UK CPM / Glad overstay Claim Form

LewiiiD

Thanks once again for all your help in building my defence.
I've amended it to take into account the suggestions, and have included references to Elliot v Loake and CPS v AJH Films.

I am hopeful of printing / signing / re-scanning / and sending tomorrow, so if someone is able to give it a final once over it would be greatly appreciated.


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[FONT=&quot]IN THE COUNTY COURT[/FONT]
[FONT=&quot]CLAIM NO. __________[/FONT] [FONT=&quot]BETWEEN :[/FONT]

[FONT=&quot]UK Car Park Management Limited[/FONT]
[FONT=&quot]Claimant[/FONT] [FONT=&quot]
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[FONT=&quot]AND[/FONT]

[FONT=&quot]____________[/FONT][FONT=&quot]

Defendant[/FONT]
[FONT=&quot]DEFENCE[/FONT]


[FONT=&quot]Introduction[/FONT][FONT=&quot]
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1. It is admitted that the Defendant was the authorised registered keeper of the vehicle in question at the time of the alleged incident.[/FONT]
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2. This is my statement of truth and my defence.[/FONT]
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3. The Particulars of Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant 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. [/FONT]
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4. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct. The Defendant further notes the Claimant's failure to engage in pre-action correspondence in accordance with the pre-action protocol and with the express aim of avoiding contested litigation.[/FONT]
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5. The residential area in question has particularly poor lighting at night when the car was parked. The terms and conditions of parking have no lighting and were unreadable. It was not made clear that there was any restriction regarding Visitor Spaces and how long you could park there for. A valid permit was on display.

6. It is believed that it will be a matter of common ground that claim relates to a purported debt as the result of the issue of a Parking Charge Notice (PCN) in relation to an alleged breach of the terms and conditions by the driver of the vehicle XXXX XXX when it was parked at Pembroke Park, Crawley. The PCN stated the contravention as “Over Stay”.

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[FONT=&quot]Rebuttal of Claim[/FONT]
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7. It is denied that:[/FONT]
[FONT=&quot]a. A contract was formed[/FONT]
[FONT=&quot]b. There was an agreement to pay a parking charge.[/FONT]
[FONT=&quot]c. That there were Terms and Conditions prominently displayed around the site. [/FONT]
[FONT=&quot]d. That in addition to the parking charge there was an agreement to pay additional and unspecified additional sums. [/FONT]
[FONT=&quot]e. The claimant company fully complied with their obligations within the terms of Schedule 4 of the Protections of Freedoms Act 2012. [/FONT]
[FONT=&quot]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. [/FONT]
[FONT=&quot]g. That the Defendant is liable for the purported debt.


8. It is further denied that the Defendant owes 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 Defendant did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.

10. The claimant is put to the strictest proof of their assertions.


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[FONT=&quot]My Defence[/FONT]

[FONT=&quot]11. My defence will reply principally upon the following points:[/FONT]
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12. The signage on this site was inadequate to form a contract with the motorist. 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. [/FONT]
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a. The signage on and around the site in question was unclear and not prominent and did not meet the British Parking Association (BPA) Code of Practice or the International Parking Community (IPC) Code of Practice. The Claimant was a member of the IPC at the time and committed to follow its requirements. Therefore no contract has been formed with driver to pay the amount demanded by the Claimant, or any additional fee charged if unpaid in 28 days.[/FONT]
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b. Further, Lord Denning’s ‘Red Hand Rule’ can be seen as applicable in this case, as the parking charge notice of £100 (being ‘out of all proportion’ with expectations of drivers in this car park and thus being an onerous term) should have been effectively: “In red letters with a red hand pointing to it” i.e. Very clear and prominent with the terms in large lettering. Lord Denning stated this in the case of Spurling vs Bradshaw Ltd; “The more unreasonable a clause is, the greater the notice which must be given of it. Some clauses would need to be printed in red ink with a red hand pointing to it before the notice could be held to be sufficient”. [/FONT]
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c. The claimant is put to strict proof that the signage on the date in question clearly sets out the onerous terms of a parking charge notice, to sufficiently draw the attention of a visitor, as set out in the leading judgement of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3.[/FONT]
[FONT=&quot]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.[/FONT]

[FONT=&quot]13. [/FONT][FONT=&quot]Should the claimant rely on the case of ParkingEye v Beavis, I wish to point out that there is a test of good faith.[/FONT]
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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.”[/FONT]

[FONT=&quot]14. 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:[/FONT]

[FONT=&quot]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.[/FONT]

[FONT=&quot]2.2 Signs must conform to the requirements as set out in a schedule 1 to the Code[/FONT]

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15. 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[/FONT]

[FONT=&quot]16. Section B.1.1 of the IPC Code of Practice outlines to operators: [/FONT]

[FONT=&quot]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.[/FONT]

[FONT=&quot]a. 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.[/FONT]
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b. 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.[/FONT]
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c. The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question[/FONT]
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d. 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[/FONT]

[FONT=&quot]17. 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 residential 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[/FONT]
[FONT=&quot]Only the landowner can pursue a case under the tort of trespass not this Claimant, and as the Supreme Court in the Beavis vs ParkingEye (2015) [2015] UKSC 67 case confirmed, such a matter would be limited to the landowner themselves.[/FONT]
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18. It is denied that the Defendant was the driver of the vehicle. 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 Defendant in these proceedings under the provisions set out by statute in the Protection of Freedom Act 2012 (“POFA”). The claimant is put to strict proof.[/FONT]
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19. If the Claimant seeks to allege that any such presumption exists, 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 provisions. 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 strict limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter. [/FONT]
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20. The case of Elliot v Loake (1982) is often cited by UK Car Park Management Ltd, however it is a criminal case with forensic evidence, whereby the keeper of the vehicle was also proved to be the driver at the time of an offence and thus has no basis upon this case or contract law. This is supported by the ruling of the Judge in Excel v M. X (Manchester) C8DP5C7T, who dismissed Elliot v Loake as it is a criminal case that doesn’t bear any weight in the small claims court. [/FONT]
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21. Similarly CPS vs AJH Films (2015) is another case heavily relied upon by UK Car Park Management. However time and time again this gets thrown out of court. As recently as 22nd June 2017, DJ McKay dismissed Excel Parking Services Ltd v Mrs. L. Evans (Cardiff) C8DP79CC as the judge fully agreed with Mrs L. Evans witness statement which correctly pointed out that this case involved employer/employee liability. As this claim was not a comparable situation, it also had no relevance to Excel’s case.[/FONT]
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22. The Defendant denies that they 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. The amount demanded is 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.[/FONT]
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23. The Claimant’s representatives, Gladstones, have artificially inflated the value of the Claim from £xx to £xx. The Defendant submits the added costs have not actually been incurred by the Claimant; that these are figures plucked out of thin air and applied regardless of facts. [/FONT]
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a. If the “parking charge” listed in the particulars of claim is to be considered a written agreement between Defendant and Claimant then under 7.3, the particulars fail to include “a copy of the contract or documents constituting the agreement”. [/FONT]
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b. 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 £xx to £xx. 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. [/FONT]
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c. 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.[/FONT]
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24. 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.

25. 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.

26. 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.

27. In view of all the foregoing the court is invited to strike the matter out of its own motion.[/FONT]
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28. 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.

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[FONT=&quot]Signed______________________[/FONT]

Coupon-mad

Bump up for others to comment on, in the morning.

LewiiiD

Anyone have any thoughts? If not I’ll go ahead and submit the Defence.

LewiiiD

Quick update regarding this claim - Received the Directions Questionnaires.

One from Gladstones with their typical request for the case to be heard on papers and
one from the Court itself.

I know how to fill it out (read the newbie sticky) and will do this tomorrow. Aim to send back Monday, guessing its best sent via post rather than email?

The DQ Gladstones sent alongside their letter wasn't filled out? Is this typical?

Thanks

Coupon-mad

The DQ Gladstones sent alongside their letter wasn't filled out? Is this typical?

Yes, we assume they hope some idiots/victims will fill it (a N159) in, steering the case to a paper hearing.

LewiiiD

Another update regarding this Case - Court Papers received, going to court on the 22nd Feb 2018 @ Horsham CC. In the process of developing WS and SA etc....

On a side note - checked Credit Score today and found out I have a CCJ relating to another Parking Charge from UKCPM from the same residential parking estate. I had no documentation relating to this case as it was all sent to a previous address. Spoken with CCBC today and details being sent.

In two minds whether to pay up before 22/12/17 and get CCJ removed, or try and get it 'set aside' and take them to court again. Would it be possible to add onto court case in February next year and deal with both in one go?

Any advice would be greatly appreciated.

Lewis

nosferatu1001

Possible but doubtful at this stage - very short notice

I believe you can pay up under duress AND THEN apply for a set aside, but check first.

Umkomaas

In two minds whether to pay up before 22/12/17 and get CCJ removed,

Is that the deadline date for payment set by the default judgment?

LewiiiD

I’ll look at paying under Duress and look at the set aside.

The court judgement as 22/11/17 - spoke to a chap at the CCBC this morning. He stated latest would be paying by 22/12/17 to get CCJ removed.

LewiiiD

Anyone with any further advice?
Still waiting on judgement details from CCBC will chase up tomorrow morning if nothing is heard.