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  • FIRST POST
    • RM_2007
    • By RM_2007 23rd Sep 17, 1:52 AM
    • 27Posts
    • 8Thanks
    RM_2007
    At Small Claims stage - PCM and Gladstones
    • #1
    • 23rd Sep 17, 1:52 AM
    At Small Claims stage - PCM and Gladstones 23rd Sep 17 at 1:52 AM
    Hi All,


    Cross posting from the pepipoo forum to get as much help as possible.


    Long story short - Got a NTK from PCM for parking on double yellow lines on a private estate. Went through the motions with Gladstones and cort papers were recieved (dated 06/09).


    Followed the Newbie sticky and acknoledged the AOS and hav started to draft the defence.


    The Pepipoo thread is here
    http://forums.pepipoo.com/index.php?showtopic=112701&st=60&gopid=1318034&#en try1318034


    I can cross post all the deatils if it is easier. I've found it a aunting task to compile the defence but have been helped by all the advice on the sticky - Thanks Coupo-Mad and all the others who have contributed.


    Main arguments are:


    prohibitive 'forbidding parking' signs
    signage being inadequate
    No Standing


    I've also thrown in not POFA compliant and unreasonable and vexatious claim. I still need to go through it and possible remove anything that is considered to be an irrelevant defence, so in the interest of time, Putting the current draft up for review.


    Your help and guidence would be very appriciated.








Page 1
    • RM_2007
    • By RM_2007 23rd Sep 17, 1:55 AM
    • 27 Posts
    • 8 Thanks
    RM_2007
    • #2
    • 23rd Sep 17, 1:55 AM
    • #2
    • 23rd Sep 17, 1:55 AM
    In the County Court
    Claim Number: ******************
    Between
    Parking Control Management (UK) LIMITED v ************************

    DEFENCE STATEMENT

    Background

    It is admitted that at the time of the alleged infringement the Defendant was the registered keeper of vehicle registration mark ****** which is the subject of these proceedings. The vehicle was insured with two named drivers permitted to use it.

    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 it's entirety.

    It is denied that any document was attached on the windscreen - which could be described as a 'parking charge notice'.

    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.

    HMCTS have identified over 1000 similar poorly produced claims. I believe the term for such conduct is ‘robo-claims’ which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. I have reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to my significant detriment as an unrepresented Defendant.

    I am yet to have knowledge of all documents provided to the court in support of the application, despite sending a CPR 31.14 request to the claimant's solicitors on 09/06/2017. 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 PARKING CONTROL MANAGEMENT (UK) Ltd, and no proof has been provided.

    In the pre court stage the Claimant’s solicitor refused to provide me with all the necessary information I requested in order to defend myself against the alleged debt.

    They did not send me a Letter before Action that complied with the Practice direction on pre-action conduct. The Letter before Action can be seen to miss the following information
    A clear summary of facts on which the claim is based.
    A list of the relevant documents on which their client intends to rely.
    How the “charge amount” of 160 pounds has been calculated and justified.
    Any form of possible negotiation or ADR offered.

    The defendant wrote to the claimant’s solicitors on 12/05/2017 & 09/06/2017 asking for:
    Full particulars of the parking charges
    A full copy of the contract with the landholder that demonstrated that UK Car Park Management Ltd had their authority.
    If the charges were based on damages for breach of contract and if so to provide justification of this sum.
    Explanation of the additional £60 charge
    To confirm if the claimant is claiming against the defendant as the vehicle’s registered keeper or as the driver.
    The claimant has not responded fully with any of the above information.



    As Gladstones are a firm of solicitors who’s Directors also run the IPC Trade Body and deal with private parking issues every single day of the week there can be no excuse for these omissions.


    The Defendant asks that the court orders Further and Better Particulars of Claim and asks leave to amend the Defence.

    I suggest that parking companies using the small claims track as a form of aggressive, automated debt collection is not something the courts should be seen to support.

    The claim form itself is vague and lacks pertinent information as to the grounds for the claimant’s case. The particulars of claim fail to meet CPR16.4 and PD16 7.3-7.5 and merely provide a date, location, and an "amount" consisting of a completely unsubstantiated and inflated three-figure sum, vaguely and incoherently adduced by the claimant's solicitors and demands payment within 14 days. The claim also states "parking charge " which gives no indication of on what basis the claim is brought, for example whether this charge is founded upon an allegation of trespass or 'breach of contract' or contractual 'unpaid fees'. Because of this, I have had to cover all eventualities in defending such a 'cut & paste' claim which has caused significant distress and has denied me a fair chance to defend this claim in an informed way. Therefore, as an unrepresented litigant-in-person I respectfully ask that I be permitted to amend and or supplement this interim defence as may be required following a fuller disclosure of the Claimant's case.

    The alleged debt as described in the claim are unenforceable penalties, being just the sort of unconscionable charges exposed as offending against the penalty rule, in ParkingEye Ltd v Beavis.

    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.

    It is submitted that (apart from properly incurred court fees) any added legal fees/costs are simply numbers made up out of thin air, and are an attempt at double recovery by the Claimant, which would not be recoverable in the small claims court.

    It is denied that there was any 'relevant obligation' or 'relevant contract' relating to any single parking event.

    The Claimant or the Claimant’s representatives, Gladstones, have artificially inflated the value of the Claim from £100 to £160. I submit the added costs have not actually been incurred by the Claimant; these are figures plucked out of thin air and applied regardless of facts, as part of their robo-claim litigation model, in an attempt at double recovery, circumventing the Small Claims costs rules. Further, Gladstones appear to be in contravention of the Solicitors’ Regulation Authority Code of Conduct by knowingly demanding more monies than they know they can recover.

    Failure to be compliant with POFA 2012

    It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.

    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 keeper in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA")
    Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
    There was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
    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.

    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.

    The Claimant has at no time provided an explanation how the ‘parking charge’ has been calculated, the conduct that gave rise to it or how the amount has escalated from £100 to £160. This appears to be an added cost with apparently no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.

    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.
    The driver did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.
    The Defendant denies that the driver would have agreed to pay the original demand of £100 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible

    Under the Protection of Freedoms Act 2012, Schedule 4, a registered keeper can only be held liable for the sum on a properly-served Notice to Keeper (NTK). PARKING CONTROL MANAGEMENT (UK) Ltd do not use compliant NTKs, failed to serve one and cannot hold a registered keeper liable.

    The NTK’s sent to the defendant do not contain the duration the vehicle is stated to have been parked, which POFA requires. Furthermore the two NTK’s state different timings, 31 minutes apart, again demonstrating the claimants failure to comply with POFA schedule 4, Paragraph 9 (2) (a) which states that the NTK must “specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates”.

    Failure to set out clear parking terms

    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.

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

    At the time of the material events the signage was deficient in number, size, distribution, wording and lighting to reasonably convey a contractual obligation;

    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

    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

    The signage opposite the area where the vehicle was photographed is on the opposite side of the road, approximately 4 meters in above ground with very small writing, making it illegible and does not mention what restrictions apply to the section of the road with the double yellow markings. The Code of Practice of the Independent Parking Committee’s ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory, states that “Text should be of such a size and in a font that can be easily read by a motorist having regard to the likely position of the motorist in relation to the sign”. The signage in the area does not meet this requirement.

    The Claimant has sent threatening and misleading demands which stated that further debt recovery action would be taken to recover what is owed by passing the debt to a recovery agent (which suggested to the Defendant they would be calling round like bailiffs) adding further unexplained charges with no evidence of how these extra charges have been calculated.

    No figure for additional charges was 'agreed' nor could it have formed part of the alleged 'contract' because no such indemnity costs were quantified on the signs. Terms cannot be bolted on later with figures plucked out of thin air, as if they were incorporated into the small print when they were not.

    The Defendant also disputes that the Claimant has incurred £50 solicitor costs.

    The Defendant has the reasonable belief that the Claimant has not incurred £50 costs to pursue an alleged £100 debt.

    Not withstanding the Defendant's belief, the costs are in any case not recoverable.

    The Claimant described the charge of £50.00 "legal representative’s costs" not "contractual costs". CPR 27.14 does not permit these to be recovered in the Small Claims Court.

    It is denied that the signs used by this claimant can have created a fair or transparent contract with a driver in any event. The signs were insufficient in terms of their distribution, wording and lighting hence incapable of binding the driver, which distinguishes this case from the Beavis case:

    Sporadic and illegible (charge not prominent nor large lettering) site/entrance signage - breach of the IPC Code of Practice and no contract formed to pay any clearly stated sum.
    The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.
    The signage was not lit and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Unfair Terms in Consumer Contracts Regulations 1999.
    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.
    The signage does not mention the double yellow lines, where the vehicle was photographed.
    Absent the elements of a contract, there can be no breach of contract.

    In the case of PCM vs Bull, DJ Glenn dismissed a similar case, commenting on signage that forbids parking other than prescribed, stating “it is impossible to construct out of this in any way, either actually or contingently or conditionally, any permission for anyone to park on the roadway. All this is essentially saying is you must not trespass on the roadway. If you do we are giving ourselves, and we are dressing it up in the form of a contract, the right to charge you a sum of money which really would be damages for trespass, assuming of course that the claimant had any interest in the land in order to proceed in trespass.”

    As PARKING CONTROL MANAGEMENT (UK) Ltd are not the landowners, merely an agent, and cannot pursue the defendant for trespass.

    No Standing

    PARKING CONTROL MANAGEMENT (UK) Ltd are not the lawful occupier of the land. I have the 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.

    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.

    The claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question

    In order to issue parking charges, and to pursue unpaid charges via litigation, the Claimant is required to have the written authority of the landowner, on whose behalf they are acting as an agent. No evidence of such authority has been supplied by the Claimant or their legal representatives, even after being request under CPR 31.14, and the Claimant is put to strict proof of same, in the form of an unredacted and contemporaneous contract, or chain of authority, from the landowner to the Claimant. A Managing Agent is not the Landowner.
    As a third party agent, the Claimant may not pursue any charge

    The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons. It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious. As such, I am keeping a note of my wasted time/costs in dealing with this matter.

    • RM_2007
    • By RM_2007 23rd Sep 17, 1:56 AM
    • 27 Posts
    • 8 Thanks
    RM_2007
    • #3
    • 23rd Sep 17, 1:56 AM
    • #3
    • 23rd Sep 17, 1:56 AM
    Wholly unreasonable and vexatious claim

    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).

    The Defendant respectfully suggests that parking companies using the small claims track as a form of aggressive, automated monetary demands against motorists, alleging 'debts' for parking on free customer parking areas is not something the Courts should be seen to support.

    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).

    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.

    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.

    Name – Signed - Date
    • RM_2007
    • By RM_2007 23rd Sep 17, 1:57 AM
    • 27 Posts
    • 8 Thanks
    RM_2007
    • #4
    • 23rd Sep 17, 1:57 AM
    • #4
    • 23rd Sep 17, 1:57 AM
    Not sure why the formatting has gone to bits on the forum post, but the copy I have is double spaced, numbered and in Times New Roman, font size 12 as perthe advice on the newbie post.
    • Coupon-mad
    • By Coupon-mad 23rd Sep 17, 12:56 PM
    • 50,723 Posts
    • 64,127 Thanks
    Coupon-mad
    • #5
    • 23rd Sep 17, 12:56 PM
    • #5
    • 23rd Sep 17, 12:56 PM
    Ids it about this old one from 2015 where their photos showed a sign among tree foliage?

    http://forums.moneysavingexpert.com/showthread.php?t=5346095

    If not, what happened with that one and is this about the same estate? They might say if you've paid one before/had one in 2015, that you knew about the restrictions and charge.

    Also, that 2015 thread shows a pretty much POFA compliant NTK so if I were you (even if this is a different date) unless you were not the driver, I would actually defend this as driver. Otherwise you are arguing 'no keeper liability' against a NTK that's substantially compliant, whereas it may be better to drop that bit and just go for the honest witness driver, who was just loading/unloading or delivering something to a flat? fetching a permit? authorised to park? had primacy of contract? ...etc.

    If this is your estate of flats, or you were a legit visitor to a resident? What does their Tenancy or Lease Agreement say about parking rights/right of way/right to peaceful enjoyment/any charges or restrictions about unloading/loading or stopping the common areas and double yellows?
    Last edited by Coupon-mad; 23-09-2017 at 12:59 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.

    • RM_2007
    • By RM_2007 23rd Sep 17, 11:30 PM
    • 27 Posts
    • 8 Thanks
    RM_2007
    • #6
    • 23rd Sep 17, 11:30 PM
    • #6
    • 23rd Sep 17, 11:30 PM
    Ids it about this old one from 2015 where their photos showed a sign among tree foliage?

    http://forums.moneysavingexpert.com/showthread.php?t=5346095

    If not, what happened with that one and is this about the same estate? They might say if you've paid one before/had one in 2015, that you knew about the restrictions and charge.

    Also, that 2015 thread shows a pretty much POFA compliant NTK so if I were you (even if this is a different date) unless you were not the driver, I would actually defend this as driver. Otherwise you are arguing 'no keeper liability' against a NTK that's substantially compliant, whereas it may be better to drop that bit and just go for the honest witness driver, who was just loading/unloading or delivering something to a flat? fetching a permit? authorised to park? had primacy of contract? ...etc.

    If this is your estate of flats, or you were a legit visitor to a resident? What does their Tenancy or Lease Agreement say about parking rights/right of way/right to peaceful enjoyment/any charges or restrictions about unloading/loading or stopping the common areas and double yellows?
    Originally posted by Coupon-mad
    Hi Coupon-mad, firstly cant thank you enough for all the info in the newbie sticky.

    To answer your questions:

    1: No its not the same as the one from 2015. They just stopped writing to me about it. I'm guessing they didn't pursue it any further due to the timings being different on the photo and the NTK - thats only my guess.

    2: Its the same estate and I didn't pay it.

    3: I wasn't the driver.

    4: The NTK for this one is below:



    The second NTK is here (Also with a different time)



    5: Its not my estate. The driver was dropping something to the school office which is on the estate.

    I have got another NTK for another date since the above NTK was issued. Depending on how this case goes, I can make a decision on how to proceed with the new one. Hopefully these will be the last - so the driver tells me.
    • RM_2007
    • By RM_2007 7th Oct 17, 5:41 PM
    • 27 Posts
    • 8 Thanks
    RM_2007
    • #7
    • 7th Oct 17, 5:41 PM
    • #7
    • 7th Oct 17, 5:41 PM
    Ids it about this old one from 2015 where their photos showed a sign among tree foliage?

    http://forums.moneysavingexpert.com/showthread.php?t=5346095

    If not, what happened with that one and is this about the same estate? They might say if you've paid one before/had one in 2015, that you knew about the restrictions and charge.

    Also, that 2015 thread shows a pretty much POFA compliant NTK so if I were you (even if this is a different date) unless you were not the driver, I would actually defend this as driver. Otherwise you are arguing 'no keeper liability' against a NTK that's substantially compliant, whereas it may be better to drop that bit and just go for the honest witness driver, who was just loading/unloading or delivering something to a flat? fetching a permit? authorised to park? had primacy of contract? ...etc.

    If this is your estate of flats, or you were a legit visitor to a resident? What does their Tenancy or Lease Agreement say about parking rights/right of way/right to peaceful enjoyment/any charges or restrictions about unloading/loading or stopping the common areas and double yellows?
    Originally posted by Coupon-mad

    Gladstones must read this forum, got an LBC for the one in 2015! Will respond back appropriately.
    • RM_2007
    • By RM_2007 7th Oct 17, 5:50 PM
    • 27 Posts
    • 8 Thanks
    RM_2007
    • #8
    • 7th Oct 17, 5:50 PM
    Updated defence
    • #8
    • 7th Oct 17, 5:50 PM
    Updated defence below. Will email on Monday once I've confirmed the correct email address. So far I have 3:


    Claim responses & directions: ccbcaq@hmcts.gsi.gov.uk

    County Court Business Centre (CCBC): ccbc@hmcts.gsi.gov.uk

    ccbcdefendants@hmcts.gsi.gov.uk




    Not sure why the formatting removes the paragraph numbering so haven't reposted the updated defence here for now but its on the pepipoo post.


    http://forums.pepipoo.com/index.php?showtopic=112701&st=60&gopid=1321613&#en try1321613
    • Quentin
    • By Quentin 7th Oct 17, 5:53 PM
    • 33,044 Posts
    • 17,006 Thanks
    Quentin
    • #9
    • 7th Oct 17, 5:53 PM
    • #9
    • 7th Oct 17, 5:53 PM
    The ppcs monitor here and can use your posts against you


    Your photos need editing to remove unique info that the ppc will be able to use to identify you (eg dates/locations/times etc)
    • Lamilad
    • By Lamilad 7th Oct 17, 7:34 PM
    • 1,040 Posts
    • 2,075 Thanks
    Lamilad
    ccbcaq@hmcts.gsi.gov.uk
    This one is correct
    • Lamilad
    • By Lamilad 7th Oct 17, 7:47 PM
    • 1,040 Posts
    • 2,075 Thanks
    Lamilad
    The line in their letter that states
    "it's now too late to supply the name of the driver"
    ...is false.... It's a deliberate lie, and scare tactic, used by PCM (and others) make you think you're screwed.

    You can name the driver- and discharge liability - up until the time they issue court proceedings.

    By deliberately misrepresenting statute law - in order to make to you pay - they are in breach of pre action protocols and their code of practice. This should be added into your defence.... If they repeat this lie in any court documents they are in contempt of court and attempting to pervert the course of justice.
    • RM_2007
    • By RM_2007 8th Oct 17, 6:04 PM
    • 27 Posts
    • 8 Thanks
    RM_2007
    The line in their letter that states
    "it's now too late to supply the name of the driver"
    ...is false.... It's a deliberate lie, and scare tactic, used by PCM (and others) make you think you're screwed.

    You can name the driver- and discharge liability - up until the time they issue court proceedings.

    By deliberately misrepresenting statute law - in order to make to you pay - they are in breach of pre action protocols and their code of practice. This should be added into your defence.... If they repeat this lie in any court documents they are in contempt of court and attempting to pervert the course of justice.
    Originally posted by Lamilad


    Thanks Lamilab.


    I'll add the following in the rebuttal section:


    "Furthermore in the NTK issued on the xx/xx/xx, states "It is now too late to supply the name of the driver or to make a representation against the PCN". I believe this a deliberate mispresenting of statute law, in order to scare the motorist in paying their charge and in breach of pre action protocols and their code of conduct. "
    • RM_2007
    • By RM_2007 10th Oct 17, 12:01 AM
    • 27 Posts
    • 8 Thanks
    RM_2007
    Emailed the defence to ccbcaq@hmcts.gsi.gov.uk late on Sunday night. Received the automated acknowledgement.

    Now to wait for the directions questionnaire.
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