At Small Claims stage - PCM and Gladstones

RM_2007

First draft of the Skeleton Argument. Went through the defense and pulled out main arguments. I mention J Spurling v Bradshaw [1956] EWCA Civ 3 in the defence - do I need to include that as evidence?

SKELETON ARGUMENT FOR THE CLAIMANT (Litigant in person)

The defendant will rely on the following submissions:

Failure to set out clear parking terms:


1. The signs erected on site are incapable of forming the basis of a contract and indeed make it clear that that is not the case. Further it is trite law that a term that is forbidding cannot also constitute an offer.

2. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, woefully inadequate. The signage at the site entrance measures 450mm wide by 610mm high containing over 300 words in varying font size and at heights over two meters from the ground, some at first story height.

SIGNAGE PHOTOGRAPHS APPENDED AS EVIDENCE: RM/xxx to RM/xxx.

3. 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. Should the claimant rely on the case of ParkingEye v Beavis, I wish to point out that there is a test of good faith which in this case was not one of fair and open dealings.

4. My case can be distinguished from the Beavis case, which was dependent upon Mr Beavis being the driver who accepted a clear contract, formed by unusually prominent signage. Strict compliance with the BPA Code of Practice and the clear, prominent terms on brief signs was held to be paramount. None of this applies in this material case.

PARKINGEYE LTD V BARRY BEAVIS SIGNAGE PHOTOGRAPHS APPENDED AS EVIDENCE: RM/XXX

5. The signage did not comply with the requirements of the Code of Practice of the International Parking Community’s ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and contained particularly onerous terms not sufficiently drawn to the attention of the visitor.
IPC doc APPENDED AS EVIDENCE: RM/XXX
J Spurling v Bradshaw [1956] EWCA Civ 3 appended as evidence

6. The claimant are not the landowners, merely an agent and cannot pursue the defendant for trespass
PCM vs Bull appended as evidence

7. The signage does not mention the double yellow lines, where the vehicle was photographed. Additionally there are no signs on the side of the road the car was located to indicate any yellow line restrictions.
SIGNAGE PHOTOGRAPHS APPENDED AS EVIDENCE: RM/xxx

Failure to be compliant with POFA

8. It is denied that the Defendant was the driver of the vehicle and the Claimant is put to strict proof.

9. 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")

10. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and 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.


11. The Claimant or the Claimant’s representatives, Gladstones, have artificially inflated the value of the Claim from £100 to £160. This appears to be an added cost with apparently no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.

12. The original NTK (ref RM/xxx) posted by this Claimant states a Full Charge of £100.00 (£60.00 discounted). The second NTK (Ref RM/xxx) states a full charge of £100 however the Claimant's legal firm now inflates these sums, in a deliberate or negligent attempt at more than double recovery:
a. £160.00 Principal debt
b. Interest £9.76
c. Legal representative’s costs £50
d. Outstanding balance to pay now £244.76

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

14. 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.

15. The claimant has failed to serve a fully compliant NTK. The NTK’s sent to the defendant do not contain the duration the vehicle is stated to have been parked, which POFA requires. Furthermore, the two NTK’s state different timings, 31 minutes apart, again demonstrating the claimant’s failure to comply with POFA schedule 4, Paragraph 9 (2) (a) which states that the NTK must “specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates”. Furthermore both NTK’s cannot be true if they specify different timings.

NTK’s APPENDED AS EVIDENCE: RM/xxx
16. The claimant cannot to rely on Elliot v Loake ('EvL') to claim that the driver and the keeper can be 'assumed' to be the same, however that was a criminal case and referred to the owner, not the keeper. In any event, in EvL there was overwhelming forensic evidence from other sources that the defendant was the driver at the time. By contrast, in my case this Claimant has not offered any evidence to the driver's identity and cannot make any lawful assumption.

17. The vital matter of 'keeper liability' regarding the law when parking on private land was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015 in the Annual Report where he stated:

18. “There is no reasonable presumption in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If... {POFA 2012 Schedule 4 is}... not complied with then keeper liability does not generally pass."

POPLA ANNUAL REPORT 2015 APPENDED AS EVIDENCE: RM/xxx

19. Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator is unable to transfer the liability for the charge using the POFA.

No Standing

20. The claimant is not the not the lawful occupier of the land. I have the reasonable belief that the Claimant has no locus standi at the time of this parking event and at best, were contractors of a principal, the landowner. They have failed to show a cause for action by way of sight of a copy of the contract they have with the landowner to assign the right to enter into contracts with the public and to make claims and take civil action against drivers in their own name.

Wholly unreasonable and vexatious claim

21. It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. The Court is invited to take Judicial Notice of the fact that the Claimant's solicitors, Gladstones, is 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.

22. It is noted that in view of all of the above, the Court could decide of its own volition to strike this claim out under CPR 16.4 and as an unrepresented Defendant I ask the presiding Judge to use their case management powers and relieve me of the burden of having to appear to defend myself as registered keeper, in view of the Claimant having supplied no evidence of any basis for a claim against me in law.


I believe that the facts stated in this Skeleton Defence are true.



Signed xxxxxxxxxxxxxxxx


Dated xxxxxxxxxxx

nosferatu1001

Look back at your claim form

Does it state £50 cost to file the claim IN ADDITION TO the £50 mentioned in the PoC? The cost to file a claim is based on amount, and is set by the court. This is payable to the court. In addition, IF you use a solicitor to prepare the claim filing, you can claim UP TO £50 for the solicitor to do so.

Correction on my part 0- i think it allows 1080 char. So count how many - i think they tend to use about 500 max. What this does is set them up to struggle to rebut your assertion they cant have spent £50 on it NOR provided a cause of action because - in their terms - the box on MCOL isnt very big. You state that while space is limited, they didnt even use all the space they had, AND there was nothing stopping them serving separate particulars of claim IF that was necessary to demonstrate a clear cause of action. They took neither action.

RM_2007

Good morning nosferatu1001

Looking at the front of the claim form, the PoC section only mentions £160 for "parking charges/damages and indemnity if applicable and interest of £9.76"

The important notes section lists as follows:

Amount claimed: £169.76
Court Fee: £25
Legal Representative's costs: £50
Total amount £244.76

I cant see any other mention for filing a claim. pages 2, 3 and 4 are for responding but checked those as well.

Correction on my part 0- i think it allows 1080 char. So count how many - i think they tend to use about 500 max. What this does is set them up to struggle to rebut your assertion they cant have spent £50 on it NOR provided a cause of action because - in their terms - the box on MCOL isnt very big. You state that while space is limited, they didnt even use all the space they had, AND there was nothing stopping them serving separate particulars of claim IF that was necessary to demonstrate a clear cause of action. They took neither action.

its 502 words so I'll amend my para to say:

"7. The Defendant also disputes that the Claimant has incurred £50 solicitor costs. The poorly worded particular of claim, that disclosed no cause of action and had no significant detail, appears to be identical to the thousands of automatically generated particulars I have seen while researching my defence. It only used 502 characters of the 1080 characters available, and could not had taken more than 5 minutes to prepare. I require an explanation as to how £50 of actual solicitor time was spent, and require proof it was invoiced and paid."

nosferatu1001

That £50 is the fee for filing the claim> So you cannot include anything about the £50 not being claimable - it IS claimable. However it is only for provable time spent on filing the claim, and there is no way they spent more than 5 monutes doing tha t- its standard wording (you can find multiple examples) with about 4 details changed.

RM_2007

"According to Ladak v DRC Locums UKEAT/0488/13/LA the claimant can only recover the direct and!provable!costs of the!time!spent!on preparing the claim in a legal capacity, not any administration cost"

Is this what you meant nosferatu1001?

nosferatu1001

Yes, minus the weird formatting
So you put them to strict proof thayt the £50 ewqas invoiced and paid, and a breakdown of the actual logged solicitor time. Then you ask them to prove how many claims they file a day, and how many staff they have....

RM_2007

Thank you.

Witness statement reworded para 7 and will leave in para 8:

"7. The Defendant also disputes that the Claimant has incurred £50 solicitor costs. The poorly worded particular of claim, that disclosed no cause of action and had no significant detail, appears to be identical to the thousands of automatically generated particulars I have seen while researching my defence. It only used 502 characters of the 1080 characters available, and could not had taken more than 5 minutes to prepare. According to Ladak v DRC Locums UKEAT/0488/13/LA the claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration cost. I require an explanation as to how £50 of actual solicitor time was spent, and the claimant is put to the strictest proof that it was invoiced and paid.

8. The Defendant has the reasonable belief that the Claimant has not incurred £50 costs to pursue an alleged £100 debt."

Will remove para 9 and 10

"9. Notwithstanding the Defendant's belief, the costs are in any case not recoverable.

10. 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."

Hopefully I got this right.

Does this mean I need to include "Ladak v DRC Locums UKEAT/0488/13/LA " in the evidence?

A few more questions -

1: Do I include the skeleton argument in this pack to Galdstones and the court now or is that sent later?
2: My cost/expenses schedule - do I need to include that as well?

RM_2007

Copy of what I have in my pack to send to the court and Gladstones (Once Witness Statement is finalised).

Do I need to include the defence statement since the court will already have that?
Do I need to include any other court doc - such as the notice of allocation?
I've included an extract of the POPLA report rather than the full 44 pages - is that acceptable?
IF i need to include the skeleton argument and my cost schedule now, would that go into section 2?

Pack details below:

Section 1

• Claim form (Inc Particulars of Claim)
• Defence Statement

Section 2

• Witness Statement

Section 3

• NTK 1 (10th November 2016) Exhibit RM/E.01
• NTK 2 (16th December 2016) Exhibit RM/E.02
• DEBT COLLECTION LETTER 1 (16th January 207) Exhibit RM/E.03
• DEBT COLLECTION LETTER 2 (6th February 2017) Exhibit RM/E.04
• GLADSTONES FINAL REMINDER (10TH April 2017) Exhibit RM/E.05
• GLADSTONES LBC (2ND May 2017) Exhibit RM/E.06
• DEFENDANTS RESPONSE TO LBC (12TH May 2017) Exhibit RM/E.07
• GLADSTONES RESPONSE TO DEFENDANT (2nd June 2017) Exhibit RM/E.08
• DEFENDANTS RESPONSE TO GLADSTONE (9th June 2017) Exhibit RM/E.09
• GLADSTONES RESPONSE TO DEFENDANT (15th August 2017) Exhibit RM/E.10
• GLADSTONES RESPONSE TO DEFENDANT (15th August 2017) - COPY OF NTK!!!8217;S Exhibit RM/E.11
• GLADSTONES RESPONSE TO DEFENDANT (15th August 2017) - PHOTOS Exhibit RM/E.12
• GLADSTONE COPY OF DIRECTIONS QUESTIONNAIRE (24TH OCTOBER 2017) Exhibit RM/E.13
• DEFENDANTS COPY OF DIRECTIONS QUESTIONNAIRE (11TH November 2017) Exhibit RM/E.14
• PCM vs BULL Exhibit RM/E.15
• IPC CODE OF PRACRICE 2016 Exhibit RM/E.16
• PARKINGEYE LTD V BARRY BEAVIS SIGNAGE PHOTOGRAPHS Exhibit RM/E.17
• POPLA ANNUAL REPORT 2015 EXTRACT Exhibit RM/E.18
• DEFENDANTS PHOTOGRPHS OF THE SITE Exhibit RM/E.19
• DEFENDANTS VIDEO AND ELECTRONIC PHOTOGRAPHS OF THE SITE Exhibit RM/E.20

RM_2007

updated contents..hopefully this the right things to include

Section 1

• Claim form (Inc Particulars of Claim)
• Skeleton Arguments
• Defence Statement

Section 2

• Witness Statement

Section 3

• NTK 1 (10th November 2016) Exhibit RM/E.01
• NTK 2 (16th December 2016) Exhibit RM/E.02
• DEBT COLLECTION LETTER 1 (16th January 207) Exhibit RM/E.03
• DEBT COLLECTION LETTER 2 (6th February 2017) Exhibit RM/E.04
• GLADSTONES FINAL REMINDER (10TH April 2017) Exhibit RM/E.05
• GLADSTONES LBC (2ND May 2017) Exhibit RM/E.06
• DEFENDANTS RESPONSE TO LBC (12TH May 2017) Exhibit RM/E.07
• GLADSTONES RESPONSE TO DEFENDANT (2nd June 2017) Exhibit RM/E.08
• DEFENDANTS RESPONSE TO GLADSTONE (9th June 2017) Exhibit RM/E.09
• GLADSTONES RESPONSE TO DEFENDANT (15th August 2017) Exhibit RM/E.10
• GLADSTONES RESPONSE TO DEFENDANT (15th August 2017) - COPY OF NTK’S Exhibit RM/E.11
• GLADSTONES RESPONSE TO DEFENDANT (15th August 2017) - PHOTOS Exhibit RM/E.12
• GLADSTONE COPY OF DIRECTIONS QUESTIONNAIRE (24TH OCTOBER 2017) Exhibit RM/E.13
• DEFENDANTS COPY OF DIRECTIONS QUESTIONNAIRE (11TH November 2017) Exhibit RM/E.14
• PCM vs BULL Exhibit RM/E.15
• IPC CODE OF PRACRICE 2016 Exhibit RM/E.16
• PARKINGEYE LTD V BARRY BEAVIS SIGNAGE PHOTOGRAPHS Exhibit RM/E.17
• POPLA ANNUAL REPORT 2015 EXTRACT Exhibit RM/E.18
• DEFENDANTS PHOTOGRPHS OF THE SITE Exhibit RM/E.19
• DEFENDANTS VIDEO AND ELECTONIC PHOTOGRAPHS OF THE SITE Exhibit RM/E.20
• J SPURLING V BRADSHAW [1956] EWCA CIV 3 Exhibit RM/E.21

nosferatu1001

At this point you do not send the court anything other than the WS and other evidence you are relying upon.

Ha eyou read post 2? Tells you that you do not send costs or skelly until about 3 days before the hearing date, as part of the point of the skelly is to rebut their arguments, which you normally dont see until after youve sent your WS in.