Claim Form Defence Advice

Coupon-mad

JohnAllan wrote: »

Thank you again for the advice. I have a few questions if you don’t mind.

Am I to mention the phone call which determined why the notice was issued? If so, shall I include this at the beginning of my defence?

I would put it after the part where you say (like in all our Gladstones defences) that the particulars of claim are woefully inadequate and fail to meet the Practice Direction, etc. (read examples & copy).

You could then add (defences being written in the third person) that:

This has prejudiced the Defendant's chance to understand the cause of action in this case, and the Defendant can only surmise that it may relate to an unwarranted 'PCN' placed on the car in February, when the driver had paid and displayed correctly. Attempts were made to appeal that charge and the Defendant reasonably believed it was cancelled, not least because there was no breach of contract and the tariff was paid, and in a phone call the Claimant attempted to change their story and suggest the car might have been in a restricted area, which the Defendant avers was not the case because the driver regularly parks in that area of the car park and the parking tariff is always paid for the space, in compliance with the signs.

Is it advisable to cite previous cases even if I have not read them? Does it work in my favour to remind / advise the judge (or whoever reads these cases at a ‘county court business centre’)?

Yes, use them, but NO, you must read them and understand your own defence! You can't just rock up with a forum-aided defence and no idea what half of it is about. And you will need to adduce those cases in evidence later on, with your Witness Statement.

The cases cited are publicly available, either by Googling, or in the case of PCM v Bull & ors, hosted by the Parking Prankster as a full court transcript.

Believe me, you will need to be familiar with the awful decision of the Supreme Court in ParkingEye v Beavis because the other side will try to wave it like a flag.

I will contact Gladstones to let them know my address change and as you say to ‘robustly tell them that I will be submitting my defence…’ Will an email to them be ok for this?

Yes. Keep proof, in case they revert to that old address.

Would there be a chance they revoke the case knowing that I am defending myself? I’ve read online that they may not want to incur any further costs for themselves if they know I will be defending.

No, certainly not this early. Sometimes Gladstones discontinue much nearer the hearing, having tried to call a defendant's bluff, but usually a hearing takes place. We've only seen one lost in a year, out of hundreds we've assisted in.

If it gets revoked / or even goes all the way and I win, would the parking company attempt to use another solicitors to continue trying to get the money from me?

They can't, that would be an abuse of the court process if they'd discontinued or you won. They can't have two bites at the cherry.

Should I ever be bothered about bailiffs turning up, or would that only happen if I lose and the court order me to pay, but I don’t pay? Or can bailiffs be hired by the parking company or the solicitors?

As in bold! No worries.

JohnAllan

Thank you so much for the help. I have just started to draft my defence. Do you recommend any opening lines or format that should be included?

Would you say my email to Gladstones is sufficient? I pasted it above on post number 11.

Thank you.

JohnAllan

FAO: CCBC
Claim No: XXXXXXXX
Issue Date: XX XX XX

Statement of Defence

I am X, the defendant in this matter. It is admitted that the Defendant was the authorised registered keeper of the vehicle in question at the time of the alleged incident. The Defendant denies liability for the entirety of the claim for the following reasons.

The particulars of claim do not meet the requirements of Practice Direction as there is nothing which specifies how the terms were breached. Indeed the particulars of claim are not clear and concise as is required. 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.

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.’

On the 27th July 2016 DJ Anson sitting at Preston County Court ruled that the very similar parking charge particulars of claim were efficient 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.

This has prejudiced the Defendant's chance to understand the cause of action in this case, and the Defendant can only surmise that it may relate to an unwarranted 'PCN' placed on the car in February, when the driver had paid and displayed correctly. On the basis of the above, I request the court strike out the claim for want of a cause of action.

The Defendant made a telephone call to the Claimant in June questioning the parking charge as to which the Claimant explained the charges incurred due to the driver being parked in an area allocated for contractual workers.

Attempts were made to appeal the charge and the Defendant reasonably believed it was cancelled. Not least because there was no breach of contract and the tariff was paid, and in the phone call the Claimant suggested the car might have been in a restricted area, which the Defendant avers was not the case because the driver regularly parks in that area of the car park and the parking tariff is always paid for the space, in compliance with the signs.

There will have been standard signs up but no prominent ones were seen to tell the driver that this area was a temporary no-parking zone for non contractual workers. No signs and lines where seen to even suggest that, and this goes against the IPC CoP which says operators should add extra signs if they are either in a new site, or if restrictions have changed recently.

Clearly a temporary requisitioning of normally-used spaces is a big change and would need big signs/lines. And if this area was meant to be a no parking zone then there can have been no offer to park there. That would be a perverse situation: ‘’These spaces are for contractual workers only, no parking, but if you pay extra we will let you do what we've just prohibited”.

Even if the court finds that signs prohibiting parking were adjacent to the vehicle, it is confidently argued that these cannot have been prominent. Therefor no contract has been formed. Even if the court finds there were prominent signs, the Defendant avers that a prohibition on parking cannot also be a contractual offer to do that which is forbidden, for a 'charge’.

Even if the court is minded to believe that this site could, in theory, charge money for an issue such as this one (unrelated to the pay and display 'rules') then in any case, this would be an issue falling only under the tort of trespass, a matter which remains in the gift of the landowner themselves only.

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 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.

I believe the facts stated in this defence are true.

System

There will have been standard signs up but no prominent ones were seen to tell the driver that this area was a temporary no-parking zone for non contractual workers. No signs and lines where seen to even suggest that, and this goes against the IPC CoP which says operators should add extra signs if they are either in a new site, or if restrictions have changed recently.

Why would a judge accept this comment if you haven't identified yourself as the driver. It's an invite to consider yourself as the driver on the balance of probabilities. It's also an invite to ignore anything you say about the visibility of the signs since you are claiming you weren't there.

I had been parking here numerous times during the previous months and have always paid for a ticket.

So the signs are likely to have been seen or you had a responsibility to make yourself aware

I had a valid ticket clearly displayed in my window so was quite shocked when I received the notice, and assumed it was because they did not see my displayed ticket.

So was there a ticket on display in their pics or not? Have you asked from them either directly or through a Subject Access Request.

P&D claims are some of the hardest to deal with as the automatic implication is that anyone entering a P&D knows to pay and display. So it will come down to the pics on the day. That is all the judge will be interested in, and they have a raft of rules to achieve an outcome - one of which is "balance of probabilities"

So what do the pics show.

nosferatu1001

Your defence needs to be in numbered paragraphs.

JohnAllan

Why would a judge accept this comment if you haven't identified yourself as the driver. It's an invite to consider yourself as the driver on the balance of probabilities. It's also an invite to ignore anything you say about the visibility of the signs since you are claiming you weren't there.

I am happy to present myself as the driver. Is this a wise thing to do? And should this be made clear in the defence? I've recently learned that wether I was the driver or not, the registered keeper is responsible.

So the signs are likely to have been seen or you had a responsibility to make yourself aware

Yes, the normal signs for P&D.

So was there a ticket on display in their pics or not? Have you asked from them either directly or through a Subject Access Request.

I have not seen nor requested any photographs. Should I do at this point? I thought my next step is to just file the defence.

In this situation is it up to me to prove I had a ticket, rather than they prove I didn't? Their argument (from speaking briefly with them on the telephone a few months ago) is that I was parked in a contractual space. So the ticket is something for my defence only? Their defence must be a photograph of me parked in a contractual space - proving I was in the wrong. Innocent until proven guilty?

If any advice can be given to me as to what not to say and what to say based on the claim and the defence pasted above, that would be great. Thank you.

System

Their [STRIKE]defence must[/STRIKE] claim will be a photograph of me parked in a contractual space - proving I was in the wrong. Innocent until proven guilty?

Of course you are innocent until they produce a pic of the car there without a ticket. You can defend on

a) the "penalty" element on the signs failing the Beavis test of being prominent - but you'd need pics of the signs there
b) you can challenge if they have a contract there though they are likely to be occupiers
c) you can challenge them to produce proof not ticket was bought.

Whether you do that as the driver or not is up to you but you have to be aware that if you chose not to be the driver, what is said is considered "hearsay" as you are making the comments second-hand so to speak.

I had a valid ticket clearly displayed in my window

If you paid, and you are certain the ticket was there, the judge will give this more weight if you say you were there, bought a ticket and placed it on display.

JohnAllan

Thank you, is there anything in my current defence pasted above on post #14 that suggests I was not the driver? I just want to make sure it all sounds legitimate.

Coupon-mad

This one isn't about being parked without a PDT on display, it's an allegation of parking in a restricted area. And yes, I would defend this as driver, under these circumstances.

JohnAllan

Coupon-mad wrote: »

This one isn't about being parked without a PDT on display, it's an allegation of parking in a restricted area. And yes, I would defend this as driver, under these circumstances.

Does my defence still need to be written in the 3rd person?