HX Car Park Management, Gladstones Letter Before Claim

Quentin

Use the third person as in "the driver parked all evening"

Coupon-mad

Birdo26 wrote: »

Received no further letter from Gladstones and now have County Court Claim Form.

Post #2 of the NEWBIES thread tells you how to handle this, start to finish. Show us your draft defence based on all the zillions of others you find, after you have done the AOS online to MCOL. We win over 99% (one loss I can recall, hundreds of wins over the past year and more).

Birdo26

Had a look through and managed to find a defence similar to what driver needs. Unsure where the driver should add the following point.

- The driver was using the premises at the time so the landowner cannot have suffered a loss of earnings.

Can driver also include that the ticketing had only very recently been installed and all other car parks are free. Sure it said somewhere not to include these?

Thanks for your help.



1. I am xx, the defendant in this matter. My address for service is xx.


2. This is my statement of truth and my defence.


3. As an unrepresented litigant-in-person I seek the Court's permission to amend and supplement this defence as may be required upon disclosure of the claimant's case.


4. For the avoidance of doubt on the relevant date I was the registered keeper of a xx, registered number xx. I can neither confirm nor deny who was driving on the dates given as it is some time since the events.


5. It is believed that it will be a matter of common ground that the purported debt arose as the result of the issue of parking charge notices in relation to an alleged breach of the terms and conditions by the driver of the above vehicle when it was parked at xxx.


Purported Basis of Claim


6. 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/2017 & xx/xx/2017.


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


Rebuttal of Claim


7. 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 which communicated any additional punitive parking charge (effectively a private ‘fine’) in large lettering, in a clear and concise way, in a par with the tariff signs where the fees were advertised in the largest font. By contrast, the ‘parking charge’ is positively buried in small print, contrary to Lord Denning’s ‘Red Hand Rule’ and contrary to the requirements of the Consumer Rights Act 2015.


d. That in addition to the parking charge there was an agreement to pay additional and unspecified additional sums, which are in any case unsupported by the Beavis case and unsupported for cases on the small claims track.


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.


8. It is further denied that the Defendant is liable for the purported debt, or that any debt is in fact owed, or that any debt exists or could ever or has ever existed.


My Defence


9. My defence will rely principally upon the following points


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


11. 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.


12. 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.


13. 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 fabricated figures 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:


14. 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.


15. 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/2017, XX/XX/2017 for breaching the


terms of parking on the land at xxx

xxx


The Defendant was driving the Vehicle and/or


is the Keeper of the Vehicle


AND THE CLAIMANT CLAIMS


£160 for Parking Charges / Damages and


indemnity costs if applicable, together with


interest of £1.72 pursuant to s69 of the


County Courts Act 1984 at 8% pa, continuing


to Judgement at £0.04 per day’





16. 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.


17. 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’.’


18. 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.


19. 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.


20. 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.


21. 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.


22. 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.


23. 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.

Coupon-mad

Bump, as no replies yet.

Lamilad

It looks like you've put a load of defences and witness statements into a blender then poured the mixture out above.

Unsure where the driver should add the following point.

- The driver was using the premises at the time so the landowner cannot have suffered a loss of earnings.

He shouldn't

Can driver also include that the ticketing had only very recently been installed and all other car parks are free.!

I'm sure it's in the IPC CoP somewhere that where a car park's terms have changed the PPC must make extra effort to bring the changes to the attention of motorists.

"1. I am xx, the defendant in this matter. [Strike]My address for service is xx.![/Strike]"

Remove paras 2 & 5

Re #4 I dislike this wording. If you were not the driver, deny it. Otherwise hold the claimant to strict proof who was driving. Are you satisfied their NTK is not PoFA compliant?

Remove everything under the "purported basis of claim header"

"10. The Defendant did not enter into any 'agreement [strike]on the charge'[/strike], no consideration flowed between the parties and no contract was established."

#11 - this could be construed to suggest that the defendant was the driver.

#15 - you do not need to repeat the particulars here.

..... I'm going to leave my analysis here, as I'm having to use my phone which is a hassle. I think you need to do more research. There are much better Gladstone's defences you can crib from.

Read the links in post#2 of the newbies thread where you'll find loads of good defences. They will show you 'what good looks like' in terms of content and layout.

nosferatu1001

It's pointless talking about the driver responding to a claim, then basing your claim on no keeper liability. Edit your posts.

Birdo26

Appreciate the replies. Had a look through and a read and found a slightly better, more appropriate one. Have removed a few bits and added a couple. Hope this is ok?

Preliminary Matters.


(1). The claimant failed to include a copy of their written contract as per Practice Direction
16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the
Claimants contractual authority to operate there as required by the Claimants Trade
Association's Code of Practice B1.1 which says

1.1 If you operate parking management activities on land which is not owned by you, you
must supply us with written authority from the land owner sufficient to establish you
as the ‘Creditor’ within the meaning of the Protection of Freedoms Act 2012 (where
applicable) and in any event to establish you as a person who is able to recover
parking charges. There is no prescribed form for such agreement and it need not
necessarily be as part of a contract but it must include the express ability for an
operator to recover parking charges on the landowner’s behalf or provide sufficient
right to occupy the land in question so that charges can be recovered by the operator
directly. This applies whether or not you intend to use the keeper liability provisions.

(2). The particulars of claim do not meet the requirements of Practice Direction 16 7.5 as
there is nothing which specifies how the terms were breached. Indeed the particulars
of claim are not clear and concise as is required by CPR 16.4 1(a). The Claimants are
known to be serial issuers of generic claims similar to this one. HM Courts Service
have identified over 1000 similar sparse claims. I believe the term for such behaviour
is roboclaims and as such is against the public interest.


Practice Direction 3A which references Civil Procedure Rule 3.4 illustrates this point:!


1.4 The following are examples of cases where the court may conclude that particulars of
claim (whether contained in a claim form or filed separately) fall within rule 3.4(2)(a):
1. those which set out no facts indicating what the claim is about, for example ‘Money
owed £5000’,
2. those which are incoherent and make no sense,
3. those which contain a coherent set of facts but those facts, even if true, do not
disclose any legally recognisable claim against the defendant

On the basis of the above, we request the court strike out the claim for want of a
cause of action.


Statement of Defence


I am xxx, defendant in this matter. It is admitted that the Defendant was the
authorised registered keeper of the vehicle in question at the time of the alleged
incident.
The Defendant denies liability for the entirety of the claim for the following reasons.


(1). The identity of the driver of the vehicle on the date in question has not been
ascertained.
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's increasingly demanding letters failed to evidence any contravention or
clear/prominent signage. Further, the Notice to Keeper (postal 'PCN') failed to give
the statutory warning to the registered keeper about the '28 day period' which is
mandatory wording as prescribed in paragraph 9(2)(f) of Schedule 4 of the Protection
of Freedoms Act 2012. Consequently, the Claimant is unable to rely on the 'keeper
liability' provisions of the POFA.


(2) 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.
1. The Claimant has disclosed no cause of action to give rise to any debt.
2. The Claimant has stated that a parking charge was incurred.
3. 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.

4. 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.

5. On the 20th September 2016 another relevant poorly pleaded private parking
charge claim by Gladstones was struck out by District Judge Cross of St
Albans County Court without a hearing due to their ‘roboclaim’ particulars being
incoherent, failing to comply with CPR. 16.4 and ‘providing no facts that could
give rise to any apparent claim in law.’
f) On the 27thJuly 2016 DJ Anson sitting at Preston County Court ruled that the very
similar parking charge particulars of claim were eficient and failing to meet CPR 16.4
and PD 16 paragraphs 7.3 – 7.6. He ordered the Claimant in that case to file new
particulars which they failed to do and so the court confirmed that the claim be
struck out.


(3) The Claimant has not complied with the pre-court protocol.
1. No Letter of Claim was sent to the Defendant and no initial information was sent to
the Defendant.
2. I'd refer the court to Para 4 on non-compliance and sanction, and I'd also point out
that there can be no reasonable excuse for the Claimant's failure to follow the Pre-
action Conduct process, especially bearing in mind that the Claim was issued by their
own Solicitors so they clearly had legal advice before issuing proceedings.

(4) The defendant wrote to the claimant on 11th July 2017 asking for:
a) Full particulars of the parking charges
b) The basis for the £50 increase in the charge.
c) If the charges were based on damages for breach of contract and if so to provide
justification of this sum


The claimant has not responded.

(5) Withholding any relevant photos of the car, and the signage terms, despite being asked for by the Defendant at the outset, is against the SRA code as well as contrary to the ‘overiding objective’ in the pre action protocol.
As Gladstones are a firm of solicitors whose Directors also run the IPC Trade Body
and deal with private parking issues every single day of the week there can be no
excuse for these omissions.

The Defendant asks that the court orders Further and Better Particulars of Claim and
asks leave to amend the Defence.


(6). HX Car Park Management 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 action regarding this claim.
1. 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.
2. The claimant is not the landowner and suffers no loss whatsoever as a result of a
vehicle parking at the location in question
3. 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

(7)
1. 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 £161.72. This appears to be an added cost with apparently no qualification and an
attempt at double recovery, which the POFA Schedule 4 specifically disallows.
2. 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.

(8) The signage was inadequate to form a contract with the motorist
1. The signage on this site is inadequate to form a contract. It is barely legible, making it
difficult to read.
2. 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.
3. The sign does not contain an obligation as to how to ‘validly display’ the ticket in the
windscreen, therfore there was no breach of any ‘relevant obligation’ or ‘relevant
contract’ as required under Schedule 4 of POFA.
4. 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.
5. As this was a recent change the IPC code of practices states that additional signage should be placed to make sure motorist do not inadvertently incur parking charges. No additional signage was added.

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

(11)
1. 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
£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.
2. The Defendant also disputes that the Claimant has incurred £50 solicitor costs.
3. The Defendant has the reasonable belief that the Claimant has not incurred £50 costs
to pursue an alleged £100 debt.
4. Not withstanding the Defendant's belief, the costs are in any case not recoverable.
5. 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.

(12). 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. Whilst the Claimant withheld any
photos of the signs on site, the Defendant contends these 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'.



I believe the facts stated in this defence are true.

Coupon-mad

Bumping again for the morning...

Lamilad

Which parking company has issued the claim, and who (if anyone,) are their legal representatives?

Between the two defences you have posted you've said it's SIP in one and HX in the other. You've also said that Gladstone's are involved then said the claimant are using their in house legal team.

What 'contravention' are you accused of e.g failure to pay and display?

Are you certain the NTK is not PoFA compliant - have you researched this. Could you post a pic of it here via a Dropbox link, photobucket or tinypic?

It's hard to advise on the available information as some of your points are contradictory and it appears that you've copied and pasted statements from other defences without checking if they're relevant to your case.

We can give you better advice and help tailor your defence if you can supply more information - circumstances which led to to PCN being issued, approx date of 'contravention', any previous comms between you and PPC, involvement of debt collectors, did you receive a letter before claim... And anything else that helps us understand this case better

Over to you....

Birdo26

Its hx car park.

It's one where you have to enter your reg inside on a computer. So failure to enter the reg and pay? Was towards end or April.

Parking system was only installed 3 weeks prior to ticket. Originally didn't respond. Then responded to LBC asking for various things.

I can post a pic shortly. And more detail