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    • ld123
    • By ld123 9th Aug 17, 5:52 PM
    • 19Posts
    • 6Thanks
    ld123
    County court claim for SIP ticket
    • #1
    • 9th Aug 17, 5:52 PM
    County court claim for SIP ticket 9th Aug 17 at 5:52 PM
    Hello,

    I am hoping that posting a new thread is correct - I have read through the newbies thread and have come to this conclusion as my case has got to a county claims court!

    I have received a County court claim letter stating I owe £242 for breaching the terms of parking outside my apartment last year. However, I have always been paying £50 a month (for approximately a year) via the mobile app for my parking, which is why I ignored all previous communications regarding this (stupid in hindsight, I know)

    The only thing I can imagine that may have happened is I missed the deadline to renew the monthly lease (this would have been by a matter of minutes, no more than an hour or two) or a malfunction with the app. I am sure I will be able to provide evidence from the monthly payments via my bank statements.

    The charges are £167 for the claim, £25 court fee and £50 legal representatives costs. The car park has since been closed (around 3 months now) and I have had to find alternative parking.

    The car is a company car which I am the keeper - letters have been going to my parents as I presume my work have this address registered so I don't often get them in time either; I believe they contacted my workplace who ignored the previous letters too. I just wondered if I should go ahead and pay this fine or if I can challenge it?

    Any advice would be much appreciated, I don't want to give too much away on here as advised previously so if I have missed any vital information please let me know! And apologies if I should not have started a new thread - I couldn't see anything about county claims court, only a brief mention of CCJs?

    Thanks in advance
    Last edited by ld123; 13-08-2017 at 8:51 PM.
Page 2
    • Coupon-mad
    • By Coupon-mad 15th Aug 17, 1:21 AM
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    Coupon-mad
    How has that happened? It was definitely there this morning.

    Strange and worrying!
    Originally posted by Lamilad
    It happened once before, that time the debt collectors post there disappeared, and I had to ask a Board Guide to send me the entire wording (which they can still see) and then I had to rebuild the NEWBIES thread a bit.

    It's possibly some malicious jumped up idiots with too much time on their hands and a sad life, registering and reporting it as Spam, enough reports of which, gets posts auto-removed for checking.

    I am told by a friendly Board Guide that the Forum Team are aware.

    I expect to have it back within 24 hours even if I have to paste it back in myself.

    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • ld123
    • By ld123 16th Aug 17, 8:28 PM
    • 19 Posts
    • 6 Thanks
    ld123
    Hello,

    Just bumping this so it isn't missed

    Thanks!
    • ld123
    • By ld123 18th Aug 17, 2:12 PM
    • 19 Posts
    • 6 Thanks
    ld123
    Hi guys

    Can anyone help me out with this? My first draft response is above. Thanks!
    • Coupon-mad
    • By Coupon-mad 18th Aug 17, 2:42 PM
    • 51,552 Posts
    • 65,152 Thanks
    Coupon-mad
    You mean draft defence, not response.

    a) as I have mentioned the carpark is no longer there and is about to be built on, does this contradict the comments regarding the signage being inadequate? Should I stick to the inadequacy or go down the route of 'there is no longer any proof of original T&Cs as all signage has been removed'?
    You would simply be putting the claimant to strict proof of legible and large lettering signage with the parking charge in the largest lettering (like the Beavis case example) and being proved to have been on site and near the car, on the material date. And asking the claimants to explain in their evidence, how putting up signs can possibly override residents' existing rights and the claimant must show where in the App, those signs are mentioned as having terms which are incorporated into the parking contract.

    You could add a section mentioning these regs, since this is a distance contract, and the EU Guidance to these regs state (specifically) that 'rental of a parking space' IS covered by the regulations:

    http://www.legislation.gov.uk/uksi/2013/3134/contents/made

    ...because a contract made by use of an App that requires exchange of information at arm's length is undoubtedly a distance contract and there are strict and statutory informational requirements that the Claimant has failed to meet, rendering the unsupported sum of £100 as unrecoverable in law. The price of monthly parking was £30 = approx £1 a day and that pretty much sums up the info in the App (I bet?!). Massive omissions of information and we doubt the £100 was mentioned?

    Guidance:

    http://ec.europa.eu/justice/consumer-marketing/files/crd_guidance_en.pdf

    search that PDF for the word 'parking' and you get this (for your evidence later):

    ''For example, renting a parking space ... is subject to the Directive. ''


    b) Regarding the land ownership, I have done a search and can see that the land has two search results - one is a freehold and the other is a leasehold. I am happy to purchase the plans and registers if this is what is needed - however I can't be sure that SIP do not own the land without doing so. In this case, is it risky to include this part of the rebuttal?
    SIP do not own any land; these PPCs are invariably scumbag ex-clamper parasites who rock up with cheap signs and wreck the peaceful enjoyment of people's homes. The are NOT the owners or lessees.

    Re your defence, I would add to this as shown and not call it a ''debt'' because it's not 'common ground' that there is any debt:

    2. It is believed that it will be a matter of common ground that claim relates to a purported debt as the result of the issue of a Parking Charge Notice (PCN) in relation to an alleged breach of the terms and conditions by the driver of the vehicle XXXX XXX when it was parked at xxxxxx.
    2.1 For the avoidance of doubt, not only is any debt denied, but it is confidently argued that the Defendant, being a resident, has primacy of contract within an existing lease and had already paid for parking, using an App which did not set out within that distance contract, any possible tariff or 'parking charge' as unconscionable as £100, nor were any additional charges stated under the terms and nor was it stated that further t&cs on signage were incorporated into the parking App contract.

    The charges are £167 for the claim, £25 court fee and £50 legal representatives costs.
    Where you talk about the £167.69, change it to the TOTAL sum claimed, because the add-on (made up) £50 is also objectionable.

    And I would add a section on primacy of contract for 'own space' residential cases (because you had relied on having bought the rights to a space and this is the place where you live and have rights of way under the lease or tenancy). Read Johnersh's defence in post #2 of the NEWBIES thread which uses the Jopson case and others to argue primacy of contract. So you'd be saying in this section of defence, that 'even if' the Court finds that there is a possible contract breached, a resident's existing lease/tenancy rights trump SIP's contract anyway.
    Last edited by Coupon-mad; 28-08-2017 at 5:46 PM.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • ld123
    • By ld123 22nd Aug 17, 10:30 PM
    • 19 Posts
    • 6 Thanks
    ld123
    Hello,

    Thanks so much for this information! I have spent some time reading over it and have amended the suggestions as pointed out. The part I'm struggling to get to grips with is the 'own space' sections - I am unsure how this works as the agreement was never for the rental of a specific space - the carpark was just wasteland on which you could pay £45 to be able to park on for 30 days - would residents still have lease/tenancy rights if the land just happens to be outside the apartment block and not part of the apartments?

    Thank you
    • Coupon-mad
    • By Coupon-mad 23rd Aug 17, 12:10 AM
    • 51,552 Posts
    • 65,152 Thanks
    Coupon-mad
    No, you will have to amend the wording to say that you had an ongoing payment to rent the right to park in the parking space...etc. That gave you primacy of contract.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • ld123
    • By ld123 24th Aug 17, 10:40 AM
    • 19 Posts
    • 6 Thanks
    ld123
    Hello!

    I have updated the wording as suggested and highlighted in red below. Please can you let me know if this is where you meant regarding the ongoing payment to rent the right to park? (the first section).

    I really appreciate the helpful and fast responses so thank you - but apologies for having to keep questioning things - I am still struggling with the additional sections I need to add. I am unclear on the rights as a resident I don't think this was a residents car park at all - it just happens to be outside the apartment building. So I'm not sure if I should add anything else to the defence about this?

    And as for adding a section on the regulations of the app - is this not what is stated in section 4 regarding the distance contract, or is there more information I should include?

    Thank you very much once again!



    I am XXX, Defendant in this matter and I assert that the Claimant has no cause for action 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.

    2. It is believed that it will be a matter of common ground that claim relates to the issue of a Parking Charge Notice (PCN) in relation to an alleged breach of the terms and conditions by the driver of the vehicle XXXX XXX when it was parked at xxxxxx.
    2.1 For the avoidance of doubt, not only is any debt denied, but it is confidently argued that the Defendant, as a resident who had an ongoing monthly payment to rent the right to park on the land, has primacy of contract within an existing lease and had already paid for parking, using an App which did not set out within that distance contract, any possible tariff or 'parking charge' as unconscionable as £100, nor were any additional charges stated under the terms and nor was it stated that further t&cs on signage were incorporated into the parking App contract.

    3. The PCN stated the contravention as “No ticket displayed.” This cannot be a contravention when a driver uses the Pay by Phone option as the driver in this case did when paying a regular monthly charge over a period of twelve months to park in the car park for 30 days at a time.

    4. It is denied that:

    a. A contract was formed, and it is further denied that any contravention of ''no ticket displayed'' occurred or can have occurred when using the Pay by Phone option, the failure of which was not communicated to me nor was it within my control. Even if a contract was potentially formed it was frustrated by the unexpected and uncommunicated failure of the Claimant's app, and it is trite law that no party can be held liable for breach to another under such circumstances of frustration of contract.

    b. There was any agreement to pay a parking charge.

    c. That there were Terms and Conditions prominently displayed around the site which communicated any additional punitive parking charge (effectively a private 'fine') in large lettering, in a clear and concise way, on a par with the tariff signs where the fees were advertised in the largest font. By contrast, the 'parking charge' is positively buried in small print, contrary to Lord Denning's 'Red Hand Rule' and contrary to the requirements of the Consumer Rights Act 2015.

    d. That in addition to the parking charge there was any agreement to pay additional and unspecified additional sums, which are in any case unsupported by the Beavis case and unsupported for cases on the small claims track.

    e. The claimant company fully complied with their obligations within the International Parking Community Code of Practice of which they were member at the time.

    f. The Pay by Phone app, being indisputably an offer of a 'distance contract', complied with the The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, which says:

    ''Confirmation of distance contracts: 16.—(1) In the case of a distance contract the trader must give the consumer confirmation of the contract on a durable medium.
    (2) The confirmation must include all the information referred to in Schedule 2 unless the trader has already provided that information to the consumer on a durable medium prior to the conclusion of the distance contract.
    (3) If the contract is for the supply of digital content not on a tangible medium and the consumer has given the consent and acknowledgment referred to in regulation 37(1)(a) and (b), the confirmation must include confirmation of the consent and acknowledgement.''

    5. It is further denied that the Defendant is liable for the purported debt.

    Rebuttal of Claim
    6. The Defendant made all reasonable efforts to make payment for parking by using an approved payment channel.
    a. Payment for parking was made monthly via mobile app using a cashless system provided by PayByPhone.
    b. This is a distance contract which requires certain information to be supplied in advance.
    c. The service makes no provision for the printing of a ticket to display.
    d. The Defendant paid monthly sums of £45.30 via the PayByPhone app in exchange for parking on the land for 30 days from payment.
    e. The payment channel promised to notify the user before the expiry of each monthly ticket in order to renew the parking charge for a further 30 days, something which regularly failed to happen. As such the Defendant believed the necessary payment had been made.
    f. The defendant has invoice receipts from the PayByPhone app from 5 monthly payments for this car park totalling £228.80, as well as 4 daily payments of £2.30 each in addition, proving the defendant was regularly paying the charge for this car park and was not intentionally setting out to avoid payment. The defendant can also provide further bank statements spanning a 12 month period, as the PayByPhone app only records the previous 10 payments.
    g. The regular failure of the payment service to notify payment and often to take payment at all is due is not the Defendants responsibility. It is not reasonable in these circumstances for the driver to assume any more obligations for making the payment.
    In Jolley v Carmel Ltd [2000] 2 –EGLR -154, it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach when unable to fully comply with the terms.
    h. When the PCN was noted the app was checked which showed no record of the payment or notification of its failure. Successful payment for the parking is shown at 8.59am the day after the alleged breaching of terms. The PayByPhone app unfortunately does not show any more than 10 transactions, meaning the defendant does not have access to a receipt for when the previous months agreement expired.
    i. The car park was used again for the same times the following four months and has been used before, always being paid for.
    j. The car park in question is no longer owned, managed or controlled by SIP and has since had planning permission agreed for residential properties.

    7. The Defendant did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.

    8. The Defendant denies that they would have agreed to pay the original demand of £100 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.
    a. The amount demanded is excessive and unconscionable and especially so when compared to the level of Penalty Charge Notice issued by the local Council which is set at £50 or £25 if paid within 14 days.

    9. The signage on this site was inadequate to form a contract with the motorist.
    a. The car park is in fact wasteland, with no marked bays and no clear signage as to where the car park starts and ends, whilst being completely unmaintained, with large pot holes and craters in the ground, regularly causing damage to the vehicles parked there.
    b. The signage on and around the site in question was unclear and not prominent and did not meet the British Parking Association (BPA) Code of Practice or the International Parking Community (IPC) Code of Practice. The Claimant was a member of the IPC at the time and committed to follow its requirements. Therefore no contract has been formed with driver to pay the amount demanded by the Claimant, or any additional fee charged if unpaid in 28 days.
    c. The size of font of the prices advised for parking is much larger than the font of the contract and the offer was not sufficiently brought to the attention of the motorist, nor are the onerous terms (the £100 parking charge) sufficiently prominent to satisfy Lord Dennings "red hand rule”.
    d. 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.
    e. The PayByPhone signage specifically states that there is “No need to display a ticket in your car” therefore there was no breach of any ‘relevant obligation’ or ‘relevant contract’ as required under Schedule 4 of POFA.
    f. If the Claimant wanted to impose a condition to continuously display permits, then they should have drafted clear instruction to that effect, requiring specific terms of how to 'continuously display' when a paper ticket has not been issued or there is no contravention.
    g. Where contract terms have different meanings, as in this instance when a paper ticket was not issued due to the chosen method of payment, then Section 69 of the CRA 2015 provides a statutory form of the contra proferentem rule, such that the consumer must be given the benefit of the doubt.
    The term is fundamental to the contract, and the Defendant invites the Court to find that it is not transparent and therefore unfair. If a fundamental term to the contract is deemed to be unfair, then the contract will cease to bind the parties. The Defence invites the Court to take these issues into account in determining the fairness of the term.

    10. The Claimant’s representatives, Gladstones, have artificially inflated the value of the Claim from £100, to a total of £242.69 The charge is steep considering a 24 hour stay in this car park was priced at just £2 at the time. The Defendant submits the added costs have not actually been incurred by the Claimant; that these are figures plucked out of thin air and applied regardless of facts.
    a. If the “parking charge” listed in the particulars of claim is to be considered a written agreement between Defendant and Claimant then under 7.3, the particulars fail to include “a copy of the contract or documents constituting the agreement”.
    b. The Claimant has at no time provided an explanation how the sum has been calculated, the conduct that gave rise to it or how the amount has climbed from £100 to £167.69. This appears to be an added cost with no apparently no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.
    b. The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.

    Non-disclosure of reasonable grounds or particulars for bringing a claim:
    11. SIP Parking Ltd are not the lawful occupier of the land. The Defendant has reasonable belief that they do not have the authority to issue charges on this land in
    their own name and that they have no rights to bring action regarding this claim.
    a. The Claimant is not the landowner and is merely an agent acting on behalf of the
    landowner and has failed to demonstrate their legal standing to form a contract.
    b. The Claimant is not the landowner and suffers no loss whatsoever as a result of a
    vehicle parking at the location in question
    c. The Claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party
    agent, the Claimant may not pursue any charge
    d. The Particulars of Claim are deficient in establishing whether the claim is brought in trespass. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landowner can pursue a case under the tort of trespass not this Claimant, and as the Supreme Court in the Beavis vs ParkingEye (2015) [2015] UKSC 67 case confirmed, such a matter would be limited to the landowner themselves claiming for a nominal sum.

    12. The Particulars of Claim fail to fulfil CPR Part 16.4 because it does not include a statement of the facts on which the claimant relies, only referring to a Parking Charge Notice with no further description; it fails to establish a cause of action which would enable the Defendant to prepare a specific defence:
    ‘The driver of the vehicle registration
    XXXX XXX incurred the parking
    charge(s) on XX/XX/2016 for breaching the
    terms of parking on the land at xxxx.
    The Defendant was driving the Vehicle and/or
    is the Keeper of the Vehicle
    AND THE CLAIMANT CLAIMS
    £160.00 for Parking Charges / Damages and
    indemnity costs if applicable, together with
    interest of £7.69 pursuant to s69 of the
    County Courts Act 1984 at 8% pa, continuing
    to Judgement at £0.04 per day’

    13. The claimant has not provided enough details in the particulars of claim to file a full defence. In particular, the full details of the contract which it is alleged was broken have not been provided.
    a) The Claimant has disclosed no cause of action to give rise to any debt.
    b) The Claimant has stated that a parking charge was incurred.
    c) The Claimant has given no indication of the nature of the alleged charge in the Particulars of Claim. The Claimant has therefore disclosed no cause of action.
    d) The Particulars of Claim contains no details and fails to establish a cause of action which would enable the Defendant to prepare a specific defence.
    It just states “parking charges” which does not give any indication of on what basis the claim is brought. There is no information regarding why the charge arose, what the original charge was, what the alleged contract was nor anything which could be considered a fair exchange of information. The Particulars of Claim are incompetent in disclosing no cause of action.

    14. The Defendant invites the court to strike out or dismiss the claim under Rule 3.4(2)(a) of PRACTICE DIRECTION 3A as having not set out a concise statement of the nature of the claim or disclosed reasonable grounds or particulars for bringing a claim (Part 16.4(1)(a) and PRACTICE DIRECTION 16 paragraphs 3.1-3.8). In C3GF84Y (Mason, Plymouth County Court), the judge struck out the claim brought by KBT Cornwall Ltd as Gladstones Solicitors had not submitted proper Particulars of Claim, and similar reasons were cited by District Judge Cross of St Albans County Court on 20/09/16 where another relevant poorly pleaded private parking charge claim by Gladstones was struck out without a hearing due to their ‘roboclaim’ particulars being incoherent, failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''. The Practice Direction also sets out the following example which is analogous to this claim: ‘those which set out no facts indicating what the claim is about, for example ‘Money owed £5000’.’

    15. The Defendant researched the matter online, and discovered that the Claimant is a member of the Independent Parking Committee (IPC), an organisation operated by Gladstones Solicitors. They also operate the Independent Appeals Service (IAS), the allegedly independent body appointed by the Claimant’s trade body, the IPC. This research revealed that the IAS, far from being independent, is a subsidiary of the IPC, which in turn is owned and run by the same two Directors who also run Gladstones Solicitors. The individuals in question are John Davies, and William Hurley. These findings indicate a conflict of interest. Such an incestuous relationship is incapable of providing any fair means for motorists to challenge parking charges, as well as potentially breaching the Solicitors Regulation Authority Code of Conduct.

    16. 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. Her Majesty's Courts and Tribunals Service have identified over one thousand similar poorly produced claims and the solicitors conduct in many of these cases is believed to be currently the subject of an active investigation by the Solicitors Regulation Authority.

    17. The Defendant believes the terms 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. The Defendant has reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to their significant detriment as an unrepresented Defendant.

    18. The Defendant respectfully suggests 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.

    19. The Defendant denies the claim in its entirety voiding any liability to the claimant for all amounts due to the aforementioned reasons. It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious.

    20. The Defendant invites the court to dismiss this claim out as it is in breach of pre court protocols in relation to the particulars of claim under Practice Direction 16, set out by the Ministry of Justice and also Civil Procedure Rules (CPR) under 16.4 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.
    • ld123
    • By ld123 28th Aug 17, 5:25 PM
    • 19 Posts
    • 6 Thanks
    ld123
    Hiya

    Do you guys think this is ok to send off?

    Thank you!
    • Coupon-mad
    • By Coupon-mad 28th Aug 17, 5:44 PM
    • 51,552 Posts
    • 65,152 Thanks
    Coupon-mad
    You might prefer to grab the stuff about Gladstones and put it in a 'preliminary' heading and shorten it to tidy the defence up and finish on a stronger statement, like I did here when posting as SRM:

    http://forums.pepipoo.com/index.php?showtopic=107768&st=80&p=1311428&#entry1 311428

    Much of that can be used for your case in other aspects too - feel free to plagiarise and adapt it - the headings make it much clearer to read and follow the example written here by Johnersh. It's also one referencing 'Jopson' which you were advised to do because you have primacy of contract:
    Quote:
    The charges are £167 for the claim, £25 court fee and £50 legal representatives costs.
    Where you talk about the £167.69, change it to the TOTAL sum claimed, because the add-on (made up) £50 is also objectionable.

    And I would add a section on primacy of contract for 'own space' residential cases (because you had relied on having bought the rights to a space and this is the place where you live and have rights of way under the lease or tenancy).

    Read Johnersh's defence in post #2 of the NEWBIES thread which uses the Jopson case and others to argue primacy of contract. So you'd be saying in this section of defence, that 'even if' the Court finds that there is a possible contract breached, a resident's existing lease/tenancy rights trump SIP's contract anyway.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • ld123
    • By ld123 29th Aug 17, 10:02 PM
    • 19 Posts
    • 6 Thanks
    ld123
    Ok - thanks so much again for the help! I have taken the other defence and merged sections from the two, taking anything that wasn't relevant to my case - it is incredibly long, so please do let me know if it is too much so. I have changed one 'defendant' to 'claimant' as highlighted in red - I believe this is correct?

    Also, in terms of the primacy of contract/residents rights - I will post a separate post regarding this, as I'm still not sure if I would qualify to be able to say it.

    Statement of Defence

    In the County Court Business Centre
    Claim Number: ___

    Between:

    SIP v ___

    DEFENCE


    Preliminary


    1. The Particulars of Claim lack specificity and are embarrassing. The Claimant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.

    1.1 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 thousands of similar poorly pleaded claims.

    1.2 The Defendant believes 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.

    2. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct.

    2.1 The Defendant further notes the Claimant's failure to engage in pre-action correspondence in accordance with the pre-action protocol and with the express aim of avoiding contested litigation.

    2.2 The Defendant has discovered that the Claimant's Trade Body, the Independent Parking Committee (IPC), is an organisation operated by the same Directors as are/were recorded at Gladstones Solicitors, at least until very recently. They - John Davies and Will Hurley - are also responsible for the IAS.

    2.3 The Defendant now submits that the IAS 'decision' should be disregarded; it is ostensibly described as an appeal service, yet the Assessors' names remain secret. No figures or reports are published by the IAS but the publication 'Parking Review' reported that only 20% of appeals were upheld (compared to POPLA where 50% have consistently been upheld since its inception in 2012).

    2.4 Now the Defendant notes that Gladstones are employed in bringing this claim, demonstrating a clear conflict of interests.


    Background

    3. It is admitted that at all material times the Defendant was the authorised registered keeper of the vehicle in question.

    4. It is believed that it will be a matter of common ground that claim relates to the issue of a Parking Charge Notice (PCN) in relation to an alleged breach of the terms and conditions by the driver of the vehicle XXXX XXX when it was parked at xxxxxx.
    4.1 For the avoidance of doubt, not only is any debt denied, but it is confidently argued that the Defendant, as a resident who had an ongoing monthly payment to rent the right to park on the land, has primacy of contract within an existing lease and had already paid for parking, using an App which did not set out within that distance contract, any possible tariff or 'parking charge' as unconscionable as £100, nor were any additional charges stated under the terms and nor was it stated that further T&Cs on signage were incorporated into the parking App contract.

    Rebuttal of Claim

    5. The Defendant made all reasonable efforts to make payment for parking by using an approved payment channel.
    5.1. Payment for parking was made monthly via mobile app using a cashless system provided by PayByPhone.
    5.2. This is a distance contract which requires certain information to be supplied in advance.
    5.3. The service makes no provision for the printing of a ticket to display.
    5.4. The Defendant paid monthly sums of £45.30 via the PayByPhone app in exchange for parking on the land for 30 days from payment.
    5.5. The payment channel promised to notify the user before the expiry of each monthly ticket in order to renew the parking charge for a further 30 days, something which regularly failed to happen. As such the Defendant believed the necessary payment had been made.
    5.6. The defendant has invoice receipts from the PayByPhone app from 5 monthly payments for this car park totalling £228.80, as well as 4 daily payments of £2.30 each in addition, proving the defendant was regularly paying the charge for this car park and was not intentionally setting out to avoid payment. The defendant can also provide further bank statements spanning a 12 month period, as the PayByPhone app only records the previous 10 payments.
    5.7. The regular failure of the payment service to notify payment is due and often to take payment at all is not the Defendants responsibility. It is not reasonable in these circumstances for the driver to assume any more obligations for making the payment.
    In Jolley v Carmel Ltd [2000] 2 –EGLR -154, it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach when unable to fully comply with the terms.
    5.8. When the PCN was noted the app was checked which showed no record of the payment or notification of its failure. Successful payment for the parking is shown at 8.59am the day after the alleged breaching of terms. The PayByPhone app unfortunately does not show any more than 10 transactions, meaning the defendant does not have access to a receipt for when the previous months agreement expired.
    5.9. The car park was used again for the same times the following four months and has been used before, always being paid for.
    5.10. The car park in question is no longer owned, managed or controlled by SIP and has since had planning permission agreed for residential properties.

    6. The Defendant did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.

    7. The Defendant denies that they would have agreed to pay the original demand of £100 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.
    7.1. The amount demanded is excessive and unconscionable and especially so when compared to the level of Penalty Charge Notice issued by the local Council which is set at £50 or £25 if paid within 14 days.


    Frustration of contract and distance contract, non communicated failure of claimants payment system

    8. The PCN stated the contravention as “No ticket displayed.” This cannot be a contravention when a driver uses the Pay by Phone option as the driver in this case did when paying a regular monthly charge over a period of twelve months to park in the car park for 30 days at a time.

    9. It is denied that:

    9.1. A contract was formed, and it is further denied that any contravention of ''no ticket displayed'' occurred or can have occurred when using the Pay by Phone option, the failure of which was not communicated to me nor was it within my control. Even if a contract was potentially formed it was frustrated by the unexpected and uncommunicated failure of the Claimant's app, and it is trite law that no party can be held liable for breach to another under such circumstances of frustration of contract.

    9.2. There was any agreement to pay a parking charge.

    9.3. That there were Terms and Conditions prominently displayed around the site which communicated any additional punitive parking charge (effectively a private 'fine') in large lettering, in a clear and concise way, on a par with the tariff signs where the fees were advertised in the largest font. By contrast, the 'parking charge' is positively buried in small print, contrary to Lord Denning's 'Red Hand Rule' and contrary to the requirements of the Consumer Rights Act 2015.

    9.4. That in addition to the parking charge there was any agreement to pay additional and unspecified additional sums, which are in any case unsupported by the Beavis case and unsupported for cases on the small claims track.

    9.5. The claimant company fully complied with their obligations within the International Parking Community Code of Practice of which they were member at the time.

    9.6. The Pay by Phone app, being indisputably an offer of a 'distance contract', complied with the The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, which says:

    ''Confirmation of distance contracts: 16.—(1) In the case of a distance contract the trader must give the consumer confirmation of the contract on a durable medium.
    (2) The confirmation must include all the information referred to in Schedule 2 unless the trader has already provided that information to the consumer on a durable medium prior to the conclusion of the distance contract.
    (3) If the contract is for the supply of digital content not on a tangible medium and the consumer has given the consent and acknowledgment referred to in regulation 37(1)(a) and (b), the confirmation must include confirmation of the consent and acknowledgement.''

    10. It is further denied that the Defendant is liable for the purported debt.


    In the Alternative: Failure to set out clear parking terms - ParkingEye Ltd v Beavis (2015) UKSC 67 distinguished

    11. The Defendant relies upon ParkingEye Ltd v Beavis, insofar as the Court were only willing to exempt a parking charge from falling foul of the penalty rule which would normally render it unrecoverable, in the context of a site of commercial value, where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.

    11.1. The Defendant avers that the parking signage in this matter was, without prejudice to his primary defence above, inadequate.

    11.2. The car park is in fact wasteland, with no marked bays and no clear signage as to where the car park starts and ends, whilst being completely unmaintained, with large pot holes and craters in the ground, regularly causing damage to the vehicles parked there.
    11.3. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation; The signage on and around the site in question was unclear and not prominent and did not meet the British Parking Association (BPA) Code of Practice or the International Parking Community (IPC) Code of Practice. The Claimant was a member of the IPC at the time and committed to follow its requirements. Therefore no contract has been formed with driver to pay the amount demanded by the Claimant, or any additional fee charged if unpaid in 28 days.
    11.4. The size of font of the prices advised for parking is much larger than the font of the contract and the offer was not sufficiently brought to the attention of the motorist, nor are the onerous terms (the £100 parking charge) sufficiently prominent to satisfy Lord Dennings "red hand rule”.
    11.5. 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.
    11.6. The PayByPhone signage specifically states that there is “No need to display a ticket in your car” therefore there was no breach of any ‘relevant obligation’ or ‘relevant contract’ as required under Schedule 4 of POFA.
    11.7. If the Claimant wanted to impose a condition to continuously display permits, then they should have drafted clear instruction to that effect, requiring specific terms of how to 'continuously display' when a paper ticket has not been issued or there is no contravention.
    11.8. Where contract terms have different meanings, as in this instance when a paper ticket was not issued due to the chosen method of payment, then Section 69 of the CRA 2015 provides a statutory form of the contra proferentem rule, such that the consumer must be given the benefit of the doubt.
    The term is fundamental to the contract, and the Defendant invites the Court to find that it is not transparent and therefore unfair. If a fundamental term to the contract is deemed to be unfair, then the contract will cease to bind the parties. The Defence invites the Court to take these issues into account in determining the fairness of the term.

    11.9 The charge is, accordingly, unconscionable in this context, with ParkingEye v Beavis distinguished.

    Non-disclosure of reasonable grounds or particulars for bringing a claim

    12. SIP Parking Ltd are not the lawful occupier of the land. The Defendant has reasonable belief that they do not have the authority to issue charges on this land in
    their own name and that they have no rights to bring action regarding this claim.
    12.1. The Claimant is not the landowner and is merely an agent acting on behalf of the
    landowner and has failed to demonstrate their legal standing to form a contract.
    12.2. The Claimant is not the landowner and suffers no loss whatsoever as a result of a
    vehicle parking at the location in question
    12.3. The Claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party
    agent, the Claimant may not pursue any charge
    12.4. The Particulars of Claim are deficient in establishing whether the claim is brought in trespass. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landowner can pursue a case under the tort of trespass not this Claimant, and as the Supreme Court in the Beavis vs ParkingEye (2015) [2015] UKSC 67 case confirmed, such a matter would be limited to the landowner themselves claiming for a nominal sum.

    13. The Particulars of Claim fail to fulfil CPR Part 16.4 because it does not include a statement of the facts on which the claimant relies, only referring to a Parking Charge Notice with no further description; it fails to establish a cause of action which would enable the Defendant to prepare a specific defence:
    ‘The driver of the vehicle registration
    XXXX XXX incurred the parking
    charge(s) on XX/XX/2016 for breaching the
    terms of parking on the land at xxxx.
    The Defendant was driving the Vehicle and/or
    is the Keeper of the Vehicle
    AND THE CLAIMANT CLAIMS
    £160.00 for Parking Charges / Damages and
    indemnity costs if applicable, together with
    interest of £7.69 pursuant to s69 of the
    County Courts Act 1984 at 8% pa, continuing
    to Judgement at £0.04 per day’

    14. The claimant has not provided enough details in the particulars of claim to file a full defence. In particular, the full details of the contract which it is alleged was broken have not been provided.
    14.1. The Claimant has disclosed no cause of action to give rise to any debt.
    14.2. The Claimant has stated that a parking charge was incurred.
    14.3. The Claimant has given no indication of the nature of the alleged charge in the Particulars of Claim. The Claimant has therefore disclosed no cause of action.
    14.4 The Particulars of Claim contains no details and fails to establish a cause of action which would enable the Defendant to prepare a specific defence.
    It just states “parking charges” which does not give any indication of on what basis the claim is brought. There is no information regarding why the charge arose, what the original charge was, what the alleged contract was nor anything which could be considered a fair exchange of information. The Particulars of Claim are incompetent in disclosing no cause of action.

    15. The Defendant invites the court to strike out or dismiss the claim under Rule 3.4(2)(a) of PRACTICE DIRECTION 3A as having not set out a concise statement of the nature of the claim or disclosed reasonable grounds or particulars for bringing a claim (Part 16.4(1)(a) and PRACTICE DIRECTION 16 paragraphs 3.1-3.8). In C3GF84Y (Mason, Plymouth County Court), the judge struck out the claim brought by KBT Cornwall Ltd as Gladstones Solicitors had not submitted proper Particulars of Claim, and similar reasons were cited by District Judge Cross of St Albans County Court on 20/09/16 where another relevant poorly pleaded private parking charge claim by Gladstones was struck out without a hearing due to their ‘roboclaim’ particulars being incoherent, failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''. The Practice Direction also sets out the following example which is analogous to this claim: ‘those which set out no facts indicating what the claim is about, for example ‘Money owed £5000’.’

    Wholly unreasonable and vexatious claim

    16. The Claimant’s representatives, Gladstones, have artificially inflated the value of the Claim from £100, to a total sum of £242.69 The charge is steep considering a 24 hour stay in this car park was priced at just £2 at the time. The Defendant submits the added costs have not actually been incurred by the Claimant; that these are figures plucked out of thin air and applied regardless of facts.
    16.1. If the “parking charge” listed in the particulars of claim is to be considered a written agreement between Defendant and Claimant then under 7.3, the particulars fail to include “a copy of the contract or documents constituting the agreement”.
    16.2. The Claimant has at no time provided an explanation how the sum has been calculated, the conduct that gave rise to it or how the amount has climbed from £100 to £167.69. This appears to be an added cost with no apparently no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.
    16.3. The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.

    17. It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, the Defendant is keeping careful note of all wasted time/costs in dealing with this matter and should the case continue to trial (or in the event of the Claimant filing a Notice of Discontinuance) the Defendant will seek further costs, pursuant to Civil Procedure Rule 27.14(2)(g).

    18. The Defendant respectfully suggests that parking companies using the small claims track as a form of aggressive, automated monetary demands against residents, alleging 'debts' for parking at their own homes is not something the Courts should be seen to support.

    19. The Court is invited to take Judicial Notice of the fact that the Claimant's solicitors, Gladstones, is engaged in a course of conduct which involves issuing tens of thousands of totally meritless Claims, which are routinely dismissed by District Judges sitting in this Court, and other County Court hearing centres in all parts of England & Wales. The Court is therefore invited to refer the matter to the Designated Civil Judge, for consideration of the issuing an Extended Civil Restraint Order against the Claimant, pursuant to CPR Practice Direction 3.1(3).

    20. The Defendant denies the claim in its entirety, voiding any liability to the Claimant for all amounts due to the aforementioned reasons. The Defendant asks that the court gives consideration to exercise its discretion to order the case to be struck out under CPR Rule 3.4, for want of a detailed cause of action and/or for the claim having no realistic prospects of success.

    21. If the court is not minded to make such an order, then when Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because it is expected that the Claimant will use its witness statement to provide the sort of detail which should have been disclosed much earlier, and the Defendant should have the opportunity to consider it, prior to serving evidence and witness statements in support of this defence.


    I confirm that the above facts and statements are true to the best of my knowledge and recollection.


    Signed

    Date
    • ld123
    • By ld123 29th Aug 17, 10:05 PM
    • 19 Posts
    • 6 Thanks
    ld123
    As previously mentioned, here is a drafted version of the Authority to Park and Primacy of Contract - what I am struggling to understand is whether I am able to refer to this - the land/carpark just happens to be outside my apartment, and does not have any affiliation with the apartment block, management company or landlords. Therefore, I'm not sure how many 'residents rights' would apply here? We have a residents carpark underneath the building (which I now park in!) - so the proximity of the carpark to the building is merely coincidence. I have drafted a section regardless, if you could advise your thoughts on a) whether it is relevant and b) whether it is correct!

    Authority to Park and Primacy of Contract

    7) It is denied that the Defendant was in breach of any parking conditions or was not permitted to park, having relied on having paid for the rights to a parking space at the property the defendant lives at and has rights of way in and around the land, under the tenancy.

    8) It is not admitted that the Claimant has contractual or other lawful authority to make contracts with residents at this location, and/or to bring proceedings against the Defendant. The Claimant is put to strict proof. Further, and in the alternative, the Defendant avers that the Claimant requires the permission the owner of the relevant land - not merely another contractor or site agent not in possession - in order to commence proceedings.

    9) The Defendant avers that the Claimant cannot:

    (i) override the existing rights enjoyed by residents and their visitors, or
    (ii) offer parking on more onerous terms than were already granted and agreed in the lease

    9.1 Parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial.
    • nosferatu1001
    • By nosferatu1001 30th Aug 17, 1:12 AM
    • 868 Posts
    • 978 Thanks
    nosferatu1001
    No, that's not corrrect. It's obviously defendant there. The claimant cannot be prejudiced by their own poor PoC, only you can be.
    • ld123
    • By ld123 30th Aug 17, 6:31 PM
    • 19 Posts
    • 6 Thanks
    ld123
    Ahh I see thank you - I will change that!

    Any further comments please let me know
    • Coupon-mad
    • By Coupon-mad 31st Aug 17, 1:01 AM
    • 51,552 Posts
    • 65,152 Thanks
    Coupon-mad
    That question has already been answered.

    Your rental of the space is your contract:

    The arrangement for paying that fee for parking is your 'contract' and give the drivers of this vehicle, (hopefully) unfettered rights that cannot be varied or revoked.

    So you won't be saying it is 'your space' but you will be saying that you have primacy of contract, a paid-for prior agreement that does not include any £100 'risk'. And you'd be saying that 'a grantor cannot derogate from his grant'.
    Originally posted by Coupon-mad
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • ld123
    • By ld123 31st Aug 17, 5:15 PM
    • 19 Posts
    • 6 Thanks
    ld123
    Ok thanks - my second question was more whether I should be mentioning residents rights etc.

    I guess I'll send this off and hope for the best now - thank you all for your help!

    Just a question - will my case definitely go to court, or is there a chance this will just get thrown out before hand? I had previously been of the understanding that a lot of cases don't actually go to court - but on reading the information again this doesn't seem to be the case?
    Last edited by ld123; 31-08-2017 at 5:20 PM.
    • nosferatu1001
    • By nosferatu1001 31st Aug 17, 6:39 PM
    • 868 Posts
    • 978 Thanks
    nosferatu1001
    It's a lottery. Some they discontinue. Some are struck by the courts - but this is rare.
    • ld123
    • By ld123 3rd Sep 17, 3:05 PM
    • 19 Posts
    • 6 Thanks
    ld123
    Hi

    MCOL online only accepts a maximum of 122 lines for the defence, which is approximately 10% of my defence. Any advice on what to cut down or what to do? Really want to draw a line under this now and can't help but feel like I'd have been better to just pay up than spend hour after hour re writing drafts for this
    • Redx
    • By Redx 3rd Sep 17, 3:12 PM
    • 16,568 Posts
    • 20,723 Thanks
    Redx
    save the final draft as a pdf

    print it

    sign and date it

    scan it back to pdf (or possibly a word doc ?)

    email it as an attachment to the CCBC , with reference number etc in the header and the body saysing SEE ATTACHED DEFENCE REF 123456789 etc

    lamilad recently outlined the procedure in one of his posts, plus I think it is linked or mentioned in the NEWBIES FAQ sticky thread , post #2
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
    • Coupon-mad
    • By Coupon-mad 3rd Sep 17, 3:49 PM
    • 51,552 Posts
    • 65,152 Thanks
    Coupon-mad
    Hi

    MCOL online only accepts a maximum of 122 lines for the defence, which is approximately 10% of my defence. Any advice on what to cut down or what to do? Really want to draw a line under this now and can't help but feel like I'd have been better to just pay up than spend hour after hour re writing drafts for this
    Originally posted by ld123
    Everyone here emails their defence or posts it, and this is in the NEWBIES thread. Bargepole warns against MCOL chewing up the formatting of a defence, in a post linked there.

    No-one here uses MCOL, except for acknowledgement stage. This is not an issue, why would it be, looking at our example defences, which are all pretty long? No-one restricts their defence to fit MCOL!

    Just email it (signed & dated PDF scan) to the ccbcaq email address mentioned on loads of threads.
    Last edited by Coupon-mad; 03-09-2017 at 3:51 PM.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • ld123
    • By ld123 16th Sep 17, 1:31 PM
    • 19 Posts
    • 6 Thanks
    ld123
    Hi all

    Had a reply from Gstones - suggesting to deal with the case on papers and not an oral hearing. They have also suggested we can put forward a 'payment proposal'. I've read through the advice again - will be sending the questionnaire back refuting the claim on paper and requesting the oral hearing. But just wondering - what's the likelihood of actually going to court at this stage does anyone know? I would genuinely much rather pay a small fee to have the case over and done with (I know they are cowboys and don't deserve anything - but my time is worth more to me than worrying about that) rather than going to court.

    Thanks
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