Defence for Court Claim - Gladstones

ZBias

Hello all

A super forum! Learnt loads and now have a defence to submit, which I hope you can help to review/improve...It's been taken from a similar situation on another forum

The situation is not parking within a designated bay in a private car park. Someone other than the registered keeper was driving but the keeper remains the defendant. As a friend, I want to represent her in court

No ticket was placed on the car and the registered keeper does not have any of the letters sent

The Letter before claim was received and acknowledged, sent by Gladstones

Further information was requested from Gladstones, none was provided and so the defence now needs to be submitted, this week. (AoS completed already). Now they request £225 (£150 parking charges, £25 court fee, £50 legal fees)

Please have a read over and let me know if this is a good/sensible/full defence...

(I don't know what form to write some of the arguments. e.g. should point 3 be updated to something like 'the registered keeper chooses to defend this claim as is her right'

--

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

2) It is denied that any indemnity costs are owed and any debt is denied in its entirety.

3) 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.

4) This is a completely unsubstantiated and inflated three-figure sum, vaguely and incoherently adduced by the claimant's solicitors in their claim. 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 this claim in an informed way.

5) As a lay representative 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.

6) This claim merely states: “parking charges 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'.

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) 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.

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

12. The claimant may try to rely upon ParkingEye Ltd v Beavis [2015] UKSC 67, ('the Beavis case') yet ParkingEye would not have been able to recover any sum at all without 'agreement on the charge'. In the Beavis case, the £85 charge was held to be allowable to act as a disincentive in that case only, based upon very specific and unique facts in a 'complex' case involving the existence of a specific legitimate interest from the landowners regarding turnover of parking spaces and very clear, brief and prominent signs. In fact, the Supreme Court Judges observed that it would be unfair if drivers were to be penalised for parking slightly out of bay lines when causing no obstruction (this was specifically mentioned at the hearing and was clearly not something they would have allowed). Further, it was held at the Court of Appeal that a parking charge sum of £135 would fail the penalty rule. The authority for this is 'Parkingeye Ltd v Somerfield Stores Ltd [2012] EWCA Civ 1338 (17 October 2012)'.

13) Notwithstanding that the Claimant claims no right to pursue the Defendant as the registered keeper under The Protection of Freedoms Act 2012, 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 drivers identity. The Protection of Freedom Act 2012 Schedule 4 has not being complied with and the claimant may not quote reasonable assumption. PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, "There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and operators should never suggest anything of the sort"(2015).

14) 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 prevents claims exceeding the sum on the original parking notice.

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

16. In the pre court stage the Claimant’s solicitor refused to provide me with the necessary information I requested in order to defend myself against the alleged debt, and also refused my asking for alternative dispute resolution via POPLA.

17. 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.

18. I request the court strike out this claim for the reasons stated above, and 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.

Coupon-mad

A good start.

You can't write this as a 'lay representative'. She has to write the defence and sign & date it. So her point #5 should say 'as an unrepresented consumer...' rather than 'lay rep'.

As a friend, I want to represent her in court.

On the day at the hearing you can be her 'lay rep' and speak for her as long as she attends too. In order to avoid any challenge as to your rights of audience, take with you a copy of the
The Lay Representatives (Rights of Audience) Order 1999.

In point #1 I would come straight out and add:

1) It is admitted that the defendant, XXXXXX XXXXX, residing at xxxxxxxxxxxxxxxxxxxxxxx is the registered keeper of the vehicle but was not driving and did not park the vehicle on the material date.

In addition:

- she should have a simple point putting the Claimant to 'strict proof' of who was driving, if they are not compliant with/do not rely upon the POFA 2012 Schedule 4

- she should state that she was not served with a POFA-compliant 'Notice to Keeper' and puts the Claimant to strict proof of same if they intend to rely upon the POFA Schedule 4 for 'keeper liability'.

- if this was a residential car park she must mention the 'Jopson v Home Guard' Appeal case.

Search this forum for 'Gladstones defence Jopson' and you will find plenty of recent examples showing that a resident has rights of way and possibly rights to park, defined in or implied by their Tenancy Agreement. I would also search 'Gladstones permit defence' to plagiarise wording from other 'permit' ones.

- there seems to be a lack of a simple point referring to the lack of lines and the scarcity of signs and the fact that the driver did not see a legible sign with the parking charge itself in large lettering. Therefore there was no contract or agreement formed (just something general like that, leaves the door open to attack the signage in the Witness Statement later on).

This Court Wizard provided by the BMPA as a free resource, should help (they even have a 'panic' button'!):

http://www.bmpa.eu/court_wizard/

Be aware that there are other stages requiring her (with your help) action, Notice of Allocation being a vital one to understand what is required in terms of filing in good time, a Witness Statement signed and dated by her AND the documents (photos, other court transcripts, the permit and permit paperwork if held) that she intends to rely upon at the hearing.

ZBias

Super helpful, many thanks Coupon Mad! Some follow-ups:

- point 5 updated
- point 1 updated
- 'strict proof of who was driving': added as point 19.
- This was a small private car park not residential so I've not included Jopson

- 'POFA-compliant Notice to Keeper'. Although no ticket was placed on the car I believe a letter was received 6 weeks later. I didn't see this but assume it was the NTK. I have requested it from Gladstones and received no reply. Do you think I can still add this point in?

- The point on clear lines and signage. I live a long way away from the alleged incident and haven't been yet. Plan to go there in early January, take pics, do some columbo etc, however that is after I will submit the defence online.
I've added point 20 as something to build upon later - is this ok?

and will have a read over the lay representative link and also the bmpa site. the latter i had a quick look on already :beer:

1) It is admitted that the defendant, XXXXXX XXXXX, residing at xxxxxxxxxxxxxxxxxxxxxxx is the registered keeper of the vehicle but was not driving and did not park the vehicle on the material date.

2) It is denied that any indemnity costs are owed and any debt is denied in its entirety.

3) 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.

4) This is a completely unsubstantiated and inflated three-figure sum, vaguely and incoherently adduced by the claimant's solicitors in their claim. 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 this claim in an informed way.

5) As an unrepresented consumer 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.

6) This claim merely states: “parking charges 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'.

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) 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.

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

12. The claimant may try to rely upon ParkingEye Ltd v Beavis [2015] UKSC 67, ('the Beavis case') yet ParkingEye would not have been able to recover any sum at all without 'agreement on the charge'. In the Beavis case, the £85 charge was held to be allowable to act as a disincentive in that case only, based upon very specific and unique facts in a 'complex' case involving the existence of a specific legitimate interest from the landowners regarding turnover of parking spaces and very clear, brief and prominent signs. In fact, the Supreme Court Judges observed that it would be unfair if drivers were to be penalised for parking slightly out of bay lines when causing no obstruction (this was specifically mentioned at the hearing and was clearly not something they would have allowed). Further, it was held at the Court of Appeal that a parking charge sum of £135 would fail the penalty rule. The authority for this is 'Parkingeye Ltd v Somerfield Stores Ltd [2012] EWCA Civ 1338 (17 October 2012)'.

13) Notwithstanding that the Claimant claims no right to pursue the Defendant as the registered keeper under The Protection of Freedoms Act 2012, 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 drivers identity. The Protection of Freedom Act 2012 Schedule 4 has not being complied with and the claimant may not quote reasonable assumption. PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, "There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and operators should never suggest anything of the sort"(2015).

14) 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 prevents claims exceeding the sum on the original parking notice.

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

16. In the pre court stage the Claimant’s solicitor refused to provide me with the necessary information I requested in order to defend myself against the alleged debt, and also refused my asking for alternative dispute resolution via POPLA.

17. 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.

18. I request the court strike out this claim for the reasons stated above, and 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''.

19. I put the Claimant to strict proof that it issued a compliant notice under Schedule 4 of the Protection of Freedoms Act 2012. Absent such a notice served within 14 days of the parking event and with fully compliant statutory wording, no keeper liability can apply, due to this Claimant's PCN not complying with Schedule 4.

20. I believe that their signs fail the test of 'large lettering' and prominence, as established in ParkingEye Ltd v Beavis.
Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. It is noted that the sign is a forbidding one, so no contract can be made with the driver.

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

Coupon-mad

- 'POFA-compliant Notice to Keeper'. Although no ticket was placed on the car I believe a letter was received 6 weeks later. I didn't see this but assume it was the NTK. I have requested it from Gladstones and received no reply. Do you think I can still add this point in?

Yes, the first letter would be the NTK but if it took weeks to arrive (and there was no windscreen PCN) then they will not be able to hold the keeper liable when they were not driving.

- The point on clear lines and signage. I live a long way away from the alleged incident and haven't been yet. Plan to go there in early January, take pics, do some columbo etc, however that is after I will submit the defence online.
I've added point 20 as something to build upon later - is this ok?

All of that is OK and evidence, documents & photos will not be needed until Witness Statement stage anyway, a couple of months off yet.

ZBias

Great! Defence submitted. :-)

I had to email rather than online portal it, after locking my account!

Basically if you use the 'reset your password' function twice in 24 hours, it locks you out for 72 hours. Even though it will actually email you a new password both times and let you enter this, the on-screen message says 'incorrect username or password' but actually your account is locked

Have made a suggestion that the validation messaging could be improved

Will let you know how things progress!

Coupon-mad

So you should have a court date pretty soon, make sure you do not miss the court paperwork stages which are explained by bargepole in a post under 'Small Claim?' in the NEWBIES thread.

Kind_Of_Irritated

That's worth knowing as some people would run out of time in 72 hours. I would have. I sent mine at the last minute!

Basically if you use the 'reset your password' function twice in 24 hours, it locks you out for 72 hours. Even though it will actually email you a new password both times and let you enter this, the on-screen message says 'incorrect username or password' but actually your account is locked

ZBias

Update: Court date set for next month! Excited.

Just getting witness statements written and across to Claimant & Court.

I will also be sending, to both, copies of all correspondence I've sent to the Claimant previously, to which they haven't replied. Want to make reference to this on the day.

Haven't received anything from Claimant throughout. And being Gladstones, they have done exactly what this forum said they would (and indeed would not do).

Is there anything else I should be doing at this stage?

ZBias

An update:

Received a courtesy call from Gladstones who kindly offered one last chance for the defendant to make a financial offer. An offer which would then be considered and if acceptable, would lead to the case being settled without the need to go to court.

Gladstones solicitor confirmed it was a water-tight case and that it could only result in one way.

Politely declined this offer.

Two days later received an email from Gladstones, containing a formal Notice of Discontinuance.

:-)

Coupon-mad

Yay, well done!

Thanks for confirming what we've seen before...a call like that, signals a discontinuance. What good news!

beamerguy

ZBias wrote: »

An update:

Received a courtesy call from Gladstones who kindly offered one last chance for the defendant to make a financial offer. An offer which would then be considered and if acceptable, would lead to the case being settled without the need to go to court.

Gladstones solicitor confirmed it was a water-tight case and that it could only result in one way.

Politely declined this offer.

Two days later received an email from Gladstones, containing a formal Notice of Discontinuance.

:-)

Amazing ... don't Gladstones realise how stupid they look ??

WATER TIGHT CASE = NOTICE OF DISCONTINUANCE ??

Rubbish firm ...... and that is great for you