Gladstones - Technical defence against PCM

Coupon-mad

Yes do your plan and why not include a summary of what Parliament said about this rogue industry*, so that the Judge reads it as part of the paper trail?



*the NEWBIES thread has the MPs' universally damning words.

Kas22

Thanks Coupon-mad. Where can I get the summary of what Parliament have said about the rogue industry?

Umkomaas

Kas22 wrote: »

Thanks Coupon-mad. Where can I get the summary of what Parliament have said about the rogue industry?

You can watch it here (highly recommended):

http://parliamentlive.tv/event/index/2f0384f2-eba5-4fff-ab07-cf24b6a22918?in=12:49:41

Or read about it here:

https://hansard.parliament.uk/commons/2018-02-02/debates/CC84AF5E-AC6E-4E14-81B1-066E6A892807/Parking(CodeOfPractice)Bill

Kas22

Brilliant. Thank you. Will watch and read through it.

Kas22

Right, after a year I finally received a Claim Form from the County Court Business Centre... One thing which puzzles me is the county court being in Northampton, whereas I'm based in London!

Is this another way of Gladstone's trying to deter defendants from pursuing this and getting them to pay up early? Can I request a change of location?

Also, is it best to fill this out online or via paper and post? I am looking to dispute the full amount

bargepole

Kas22 wrote: »

Right, after a year I finally received a Claim Form from the County Court Business Centre... One thing which puzzles me is the county court being in Northampton, whereas I'm based in London!

Is this another way of Gladstone's trying to deter defendants from pursuing this and getting them to pay up early? Can I request a change of location?

Also, is it best to fill this out online or via paper and post? I am looking to dispute the full amount

If you had read the info in post #2 of the Newbies thread, this would not be puzzling at all.


All claims start off at the CCBC in Northampton, and only get transferred to a local court if defended.


The instructions also say not to use the online form, but to create your defence in a separate pdf, which you post and email.


But that's after you have first Acknowledged Service of the claim form, which you should do online.

Kas22

Got it, will do right away! Thanks!

Kas22

Hey all, so I have posted my first statement of defence, thread: Statement of Defence - Against PCN.


https://forums.moneysavingexpert.com/showthread.php?p=74475771#post74475771


If you could provide feedback, that would be great!

KeithP

Can you please post your Defence on this thread.

All discussion on one incident should be on the one thread. Thanks.


What is the Date of Issue on your Claim Form?

System

To save everyone faffing around between two threads here is the OP's first attempt at a defence.

---

Statement of Defence

In the County Court Business Centre
Claim Number: XXXXXXX

Between:

Parking Control Management vs. XXXX

DEFENCE

Preliminary

1. 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 reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand their Particulars at a later stage of these proceedings and/or to limit the Claimant only to the un-evidenced allegations in the Particulars.

1.1 The Claimant!!!8217;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. HMCS have identified thousands of similar poorly pleaded claims.

1.2 The Defendant believes the term for such conduct is !!!8216;robo-claims!!!8217; which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. I have reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to my significant detriment as an unrepresented Defendant.

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.

2.1 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.

2.2 The Defendant undertook to appeal the unwarranted parking charge in all good faith, in the hope of resolving the dispute, including what was described by the Claimant as an 'independent' review by the Independent Appeals Service (IAS). There is no scrutiny board and IAS decisions in the public domain blatantly disregard recognised standards of law or justice and shift the burden to the consumer to prove matters outside of their knowledge and evidence, causing a significant imbalance in the rights and interests of consumers, contrary to the Consumer Rights Act 2015.

2.3 The Defendant has discovered that the Claimant's Trade Body, the Independent Parking Committee (IPC), is an organisation operated by the same Directors as are/were recorded at Gladstones Solicitors, at least until very recently. They - John Davies and Will Hurley - are also responsible for the IAS.

2.4 The Defendant now submits that the IAS 'decision' should be disregarded; it is ostensibly described as an appeal service, yet the Assessors' names remain secret. No figures or reports are published by the IAS but the publication 'Parking Review' reported that only 20% of appeals were upheld (compared to POPLA where 50% have consistently been upheld since its inception in 2012). It is unsurprising then, given the relationship between the parties, that the IAS rejected the Defendant's appeal.

2.5 Now the Defendant notes that Gladstones are employed in bringing this claim, demonstrating a clear conflict of interests.

Background

3) It is admitted that at all material times the Defendant was the owner of the vehicle in question.

4) It is denied that any "parking charges or indemnity costs" (whatever they might be) as stated on the Particulars of claim are owed and any debt is denied in its entirety.

5) It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking 'parking management'. The Claimant has provided no proof of any such entitlement.

6) It is admitted that the Defendant parked the vehicle on the material date, whilst residing at the private residential property. It is denied that there was any relevant obligation upon the Defendant that can have been breached. The Defendant did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.


Authority to Park and Primacy of Contract

7) It is denied that the Defendant was in breach of any parking conditions or was not permitted to park, in circumstances where the Lease/Tenancy Agreement does permit the parking of vehicle(s) on this land. The Defendant believes there was an absolute entitlement to park at the specific area, outside of the car park, which cannot be fettered by any alleged parking terms.

8) It is not admitted that the Claimant has contractual or other lawful authority to make contracts with residents at this location, and/or to bring proceedings against the Defendant. The Claimant is put to strict proof. Further, and in the alternative, the Defendant avers that the Claimant requires the permission of the owner of the relevant land - not merely another contractor or site agent not in possession - in order to commence proceedings.

9) The Defendant avers that the Claimant cannot:

(i) override the existing rights enjoyed by residents and their visitors, or
(ii) decide to add/remove parking bays from use by residents

9.1 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.

9.2 No contract and no breach - this area has never been ''designated'' nor was it marked as such.

10) It is denied that the vehicle was !!!8220;parked inside of a designated area!!!8221;. The Defendant parked legitimately in the area, used without penalty for many years by various residents at the site.

11) This Claimant has only in recent months, begun a predatory parking regime targeting residents and has unilaterally attempted to foist upon residents a change of rules, in complete disregard to any existing rights and grants; the Claimant being a stranger to the various residents' Agreements. No variation of residents' Agreements has taken place and any such variation would be solely a matter between the landowner and the resident, in any case.

12) There is no site plan of the area makred as a bay in existence, If such a plan now exists, the Claimant is put to strict proof of its origin and on what basis/on whose authority this particular bay has been decided to be 'designated' after many years of normal use by residents, and how this change of use was communicated to residents and/or agreed.

13) Other residents also routinely park their vehicles in this area. As there is no site plan identifying the parking area, the Defendant concludes that given the fact that there is no site plan, the Claimant is not entitled, nor has any locus standi to decide that the area becomes 'designated' as opposed to any other.

14) The Defendant denies any separate contract with the Claimant in respect of parking arrangements. The Claimant has offered nothing by way of consideration, given the primacy of contract enjoyed by residents who already have rights of way, and have been parking in that space for years and have a reasonable expectation to continue to do so, free of harassment, predatory conduct and 'parking charges'.

15) It is denied that there was any breach of contract or of any relevant parking terms. The Claimant's claim is wholly misconceived.

16) The Defendant relies upon ParkingEye Ltd v Beavis, insofar as the Court were only willing to exempt a parking charge from falling foul of the penalty rule which would normally render it unrecoverable, in the context of a site of commercial value, it being a 'complex' case where the driver was a visitor with no prior licence or rights, and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.

16.i The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate.
16ii. At the time of the material events the area was not within the remit of the parking zone.

16.2. The Defendant avers that the residential site that is the subject of these proceedings is not a site where there is a commercial value to be protected. In fact, the existing rights of residents should have been protected.
16.3 Shortly after the ticket was issued, the controlled parking zone was removed.
Wholly unreasonable and vexatious claim

17) It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, the Defendant is keeping careful note of all wasted time/costs in dealing with this matter and should the case continue to trial (or in the event of the Claimant filing a Notice of Discontinuance) the Defendant will seek further costs, pursuant to Civil Procedure Rule 27.14(2)(g).

18) The Defendant respectfully suggests that parking companies using the small claims track as a form of aggressive, automated monetary demands against residents, alleging 'debts' for parking at their own homes is not something the Courts should be seen to support.

19) 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. The Court is therefore invited to refer the matter to the Designated Civil Judge, for consideration of the issuing an Extended Civil Restraint Order against the Claimant, pursuant to CPR Practice Direction 3.1(3).

20) There has been recent discussions at the House of Commons about the Parking (Code of Practice) Bill, and the rogue industry, which can be read here:
ttps://hansard.parliament.uk/commons/2018-02-02/debates/CC84AF5E-AC6E-4E14-81B1-066E6A892807/Parking(CodeOfPractice)Bill

21) The Defendant denies the claim in its entirety, voiding any liability to the Claimant for all amounts due to the aforementioned reasons. The Defendant asks that the court gives consideration to exercise its discretion to order the case to be struck out under CPR Rule 3.4, for want of a detailed cause of action and/or for the claim having no realistic prospects of success.

22) If the court is not minded to make such an order, then when Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because it is expected that the Claimant will use its witness statement to provide the sort of detail which should have been disclosed much earlier, and the Defendant should have the opportunity to consider it, prior to serving evidence and witness statements in support of this defence.

I confirm that the above facts and statements are true to the best of my knowledge and recollection.

Signed

Date