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  • FIRST POST
    • joebloggsuk
    • By joebloggsuk 17th Aug 17, 9:16 PM
    • 33Posts
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    joebloggsuk
    Help Required - Draft SIP defence
    • #1
    • 17th Aug 17, 9:16 PM
    Help Required - Draft SIP defence 17th Aug 17 at 9:16 PM
    Evening all, I'm hoping someone will be able to help me or point me in the right direction.

    Earlier this year I had a ticket attached to my vehicle. The machine wasn't working so I left a note on my windshield explaining I'd check periodically. I was in a rush so I admit I didn't realise I could pay by phone etc.

    After receiving the ticket I sent an appeal letter within the 14 day period I believe it was. I had no response after a couple of weeks so I assumed I'd been lucky and they'd let me off. However I then had a letter asking for payment, as I'd left it quite late to reply initially probably day 13, I thought there may have been a slight overlap with them reading my appeal and the invoice being sent so I did nothing about it.

    I then received a further letter which I replied to, stating that I'd already sent an appeal letter and that I'd heard nothing from them. I heard nothing.

    I then received a solicitors letter, so I sent a third letter (recorded delivery so I knew it was received), and again I got no response.

    How are they allowed to ignore my correspondence?

    I've since received a claim letter and the price is £260, I can't bare paying it when they've completely ignored my appeals.

    Any help is greatly appreciated.
    Last edited by joebloggsuk; 21-08-2017 at 4:34 PM. Reason: less confusing
Page 2
    • joebloggsuk
    • By joebloggsuk 24th Aug 17, 4:22 PM
    • 33 Posts
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    joebloggsuk
    Anyone?? I know this is all messed up but I don't want to make a new thread.
    • nosferatu1001
    • By nosferatu1001 24th Aug 17, 4:30 PM
    • 866 Posts
    • 976 Thanks
    nosferatu1001
    Well, yuore not allowed to make a new thread.
    Do as advised. Do some work of your own to make this make sense.
    • joebloggsuk
    • By joebloggsuk 24th Aug 17, 4:38 PM
    • 33 Posts
    • 11 Thanks
    joebloggsuk
    I've deleted threads that I am able, not sure how much more I can do. The order is a bit mixed up.
    • Umkomaas
    • By Umkomaas 24th Aug 17, 4:46 PM
    • 15,548 Posts
    • 24,259 Thanks
    Umkomaas
    Anyone?? I know this is all messed up but I don't want to make a new thread.
    Originally posted by joebloggsuk
    'Anyone' what? What exactly are you asking for?
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • joebloggsuk
    • By joebloggsuk 24th Aug 17, 4:47 PM
    • 33 Posts
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    joebloggsuk
    I asked about post #12, just to see if I was on the right track.
    • nosferatu1001
    • By nosferatu1001 24th Aug 17, 4:53 PM
    • 866 Posts
    • 976 Thanks
    nosferatu1001
    Bring it to the most recent post. People wont look back through the mess to see what is what.
    • Umkomaas
    • By Umkomaas 24th Aug 17, 5:14 PM
    • 15,548 Posts
    • 24,259 Thanks
    Umkomaas
    I asked about post #12, just to see if I was on the right track.
    Originally posted by joebloggsuk
    OK - why not just copy and paste that draft defence below this one. Head it up 'LATEST DEFENCE DRAFT', then underneath ask whether there are any comments on its contents and suitability.

    But please do realise this forum is about dealing with private parking charges. It was never intended to be nor is it a legal advice forum. The fact that it has partially morphed that way is down to the increasing number of private parking court cases and where a very small number of regulars, who have the experience, are prepared to analyse court defences. They are few and far between. It's also holiday season so not everyone is around at present.

    You are unlikely to get the more or less immediate response that you would receive if yours was a basic private parking charge.

    EDIT - I see you've just done that! I got caught half way through writing this post with a lengthy phone call, hence why my advice comes after what I was suggesting you do. Hopefully someone will be along to advise.
    Last edited by Umkomaas; 24-08-2017 at 5:18 PM.
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • joebloggsuk
    • By joebloggsuk 24th Aug 17, 5:17 PM
    • 33 Posts
    • 11 Thanks
    joebloggsuk
    Latest defence draft
    Would this work as a template? I'm not sure whether to include the stuff about how it differs to the Beavis case?


    n the County Court Business Centre
    Claim Number: ___

    Between:

    Civil Enforcement Limited v ___

    Defence!Statement

    I am ___, the defendant in this matter and registered keeper of vehicle ___. I currently reside at ____.

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

    1. The Claim Form issued on the ____ by Civil Enforcement Limited was not
    correctly filed under The Practice Direction as it was not signed by a legal person but signed by “Civil Enforcement Limited (Claimant’s Legal Representative)”.

    2. This Claimant has not complied with pre-court protocol. And as an example as to why this prevents a full defence being filed at this time, a parking charge can be for trespass, breach of contract or a contractual charge. All these are treated differently in law and require a different defence. The wording of any contract will naturally be a key element in this matter, and a copy of the alleged contract has never been provided to the Defendant.

    a) There was no compliant ‘Letter before County Court Claim’, under the Practice Direction.

    b) This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The badly mail-merged documents contain very little information.

    c) The Schedule of information is sparse of detailed information.

    d) The Claim form Particulars were extremely sparse and divulged no cause of action nor sufficient detail. The Defendant has no 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. The Claim form Particulars did not contain any evidence of contravention or photographs.

    e) The Defence therefore asks the Court to strike out the claim as having no reasonable prospect of success as currently drafted.

    f) Alternatively, the Defendant asks that the Claimant is required to file Particulars which comply with Practice Directions and include at least the following information;

    (i) Whether the matter is being brought for trespass, breach of contract or a contractual charge, and an explanation as to the exact nature of the charge
    (ii) A copy of any contract it is alleged was in place (e.g. copies of signage)
    (iii) How any contract was concluded (if by performance, then copies of signage maps in place at the time)
    (iv) Whether keeper liability is being claimed, and if so copies of any Notice to Driver / Notice to Keeper
    (v) Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter
    (vi) If charges over and above the initial charge are being claimed, the basis on which this is being claimed
    (vii) If Interest charges are being claimed, the basis on which this is being claimed

    g) Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.

    3. The Claimant failed to meet the Notice to Keeper obligations of 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.!

    Schedule 4 also states that the only sum a keeper can be pursued for (if Schedule 4 is fully complied with, which it was not, and if there was a 'relevant obligation' and relevant contract' fairly and adequately communicated, which there was not as there was no clear, transparent information about how to obtain a permit either inside or outside the site) is the sum on the Notice to Keeper. They cannot pluck another sum from thin air and bolt that on as well when neither the signs, nor the NTK, nor the permit information mentioned a possible £323.26 for outstanding debt and damages.

    4. The Claimant has added unrecoverable sums to the original parking charge. It is believed that the employee who drew up the paperwork is remunerated and the particulars of claim are templates, so it is simply not credible that £50 'legal representative’s (or even admin) costs' were incurred. I deny the Claimant is entitled to any interest whatsoever.!

    5. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr. Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. None of this applies in this material case.

    6. In the absence of any proof of adequate signage that contractually bound the Defendant then there can have been no contract and the Claimant has no case.

    a) The Claimant is put to strict proof that at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs.

    b) In the absence of strict proof I submit that the Claimant was committing an offence by displaying their signs and therefore no contract could have been entered into between the driver and the Claimant.!

    c) Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case:

    (i) Sporadic and illegible (charge not prominent nor large lettering) 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.
    (ii) Non existent ANPR 'data use' signage - breach of ICO rules and the BPA Code of Practice.
    (iii) It is believed the signage and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Consumer Rights Act 2015 in requiring a huge inflated sum as 'compensation' from by an authorised party using the premises as intended.
    (iv) 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.
    (v) The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.

    d) BPA CoP breaches - this distinguishes this case from the Beavis case:!
    (i) the signs were not compliant in terms of the!font!size, lighting or positioning.
    (ii) the sum pursued exceeds £100.
    (iii) there is / was no compliant landowner contract.

    7. No standing - this distinguishes this case from the Beavis case:
    It is believed Civil Enforcement do not 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.

    8. No legitimate interest - this distinguishes this case from the Beavis case:
    This Claimant files serial claims regarding sites where they have lost the contract, known as revenge claims and it believed this is one such case. This is not a legitimate reason to pursue a charge out of proportion with any loss or damages the true landowner could pursue.!

    9. 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.

    10. 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.

    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 incorrectly filed Claim Form issued on 12th June 2017.

    (b) Sent a template, well-known to be generic cut and paste 'Particulars' of claim relying on irrelevant case law (Beavis) which ignores the fact that this Claimant cannot hold registered keepers liable in law, due to their own choice of non-POFA documentation.

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

    Signed
    Date
    • Coupon-mad
    • By Coupon-mad 30th Aug 17, 1:49 AM
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    Coupon-mad
    Your thread heading says:

    Draft SIP defence
    SIP being a private parking firm.

    Civil Enforcement being a completely different one and their defences are not suitable for a SIP/Gladstones claim. Did you even read that draft? Did you change the details to make sense, e.g. is your claim even for £323.26?

    I said earlier, this isn't difficult:
    Read all the dozens of SIP defences already here (search the forum)
    Yet you have clicked on a CEL one? PLEASE BIN IT. I don't understand why you didn't just click on a Gladstones/SIP one?

    Use the forum search, and/or go back to the NEWBIES thread post #2 and DON'T click on the first defence you see.
    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.

    • joebloggsuk
    • By joebloggsuk 30th Aug 17, 9:48 AM
    • 33 Posts
    • 11 Thanks
    joebloggsuk
    Thanks for the reply, I honestly thought the company didn't matter as it says in the newbie thread that each case is basically the same.

    I'll continue the search.
    • joebloggsuk
    • By joebloggsuk 30th Aug 17, 10:10 AM
    • 33 Posts
    • 11 Thanks
    joebloggsuk
    Before I work it into my draft, how should I word the part specific to me?

    The reason for not having a ticket is that the machine was out of order, and I left a note on my windshield for the attendant should he turn up.

    1. The defendant made all attempts to make payment for parking using an approved payment channel.
    2. The attempt to make payment was made using the machine by with cash.
    3. The machine was out of order and displayed no further instruction.
    4. The defendant attached a note to the vehicle explaining the circumstances.
    5. The defendant periodically returned to the vehicle to check the status of the ticket machine.

    Does this sound about right, or is the note irrelevant?
    • Coupon-mad
    • By Coupon-mad 30th Aug 17, 9:21 PM
    • 51,537 Posts
    • 65,144 Thanks
    Coupon-mad
    windscreen, not windshield, we aren't in the USA!

    Your version sounds reasonable and all relevant, yes. I would have it near the top, after the 'preliminary' section that you will find in most Gladstones examples in the NEWBIES thread.
    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.

    • joebloggsuk
    • By joebloggsuk 30th Aug 17, 9:53 PM
    • 33 Posts
    • 11 Thanks
    joebloggsuk
    Thanks, that's that bit sorted I'll crack on with the rest
    • joebloggsuk
    • By joebloggsuk 7th Sep 17, 4:01 PM
    • 33 Posts
    • 11 Thanks
    joebloggsuk
    Defence draft
    Introduction

    1. I am XXXX, the defendant in this matter.

    2. As an unrepresented litigant-in-person I seek the Court's permission to amend and supplement this defence as may be required upon disclosure of the claimant's case.

    3. For the avoidance of doubt on the relevant date I was the registered keeper of a XXXX, registered number XXXX

    4. The defendant made all attempts to make payment for parking using an approved payment channel.

    5. The attempt to make payment was made using the machine with cash.

    6. The machine was out of order and displayed no further instruction.

    7. The defendant attached a note to the vehicle explaining the circumstances, also stating that 'He would return periodically to check the machine status'

    8. The defendant periodically returned to the vehicle to check the status of the ticket machine.

    9. On the defendants return to the vehicle, he noticed the aforementioned note had been removed, and the penalty attached.




    Preliminary Matters


    (1) The claimant failed to include a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the Claimants contractual authority to operate there as required by the Claimants Trade Association's Code of Practice B1.1 which says:


    “1.1 If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the ‘Creditor’ within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges. There is no prescribed form for such agreement and it need not necessarily be as part of a contract but it must include the express ability for an operator to recover parking charges on the landowner’s behalf or provide sufficient right to occupy the land in question so that charges can be recovered by the operator directly. This applies whether or not you intend to use the keeper liability provisions.”


    (2) The particulars of claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached. Indeed the particulars of claim are not clear and concise as is required by CPR 16.4 1(a). The Claimants are known to be serial issuers of generic claims similar to this one. HM Courts Service has identified over 1000 similar sparse claims. I believe the term for such behaviour is roboclaims and as such is against the public interest.


    Practice Direction 3A which references Civil Procedure Rule 3.4 illustrates this point:


    1.4 The following are examples of cases where the court may conclude that particulars of claim (whether contained in a claim form or filed separately) fall within rule 3.4(2)(a):


    1. Those which set out no facts indicating what the claim is about, for example ‘Money owed £5000’,


    2. Those which are incoherent and make no sense,


    3. Those which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable claim against the defendant


    (3) The Claimant has not complied with the pre-court protocol.


    1. No Letter of Claim was sent to the Defendant and no initial information was sent to the Defendant.


    2. I'd refer the court to Para 4 on non-compliance and sanction, and I'd also point out that there can be no reasonable excuse for the Claimant's failure to follow the Pre-action Conduct process, especially bearing in mind that the Claim was issued by their own Solicitors so they clearly had legal advice before issuing proceedings.


    On the basis of the above, we request the court strike out the claim for want of a cause of action.




    Rebuttal of Claim


    7. It is denied that:


    a. A contract was formed


    b. There was an 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, in 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 an 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.


    8. It is further denied that the Defendant is liable for the purported debt, or that any debt is in fact owed, or that any debt exists or could ever or has ever existed.


    My Defence


    9. My defence will rely principally upon the following points


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


    11.The Defendant denies that the driver would have agreed to pay the original demand of £100 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.


    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.


    12. The signage on this site was inadequate to form a contract with the motorist.


    a. 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.


    b. The size of font of the prices advised for parking is much larger than the font of the contract and the offer is 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”.


    c. In the absence of ‘adequate notice’ of the terms and the charge (which must be in large prominent letters such as the brief, clear and multiple signs in the Beavis case) this fails to meet the requirements of Schedule 4 of the POFA.


    13. The Claimant’s representatives, Gladstones, have artificially inflated the value of the Claim from £100 to £160. The Defendant submits the added costs have not actually been incurred by the Claimant; that these are fabricated figures 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 £160. 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:


    14. 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.


    15. 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:


    16. 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.


    17. 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’.’


    18. 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.


    19. 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.


    20. 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.


    21. 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.


    22. 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.


    23. 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.!
    • Lamilad
    • By Lamilad 7th Sep 17, 5:16 PM
    • 1,178 Posts
    • 2,340 Thanks
    Lamilad
    Far too long, and padded with superfluous detail.

    You've got some good defend points in there but too much other stuff.

    e.g PM (1) is sufficient you don't need 1.1

    The second sentence of PM (2) is irrelevant in a defence.

    Then your paragraph referencing goes out of sync

    Practice Direction 3A which references Civil Procedure Rule 3.4 illustrates this point:
    You don't need the sub paras, quoting the CPR, that follow this statement

    we request the court strike out the claim
    Who is "we"?

    Some of the points under the Defence heading are repeating what you've already said under PM or 'rebuttal' especially about signage and deficient PoC.

    Para 23 has been taken from a WS.

    Have a look at the Johnersh defence in the NEWBIES thread. See how succinct it is compared to yours.
    • joebloggsuk
    • By joebloggsuk 14th Sep 17, 4:05 PM
    • 33 Posts
    • 11 Thanks
    joebloggsuk
    Defence draft 2
    Thanks for taking the time Lamilad, how's version 2?

    Introduction

    1. I am XXXX, the defendant in this matter.

    2. As an unrepresented litigant-in-person I seek the Court's permission to amend and supplement this defence as may be required upon disclosure of the claimant's case.

    3. For the avoidance of doubt on the relevant date I was the registered keeper of a XXXX, registered number XXXX

    4. The defendant made all attempts to make payment for parking using an approved payment channel.

    5. The attempt to make payment was made using the machine with cash.

    6. The machine was out of order and displayed no further instruction.

    7. The defendant attached a note to the vehicle explaining the circumstances, also stating that ' I will return periodically to check the status of the machine'

    8. The defendant periodically returned to the vehicle to check the status of the ticket machine.

    9. On the defendants return to the vehicle, he noticed the aforementioned note had been removed, and the penalty attached.



    Preliminary Matters


    1. The claimant failed to include a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the Claimants contractual authority to operate there as required by the Claimants Trade Association's Code of Practice B1.1


    2. The particulars of claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached. The Claimants are known to be serial issuers of generic claims similar to this one. HM Courts Service has identified over 1000 similar sparse claims. I believe the term for such behaviour is roboclaims and as such is against the public interest.


    3. Those which set out no facts indicating what the claim is about, for example ‘Money owed £5000’,


    4. Those which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable claim against the defendant.


    5. The Claimant has not complied with the pre-court protocol.


    6. No Letter of Claim was sent to the Defendant and no initial information was sent to the Defendant.



    On the basis of the above, I request the court strike out the claim for want of a cause of action.




    Rebuttal of Claim


    1. It is denied that:


    a. A contract was formed


    b. There was an 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, in 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 an 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.


    2. It is further denied that the Defendant is liable for the purported debt, or that any debt is in fact owed, or that any debt exists or could ever or has ever existed.


    My Defence


    My defence will rely principally upon the following points


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


    2. The Defendant denies that the driver would have agreed to pay the original demand of £100 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.


    3. 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.


    4. The signage on this site was inadequate to form a contract with the motorist.


    a. 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.


    b. The size of font of the prices advised for parking is much larger than the font of the contract and the offer is 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”.


    c. In the absence of ‘adequate notice’ of the terms and the charge (which must be in large prominent letters such as the brief, clear and multiple signs in the Beavis case) this fails to meet the requirements of Schedule 4 of the POFA.


    5. The Claimant’s representatives, Gladstones, have artificially inflated the value of the Claim from £100 to £160. The Defendant submits the added costs have not actually been incurred by the Claimant; that these are fabricated figures 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 £160. 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.


    c. 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.



    6. 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.


    7. 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:


    8. 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.


    9. 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’.’


    10. 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.


    11. 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.




    I believe the facts stated in this Defence Statement are true.
    • Lamilad
    • By Lamilad 14th Sep 17, 6:21 PM
    • 1,178 Posts
    • 2,340 Thanks
    Lamilad
    At a glance it looks better. I'll have a proper look later or tomorrow. A few immediate observations:

    Numbering should sequential throughout, not restarted under each new heading.

    Where you've stated "it is denied that......" some of the sub paras start with "that" which isn't right.

    Defence #9 seems long for one para... Can you shorten in or break it down?
    • joebloggsuk
    • By joebloggsuk 14th Sep 17, 7:10 PM
    • 33 Posts
    • 11 Thanks
    joebloggsuk
    Damn it, I knew I should have kept the numbering as it was lol.

    I've fixed those 'that' sentences, obvious when pointed out!

    I removed the whole para of defence 9, it was a bit repetitive anyway.


    Introduction

    1. I am XXXX, the defendant in this matter.

    2. As an unrepresented litigant-in-person I seek the Court's permission to amend and supplement this defence as may be required upon disclosure of the claimant's case.

    3. For the avoidance of doubt on the relevant date I was the registered keeper of a XXXX, registered number XXXX

    4. The defendant made all attempts to make payment for parking using an approved payment channel.

    5. The attempt to make payment was made using the machine with cash.

    6. The machine was out of order and displayed no further instruction.

    7. The defendant attached a note to the vehicle explaining the circumstances, also stating that ' I will return periodically to check the status of the machine'

    8. The defendant periodically returned to the vehicle to check the status of the ticket machine.

    9. On the defendants return to the vehicle, he noticed the aforementioned note had been removed, and the penalty attached.



    Preliminary Matters


    10. The claimant failed to include a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the Claimants contractual authority to operate there as required by the Claimants Trade Association's Code of Practice B1.1!


    11. The particulars of claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached. The Claimants are known to be serial issuers of generic claims similar to this one. HM Courts Service has identified over 1000 similar sparse claims. I believe the term for such behaviour is roboclaims and as such is against the public interest.


    12. Those which set out no facts indicating what the claim is about, for example ‘Money owed £5000’,


    13. Those which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable claim against the defendant.


    14. The Claimant has not complied with the pre-court protocol.


    15. No Letter of Claim was sent to the Defendant and no initial information was sent to the Defendant.



    On the basis of the above, I request the court strike out the claim for want of a cause of action.




    Rebuttal of Claim


    16. It is denied that:


    a. A contract was formed


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


    c. 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, in 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. In addition to the parking charge there was an 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.


    17. It is further denied that the Defendant is liable for the purported debt, or that any debt is in fact owed, or that any debt exists or could ever or has ever existed.


    My Defence


    My defence will rely principally upon the following points


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


    19. The Defendant denies that the driver would have agreed to pay the original demand of £100 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.


    20. 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.


    21. The signage on this site was inadequate to form a contract with the motorist.


    a. 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.


    b. The size of font of the prices advised for parking is much larger than the font of the contract and the offer is 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”.


    c. In the absence of ‘adequate notice’ of the terms and the charge (which must be in large prominent letters such as the brief, clear and multiple signs in the Beavis case) this fails to meet the requirements of Schedule 4 of the POFA.


    22. The Claimant’s representatives, Gladstones, have artificially inflated the value of the Claim from £100 to £160. The Defendant submits the added costs have not actually been incurred by the Claimant; that these are fabricated figures 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 £160. 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.


    c. 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.



    23. 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.


    24. 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:


    25. 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.


    26. 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.


    27. 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.




    I believe the facts stated in this Defence Statement are true.
    • Coupon-mad
    • By Coupon-mad 16th Sep 17, 12:57 AM
    • 51,537 Posts
    • 65,144 Thanks
    Coupon-mad
    Bumping it for us to take another look at the weekend.
    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.

    • joebloggsuk
    • By joebloggsuk 17th Sep 17, 12:21 PM
    • 33 Posts
    • 11 Thanks
    joebloggsuk
    Thanks all for the help so far. Any chance someone could take a (hopefully final) glance at the latest draft. I have to submit it early next week

    And also, I'm due to leave the country indefinitely in around 4 weeks. Should I mention this in the letter?

    TIA
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