Gladstones uk car park management ltd defence stage.

J88rdy

ok as suggested ive adapted a defence and drafted it up. here is a first draft. any advice greatly appreciated.

• In the County Court
  Claim Number:
  Between
  xxxx (Claimant)
  and
  xxxx (Defendant)
  
  
  Defence Statement
  
  
  Preliminary Matters.
  
  1. The claimant failed to include a copy of their written contract 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
  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.
  
  
• 2.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.
  
  3. 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.
  
  4. 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.
  
  5. 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.
  
  6. 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.
  
  7. The Defendant invites the court to dismiss this claim out as it is in breach of pre court protocols in relation to the particulars of claim under Practice Direction 16, set out by the Ministry of Justice and also Civil Procedure Rules (CPR) under 16.4 and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14.
  1.4
  
  
  On the basis of the above, we request the court strike out the claim for want of a
  cause of action.
  
  
  
  Statement of Defence
  
  I am XXXXX, 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.
  
  1. The claimant has not provided enough details in the Particular of Claim to file a full
  defence.
  a) The Claimant has stated that a parking charge was incurred.
  b) The Claimant has given no indication of the nature of the alleged charge. Except for a ‘breach of contract’.
  c) 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.
  d) 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.’
  e) On the 27th July 2016 DJ Anson sitting at Preston County Court ruled that the very
  similar parking charge particulars of claim were eficient 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.
  
  The Defendant asks that the court orders Further and Better Particulars of Claim and
  asks leave to amend the Defence.
  
  2. The Claimant has not complied with the pre-court protocol.
  a) No initial information was sent to the Defendant for the following
  (i) Full particulars of the parking charges.
  (ii) Who the party was that are contracted with UKCPM LTD
  (iii) The full legal identity of the landowner
  (iv) A full copy of the contract with the landholder that demonstrated that UKCPM had their authority.
  (v) If the charges were based on damages for breach of contract and if so to provide justification of this sum
  (vi) If the charge was based on a contractually agreed sum for the provision of parking and If so to provide a valid VAT invoice for this 'service'.
  (vii) To provide a copy of the signs that UKCPM can evidence were on site and which contended formed a contract with the driver on that occasion, as well as all Photographs taken of the vehicle in question.
  b) I'd refer the court to Para 4 on non-compliance and sanction, and I'd also point out
  that there can be no reasonable excuse for the Claimant's failure to follow the Pre-
  action Conduct process, especially bearing in mind that the Claim was issued by their
  own Solicitors so they clearly had legal advice before issuing proceedings.
  
  
  3. I have the reasonable belief that the Claimant does 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.
  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
  
  4. No planning permission for signage
  a) The Claimant is not entitled to rely on an illegal or immoral act in order to profit from it, pursuant to the doctrine ex dolo malo non oritur actio. In this matter, the Claimant does not have planning/advertisement consent in relation to its parking signage on the land in question (which are classed as “advertisements” under the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 (as amended). This is a criminal offence under Regulation 30 of those Regulations. Accordingly, as a matter of public policy the principle ex dolo malo non oritur action should apply – namely, the Claimant should not be allowed to found a cause of action on an immoral or an illegal act (in this case the unlawful signage). The rationale for this is set out in the case of Holman v Johnson (1775) 1 Cowp 341 and was reaffirmed in RTA (Business Consultants) Ltd v Bracewell [2015] EWHC 630 (QB) (12 March 2015). The Defendant also relies on Andre Agassi v S Robinson (HM Inspector of Taxes) [2005] EWCA Civ 1507.
  b) In addition to the criminal offence committed by the Claimant, it is in breach of various statutory and regulatory provisions set out in the Consumer Protection from Unfair Trading Regulations 2008 (Regulation 3 – a breach of which is an offence under Regulation 5), the Consumer Rights Act 2015 (Sections 62 and 68 and Schedule 2) and the Consumer Contract (Information, Cancellation and Additional Charges) Regulations 2013 (Regulation 13). Again, the court should not lend its aid to the Claimant in founding a claim based on its unlawful and/or immoral conduct.
  c) Furthermore, it must be contrary to public policy for a court to enforce a contract whereby a party will profit from its criminal conduct and the Defendant will rely on ParkingEye v Somerfield Stores [2012] EWCA Civ 1338
  
  5. The signage was inadequate to form a contract with the motorist even if it did have planning permission
  a) No sign upon entry to carpark, contravening requirement 18.2 of the BPA code of practice
  b) Wording of signage unclear and contradicting.ie tells you you’re not allowed to park without a permit, but gives no information of how or where to obtain one. Then goes to say if you do park you agree to their terms and risk a £100 charge, as such offering you a contract for something they’re strictly forbidding in the first place.
  c) It is possible to drive into the carpark and park without seeing a sign at all due to the lack of signs and carpark layout, therefore in this instance it is imperative an entrance sign is in place to avoid any confusion.

Data Protection Act breach
For the reasons set out above, the parking charge which is the subject of these proceedings is invalid. The Claimant therefore had no right to request the keeper’s details from the DVLA and to use them, and has breached the Defendant’s rights under the Data Protection Act by doing both. Vidal-Hall v Google Inc [2014] EWHC 13 (QB) is authority that misuse of personal data is a tort. Halliday v Creation Consumer Finance Ltd [2013] All ER (D) 199 is authority that a reasonable sum of compensation would be £750. The Defendant reserves his rights in respect of these matters.

I believe the facts stated in this defence are true.

J88rdy

Did anyone manage to look over this ^^^ . I'd like to get this done ASAP as I have so much going on and it's playing on my mind at the moment. Cheers.

J88rdy

hi all. my defence must be submitted this week as the deadline is Nov 6th. ive made a few amendments to what I posted above but had no feedback for. anything would be great. also the process for me emailing my defence to the court. do i have to fax them a copy of my signature etc too . it seems a little confusing on the .gov website. cheers.

Redx

if you were to read a dozen or more other court case threads you would know the submission process

I explained it in post #25 quite recently in this thread

https://forums.moneysavingexpert.com/discussion/5727728

this forum is awash with court claims at the moment , which is not its main purpose

few trained lawyers come here and so its not surprising if you get no feedback

those trained legal eagles have now got brain fade due to the sheer numbers of cases being discussed on here , its a tsunami in progress with a surfboard holding back the waters

the forum does not employ trained people to answer the questions and whatever is given back is given freely , from volunteers giving up their spare time

J88rdy

thanks red. I appreciate anyone's time and feedback and realise it's free advice and people lead hectic lifes hence me not posting here relentlessly demanding feedback. thanks for any advice again its great that forums like this exist. keep up the good work.

auditt

Did you have any joy with this defence letter?

I have the exact same problem as you with the same UK Car Park Management Limited and Gladstones.

I'm at a loss with all this and quite worried about it all any help would be great appciated.

Thank you..

KeithP

auditt wrote: »

Did you have any joy with this defence letter?

To me, it looks like J88rdy has yet to submit his defence statement.

auditt

Is this a credible defence or am I wasting my time with this?

claxtome

I will help where I can to make your defence better:

1) You need to make sure your defence is correct. You only have one shot at it. For instance you mention BPA but UKPCM are not members. They are approved members of sister organisation IPC which have a different Code of Practice. Whilst reading the different Code of Practice you may find more breaches in terms of signage.

2) You are defending as Keeper which this forum usually recommends. Another potential argument to run with is the 'Notice to Keeper' doesn't conform to POFA Schedule 4 in terms of wording and when it was sent. From what I have read it appears you got a PCN attached to the windscreen. If so paragraph 8 applies in your case. If not you look at paragraph 9 for a postal PCN.
(I know it is not easy reading but remember a lot of cases win as they are being pursued as keeper but have not confirmed to POFA Schedule 4)

3) You are running with 'No planning permission for signage' which is fine if true. Have you checked on council website? In my case I thought they hadn't so ran with it and included the DPA breach as well.

Hope this helps.

Umkomaas

Signage needs ‘Advertising Consent’ for signs over a prescribed size (check the size out, you don’t want egg on your face in court). ‘Planning Permission’ does not apply to signage, but it can do for ANPR cameras erected on bespoke poles.

Failing to have AC is a criminal offence, and it cannot be applied for in retrospect.

But before getting over-excited a number of councils when tackled about the lack of AC have either disregarded it via a brush and carpet, or have agreed to ‘backdate’ consent - even though not possible! (go figure). Councils are the enforcing Authority for prosecutions.

In the few cases I’ve read where it has been brought up in front of a judge, the response has been that his is a civil court, not a criminal one, and if the LA won’t bring a criminal prosecution then he isn’t going to get involved.

In terms of your defence section concerning signage. Leave it as it stands (you have all the case references and the legal terms) but obviously change PP to AC. It will be something that the PPC will have to address if it’s in there.

Please note - I really don’t get involved in dealing with the analyses, dissections and advice on court cases, I spend far too much time on here already that I fear I may be needing help with my own defence shortly, the one before my appearance in the divorce court that Mrs U might be lining up if I linger here for more than I currently do!

I think Redx’s descriptions are absolutely as I see it.

this forum is awash with court claims at the moment , which is not its main purpose

its a tsunami in progress with a surfboard holding back the waters

Good luck.