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Draft defence - please read!
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Ben_Richards
Posts: 17 Forumite
Hi guys, here is the first stab at my gladstones WY parking enforcement defence. I cant seem to quote my original thread ( seems kind of tough on a mobile!).
As usual, comments, praise, put downs, suggestions feedback, criticism etc all greatly appreciated! Thanks in advance everybody for your help and advice -
I am xxxxxxxxxx, Defendant in this matter. It is admitted that the Defendant was the authorized registered keeper of the vehicle in question at the time of the alleged incident.
The Defendant denies any debt in its entirety and asserts that the Claimant has no cause for action. The Defendants reasons for such are as follows -
1 - PARTICULARS OF CLAIM
A. The particulars of claim submitted by the Claimant are in direct breach of the CPR 16.4 (1a) which states that the Claimant must submit “a concise statement of the facts on which the claimant relies”. No such statement was submitted by the Claimant or received by the Defendant.
B. The particulars of claim submitted by the Claimant are in direct breach of the Practice Direction 16 (7) as there is no indication within the particulars as to what type of agreement the claim is based on (nor the relevant supporting documents which confirm this). For example, is the claim based on a supposed breach of an oral agreement? Is the claim brought as a result of a supposed allegation of trespass? The particulars merely state “breaching the terms of parking on the land”. What are the aforementioned terms exactly? The Defendant is at a loss to answer this question, as no details that evidence the formation of any kind of contract or agreement have been provided. This suggests to the Defendant that the Claimant has no clear or coherent ground for any lawful claim.
C. The particulars of claim submitted by the Claimant are in direct breach of the CPR 16.4 2 (b) (ii). The Claimant appears to be seeking interest, yet has not included in the particulars of claim the date from which this interest is claimed (as per the above practice direction).
D. CPR 16.2 (2) states “If the particulars of claim specified in rule 16.4 are not contained in, or are not served with the claim form, the claimant must state on the claim form that the particulars of claim will follow”. However, the claim form contained no such statement from the Claimant. This confirms that the Defendant will have wholly insufficient information on which to compile a full, concise and specific defense as the Claimants intention is that the true particulars of claim were never to be provided.
E. It appears to be the Claimants case that there was a contract formed by the Defendant and the Claimant on 23/12/2015 (which the Defendant denies), yet, if this is the case, no details of such contract appear to exist as they have not been provided within the particulars of claim. This, once again, puts the Claimant in direct breach of the Practice Direction 16 (7).
F. (i) further to the lack of explanation as to the supposed conduct which gave rise to this claim, the Claimant has provided no details, explanation or clarification as to how the sum stated on the claim form (£xxxxx + £50 legal representatives costs) has been calculated, or as to how that figure was reached. The Defendant disputes these costs and has received no details as to how the initial parking charge (which the defendant denies in its entirety) has been inflated to such an exaggerated amount. The Defendant also has reasonable belief that any added legal fees are completely fanciful, being numbers simply dreamt up on a whim by the Claimant and their solicitors. This appears to be an attempt at double recovery by the Claimant, which is in breach of the Protection of Freedoms Act schedule 4.
(ii) The Defendant strongly disputes that the Claimant has incurred £50 “legal representative’s costs” to pursue an (alleged) £90 debt. Indeed, it is also hard to believe that the general ineptitude and lack of assiduity / rigour demonstrated by the Claimants solicitor when (barely) completing the particulars of claim in this case would give rise to any form of financial reward whatsoever.
(iii) It is believed by the Defendant that the minimalistic amount of information conveyed from the Claimant to the Money Claims Online system was simply and swiftly ‘copied and pasted’ and the rest of this case was dealt with in an automated fashion. This (along with the above points) suggests there to be no real additional costs and the POFA Schedule 4 (4)(5) specifically states that any claims may not exceed those in the original parking notice.
G. As the claim was issued and signed by a legal professional (who is no doubt au fait and conversant in the matter of pre court protocol), the Defendant fails to see that there is any apparent reason for the omission of the required information (highlighted in the points a-f above) from the particulars of claim.
H. (i) The sparse and minimalistic details contained within the particulars of claim suggest that this claim has been brought without the examination or scrutiny of any evidence (which, in the interests of a fair exchange of information, was very reasonably provided to the Claimant by the Defendant but not vice-versa). It is the Defendants belief that, had the Claimants solicitors reviewed the documents supplied to them (by the Defendant) and applied due diligence, then no claim would have been brought - it would be unreservedly apparent that a cause of action would not have been evident.
(ii) The Claimants 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. As a result, it is believed that the solicitors conduct in many of these cases has come under scrutiny and is presently the subject of an active investigation by the Solicitors Regulation Authority.
(iii) The term for the above conduct is believed to be “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 the significant detriment of the unrepresented Defendant.
(iv) The Defendant respectfully suggests that parking companies using the small claims track as a form of intimidation / aggressive, automated debt collection is not something the Courts should be seen to support.
I. 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. Similar reasons were cited by DJ 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 as a result of 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”. On the 27/07/16 DJ Anson (sitting at Preston County Court) ruled that very similar parking charge particulars of claim were inefficient and failing to meet CPR 16.4 and Practice Direction 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.
J. In Practice direction 3A 1.4 (1) the following example (which is very similar in nature to this claim) is given as reason for the Court to strike out a case – “those which set out no facts indicating what the claim is about, for example ‘Money owed £5000’”
*The Defendant invites the Court to strike out this claim as it is in direct breach of pre court protocol (in relation to the particulars of claim under Practice Direction 16, set out by the Ministry of Justice) as thoroughly evidenced in the points above.
2 – FURTHER EVIDENCE
A. The signage at the site is thoroughly inadequate to form a contract with the motorist. It is of an extremely poor quality, is poorly positioned and is in a general state of disrepair (being heavily vandalized). The British Parking Association (an organization of which the Claimant is an “approved operator” and thus required to adhere to its legislation) sets out the following rules in its Code of Practice (version 6, October 2015) –
(i) Point 18.2 states that - “Entrance signs must tell drivers that the car park is managed”. Further to this, Appendix B of the BPA Code of Practice highlights that the term “Managed by” (followed by the parking company name) is an essential requirement of the entrance signs. However, no such information is present at all. There is no indication on the entrance signs that the car park is managed, of who the managers are, or evidence within the signage that the site is indeed managed at all (be it by the Claimant or another party) as no parking company name is evident.
(ii) Point 18.2 also states that entrance signs “must always mention that terms and conditions apply and say where drivers can find more details”. This information is not present at all.
(iii) Appendix B also highlights that the following terms should be present and used on entrance signs – “Charges apply”, “Private land” and “Terms and conditions apply – see notices in the car park for details”. Once again, none of these terms are present.
(iv) Point 18.4 states that signs must “specify the sum payable for unauthorised parking”. The entrance signs do specify an amount, yet this is far lower and differs from the amount that it was claimed was owed in the initial ‘Notice to Driver”.
(v) Other signage at the site (which is equally vague, poorly worded, sparse, lacking detail, poorly positioned and also void of the information above) does display the name and logo of a parking management company, however, it is not that of the Claimant. The signs display the moniker “LCP – Local Car Parks”. Following diligent and thorough research, the Defendant can find no information whatsoever to suggest that the Claimant is any way linked to the aforementioned parking management company (or that the parking company “LCP” even exists). This leads the Defendant to ask the question of why the Claimant is at all involved in this matter. It would appear that, if any kind contractual obligation did exist (which is denied in its entirety) it would be with “Local Car Parks” and not the Claimant. The law is clear that debts cannot be enforced by a third party.
(vi) Point 18.8 states that - “You should display the BPA’s AOS logos at all sites. This will help the public to see that you are a legitimate operator, and show that the site is run properly.” However, these are also not present on the signage.
(vii) As a result of the points above, the Defendant researched the Claimant online in an attempt to establish the legitimacy of their business. It was discovered that (following a review of an article published in the Telegraph and Argus on 27/01/14 titled “Parking Firm Under Investigation”) the Claimant has been the subject of an investigation by members of Bradford Metropolitan District Council. In the article, a council representative is quoted as saying “We have previously complained about WYPE using illegal signage in the city centre, and will contact the BPA about this area”.
B. As evidenced by the above points, signage at the site is totally inadequate, being vague, confusing and carrying very little of the requisite information that would be required in order for the Claimant to insinuate that any kind of contract or contractual obligation has or can be formed.
C. (i) It is the Defendants belief that WY Parking Enforcement are not the lawful occupier or owner of the land in question (Fulton Street Car Park) and no details or contracts to prove otherwise have (at any stage) been provided to the Defendant which highlight who the lawful Landowner is.
(ii)The Defendant has reasonable belief that the Claimant has no authority to issue charges on this land in their own name and as a result have no rights to bring action against the Defendant.
(iii)The Claimant is not the landowner, merely a third party agent (apparently) acting on behalf of the landowner, and has failed on every possible occasion to demonstrate their legal standing to form a contract with the Defendant. As a third party agent the Claimant may not pursue any charge.
(iv)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 any action on its own behalf.
D. (i)The identity of the driver of the vehicle on the date in question has not been ascertained and no evidence has at any stage been supplied by the 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.
(ii)The Claimant may rely on the POFA in order to chase the Defendant (as the registered keeper) for the alleged debt, however, in order to do this the ‘Notice to Keeper’ document must comply with the strict rules of the POFA Schedule 4. These rules state that the maximum amount that can be sought from the keeper is the same as that detailed in the initial ‘Notice to Driver’. However, the NTK that the Defendant received from the Claimant had greatly inflated the initial sum from £90 to £120 with no explanation as to why or how that figure had come about, how it had been calculated or why the additional monies were being sought. This puts the Notice to Keeper in direct breach of the terms of the POFA and as a result the Claimant cannot seek any charge from the Defendant (as the registered keeper).
(iii)The Notice to Keeper is also in direct breach of the British Parking Association Code of Practice (point 19.5) which states that the maximum amount that can be sought by parking companies is £100.
E. The British Parking Association Code of Practice (13.4) states that –
“You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes”.
It may be inferred by the Claimant that the Defendant had entered into some kind of agreement or contractual obligation with the Claimant (which the Claimant denies). However, should this be the case, then it would be the Claimants duty to fulfil their contractual obligations highlighted above. This however was not the case as the Defendant received the initial parking charge after a mere 4 minutes 52 seconds.
Statement of truth: I confirm that the contents of this statement are true to the best of my knowledge and belief.
Name:
Date:
Signature:
As usual, comments, praise, put downs, suggestions feedback, criticism etc all greatly appreciated! Thanks in advance everybody for your help and advice -
I am xxxxxxxxxx, Defendant in this matter. It is admitted that the Defendant was the authorized registered keeper of the vehicle in question at the time of the alleged incident.
The Defendant denies any debt in its entirety and asserts that the Claimant has no cause for action. The Defendants reasons for such are as follows -
1 - PARTICULARS OF CLAIM
A. The particulars of claim submitted by the Claimant are in direct breach of the CPR 16.4 (1a) which states that the Claimant must submit “a concise statement of the facts on which the claimant relies”. No such statement was submitted by the Claimant or received by the Defendant.
B. The particulars of claim submitted by the Claimant are in direct breach of the Practice Direction 16 (7) as there is no indication within the particulars as to what type of agreement the claim is based on (nor the relevant supporting documents which confirm this). For example, is the claim based on a supposed breach of an oral agreement? Is the claim brought as a result of a supposed allegation of trespass? The particulars merely state “breaching the terms of parking on the land”. What are the aforementioned terms exactly? The Defendant is at a loss to answer this question, as no details that evidence the formation of any kind of contract or agreement have been provided. This suggests to the Defendant that the Claimant has no clear or coherent ground for any lawful claim.
C. The particulars of claim submitted by the Claimant are in direct breach of the CPR 16.4 2 (b) (ii). The Claimant appears to be seeking interest, yet has not included in the particulars of claim the date from which this interest is claimed (as per the above practice direction).
D. CPR 16.2 (2) states “If the particulars of claim specified in rule 16.4 are not contained in, or are not served with the claim form, the claimant must state on the claim form that the particulars of claim will follow”. However, the claim form contained no such statement from the Claimant. This confirms that the Defendant will have wholly insufficient information on which to compile a full, concise and specific defense as the Claimants intention is that the true particulars of claim were never to be provided.
E. It appears to be the Claimants case that there was a contract formed by the Defendant and the Claimant on 23/12/2015 (which the Defendant denies), yet, if this is the case, no details of such contract appear to exist as they have not been provided within the particulars of claim. This, once again, puts the Claimant in direct breach of the Practice Direction 16 (7).
F. (i) further to the lack of explanation as to the supposed conduct which gave rise to this claim, the Claimant has provided no details, explanation or clarification as to how the sum stated on the claim form (£xxxxx + £50 legal representatives costs) has been calculated, or as to how that figure was reached. The Defendant disputes these costs and has received no details as to how the initial parking charge (which the defendant denies in its entirety) has been inflated to such an exaggerated amount. The Defendant also has reasonable belief that any added legal fees are completely fanciful, being numbers simply dreamt up on a whim by the Claimant and their solicitors. This appears to be an attempt at double recovery by the Claimant, which is in breach of the Protection of Freedoms Act schedule 4.
(ii) The Defendant strongly disputes that the Claimant has incurred £50 “legal representative’s costs” to pursue an (alleged) £90 debt. Indeed, it is also hard to believe that the general ineptitude and lack of assiduity / rigour demonstrated by the Claimants solicitor when (barely) completing the particulars of claim in this case would give rise to any form of financial reward whatsoever.
(iii) It is believed by the Defendant that the minimalistic amount of information conveyed from the Claimant to the Money Claims Online system was simply and swiftly ‘copied and pasted’ and the rest of this case was dealt with in an automated fashion. This (along with the above points) suggests there to be no real additional costs and the POFA Schedule 4 (4)(5) specifically states that any claims may not exceed those in the original parking notice.
G. As the claim was issued and signed by a legal professional (who is no doubt au fait and conversant in the matter of pre court protocol), the Defendant fails to see that there is any apparent reason for the omission of the required information (highlighted in the points a-f above) from the particulars of claim.
H. (i) The sparse and minimalistic details contained within the particulars of claim suggest that this claim has been brought without the examination or scrutiny of any evidence (which, in the interests of a fair exchange of information, was very reasonably provided to the Claimant by the Defendant but not vice-versa). It is the Defendants belief that, had the Claimants solicitors reviewed the documents supplied to them (by the Defendant) and applied due diligence, then no claim would have been brought - it would be unreservedly apparent that a cause of action would not have been evident.
(ii) The Claimants 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. As a result, it is believed that the solicitors conduct in many of these cases has come under scrutiny and is presently the subject of an active investigation by the Solicitors Regulation Authority.
(iii) The term for the above conduct is believed to be “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 the significant detriment of the unrepresented Defendant.
(iv) The Defendant respectfully suggests that parking companies using the small claims track as a form of intimidation / aggressive, automated debt collection is not something the Courts should be seen to support.
I. 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. Similar reasons were cited by DJ 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 as a result of 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”. On the 27/07/16 DJ Anson (sitting at Preston County Court) ruled that very similar parking charge particulars of claim were inefficient and failing to meet CPR 16.4 and Practice Direction 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.
J. In Practice direction 3A 1.4 (1) the following example (which is very similar in nature to this claim) is given as reason for the Court to strike out a case – “those which set out no facts indicating what the claim is about, for example ‘Money owed £5000’”
*The Defendant invites the Court to strike out this claim as it is in direct breach of pre court protocol (in relation to the particulars of claim under Practice Direction 16, set out by the Ministry of Justice) as thoroughly evidenced in the points above.
2 – FURTHER EVIDENCE
A. The signage at the site is thoroughly inadequate to form a contract with the motorist. It is of an extremely poor quality, is poorly positioned and is in a general state of disrepair (being heavily vandalized). The British Parking Association (an organization of which the Claimant is an “approved operator” and thus required to adhere to its legislation) sets out the following rules in its Code of Practice (version 6, October 2015) –
(i) Point 18.2 states that - “Entrance signs must tell drivers that the car park is managed”. Further to this, Appendix B of the BPA Code of Practice highlights that the term “Managed by” (followed by the parking company name) is an essential requirement of the entrance signs. However, no such information is present at all. There is no indication on the entrance signs that the car park is managed, of who the managers are, or evidence within the signage that the site is indeed managed at all (be it by the Claimant or another party) as no parking company name is evident.
(ii) Point 18.2 also states that entrance signs “must always mention that terms and conditions apply and say where drivers can find more details”. This information is not present at all.
(iii) Appendix B also highlights that the following terms should be present and used on entrance signs – “Charges apply”, “Private land” and “Terms and conditions apply – see notices in the car park for details”. Once again, none of these terms are present.
(iv) Point 18.4 states that signs must “specify the sum payable for unauthorised parking”. The entrance signs do specify an amount, yet this is far lower and differs from the amount that it was claimed was owed in the initial ‘Notice to Driver”.
(v) Other signage at the site (which is equally vague, poorly worded, sparse, lacking detail, poorly positioned and also void of the information above) does display the name and logo of a parking management company, however, it is not that of the Claimant. The signs display the moniker “LCP – Local Car Parks”. Following diligent and thorough research, the Defendant can find no information whatsoever to suggest that the Claimant is any way linked to the aforementioned parking management company (or that the parking company “LCP” even exists). This leads the Defendant to ask the question of why the Claimant is at all involved in this matter. It would appear that, if any kind contractual obligation did exist (which is denied in its entirety) it would be with “Local Car Parks” and not the Claimant. The law is clear that debts cannot be enforced by a third party.
(vi) Point 18.8 states that - “You should display the BPA’s AOS logos at all sites. This will help the public to see that you are a legitimate operator, and show that the site is run properly.” However, these are also not present on the signage.
(vii) As a result of the points above, the Defendant researched the Claimant online in an attempt to establish the legitimacy of their business. It was discovered that (following a review of an article published in the Telegraph and Argus on 27/01/14 titled “Parking Firm Under Investigation”) the Claimant has been the subject of an investigation by members of Bradford Metropolitan District Council. In the article, a council representative is quoted as saying “We have previously complained about WYPE using illegal signage in the city centre, and will contact the BPA about this area”.
B. As evidenced by the above points, signage at the site is totally inadequate, being vague, confusing and carrying very little of the requisite information that would be required in order for the Claimant to insinuate that any kind of contract or contractual obligation has or can be formed.
C. (i) It is the Defendants belief that WY Parking Enforcement are not the lawful occupier or owner of the land in question (Fulton Street Car Park) and no details or contracts to prove otherwise have (at any stage) been provided to the Defendant which highlight who the lawful Landowner is.
(ii)The Defendant has reasonable belief that the Claimant has no authority to issue charges on this land in their own name and as a result have no rights to bring action against the Defendant.
(iii)The Claimant is not the landowner, merely a third party agent (apparently) acting on behalf of the landowner, and has failed on every possible occasion to demonstrate their legal standing to form a contract with the Defendant. As a third party agent the Claimant may not pursue any charge.
(iv)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 any action on its own behalf.
D. (i)The identity of the driver of the vehicle on the date in question has not been ascertained and no evidence has at any stage been supplied by the 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.
(ii)The Claimant may rely on the POFA in order to chase the Defendant (as the registered keeper) for the alleged debt, however, in order to do this the ‘Notice to Keeper’ document must comply with the strict rules of the POFA Schedule 4. These rules state that the maximum amount that can be sought from the keeper is the same as that detailed in the initial ‘Notice to Driver’. However, the NTK that the Defendant received from the Claimant had greatly inflated the initial sum from £90 to £120 with no explanation as to why or how that figure had come about, how it had been calculated or why the additional monies were being sought. This puts the Notice to Keeper in direct breach of the terms of the POFA and as a result the Claimant cannot seek any charge from the Defendant (as the registered keeper).
(iii)The Notice to Keeper is also in direct breach of the British Parking Association Code of Practice (point 19.5) which states that the maximum amount that can be sought by parking companies is £100.
E. The British Parking Association Code of Practice (13.4) states that –
“You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes”.
It may be inferred by the Claimant that the Defendant had entered into some kind of agreement or contractual obligation with the Claimant (which the Claimant denies). However, should this be the case, then it would be the Claimants duty to fulfil their contractual obligations highlighted above. This however was not the case as the Defendant received the initial parking charge after a mere 4 minutes 52 seconds.
Statement of truth: I confirm that the contents of this statement are true to the best of my knowledge and belief.
Name:
Date:
Signature:
0
Comments
-
Why the duplicated post?
Keep to your original thread you posted this in earlier today!
https://forums.moneysavingexpert.com/discussion/comment/72847000#Comment_72847000
If you have inadvertently used your real name as your forum name you need to get MSE to change it to something anonymous.
The ppcs monitor this forum and can use your posts against you0 -
started a new thread as the original one was about pre defence ideas really and didnt want actual defence to be hidden / get bogged down as i would really appreciate some constructive critique
Thanks for the advice but were good, its not my real name
0 -
Nevertheless - stick to one thread!
Imagine the workload if everyone wanted a new thread to try and get a quick response!0
This discussion has been closed.
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