Gladstones County Court Claim Form

WBM

Also they have sent me three pictures one is of the car in the "parking" one is a blurry picture where it seem like the PCN on the car and one is a close up of the sign says:

PERMIT HOLDERS ONLY
CONTRACT TO PARK

some illegible small text

DO NOT PARK UNLESS YOU AGREE TO BE BOUND BY THIS CONTRACT

PARKING CHARGE £90

Coupon-mad

OK. Looks like they typed the same date twice, haha.

I think my version covers most of it (already covers the sign making no offer except to permit holders) but you might be better to defend as driver (if you were) and drop the entire point #5 and sub-points that I called 'Absence of registered keeper liability'. What you have described is typical of UKCPM and would not be considered in breach of the POFA.

You could add a point 2.1.2, 2.1.3, and 2.1.4 to my version, which I adapted from your point #3:

2.1.2. The Particulars of Claim (POC) fail to meet the requirements of Practice Direction 16 7.5. The POC are incoherent, make no sense, and do not disclose any legally recognisable claim against the Defendant.

2.1.3. The POC contain no facts and are not clear and concise as required by CPR 16.4 (a). The Claimants are serial issuers of generic claims like this 'roboclaim’ given away in this case by typical, generic lack of detail. The Claimant has repeated the date 15/10/2016 (as if there were two charges on the same day, which is denied), cannot say if it is pursuing the Defendant as keeper or driver, and has not elaborated on the alleged 'breach of terms'. The Claimant claims an unsubstantiated £300 for ''Parking Charges/Damages'' despite the fact parking charges cannot be claimed as damages except by a landowner as a remedy for trespass, and cites ''indemnity costs if applicable'' whatever that is supposed to mean, bearing in mind the Claimant previously alleged this was about a single £90 charge.

2.1.4. Practice Direction 3A refering Civil Procedure Rule 3.4 illustrates this:
‘1.4 The following are examples of cases where the court may conclude that particulars of claim (whether contained in a claim form or filed separately) fall within rule 3.4(2)(a):
- those which set out no facts indicating what the claim is about, for example ‘Money owed £5000’,
- those which are incoherent and make no sense,
- those which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable claim against the defendant.'

WBM

Hi Coupon-mad,

Thank you very much for your help!

I have incorporated points 2.1.2 -.4. Though I've left in point 5 but amended 5.1.3 to remove the sentence that the NTK or the PCN was not received. So they still have to prove who the driver was or pursue me as the Keeper. Although you said that it may be better defending it as the driver, can I please ask why is defending it as the driver better? Does it give me any additional arguments?

I have listed what my defence will be below based on your suggestions. I am planning on submitting it this week, since the date on the issue form is 13/12/17, so if there is anything else you think i should add please let me know. I did have one question though, the sign says £90, the NTK says £120, so does this mean that the Claimant have not sent an accurate NTK or is this common practice for them to send a higher amount?

Thank you again for your help.


IN THE COUNTY COURT BUSINESS CENTRE
CLAIM No. DXXXXXXX
BETWEEN
WY Parking Enforcement Limited (CLAIMANT)

-and-

xxxxx xxxxxxxx (DEFENDANT)

________

DEFENCE
________

1. The Defendant denies that the Claimant is entitled to the relief claimed, or any amount at all.

Preliminary
2. The Claimant 'WYPE' has failed to comply with the requirements of Civil Procedure Rule 16.4. Its sparse Particulars do not disclose any cause of action which could give rise to a claim, and their single-page Letter Before Claim was no more than an aggressive demand, designed to intimidate and mislead the defendant, rather than narrow the issues or provide any specific detail.

2.1. Despite the Defendant requesting this information in pre-action communication, this Claimant has failed to set out the basis of the claim - trespass or contractual breach? It has not specified how the sum sought represents any fee, charge, costs or damages incurred - nor evidenced that any contract existed or was breached - hence the Defendant is having to attempt to cover all possibilities, with no fair opportunity to make an informed response.

2.1.1. The Claimant's solicitors merely sent a photograph of the car and a very small, illegible WYPE sign with much larger advertisement signs near it, and no other details, copies of letters, facts or evidence.

2.1.2. The Particulars of Claim (POC) fail to meet the requirements of Practice Direction 16 7.5. The POC are incoherent, make no sense, and do not disclose any legally recognisable claim against the Defendant.

2.1.3. The POC contain no facts and are not clear and concise as required by CPR 16.4 (a). The Claimants are serial issuers of generic claims like this 'roboclaim’ given away in this case by typical, generic lack of detail. The Claimant has repeated the date 15/10/2016 (as if there were two charges on the same day, which is denied), cannot say if it is pursuing the Defendant as keeper or driver, and has not elaborated on the alleged 'breach of terms'. The Claimant claims an unsubstantiated £300 for ''Parking Charges/Damages'' despite the fact parking charges cannot be claimed as damages except by a landowner as a remedy for trespass, and cites ''indemnity costs if applicable'' whatever that is supposed to mean, bearing in mind the Claimant previously alleged this was about a single £90 charge.

2.1.4. Practice Direction 3A refering Civil Procedure Rule 3.4 illustrates this:
‘1.4 The following are examples of cases where the court may conclude that particulars of claim (whether contained in a claim form or filed separately) fall within rule 3.4(2)(a):
- those which set out no facts indicating what the claim is about, for example ‘Money owed £5000’,
- those which are incoherent and make no sense,
- those which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable claim against the defendant.'


ParkingEye Ltd v Beavis is distinguished
3. ParkingEye Ltd v Beavis [2015] UKSC 67 is fully distinguished from this claim, due to the completely different facts, including but not limited to:
i) There was no parking licence or offer, no consideration flowed and there was no contract capable of being breached.
ii) The Claimant did not follow the effectively binding IPC Code of Practice.
iii) The sum claimed is extortionate, and the predatory business model is punitive unconscionable.
iv) The Claimant has no standing or authority from the landowner.
v) There is no comparable legitimate interest or commercial justification to disengage the penalty rule.


Background - no contract
4. It is admitted that at all material times the Defendant is the registered keeper of the vehicle which is the subject of these proceedings. The vehicle is insured and more than one driver is permitted to use it.

4.1. In the sparse information provided to the Defendant, the car appears to be parked on public highway adjacent to shops, not in any private car park.

4.2. No indication was provided as evidence to support the Claimant's contractual authority to operate at this specific location. The Defendant avers that the business model utilised at this site is predatory, punitive, unauthorised by the landowner and operates contrary to the IPC Code of Practice.

4.3 It is averred that the Claimant is not the landowner and therefore lacks any cause of action. If it is alleged that a trespass had occurred then the remedy available for that tort (which is denied) is in the gift of the landowner alone, to seek damages.

4.4 It was confirmed by the Supreme Court that ParkingEye Ltd could only recover the £85 parking charge which more than covered all costs of the automated business model of a parking firm and was heavily weighted for profit. It was held that a parking firm not in possession could not recover any sum at all in damages, but the Supreme Court were willing to impose a penalty as allowable only in the unique context of that particular retail site of commercial value. In that case, the signs were 'very prominent' and clear - both upon entry to the site and throughout - with the parking charge in the largest lettering with a free parking licence being offered and accepted under contract, giving rise to a sum being payable by patrons who overstayed.

4.4.1. Conversely, in the present case there was no agreed contract. It is apparent to the Defendant that a driver would not have had a fair chance to read the very small terms on a sign at this location, where advertising posters and large lettering on the shop-front boards (none of which require a driver to stop and read them) completely dwarf the Claimant's sign.

4.4.2. Such is the density and complexity of the text on the sign that the most onerous term – the parking charge – is buried amongst a mass of small print. There are no signs adjacent to the kerb and no prominent terms facing a driver when parking, to alert them to any contract. This location fails to meet the “Red Hand Rule”, as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3.

4.5 It is the Defendant's belief that even if the WYPE sign was considered readable from a car parking at the kerbside at the material time, the terms are prohibitive. The wording is at best - if readable and prominent - capable of forming a contract with permit-holders only, because all others are forbidden to park and threatened with an unrecoverable penalty. Unlike in the Beavis case where a free licence to park was offered, then breached, in this case no consideration, no contractual parking licence (nor any offer at all of anything of value to a driver) was extended to non-permit holders.


Absence of 'registered keeper liability'
5. The Claimant has provided no evidence (in pre-action correspondence or otherwise) to identify the driver. The balance of probabilities is not tipped in the Claimant's favour, given the fact that more than one person drives this car. 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 Freedoms Act 2012 ("the POFA").

5.1 If seeking to rely on the keeper liability provisions of Schedule 4 of the POFA, the Claimant must demonstrate that:
5.1.1. there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
5.1.2. that this Claimant has established itself as the offeror and creditor; and
5.1.3. 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.

5.2. To the extent that the Claimant may seek to allege that any such presumption do exist, 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 the POFA, which makes no such provision.


The sum claimed is a penalty - an attempt at 'triple recovery'
6. The Claimant has at no time provided an explanation how the ‘parking charge’ has been calculated, the conduct that gave rise to it or how the amount has been inflated from £90 to over £300. This appears to be an attempt at more than 'triple recovery', which the POFA specifically disallows.

6.1. Schedule 4 of the POFA, Paragraph 4(5), states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper (a document which the Defendant avers was never received, but cannot have exceeded £90, if the Claimant is relying upon the sign in the photograph provided). The clear intention of Parliament was that parking charges on private land be capped at the (already inflated to include profit) sum on the Notices, with double or triple recovery being specifically disallowed.

6.2. The Defendant has the reasonable belief that the Claimant has not incurred such exorbitant costs to pursue an alleged £90 debt. Notwithstanding the Defendant's belief, the costs are in any case not recoverable. No indemnity costs or damages have been incurred, nor were any debt collection 'fees' paid by this Claimant, and nor were such sums specified in prominent lettering on any sign at the point of the driver parking. It is averred that the sum claimed is invented out of thin air as part of the Claimant's solicitors' robo-claim model.


Wholly unreasonable and vexatious claim
7. It is submitted that the conduct of the Claimant in operating a predatory model with what appears to be deliberately scarce signage, then intimidating the Defendant with misleading threats in the pre-action stage before pursuing this claim, is wholly unreasonable and vexatious.

7.1. 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 on an indemnity basis, pursuant to Civil Procedure Rule 27.14(2)(g).

8. The Defendant denies the claim in its entirety, voiding any liability to the Claimant for all amounts. 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.

9. In the alternative, 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:

Coupon-mad

Although you said that it may be better defending it as the driver, can I please ask why is defending it as the driver better? Does it give me any additional arguments?

Makes you a more honest witness in front of the Judge. If you were the driver and you honestly say so, then you are the only person in the room with first hand knowledge of the signs, the visibility/weather and all the busy posters & signs on the shopfront, none of which would any circumspect driver stopping at an unmarked kerb, reasonably expect to have to read.

And, what's the point of putting them to proof of keeper liability if they did issue a PCN and then did post a NTK?

UKCPM's version of a NTK is fairly compliant, certainly good enough for a Judge to want you to move on.

Bottom line, this case won't be won on 'no keeper liability' so why cloud the defence with that tangent?

logician

WBM wrote: »

1 UK Car Park Management har Particulars of Claim and asks leave to amend the Defence.
>
>
>

8. UK Car Park Management Ltd is not the lawful occupier of the land. I have the reasonable belief that they do 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.

WBM wrote: »

IN THE COUNTY COURT BUSINESS CENTRE
CLAIM No. DXXXXXXX
BETWEEN
WY Parking Enforcement Limited (CLAIMANT)

-and-

xxxxx xxxxxxxx (DEFENDANT)

________

DEFENCE
________

1. The Defendant denies that the Claimant is entitled to the relief claimed, or any amount at all.

Preliminary
2. The Claimant 'WYPE' has failed to comply with the requirements of Civil Procedure Rule 16.4. It
2.1.1. The Claimant's solicitors merely sent a photograph of the car and a very small, illegible WYPE sign with much larger advertisement signs near it, and no other details, copies of letters, facts or evidence.

@WBM - You appear to be copying and pasting defences - however in your drafts so far you have stated two separate parking companies.

So is the Claimant UKCPM or WY Parking Enforcement. ...

WBM

Okay coupon-mad I understand I'll remove point 5 completely then. I hope the rest of it seems fine.

Thanks again!

WBM

Hi Logician, i never said it was UKCPM. Although im not correcting some of these things to avoid identification just in case Gladstone view these forums. I am correcting it in my own draft though.

logician

WBM wrote: »

Hi Logician, i never said it was UKCPM. Although im not correcting some of these things to avoid identification just in case Gladstone view these forums. I am correcting it in my own draft though.

Hi WBM - you mentioned two separate parking companies and posters have already drafted responses on the basis of information you have provided.

if you want the regulars to assist you to the best of their ability then the parking company is really needed.

Other parking companies including many as IPC members are non compliant with POFA

Coupon-mad

WBM wrote: »

I never said it was UKCPM.

Yes you did, in your draft you had UKCPM, which is why I re-wrote the defence for you with:

UK Car Park Management Ltd (CLAIMANT)

at the top...and you didn't tell me that was not the case. You do NOT need to hide which PPC it is, from us here.

I hope the rest of it seems fine.

No idea because I can't tell if you are now using my draft, or yours, or a mix of the two. Show us what you now have as your defence, showing the right parking firm please. Stop trying to hide the PPC.

I even told you that UKCPM use reasonably POFA compliant NTKs and you didn't tell me 'your' Claimant firm isn't UKCPM, so the conversation about the POFA/keeper liability was all but pointless.

Forget your first draft which was too long & repetitive.

WBM

Apologies I just saw it! That's my bad I was searching for UKCPM and couldn't find anything with that name in my post. Sorry the reason I wasn't correcting the PCC name was based on the numerous posts about people saying take down the information that they were putting up so you cannot be identified by the solicitors (I wasn't sure to what extent this was to), also I didn't realise it was an important factor for the defence itself since it matched what you were saying about both PCCs.

However, as you're all saying that identifying the PPC is not a concern I apologies for confusing matters. The Parking company is WY Parking Enforcement Limited.

I have incorporated mainly what you said, added the bits you advised and removed the section about Keeper (previous section 5).

I have listed the defence below:

IN THE COUNTY COURT BUSINESS CENTRE
CLAIM No. DXXXXXXX
BETWEEN
WY Parking Enforcement Limited (CLAIMANT)

-and-

xxxxx xxxxxxxx (DEFENDANT)

________

DEFENCE
________

1. The Defendant denies that the Claimant is entitled to the relief claimed, or any amount at all.

Preliminary
2. The Claimant 'WYPE' has failed to comply with the requirements of Civil Procedure Rule 16.4. Its sparse Particulars do not disclose any cause of action which could give rise to a claim, and their single-page Letter Before Claim was no more than an aggressive demand, designed to intimidate and mislead the defendant, rather than narrow the issues or provide any specific detail.

2.1. Despite the Defendant requesting this information in pre-action communication, this Claimant has failed to set out the basis of the claim - trespass or contractual breach? It has not specified how the sum sought represents any fee, charge, costs or damages incurred - nor evidenced that any contract existed or was breached - hence the Defendant is having to attempt to cover all possibilities, with no fair opportunity to make an informed response.

2.1.1. The Claimant's solicitors merely sent a photograph of the car and a very small, illegible WYPE sign with much larger advertisement signs near it, and no other details, copies of letters, facts or evidence.

2.1.2. The Particulars of Claim (POC) fail to meet the requirements of Practice Direction 16 7.5. The POC are incoherent, make no sense, and do not disclose any legally recognisable claim against the Defendant.

2.1.3. The POC contain no facts and are not clear and concise as required by CPR 16.4 (a). The Claimants are serial issuers of generic claims like this 'roboclaim’ given away in this case by typical, generic lack of detail. The Claimant has repeated the date 15/10/2016 (as if there were two charges on the same day, which is denied), cannot say if it is pursuing the Defendant as keeper or driver, and has not elaborated on the alleged 'breach of terms'. The Claimant claims an unsubstantiated £300 for ''Parking Charges/Damages'' despite the fact parking charges cannot be claimed as damages except by a landowner as a remedy for trespass, and cites ''indemnity costs if applicable'' whatever that is supposed to mean, bearing in mind the Claimant previously alleged this was about a single £90 charge.

2.1.4. Practice Direction 3A refering Civil Procedure Rule 3.4 illustrates this:
‘1.4 The following are examples of cases where the court may conclude that particulars of claim (whether contained in a claim form or filed separately) fall within rule 3.4(2)(a):
- those which set out no facts indicating what the claim is about, for example ‘Money owed £5000’,
- those which are incoherent and make no sense,
- those which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable claim against the defendant.'


ParkingEye Ltd v Beavis is distinguished
3. ParkingEye Ltd v Beavis [2015] UKSC 67 is fully distinguished from this claim, due to the completely different facts, including but not limited to:
i) There was no parking licence or offer, no consideration flowed and there was no contract capable of being breached.
ii) The Claimant did not follow the effectively binding IPC Code of Practice.
iii) The sum claimed is extortionate, and the predatory business model is punitive unconscionable.
iv) The Claimant has no standing or authority from the landowner.
v) There is no comparable legitimate interest or commercial justification to disengage the penalty rule.


Background - no contract
4. It is admitted that at all material times the Defendant is the registered keeper of the vehicle which is the subject of these proceedings. The vehicle is insured and more than one driver is permitted to use it.

4.1. In the sparse information provided to the Defendant, the car appears to be parked on public highway adjacent to shops, not in any private car park.

4.2. No indication was provided as evidence to support the Claimant's contractual authority to operate at this specific location. The Defendant avers that the business model utilised at this site is predatory, punitive, unauthorised by the landowner and operates contrary to the IPC Code of Practice.

4.3 It is averred that the Claimant is not the landowner and therefore lacks any cause of action. If it is alleged that a trespass had occurred then the remedy available for that tort (which is denied) is in the gift of the landowner alone, to seek damages.

4.4 It was confirmed by the Supreme Court that ParkingEye Ltd could only recover the £85 parking charge which more than covered all costs of the automated business model of a parking firm and was heavily weighted for profit. It was held that a parking firm not in possession could not recover any sum at all in damages, but the Supreme Court were willing to impose a penalty as allowable only in the unique context of that particular retail site of commercial value. In that case, the signs were 'very prominent' and clear - both upon entry to the site and throughout - with the parking charge in the largest lettering with a free parking licence being offered and accepted under contract, giving rise to a sum being payable by patrons who overstayed.

4.4.1. Conversely, in the present case there was no agreed contract. It is apparent to the Defendant that a driver would not have had a fair chance to read the very small terms on a sign at this location, where advertising posters and large lettering on the shop-front boards (none of which require a driver to stop and read them) completely dwarf the Claimant's sign.

4.4.2. Such is the density and complexity of the text on the sign that the most onerous term – the parking charge – is buried amongst a mass of small print. There are no signs adjacent to the kerb and no prominent terms facing a driver when parking, to alert them to any contract. This location fails to meet the “Red Hand Rule”, as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3.

4.5 It is the Defendant's belief that even if the WYPE sign was considered readable from a car parking at the kerbside at the material time, the terms are prohibitive. The wording is at best - if readable and prominent - capable of forming a contract with permit-holders only, because all others are forbidden to park and threatened with an unrecoverable penalty. Unlike in the Beavis case where a free licence to park was offered, then breached, in this case no consideration, no contractual parking licence (nor any offer at all of anything of value to a driver) was extended to non-permit holders.


The sum claimed is a penalty - an attempt at 'triple recovery'
5. The Claimant has at no time provided an explanation how the ‘parking charge’ has been calculated, the conduct that gave rise to it or how the amount has been inflated from £90 to over £300. This appears to be an attempt at more than 'triple recovery', which the POFA specifically disallows.

5.1. Schedule 4 of the POFA, Paragraph 4(5), states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper (a document which the Defendant avers was never received, but cannot have exceeded £90, if the Claimant is relying upon the sign in the photograph provided). The clear intention of Parliament was that parking charges on private land be capped at the (already inflated to include profit) sum on the Notices, with double or triple recovery being specifically disallowed.

5.2. The Defendant has the reasonable belief that the Claimant has not incurred such exorbitant costs to pursue an alleged £90 debt. Notwithstanding the Defendant's belief, the costs are in any case not recoverable. No indemnity costs or damages have been incurred, nor were any debt collection 'fees' paid by this Claimant, and nor were such sums specified in prominent lettering on any sign at the point of the driver parking. It is averred that the sum claimed is invented out of thin air as part of the Claimant's solicitors' robo-claim model.


Wholly unreasonable and vexatious claim
6. It is submitted that the conduct of the Claimant in operating a predatory model with what appears to be deliberately scarce signage, then intimidating the Defendant with misleading threats in the pre-action stage before pursuing this claim, is wholly unreasonable and vexatious.

6.1. 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 on an indemnity basis, pursuant to Civil Procedure Rule 27.14(2)(g).

7. The Defendant denies the claim in its entirety, voiding any liability to the Claimant for all amounts. 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.

8. In the alternative, 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: