So I'm going to court...

Jhpt

Please could you take the time to review my defence, I'd be most grateful;

Defence Statement

I am ___, the defendant in this matter and registered keeper of vehicle ___. I currently reside at ____.

I deny I am liable for the entirety of the claim for each of the following reasons:
1) This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The badly mail-merged documents contain very little information.

2) UK Car Park Management Ltd 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 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.
3) The Defendant has a lawful right to park within the residents car park – as stated within the tenancy agreement signed between the tenant and the lettings agency.
4) The Claimant has added unrecoverable sums to the original parking charge. It is believed that the employee who drew up the paperwork is remunerated and the particulars of claim are templates, so it is simply not credible that £50 'legal representative’s (or even admin) costs' were incurred. I deny the Claimant is entitled to any interest whatsoever.
a) The Claimant is put to strict proof that at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs.
b) In the absence of strict proof I submit that the Claimant was committing an offence by displaying their signs and therefore no contract could have been entered into between the driver and the Claimant.
5) 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 £60 to £100 to £149 to £126.65 to £149 to £160 to £166.53. 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.
6)
a) The sign fails because it is not illuminated at night – when the car was parked.
b) The sign does not contain an obligation as to how to ‘validly display’ the ticket in the windscreen, therefore there was no breach of any ‘relevant obligation’ or ‘relevant contract’ as required under Schedule 4 of POFA.
c)The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.
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.
e) BPA CoP breaches - this distinguishes this case from the Beavis case:!
(i) the signs were not compliant in terms of the!font!size, lighting or positioning.
(ii) the sum pursued exceeds £100.
(iii) there is / was no compliant landowner contract.
f) The sign fails because it states that the claimant is a member of the British Parking Association (BPA), however a review of the BPA does not list the claimant as an approved operator (which suggested to the Defendant that the claimant was not a genuine car park operator).
7) The driver did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.
8)
a) The Claimant has sent threatening and misleading demands which stated that further debt recoveryaction would be taken to recover what is owed by passing the debt to a recovery agent (which suggested to the Defendant they would be calling round like bailiffs) adding further unexplained charges of varying amounts (£49, £26.65, £60) to the original £60 rising to £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 legal representative’s costs.
c) The Defendant has the reasonable belief that the Claimant has not incurred £50 costs to pursue an alleged £160 debt.
d) Not withstanding the Defendant's belief, the costs are in any case not recoverable.
9). The provision is a penalty and not a genuine pre-estimate of loss for the following reasons:
a) As the Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the locations in question
b) The amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable;
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 thereany comparable 'legitimate interest' nor complex contractual arrangement to disengage the penaltyrule, as ParkingEye did in the unique case heard by the Supreme Court in 2015.
11). 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 xxxx.
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 £6.53 pursuant to s69 of the
County Courts Act 1984 at 8% pa, continuing
to Judgement at £0.04 per day’
12) 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 CountyCourt 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’.’

13) 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.

14) 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.
a) 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 hearingdue 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’
b) On the 19th Audust 2016 DJ Anson sitting at Preston County Court ruled that the very similarparking charge particulars of claim were deficient and failing to meet CPR 16.4 and PD 16paragraphs 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.

15) 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.

15) 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.

16) 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.


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

safarmuk

So do you suggest;
- I contact my landlord, and ask they make a copy of any section of the lease referring to parking?

Ask him for the whole lease if possible. Leases need to be read in entirety not isolated snippets. If he doesn't have it you should be able to acquire it for a small fee from the Land Registry I believe (that's what solicitors do when you buy a leasehold property).

Jhpt

Sounds great - I'll get on to her now!

Guys_Dad

Jhpt wrote: »

Hi Guys Dad,

Thanks for taking time to reply.

So do you suggest;
- I contact my landlord, and ask they make a copy of any section of the lease referring to parking?

Do I need to provide a copy of any "evidence" I refer to (i.e. tenancy agreement) in my defence, or just refer to it?

As per post above from safarmuk

Coupon-mad

NEWBIES thread post #2, tells you what's needed and when. Have you done the AOS?

Jhpt

Thanks Coupon-mad,

Yes I've done the AOS and as the newbies thread clicked to defend all claims.

Can you please advise on my draft letter as in post above?

Thanks again everybody,

Coupon-mad

At the start, there is no need to say who you are because that's already in the headings, and the defence should be in the third person, so change:

I am ___, the defendant in this matter and registered keeper of vehicle ___. I currently reside at ____.

I deny I am liable for the entirety of the claim for each of the following reasons:

to something like:

As the registered keeper of the relevant vehicle, the Defendant denies liability for the entirety of the claim, for each of the following reasons:

then I would suggest you copy some of the style and wording of (solicitor and regular poster here) Johnersh's ''own space'' example defence, which is linked in post #2 of the NEWBIES thread. The headings in his version make it easier for a Judge to follow the appeal points in an own space case, and the cases to quote would be the Jopson appeal case, and PACE v Noor, the transcripts for which are both hosted by the Parking Prankster (for your later evidence bundle).

Also, I think you need to make it clear you have primacy of contract and already pay for the right to use two parking spaces as part of your monthly rental agreement, which cannot be varied by a third party contractor by signage which does not form part of the terms of the Tenancy Agreement, which does not create any onerous contractual terms, or relevant obligation or liability for a charge of £100 for parking.

Jhpt

Great advice Coupon-mad, I've re-read newbies thread and taken your advice and Johnersh's on board.

I've edited by Defence accordingly, and will post in the next post - most grateful if you could review.

Jhpt

The last couple of paragraph's remain the same, however I've altered first 4

DEFENCE

As the registered keeper of the relevant vehicle, the Defendant denies liability for the entirety of the claim, for each of the following reasons:

1)This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The badly mail-merged documents contain very little information. 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.
a)On the 20th September 2016 another relevant private parking charge claim by Gladstones was struck out by District Judge Cross of St Albans County Court without a hearing due to their ‘robo-claim’ particulars being incoherent, failing to comply with CPR. 16.4 and‘ providing no facts that could give rise to any apparent claim in law.
b)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.

2) It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking parking management. The Claimant has provided no proof of any such entitlement. The Claimant 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.
d) The Claimant is put to strict proof that at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs.
e) In the absence of strict proof I submit that the Claimant was committing an offence by displaying their signs and therefore no contract could have been entered into between the driver and the Claimant.

3) It is denied that the Defendant or lawful users of his/her vehicle were in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the Defendant permitting the Defendant’s vehicle to be parked by the current occupier and leaseholder of XXXXX, whose tenancy agreement permits the parking of vehicle(s) on land. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms. The lease terms provide the right to park a vehicle in the relevant bay, without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle or the requirement to display a parking permit. A copy of the lease will be provided to the Court, together with witness evidence that prior permission to park had been given. The Defendant pays a monthly fee of £XXXX as part of his tenancy agreement which includes the right to park as per 15.1-15.4 of the tenancy agreement.
a) In Pace v Mr N [2016] C6GF14F0 [2016] it was found that the parking company could not override the tenant's right to park by requiring a permit to park.
b) In Link Parking v Ms P C7GF50J7 [2016] it was also found that the parking company could not override the tenant's right to park by requiring a permit to park
c) In Pace v Mr N [2016] C7GF51J1, PACE came back again, this time claiming that clause 6.3 of the lease allowed the terms of the lease to be varied. The judge rules that this clause required a month's notice to be given, and as this had not occurred, the point was moot. The claim was dismissed. It is not sufficient for the operator to simply point to a clause which allows the lease to be varied. They must prove that the lease was so varied, and furthermore varied by the lessor. The operator isn’t a party to the lease and cannot vary it.

4) The Defendant avers that the operator’s signs cannot
(i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Claimant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd(2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial.
Accordingly it is denied that:
a) there was any agreement as between the Defendant or driver of the vehicle and the Claimant
b) there was any obligation (at all) to display a permit; and
c) the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss

Coupon-mad

I would remove:

2(d) and 2(e) because that argument about planning/advertising consent gets nowhere:

http://forums.pepipoo.com/index.php?showtopic=115273

and remove:

4(c) because arguments about 'no loss' get nowhere.

It's more important to say that:

It is denied that it can be deemed reasonable for a Claimant to try to argue in Court that, at a residential site with residents parking with full authorisation at their own home, they as a third party firm incentivised to issue penalties to make their money, have any overriding 'legitimate interest' (like there was in the Beavis case) that can save the claim from falling foul of Lord Dunedin's penalty rule.

Maybe change 4(c) to the above instead.