Hi all, I've got a thread running on PePiPoo (same username), but thought a fresh set of eyes might help regarding my situation. Two heads are better than one, so to speak.

I received a county court claim form from Gladstones last week. I've acknowledged the claim online and have created a draft defence. Here's some background:

Car was parked in a visitors space on the estate I live and was ticketed by UK Car Park Management LTD at 9:43pm on 6th March.
The reason for the ticket was given as Overstay.

No sign was available in the visitors parking area. There are signs on the entrance and around the estate. Signs have since been updated to include wording about the visitors spaces:

VEHICLES PARKED ARE ALLOWED TO STAY FOR A MAXIMUM 4 HOURS AND NOT RETURN FOR 4 HOURS. APPLIES 00:00 to 08:00

The signs also have the BPA Approved Operator logo on, when the BPA have stated they're only corporate members'. Parking control started by UKCPM sometime in 2013, apparently to stop residents using the visitors spaces. I moved into the estate in 2015.

The lease states: "Not to use the Visitors Parking Spaces other than for the temporary parking of vehicles belonging to visitors attending at the Property."

Notice to Keeper was received, dated 7th April. Incorrectly ignored. I mistakenly thought there was little point in appealing to the IPC/IAS and their kangaroo court!

Many DRP letters received and ignored.

Letter Before Claim from Gladstones received on 14th November with scant detail and a request to pay £139.

County court claim form received on 30th December. Acknowledged on MCOL. Part 18 request emailed yesterday.

Particulars of Claim:
The driver of vehicle registration ******* (the 'Vehicle') incurred the parking charge(s) on 06/03/2016 for breaching the terms of parking on the land at The Grange xxxx

The Defendant was driving the Vehicle and/or is the Keeper of the Vehicle. AND THE CLAIMENT CLAIMS £139 for Parking Charges / Damages and indemnity costs if applicable, together with interest of £7.96 pursuant to s69 of the Count Courts Act 1984 at 8% pa, continuing to Judgement at 0p per day.

Amount claimed: 146.96
Court fee: 25.00
Legal representative's costs: 50.00
Total amount: 221.96

Here's my draft defence:

BETWEEN:

UK CAR PARK MANAGEMENT LIMITED

-and-

XXX
________________________

DEFENCE STATEMENT
________________________

1) It is admitted that the Defendant is the registered keeper of the vehicle in question.

2) The Particulars of the Claim submitted to the Defendant provide no statement to the nature of the claim and the Defendant does not believe these particulars to be compliant with Civil Procedure Rules 16.4 nor Practice Direction 16 7.3-7.5 inhibiting the ability of the Defendant to provide a comprehensive and conclusive defence.

3) The Defendant has prepared the defence on the presumption that the alleged parking contravention is in reference to an occasion whereby the Defendant’s vehicle was parked in an allocated leasehold residential parking space at the home address of the Defendant.

4) The Defendant denies that the Claimant has the authority to bring a claim. The Claimant does not own the land where the vehicle was parked, nor does he have any interest in the land. He therefore lacks the capacity to offer parking.

a) The Claimant has failed to provide strict proof of a chain of contracts leading from the landowner to the Claimant which show that they have a right to unilaterally remove or interfere with the overriding rights conferred in the Lease.

b) Alternatively, even if a contract could be established, the provision requiring payment of £139.00 is an unenforceable penalty clause and an unfair term contrary to the Consumer Rights Act 2015.

5) The Defendant believes that his personal details have been obtained unlawfully by the Claimant and asks that the Court does not to assist the Claimant to benefit from a wrongdoing. (Ex turpi causa non oritur action).

6) The Defendant has no liability as they are the keeper of the vehicle and the Claimant has failed to comply with the strict provisions of POFA 2012 to hold anyone other than the driver liable for the charges.

a) The driver has not been evidenced on any occasion.

b) There is no presumption in law that the keeper was the driver and nor is the keeper obliged to name the driver to a private parking firm. This was confirmed in the POPLA Annual Report 2015 by the POPLA Lead Adjudicator and the barrister, Henry Gleenslade, when explaining the POFA 2012 principles of ‘keeper liability’ as set out in Schedule 4.

7) The Particulars of Claim do not give any reasons why the Claimant requires a payment other than it results from the ‘Parking Rules’ on the signage. It is a forbidding sign that cannot create a contract. In the cases of B4GF26K6 PCM (UK) v Mr B, B4GF27K3 PCM (UK) v Mr W and B4GF26K2 PCM (UK) v Ms L it was demonstrated that forbidding signage at residential parking spaces did not create a contract.

8) The presence of the Claimant on the land will have supposedly been to prevent parking by uninvited persons, for the benefit of the actual leaseholders and their invited guests. Instead a predatory operation has been carried out on those very people whose interests the Claimant was purportedly there to uphold.

a) The vehicle was parked on land in accordance with the terms of the Lease.

9) In the case of Saeed v Plustrade Limited [2001] EWCA Civ 2011 parking restrictions and a change which caused detriment to tenants and their visitors were held to be in breach of the well-known and well established principle that ‘a grantor shall not derogate from his grant’

10) 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 interests of the landowner. Strict compliance with the BPA(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.

a) In Beavis it was held that the purpose of a parking charge must not be to penalise drivers. Justification must depend on some other ‘legitimate interest in performance extending beyond the prospect of pecuniary compensation flowing directly from the breach in question’. The true test was held to be ‘whether the impugned provision is a secondary obligation which imposes detriment on the contract-breaker out of all proportion to any legitimate interest […..] in enforcement of the primary obligation’

b) There can be no ‘legitimate interest’ in penalising residents or their visitors for using parking spaces, under the excuse of a scheme where ostensibly and as far as the landowner is concerned, the parking firm is contracted for the benefit of the residents. It is unconscionable, contrary to the requirement of good faith and ‘out of all proportion to any legitimate interest’ to fine residents or their visitors for using allocated parking spaces.

11) The exact question regarding terms in a lease was tested recently at Oxford County Court, JOPSON v HOME GUARD SERVICES, Appeal case number B9GF0A9E on 29/9/2016. I will include the transcript of that case at any hearing.

a) The Jopson Appeal case is a persuasive Appeal decision, where Senior Circuit Judge Charles Harris QC found that Home Guard Services had acted unreasonably when issuing a penalty charge notice to Miss Jopson, a resident of a block of flats.

12) The Defendant also relies upon the Croydon Court decision in Pace Recovery and Storage v Mr N C6GF14FO 16/9/2016, where District Judge Coonan dismissed the claim and refused leave to appeal, having found that a third party parking firm cannot unilaterally alter the terms of the tenancy agreement.

13) The Defendant disputes that the Claimant has incurred solicitors costs of £50 to prepare the claim. The Defendant refers the Court to the incompetent Particulars of Claim that disclose neither the basis for the claim nor a definite cause of action.

14) 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.

15) 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.

16) 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.

17) It is denied that the Claimant has authority to bring this claim. The proper Claimant (if any debt exists, which is denied) would be the landowner.

18) I request 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''.

I believe the facts stated in this Defence Statement are true.


Could anything be added or taken out to make this as strong a defence as possible?

Thanks in advance