Claim Form from County Court and No LBA from Gladstones

fellsider

Thank you for reminding me about IamEmanresu's great post. I can now see it's relevance I wasn't sure what exactly it meant at the time.
I have added the bit about the LBCC he suggested but think I may have done it a little clumsily. I'm not exactly sure how it all fits together now I'm afraid..

Preliminary matters.

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

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

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

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

1.4 The following are examples of cases where the court may conclude that particulars of claim (whether contained in a claim form or filed separately) fall within rule 3.4(2)(a):
(1) those which set out no facts indicating what the claim is about, for example ‘Money owed £5000’,
(2) those which are incoherent and make no sense,
(3) those which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable claim against the defendant
3. The Claimant has not complied with the pre-court protocol.
(1) No Letter of Claim was sent to the Defendant and no initial information was sent to the Defendant.
(2) I'd refer the court to Para 4 on non-compliance and sanction, and I'd also point out that there can be no
reasonable excuse for the Claimant's failure to follow the Pre-action Conduct process, especially
bearing in mind that the Claim was issued by their own Solicitors so they clearly had legal advice before
issuing proceedings.

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



Statement of Defence

I am XXXXX, defendant in this matter and deny liability for the entirety of the claim for the following
reasons:

(1).
It is admitted that the Defendant was the authorised registered keeper of the vehicle in question at the
time of the alleged incident.

(2).
The identity of the driver of the vehicle on the date in question has not been ascertained.
a) The Claimant did not identify the driver
b) The Defendant has no liability, as they are the Keeper of the vehicle and the Claimant must rely upon the
strict provisions of the Protection of Freedoms Act 2012 in order to hold the defendant responsible for
the driver’s alleged breach.
c) The Claimant's increasingly demanding letters failed to evidence any contravention or clear/prominent
signage. Further, the Notice to Keeper (postal 'PCN') failed to give the statutory warning to the registered
keeper about the '28 day period' which is mandatory wording as prescribed in paragraph 9(2)(f) of
Schedule 4 of the Protection of Freedoms Act 2012. Consequently, the Claimant is unable to rely on the
'keeper liability' provisions of the POFA.

(3)
The claimant has not provided enough details in the particulars of claim to file a full defence.
In particular, the full details of the contract which it is alleged was broken have not been provided.

a) The Claimant has disclosed no cause of action to give rise to any debt.
b) The Claimant has stated that a parking charge was incurred.
c) The Claimant has given no indication of the nature of the alleged charge in the Particulars of Claim.
The Claimant has therefore disclosed no cause of action.
d) The Particulars of Claim contains no details and fails to establish a cause of action which would enable
the Defendant to prepare a specific defence.
It just states “parking charges” which does not give any indication of on what basis the claim is brought.
There is no information regarding why the charge arose, what the original charge was, what the alleged
contract was nor anything which could be considered a fair exchange of information.
The Particulars of Claim are incompetent in disclosing no cause of action.

e) On the 20th September 2016 another relevant poorly pleaded private parking charge claim by
Gladstones was struck out by District Judge Cross of St Albans County Court without a hearing
due to their ‘roboclaim’ particulars being incoherent, failing to comply with CPR. 16.4 and
‘providing no facts that could give rise to any apparent claim in law’
f) On the 19th Audust 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.

(4)
The Claimant has not complied with the pre-court protocol.
a) No Letter of Claim was sent to the Defendant and no initial information was sent to the Defendant.
b) I'd refer the court to Para 4 on non-compliance and sanction, and I'd also point out that there can be no
reasonable excuse for the Claimant's failure to follow the Pre-action Conduct process, especially
bearing in mind that the Claim was issued by their own Solicitors so they clearly had legal advice before
issuing proceedings.

(5)
The defendant wrote to the claimant on xxxxx asking for:
i) Full particulars of the parking charges
ii) Who the party was that contracted with ES Parking.
Iii) The full legal identity of the landowner
iv) A full copy of the contract with the landholder that demonstrated that ES Parking had their authority.
v) If the charges were based on damages for breach of contract and if so to provide justification of
this sum
vi) If the charge was based on a contractually agreed sum for the provision of parking and If so to
provide a valid VAT invoice for this 'service'.
vii) To provide a copy of the signs that ES Parking can evidence were on site and which contended
formed a contract with the driver on that occasion, as well as all photographs taken of the
vehicle in question.

The claimant has not responded.
Withholding any relevant photos of the car, particularly the windscreen and dashboard, and the signage
terms, despite being asked for by the Defendant at the outset, is against the SRA code as well as
contrary to the ‘overiding objective’ in the pre action protocol.
As Gladsones are a firm of solicitors whose 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.

(6).
ES Parking Enforcements 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 this case.
a) The Claimant is not the landowner and is merely an agent acting on behalf of the landowner and has
failed to demonstrate their legal standing to form a contract.
b) The claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the
location in question
c) The Claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its
contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any
charge. 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.

(7)
a) The Claimant has at no time provided an explanation how the sum has been calculated, the conduct
that gave rise to it or how the amount has climbed from £100 to £150. This appears to be an added cost
with no apparently no qualification and an attempt at double recovery, which the POFA Schedule 4
specifically disallows.
b) The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the
keeper is the charge stated on the Notice to Keeper.

(8)
The signage was inadequate to form a contract with the motorist
a) The signage on this site is inadequate to form a contract. It is barely legible, making it difficult to read.
b) The sign fails because it must state what the ANPR data will be used for. This is an ICO breach and
contrary to the Code of Practice.
c) The sign does not contain an obligation as to how to ‘validly display’ the ticket in the windscreen,
therefore there was no breach of any ‘relevant obligation’ or ‘relevant contract’ as required under
Schedule 4 of POFA.
d) In the absence of ‘adequate notice’ of the terms and the charge (which must be in large prominent
letters such as the brief, clear and multiple signs in the Beavis case) this fails to meet the requirements
of Schedule 4 of the POFA.

(9)
The driver did not enter into any 'agreement on the charge', no consideration flowed between the
parties and no contract was established.

(a) 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)
(a) 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 ‘local’ recovery agent (which
suggested to the Defendant they would be calling round like bailiffs) adding further unexplained
charges of £25 to the original £100 with no evidence of how this extra charge has 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.
b) The Defendant also disputes that the Claimant has incurred £50 solicitor costs.
c) The Defendant has the reasonable belief that the Claimant has not incurred £50 costs to pursue an
alleged £100 debt.
d) Not withstanding the Defendant's belief, the costs are in any case not recoverable.
e) he Claimant described the charge of £50.00 "legal fees" not "contractual costs".
CPR 27.14 does not permit these to be recovered in the Small Claims Court.

11). 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. Whilst the Claimant
withheld any photos of the signs on site, the Defendant contends these are illegible with terms hidden
in small print, unlike the 'clear and prominent' signs which created a contract Mr Beavis was 'bound to
have seen'.


The defendant therefore asks that the court orders the case to be struck out for want of a detailed
course of action and/or for the claim as having no prospect of success.


I believe the facts stated in this defence are true.


(Name) (Signature) (Date)!

Coupon-mad

Nice one but I would now remove the request for a strike out from the END, as it's there at the top in IamEmanresu's words! You just don't want the Judge to feel you are telling him/her what to do, hence never push with the strike-out request twice. Judges are canny enough to spot it and realise for themselves anyway with woeful PoC like this!

Anyway, that's a strong defence now IMHO.

It is probably too long to fit online via MCOL, so either email it or post it (set out properly, with double line-spacing and headers, dated and signed by you) like bargepole advises in post #35 here:

https://forums.moneysavingexpert.com/discussion/comment/71219800#Comment_71219800

and he mentions it here too in his post about what to do when:

https://forums.moneysavingexpert.com/discussion/5546325

HTH

fellsider

Wow! Thank you Coupon-mad, IamEmanresu and everyone else.
Your patience and fortitude is enviable!
One last thing as I realise how busy you are helping many more... my initial defence is due on the 18th Nov. I'm not one for leaving things to the last minute but when would be the best time to send this?
Kind Regards to all!

Coupon-mad

If you are posting it as bargepole recommends, I would do so 1st class by next week at the latest keeping a free certificate of posting. That's deemed delivered two working days later.

fellsider

I would really appreciate it if you could give this a quick look through before I send it off.
It's set out 1.5 spacing 12pt.
I don't want to have overlooked anything and hope I've managed to get everything in that I have been helped with.
Regards and thanks again.

In the County Court
Claim Number:
Between
xxxx (Claimant)
and
xxxx (Defendant)


Defence Statement


Preliminary Matters.

(1). The claimant failed to include a copy of their written contract as per Practice Direction
16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the
Claimants contractual authority to operate there as required by the Claimants Trade
Association's Code of Practice B1.1 which says
1.1 If you operate parking management activities on land which is not owned by you, you
must supply us with written authority from the land owner sufficient to establish you
as the ‘Creditor’ within the meaning of the Protection of Freedoms Act 2012 (where
applicable) and in any event to establish you as a person who is able to recover
parking charges. There is no prescribed form for such agreement and it need not
necessarily be as part of a contract but it must include the express ability for an
operator to recover parking charges on the landowner’s behalf or provide sufficient
right to occupy the land in question so that charges can be recovered by the operator
directly. This applies whether or not you intend to use the keeper liability provisions.

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


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

1.4 The following are examples of cases where the court may conclude that particulars of
claim (whether contained in a claim form or filed separately) fall within rule 3.4(2)(a):
1. those which set out no facts indicating what the claim is about, for example ‘Money
owed £5000’,
2. those which are incoherent and make no sense,
3. those which contain a coherent set of facts but those facts, even if true, do not
disclose any legally recognisable claim against the defendant

(3). The Claimant has not complied with the pre-court protocol.
1. No Letter of Claim was sent to the Defendant and no initial information was sent to
the Defendant.
2. I'd refer the court to Para 4 on non-compliance and sanction, and I'd also point out
that there can be no reasonable excuse for the Claimant's failure to follow the
Pre-action Conduct process, especially bearing in mind that the Claim was issued by
their own Solicitors so they clearly had legal advice before issuing proceedings.

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

Statement of Defence

I am XXXXX, defendant in this matter. It is admitted that the Defendant was the
authorised registered keeper of the vehicle in question at the time of the alleged
incident.
The Defendant denies liability for the entirety of the claim for the following reasons.

(1). The identity of the driver of the vehicle on the date in question has not been
ascertained.
1. The Claimant did not identify the driver
2. The Defendant has no liability, as they are the Keeper of the vehicle and the Claimant
must rely upon the strict provisions of the Protection of Freedoms Act 2012 in order to
hold the defendant responsible for the driver’s alleged breach.
3. The Claimant's increasingly demanding letters failed to evidence any contravention or
clear/prominent signage. Further, the Notice to Keeper (postal 'PCN') failed to give
the statutory warning to the registered keeper about the '28 day period' which is
mandatory wording as prescribed in paragraph 9(2)(f) of Schedule 4 of the Protection
of Freedoms Act 2012. Consequently, the Claimant is unable to rely on the 'keeper
liability' provisions of the POFA.

(3) The claimant has not provided enough details in the particulars of claim to file a full
defence. In particular, the full details of the contract which it is alleged was broken
have not been provided.
1. The Claimant has disclosed no cause of action to give rise to any debt.
2. The Claimant has stated that a parking charge was incurred.
3. The Claimant has given no indication of the nature of the alleged charge in the
Particulars of Claim.
The Claimant has therefore disclosed no cause of action.
4. The Particulars of Claim contains no details and fails to establish a cause of action
which would enable the Defendant to prepare a specific defence.
It just states “parking charges” which does not give any indication of on what basis
the claim is brought.
There is no information regarding why the charge arose, what the original charge
was, what the alleged contract was nor anything which could be considered a fair
exchange of information.
The Particulars of Claim are incompetent in disclosing no cause of action.
5. On the 20th September 2016 another relevant poorly pleaded private parking
charge claim by Gladstones was struck out by District Judge Cross of St
Albans County Court without a hearing due to their ‘roboclaim’ particulars being
incoherent, failing to comply with CPR. 16.4 and ‘providing no facts that could
give rise to any apparent claim in law.’
f) On the 27thJuly 2016 DJ Anson sitting at Preston County Court ruled that the very
similar parking charge particulars of claim were eficient and failing to meet CPR 16.4
and PD 16 paragraphs 7.3 – 7.6. He ordered the Claimant in that case to file new
particulars which they failed to do and so the court confirmed that the claim be
struck out.


(4) The Claimant has not complied with the pre-court protocol.
1. No Letter of Claim was sent to the Defendant and no initial information was sent to
the Defendant.
2. I'd refer the court to Para 4 on non-compliance and sanction, and I'd also point out
that there can be no reasonable excuse for the Claimant's failure to follow the Pre-
action Conduct process, especially bearing in mind that the Claim was issued by their
own Solicitors so they clearly had legal advice before issuing proceedings.

(5) The defendant wrote to the claimant on xxxxx asking for:
a) Full particulars of the parking charges
b) Who the party was that contracted with ES Parking.
c) The full legal identity of the landowner
d) A full copy of the contract with the landholder that demonstrated that ES Parking had
their authority.
e) If the charges were based on damages for breach of contract and if so to provide
justification of this sum
f) If the charge was based on a contractually agreed sum for the provision of parking
and If so to provide a valid VAT invoice for this 'service'.
g) To provide a copy of the signs that ES Parking can evidence were on site and which
contended formed a contract with the driver on that occasion, as well as all
photographs taken of the vehicle in question.

The claimant has not responded.

(6) Withholding any relevant photos of the car, particularly the windscreen and
dashboard, and the signage terms, despite being asked for by the Defendant at the
outset, is against the SRA code as well as contrary to the ‘overiding objective’ in the
pre action protocol.
As Gladstones are a firm of solicitors whose 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.


(7). ES Parking Enforcements 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.
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. The claimant is not the landowner and suffers no loss whatsoever as a result of a
vehicle parking at the location in question
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

(8)
1. The Claimant has at no time provided an explanation how the sum has been
calculated, the conduct that gave rise to it or how the amount has climbed from £100
to £150. This appears to be an added cost with apparently no qualification and an
attempt at double recovery, which the POFA Schedule 4 specifically disallows.
2. 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.

(9) The signage was inadequate to form a contract with the motorist
1. The signage on this site is inadequate to form a contract. It is barely legible, making it
difficult to read.
2. The sign fails because it must state what the ANPR data will be used for. This is an
ICO breach and contrary to the Code of Practice.
3. The sign does not contain an obligation as to how to ‘validly display’ the ticket in the
windscreen, therfore there was no breach of any ‘relevant obligation’ or ‘relevant
contract’ as required under Schedule 4 of POFA.
4. In the absence of ‘adequate notice’ of the terms and the charge (which must be in
large prominent letters such as the brief, clear and multiple signs in the Beavis case)
this fails to meet the requirements of Schedule 4 of the POFA.
(10) 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.

(11)
1. 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 ‘local’ recovery agent (which suggested to the Defendant they would be
calling round like bailiffs) adding further unexplained charges of £25 to the
£100 with no evidence of how this extra charge has 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.
2. The Defendant also disputes that the Claimant has incurred £50 solicitor costs.
3. The Defendant has the reasonable belief that the Claimant has not incurred £50 costs
to pursue an alleged £100 debt.
4. Not withstanding the Defendant's belief, the costs are in any case not recoverable.
5. The Claimant described the charge of £50.00 "legal fees" not "contractual costs".
CPR 27.14 does not permit these to be recovered in the Small Claims Court.

(12). 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. Whilst the Claimant withheld any
photos of the signs on site, the Defendant contends these are illegible with terms
hidden in small print, unlike the 'clear and prominent' signs which created a contract
Mr Beavis was 'bound to have seen'.





I believe the facts stated in this defence are true.


(Name) (Signature) (Date)!

The_Deep

Have you complained to the SRA? Gladstones are being investigated for any number of irregularities, one more will do no harm.

http://www.sra.org.uk/consumers/problems/report-solicitor.page

fellsider

I have indeed thanks The Deep. And you are right. The more complaints they have against them the more difficulties and obstacles Gladstones will have in their way.

Coupon-mad

Looks good to go unless you want to remove any repetition, e.g. more than one paragraph deals with the added costs, might be better in one place only.

fellsider

Thanks Coupon-Mad. I've altered it to remove the repetition.

fellsider

Now. One last question. When printing before sending this to Northampton can it be double sided (duplex) or print on one side only?