UKCPM county court claim filed

Jamran

Hi everyone!


I received two parking charges when I parked behind a small business centre car park in Greenfield Road London E1. I thought that I was allowed to park there as I was visiting one of the offices there and so I ignored the tickets (I know big mistake) and now they've filed in small claims.


I am the driver but NOT the registered keeper. My uncle is and he has received the papers and is being taken to court.


I have already submitted the AOS and need to submit a defence by next Wednesday. I delayed getting help for the defence as I was confident that I could speak to the landowner and get it cancelled. That is still on going. But if it doesn't then I need to submit a defence and get ready for court.


I have read through the sticky threads etc. I needed some advice about which defence points to use.


the following is a defence I feel is most relevant to my case:


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.
1.2 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 Claimant is known to be a serial issuer 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.
1.3 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
2. The Claimant has not complied with the pre-court protocol.
3. No Letter of Claim was sent to the Defendant and no initial information was sent to the Defendant.
4. 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.

Statement of Defence
I am XXXX, Manager at XXXXXX, defendant in this matter and deny liability for the entirety of the claim 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)
The identity of the driver of the vehicle on the date in question has not been ascertained.
a) The Claimant did not identify the driver
b) 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.
c) The Claimant's increasingly demanding letters failed to evidence any contravention or clear/prominent signage.
(d) The Claimant failed to display clear/prominent signage terms and bay lines that would be capable of offering a contractual licence to park and providing for transparent and adequate notice of any parking charge.

(3)
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.
e) 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 19th August 2016 DJ Anson sitting at Preston County Court ruled that the very similar parking charge particulars of claim were deficient and failing to meet CPR 16.4 and PD 16 paragraphs 7.3 - 7.5. He ordered the Claimant in that case to file new particulars which they failed to do, and the court confirmed the claim will now be struck out.


(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.
The claimant was unable to produce relevant photos of the car, particularly the windscreen and dashboard with a PCN, and the signage terms, this goes against the SRA code as well as contrary to the ‘overriding objective’ in the pre action protocol.
As Gladstones are a firm of solicitors who’s 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.

(5)
UK Car Park Management Ltd is 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 this case.
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. 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 right to bring action regarding this claim.

(6)
a) 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 £2XX.XX. This appears to be an added cost with no apparent 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.

(7)
The signage was inadequate to form a contract with the motorist
a) The signage on this site is inadequate to form a contract. It is barely legible, making it difficult to read.
b) 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.
c) The sign does not contain an obligation as to how to ‘validly park’ or clear signage of parking in relevant bays.
d) 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.

(8)
The driver did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.
(a) 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.

(9)
(a) 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 original £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.
b) The Defendant also disputes that the Claimant has incurred £50 solicitor costs.
c) The Defendant has the reasonable belief that the Claimant has not incurred £50 costs to pursue an alleged £100 debt.
d) Notwithstanding the Defendant's belief, the costs are in any case not recoverable.
e) 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.

(10) 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'.
The defendant therefore asks that the court orders the case to be struck out for want of a detailed course of action and/or for the claim as having no prospect of success.
I believe the facts stated in this defence are true.


[NAME]
[COMPANY NAME]
[DATE]


Please could you assist me in tweaking it




thanks

Umkomaas

I am the driver but NOT the registered keeper. My uncle is and he has received the papers and is being taken to court.

So your Uncle is named on the court papers? Please confirm.

If so he has to defend this. You no longer have a direct part to play in this - sorry!

You could do all the paperwork on his behalf - provided it goes in under his name.

He will need to attend court (it's too late to transfer liability to the driver), but you might be able to speak on his behalf (as long as he's there with you, and you get the judge's permission). Check out 'Lay Representative' on Google.

Jamran

Yes he is the owner and named in the papers. I understand he will attend and I will only do the paperwork and if possible speak on his behalf

System

Yes he is the owner and named in the papers.

Paperwork must be signed in his name. You can help prepare it but the reply has to be from him.

I understand he will attend and I will only do the paperwork

If it goes to an personal hearing he has to be there, but there is an option for the matter to be dealt with on papers where no-one need attend.

and if possible speak on his behalf

If it does go to a personal hearing you can go along and seek the judge's permission to address the court depending on how you wish to be seen (Lay Rep or McKenzies friend). But you need not be concerned about this at this early stage.

Jamran

IamEmanresu wrote: »

Paperwork must be signed in his name. You can help prepare it but the reply has to be from him.



If it goes to an personal hearing he has to be there, but there is an option for the matter to be dealt with on papers where no-one need attend.



If it does go to a personal hearing you can go along and seek the judge's permission to address the court depending on how you wish to be seen (Lay Rep or McKenzies friend). But you need not be concerned about this at this early stage.

Thank you. I understand all that

Jamran

So how is my defence? Or it needs work?

Jamran

Bump :mad:

Jamran

Could anyone please help? Really worried about this is the deadline is near

System

That will work. You might change the last sentence to

The defendant therefore asks that the court orders the case to be struck out for want of a detailed course of action or for the claimant to provide revised particulars that demonstrate a cause of action based on a coherent set of facts.

Few judges will strike out claims but some will throw the challenge back to the claimant to provide the detailed particulars you need for a better defence.

Jamran

Hi guys I submitted the defence via email today. Unfortunately I sent it to the wrong email address and was provided the correct one after 4pm. The email stated that emails received after 4pm will be treat as received the next working day. Today was my 28th day since date of issue of the court papers. Will I be ok? Or is there a problem due to lateness?

Lamilad

Jamran wrote: »

Hi guys I submitted the defence via email today. Unfortunately I sent it to the wrong email address and was provided the correct one after 4pm. The email stated that emails received after 4pm will be treat as received the next working day. Today was my 28th day since date of issue of the court papers. Will I be ok? Or is there a problem due to lateness?

You actually have 33 days from the issue date on the claim form as they allow 5 days for service. So you will be fine, however, I would ring the court in the morning just to check they've received your email.