Gladstones CCC - UKCPM

Thanks Coupon-Mad. If I add in those changes is it best to submit the defence asap?

I've updated the defence statement. If ok, I'll print and post. Changes to 5. and removal of 7. slight update to 12.


___________________________________________________________________________

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 signage was inadequate to form a contract with the motorist.

a) The signage on this site is inadequate to form a contract. It is barely legible, making it
difficult to read. Further to this, no signage was present at these bays and there was no time limit on visitors at the material time. The signs have been altered since but still remain misleading and the claimant is put to strict proof, with dated photographs, of the terms at the visitors' bays on the date in question.

b) The sign fails because it clearly shows the BPA Approved Operator logo, when in fact the BPA have confirmed the claimant is not a BPA Approved Operator.

c) 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.

d) The driver did not enter into any 'agreement on the charge', no consideration flowed
between the parties and no contract was established.
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 legible, because the residents have primacy of contract at this location so any signs elsewhere on site are of no consequence.

e) 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.

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 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.

8. 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’

9. 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.

10. 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.

11. 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.

12. The Defendant disputes that the Claimant has incurred ‘Legal representative’s 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. I submit these ‘costs’ are artificially invented figures in an attempt to circumvent the Small Claims costs rules using double recovery. The Court is invited to report Gladstones to the Solicitors’ Regulation Authority for this deliberate attempt to mislead the Court, in contravention of their Code of Conduct.

13. 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.

14. 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.

15. 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.

16. 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.

17. 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.

Printed on 5 pages. Posted this morning, 1st class recorded.

Yesterday, the cheeky !!!:silenced:!!!s stuck an IAS IPC sticker over the BPA AOS logo on the sign at the entrance only.

I suppose the next step is to wait for the N180 form? Interestingly, my local court is one that was featured in a case on the prankster blog, where the Judge had issue with POFA schedule 4.

Completed N180 dispatched to court and Gladstones.

It's been a while. It's been good to read of some of the successes people have had. This year has got off to a good start, let's hope it continues :T

I received a letter from the local court today, saying that it will be heard by a Deputy District Judge. No date given.

Regarding the SAR sent to UKCPM, it has now gone way past the 40 days they had to reply. :mad: Will this help in this case, or be more suited to a counterclaim. Is it worth complaining to the ICP now?