Parking Charge, IPC Member, inadequate signage

behindtheeye

Here is my final draft of defence, to be submitted tomorrow unless anyone makes any suggestions before then! I tried to word your last suggestions as best as I could Coupon-mad but there is probably room for improvement.

IN THE COUNTY COURT
CLAIM No: xxxxxxxxxxxx
BETWEEN:
xxx LIMITED (Claimant)
-and-
xxx (Defendant)

DEFENCE STATEMENT

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

2) Rebuttal of Claim
It is denied that any 'debt' exists that could lead to a claim in law. In the alternative, if a debt is considered by the court to exist, then I am not liable because:

a) No contract was formed. There was no offer, and no consideration flowed between any parties and this location is an unmarked (or very badly marked) side road, not a car park. This appears to be just the sort of predatory ticketing practice the UK Government has pledged to end.

b) No agreement was reached, no meeting of minds with a driver agreeing to pay a parking charge.

c) No Terms and Conditions were sufficiently or prominently displayed around the site. There were no road markings.

d) No agreement was made to pay unspecified additional sums, which are unsupported in law.

e) The Claimant Company failed to comply with the terms of Schedule 4 of the Protection of Freedoms Act 2012, so cannot lawfully hold a registered keeper liable.

f) The Claimant Company failed to comply with their obligations within the International Parking Community (IPC) Code of Practice, of which they are a member.

g) The Claimant company has no standing to charge for trespass, and made no offer, so has no grounds to allege any contract existed, or could exist, nor can a third party recover any nominal sum under the tort of trespass on land they do not own.

3) I choose to defend this claim as the registered keeper, as is my right.

4) As an unrepresented litigant-in-person I respectfully ask that I be permitted to amend and or supplement this interim defence as may be required following a fuller disclosure of the Claimant's case.

My Defence
My defence will rely principally upon the following points:

5) In the Defendant’s initial correspondence with the Claimant, the Claimant stated that the Defendant’s details did not match the details they had acquired from the DVLA. This was incorrect as the Claimant had not obtained the Defendant’s details at that time, a fact that was subsequently confirmed in a letter from the DVLA. It is submitted that this shows that the Claimant dealt with the matter disingenuously, lacking fairness and transparency.

6) The Claimant has not complied with the pre-action protocol under the Practice Direction as a compliant ‘Letter Before County Court Claim’ was not issued. Despite a request by the Defendant to receive a compliant letter, one was not sent before court proceedings were started.


7) The signs erected on site were inadequate/illegible and not conforming to the IPC Code of Practice which gives clear instructions as to the placing, visibility and clarity of any signs (that should be) and are used. They are therefore incapable for the purpose of forming the basis of a contract. Should the Claimant rely upon the case of ParkingEye Ltd v Beavis [2015] UKSC 67, ('the Beavis case'), I wish to point out that there is a test of good faith (reference 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.”
It is therefore denied that any contract was formed or was capable of being formed and that there was any 'relevant obligation' or 'relevant contract' relating to any single parking event.

8) 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. Notwithstanding that the Claimant claims no right to pursue the Defendant as the registered keeper under the Act, the Claimant has failed to meet the conditions of the Act and has never acquired any right to pursue the Defendant in this capacity if it cannot identify the driver. This distinguishes the case from Elliott vs Loake (1982) in which there was irrefutable evidence of the driver’s identity.

9) There was no ‘relevant contract’ and no ‘adequate notice’ of a parking charge, both of which are pre-requisites of Schedule 4 of the Protection of Freedoms Act 2012, because the sign doesn’t face oncoming traffic. The sign also contradicts the Notice to Keeper as it tries to create a contract to pay £100 to park on the access road, yet drivers could not see that contract before parking. The Notice to Keeper describes the area as ‘no parking’, i.e. where that conduct is not only not offered for £100, but is prohibited.

10) The claimed value of £xxx.xx (plus court & legal representative costs) is a completely unsubstantiated and inflated three-figure sum, vaguely and incoherently adduced by the Claimant's solicitors in their claim.

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' and 'indemnity costs'.

It is submitted that (apart from properly incurred court fees) any added legal fees/costs are simply numbers made up out of thin air, and are an attempt at double recovery by the Claimant, which would not be recoverable in the small claims court. The lack of diligence in this claim demonstrates admirably that at best a ‘copy and paste' is the closest a human, legally trained or not, came to the information transmitted from Claimant to the Money Claims Online system. There are no real costs and POFA 2012 prevents claims exceeding the sum on the original parking notice.

The attention of the court is also drawn to para. 4(5) Schedule 4 Protection of Freedoms Act 2012 which sets out that the maximum amount recoverable from the registered keeper, where the keeper liability provisions have been properly invoked (which is expressly denied in this case) is that amount specified in the Notice to Keeper (whether issued in accordance with paras 8(2)c; 8(2)d, 9(2)c or 9(2)d of the Act).

11) 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 1000 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.
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.
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.

12) The Defendant researched the matter online, and discovered that the Claimant is a member of the International Parking Community (IPC), an organisation operated by Gladstones Solicitors. They also operate the Independent Appeals Service (IAS), the allegedly independent body appointed by the Claimant’s trade body, the IPC. This research revealed that the IAS, far from being independent, is a subsidiary of the IPC, which in turn is owned and run by the same two Directors who also run Gladstones Solicitors. The individuals in question are John Davies, and William Hurley. These findings indicate a conflict of interest. Such an incestuous relationship is incapable of providing any fair means for motorists to challenge parking charges, as well as potentially breaching the Solicitors Regulation Authority Code of Conduct.

13) 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.

Summary

14) 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.

15) The Defendant invites the court to dismiss this claim out as it is in breach of pre court protocols in relation to the particulars of claim under Practice Direction 16, set out by the Ministry of Justice and also Civil Procedure Rules (CPR) under 16.4 and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14.

16) Similar reasons were cited by District Judge Cross of St Albans County Court on 20/09/2016 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''.

17) If the court is minded to accept that the Claimant has standing then I submit that the signs on site at the time of the alleged event 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 International Parking Community’s Accredited Operators Scheme, a signatory to which the Claimant was at the relevant time.

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

Coupon-mad

Yep that'll do for this stage!

behindtheeye

Thanks once again Coupon-mad.

I just went to try and submit the defence online via MCOL with the intention of emailing it as a PDF but the Defence field is compulsory and can't be left blank and in any case doesn't allow enough lines for the defence.

Does anyone know what the done thing is here? I anticipated acknowledging that I will defend online and then following it up with the defence as an PDF email attachment. I think I will have to call the help desk tomorrow to clarify but I assume I'll have to just email it and not do anything online now.

Coupon-mad

We don't send defences on MCOL. You've missed bargepole's advice in the NEWBIES thread, and the fact yes, we email them!

behindtheeye

I have court in around a month so I'll draft the necessary documents and post here for feedback.

behindtheeye

Hi all, I am working on the witness statement and evidence documents to be submitted imminently.

A quick question for now: referring to the NEWBIES thread and the suggestions for filing evidence, point a) suggests a copy of the Beavis sign.

Is this relevant in my case? I am not sure it is as my argument is that the signage was positioned in a manner that meant it could not be seen at all, rather than the contents of the sign itself.

Coupon-mad

I would have a copy of the Beavis case sign, then (at the hearing, as you go through your arguments) hold up a few photos showing the impossible to see views in THIS car park. Photos must be in your filed evidence now with the WS.

The point being to distinguish your case from the Beavis case, to stop a Judge relying on it and thinking that every parking case is knocked into a cocked hat by the Supreme Court decision.

behindtheeye

Thank you as always Coupon-mad.

I am trying to write my Witness Statement but am struggling a bit. Can I re-use several sections of my defence? My defence is in post #72 if it helps. I can also post a draft of where it's at so far.

I have been trawling the forums so hard that my head hurts but I'm trying my best to put it together into something relevant for this case.

Also, I am close to the deadline for document submission and I haven't received anything at all from Gallstones since their 1st letter after the LBC. No DQ, no witness statement. I gather this is not unusual though.

KeithP

Maybe this post yesterday will offer some guidance on constructing a witness
statement:

forums.moneysavingexpert.com/showthread.php?p=73428372#post73428372

behindtheeye

Thanks Keith, I like that idea. I will carry on and hopefully submit the draft later on here for review.