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  • FIRST POST
    • FlyingHorse
    • By FlyingHorse 6th Nov 17, 7:14 PM
    • 12Posts
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    FlyingHorse
    Help please - Court Claim Form Recieved from Gladstones / UKCPM
    • #1
    • 6th Nov 17, 7:14 PM
    Help please - Court Claim Form Recieved from Gladstones / UKCPM 6th Nov 17 at 7:14 PM
    Hi All,

    *UPDATED WITH LATEST DRAFT DEFENCE STATEMENT*

    My situation is as follows:

    19/10/16 The incident - M’s flat is a residential building. M and R arrived in a car and parked in the car park which M has a permit to park in, where it was left for a maximum of 15 minutes whilst unloading.

    28/12/16 first letter received from Debt Recovery Plus (DRP) – we moved house in August 2016, the first correspondence we received was from DRP at the end of December claiming a PCN had been sent to our old address from ‘UK Car Park Management Ltd’ and that they had used a ‘tracing service’ to find our new address, we therefore went straight to the ‘debt recovery’ stage and so ignored the letter as per MSE forum advice. £149 claimed by DRP.

    27/01/17 Next letter received from DRP – Letter received with a ‘reduced payment offer’ of £126.65. This letter states “refer to our letter dated 27/01/17” – which is the date of the letter it is written on! Clearly a problem with their mail merge program! Letter ignored.

    31/01/17 Another letter from DRP – Duplicate letter received three days later still stating “refer to out letter dated 27/01/17”. Letter ignored.

    30/03/17 First letter received from Gladstones Solicitors – More threats of court action. Letter ignored.

    Letter Before Claim (LBC) received - LBC received week beginning 16/10/17 stating 30 days to reply (not sure of exact date received). Thinking we had this time, we left this aside as we were having extensive work done on our house and didn’t have the time to respond immediately. Charge increased to £160.

    04/11/17 Court Claim Form received – approx. 2 weeks from receiving LBC, and on the day we said we would sit down to respond properly to the LBC (typical!), we received a court claim. We were surprised as we thought we had around 2 more weeks to respond, but after going back to check the LBC, we find it was dated 03/10/17 so looks as though it was backdated! I realise we should have checked this carefully in the first place but we were extremely busy at the time.

    Court Claim = £160 + £25 court fee + £50 legal representative costs + £12.32 interest.

    ----------------------------------------------------------------------------------------------------------

    I have read through the newbie post, BARGEPOLE’s walkthrough, the irrelevant defences thread and a number of recent threads about cases involving Gladstones solicitors.
    I am trying to prepare a defence statement (see below), and have Acknowledged Service:
    ----------------------------------------------------------------------------------------------------------
    Things I am doing:

    • Contacting M’s landlord to ask about the contractual relationship with the PCC, and about terms of the lease RE: parking. I will also ask them to put a stop to this action.

    • I have checked M’s tenancy agreement for terms regarding parking. The only thing contained is:
    4.6 Use of the Room and the Property and the Contents In this clause, obligations relating to the Room and the Room Contents are the Tenant’s sole responsibility. Obligations relating to the shared areas of the Property and the Property Contents are the Tenant’s joint responsibility, together with the other occupiers (see also clause 3.3). The Tenant will:

    q. show proper consideration for others in the neighbourhood and, if keeping a car at the Property, not park so as to cause a nuisance or obstruction, or sound the car’s horn without due course, or rev the engine or slam the doors late at night;


    • I have taken photographs / videos of signage at the car park.

    ----------------------------------------------------------------------------------------------------------
    Notes:

    • The signage is very poor. Font sizes very small. The charge stated is £100, yet the first letter we received states £149.

    • There are other signs from a totally different company (W.Y.C.S Parking Services) placed adjacent to the UKCPM ones, which totally conflict with the ones from UKCPM. Highly confusing to say the least. How can one be expected to comply with terms from two separate companies?

    • No PCN was ever received, we went straight to debt recovery stage and no evidence has been presented to us.

    ----------------------------------------------------------------------------------------------------------
    LATEST DRAFT DEFENSE STATEMENT:

    Defence Statement

    As the registered keeper of the relevant vehicle, the Defendant denies liability for the entirety of the claim, for each of the following reasons:

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

    2. 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. The Claimant is 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 this case.

    3. It is denied that there was a contract made between the Claimant and the driver through signage or that there was any agreement between the Defendant or driver of the vehicle and the Claimant. The Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the tenancy agreement. The signs fail for the following reasons:
    3.1 The area was badly lit and sparsely signed.
    3.2. The Claimant’s signs are in small print, the terms are illegible and a driver could not reasonably be expected to read and understand the terms of parking on entering the car park.
    3.3. The Claimant’s signs are positioned adjacent to signs from a separate company claiming management of the car park. A driver could not reasonably be expected to comply with different terms of parking claimed by two separate companies on the same land. It is impossible for the defendant to have agreed conflicting terms with two wholly separate companies on the same land, or indeed to determine which company (if any) has the right to demand compliance with said terms.
    3.4 It is denied that the signs used by this claimant can have created a fair or transparent contract with a driver. The signs are forbidding and do not offer a contract to park. As the signs failed to enter the Driver into a contract with the Claimant then any costs claimed on a contractual basis cannot be valid.
    3.5 The signs did not comply with the requirements of the Code of Practice of the Independent Parking Committee’s Accredited Operators Scheme to which the claimant was a signatory at the relevant time.
    3.6. The vehicle was given objective authorisation to park on the land by a resident who was an occupant of the vehicle at the time. It is the defendant’s belief that the resident has the right to authorise a vehicle to park in the car park. There are no limits to the number or allocation of parking spaces available to residents and the spaces are not numbered.
    3.7. No physical permit was ever issued to the resident and there was no obligation to display a permit expressed within the tenancy agreement. It was impossible for a ‘valid permit’ to have been displayed in the windscreen of the vehicle.

    4. The Defendant would like to point out that this car park can be fully distinguished from the details, facts, and location in the Beavis (2015) case. It is denied that at a residential site with residents parking with full authorisation at their own home, the claimant as a third party firm incentivised to issue penalties, have any overriding 'legitimate interest' (like there was in the Beavis case) nor complex contractual arrangement that can disengage Lord Dunedin's penalty rule.

    5. The Claimant has added unrecoverable sums to the original parking charge.
    5.1 The Defendant also disputes that the Claimant has incurred £50 legal representative’s costs to pursue an alleged £160 debt.
    5.2 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.

    6.1 The Claimant claimed to have sent a Parking Charge Notice to the Defendant’s former address which was not received by the Defendant. No replacement PCN was sent to the Defendant’s current address. The first correspondence seen by the Defendant was a ‘Demand for payment’ from ‘Debt Recovery Plus Ltd’ dated 28th December 2016.
    6.2 The Claimant has sent threatening and misleading demands which stated that further debt recovery action would be taken to recover what is owed, adding further unexplained charges of varying amounts (£49, £26.65, £60) with no evidence of how this extra charge has been calculated. This appears to be an added cost with no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.
    6.2.1 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.
    6.3 The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, which has never been seen by the Defendant.
    6.4 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.

    7. The Defendant asks that the court gives consideration to exercise its discretion to strike out or dismiss the case 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) and/or for the claim having no realistic prospects of success.

    8. 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.


    9. 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. 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).

    10. The Claimant has not complied with the relevant pre-action protocol.

    I believe the facts stated in this Defence Statement are true.
    -----------------

    Thanks in advance!
    Last edited by FlyingHorse; 02-12-2017 at 10:36 AM. Reason: correction
Page 1
    • Coupon-mad
    • By Coupon-mad 6th Nov 17, 7:19 PM
    • 51,886 Posts
    • 65,535 Thanks
    Coupon-mad
    • #2
    • 6th Nov 17, 7:19 PM
    • #2
    • 6th Nov 17, 7:19 PM
    Letter Before Claim (LBC) received - LBC received week beginning 16/10/17 stating 30 days to reply (not sure of exact date received). Thinking we had this time, we left this aside as we were having extensive work done on our house and didn’t have the time to respond immediately. Charge increased to £160.

    04/11/17 Court Claim Form received – approx. 2 weeks from receiving LBC,
    Wow, that is sharp practice for a start, and I doubt the LBC included the contract/sign photos, documents, further info, nor even a copy of the actual form (just a mention of a webversion, expecting YOU to go to the trouble of locating & printing it)?

    1) My wife is now 7 months pregnant and is not up for fighting – too much stress. But I am not prepared to give up and pay these cowboys £250 of our hard-earned cash. I understand that I can be nominated by my wife as a ‘lay representative’ – can this be done now, or is this something that can only be done for the hearing?
    It's done at the hearing, she must also attend but you take a copy of the Lay Reps Right of Audience documentation to shove under the nose of the Usher on the day, so they know you will be speaking for the Defendant, who sits next to you.

    2) Have we got a good chance of winning this case?
    with us on board, you have the very highest chance possible, because this forum as a 99% success rate. Just two cases lost in 2017 that I can recall, out of hundreds. So, YES YOU DO.

    The 99% win rate is true, has been explained to doubters, and I personally vouch for the truth of that figure because I pretty much read every thread/post most weeks, and people like IamEmanresu ask postsers how they got on, having diarised their hearings.

    No company or other forum/social media, anywhere can even get within touching distance of the win rate here. As long as posters take time to take advice on their defence and stick around through WS and evidence stage, and pre-hearing tips too (hand holding throughout). I don't count people who write their own defence/go off piste or grab a defence and run.

    Those who stick around, are VERY likely to win, and I was surprised when two cases were lost, TBH (no big deal, they tried). No CCJ as long as they then paid the sum the Judge said, about £200 or less, no biggie, all over, no repercussions on credit rating.

    In my opinion, the charge is completely ridiculous as my wife was parked in an unused space, dropping off / visiting a resident with a right to park there. I am extremely busy and can’t afford the time building a defence that is going to get dismissed off hand. Any pointers as to what defences are relevant here would be greatly appreciated.
    Look at Jopson v Home Guard, (Appeal decision) hosted in the Parking Prankster's case law page online. Then search this forum for 'Jopson residential defence' and find others to copy and adapt.


    3) Have we irreparably damaged our chances of success by totally ignoring all correspondence up to this point (whether deliberately or through error)
    Not at all, you believe it to be a scam, and plenty here would say you were right.

    4) Will we need to get a WS from M?
    Yes, later at WS stage (before the hearing) when you file the WS signed by your wife, she should file a second one as well. Even better if M agrees to attend with you at the hearing, it is more persuasive as a witness. She can also confirm that her lease does not preclude residents being dropped off/time taken to go indoors and fetch the permit, or bring bags indoors (loading/unloading is not parking, so said HHJ Charles Harris QC in Jopson, as you will read form the transcript).

    M needs to dig out her lease.

    Defence not 'defense' (= USA spelling!).

    And this is ALL GOOD, below. Nice research, I am glad you are fighting this despite the upheaval & other priorities at home:
    Notes:

    • The signage is very poor. Font sizes very small. The charge stated is £100, yet the first letter we received states £149.

    • There are other signs from a totally different company (W.Y.C.S Parking Services) placed adjacent to the UKCPM ones, which totally conflict with the ones from UKCPM. Highly confusing to say the least. How can one be expected to comply with terms from two separate companies?

    • No PCN was ever received, we went straight to debt recovery stage and no evidence has been presented to us
    Last edited by Coupon-mad; 06-11-2017 at 7:34 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.

    • Redx
    • By Redx 6th Nov 17, 7:20 PM
    • 16,938 Posts
    • 21,077 Thanks
    Redx
    • #3
    • 6th Nov 17, 7:20 PM
    • #3
    • 6th Nov 17, 7:20 PM
    you can help her as lay rep but she MUST turn up in court as well

    this wont be for a few months , probably in 2018 so the baby will be born before the court date (assume up to 6 months time)

    ignoring previous paperwork etc wont be of detriment

    its always ideal to get a WS supporting your side, but not actually needed until the DQ stage , so a few weeks before the court hearing

    nobody can tell you the chances of you winning a court case, anyone that does is a fool

    if you paid for a lawyer to sit down , study your defence etc and come up with the odds, if they know the judge`s name , they might have a stab at it , but that would cost you more than if you paid this claim in full

    it is what it is , either fight , or pay in full

    it could cost less to fight the claim, so forget what ifs and concentrate on what is
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
    • KeithP
    • By KeithP 6th Nov 17, 7:41 PM
    • 4,800 Posts
    • 3,166 Thanks
    KeithP
    • #4
    • 6th Nov 17, 7:41 PM
    • #4
    • 6th Nov 17, 7:41 PM
    One thing you must do:
    remove from your original post any clues as to who the driver was that day.
    .
    • FlyingHorse
    • By FlyingHorse 6th Nov 17, 7:46 PM
    • 12 Posts
    • 1 Thanks
    FlyingHorse
    • #5
    • 6th Nov 17, 7:46 PM
    • #5
    • 6th Nov 17, 7:46 PM
    Thanks both. Apologies for spelling errors - it is not my strong point by any means!

    You have definitely given me a bit more confidence on the case.

    Wow, that is sharp practice for a start, and I doubt the LBC included the contract/sign photos, documents, further info, nor even a copy of the actual form (just a mention of a webversion, expecting YOU to go to the trouble of locating & printing it)?
    Originally posted by Coupon-mad
    Indeed the LBC contained scant information and zero evidence or documents.

    Look at Jopson v Home Guard, (Appeal decision) hosted in the Parking Prankster's case law page online. Then search this forum for 'Jopson residential defence' and find others to copy and adapt.
    Originally posted by Coupon-mad
    I will look through this, thanks!

    M needs to dig out her lease.
    Originally posted by Coupon-mad
    Forgive the ignorance, but should I expect M to have a lease agreement as well as a tenancy agreement? M says that all she received was her tenancy agreement. Do I need to chase her ex-landlord (she no longer lives at the property) for a copy of their lease agreement?
    • Coupon-mad
    • By Coupon-mad 6th Nov 17, 7:49 PM
    • 51,886 Posts
    • 65,535 Thanks
    Coupon-mad
    • #6
    • 6th Nov 17, 7:49 PM
    • #6
    • 6th Nov 17, 7:49 PM
    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
    Is that quoting from the NEW 1st October debt claim protocol they had to follow?

    Have a look at recent defences from the past 3 weeks, which mention the NEW protocol (read it). They've failed to comply. GOOD.
    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.

    • FlyingHorse
    • By FlyingHorse 29th Nov 17, 4:43 PM
    • 12 Posts
    • 1 Thanks
    FlyingHorse
    • #7
    • 29th Nov 17, 4:43 PM
    • #7
    • 29th Nov 17, 4:43 PM
    Hi everyone,

    Thanks for the help so far. I've been super busy over the last few weeks writing my PhD transfer report - but I'm now back on this and have updated my defence (below).

    I have reworded the preliminary matters to properly reference the new (Oct 17) pre-action protocols. I have also added reference to Pace vs Lengyel C7GF6E3R - a case that showed the signage was insufficient to form a contract - which I believe applies in this case. (the following are broken links to the signs in question - replace the 'XX' in https with 'tt and YYY with 'WWW')
    '
    hXXps://YYY.dropbox.com/s/mdchy5h8plwn44j/20171106_161142.jpg?dl=0
    hXXps://YYY.dropbox.com/s/gpea51m1qwh55be/20171106_161328.jpg?dl=0

    I want to get this defence submitted by the end of this week (28 days from issue date is 01/12/17). The absolute deadline for this (i.e. 28 days + 5 days from issue) is 06/12/17. Any feedback would be greatly appreciated!! Thanks in advance...

    --------------------------

    Preliminary matters.

    This Claimant has not complied with pre-court protocol (as outlined in the new Pre Action Protocol for Debt Claims, 1 October 2017). 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. These documents, and the ‘Letter before County Court Claim’ should have been produced, pursuant to paragraph 3 of the Practice Direction – Pre Action Conduct. This constitutes a deliberate attempt to thwart any efforts to defend the claim or to “take stock”, pursuant to paragraph 8 of the Practice Direction. Again, this totally contradicts the guidance outlined in the new Pre-Action Protocol for Debt Claims (2017), the aims of which are:

    i. ‘early engagement and communication between the parties, including early exchange of sufficient information about the matter to help clarify whether there are any issues in dispute
    ii. enable the parties to resolve the matter without the need to start court proceedings, including agreeing a reasonable repayment plan or considering using an Alternative Dispute Resolution (ADR) procedure
    iii. encourage the parties to act in a reasonable and proportionate manner in all dealings with one another (for example, avoiding running up costs which do not bear a reasonable relationship to the sums in issue) and
    iv. support the efficient management of proceedings that cannot be avoided.’
    e. The Defence therefore asks the Court to strike out the claim as disclosing no cause of action and 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.

    Defence Statement

    As the registered keeper of the relevant vehicle, the Defendant denies liability for the entirety of the claim, for each of the following reasons:

    1. This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The badly mail-merged documents contain very little information. 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.
    1.1 On the 20th September 2016 another relevant private parking charge claim by Gladstones was struck out by District Judge Cross of St Albans County Court without a hearing due to their ‘robo-claim’ particulars being incoherent, failing to comply with CPR. 16.4 and‘ providing no facts that could give rise to any apparent claim in law.
    1.2 On the 19th August 2016 DJ Anson sitting at Preston County Court ruled that the very similar parking charge particulars of claim were deficient and failing to meet CPR 16.4 and PD 16 paragraphs 7.3 - 7.5. He ordered the Claimant in that case to file new particulars which they failed to do, and the court confirmed the claim will now be struck out.

    2. 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. The Claimant is 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 this case.
    2.1 The Claimant is not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract.
    2.2 The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question
    2.3 The Claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge. 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 right to bring action regarding this claim.

    4. The Defendant avers that the operator’s signs cannot
    (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the tenancy agreement. The Claimant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd(2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011.
    Accordingly it is denied that:
    4.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant
    4.2. there was any obligation (at all) to display a permit; and
    4.3. it can be deemed reasonable for a Claimant to try to argue in Court that, at a residential site with residents parking with full authorisation at their own home, they as a third party firm incentivised to issue penalties to make their money, have any overriding 'legitimate interest' (like there was in the Beavis case) that can save the claim from falling foul of Lord Dunedin's penalty rule.

    5. The Claimant has added unrecoverable sums to the original parking charge.
    5.1 The Defendant also disputes that the Claimant has incurred £50 legal representative’s costs - 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
    5.2 The Defendant has the reasonable belief that the Claimant has not incurred £50 costs to pursue an alleged £160 debt.
    5.3 Not withstanding the Defendant's belief, the costs are in any case not recoverable.
    5.4 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.


    6. It is denied that there was a contract made between the Claimant and the driver through signage as the area was badly lit and sparsely signed.
    6.1. The Claimant’s signs are in small print, the terms are illegible and a driver would could not reasonably be expected to read and understand the terms of parking on entering the car park. Photographs taken by the defendant and a video of a vehicle entering the car park demonstrate the insufficient signage.
    6.2. The Claimant’s signs are positioned adjacent to signs from a separate company (‘W.Y.C.S Parking Services’) claiming management of the car park. A driver could not reasonably be expected to comply with different terms of parking claimed by two separate companies on the same land.
    6.3 Notwithstanding the provisions of the POFA and/or the existing easements, and rights of way, it is denied that the signs used by this claimant can have created a fair or transparent contract with a driver in any event.
    6.4 Pace V Lengyel (from May 2017) showed that the Claimant's signs fail to enter into contract with the driver as implied by the Claimant. Nowhere on the sign does it inform the reader that by parking in the car park, he/she is entering into a contract with the Claimant. The words “contract’ or “agreement’ do not appear at all within the sign. The phrase “Terms and Conditions” are not synonymous with a contract. Furthermore the opening words of the sign appear to be designed more to ward off trespassers than to enter into a contract with the driver.
    6.5 As the signs failed to enter the Driver into a contract with the Claimant then any costs claimed on a contractual basis cannot be valid.
    7. If the court is minded to accept that the Claimant has standing then the defendant submits that the signs on site at the time of the alleged events were insufficient in terms of their numbers, distribution, wording and lighting to reasonably convey a contractual obligation and did not in any event at the time comply with the requirements of the Code of Practice of the Independent Parking Committee’s Accredited Operators Scheme a signatory to which the Claimant was at the relevant time.

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

    9.1 The Claimant claimed to have sent a Parking Charge Notice to the Defendents former address which was not received by the Defendant. No replacement PCN was sent to the Defendant’s current address. The first correspondence seen by the Defendant was a ‘Demand for payment’ from ‘Debt Recovery Plus Ltd’ dated 28th December 2016.
    9.2 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 of varying amounts (£49, £26.65, £60) with no evidence of how this extra charge has been calculated. 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 changed from £149 to £126.65 to £149 to £160 to £172.32. 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.
    9.2.1 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.
    9.3 The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, which was not received by the Defendant.
    9.4 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.

    10.1. The Defendant would like to point out that this car park can be fully distinguished from the details, facts, and location in the Beavis case. This site does not offer a free parking licence, nor is there any comparable 'legitimate interest' nor complex contractual arrangement to disengage the penalty rule, as ParkingEye did in the unique case heard by the Supreme Court in 2015.
    9.2. In Jopson v Homeguard [2016] B9GF0A9E it was established that ParkingEye v Beavis [2015] UKSC 67 does not apply to residential parking

    11. 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).
    11.1. 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
    11.2. 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 ‘robo-claim’ 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’.’

    12. 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 a 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.

    13. 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.

    14. 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.

    15. 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. 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).

    16. 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.

    17. 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 believe the facts stated in this Defence Statement are true.
    • FlyingHorse
    • By FlyingHorse 30th Nov 17, 5:34 PM
    • 12 Posts
    • 1 Thanks
    FlyingHorse
    • #8
    • 30th Nov 17, 5:34 PM
    • #8
    • 30th Nov 17, 5:34 PM
    Would someone be able to give me some feedback please?
    • Redx
    • By Redx 30th Nov 17, 6:24 PM
    • 16,938 Posts
    • 21,077 Thanks
    Redx
    • #9
    • 30th Nov 17, 6:24 PM
    • #9
    • 30th Nov 17, 6:24 PM
    you need to bear in mind that this is not a legal aid forum and very , VERY few people on here have any legal training , perhaps half a dozen

    anybody NOT LEGALLY QUALIFIED or EXPERIENCED IN LAW is unlikely to respond , myself included

    the lay persons may make comments about obvious items or errors or suchlike , or point you at various advice they know about

    so dont take few or no replies as a snub, people wont reply unless they have something to offer, so your thread will slip down the page or pages unless somebody replies

    CM will not reply because MSE have made her PPR (check below her username)
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
    • Johnersh
    • By Johnersh 30th Nov 17, 7:08 PM
    • 752 Posts
    • 1,396 Thanks
    Johnersh
    Damn! Missed that development.

    TBH that defence is a bit "kitchen sink" to me. I'd prune it to your best arguments. 13 and 14 can go. Arguing that the court shouldn't allow parking companies to bring claims adds nothing and causes people to switch off. By all means lobby your MP, but the defence is the place to state your case not to have a whinge!

    Just so you know, Strike out is probably unlikely. Getting them to do better particulars may be a more realistic outcome.
    • FlyingHorse
    • By FlyingHorse 1st Dec 17, 11:46 AM
    • 12 Posts
    • 1 Thanks
    FlyingHorse
    Thanks for the feedback Johnersh. I realise that the defence is a bit long winded. I'm trying to prune it back as we speak.

    I will get rid of those paragraphs as suggested. Thanks!

    What do you think to paragraph 12 - is this necessary?
    • nosferatu1001
    • By nosferatu1001 1st Dec 17, 1:04 PM
    • 1,191 Posts
    • 1,233 Thanks
    nosferatu1001
    It isnt actually a defence. It does not provide a legal reason why the claimants case should fail, I dont believe.
    • FlyingHorse
    • By FlyingHorse 1st Dec 17, 6:48 PM
    • 12 Posts
    • 1 Thanks
    FlyingHorse
    I have updated my witness statement as follows. Any feedback would be greatly appreciated!

    Defence Statement

    As the registered keeper of the relevant vehicle, the Defendant denies liability for the entirety of the claim, for each of the following reasons:

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

    2. 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. The Claimant is 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 this case.

    3. It is denied that there was a contract made between the Claimant and the driver through signage or that there was any agreement between the Defendant or driver of the vehicle and the Claimant. The Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the tenancy agreement. The signs fail for the following reasons:
    3.1 The area was badly lit and sparsely signed.
    3.2. The Claimant’s signs are in small print, the terms are illegible and a driver could not reasonably be expected to read and understand the terms of parking on entering the car park.
    3.3. The Claimant’s signs are positioned adjacent to signs from a separate company claiming management of the car park. A driver could not reasonably be expected to comply with different terms of parking claimed by two separate companies on the same land. It is impossible for the defendant to have agreed conflicting terms with two wholly separate companies on the same land, or indeed to determine which company (if any) has the right to demand compliance with said terms.
    3.4 It is denied that the signs used by this claimant can have created a fair or transparent contract with a driver. The signs are forbidding and do not offer a contract to park. As the signs failed to enter the Driver into a contract with the Claimant then any costs claimed on a contractual basis cannot be valid.
    3.5 The signs did not comply with the requirements of the Code of Practice of the Independent Parking Committee’s Accredited Operators Scheme to which the claimant was a signatory at the relevant time.
    3.6. The vehicle was given objective authorisation to park on the land by a resident who was an occupant of the vehicle at the time. It is the defendant’s belief that the resident has the right to authorise a vehicle to park in the car park. There are no limits to the number or allocation of parking spaces available to residents and the spaces are not numbered.
    3.7. No physical permit was ever issued to the resident and there was no obligation to display a permit expressed within the tenancy agreement. It was impossible for a ‘valid permit’ to have been displayed in the windscreen of the vehicle.

    4. The Defendant would like to point out that this car park can be fully distinguished from the details, facts, and location in the Beavis (2015) case. It is denied that at a residential site with residents parking with full authorisation at their own home, the claimant as a third party firm incentivised to issue penalties, have any overriding 'legitimate interest' (like there was in the Beavis case) nor complex contractual arrangement that can disengage Lord Dunedin's penalty rule.

    5. The Claimant has added unrecoverable sums to the original parking charge.
    5.1 The Defendant also disputes that the Claimant has incurred £50 legal representative’s costs to pursue an alleged £160 debt.
    5.2 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.

    6.1 The Claimant claimed to have sent a Parking Charge Notice to the Defendant’s former address which was not received by the Defendant. No replacement PCN was sent to the Defendant’s current address. The first correspondence seen by the Defendant was a ‘Demand for payment’ from ‘Debt Recovery Plus Ltd’ dated 28th December 2016.
    6.2 The Claimant has sent threatening and misleading demands which stated that further debt recovery action would be taken to recover what is owed, adding further unexplained charges of varying amounts (£49, £26.65, £60) with no evidence of how this extra charge has been calculated. This appears to be an added cost with no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.
    6.2.1 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.
    6.3 The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, which has never been seen by the Defendant.
    6.4 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.

    7. The Defendant asks that the court gives consideration to exercise its discretion to strike out or dismiss the case 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) and/or for the claim having no realistic prospects of success.

    8. 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.

    9. 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. 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).

    10. The Claimant has not complied with the relevant pre-action protocol.

    I believe the facts stated in this Defence Statement are true.
    • FlyingHorse
    • By FlyingHorse 1st Dec 17, 6:49 PM
    • 12 Posts
    • 1 Thanks
    FlyingHorse
    It isnt actually a defence. It does not provide a legal reason why the claimants case should fail, I dont believe.
    Originally posted by nosferatu1001
    I was told to remove references to case law and 'evidence' from my defence statement and that this should be saved for the WS. Is this correct?
    • IamEmanresu
    • By IamEmanresu 1st Dec 17, 7:00 PM
    • 1,819 Posts
    • 3,215 Thanks
    IamEmanresu
    I was told to remove references to case law and 'evidence' from my defence statement and that this should be saved for the WS
    Was this on Pepipoo?
    Life's for living, get on with it rather than worrying about these. If they hassle, counter claim.

    Send them that costs schedule though, 24 hours before the hearing, and file it with the court. Take with you evidence that you have sent the costs schedule to them and when.
    LoC
    • FlyingHorse
    • By FlyingHorse 1st Dec 17, 7:11 PM
    • 12 Posts
    • 1 Thanks
    FlyingHorse
    Was this on Pepipoo?
    Originally posted by IamEmanresu
    Yes it was. Obviously I am a layman and this is my first experience of anything legal like this so I'm a bit confused about the whole thing.
    • nosferatu1001
    • By nosferatu1001 2nd Dec 17, 3:01 AM
    • 1,191 Posts
    • 1,233 Thanks
    nosferatu1001
    I was told to remove references to case law and 'evidence' from my defence statement and that this should be saved for the WS. Is this correct?
    Originally posted by FlyingHorse
    Yes, that’s correct. Southpaw is absolutely trustworthy on this

    It’s also nothing related to what I state above. I suggested removing 12 because it has no argument to it.
    • FlyingHorse
    • By FlyingHorse 2nd Dec 17, 10:40 AM
    • 12 Posts
    • 1 Thanks
    FlyingHorse
    Yes, that’s correct. Southpaw is absolutely trustworthy on this

    It’s also nothing related to what I state above. I suggested removing 12 because it has no argument to it.
    Originally posted by nosferatu1001
    Great, that's good to know, thanks.

    I have removed paragraph 12 from my latest draft. I've updated the original post with the latest iteration. Do you have any comments on this?

    I'm running out of time to get this submitted. The deadline (28 days + 5 days) is December 6th. Can someone please confirm that I must post the statement by then, not that it must be received by Northampton by that date?
    • bargepole
    • By bargepole 2nd Dec 17, 12:37 PM
    • 2,170 Posts
    • 6,259 Thanks
    bargepole
    Here you go, rewritten properly and with all the irrelevant waffle chucked out.

    You should reformat this in Times Roman 12 point, with 1.5 line spacing.

    IN THE COUNTY COURT BUSINESSS CENTRE

    CLAIM No. DXXXXXXX

    Between:

    UK Car Park Management Ltd (Claimant)
    -and-
    Mrs XXXXXXXXX XXXXXXXXX (Defendant)

    ___________
    DEFENCE
    __________


    1. The Defendant denies that the Claimant is entitled to relief claimed in the sum of £XXX, or at all, for the reasons stated in the following paragraphs.

    2. It is admitted that the Defendant is/was the Registered Keeper of the vehicle in question on the material date. The Defendant was also the tenant of a property at the location at that time, and was issued with a permit for use within the car parking area.

    3. On the material date, the Defendant and another party stopped the vehicle at a convenient point close to the entrance of the building, for the purposes of loading and unloading.

    4. On any reasonable construction, this action did not constitute 'parking'. In any event, it would be an implied term of the tenancy agreement that tenants should be able to park near the entrance temporarily, in order to transfer heavy or bulky items from the vehicle to the property, or vice versa.

    5. The Assured Shorthold Tenancy Agreement is the legal basis upon which the Defendant occupied the property. On the subject of parking, it states "...if keeping a car at the Property, not park so as to cause a nuisance or obstruction, or sound the car’s horn without due course, or rev the engine or slam the doors late at night...". The agreement does not specify any other conditions of parking, and the Defendant relies upon this contract as having primacy of contract over any purported contractual terms asserted by the Claimant's signage.

    5. It is, therefore, denied that the Defendant was under any obligation to display a permit at any time, or to pay penalties to a third party (the Claimant) for non-display of same. There are a number of authorities which support this position.

    6. the Claimant is put to strict proof that they have 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, who is not a party to the Tenancy Agreement, and has no proprietary interest in the land, has provided no proof of any such entitlement.

    7. The Claimant’s signs are in small print, the terms are illegible and a driver would could not reasonably be expected to read and understand the terms of parking on entering the car park. The Defendant has photographic evidence, and a video of a vehicle entering the car park, which prove this point.

    8.. The Claimant’s signs are positioned adjacent to signs from a separate company (‘W.Y.C.S Parking Services’) claiming management of the car park. A driver could not reasonably be expected to comply with different terms of parking claimed by two separate companies on the same land, and the principle of contra proferentem would mean that such ambiguity should be resolved in the Defendant's favour.

    9. The Claimant has previously 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 of varying amounts (£49, £26.65, £60). 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 changed from £149 to £126.65 to £149 to £160 to £172.32. This appears to be an attempt at adding costs with no legal basis, and an attempt at double recovery, in order to circumvent the Civil Procedure Rules.

    10. The Claimant did not serve a compliant ‘Letter Before County Claim’, on the Defendant, as mandated by the Practice Direction on Pre-Action Conduct. Further to this, the Particulars of Claim as pleaded in the N1 Claim Form are extremely sparse, and do not disclose a proper Cause of Action, but instead offer a menu of choices. As such, the Particulars do not comply with CPR 16.4, and the Court is invited to strike out the claim of its own initiative, using its case management powers.

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


    ....................................... ......................
    (Defendant) (Date)
    Speeding cases fought: 24 (3 of mine, 21 for others). Cases won: 20. Points on licence: 0. Private Parking Court Cases: Won 30. Lost 9.
    • nosferatu1001
    • By nosferatu1001 2nd Dec 17, 12:44 PM
    • 1,191 Posts
    • 1,233 Thanks
    nosferatu1001
    No, it must be received by the court. All dates you see are served dates.
    Don’t post. Print, scan sign to pdf and email.
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