Claim defence

Lamilad

Ok, I found it. Not sure how useful it will be to this OP but here it is.

https://www.dropbox.com/s/2g500v59z6ssnyg/RFSD.docx?dl=0

completelyfubar

Thanks guys
That letter wording will be very useful Lamilad, thanks for digging it out.
I take it that the letter was successful?

Coupon-mad

oh yes...it was!

completelyfubar

OK so I need to file the second defence soon so here is the draft, same as the first one but concentrating more on the fact that there was no NTK or PCN issued. I will be adding a covering letter to the defence as per the latest posts... and then on subsequent court allocations etc.
Any comments from you chaps are always well received

Claim Number: **********
In the County Court
between
UK Car Park Management Ltd
vs
******************
________________________________________
Defence Statement
________________________________________
Preliminary
1. The claimant failed to issue a Notice to Keeper (NTK) or Parking Charge Notice (PCN) for the alleged infringement. This is not in accordance with the requirements of The Protection of Freedom Act 2012 (POFA). Under schedule 4, paragraph 4 of the POFA, an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle if certain conditions are met as stated in paragraphs 5, 6, 11 & 12. UK Car Park Management have failed to fulfil the conditions which state that the keeper must be served with a compliant NTK in accordance with paragraph 9, which stipulates a mandatory timeline and wording:-
’’The notice must be given by— (a) handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
(b) Sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.’’
The applicable section here is (b) because the NTK was delivered by post. Furthermore, paragraph 9(5) states: ’’The relevant period…is the period of 14 days beginning with the day after that on which the specified period of parking ended’’
2. The claimant failed to include a copy of their written contract with any correspondence 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;
‘ 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.’

3. 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 ‘

4. The claimant has not provided enough details in the particulars of claim to file a full defence;
4.1. The Claimant has disclosed no cause of action to give rise to any debt.
4.2. The Claimant has stated that a ‘parking charge’ was incurred.
4.3. 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.
4.4. 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.

4.4.1. 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.


4.4.2. On the 27th July 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 – 7.6. 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.

Background
5. It is admitted that at the time of the alleged infringement the Defendant was the registered keeper of vehicle registration mark ******** which is subject to these proceedings and that the vehicle was insured with two named drivers permitted to use it.

6. It is not admitted that on ***/***/*** the Defendant's vehicle was parked at *** ***.
6.1. The Claimant has provided no evidence, photographic or otherwise that the vehicle was at the alleged location and/or parked there on the given date.

7. It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.
7.1. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the keeper in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA")
7.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
7.2.1. There was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
7.2.2. That it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
It is not admitted that the Claimant has complied with the relevant statutory requirements.
7.3. To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.

8. 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 the lack of correspondence and details provided before and with this vague claim.

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

9. 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 action regarding this claim.
9.1. 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.
9.2. The claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question
9.3. 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

10. The Claimant has at no time provided an explanation how the ‘parking charge’ has been calculated, the conduct that gave rise to it or how the amount has escalated to £*****. This appears to be an added cost with apparently no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.
10.1. 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 (never received).
10.2. The driver did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.
10.2.1. The Defendant denies that the driver would have agreed to pay the original demand (unknown as no NTK or PCN issued) to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.

Failure to set out clear parking terms
11. The Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to impose a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.
11.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, woefully inadequate.
11.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;
11.1.2. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee’s ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and
11.1.3. The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3.
11.2. There is contradicting signage within the same car park which is placed in a more prominent and readable format. This signage mentions time restraints and contradicting fines.
11.3. UK Car Park Management Ltd had only recently placed their signage on the wall creating new terms and conditions for motorists. The IPC Code of Practice states that;

‘ Where there is any change to any pre-existing terms and conditions that would not be immediately apparent to a person visiting the site and which materially affects the motorist you should place additional (temporary) signage at the entrance making it clear that new terms and conditions/charges apply, such that regular visitors who may be familiar with the old terms do not inadvertently incur parking charges. This signage should be in addition to the signage ordinarily required and left in place for an appropriate period.’

There are no signs at the entrance at all and no additional signs or notices to alert drivers.

12. 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 recovery agent (which suggested to the Defendant they would be calling round like bailiffs) adding further unexplained charges with no evidence of how these extra charges have 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.
12.1. The Defendant also disputes that the Claimant has incurred £50 solicitor costs.
12.2. The Defendant has the reasonable belief that the Claimant has not incurred £50 costs to pursue an alleged £100 debt.
12.3. Not withstanding the Defendant's belief, the costs are in any case not recoverable.
12.4. The Claimant described the charge of £50.00 "legal representative’s costs" not "contractual costs". CPR 27.14 does not permit these to be recovered in the Small Claims Court.

Wholly unreasonable and vexatious claim
13. It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, the Defendant is keeping careful note of all wasted time/costs in dealing with this matter and should the case continue to trial (or in the event of the Claimant filing a Notice of Discontinuance) the Defendant will seek further costs, pursuant to Civil Procedure Rule 27.14(2)(g).

14. The Defendant respectfully suggests that parking companies using the small claims track as a form of aggressive, automated monetary demands against motorists, alleging 'debts' for parking on free customer parking areas is not something the Courts should be seen to support.

15. The Court is invited to take Judicial Notice of the fact that the Claimant's solicitors, Gladstones, are engaged in a course of conduct which involves issuing tens of thousands of totally meritless Claims, which are routinely dismissed by District Judges sitting in this Court, and other County Court hearing centres in all parts of England & Wales. The Court is therefore invited to refer the matter to the Designated Civil Judge, for consideration of the issuing an Extended Civil Restraint Order against the Claimant, pursuant to CPR Practice Direction 3.1(3).

16. The Defendant denies the claim in its entirety, voiding any liability to the Claimant for all amounts due to the aforementioned reasons. The Defendant asks that the court gives consideration to exercise its discretion to order the case to be struck out under CPR Rule 3.4, for want of a detailed cause of action and/or for the claim having no realistic prospects of success.

17. If the court is not minded to make such an order, then when Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because it is expected that the Claimant will use its witness statement to provide the sort of detail which should have been disclosed much earlier, and the Defendant should have the opportunity to consider it, prior to serving evidence and witness statements in support of this defence.

I confirm that the above facts and statements are true to the best of my knowledge and recollection.

Signed:
Date:

completelyfubar

OK, quick update... I have finally found the landowner details of the carpark and will be popping a letter through his letterbox politely requesting a copy of any contract allowing UKCPM to operate on his land from 2016>, hopefully this will come back negative... hopefully.

completelyfubar

Another question if I may peeps...
I have just realised that the date on the first CCCF (particulars of claim) is the date of issue for the NTK - Not the date of the alleged infringement. Is this a minor point or do I have some leverage with this?

Coupon-mad

I think that is not minor. You can honestly say in a Witness Statement that the car was not there on that day and put them to strict proof.

completelyfubar

Yeah, I suppose it depends on the Judge? Whether or not they enforce that detail even though other documents from the claimant have the correct date on them. I do read a lot of accounts of a Judge's interpretation of what to allow or not. Legally you would think that the particulars of Claim must state the exact cause of action.

I now have to think about compensation for all the stress and work I've had to put into this over the past year......

completelyfubar

OK so I am now a couple of weeks away from the deadline to present my evidence and WS.
I have written my WS as a chronological list of events, letters received, replies, photo's taken etc and tagged my evidence with a reference to the WS.
I have then added on a list of supporting evidence for my defence statement so I can refer to it as needed. I have ensured there are copies of all the relevant regulations etc including Mr G's words about Keeper liability. I have even included copies of the CPM i-ticket app and companies house details on Gladstone's and IPC etc... anything I may have to refer to in court. A LOT of paper!
I can then enjoy Christmas and create my skeleton argument in the weeks running up to the hearing with the advantage of seeing the claimants evidence at last!

Coupon-mad

Good stuff, sounds like you know what you are doing but do you want to show us the WS for comments?