parking. Therefore as per the Beavis case, there is no complex contractual arrangement to disengage the penalty rule and so the PCN is unenforceable.
11 The Defendant would also like to provide photographic evidence to show that the roadway on which the PCN was issued is a wide roadway and vehicles parked on one side do not obstruct any ongoing traffic.
12 In order to issue parking charges, and to pursue unpaid charges via litigation, the Claimant is required to have the written authority of the landowner, on whose behalf they are acting as an agent. No evidence of such authority has been supplied by the Claimant or their legal representatives, and the Claimant is put to strict proof of the same, in the form of an unreacted and contemporaneous contract, or chain of authority, from the landowner to the Claimant. A Managing Agent is not the Landowner.
13 The Claimant has failed to supply the Defendant with details of the landowner even upon the Defendant’s written request. Hence, the Defendant has been unable to contact the landowners to explain the circumstances to them and to request a cancellation of the PCN.
14 The Claimant’s representatives, Gladstones Solicitors, have artificially inflated the value of the Claim from £100 to £248.30. i submit the added costs have not actually been incurred by the Claimant; any additional charges were not stated on the parking signs and these figures have been plucked out of thin air and applied regardless of facts, as part of their robo-claim litigation model, in an attempt at double recovery, circumventing the Small Claims costs rules. further, Gladstones Solicitor appear to be in contravention of the Solicitors’ Regulation Authority Code of Conduct.
15 The Court is invited to dismiss the Claim, and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14
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i have made a few changes in the wording of the points, etc0
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It reads more as a mix of a witness statement and a defence than one or the other
A defence is a series of legal arguments. Ideally you want a nice clear, simple list someone can follow as to why you are not liable for the charge.
I dont think all info should be excised - as actually the details on the disease, and the sudden requirements it can make on a person, give good background and will hopefully gain the courts sympathy.
So maybe add some headings, for example Background, Equality Act 2010 not complied with (that is the argument you make - the PPC has failed to follow the requirements of the EA2010 in the following ways)
Mandatory Grace periods not complied with - is another heading. You need to make it clear you went insdie to enquire as to the facilities, before moving the vehicle.
NO contract offered - is another heading.
DOuble Recovery - is another. THats the added amounts GS have just pulled from thin air.0 -
nosferatu1001 wrote: »It reads more as a mix of a witness statement and a defence than one or the other
A defence is a series of legal arguments. Ideally you want a nice clear, simple list someone can follow as to why you are not liable for the charge.
I dont think all info should be excised - as actually the details on the disease, and the sudden requirements it can make on a person, give good background and will hopefully gain the courts sympathy.
So maybe add some headings, for example Background, Equality Act 2010 not complied with (that is the argument you make - the PPC has failed to follow the requirements of the EA2010 in the following ways)
Mandatory Grace periods not complied with - is another heading. You need to make it clear you went insdie to enquire as to the facilities, before moving the vehicle.
NO contract offered - is another heading.
DOuble Recovery - is another. THats the added amounts GS have just pulled from thin air.
Thank you nosferatu1001. Is this better?
I assert that I am not liable to the Claimant for the sum claimed, or any amount at all, 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 and when the Parking Charge Notice (PCN) was issued.
2. It is also admitted that the Defendant was the driver when the alleged incident took place.
3. Background
The Defendant suffers from IgA Nephropathy, a critical kidney disease. and was undergoing a type of dialysis called Peritoneal Dialysis (PD) at the time of the alleged incident. Peritoneal Dialysis involves fluid bag exchanges four times a day, every day (Continuous Ambulatory Peritoneal Dialysis, CAPD).
The day of the alleged incident was a Sunday and the Defendant was out with his family. As it was time for him to do his scheduled fluid exchange, they decided to look for a restaurant where he could do the same and also where they could have dinner. So he parked up at the spot to quickly go and check whether the restaurant’s disabled toilet was suitable for him to do the fluid exchange.
Having made the necessary enquiries, the Defendant returned to the vehicle to move it to a suitable parking spot but there was already a Parking Charge Notice (PCN) on the windscreen, issued within the few minutes he was gone.
4. Mandatory Grace Periods Not Complied With
The PCN was issued for a 2 minute stay. The Claimant, who is the member of the British Parking Association (BPA), has failed to comply withe Claus 13 of the BPA’s Code Of Practice’s General Condition with regards to grace periods:
13 Grace periods
13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.
5. Equality Act 2010 Not Complied With
The Claimant has failed to follow the requirements of the Equality Act 2010 which states:
Progressive Conditions: A progressive condition is one that gets worse over time. People with progressive conditions can be classed as disabled.
The Defendant does not have a blue badge but clearly has a medical problem which is a recognised disability under the Equality Act 2010. This therefore falls under the ‘reasonable adjustments’ criteria of the Act:
16 Disabled motorists
16.1 The Equality Act 2010 says that providers of services to the public must make ‘reasonable adjustments’ to remove barriers which may discriminate against disabled people.
16.2 ‘Reasonable adjustments’ to prevent discrimination are likely to include larger ‘disabled’ parking spaces near to the entrance or amenities for disabled people whose mobility is impaired. It also could include lowered payment machines and other ways to pay if payment is required: for example, paying by phone. You and your staff also need to realise that some disabled people may take a long time to get to the payment machine.
6. No Contract Offered
It is denied that there was a contract made between the Claimant and the driver through signage. The signage on site (which is scattered and inadequate) states “No parking on roadways at any time” which is a prohibitive instruction, not a contractual offer of any parking licence. Hence, there was no breach of terms as there was no offer of parking and therefore there was no contract - it was at most a civil trespass (though this is neither admitted nor denied).
7. Should the claimant rely on the case of ParkingEye v Beavis, the Defendant would like to point out that under the circumstances explained in Points 5 and 6 above, a charge is unconscionable as defined in the Beavis case. In the Beavis case there was an undenied contract, both sides agreed a contract was offered. In this case, the signage does not offer a contract, it forbids a driver from parking. The Beavis case confirmed the fact that, if it is a matter of trespass (not breach of any contract), a parking firm has no standing as a non-landowner to pursue even nominal damages. Therefore as per the Beavis case, there is no complex contractual arrangement to disengage the penalty rule and so the PCN is unenforceable.
8. No Obstruction Caused by the vehicle
The Defendant would also like to provide photographic evidence to show that the roadway on which the PCN was issued is a wide roadway and vehicles parked on one side, do not obstruct any ongoing traffic.
9. Proof of Contract not supplied by Claimant
In order to issue parking charges, and to pursue unpaid charges via litigation, the Claimant is required to have the written authority of the landowner, on whose behalf they are acting as an agent. No evidence of such authority has been supplied by the Claimant or their legal representatives, and the Claimant is put to strict proof of the same, in the form of an unreacted and contemporaneous contract, or chain of authority, from the landowner to the Claimant. A Managing Agent is not the Landowner.
10. The Claimant has failed to supply the Defendant with details of the landowner even upon the Defendant’s written request. Hence, the Defendant has been unable to contact the landowners to explain the circumstances to them and to request a cancellation of the PCN.
11. Double Recovery
The Claimant’s representatives, Gladstones Solicitors, have artificially inflated the value of the Claim from £100 to £248.30. i submit the added costs have not actually been incurred by the Claimant; any additional charges were not stated on the parking signs and these figures have been plucked out of thin air and applied regardless of facts, as part of their robo-claim litigation model, in an attempt at double recovery, circumventing the Small Claims costs rules. further, Gladstones Solicitor appear to be in contravention of the Solicitors’ Regulation Authority Code of Conduct.
12. The Court is invited to dismiss the Claim, and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14
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11) ... I require the claimant to provide strict proof that these charges were a) detailed in the purported contract b) invoiced and c) actually paid.
As this is a Gladstones claim you need a new initial arguemnt, after the background. The Particulars of CLaim from Gladstones DO NOT show a cause of action, do not include a copy of te written contract they are alleging has something to do with the claim, etc. It breaches a whole bunch of the CPRs and Practice Directions (PD) on court action. PD7.3-7.5 and CPR16.4, as an example. You ask the court to either strike the claim under their case management powers, for failing to cmoply with CPRs, PDs and in failing to show a clear cause of action, or to order the claimant to provider Further and Better Particulars, and leave for the defendant to amend their defence once a fuller disclosure is made.
For the Equality Act point - state that the claimant has failed to make reasonable adjustment, in allowing disabled motorists even the normal grace period required under their ATA Code of Practice.
ALL paragraphs MUST be numbered.0 -
nosferatu1001 wrote: »11) ... I require the claimant to provide strict proof that these charges were a) detailed in the purported contract b) invoiced and c) actually paid.
As this is a Gladstones claim you need a new initial arguemnt, after the background. The Particulars of CLaim from Gladstones DO NOT show a cause of action, do not include a copy of te written contract they are alleging has something to do with the claim, etc. It breaches a whole bunch of the CPRs and Practice Directions (PD) on court action. PD7.3-7.5 and CPR16.4, as an example. You ask the court to either strike the claim under their case management powers, for failing to cmoply with CPRs, PDs and in failing to show a clear cause of action, or to order the claimant to provider Further and Better Particulars, and leave for the defendant to amend their defence once a fuller disclosure is made.
For the Equality Act point - state that the claimant has failed to make reasonable adjustment, in allowing disabled motorists even the normal grace period required under their ATA Code of Practice.
ALL paragraphs MUST be numbered.
thank you so much for your assistance and patience nosferatu 1001.
I have added the other details as you suggested and the defence now looks like 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 and when the Parking Charge Notice (PCN) was issued.
2. It is also admitted that the Defendant was the driver when the alleged incident took place.
Background
3. The Defendant suffers from IgA Nephropathy, a critical kidney disease. and was undergoing a type of dialysis called Peritoneal Dialysis (PD) at the time of the alleged incident. Peritoneal Dialysis involves fluid bag exchanges four times a day, every day (Continuous Ambulatory Peritoneal Dialysis, CAPD).
4. The day of the alleged incident was a Sunday and the Defendant was out with his family. As it was time for him to do his scheduled fluid exchange, they decided to look for a restaurant where he could do the same and also where they could have dinner. So he parked up at the spot to quickly go and check whether the restaurant’s disabled toilet was suitable for him to do the fluid exchange.
5. Having made the necessary enquiries, the Defendant returned to the vehicle to move it to a suitable parking spot but there was already a Parking Charge Notice (PCN) on the windscreen, issued within the few minutes he was gone.
Preliminary Matters
6. 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.
7. 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 are known to be a serial issuer 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.
8. 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):
(1) those which set out no facts indicating what the claim is about, for example ‘Money owed £5000’,
(2) those which are incoherent and make no sense,
(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
9. On the basis of the above, we request the court strike out the claim for want of a cause of action.
Mandatory Grace Periods Not Complied With
10. The PCN was issued for a 2 minute stay. The Claimant, who is the member of the British Parking Association (BPA), has failed to comply withe Claus 13 of the BPA’s Code Of Practice’s General Condition with regards to grace periods:
13 Grace periods
13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.
Equality Act 2010 Not Complied With
11. The Claimant has failed to follow the requirements of the Equality Act 2010 which states:
Progressive Conditions: A progressive condition is one that gets worse over time. People with progressive conditions can be classed as disabled.
12. The Defendant does not have a blue badge but clearly has a medical problem which is a recognised disability under the Equality Act 2010. This therefore falls under the ‘reasonable adjustments’ criteria of the Act:
16 Disabled motorists
16.1 The Equality Act 2010 says that providers of services to the public must make ‘reasonable adjustments’ to remove barriers which may discriminate against disabled people.
16.2 ‘Reasonable adjustments’ to prevent discrimination are likely to include larger ‘disabled’ parking spaces near to the entrance or amenities for disabled people whose mobility is impaired. It also could include lowered payment machines and other ways to pay if payment is required: for example, paying by phone. You and your staff also need to realise that some disabled people may take a long time to get to the payment machine.
13. The Claimant has failed to make reasonable adjustment in allowing disabled motorists even the normal grace period required under the ATA’s Code of Practice.
No Contract Offered
14. It is denied that there was a contract made between the Claimant and the driver through signage. The signage on site (which is scattered and inadequate) states “No parking on roadways at any time” which is a prohibitive instruction, not a contractual offer of any parking licence. Hence, there was no breach of terms as there was no offer of parking and therefore there was no contract - it was at most a civil trespass (though this is neither admitted nor denied).
15. Should the claimant rely on the case of ParkingEye v Beavis, the Defendant would like to point out that under the circumstances explained in Points 5 and 6 above, a charge is unconscionable as defined in the Beavis case. In the Beavis case there was an undenied contract, both sides agreed a contract was offered. In this case, the signage does not offer a contract, it forbids a driver from parking. The Beavis case confirmed the fact that, if it is a matter of trespass (not breach of any contract), a parking firm has no standing as a non-landowner to pursue even nominal damages. Therefore as per the Beavis case, there is no complex contractual arrangement to disengage the penalty rule and so the PCN is unenforceable.
No Obstruction Caused by the vehicle
16. The Defendant would also like to provide photographic evidence to show that the roadway on which the PCN was issued is a wide roadway and the vehicle in question was not causing any obstruction to other traffic on the day of the incident.
Proof of Contract not supplied by Claimant
17. In order to issue parking charges, and to pursue unpaid charges via litigation, the Claimant is required to have the written authority of the landowner, on whose behalf they are acting as an agent. No evidence of such authority has been supplied by the Claimant or their legal representatives, and the Claimant is put to strict proof of the same, in the form of an unreacted and contemporaneous contract, or chain of authority, from the landowner to the Claimant. A Managing Agent is not the Landowner.
18. The Claimant has failed to supply the Defendant with details of the landowner even upon the Defendant’s written request. Hence, the Defendant has been unable to contact the landowners to explain the circumstances to them and to request a cancellation of the PCN.
Double Recovery
19. The Claimant’s representatives, Gladstones Solicitors, have artificially inflated the value of the Claim from £100 to £248.30. i submit the added costs have not actually been incurred by the Claimant; any additional charges were not stated on the parking signs and these figures have been plucked out of thin air and applied regardless of facts, as part of their robo-claim litigation model, in an attempt at double recovery, circumventing the Small Claims costs rules. further, Gladstones Solicitor appear to be in contravention of the Solicitors’ Regulation Authority Code of Conduct.
20. I require the Claimant to provide strict proof that these charges were
a) detailed in the purported contract
b) invoiced, and
c) actually paid
21. The Court is invited to dismiss the Claim, and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14
I believe the facts stated in this Defence Statement are true.0 -
Hi everyone,
Having sent off our defence, we have received a copy of the Direct Questionnaire from the Claimant.
Do we have to respond to that or do we wait for the Court to send us, the Defendants the same?
Thank you0 -
please read post #2 of the NEWBIES sticky thread, especiallyl the BARGEPOLE post where he explains EXACTLY what to do
also please note, every time you ask a question about this you will likely be directed to read that post #2 , where all the information is stored
its pointless for experienced people to put it there if others dont bother to read it
you are not the first person with a court case, nor the last0 -
SaveMeSomeMoney wrote: »Hi everyone,
Having sent off our defence, we have received a copy of the Direct Questionnaire from the Claimant.
Do we have to respond to that or do we wait for the Court to send us, the Defendants the same?
Thank you
Same advice as here:
http://forums.moneysavingexpert.com/showthread.php?p=73018688#post73018688
Download a N180 - simple. Don't wait. A post by bargepole in the NEWBIES thread tells you how to complete it.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 for your response to my query Coupon-mad. I really appreciate it.
I just wanted to ask if it would be possible to change the Court hearing date in case of an emergency? The Defendant is on the transplant register for a kidney and also has a possible donor so will hopefully receive his transplant within the next few months. so we just wondered if it would be possible to change the date of the hearing if we had to?0
This discussion has been closed.
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