PCM UK (Great West Quarter, Brentford)

safarmuk

EDIT - Live Link removed.

Redvers Builder, please remove that link above and re-upload a redacted image (blank out your name, address, reference number etc. - basically anything that can identify you and this particular claim)

Redvers_Buller

Thanks safarmuk - so glad somebody is looking out for me (not doing myself any favours....)!!

Redacted image now uploaded.

[IMG]hxxp://i64.tinypic.com/2qbrhh2.jpg[/IMG]

safarmuk

No worries!
Here you go:
http://i64.tinypic.com/2qbrhh2.jpg

Redvers_Buller

Good afternoon everyone.
I've received the Claim Form from Northampton County Court (Issue date 11th May, acknowledged via MCOS on 14th May) as instigated by Gladstones on behalf of Parking Control Management UK and have prepared my draft Statement of Defence (below).

Original document has been written using Times New Roman, font size 12, 1.5 spacing and is in pdf format ready for submitting via MCOS.

Any comments/feedback appreciated.

PS Have since been back to the site to take more photos and discovered that concrete blocks have been placed so as to prevent cars being parked where I did (replacing the steel posts that were removed previously)!!



Statement of Defence

Claim Number XXXXXXX
XXXXXXX
Vs
Parking Control Management UK Ltd



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

2) Rebuttal of Claim
It is denied that:
a. A contract was formed
b. There was an agreement to pay a parking charge.
c. That there were Terms and Conditions prominently displayed around the site.
d. That in addition to the Parking charge there was an agreement to pay additional and unspecified additional sums.
e. The claimant company fully complied with their obligations within the terms of Schedule 4 of the Protection of Freedoms Act 2012.
f. The claimant company fully complied with their obligations within the International Parking Community (IPC) Code of Practice of which they are a member.
g. That I am liable for the purported debt.

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 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.

6) 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. Further it is trite law that a term that is forbidding cannot also constitute an offer. Should the claimant rely upon the case of Parking Eye 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.

7) There has been a breach of the IPC Code of Practise relating to entrapment: it will be shown that the means to prevent the “parking violation” existed both before and after the alleged contravention. It will also be demonstrated that the opportunity to instruct the driver of the parking “restrictions” in place was available and that the it is in doubt as to whether a reasonable “grace period” was allowed.

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 drivers identity.


9) The claimed value of £164-98 (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 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 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).

10) 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.
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.
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.

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.

Summary
12) 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.

13) 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.

Signed ______________________
Dated

Coupon-mad

I know it was written by someone else ages ago but I dislike this sentence in isolation as it almost looks like you are saying you are liable (at first glance):

g. That I am liable for the purported debt.

So I would move that up and say in your summary (which needs a line space between each point, for clarity):

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. I believe that after dark, no signs were lit and 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. No suitable grace period was allowed and the charge is disproportionate and has no complex legitimate interest allowing recovery of any more than damages (in this instance none), using the test established in ParkingEye v Beavis.

h. 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.

Redvers_Buller

Thanks for the feed-back Coupon-mad: hope I interpreted your comments correctly.....


Statement of Defence

Claim Number XXXXXXX
XXXXXXX
Vs
Parking Control Management UK Ltd


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

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. I believe that after dark, no signs were lit and 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) No suitable grace period was allowed and the charge is disproportionate and has no complex legitimate interest allowing recovery of any more than damages (in this instance none), using the test established in ParkingEye v Beavis.

h) 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 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.

6) 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. Further it is trite law that a term that is forbidding cannot also constitute an offer. 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.

7) There has been a breach of the IPC Code of Practise relating to entrapment: it will be shown that the means to prevent the “parking violation” existed both before and after the alleged contravention. It will also be demonstrated that the opportunity to instruct the driver of the parking “restrictions” in place was available and that the it is in doubt as to whether a reasonable “grace period” was allowed.

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 drivers identity.

9) The claimed value of £164-98 (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 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 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 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.
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).

10) 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.
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.
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.

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.

Summary
12) 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.

13) 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.

Signed ______________________
Dated

System

Alternative link http://i65.tinypic.com/2vx0e9h.jpg

Note they can only take legal action if they have met the BPA/AOS Code and not the IPC one.

Coupon-mad

That is useful evidence for later on, IamEmanresu, nice one!

Redvers_Buller

Thanks for the posts guys!! Very useful information indeed IamEmanresu.... :T

A few questions though......

1) Now that I have this copy of the contract I would assume that Paragraph 11 of my Statement is no longer valid as it shows permission has been given by the Managing Agent for claims to be made?

2) Should I make an alternate statement to the effect that PCM UK are in breach of their contract with the Managing Agent because they are not members of the BPA/AOS (I have checked.....) and therefore have no legal right to enforce parking regulations?
I also note that the contract itself is in breach of the AOS Code of Practise as it does not state who is responsible for putting up & maintaining signs.... (Para 7.3.d)

3) Could PCM UK counter-argue that they abide by the IPC Code of Practise?

4) Should I review/compare the two Code of Practise's for differences to confirm that conforming to the IPC version does not automatically imply conformation to the AOS one? Not being able to access POPLA is possibly the most obvious difference....

So aside from making the changes suggested above is my Statement ready for submission....

Coupon-mad

1) Now that I have this copy of the contract I would assume that Paragraph 11 of my Statement is no longer valid as it shows permission has been given by the Managing Agent for claims to be made?

No because they are not the landowner, are not in possession of the private land and are mere agents themselves, like the parking firm.

You can say that no chain of authority has been shown to prove that this operator has the authority from the landowner, and that you believe they only have (at best) a very limited contract with the Managing Agent, which is a basic, possibly income-sharing commercial agreement which does not provide for any action outwith the BPA Code of Practice.

This limited arrangement fails to justify the 'charge' in the persuasive way that ParkingEye Ltd were able to show the Supreme Court, that they had an rare 'legitimate interest' in pursuing a sum far higher than damages, in the Beavis case. In that case it was held that other (less complex) private parking charge cases were likely to continue to engage the penalty rule and a disproportionate and unjustified high charge, would still be unrecoverable. It was held in effect, that what was required in every case, would be prominent signs creating a clear/agreed contract, and a level of commercial justification which did not disregard any rights or interests enjoyed by a driver, under any other rule or statute.

2) Should I make an alternate statement to the effect that PCM UK are in breach of their contract with the Managing Agent because they are not members of the BPA/AOS (I have checked.....) and therefore have no legal right to enforce parking regulations?

Yes, why not?

3) Could PCM UK counter-argue that they abide by the IPC Code of Practise?

Yes, they will. But your point is still valid to argue.

4) Should I review/compare the two Code of Practise's for differences to confirm that conforming to the IPC version does not automatically imply conformation to the AOS one? Not being able to access POPLA is possibly the most obvious difference....

Yes, I would do that. And the grace periods provision is set out in more detail by the BPA.