Your browser isn't supported
It looks like you're using an old web browser. To get the most out of the site and to ensure guides display correctly, we suggest upgrading your browser now. Download the latest:

Welcome to the MSE Forums

We're home to a fantastic community of MoneySavers but anyone can post. Please exercise caution & report spam, illegal, offensive or libellous posts/messages: click "report" or email forumteam@.

Search
  • FIRST POST
    • MBRob87
    • By MBRob87 4th Jan 18, 2:13 AM
    • 3Posts
    • 1Thanks
    MBRob87
    Claim form defence needed, Gladstones for PCM
    • #1
    • 4th Jan 18, 2:13 AM
    Claim form defence needed, Gladstones for PCM 4th Jan 18 at 2:13 AM
    Hi everybody,

    I have received a Claim Form from the County Court Business Centre, filed by Gladstones Solicitors. The Claimant is Parking Control Management. Did their appeals process, IAS dismissed appeal and ignored breach of IPC code of practice regarding 'grace period'. I've contacted the owner of the land who have said they agreed with PCM they would not intervene with any tickets. I have done the AOS on MCOL and believe I now need to put together a defence.


    The brief summary of the situation is that my car was in a car park they operate for a total of 2 minutes to drop someone off at a house viewing and while the driver was trying to find out if they could park there an 'operative' ticketed the car. There was a sign up on the wall behind the car but the writing was tiny and it was not seen when the car reversed into the bay. There were other empty spaces, no parking meters as its apparently a residents only carpark. The car was ticketed before the driver knew they couldn't park there, even if they were willing to pay, while they looked for a parking meter
    .


    DEFENCE DRAFT:

    1) It is admitted that the defendant, Mr XXXXXX XXXXX, residing at xxxxxxxxxxxxxxxxxxxxxxx is the registered keeper of the vehicle.

    2) The vehicle was present at the stated location for a total of 2 minutes between entering the car park and the Invoice being issued, which can not be reasonably considered a ‘grace period’ in which time the driver may find a sufficiently legible sign, so as to ascertain the terms of use of the parking bays. This is in breach of the IPC code of practice, to which the claimant is an Accredited operator, and by which they must therefore abide. This code states 'Drivers should be allowed sufficient amount of time to park and read any signs so they may make an informed decision as to whether or not to remain on the site' a point that has been made to both the issuers of the invoice and their ‘independent’ appeals counterparts the IAS. Neither company has acknowledged this point and has intentionally pursued an illegitimate claim.

    3) The Particulars of Claim lack specificity and are embarrassing. 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.

    4) It is denied that any 'parking charges or indemnity costs' (whatever they might be) are owed and any debt is denied in its entirety.


    5) This is a completely unsubstantiated and inflated three-figure sum, vaguely and incoherently adduced by the claimant's solicitors. The Particulars are not clear and concise, so I have had to cover all eventualities in defending a 'cut & paste' claim. This has caused significant distress and has denied me a fair chance to defend the claim in an informed way.

    6) This claim merely states: ''parking charges/damages and indemnity costs if applicable'' which does not give any 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'. Nor are any clear times/dates or coherent grounds for any lawful claim particularised, nor were any details provided to evidence any contract created nor any copy of this contract, nor explanation for the vague description 'parking charges', ‘damages’ and 'indemnity costs'.


    7) The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking for a true cause of action. HMCS have identified over 1000 similar poorly produced claims and the solicitor's conduct in many of these cases is believed to be currently the subject of an active investigation by the SRA.


    8) 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.


    9) 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.


    10) No evidence has been supplied by this claimant as to who parked the vehicle. Under the Protection of Freedoms Act 2012 there is no presumption in law as to who parked a vehicle on private land nor does there exist any obligation for a keeper to name a driver. I choose to defend this claim as the registered keeper, as is my right.


    11) 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.

    12) I put the claimant to strict proof of a chain of contracts leading from the landowner to this claimant which enable these charges to be pursued in court by this contractor, for these alleged contravention(s), whatever they may be.


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


    14) Under the Protection of Freedoms Act 2012, Schedule 4 (POFA), a registered keeper can only be held liable for the sum in any compliant 'Notice to Keeper' (a sum which is less than the claim). This depends upon the Claimant fully complying with the statute, including 'adequate notice' of the parking charge and prescribed documents served in time/with mandatory wording. It is submitted the claimant has failed on all counts.


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


    16) 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.


    17) It is not believed that the Claimant has incurred additional costs - be it legal or debt collector costs or even their unlawful, fixed sum card surcharge for payments - and they are put to strict proof that they have actually incurred and can lawfully add an extra sums.


    18) 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.



    19) 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.


    20) I request the court strike out the claim xxxxxxxx for similar reasons cited by District Judge Cross of St Albans County Court on 20/09/16 where a similar claim was struck out without a hearing, due to Gladstones' template particulars for a private parking firm being 'incoherent', failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''.

    Statement of Truth: I confirm that the contents of this statement are true to the best of my knowledge and belief.


    I hope I have put this together right but would really appreciate someone with experience casting an eye over it and helping out if possible. I think I have about 2 weeks left to submit the defence if I have my dates right.

    Many thanks for any suggestions.

    M.
Page 1
    • nosferatu1001
    • By nosferatu1001 4th Jan 18, 2:23 AM
    • 1,579 Posts
    • 1,731 Thanks
    nosferatu1001
    • #2
    • 4th Jan 18, 2:23 AM
    • #2
    • 4th Jan 18, 2:23 AM
    Date of issue? We then know all the dates

    It looks like the longer old version defence. 7,8,9 I would remove.

    Prior to claim form did you get their crap lba? Did you respond ?
    • MBRob87
    • By MBRob87 4th Jan 18, 3:20 AM
    • 3 Posts
    • 1 Thanks
    MBRob87
    • #3
    • 4th Jan 18, 3:20 AM
    • #3
    • 4th Jan 18, 3:20 AM
    Thanks for getting back to me so quickly. I will remove 7,8 and 9.

    Date of issue on Claim form 13th December. Pretty sure I did the AOS on the 20th December. Not sure if I got lba, I stopped paying much attention to their letters after the Debt Collection ones until the Court Claim form came through. I did not respond.

    Is there anything I should add that I have missed?

    Thanks!
    • Coupon-mad
    • By Coupon-mad 4th Jan 18, 9:07 PM
    • 52,923 Posts
    • 66,467 Thanks
    Coupon-mad
    • #4
    • 4th Jan 18, 9:07 PM
    • #4
    • 4th Jan 18, 9:07 PM
    I'd go for this sort of thing. Change it a bit if the person wasn't a prospective tenant (e.g. if the passenger was conducting the viewing, rather than being the 'viewer' then say that instead):



    IN THE COUNTY COURT BUSINESS CENTRE
    CLAIM No. DXXXXXXX
    BETWEEN
    Parking Control Management (UK) Ltd (CLAIMANT)

    -and-

    xxxxx xxxxxxxx (DEFENDANT)

    ________

    DEFENCE
    ________


    Background
    1. It is admitted that the defendant, XXXXXX XXXXX, is the registered keeper of the vehicle.

    1.1. It is denied that there was any 'relevant obligation' or 'relevant contract' relating to any parking event, in fact it is denied that the car was actually parked/left for any period of time that can warrant any 'contractual parking charge'.

    1.2. It is denied that any 'parking charges or indemnity costs' (whatever they might be) are owed. Any purported 'debt' is denied in its entirety.

    2. The alleged parking charge relates to two minutes whilst the vehicle was present at the stated location, dropping off a passenger to view a property. The car was ticketed before the driver could have read any terms or conditions and whilst the driver was looking for parking terms or a machine.

    2.1. It was while this was in progress, that the Claimant’s operative placed a notice on the vehicle, and it is apparent the ticketer must have lurked, watched and immediately ticketed, conduct that is clearly predatory.


    2016 Appeal case (a Gladstones parking claim turning on similar facts) is pursuasive
    3. The facts of this case are similar to those in the Appeal case of Jopson v Homeguard Services (B9GF0A9E, Oxford County Court, 2016), where a car had stopped temporarily near the entrance in order to unload some furniture. HHJ Harris QC held, in his Judgment at [18], that “a right of access permitted short incidental stops for the purpose of access to her flat”. Specifically, it was stated that brief stops for delivering or unloading items, dropping off passengers, etc. were not 'parking'; a definition which was fully explored by this Senior Circuit Judge, who observed that life at a block of flats would be ''unworkable'' if every resident or visitor ran a risk of immediate ticketing, when the vehicle was not in fact parked, and before any contract could possibly have been agreed.

    4. The Judgment in Jopson also makes it clear that the factual circumstances are quite different from those which applied in ParkingEye Ltd v Beavis [2015] UKSC 67, and that case is distinguished.


    No Reasonable Grace Period Allowed by the Claimant - no contract formed
    5. Two minutes cannot be reasonably considered a ‘grace period’ in which time the driver may find a sufficiently legible sign, so as to ascertain the terms of use of the parking bays. This is in breach of the the International Parking Community (“IPC”) code of practice, to which the claimant is an Accredited operator, and by which they must therefore abide.

    5.1. The IPC Code states: 'Drivers should be allowed sufficient amount of time to park and read any signs so they may make an informed decision as to whether or not to remain on the site'. Whilst this Code of Practice is not statutory, compliance with the Code is mandatory in order for parking operators to obtain vehicle keeper details from the DVLA.


    Unfairness - no regard for the Trader's duty for 'Fair Dealing' and Misleading Trading Practices
    6. Trade Body Codes of Practice are 'effectively binding' according to the Supreme Court in the Beavis case.

    6.1. Further, the Consumer Protection from Unfair Trading Regulations identifies at section 5 'Misleading Actions': (3) A commercial practice satisfies the conditions of this paragraph if - (b) it concerns any failure by a trader to comply with a commitment contained in a code of conduct which the trader has undertaken to comply with, if—
    (i) the trader indicates in a commercial practice that he is bound by that code of conduct, and
    (ii) the commitment is firm and capable of being verified and is not aspirational.

    6.2. The Court's attention is drawn to the “Red Hand Rule”, as set out in the leading judgment in J Spurling v Bradshaw [1956] EWCA Civ 3, where Denning MR stated: “The more unreasonable a clause is, the greater the notice which must be given of it. Some clauses would need to be printed in red ink with a red hand pointing to it before the notice could be held to be sufficient”.

    6.3. Underlining that is Section B.2.1, B.2.2 of the IPC Code of Practice which gives clear instructions as to the placing, visibility and clarity of any signs that must be used to form contracts. It says: ''It is therefore of fundamental importance that the signage meets the minimum standards under The Code as this underpins the validity of any such charge.''

    6.4. In the Beavis case, the Supreme Court Judges reiterated the requirement for fair and open dealing, at paragraph 205: “The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.”

    6.5. Courts must now consider the fairness of a term, where it is not 'prominent and transparent'. Unfair terms here include the penalty fine itself, charges hidden in small print, lack of any fair grace period for the driver to seek out, read decide whether to accept any advertised parking contract, misleading and predatory conduct, added costs not specified prominently in the alleged contract, disproportionate default charges, non-observance of a Code of Practice. Such conduct and terms breach Part 2 'Unfair Contract Terms' of the Consumer Rights Act 2015 (the CRA) which was enacted after the Beavis case final hearing, and remains untested in the context of unfair parking penalty charges.

    6.5.1. The Court's attention is drawn to the CRA at SCHEDULE 2, a non-exhaustive list of 'Consumer contract terms which may be regarded as unfair' which include clear references to conduct that is on all fours with that of this Claimant, and their solicitors.

    6.5.2. The CRA requires that key terms of a contract, including price, must be assessed for fairness by a court, where those terms are not both 'prominent and transparent' (which the Defendant avers they are not).
    The CRA, at para 71, sets out the duty of court to consider fairness of a consumer contract term: ''(2) The court must consider whether the term is fair even if none of the parties to the proceedings has raised that issue or indicated that it intends to raise it''.

    7. An honest, timely and concerted effort was made to appeal, but the points made to both the Claimant and the supposedly 'independent' IAS were effectively ignored, contrary to the IPC Code of Practice. It is now apparent to the Defendant that 'appeal' to IPC members and/or the IAS is futile, and that it is widely held to be a kangaroo court, luring members to the IPC under a well-publicised promise of 80% appeals going in favour of the parking firm. It is averred that this is why this Claimant moved from the BPA, where POPLA is independent from that Trade Body and consistently finds in consumers' favour in over half of appeal cases.

    7.1. The Defendant's research into the Claimant company reveals that, on Thursday 28th May 2015, the BBC Watchdog programme sent an undercover reporter into the Claimant’s offices, to reveal the unscrupulous practices employed by the Claimant. Amongst many revelations, at one point their appeals handler stated on camera “I make it up most of the time” (a screenshot will be provided as evidence).

    7.2. Further research reveals that the IPC, and its supposedly independent appeals service (“IAS”), are all controlled by the two Directors of Gladstones Solicitors, who are acting for the Claimant in this matter. This can be confirmed by reference to Companies House records, and is evidence of a conflict of interest by which it is unlikely that any appeal would be fairly adjudicated. As such, this is a further indication that the Claimant does not come to the matter with clean hands.


    No commercial justification to penalise a prospective tenant - predatory conduct
    8. This Claimant is not the lawful occupier of the land is at best acting 'on behalf of' another agent. It is averred that this Claimant has no more than a bare licence to put signs up under an agency agreement, and this punitive charge is in conflict with any purported commercial justification, having been issued to punish a prospective tenant.

    8.1. It is averred that there is no agreement from the landholder that bestows any rights to this non-landholder Claimant, to pursue visitors in the courts, in its own name.

    8.2. Specifically, it is the Defendant's honest belief that, even if there is a chain of authority from the landowner conferring such a right to pursue drivers of cars that have actually been parked/left at the location, this cannot reasonably allow immediate, predatory ticketing of drivers dropping off potential tenants for a viewing whilst the driver was seeking out terms of parking.

    8.3. The Claimant is put to strict proof of its legitimate interest and cause of action, given the facts of the case.


    This Claim is artificially inflated, but is embarrassing for scarce Particulars
    9. It is denied that the Claimant has any entitlement to the sums sought, and it is noted that this Claim has inflated the 'charges' in a typically routine attempt at double recovery of a sum which bears no relation to the sum on any sign or parking charge notice.

    10. No indemnity costs or damages have been incurred, nor were any debt collection 'fees' paid by this Claimant, and it is averred that the sum claimed is invented out of thin air as part of the Claimant's solicitors' robo-claim model.

    11. The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence and no scrutiny of details. HMCS have identified thousands of similar poorly produced claims, and the solicitor's conduct in many of these cases is believed to be currently the subject of an active investigation by the SRA.

    12. The Particulars of Claim lack specificity and are embarrassing. The Court is respectfully invited to strike out the claim, for similar reasons cited by District Judge Cross of St Albans County Court on 20/09/16 where a parking claim was struck out without a hearing, due to Gladstones' template particulars for a private parking firm being 'incoherent', failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''.

    13. Should the Claim not be struck out by the Court, as an alternative when Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange). This is because it is expected that the Claimant/Gladstones will use the witness statement to finally provide the sort of detail which should have been disclosed much earlier in the missing Particulars of Claim. The Defendant should have the opportunity to consider the full particulars/evidence, prior to serving evidence and witness statements in support of this Defence.

    I believe that the facts contained in this Defence are true.


    Signature


    Date
    Last edited by Coupon-mad; 04-01-2018 at 9:40 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.

    • MBRob87
    • By MBRob87 7th Jan 18, 10:02 AM
    • 3 Posts
    • 1 Thanks
    MBRob87
    • #5
    • 7th Jan 18, 10:02 AM
    • #5
    • 7th Jan 18, 10:02 AM
    Thank you for taking the time to help me out with this. The passenger was the prospective tenant so i'll leave the wording as it is. Wouldn't risk putting my ignorant wording anywhere near your extremely accomplished text anyway.

    I shall send this off tonight, unless anyone has any recommendations as to courses of action or other things to include?

    Again, Thankyou!
Welcome to our new Forum!

Our aim is to save you money quickly and easily. We hope you like it!

Forum Team Contact us

Live Stats

148Posts Today

2,694Users online

Martin's Twitter