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  • FIRST POST
    • simonsam1964
    • By simonsam1964 19th Apr 17, 2:03 PM
    • 16Posts
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    simonsam1964
    Gladstones - Court Claim Form & defence
    • #1
    • 19th Apr 17, 2:03 PM
    Gladstones - Court Claim Form & defence 19th Apr 17 at 2:03 PM
    Hello
    Firstly, I have read the sticky and I hope that by posting this thread I’m not contravening the rules or spirit of the board – if I am, huge apologies and I’ll stop straight away!

    I have been served with a Court Claim Form relating to Gladstones Solicitors and compiled, with the help of lots of templates and the contents of this board, a defence. I’d just be enormously grateful if somebody who knows what they’re looking at could take a quick look and advise.
    In essence, I was lost early evening, turned into a car park (office site) to find my way on a phone based map, and then returned to the road around 2-3 minutes later. Seems it was caught on camera I received no initial letter from the company re this or anything about contravening their parking policy (I wasn't parked, in my view) I did receive a Letter before Claim from Gladstones about somebody elses vehicle, unknown to me - I wrote to them and said was nothing to do with me (not my car). Then I received another re my car, I wrote and asked for more info, explained that I’d not had any original letter & could they provide the detail. They sent pics of my car, indistinguishable driver, over a 3 minute period. I wrote again, said I accepted no responsibility, asked for detail and received nothing, then the Court Doc arrived. My defence is the letter below, plus my correspondence with them and a photo of the largely illegible sign at the site. I have 8 days left of the 28 day period having acknowledged on moneycaim but provided no defence as yet.
    Any advice gratefully received. Thank you

    (Begins)
    I am XXXXXXXXXXX, the defendant in this matter and registered keeper of vehicle XXXXX. I currently reside at XXXXXXXXXXXXX.

    I deny I am liable for the entirety of the claim for each and every one of the following reasons:

    1/ This Claimant has not complied with pre-court protocol:

    (a) There was no compliant ‘Letter before County Court Claim’, under the Practice Direction, despite the Defendant's requests for this and further information.

    (b) The defendant did not receive any letter requesting payment from the claimant. No letter was received, either, from the claimant’s legal representative, despite informing them (claimant’s legal representative) that no letter had been received.

    (c) This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The badly mail-merged documents contain very little information. The covering letter merely contains a supposed PCN number with no contravention nor photographs.

    (d) The claimant’s legal representative sent an erroneous Letter Before Claim, demanding payment relating to another vehicle, not known to the defendant, prior to the defendant subsequently receiving a Letter Before Claim regarding their vehicle. This was not acknowledged despite the defendant seeking further information.

    2/ The Claim form Particulars were extremely sparse and divulged no cause of action nor sufficient detail. The Defendant has little idea what the claim is about - why the charge arose, what the alleged contract was; nothing that could be considered a fair exchange of information.

    3/ The Defendant put the Claimant to strict proof that it issued a compliant notice under Schedule 4 of the Protection of Freedoms Act 2012. Absent such a notice served within 14 days of the parking event and with fully compliant statutory wording, this Claimant is unable to hold me liable under the strict ‘keeper liability’ provisions.

    4/ Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case:
    (a) Lack of site/entrance signage - breach of the POFA 2012 Schedule 4 and the BPA Code of Practice and no contract formed to pay any clearly stated sum.
    (b) The signage was not lit and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the UTCCRs (as applicable at the time).
    (c) No promise was made by the driver that could constitute consideration because there was no offer known nor accepted. No consideration flowed from the Claimant.
    (d) Absent the elements of a contract, there can be no breach of contract.

    5/ BPA CoP breaches - this distinguishes this case from the Beavis case:
    (a) the signs were not compliant in terms of the font size, lighting or positioning.
    (b) sum pursued exceeds £100.

    6/ No standing - this distinguishes this case from the Beavis case:
    It is unclear whether UK Parking Management & Enforcement hold a legitimate contract at this car park. As an agent, the Claimant has no legal right to bring such a claim in their name which should be in the name of the landowner.

    7/ 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.

    8/ The charge is an unenforceable penalty based upon a lack of commercial justification. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim.

    9/ The claimant has added unrecoverable sums to the original parking charge. If Mr XXXXXXX (claimants legal representative who signed the form) is an employee then the Defendant suggests he is remunerated and the particulars of claim are templates, so it is not credible that £50 legal costs were incurred. The defendant denies the Claimant is entitled to any interest whatsoever.

    The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has:
    (a)Issued an erroneous claim to the defendant regarding an unknown vehicle, rendering their administration questionable
    (b) Failed to disclose any cause of action in the Claim Form issued on xxxxxxxxxxxxxx
    (c) failed to respond to a letter from the Defendant dated xxxxxxx requesting further information and details of the claim and subsequently a second letter dated xxxxxxxxxxxx

    The vague Particulars of Claim disclose no clear cause of action. The court is invited to strike out the claim of its own volition as having no merit and no reasonable prospects of success.

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

    xxxxxxxx

    (Ends)
Page 1
    • Fruitcake
    • By Fruitcake 19th Apr 17, 2:22 PM
    • 39,205 Posts
    • 78,334 Thanks
    Fruitcake
    • #2
    • 19th Apr 17, 2:22 PM
    • #2
    • 19th Apr 17, 2:22 PM
    Did you give away the driver's identity in your original correspondence?

    Your reply is probably OK as far as responding to s LBCCC, but far too short and lacking in detail as a court defence.

    Have you acknowledged the claim with the court, or is this a response to a LBC/LBA/LBCCC?

    The parking company is an IPC member, not BPA member, so reference to the BPA CoP is irrelevant.
    Last edited by Fruitcake; 19-04-2017 at 2:24 PM.
    I married my cousin. I had to...
    I don't have a sister.

    All my screwdrivers are cordless.
    "You're Safety Is My Primary Concern Dear" - Laks
    • simonsam1964
    • By simonsam1964 19th Apr 17, 2:40 PM
    • 16 Posts
    • 4 Thanks
    simonsam1964
    • #3
    • 19th Apr 17, 2:40 PM
    • #3
    • 19th Apr 17, 2:40 PM
    Hi. Thanks for the response - extremely helpful. I didn't give away the drivers identity, nor did I admit anything. The detail I have for the defence, beyond the letter you've seen, are my letters to them, their replies (and the erroneous letter) along with a photo of the sign in the car park
    • simonsam1964
    • By simonsam1964 19th Apr 17, 2:42 PM
    • 16 Posts
    • 4 Thanks
    simonsam1964
    • #4
    • 19th Apr 17, 2:42 PM
    • #4
    • 19th Apr 17, 2:42 PM
    Sorry - too quick on the button - Yes, I have acknowledged the Claim with the Court but not posted a defence as yet.
    • Fruitcake
    • By Fruitcake 19th Apr 17, 2:43 PM
    • 39,205 Posts
    • 78,334 Thanks
    Fruitcake
    • #5
    • 19th Apr 17, 2:43 PM
    • #5
    • 19th Apr 17, 2:43 PM
    Hi. Thanks for the response - extremely helpful. I didn't give away the drivers identity, nor did I admit anything. The detail I have for the defence, beyond the letter you've seen, are my letters to them, their replies (and the erroneous letter) along with a photo of the sign in the car park
    Originally posted by simonsam1964
    OK, that's all good so far, but are you still at the LBC stage or have you had real court papers or MCOL? This is most important for the regulars to understand where you are in the process.

    For court, there is a lot of information in post 2 of the NEWBIES thread, plus a link to a court guide by a poster called bargepole. This tells you what to do, when, and how.
    I married my cousin. I had to...
    I don't have a sister.

    All my screwdrivers are cordless.
    "You're Safety Is My Primary Concern Dear" - Laks
    • simonsam1964
    • By simonsam1964 19th Apr 17, 2:59 PM
    • 16 Posts
    • 4 Thanks
    simonsam1964
    • #6
    • 19th Apr 17, 2:59 PM
    • #6
    • 19th Apr 17, 2:59 PM
    I have had a Claim Form issued from County Court Business Centre in Northampton (I understand this is the default for online submissions) which I've responded to on moneyclaim.gov.uk

    I have spent a while reading Bargepole's replies to similar cases (much of which formed the basis of my proposed response - it's hugely helpful). I was hoping/thinking that what I've got/done so far is in line with Bargepole's advice, but I'm going to go back again and check! This is all extremely helpful for somebody who doesn't do this sort of thing often - so thanks again.
    • Loadsofchildren123
    • By Loadsofchildren123 19th Apr 17, 3:10 PM
    • 858 Posts
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    Loadsofchildren123
    • #7
    • 19th Apr 17, 3:10 PM
    • #7
    • 19th Apr 17, 3:10 PM
    Assuming you do have a court claim and this is the defence, my comments are:


    3/ I wouldn't put them to proof. You say you didn't receive one, so just say that:
    The Defendant never received any Notice to Keeper from the Claimant. The first communication the Defendant received was a letter dated x. The Defendant puts the Claimant to strict proof that it issued a compliant notice to keeper under Schedule 4 of the Protection of Freedoms Act 2012. Absent such a notice served within 14 days of the parking event and with fully compliant statutory wording, this Claimant is unable to hold the Defendantme liable under the strict ‘keeper liability’ provisions of Schedule 4 of POFA.

    4/ The Defendant denies that any contract was formed between the driver and the Claimant because of Inadequate signage which was incapable of forming any contract would can have bound the driver - this distinguishes this case from the Beavis case:
    (a) Lack of site/entrance signage - breach of the POFA 2012 Schedule 4 and the BPA Code of Practice and no contract formed to pay any clearly stated sum.
    (b) The signage was not lit and any terms were not transparent or legible;
    (c) any contract which may have been formed is void because its terms are unfair as they were contrary to the UTCCRs (as applicable at the time),
    (d) no terms were agreed by the driver
    (c) No promise was made by the driver that could constitute consideration because there was no offer known nor accepted. No consideration flowed from the Claimant.
    (d) Absent the elements of a contract, there can be no breach of contract.


    new 5/ The Defendant further denies that any contract was formed because the driver did not "park" according to the ordinary meaning of that word or according to the definition in POFA [check there is a definition]; the driver merely drove into and out of the site, a period of only 3 minutes passing between the time of entry and the time of exit recorded by the Claimant. The driver cannot therefore have accepted any contractual terms (if any, which is denied) that were offered by the Claimant.

    5/ BPA CoP breaches - this distinguishes this case from the Beavis case:
    (a) the signs were not compliant in terms of the font size, lighting or positioning.
    (b) sum pursued exceeds £100.
    (c) you need to add in that the CoP provides for a grace period and on any reasonable interpretation 3 minutes would fall within a grace period




    Are you admitting being the driver? In which case you should say that at the start. I think you have a good enough defence not to have to deny being the driver: if you deny driving for the sake of it the court can make a finding that you were driving (eg if you can't show other people on the insurance). Although there is no legal presumption that RK was driving, as PPCs often claim, if it is pretty obvious you were driving the court will make a finding that you were. I always think it's pointless denying or not admitting being the driver where this is the case, and where you have a good defence.


    I'd swap around my new 5 and your old 4, my point 5 is a stronger contractual argument and should be your first argument, over and above inadequate signage.




    Para 2 - add that this is in direct breach of CPR Rule 16.4 and Practice Direction 7E paragraph 5.2 and, if a contract is relied upon, the absence of the contractual terms is a breach of Practice Direction 16 para 7.3. And put here that the Defendant wrote to the Claimant on x date prior to proceedings being issued to ask it to provide further and appropriate details of the Claim, in compliance with these Rules, and the Claimant ignored that letter in complete defiance of its obligations pursuant to paragraphs 6(a), 6(c) and 12 of the Practice Direction - Pre-Action Conduct.


    Have a play around with it and re-post an amended version and I'll have another look at it then. Others will comment too. It's not quite focussed enough at the moment. We will help, don't worry.
    • simonsam1964
    • By simonsam1964 19th Apr 17, 3:27 PM
    • 16 Posts
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    simonsam1964
    • #8
    • 19th Apr 17, 3:27 PM
    • #8
    • 19th Apr 17, 3:27 PM
    Blimey - thank you so much! I'm about leave for work so I'll get back onto this later (likely tomorrow morning by the time I've amended as per comments and Bargepole/Newbie sticky 2) but this is tremendous, thank you (I'm saying this too much, aren't I........)
    • DoaM
    • By DoaM 19th Apr 17, 4:38 PM
    • 2,428 Posts
    • 2,447 Thanks
    DoaM
    • #9
    • 19th Apr 17, 4:38 PM
    • #9
    • 19th Apr 17, 4:38 PM
    It's refreshing to find a newbie willing to grasp the nettle and get stuck into this. Far too often we get posts WITH CAPITAL LETTERS (PANIC PANIC) and lots of !!!!!!!!!!!!!!!!!
    Diary of a madman
    Walk the line again today
    Entries of confusion
    Dear diary, I'm here to stay
    • simonsam1964
    • By simonsam1964 20th Apr 17, 11:21 AM
    • 16 Posts
    • 4 Thanks
    simonsam1964
    Hello again.

    So, I've taken onboard all the comments and advice, and edited the letter accordingly. Having looked at Bargepole's advice and also at Parking Prankster and others, I'm anxious but determined to see this through. I've searched quite a lot for a clear definition of 'parking' as per Loadsofchildren123's advice but in the absence of anything concrete, I've written whet I hope seems sensible and reasonable about what actually constitutes 'parking' per se. Anyhow, the following is where I'm at and, as ever, any comments or advice will be gratefully received (its actually better laid out than it appears as formatting seems to disappear when copying to the board):

    (BEGINS)

    The Defendant in this matter and registered keeper of vehicle XXXXX is XXXXX and he currently resides at XXXXXXXXXXXXX.

    Whilst the Defendant admits that he was the driver of the vehicle XXXXXXX at the time off the particular incident, he denies that he is liable for the entirety of the claim for each and every one of the following reasons:

    1/ This Claimant has not complied with pre-court protocol

    (a) There was no compliant ‘Letter before County Court Claim’, under the Practice Direction, despite the Defendant's requests for this and further information.

    (b) The Defendant did not receive any letter requesting payment from the Claimant. No copy letter was received, either, from the Claimant’s legal representative, despite informing them (Claimant’s legal representative) that no original letter had been received.

    (c) This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The badly mail-merged documents contain very little information. The first-received covering letter merely contains a supposed PCN number with insufficient contravention details, nor any photographs.

    (d) The Claimant’s legal representative sent an erroneous Letter Before Claim, demanding payment relating to another vehicle, not known to the defendant, prior to the defendant subsequently receiving a Letter Before Claim regarding their vehicle. This was not acknowledged despite the defendant seeking further information in writing.

    2/ The Claim form particulars were extremely sparse and divulged no cause of action nor sufficient detail.
    The Defendant had little idea what the claim is about - why the charge arose, what the alleged contract was; nothing that could be considered a fair exchange of information. This is in direct breach of CPR Rule 16.4 and Practice Direction 7E paragraph 5.2 and, if a contract is relied upon, the absence of the contractual terms is a breach of Practice Direction 16 para 7.3.
    The Defendant wrote to the Claimant on xxxx prior to proceedings being issued, asking them to provide further and appropriate details of the Claim, in compliance with these Rules, and the Claimant ignored that letter in complete defiance of its obligations pursuant to paragraphs 6(a), 6(c) and 12 of the Practice Direction - Pre-Action Conduct.

    3/ The Defendant never received any Notice to Keeper from the Claimant.
    The first communication the Defendant received was a letter dated XXXX from the Claimant’s solicitor. He immediately wrote to the Claimant’s legal representative explaining that no letter had been received but received no copy communication. The Defendant puts the Claimant to strict proof that it issued a compliant notice to keeper under Schedule 4 of the Protection of Freedoms Act 2012. Absent such a notice served within 14 days of the parking event and with fully compliant statutory wording, this Claimant is unable to hold the Defendant liable under the strict ‘keeper liability’ provisions of Schedule 4 of POFA.

    4/ The Defendant further denies that any contract was formed because the driver did not "park”.
    The Defendant denies that he parked according to the commonly understood meaning of that word and according to common understanding within POFA; the driver merely drove into of the site when he had lost his way, checked written directions for a short period (only 3 minutes according to the time of alleged parking recorded by the Claimant) then left. The driver cannot therefore have accepted any contractual terms (if any, which is denied) that were offered by the Claimant.

    5/ The Defendant denies that any contract was formed between the driver and the Claimant.
    The existence of a contract is denied because of inadequate signage; the existing signage was incapable of forming any contract which would have bound the driver - this distinguishes this case from the Beavis case:
    (a) Inadequate of site/entrance signage - breach of the POFA 2012 Schedule 4, and no contract was formed to pay any clearly stated sum.
    (b) The signage was not lit and any terms were not transparent or clearly legible;
    (c) Any contract which may have been formed is void because its terms are unfair as they were contrary to the UTCCRs (as applicable at the time),
    (d) No terms were agreed by the driver
    (e) No promise was made by the driver that could constitute consideration because there was no offer known nor accepted. No consideration flowed from the Claimant.
    (f) The signs were not compliant in terms of the font size, lighting or positioning.
    (g) Sum pursued exceeds £100.

    Absent the elements of a contract, there can be no breach of contract.

    6/ No standing (this distinguishes this case from the Beavis case)
    It is unclear whether UK Parking Management & Enforcement hold a legitimate contract at this car park. As an agent, the Claimant has no legal right to bring such a claim in their name which should be in the name of the landowner.

    The Beavis case confirmed the fact that, if the case concerned 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.

    The charge is an unenforceable penalty based upon a lack of commercial justification. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim.

    7/ The Claimant has added unrecoverable sums to the original parking charge.
    If Mr XXXXXXX (Claimant’s legal representative, who signed the form) is an employee then the Defendant suggests he is remunerated and the particulars of claim are templates, so it is not credible that £50 legal costs were incurred. The defendant denies the Claimant is entitled to any further payment.

    The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has:

    (a)Issued an erroneous claim to the defendant regarding an unknown vehicle, rendering their administration questionable

    (b) Failed to disclose any cause of action in the Claim Form issued on xxxxxxxxxxxxxx

    (c) failed to respond to a letter from the Defendant dated xxxxxxx requesting further information and details of the claim and subsequently a second letter dated xxxxxxxxxxxx

    The vague Particulars of Claim disclose no clear cause of action. The court is invited to strike out the claim of its own volition as having no merit and no reasonable prospects of success.

    It is believed the facts contained in this Defence Statement are true.
    In support of these arguments, the defendant has provided the specific correspondence between him and Gladstones Solicitors in chronological order (five items of correspondence). Also supplied is a sample photograph of the signs which are placed occasionally around the site.

    (ENDS)
    • Loadsofchildren123
    • By Loadsofchildren123 20th Apr 17, 11:59 AM
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    Loadsofchildren123
    I've searched quite a lot for a clear definition of 'parking' as per Loadsofchildren123's advice
    Originally posted by simonsam1964
    I'm sure there was a recent case which defined it (I think the case was someone who'd stopped to unload and the DJ said that wasn't "parking"), albeit only at DJ level (which makes it "persuasive" rather than "binding" on other judges - ie they should pay some attention to it but don't have to follow it). I can't find it in my papers. I have a feeling Parking Prankster blogged it.


    One of the regulars will hopefully know.
    • simonsam1964
    • By simonsam1964 20th Apr 17, 12:14 PM
    • 16 Posts
    • 4 Thanks
    simonsam1964
    Ah - I think I have seen that example: it was in one of the blogs (poss Prankster) and also referred in one of the Industry Bodies' ToR, I think. I'll go back and dig some more......
    Thanks again btw :-)
    • simonsam1964
    • By simonsam1964 20th Apr 17, 1:15 PM
    • 16 Posts
    • 4 Thanks
    simonsam1964
    Still looking, but I'm likeing the cut of Wikipedia's jib...

    "From Wikipedia, the free encyclopedia
    Parking is the act of stopping a vehicle and leaving it unoccupied for more than a brief time."
    • Loadsofchildren123
    • By Loadsofchildren123 20th Apr 17, 1:30 PM
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    Loadsofchildren123
    What does Oxford English say? Judges will like an OE definition I think rather than this new-fangled Wikipedia thing.
    • Loadsofchildren123
    • By Loadsofchildren123 20th Apr 17, 2:08 PM
    • 858 Posts
    • 1,455 Thanks
    Loadsofchildren123

    1/ This Claimant has not complied with pre-court protocol

    (a) There was no compliant ‘Letter before County Court Claim’, under the Practice Direction, despite the Defendant's requests for this and further information made on [x date].

    (b) The Defendant did not receive any letter requesting payment from the Claimant. No copy letter was received, either, from the Claimant’s legal representative, despite informing them (Claimant’s legal representative) that no original letter had been received.

    (c) This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The badly mail-merged documents contain very little information. The first-received covering letter merely contains a supposed PCN number with insufficient contravention details, nor any photographs.

    (d) The Claimant’s legal representative sent an erroneous Letter Before Claim, demanding payment relating to another vehicle, not known to the defendant, prior to the defendant subsequently receiving a non-compliant Letter Before Claim regarding his/her vehicle. The Claimant failed to acknowledge its mistake despite the defendant seeking further information in writing.
    I'm confused by what actually happened. Are you saying that you received nothing at all until the wrong LBC arrived on your doorstep, you then asked about it and they then sent a corrected one and then refused to answer any questions about the claim? This isn't clear, you need to play around with it to make the chronology clearer.
    2/ The Claim form particulars are extremely sparse and divulged no cause of action nor sufficient detail for the Defendant to understand the claim being brought.
    The Defendant has little idea what the claim is about - how why the charge arose, what the alleged contract was; nothing that could be considered a fair exchange of information. This is in direct breach of CPR Rule 16.4 and Practice Direction 7E paragraph 5.2 and, if a contract is relied upon, the absence of the contractual terms is a breach of Practice Direction 16 para 7.3.
    The Defendant wrote to the Claimant on xxxx prior to proceedings being issued, asking them to provide further and appropriate details of the Claim, in compliance with these Rules, and the Claimant ignored that letter in complete defiance of its obligations pursuant to paragraphs 6(a), 6(c) and 12 of the Practice Direction - Pre-Action Conduct.

    3/ The Defendant never received any Notice to Keeper from the Claimant.
    The first communication the Defendant received was a letter dated XXXX from the Claimant’s solicitor [purporting to be a Letter Before Claim???]. The DefendantHe immediately wrote to the Claimant’s legal representative explaining that no letter had been received [not sure what you mean here - do you mean previous correspondence had been received, and that this was the first the Defendant was aware of any alleged parking charge?] but received no response copy communication. The Defendant puts the Claimant to strict proof that it issued a compliant notice to keeper under Schedule 4 of the Protection of Freedoms Act 2012. Absent such a notice served within 14 days of the parking event and with fully compliant statutory wording, this Claimant is unable to hold the Defendant liable under the strict ‘keeper liability’ provisions of Schedule 4 of POFA.

    4/ If the Claim is for a breach of contract (which is not at all clear from the Particulars of Claim) The Defendant further denies that any contract was formed because there is an absence of offer, acceptance and consideration, as set out below.

    5/ Tthe driver did not "park” and cannot therefore have accepted any contractual terms offered.
    The Defendant denies that he parked according to the commonly understood meaning of that word and according to common understanding within POFA; the driver merely drove into of the site when he had lost his way, checked where he was and then left written directions for a short period (the car was present on the site for only 3 minutes according to the time of alleged parking recorded by the Claimant) then left. For any contract to have been formed, the driver must have been made aware of the terms and must have been given the opportunity to consider whether or not to accept them. A 3 minute presence on the site clearly indicates that tThe driver cannot therefore have accepted any contractual terms that were offered by the Claimant (if any were in fact offered, which is denied) that were offered by the Claimant.

    5/ The Defendant denies that any contract was formed between the driver and the Claimant Claimant's signage was not capable of making an offer, and did not make any offer, which was capable of being accepted. The Defendant relies on the following:
    The existence of a contract is denied because of inadequate signage; the existing signage was incapable of forming any contract which would have bound the driver - this distinguishes this case from the Beavis case: [leave mention of Beavis for your witness statement]
    (a) Inadequate of site/entrance signage - the wording on the signs did not make any clear offer. In the alternative, to the extent that any offer was made, the signage was displayed in such a way that any terms were not brought to the driver's attention - in breach of the POFA 2012 Schedule 4 and the IPC compulsory ATA Code of Practice, of which the Claimant is a member, and no contract was formed to pay any clearly stated sum.
    (b) The signage was not lit and any terms were not transparent or clearly legible;
    (c) Any contract which may have been formed (which, for the avoidance of doubt, is denied) is void because its terms are unfair as they were contrary to the UTCCRs (as applicable at the time),
    (d) No terms were agreed by the driver
    (e) No promise was made by the driver that could constitute consideration because there was no offer known nor accepted. No consideration flowed from the Claimant.
    (f) The signs were not compliant in terms of the font size, lighting or positioning. I think above wording already covers this
    (g) Sum pursued exceeds £100 [do you mean that it is therefore an unrecoverable penalty?].

    Absent the elements of a contract, there can be no contract of which the Defendant can have breached breach of contract.

    6/ The Claimant has no legal standing to bring this claim (this distinguishes this case from the Beavis case)
    It is unclear whether UK Parking Management & Enforcement hold a legitimate contract with the landowner to manage the parking and to issue and pursue payment of charges at this car park. As an agent, the Claimant has no legal right to bring such a claim in their name which should be in the name of the landowner.

    [give this its own para number] If, on the other hand, the claim arises from a trespass (again, which is not at all clear from the Particulars of Claim) then The Beavis case confirmed the fact that, if the case concerned 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.

    7/ The charge is an unenforceable penalty based upon a lack of commercial justification. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim.[I think this is better as part of original para 5]

    7/ The Claimant has added unrecoverable sums to the original parking charge.
    If Mr XXXXXXX (Claimant’s legal representative, who signed the form) is an employee then the Defendant suggests he is remunerated and the particulars of claim are templates, so it is not credible that £50 legal costs were incurred. The defendant denies the Claimant is entitled to any further payment.

    The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has:

    (a)Issued an erroneous claim to the defendant regarding an unknown vehicle, rendering their administration questionable

    (b) Failed to disclose any cause of action in the Claim Form issued on xxxxxxxxxxxxxx

    (c) failed to respond to a letter from the Defendant dated xxxxxxx requesting further information and details of the claim and subsequently a second letter dated xxxxxxxxxxxx

    The vague Particulars of Claim disclose no clear cause of action. The court is invited to strike out the claim of its own volition as having no merit and no reasonable prospects of success.

    It is believed the facts contained in this Defence Statement are true.
    In support of these arguments, the defendant has provided the specific correspondence between him and Gladstones Solicitors in chronological order (five items of correspondence). Also supplied is a sample photograph of the signs which are placed occasionally around the site.You don't normally exhibit documents to a defence, but no harm in doing so if it might persuade a judge to throw this out at an early stage - but when you file the defence you must invite the court to strike out the claim under CPR Rule 3.4 using its inherent case management powers under Rule 1.4(2)(c) and Practice Direction 26, paragraph 5.1 , otherwise the defence won't even be read, it'll just be filed]

    (ENDS)
    Originally posted by simonsam1964

    I think add a para at the end:


    Because the Particulars of Claim are so sparse (a breach of inter alia CPR Rule 16.4) it is difficult for the Defendant (a litigant in person) to file a proper defence. For the avoidance of doubt, should this matter proceed then the Defendant puts the Claimant to full proof of every aspect of its claim. He must also, given the lack of particularisation of the claim, reserve the right to raise further points in his defence, should the Claimant further particularise its claim (for instance, in any witness evidence).
    • Loadsofchildren123
    • By Loadsofchildren123 20th Apr 17, 2:24 PM
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    Loadsofchildren123
    OP, I'm amending your version rather than re-writing it. If you want to see the defence I filed (I was not the defendant but drafted the documents), here is a link to an anonymised version on dropbox:


    https://www.dropbox.com/s/sdv35g3pa5vq8uh/AMENDED%20DEFENCE%20anon.docx?dl=0


    Some of this won't apply to you at all, but you will see how it's been set out. You will also see that I dealt with breaches of POFA in detail - if you prefer you can deal with the issue briefly in this Defence, but elaborate in your WS. All points of defence should be included, even if in brief. I dealt with Beavis, but in retrospect could have left this to the WS stage.


    I sent in this Defence AFTER I'd had their WS, so ignore that part of it.


    Have you checked whether the Claimant had planning/advertisement permission for the signs? If not it's a criminal offence and you should add this to your defence. Search on the council's planning portal online (you'll need the location or postcode) and you'll see if they have had planning. Or phone your council, they are usually very helpful. I can give you some wording if they didn't have permission.
    • simonsam1964
    • By simonsam1964 20th Apr 17, 2:29 PM
    • 16 Posts
    • 4 Thanks
    simonsam1964
    Fantastic - thank you. As yet I've not got hold of an OED description of 'parking' (not available online for free - searching for a hard copy in my book pile....!) though other descriptions are vague and not hugely helpful. Your amends are really helpful though - certainly much more focussed than I was (!).
    • simonsam1964
    • By simonsam1964 20th Apr 17, 3:41 PM
    • 16 Posts
    • 4 Thanks
    simonsam1964
    Thank you LoC123.
    Latest iteration of defence statement below. Still trying to establish whether the signs have (or need) planning permission - Council's website is full of detail, but confusing! I hope I've clarified the chronology of letters etc now - its almost reads like I'm making the same point more than once, but it seems to relate to a slightly different thing that they did (or didn't do)......


    (BEGINS)
    1/ This Claimant has not complied with pre-court protocol

    (a) There was no compliant ‘Letter before County Court Claim’, under the Practice Direction, despite the Defendant's requests for this and further information made on [x date].

    (b) The Defendant did not receive any letter requesting payment from the Claimant. No copy letter was received, either, from the Claimant’s legal representative, despite informing them (Claimant’s legal representative) that no original letter had been received.

    (c) This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The badly mail-merged documents contain very little information. The first-received covering letter merely contains a supposed PCN number with insufficient contravention details, nor any photographs.

    (d) The Claimant’s did not receive any letter from the Claimant regarding any parking issue. The first communication received by the defendant was an incorrect Letter Before Claim from the Claimant’s legal representative, Gladstones Solicitors, demanding payment concerning a vehicle not owned by or known to the Defendant. The Defendant did not act as this was clearly a mistake and not related to him. The Claimant’s legal representative then sent another non-compliant Letter Before Claim, demanding payment relating to the defendant’s vehicle. The defendant wrote to the Claimant’s legal representative, telling them that he had not received any previous communication from the Claimant, and that the only letter he had received prior to the non-compliant Letter Before Claim was concerning another vehicle XXXXXX not know to him, and asked for further information as to why the Legal Representative was pursuing him. The Claimant failed to acknowledge its mistake despite the defendant seeking further information in writing.

    The Defendant then received a brief, unattributed letter from the Claimant’s legal representative stating that ‘the charge was issued on 1 September 2016 to vehicle XXXXXXX for unauthorised parking as you were parked without a valid permit’ and enclosing photographs purporting to show the vehicle in an unidentified place for a 3 minute period.

    The defendant wrote back to the Claimant’s legal representative on XXXXXX reiterating that he had received no correspondence from the Claimant and detailing, once more, the correspondence trail and chronology. The Defendant requested the full name and address of the client in addition to details of how and why the parking claim was being made, and also how the amount demanded was calculated. No response was received.

    2/ The Claim form particulars are extremely sparse and divulged no cause of action nor sufficient detail for the Defendant to understand the claim being brought.
    The Defendant has little idea what the claim is about - how the charge arose, what the alleged contract was; nothing that could be considered a fair exchange of information. This is in direct breach of CPR Rule 16.4 and Practice Direction 7E paragraph 5.2 and, if a contract is relied upon, the absence of the contractual terms is a breach of Practice Direction 16 para 7.3.
    The Defendant wrote to the Claimant on xxxx prior to proceedings being issued, asking them to provide further and appropriate details of the Claim, in compliance with these Rules, and the Claimant ignored that letter in complete defiance of its obligations pursuant to paragraphs 6(a), 6(c) and 12 of the Practice Direction - Pre-Action Conduct.

    3/ The Defendant never received any Notice to Keeper from the Claimant.
    The first communication the Defendant received was a letter dated XXXX from the Claimant’s solicitor, purporting to be a Letter Before Claim. The Defendant immediately wrote to the Claimant’s legal representative explaining that no letter had been received but received no detail regarding the Claimant’s alleged original Notice to Keeper. The Defendant puts the Claimant to strict proof that it issued a compliant Notice to Keeper under Schedule 4 of the Protection of Freedoms Act 2012. Absent such a notice served within 14 days of the parking event and with fully compliant statutory wording, this Claimant is unable to hold the Defendant liable under the strict ‘keeper liability’ provisions of Schedule 4 of POFA.

    4/ If the Claim is for a breach of contract (which is not at all clear from the Particulars of Claim) The Defendant denies that any contract was formed because there is an absence of offer, acceptance and consideration, as set out below.

    5/ The driver did not "park” and cannot therefore have accepted any contractual terms offered.
    The Defendant denies that he parked according to the commonly understood meaning of that word and according to common understanding within POFA; the driver merely drove into the site when he had lost his way, checked where he was and then left (the car was present on the site for only 3 minutes according to the time of alleged parking recorded by the Claimant). For any contract to have been formed, the driver must have been made aware of the terms and must have been given the opportunity to consider whether or not to accept them. A 3 minute presence on the site clearly indicates that the driver cannot therefore have accepted any contractual terms that were offered by the Claimant (if any were in fact offered, which is denied).

    5/ The Claimant's signage was not capable of making an offer, and did not make any offer, which was capable of being accepted. The Defendant relies on the following:

    (a) Inadequate site/entrance signage - the wording on the signs did not make any clear offer. In the alternative, to the extent that any offer was made, the signage was displayed in such a way that any terms were not brought to the driver's attention - in breach of the POFA 2012 Schedule 4 and the IPC compulsory ATA Code of Practice, of which the Claimant is a member, and no contract was formed to pay any clearly stated sum.
    (b) The signage was not lit and any terms were not transparent or clearly legible;
    (c) Any contract which may have been formed (which, for the avoidance of doubt, is denied) is void because its terms are unfair as they were contrary to the UTCCRs (as applicable at the time),
    (d) No terms were agreed by the driver
    (e) No promise was made by the driver that could constitute consideration because there was no offer known nor accepted. No consideration flowed from the Claimant.
    (f) Sum pursued exceeds £100 and is therefore an unrecoverable penalty.
    (g) The charge is an unenforceable penalty based upon a lack of commercial justification. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim.

    Absent the elements of a contract, there can be no contract of which the Defendant can have breached.

    6/ The Claimant has no legal standing to bring this claim.
    It is unclear whether UK Parking Management & Enforcement hold a legitimate contract with the landowner to manage the parking and to issue and pursue payment of charges at this car park. As an agent, the Claimant has no legal right to bring such a claim in their name which should be in the name of the landowner.

    7/ If, on the other hand, the claim arises from a trespass (again, which is not at all clear from the Particulars of Claim) then a parking firm has no standing as a non-landowner to pursue even nominal damages.

    8/ The Claimant has added unrecoverable sums to the original parking charge. The particulars of claim are templates, so it is not credible that £50 legal costs were incurred. The defendant denies the Claimant is entitled to any further payment.

    The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has:

    (a)Issued an erroneous claim to the defendant regarding an unknown vehicle, rendering their administration questionable

    (b) Failed to disclose any cause of action in the Claim Form issued on xxxxxxxxxxxxxx

    (c) failed to respond to a letter from the Defendant dated xxxxxxx requesting further information and details of the claim and subsequently a second letter dated xxxxxxxxxxxx

    The vague Particulars of Claim disclose no clear cause of action.

    The court is invited to strike out the claim as having no merit and no reasonable prospects of success under CPR Rule 3.4 using its inherent case management powers under Rule 1.4(2)(c) and Practice Direction 26, paragraph 5.1.

    It is believed the facts contained in this Defence Statement are true.

    In support of these arguments, the defendant has provided the specific correspondence between him and Gladstones Solicitors in chronological order (five items of correspondence). Also supplied is a sample photograph of the signs which are placed occasionally around the site.

    Because the Particulars of Claim are so sparse (a breach of inter alia CPR Rule 16.4) it is difficult for the Defendant (a litigant in person) to file a proper defence. For the avoidance of doubt, should this matter proceed then the Defendant puts the Claimant to full proof of every aspect of its claim. He must also, given the lack of particularisation of the claim, reserve the right to raise further points in his defence, should the Claimant further particularise its claim (for instance, in any witness evidence).

    (ENDS)
    • simonsam1964
    • By simonsam1964 20th Apr 17, 3:56 PM
    • 16 Posts
    • 4 Thanks
    simonsam1964
    Incidentally, Chambers Dictionary defines 'parking' as:
    the action of the verb 'park'
    The definition of park in relation to vehicles is 'to place or leave unattended'

    Cambridge Dictionary defines parking as 'leaving a vehicle in a particular place for a period of time'. So, I'm not sure that not leaving the vehicle is helpful (I think NCP would argue if I parked all day but waited in the car to avoid payment). It would appear that the intention to remain is key. I'll keep looking though.
    • Loadsofchildren123
    • By Loadsofchildren123 21st Apr 17, 12:46 PM
    • 858 Posts
    • 1,455 Thanks
    Loadsofchildren123
    1/ This Claimant has not complied with pre-court protocol, leaving the Defendant in a position where he cannot understand the Claim, and cannot therefore properly defend it.

    (a) The first the Defendant heard from the Claimant was a “Letter Before Claim” which it transpired was sent to him in error because it concerned a vehicle of which he was not registered keeper and which he knew nothing about. The Defendant drew this to the Claimant’s attention. [or did you ignore it, in which case: The Defendant ignored the letter because he believed it was spam and a phishing exercise, since it concerned a vehicle which was nothing to do with him.]

    (b) The Claimant then sent another Letter Before Claim, this time demanding payment relating to the vehicle of which the Defendant is registered keeper. The letter did not comply with the Practice Direction – Pre-Action Conduct. Other than demanding payment of a charge, all it said was “‘the charge was issued on 1 September 2016 to vehicle XXXXXXX for unauthorised parking as you were parked without a valid permit” and it enclosed photographs showing the vehicle in an unidentified location showing it had been there for a 3 minute period. The letter failed to explain what the claim was, how it had arisen, how the sum allegedly due had been calculated, nor did it provide supporting evidence (all required by paragraphs 6(a), 6(c) and 12 of the Practice Direction). The Defendant responded, informing the Claimant that he had not received any previous communication from it, and asked for further information as to the alleged claim so that he could understand and respond to it.

    (c) Prior to, and since, the Letter Before Claim at (b) above, the Defendant received no communication from the Claimant or its agents or solicitors requesting payment.


    2/ The Claimant has also failed to comply with the court rules in issuing its claim. The Claim Form contains particulars which are extremely sparse - they divulge no cause of action nor sufficient detail for the Defendant to understand the claim being brought and to respond appropriately. This is in breach of CPR Rule 16.4 and Practice Direction 7E paragraph 5.2. If the claim is based on a contract (which is not clear from the Particulars), then it is also in breach of Practice Direction 16 para 7.3 which requires the contractual terms to be provided with the Particulars of Claim. The Claimant is a speculative serial litigant, issuing a large number of identical, similarly incoherent claims.
    The Defendant therefore has little idea what the claim is about - how the charge arose, what the terms of any alleged contract were or how they have been breached; whether the claim is for breach of contract or trespass - nothing that could be considered a fair exchange of information. Notably, the Claimant refused to provide this information at the pre-action phase, in spite of the Defendant asking on xxx date. The Claimant has acted in complete defiance of its obligations pursuant to paragraphs 6(a), 6(c) and 12 of the Practice Direction - Pre-Action Conduct and Rules 7 and 16 of the CPR.

    3/ The Claimant has never sent a Notice to Keeper to the Defendant. Absent such a notice served within 14 days of the parking event and with fully compliant statutory wording, this Claimant is unable to hold the Defendant liable under the strict ‘keeper liability’ provisions of Schedule 4 of The Protection of Freedoms Act 2012. If it is claimed that one was served, the Defendant puts the Claimant to full proof thereof. [If you are admitting being the driver this all becomes irrelevant]

    4/ The Defendant does not know whether the claim is for a breach of contract or for a trespass. If it is for a breach of contract (which is not at all clear from the Particulars of Claim) the Defendant denies that any contract was formed because there is an absence of offer, acceptance and consideration, as set out below.


    5/ The Defendant assumes (but does not know) that if the claim concerns a breach of contract, the Claimant will assert that its signage contains the terms of that contract. The Defendant denies that the signage was capable of making an offer, and did not make any offer, which was capable of being accepted. The Defendant relies on the following:

    (a) Inadequate site/entrance signage - the wording on the signs did not make any clear offer.

    (b) In the alternative, to the extent that any offer was made, the signage was displayed in such a way that any terms were not brought to the driver's attention - in breach of the POFA 2012 Schedule 4 and the IPC compulsory ATA Code of Practice, of which the Claimant is a member, and no contract can have been formed to pay any clearly stated sum.
    (c) The signage was not lit and any terms were not transparent or clearly legible;
    (d) Any contract which may have been formed (which, for the avoidance of doubt, is denied) is void because its terms are unfair as they were contrary to the UTCCRs (as applicable at the time),
    (d) No terms were agreed by the driver
    (e) No promise was made by the driver that could constitute consideration because there was no offer known nor accepted. No consideration flowed from the Claimant.
    (f) The sum pursued exceeds £100 and is therefore an unrecoverable penalty.
    (g) The charge is an unenforceable penalty based upon a lack of commercial justification. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim.

    Absent the elements of a contract, there can be no contract of which the Defendant can have breached.

    6/ If it is found that the signage was capable of making an offer, and that it was displayed in an appropriate manner, the Defendant denies that any contract exists because he cannot have accepted, and did not accept, the terms offered, because he did not "park” in the ordinary meaning of that word. He simply entered the site and left with a short period of time. In fact, the Defendant drove into the site because he had lost his way, checked where he was and then left. When he entered the site he had no intention of parking there, and did not park there. This is borne out by the Claimant’s own evidence that the Defendant’s vehicle was present on the site for only 3 minutes. For any contract to have been formed, the driver must have been made aware of the terms and must have been given the opportunity to consider whether or not to accept them. A 3 minute presence on the site clearly indicates that the driver cannot therefore have accepted any contractual terms offered by the Claimant (if any were in fact offered, which is denied).

    7/ The Claimant has no legal standing to bring this claim.
    It is unclear whether the Claimant entered into any contract with the landowner to manage the parking which authorised it to issue and pursue payment of charges at this car park and to do so in its own name. The Defendant’s case is that the Claimant has no legal right to bring such a claim in its name which should be in the name of the landowner, and puts it to full proof thereof.

    8/ If, on the other hand, the claim arises from a trespass (again, which is not at all clear from the Particulars of Claim) then a third party has no standing as a non-landowner to pursue even nominal damages.

    9/ The Claimant has added unrecoverable sums to the original parking charge. The particulars of claim are templates, so it is not credible that £50 legal costs were incurred. The defendant denies the Claimant is entitled to any further payment.

    10/ The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has:

    (a) Failed to disclose any cause of action in the Claim Form issued on xxxxxxxxxxxxxx

    (b) failed to respond to a letter from the Defendant dated xxxxxxx requesting further information and details of the claim and subsequently a second letter dated xxxxxxxxxxxx

    (c) The vague Particulars of Claim disclose no clear cause of action.

    The court is invited to strike out the claim as having no merit and no reasonable prospects of success under CPR Rule 3.4 using its inherent case management powers under Rule 1.4(2)(c) and Practice Direction 26, paragraph 5.1.

    In support of these arguments, the defendant has provided the specific correspondence between him and Gladstones Solicitors in chronological order (five items of correspondence). Also supplied is a sample photograph of the signs which are placed occasionally around the site.

    11/ Because the Particulars of Claim are so sparse it is difficult for the Defendant (a litigant in person) to file a proper and full defence. For the avoidance of doubt, should this matter proceed then the Defendant puts the Claimant to full proof of every aspect of its claim. The Defendant must also, given the lack of particularisation of the claim, reserve the right to raise further points in his defence, should the Claimant further particularise its claim (for instance, in any witness evidence).


    DATED THIS TH DAY OF 2017

    Statement of Truth

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

    Signed …………………………………….
    [name]
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