Gladstones letter before claim

123Messiah

UPDATED:

IN THE COUNTY COURT

CLAIM No: XXXXXXXXX

BETWEEN:

PARKING AND PROPERTY
MANAGEMENT LIMITED
OCEAN HOUSE
12th FLOOR
THE RING
BRACKNELL
RG12 1AX

-and-

XXX

___________________________________________
DEFENCE
_______________________________________________

Preliminary
1. The Particulars of Claim lack specificity . The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.

2. 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.

Background
3. It is admitted that at all material times the Defendant is the registered keeper of vehicle registration mark XXZZZ which is the subject of these proceedings. The vehicle is insured with [provider] with [number] of named drivers permitted to use it

4. It is admitted that on [date] the Defendant's vehicle was parked at [location]

Authority to Park and Primacy of Contract
5. It is denied that the Defendant or lawful users of his/her vehicle were in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the Defendant permitting the above mentioned vehicle to be parked by the current occupier and leaseholder of [address], whose tenancy agreement permits the parking of vehicle(s) on land. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms. The lease terms provide the right to park a vehicle in the relevant allocated bay, without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle or the requirement to display a parking permit. A copy of the lease will be provided to the Court, together with witness evidence that prior permission to park had been given.

6. The Defendant avers that the operators signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial.

7. In order to issue parking charges, and to pursue unpaid charges via litigation, the Claimant is required to have the written authority of the landowner, on whose behalf they are acting as an agent. Section B.1.1 of the IPC Code of Practice outlines to operators:
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.
The Claimant, and their legal representatives, have failed to supply the Defendant with evidence of such authority even upon the Defendant’s written request. The Claimant is put to strict proof of the same, in the form of an unreacted and contemporaneous contract, or chain of authority, from the landowner to the Claimant. A Managing Agent is not the Landowner.

8. It is denied that the signs used by this claimant can have created a fair or transparent contract with a driver in any event. The signs were insufficient in terms of their distribution, wording and lighting hence incapable of binding the driver, which distinguishes this case from the Beavis case:
a) Sporadic and illegible (charge not prominent nor large lettering) site/entrance signage - breach of the BPA Code of Practice and no contract formed to pay any clearly stated sum.
b) The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.
c) The signage was not lit and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Unfair Terms in Consumer Contracts Regulations 1999.
d) No promise was made by the driver that could constitute consideration because there was no offer known nor accepted. No consideration flowed from the Claimant.
e) Absent the elements of a contract, there can be no breach of contract.

9. Accordingly it is denied that:
9.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant
9.2. there was any obligation (at all) to display a permit; and
9.3. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

STATEMENT OF TRUTH
I confirm that the contents of this Defence are true.


I am quite happy with this now, where would I add in the height of signs and also that they are attached to buildings which can not be read from a car (will include pictures for my defence) even if got out the car would have to step in bushes and grass and ask a neighbour for a small step ladder... haha

Coupon-mad

where would I add in the height of signs and also that they are attached to buildings which can not be read from a car (will include pictures for my defence) even if got out the car would have to step in bushes and grass and ask a neighbour for a small step ladder.

Add it in another sub-section in point #8.

c) The signage was not lit and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Unfair Terms in Consumer Contracts Regulations 1999.

Remove the UTCCRs, they do not exist any more - change it to The Consumer Rights Act 2015.

123Messiah

Thank you so much for your help I really appreciate it.
Once sent recorded post do I just wait for the questionnaire is there anything I need to do online or is that just if I submit my defence online?

Kind regards

nosferatu1001

You do NOT send recorded post!
First class
Free proof of posting from the PO

Why not send your defence as an email? Print, sign, scan to PDF and emai lto the address found all over this forum?

Coupon-mad

Everyone on here emails their defence as a signed/dated then scanned PDF attachment, to the CCBCAQ email address that we really hoped you will have found when you read a fraction of all the threads we read every day! It is repeatedly said on almost every defence thread...

AT NO POINT does any thread tell you to send a defence recorded delivery.

123Messiah

I read barge poles walk through and it said send registered to Northampton? Ok I will urgently have to email was I looking in the wrong place.

Coupon-mad

CCBCAQ email addy. Bargepole is not wrong, but email is quicker/immediate.

123Messiah

Hi,

quick question....

I have another parking case I'm dealing with, I sent a LBC and didn't receive any correspondence back as per the last case?
Instead got sent a claim form when last time got sent pictures of car.

can someone please point me in the right direction.... would I ask again or just make a note of it in my defence?

Kind regards

System

ask again

Your are entitled to know but put in your defence that a) you are entitled to know the basis of their claim and b) you asked on xx/xx/xx and they failed to reply.

You may be lucky and get a strike out or they may be asked by the Allocating Judge to submit better particulars.

Courts run on rules - so pick them up on every breach. After all that is what they are trying to do to you by issuing a parking charge.

123Messiah

Morning,

Would I send the same letter back and state that this letter was previously sent on xx/xx/xxxx with no reply.

Kind regards