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  • FIRST POST
    • RegW
    • By RegW 20th Aug 17, 6:45 PM
    • 5Posts
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    RegW
    Count Court Defence - draft
    • #1
    • 20th Aug 17, 6:45 PM
    Count Court Defence - draft 20th Aug 17 at 6:45 PM
    So glad I found so much info under the "newbee" section!
    Here are my circumstances: I rent a garage space in a building since 2013 - my classic car was always under a cover. One day I took my classic car out and left my day-to-day car (uncovered) - upon which I had a ticket issued by UK Car Park Management Ltd - stating that I didn't display a permit (which I never recieved - all I had was the key to open the garage lot). I didn't challenge it right away - thinking this would just die a slow death - but now I have a county court claim form.
    I already filed my acknowledgement of service - I have 20 days left to craft my defence.

    The Claim states:
    "The driver of the vehicle XYZ incurred the parking charge on X/Y/Z for breaching the terms of parking on the land at [address]. The Defendant was driving the Vehicle and/or is the keeper of the vehicle and the claimant claims £160 for parking charges/damages, together with interest {details},"

    My instinct is to adapt the defence for an 'own space' residential site, by Johnersh who is legally qualified - see post 72977032

    Or shall I use the other suggestion below made on the Newbee thread:

    And one written re 'no permit' allegation from Pace Recovery & Storage Ltd, T/A Ace Security Services, Gladstones case:
    post #159

    or the ones from ParkingPrankster?

    Your advice is most welcome! Thanks a million.
Page 1
    • Lamilad
    • By Lamilad 20th Aug 17, 7:26 PM
    • 885 Posts
    • 1,857 Thanks
    Lamilad
    • #2
    • 20th Aug 17, 7:26 PM
    • #2
    • 20th Aug 17, 7:26 PM
    My instinct is to adapt the!defence for an 'own space' residential site, by Johnersh who is legally qualified!
    A good start, that is a very good defence but also shows you how to properly set it out.

    Best advice is to read as many good defences as poss. None will match your exact circumstances but many will be similar.

    You can crib from more than one and edit wording to build your own 'tailor made' defence which we will help you 'perfect'
    • nosferatu1001
    • By nosferatu1001 21st Aug 17, 2:31 PM
    • 497 Posts
    • 591 Thanks
    nosferatu1001
    • #3
    • 21st Aug 17, 2:31 PM
    • #3
    • 21st Aug 17, 2:31 PM
    Indeed, and show us your defence as soon as you can

    Does your rental agreement make any requiremetns on you? Potentially post it here if unsure.
    • RegW
    • By RegW 31st Aug 17, 5:14 PM
    • 5 Posts
    • 5 Thanks
    RegW
    • #4
    • 31st Aug 17, 5:14 PM
    • #4
    • 31st Aug 17, 5:14 PM
    Here's my defence:


    DEFENCE

    Preliminary
    1. The Particulars of Claim lack specificity. The Defendant 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.

    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. 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.

    Background
    3. It is admitted that at all material times the Defendant is the registered keeper of vehicle registration mark XXZZZ which is the subject of these proceedings. The vehicle is insured with Aviva with 2 named drivers permitted to use it.

    4. It is admitted that on [date] the Defendant's vehicle was parked at [location]

    5. It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.
    5.1. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Claimant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA")
    5.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
    5.2.1. there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
    5.2.2. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
    It is not admitted that the Claimant has complied with the relevant statutory requirements.

    5.3. To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.



    6. The Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to impose a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.
    6.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate.
    6.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;
    6.1.2. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee’s ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and
    6.1.3. The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3
    6.2. The Defendant avers that the residential site that is the subject of these proceedings is not a site where there is a commercial value to be protected. The Claimant has not suffered loss or pecuniary disadvantage. The penalty charge is, accordingly, unconscionable in this context, with ParkingEye distinguished.

    7. It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking parking management. The Claimant has provided no proof of any such entitlement.

    8. It is denied that the Claimant has any entitlement to the sums sought.

    9. It is admitted that interest may be applicable, subject to the discretion of the Court on any sum (if awarded), but it is denied that interest is applicable on the total sums claimed by the Claimant.



    10. The Claimant’s representatives, Gladstones, have artificially inflated the value of the Claim from £100, to a charge of £100 and now to £167.69. 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. UK Car Park Management 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/2017 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.

    STATEMENT OF TRUTH
    I confirm that the contents of the Defence are true.




    Overall, it's hard for me to go down the route of my right to park: when I agreed with the owner back in 2013, all he gave me was a keyfob and no permits had to be displayed. The only proof I have is a direct debit titled "garage rent" - I don't have a legal rental contract.
    My only option is to go down the driver and signeage route - unless you have further suggestions?
    (the good news is that I can add my insurance contract as evidence that there are 2 named drivers for that vehicle)
    Last edited by RegW; 31-08-2017 at 6:51 PM. Reason: adding more clauses
    • nosferatu1001
    • By nosferatu1001 31st Aug 17, 6:40 PM
    • 497 Posts
    • 591 Thanks
    nosferatu1001
    • #5
    • 31st Aug 17, 6:40 PM
    • #5
    • 31st Aug 17, 6:40 PM
    Wel, you have four years of paymnets you could show
    And you can presumably get the person you rented from to sign a witness statement.
    Bang, two bits of evidence. More than they will have showing otherwise!
    • RegW
    • By RegW 31st Aug 17, 6:50 PM
    • 5 Posts
    • 5 Thanks
    RegW
    • #6
    • 31st Aug 17, 6:50 PM
    • #6
    • 31st Aug 17, 6:50 PM
    Many thanks - but in this case, am I not de-facto revealing myself as the driver?
    • KeithP
    • By KeithP 31st Aug 17, 6:58 PM
    • 3,621 Posts
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    KeithP
    • #7
    • 31st Aug 17, 6:58 PM
    • #7
    • 31st Aug 17, 6:58 PM
    The Defendant avers that the Claimant is therefore limited to pursuing the Claimant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA")
    Originally posted by RegW
    Is that right?

    'the claimant pursuing the claimant'?

    That's in defence point 5.1.
    Last edited by KeithP; 31-08-2017 at 7:06 PM.
    .
    • Coupon-mad
    • By Coupon-mad 31st Aug 17, 10:59 PM
    • 49,992 Posts
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    Coupon-mad
    • #8
    • 31st Aug 17, 10:59 PM
    • #8
    • 31st Aug 17, 10:59 PM
    Many thanks - but in this case, am I not de-facto revealing myself as the driver?
    Originally posted by RegW
    I think you should defend as driver, in an own space case, because you can stand there at the hearing saying that this is your allocated (or demised/owned?) space and you have primacy of contract, and proving it with whatever documents you have.

    I would remove stuff about the Claimant having to rely upon the POFA - because they actually CAN and it doesn't help the main defence.

    And I would move all the stuff about Gladstones up into the 'preliminary' section (and cut it down as it is repetitive and wordy), and finish with a stronger section, like here:

    http://forums.pepipoo.com/index.php?showtopic=107768&st=80&start=80

    And you don't appear to have the Jopson Appeal case or Saeed v Plustrade mentioned? Did I miss it?

    Are you a tenant, or a leasehold flat owner?

    How is that space allocated to you, what paperwork or proof do you have?

    Have you lived there longer than UKCPM have been around?

    Why were you never issued a permit?
    Last edited by Coupon-mad; 31-08-2017 at 11:06 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.

    • RegW
    • By RegW 1st Sep 17, 12:47 PM
    • 5 Posts
    • 5 Thanks
    RegW
    • #9
    • 1st Sep 17, 12:47 PM
    • #9
    • 1st Sep 17, 12:47 PM
    Many thanks for your reply! I was renting the space from a guy who owns a flat in that building - we never did any paperwork - I paid and he gave me a keyfob to open the gate. No permits were needed to be displayed when I started in 2013 and that changed but I never got notified, and my car was under a cover.
    I will take your advice about cutting down the sections and look at the Jopson appeal.
    • Coupon-mad
    • By Coupon-mad 1st Sep 17, 7:26 PM
    • 49,992 Posts
    • 63,394 Thanks
    Coupon-mad
    OK, so he will hopefully sign & date a Witness Statement, to help you at your WS stage? So you will have two WS at that time, and the evidence of his right to the space (his lease/agreement or whatever he has that shows it's his right to use it).
    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.

    • RegW
    • By RegW 6th Sep 17, 4:59 PM
    • 5 Posts
    • 5 Thanks
    RegW
    Final Defence text
    many thanks to all for your input. I've organised my defence on 4 points:
    - Lack of proof that I am the driver
    - Lack of specificity of the claim
    - Lack of authority to issue the claim
    - Lack of signage


    (I can't get a statement of witness in time from the guy I rented the parking from)


    Proof of driver:
    1. It is acknowledged that the defendant is the registered keeper of the vehicle. The defendant was not, however, the driver of the vehicle on the alleged contravention date. The Claimant is put to strict proof.


    Robotic Claims

    2. 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.

    3. 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.


    Lack of specificity:
    4. If the “parking charge” listed in the particulars of claim is to be considered a written agreement between Defendant and Claimant then the particulars fail to include “a copy of the contract or documents constituting the agreement”.
    5. It is denied that any "parking charges or indemnity costs" (whatever they might be) as stated on the Particulars of claim are owed and any debt is denied in its entirety.
    6. 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.
    7. 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''.

    8. This case can be easily distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes. Charges cannot exist merely to punish drivers. This claimant has failed to show any comparable 'legitimate interest' to save their charge from Lord Dunedin's four tests for a penalty, which the Supreme Court Judges found was still adequate in less complex cases, such as this allegation.

    Lack of Authority
    9. I am yet to have knowledge of any documents provided to the court in support of the application, accordingly, it is denied that the Claimant has authority to bring this claim. The proper Claimant (if any debt exists, which is denied) would be the landowner. Strict proof is required that there is a chain of contracts leading from the landowner to UK Car Park Management Ltd, and no proof has been provided.
    10. UK Car Park Management 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.

    Lack of signage
    11. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate.
    11.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;
    11.1.2. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee’s ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and
    11.1.3. The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3
    12. The Defendant avers that the residential site that is the subject of these proceedings is not a site where there is a commercial value to be protected. The Claimant has not suffered loss or pecuniary disadvantage. The penalty charge is, accordingly, unconscionable in this context, with ParkingEye distinguished.
    • Coupon-mad
    • By Coupon-mad 7th Sep 17, 1:07 AM
    • 49,992 Posts
    • 63,394 Thanks
    Coupon-mad
    (I can't get a statement of witness in time from the guy I rented the parking from)
    Yes you can, because Witness Statement(s) stage is a couple of months away! Not now.
    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.

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