Court Claim - Gladstones

khankus

Guys,

After some time I managed to prep my defence. I am aware it has to be written in certain format so I'll do that once have your advise.

Where do I add bits that I was not a driver? Also, I took some photos of the site to confirm non compliant signage.

What is very interesting that the signage wasn't there at the time of the offence but when I went there few weeks ago, new signage is erected but still not clearly visible. Also, I have manage to get some photos before the date of offence where it clearly shows no signage.

DEFENCE
Introduction
1. I am XXX XXX the defendant in this matter. My address is XXX XXX
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 XXX XXXX,
registered number XXXX XXX.
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 a parking charge notice in relation to an alleged breach of the terms and conditions by the driver of the above vehicle when it was parked at XXXX XXXX on XX XX XXXX.

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 XXXX.
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 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 Code of Practice of which they were member at the time.
g. Further that the defendant has not paid the alleged debt.

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.
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 Code of Practice of which they were member at the time.
g. That I am liable for the purported debt.
8. It is further denied that I owe any debt to the claimant or that any debt is in fact owed or that any
debt exists or could ever exist or has ever existed. That in any event the claimant has failed to comply with the requirements of the Civil Procedure Rules and that their claim is both unfounded and vexatious.
9. The claimant is put to the strictest proof of their assertions.

My Defence
10. My defence will rely principally upon the following points:
11. That the signs erected on site are incapable of forming the basis of a contract and indeed make it
clear that that is not the case. Further it is trite law that a term that is forbidding cannot also constitute an offer. It is therefore denied that any contract was formed or was capable of being formed.
12. Should the claimant rely on the case of ParkingEye v Beavis, I wish to point out that there is a test of good faith.

Para 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.”

13. Underlining that is Section B.2.1, B.2.2 of the IPC Code of Practice which gives clear instructions
as to the placing, visibility and clarity of any signs that are used to form contracts. It says:

2.1 Where the basis of your parking charges is based in the law of contract it will usually be by way of
the driver of a vehicle agreeing to contractual terms identified by signage in and around a controlled
zone. It is therefore of fundamental importance that the signage meets the minimum standards under. The Code as this underpins the validity of any such charge. Similarly, where charges are founded in the law of trespass and form liquidated damages, these too must be communicated to drivers in the same way.

2.2 Signs must conform to the requirements as set out in a schedule 1 to the Code
14. The defendant refutes that there were clear and visible signs, with Terms that formed the basis of a contact and which met the specifications above.

15. Section B.1.1 of the IPC Code of Practice outlines to operators:

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.

The Claimant is put to strict proof they have such authority to operate on site and to take action in their own name. The same is a requirement of any contract based on conduct.

16. If in the alternative it is the claimant's case that his claim is founded in trespass (which is in any
event denied) then in a car park setting any damages in trespass can only be assessed based on a
calculation of the proportion of income lost based on the time of the alleged occupation. Any sum
sought could therefore only be minimal and de-minimis.

17. That the amount demanded is therefore 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.

18. In the alternative, the attention of the court is 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).

19. In view of all the foregoing the court is invited to strike the matter out of its own motion.

20. The claimant is put to strict proof of the assertions they have made or may make in their fuller
claim.

This statement is true to the best of my knowledge and belief.
Signed ______________________

khankus

Just so you know I am away from Friday so will have to send it via email. In that case, can this be PDF file? I don’t want this to change the format as word documents may not be formatted in the same way on other computers.

Thanks

khankus

I also want to add the section in to highlight no information that ANPR system was in place.

can I add the quote from POPLA report?

"We would expect parking operators to make it clear to motorists that the car
park is monitored by ANPR cameras. Similarly, we would expect operators to make it clear
that the parking contract commences upon entry to the site and not from the time printed on
the ticket (if a ticket has been purchased)"

khankus

Hi All,

Can anyone help me with this defence? Just wanted to make sure I covered all areas and if this is ok to send.

Thank you

Redx

khankus wrote: »

Just so you know I am away from Friday so will have to send it via email. In that case, can this be PDF file?

I don’t want this to change the format as word documents may not be formatted in the same way on other computers.

Thanks

yes email and add the pdf as an attachment

put the mcol reference etc in the email header too

then make sure it is added to your file

lamilad explained this last month , so search his posts

Lamilad

Have you established if their NTK is PoFA compliant or not? This could form a vital part of your defence.

khankus

No, I haven’t.

I’ll have a look tomorrow then

Thanks

nosferatu1001

Make sure you look at the right para - 9, if no windscreen ticket was issued

For the defence to be valid you must print, sign and scan it. Otherwise it has NOT been verified by a statement of truth and you have NOT complied.