Gladstones County Court Claim Form

Coupon-mad

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

Haha, OK, as it's WYPE I would actually add point #5 right back in.

WYPE are not renowned for POFA compliance or anything much else good that we've ever seen on forums.

I recall they had a website that called their charges a 'penalty' and only gave people seven days to appeal, when they were in the BPA supposedly working within a CoP that banned the penalty word, and required 28 days for appeals.

WBM

I think I will add point 5 back in. Also I added another fact to point 4.1 regarding details about the time of the parking which was 10pm and that the shops appear to be closed both which may support point 3 regarding comparable legitimate interest or commercial justification to the Beavis case.

4.1. In the sparse information provided to the Defendant, the car appears to be parked at 22:07 on public highway adjacent to closed shops, not in any private car park.

So the final draft is below, Happy New Years!

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 10/09/2016 (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 at 22:07 on public highway adjacent to closed 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

Yes go for it - hope it works for you - Happy New Year!

WBM

Hi Coupon-Mad,

I have emailed my defence and I wanted to thank you for all your help and support! I really appreciate it! Hopefully Gladstones will pull out from going to court (fingers crossed) and this can finally end.

Thanks again

Coupon-mad

It doesn't happen that quickly, and a defence is not your only job. This process doesn't just stop this early on.

Please don't come back asking about Gladstones tedious letter & N159, spare us, read this:

https://forums.moneysavingexpert.com/discussion/comment/73579695#Comment_73579695

See you at WS stage in the Spring, not at DQ stage which never needs discussion, as it's fully covered in the NEWBIES thread.

WBM

Wow Coupon-mad you really called it!

I have received a letter from the court saying my court date is on the 5th of June. I was reading the Newbie thread and would like to list what I need to do now, if you don't mind having a look and correcting me where I might be going astray please.

I know I will need to send my witness statement 2 weeks prior to the trial date. Although, is the witness statement the exact thing I already sent? I.e. the piece we wrote above, so I would just need to send that again?

So all in all I will be including a copy of:
1) The Witness Statement.
2) a copy of Schedule 4 of the POFA.
3) a copy of Henry Greenslade's wording from the POPLA Annual Report 2015 'Understanding Keeper Liability'.
4) a copy of the Beavis case sign as a comparison to show how awful the small print sign was in my case.
5) I was looking to include pictures that Gladstones sent me showing my car parked there and how small the sign looks surrounded by other larger signs.

Is there anything else that I would need to get or send? Do I need to print out the actual full Beavis case?

Any help would be really appreciated thank again!

KeithP

You need to write your Witness Statement.
The 'piece' you wrote before, in post #23, was your Defence.

You need to now re-read post #2 of the NEWBIES FAQ sticky thread were there is a lot of guidance on what a Witness Statement should be.

WBM

Hi KeithP, thank you for your response. I have been looking at the witness statements in the newbie thread they look like the defence statements to me just state that they are a witness statement and aren't really in sections just one point after another. Other than that I can't tell the difference between the defence and witness statement...I must be missing something.

I see in one of the pepipoo posts that a witness statement is ...''all they are wanting is a statement from a witness (you) plus anyone else that can support what you said in your original defence.'

As I am defending as the keeper of the vehicle is there a difference since im not really saying more than what has already been said?

If you don't mind please pointing me to the right direction so then I can draft up my witness statement incorporating the differences.

Redx

a defence puts the legal arguments and points in why the defendant is not liable for the charge and may point out deficiencies in the claimants POC etc - so from a legal standpoint

a witness statement , from a first party, is not a repeat of the defence points , its telling a story as to how the defendant perceives the case, it may be telling a story on what happened , or other issues that are not legal points as such, but have a bearing on the case

for example , a driver might talk about how dark it was, how no signs were seen , how the pay and display terminal was faulty, how they could not contact anyone , what the bay marking were like (or not) , so stating about events on the day etc

as different as chalk and cheese , and certainly not a rehash of the defence

the defendant is a witness , even if not present , as they are presenting their take on the matter , any third party witnesses may also make statements , ideally supporting the defendants case, on what they witnessed etc

its obvious that a keeper cannot make a WS as if they were the driver, but a keeper may have been WITH the driver on the day, or been told about it, or visited the site since and have their own view on "what happened on the day in question" (without blabbing)

a WS may also mention stuff that is in the claimants WS (AND EVIDENCE) that wasnt in the POC

my advice ?

read the linked witness statements in the NEWBIES FAQ sticky thread , post #2

then find and read between 10 and 20 ongoing court case threads that have a WS being discussed and honed and try to find one you can adapt

this is a self help forum, we tell you what to do and why , you go find , research , draft , and post for further critique

how you can think a defence and a WS are the same item is beyond me though

good luck

Coupon-mad

The main differences, as Redx says, are this is in the first person and it accompanies & explains the relevance of your evidence.