SIP/Gladstones draft Defence - seeking feedback

Lamilad

Outstanding, well done! Looking forward to that report and what the judge said when dismissing the claim

Umkomaas

There you go. Great result against an increasingly litigious PPC. Look forward to reading all the [STRIKE]dirt[/STRIKE] detail. :T

billy87

great news.

ParkerManc

Any update on how the day went Kelly? I'm using your defense as my template and I'm glad to see it worked for you!

caraspider

Dear Forum advisors,


I received a court claim form on 8 nov for offence occurred in jun 2017 the private parking company issued 3 offences within 4 consecutive days as it claimed I parked in a private parking during those days.


The Court Claim form only has my name and current address and the incident dates but no registration no mentioned. I thought it was a scam in the beginning as not received any notice or letter prior the court claim form.
The alleged claim was for 3 x £100 PCN and legal and interest and court fee total £659.32.
as the form has a moneyclaim.gov.uk in there so it is a legal paper so I responded a counterclaimed immediately stating this was the first I have heard of the incidents and on top of that my car registration no wasn't mentioned in the court form, I did think this was not my car.


As soon as I paid the court counterclaim process payment, the claimant solicitor Gladstone replied with a Directions of Questionnaire stating small claim track and no mediation or court required.


I am due to send back the Directions Questionnaire by 3 Dec 2018, yes very last min as I was struggling and asked people I know they all said too late and just paid. I do not think it's fair and not even given any evidence of my fault and pay for an outrageous amount of £659.32.


My situation was I moved from London without updating DVLA my address as road tax is direct debit and I have never got any PCN stuck to my windscreen so not aware of any fault at all.


The place I parked was at the back of a Chinese restaurant where I went with a friend who took me there and she knows the restaurant people and we went in from the back. The restaurant people told us we could park for a little while so we thought it's for staff and guest parking without thinking of the car park management sign. As my car is red and parked on the side of the Chinese restaurant it is easily identified.


I have not been back to the restaurant for over a year as I work full time in London. Since I got the court form I telephoned my friend who took me to the restaurant to see if she got PCN as well. She said no but when she went there this year February, her restaurant friend told her that she cannot park there any more. Obviously the landowner has informed the restaurant not to let their customer park in their land. However my incident took place in 2017 and they stopped letting customers park in 2018


As my car was parked on the back of the restaurant side I was made to believe the restaurant people were allocated with that side of parking spaces for their staff and customers. We were told we could park for a little while by the restaurant staff, we would not challenge their words and asked them to provide proof we could park there.


I have tried to contact Gladstones but no reply only payment phone line and email no response.
I called and talked to UKCPM and the girl who is customer service adviser would not put me through to anyone senior than herself. I then emailed to ask for evidence of claim as I haven't received anything prior to that.


The girl from Glastone said you did not update your address with DVLA is a £1000 fine. I meant to update many times but I moved home 3 times in the last 5 years and the V5C was misplaced somewhere and never got to change. Also all tax direct debit I never thought this was an issued. In fact I got speeding ticket and the police had to write to me to change my driver licence to current address so they could prosecute me.


I have just found your site so I am not sure how I should put all information in the Directions of Questionnaire as I do not want to go to court as I work full time and difficult to get time off.
I would like mediation but form said if both parties agreed on mediation. I am the only party want a mediation. Not sure how to proceed and all these called Court claim form has caused me immensely stressed.


Appreciate if you could advice how to deal with it. I did go to citizen advice bureau but was told they they are not legally trained so can't give advice and referred me to local solicitors. I do not want to go through solicitors to further complicate the case. How should I proceed?

Desperately need help!

Thank you Cara

kelly4509 wrote: »

I am XXX, Defendant in this matter and I assert that the Claimant has no cause for action 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. It is believed that it will be a matter of common ground that claim relates to a purported debt as the result of the issue of a Parking Charge Notice (PCN) in relation to an alleged breach of the terms and conditions by the driver of the vehicle XXXX XXX when it was parked at Spaw Street Arches, Salford, Manchester. The PCN stated the contravention as “No ticket displayed.”

3. Further based upon the scant and deficient details contained in the Particulars of Claim and correspondence, it appears to be the Claimant's case that:
a. There was a contract formed by the Defendant and the Claimant on XX/XX/2016.
b. There was an agreement to pay a sum or 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 International Parking Community Code of Practice of which they were member at the time.

4. 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 International Parking Community Code of Practice of which they were member at the time.

5. It is further denied that the Defendant is liable for the purported debt.

Rebuttal of Claim
6. The Defendant made all reasonable efforts to make payment for parking by using an approved payment channel.
a. Payment for parking was made via telephone using a cashless system provided by PayByPhone.
b. This is a distance contract which requires certain information to be supplied in advance.
c. The service makes no provision for the printing of a ticket to display.
d. The Defendant followed the PayByPhone instructions exactly as shown on the signage at the payment machine.
d. This was not a fully automated contract. On telephoning the payment provider and following the initial touch tone service, the Defendant was referred to and conversed with an employee of PayByPhone to register a new account/vehicle details with the PayByPhone service. After which they were transferred back to the automated touch-tone service to complete payment details.
e. The payment channel did not indicate any failure to make payment and responded as if payment had been made. As such the Defendant believed the necessary payment had been made.
f. The failure of the payment service to accept payment is not the Defendants responsibility. It is not reasonable in these circumstances for the driver to assume any more obligations for making the payment.
In Jolley v Carmel Ltd [2000] 2 –EGLR -154, it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach when unable to fully comply with the terms.

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

8. The Defendant denies that they 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.
a. The amount demanded is excessive and unconscionable and especially so when compared to the level of Penalty Charge Notice issued by the local Council which is set at £50 or £25 if paid within 14 days.

9. The signage on this site was inadequate to form a contract with the motorist.
a. The signage on and around the site in question was unclear and not prominent and did not meet the British Parking Association (BPA) Code of Practice or the International Parking Community (IPC) Code of Practice. The Claimant was a member of the IPC at the time and committed to follow its requirements. Therefore no contract has been formed with driver to pay the amount demanded by the Claimant, or any additional fee charged if unpaid in 28 days.
b. The size of font of the prices advised for parking is much larger than the font of the contract and the offer is not sufficiently brought to the attention of the motorist, nor are the onerous terms (the £100 parking charge) sufficiently prominent to satisfy Lord Dennings "red hand rule”.
c. 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. The PayByPhone signage specifically states that there is “No need to display a ticket in your car” therefore there was no breach of any ‘relevant obligation’ or ‘relevant contract’ as required under Schedule 4 of POFA.
f. If the Claimant wanted to impose a condition to continuously display permits, then they should have drafted clear instruction to that effect, requiring specific terms of how to 'continuously display' when a paper ticket has not been issued or there is no contravention.
g. Where contract terms have different meanings, as in this instance when a paper ticket was not issued due to the chosen method of payment, then Section 69 of the CRA 2015 provides a statutory form of the contra proferentem rule, such that the consumer must be given the benefit of the doubt.
The term is fundamental to the contract, and the Defendant invites the Court to find that it is not transparent and therefore unfair. If a fundamental term to the contract is deemed to be unfair, then the contract will cease to bind the parties. The Defence invites the Court to take these issues into account in determining the fairness of the term.

10. The Claimant’s representatives, Gladstones, have artificially inflated the value of the Claim from £xx to £xx. The Defendant submits the added costs have not actually been incurred by the Claimant; that these are figures plucked out of thin air and applied regardless of facts.
a. If the “parking charge” listed in the particulars of claim is to be considered a written agreement between Defendant and Claimant then under 7.3, the particulars fail to include “a copy of the contract or documents constituting the agreement”.
b. 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 £xx to £xx. 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.

Non-disclosure of reasonable grounds or particulars for bringing a claim:
11. SIP Parking Ltd are not the lawful occupier of the land. The Defendant has 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.
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
d. The Particulars of Claim are deficient in establishing whether the claim is brought in trespass. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landowner can pursue a case under the tort of trespass not this Claimant, and as the Supreme Court in the Beavis vs ParkingEye (2015) [2015] UKSC 67 case confirmed, such a matter would be limited to the landowner themselves claiming for a nominal sum.

12. The Particulars of Claim fail to fulfil CPR Part 16.4 because it does not include a statement of the facts on which the claimant relies, only referring to a Parking Charge Notice with no further description; it fails to establish a cause of action which would enable the Defendant to prepare a specific defence:
‘The driver of the vehicle registration
XXXX XXX incurred the parking
charge(s) on XX/XX/2016 for breaching the
terms of parking on the land at Spaw Street
Arches.
The Defendant was driving the Vehicle and/or
is the Keeper of the Vehicle
AND THE CLAIMANT CLAIMS
£160.00 for Parking Charges / Damages and
indemnity costs if applicable, together with
interest of £6.81 pursuantto s69 of the
County Courts Act 1984 at 8% pa, continuing
to Judgement at £0.04 per day’

13. 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.

14. The Defendant invites the court to strike out or dismiss the claim under Rule 3.4(2)(a) of PRACTICE DIRECTION 3A as having not set out a concise statement of the nature of the claim or disclosed reasonable grounds or particulars for bringing a claim (Part 16.4(1)(a) and PRACTICE DIRECTION 16 paragraphs 3.1-3.8). In C3GF84Y (Mason, Plymouth County Court), the judge struck out the claim brought by KBT Cornwall Ltd as Gladstones Solicitors had not submitted proper Particulars of Claim, and similar reasons were cited by District Judge Cross of St Albans County Court on 20/09/16 where another relevant poorly pleaded private parking charge claim by Gladstones was struck out without a hearing due to their ‘roboclaim’ particulars being incoherent, failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''. The Practice Direction also sets out the following example which is analogous to this claim: ‘those which set out no facts indicating what the claim is about, for example ‘Money owed £5000’.’

15. The Defendant researched the matter online, and discovered that the Claimant is a member of the Independent Parking Committee (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.

16. 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 one thousand 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.

17. 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.

18. 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.

19. 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.

20. 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.

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

Umkomaas

Sorry, but you won't get any help by randomly jumping in on someone else's thread, one that is now over 12 months old.

Please read the NEWBIES FAQ sticky, post #2 (which covers court proceedings and cases), then start a new thread of your own (copy and paste what you've typed above) and you will get some help - but it's very late in the day, so how much you will get will depend on the availability of those (very small number of volunteers) who help with court cases.

And from here on - stop phoning UKCPM or Gladstones, there is no paper record you can show a Judge detailing the contents of a phone call.

Coupon-mad

The alleged claim was for 3 x £100 PCN and legal and interest and court fee total £659.32.
as the form has a moneyclaim.gov.uk in there so it is a legal paper so I responded a counterclaimed immediately stating this was the first I have heard of the incidents and on top of that my car registration no wasn't mentioned in the court form, I did think this was not my car.

As soon as I paid the court counterclaim process payment, the claimant solicitor Gladstone replied with a Directions of Questionnaire stating small claim track and no mediation or court required.

Sounds like you wasted money on what might have been a badly-pleaded counter claim, but you can defend this at a hearing even if your defence was weak.

Hopefully we can help you rescue this at WS and evidence stage.

You need to read the 2nd post of the NEWBIES THREAD and then (and only then, PLEASE PLEASE read the sticky thread first!) start your own new thread.

caraspider

Thank you for your reply. Sorry I didn't mean to jump into someone's thread but my screen only shows reply thread or search but nothing to create your own thread.


I'll go back to try to find a way from the newbie thread, I called UKCPM again this morning and called the court I really need some information to defend.


Thank you. cara

nosferatu1001

You need to be on the main page of the forum, and use a laptop or PC - not a phone.

George_Gray

Hi there Kelly
I am awaiting a court date as I appealed the PCN and my case is similar to yours paid for the parking by phone but entered the wrong registration.
got the evidence from phone call and the evidence from there data base which coincides with my phone.
the only thing is the time stamp on the PCN is 1 hour wrong so this doesn't look as if the system is synchronised correctly.
any chance you could send a copy of your defence to me please my case is against civil enfocement
e mail is grayg90'yahoo.com
cheers