County Court claim received

chambi01

Hi
I've received a claim form from the court after getting a PCN at the Aquatic Centre in London, operated by Gemini Parking Solutions in January last year, alleging my vehicle was not parked wholly within a marked bay. I was parked adjacent to the last white line marked, and there was no marking on the road to indicate that I was not in a bay. I was sticking out at a slightly jaunty lateral angle, but not overlapping any lines on the road nor causing any obstruction. I had paid my usual parking charge at the ticket machine.

I received Gemini's reminder notice a month later, mentioning the 28 day term for response, and ignored that and subsequent requests for payment from Gemini, Zenith and Gladstones.

I've acknowledged service and am now preparing my defence.
Please could you have a look at this to check I'm on the right lines?

Statement of Defence
Claim Number XXX
XXX
V
Gemini Parking Solutions
I am XXX defendant in this matter and deny liability for the entirety of the claim;
I am representing myself due to the cost of engaging a solicitor.
On XX January 2016 I received a Parking Charge Notice on the windscreen of my vehicle XXX – which was parked at the London Aquatics Centre carpark – stating “The vehicle was not parked wholly within a marked bay”.
My vehicle was parked in the position shown in the photograph below, taken at the time of receiving the notice. There were no signs suggesting that this was an inappropriate place to park, nor any yellow cross-hatching to indicate that this was not a bay the operators intended users to use.

My car was not overlapping or beyond any marked lines on the road. I had paid for my parking inside the Aquatics Centre as usual, as evidenced by my bank statement at the time (included below), in which the payment shows up on XX January 2016, the first working day following the Saturday of the incident described above.

I deny the claim for the following reasons:
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 has failed to evidence any contravention; any clear/prominent signage or road cross-hatching to indicate that my car was not parked wholly within a marked bay.
4. 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.
5. 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.

Coupon-mad

My vehicle was parked in the position shown in the photograph below,

At this stage it is not the time for evidence, photos etc.

You just need to cover all bases of defence and then prepare for the later DQ (N180 form) then Witness statement and your evidence before the hearing.

Post #2 of the NEWBIES thread shows example Gladstones defences (and for later, witness statements/evidence examples) as well as bargepole's summary of what forms to fill in and when and how.

You have a very short defence there at the moment so read other Gladstones ones which cover more bases, you will need more, partly because a full defence sometimes causes Gladstones to discontinue before the hearing, whereas a basic one will make them go for the jugular, thinking ' ordinary person/victim'.

I saw contradictions in your first draft, e.g. you can't say this:

I had paid for my parking inside the Aquatics Centre as usual,

followed by this:

I deny the claim for the following reasons:
1. The Claimant did not identify the driver

chambi01

Ok, thanks a lot Coupon-Mad - good points. I'll check the 2nd post of the Newbies thread as advised & flesh the defence out, and remove the evidence from this stage. Thanks for the advice

chambi01

Hello
I've bulked out my defence along the lines suggested in other Gladstone's defences.
Would greatly appreciate an eye across this before I submit:


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.

(3).
a) The Claimant has failed to evidence any contravention.
b) There is no road cross-hatching or clear signage to indicate the end of the marked bays.

(4).
Gemini Parking Solutions 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.

(5).
a) The Claimant has at no time provided an explanation how the sum has been calculated, nor how the amount has climbed from £100 to £150. This appears to be an added cost with 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.

(6).
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.

(7).
(a) The driver did not enter into any 'agreement on the charge', no consideration flowed between the
parties and no contract was established.

(b) 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.

(8).
(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) Notwithstanding the Defendant's belief, the costs are in any case not recoverable.
e) 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.
f) 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 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. The Defendant contends the signs at London Aquatics Centre carpark 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

You need to check that through for relevance. for example your PCN is for:

alleging my vehicle was not parked wholly within a marked bay. I was parked adjacent to the last white line marked, and there was no marking on the road to indicate that I was not in a bay. I was sticking out at a slightly jaunty lateral angle, but not overlapping any lines on the road nor causing any obstruction. I had paid my usual parking charge at the ticket machine.

Yet you've copied the whole wording from another one that talks about:

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.

Also you copied this but I doubt a PCN for being outside a bay was issued by ANPR camera?

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.

chambi01

Got it - thanks for the quick response & for spotting those two issues. Rewritten version to follow shortly. Thanks again

Lamilad

Have a read of JackBasta's thread. He had a decent Gladstones defence. Although his case was Pre PoFA so be careful about copying paragraphs.

It's a recent one so will be amongst the first few pages.

chambi01

ok, thanks for that - just tracked it down

chambi01

Quick follow up question. If I've not told Gemini Parking Solutions the driver's name, nor have I appealed to Popla, can I still use the defence below? From reading the Pofa guidelines, I don't think I can...

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.

chambi01

Also, is this line of defence still relevant in light of Pofa?

Gemini Parking Solutions 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.

chambi01

Hi again, having read more threads on Gladstones I've refined my defence to reflect the most relevant points. Would appreciate an eye across this before submitting:

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).
a) It is submitted that no contract to park existed between the Defendant and the Claimant, because the signage at the London Aquatics Centre carpark was insufficiently clear, judged by the standards laid out by the Supreme Court in ParkingEye Ltd v Beavis [2015].
b) The driver did not enter into any 'agreement on the charge', no consideration flowed between the
parties and no contract was established.
c) 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 as mentioned above.
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.
e) In particular there was a lack of clarity regarding what was to be considered a marked bay. The Defendant's car was parked next to a marked white line, in a position without any road cross-hatching or signage to indicate that this was not a marked bay, nor an invalid place to park.
f) Due to this lack of clarity, even if a contract is deemed to have existed between the Defendant and the Claimant, the terms and conditions of such a contract were not fair, and cannot be relied upon.
g) Even if a contract is deemed to have existed between the Defendant and the Claimant, it is submitted that the terms and conditions have not been broken, due to the above lack of clarity about marked and unmarked bays

(3).
a) The Claimant has submitted no evidence of the alleged violation relating to parking in an unmarked bay.
b) The Claimant has submitted no evidence of clear bay markings or road cross-hatching at the time of the incident.

(4).
a) The Claimant has at no time provided an explanation how the sum has been calculated, nor how the amount has climbed from £100 to £150. This appears to be an added cost with 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.

(5).
(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) Notwithstanding the Defendant's belief, the costs are in any case not recoverable.
e) 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.
f) 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.


(6). 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. The Defendant contends the signs at London Aquatics Centre carpark 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)