Gladstone - Claim Form Received

beamerguy

everest95

Take notice of bargepole and soon coupon-mad
will be along to assist

everest95

Hi all,
Many thanks for the advice so far. After reading the newbie thread and numerous other threads, I acknowledged the AOS (within 14 days) and have finally come up with my defence statement. I admit it is heavily based on a similar case on another thread. I have now only a few days left to finalise and submit the statement . So I would be most grateful if experienced members of the forum can kindly review my statement and advise corrections :

.......................................................................
IN THE COUNTY COURT

CLAIM No: CXXXXXX

BETWEEN:

PARKING CONTROL MANAGEMENT (UK) LTD (Claimant)

-and-

xxxxxxxxxxxxxx (Defendant)

DEFENCE STATEMENT

Introduction

1. I am xxx, the defendant in this matter. My address for service is xxxx

2. It is admitted that at the time of the alleged infringement I was the registered keeper of vehicle registration mark ****** which is the subject of these proceedings.

3. As an unrepresented litigant-in-person I seek the Court's permission to amend and supplement this defence as may be required upon disclosure of the claimant's case.

4. It is believed that it will be a matter of common ground that the purported debt arose as the result of the issue of a parking charge notice in relation to an alleged breach of the terms and conditions by the driver of the above vehicle when it was on xxxxxxxxxxxxxxxxxxx, on xx/xx/xx.

5. 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.

6. I believe HMCTS have identified over 1000 similar poorly produced claims. I believe the term 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. 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.

Purported Basis of Claim

7. Further based upon the scant and deficient details contained in the Particulars of Claim and correspondence, it appears to be the claimant's case that:
7.1. There was a contract formed by the defendant and the claimant on xx/xx/xx.
7.2. There was an agreement to pay a sum or parking charge
7.3. That there were Terms and Conditions prominently displayed around the site
7.4. That in addition to the Parking charge there was an agreement to pay additional but unspecified additional sums.
7.5. The claimant company fully complied with their obligations within the terms of Schedule 4 of the Protection of Freedoms Act 2012.
7.6. The claimant company fully complied with their obligations within the International Parking Community Code of Practice of which they were member at the time.
7.7. Further that the defendant has not paid the alleged debt.

Rebuttal of Claim

8. It is denied that:
8.1. A contract was formed
8.2. There was an agreement to pay a parking charge.
8.3. That there were Terms and Conditions prominently displayed around the site.
8.4. That in addition to the Parking charge there was an agreement to pay additional and unspecified additional sums.
8.5. The claimant company fully complied with their obligations within the terms of Schedule 4 of the Protection of Freedoms Act 2012.
8.6. The claimant company fully complied with their obligations within the International Parking Community Code of Practice of which they were member at the time.
8.7. That I am liable for the purported debt.

9. It is further denied that the defendant owes any debt to the claimant or that any debt (“parking charges” or “indemnity costs” or whatever they may be) is in fact owed or that any debt exists in its entirety or could ever exist or has ever existed. That in any event the claimant has failed to comply fully with the requirements of the Civil Procedure Rules and that their claim is both unfounded and vexatious.

10. The claimant is put to the strictest proof of their assertions.

11. The Claimant has sent threatening and misleading demands which stated that further debt recovery action would be taken to recover what is owed by passing the debt to a recovery agent (which suggested to the Defendant they would be calling round like bailiffs) adding further unexplained charges with no evidence of how these extra charges have been calculated.

12. The Defendant also disputes that the Claimant has incurred £50 solicitor costs.

13. The Defendant has the reasonable belief that the Claimant has not incurred £50 costs to pursue an alleged £100 debt.

14. Not withstanding the Defendant's belief, the costs are in any case not recoverable.

15. The Claimant described the charge of £50.00 "legal representative’s costs" not "contractual costs". CPR 27.14 does not permit these to be recovered in the Small Claims Court.

16. I am yet to have knowledge of all documents provided to the court in support of the application, despite sending a CPR 31.14 request to the claimant's solicitors on xx/xx/2017. Accordingly, it is denied that the Claimant has authority to bring this claim. The proper Claimant (if any debt exists, which is denied) would be the landowner. Strict proof is required that there is a chain of contracts leading from the landowner to PARKING CONTROL MANAGEMENT (UK) LIMITED, and no proof has been provided.

17. In the pre court stage the Claimant’s solicitor refused to provide me with all the necessary information I requested in order to defend myself against the alleged debt.

18. They did not send me a Letter before Action that complied with the Practice direction on pre-action conduct. The Letter before Action can be seen to miss the following information
18.1. A clear summary of facts on which the claim is based.
18.2. A list of the relevant documents on which their client intends to rely.
18.3. How the “charge amount” of 160 pounds has been calculated and justified.
18.4. Any form of possible negotiation or ADR offered.

19. The defendant wrote to the claimant’s solicitors on xx/xx/2017 & xx/xx/2017 asking for:
19.1. Full particulars of the parking charges
19.2. A full copy of the contract with the landholder that demonstrated that PARKING CONTROL MANAGEMENT (UK) LIMITED had their authority.
19.3. If the charges were based on damages for breach of contract and if so to provide justification of this sum.
19.4. Explanation of the additional £60 charge
19.5. To confirm if the claimant is claiming against the defendant as the vehicle’s registered keeper or as the driver.
20. The claimant has not responded fully with any of the above information.

21. As Gladstones are a firm of solicitors who’s Directors also run the IPC Trade Body and deal with private parking issues every single day of the week there can be no excuse for these omissions.

22. The Defendant asks that the court orders Further and Better Particulars of Claim and asks leave to amend the Defence.

23. I suggest 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.

24. The claim form itself is vague and lacks pertinent information as to the grounds for the claimant’s case. The particulars of claim fail to meet CPR16.4 and PD16 7.3-7.5 and merely provide a date, location, and an "amount" consisting of a completely unsubstantiated and inflated three-figure sum, vaguely and incoherently adduced by the claimant's solicitors and demands payment within 14 days. The claim also states "parking charge " which gives no indication of on what basis the claim is brought, for example whether this charge is founded upon an allegation of trespass or 'breach of contract' or contractual 'unpaid fees'. Because of this, I have had to cover all eventualities in defending such a 'cut & paste' claim which has caused significant distress and has denied me a fair chance to defend this claim in an informed way. Therefore, as an unrepresented litigant-in-person I respectfully ask that I be permitted to amend and or supplement this interim defence as may be required following a fuller disclosure of the Claimant's case.

25. The alleged debt as described in the claim are unenforceable penalties, being just the sort of unconscionable charges exposed as offending against the penalty rule, in ParkingEye Ltd v Beavis.

26. This case can be easily distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes. Charges cannot exist merely to punish drivers. This claimant has failed to show any comparable 'legitimate interest' to save their charge from Lord Dunedin's four tests for a penalty, which the Supreme Court Judges found was still adequate in less complex cases, such as this allegation.

27. It is submitted that (apart from properly incurred court fees) any added legal fees/costs are simply numbers made up out of thin air, and are an attempt at double recovery by the Claimant, which would not be recoverable in the small claims court.

28. It is denied that there was any 'relevant obligation' or 'relevant contract' relating to any single parking event.

29. The Claimant or the Claimant’s representatives, Gladstones, have artificially inflated the value of the Claim from £100 to £160. I submit the added costs have not actually been incurred by the Claimant; these are figures plucked out of thin air and applied regardless of facts, as part of their robo-claim litigation model, in an attempt at double recovery, circumventing the Small Claims costs rules. Further, Gladstones appear to be in contravention of the Solicitors’ Regulation Authority Code of Conduct by knowingly demanding more monies than they know they can recover.


My Defence

30. My defence will rely principally upon the following points:

31. Failure to set out clear parking terms:

31.1. The signs erected on site are incapable of forming the basis of a contract and indeed make it clear that that is not the case. Further it is trite law that a term that is forbidding cannot also constitute an offer.
31.2. The Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to impose a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.
31.3. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, woefully inadequate.
31.4. At the time of the material events the signage was deficient in number, size, distribution, wording and lighting to reasonably convey a contractual obligation;
31.5. There is inadequate signage at the site entrance..
31.6. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee’s ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and
31.7. The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3
31.8. The signage above the parking bay where the car was photographed, is approximately 4 meters above ground with very small writing, making it illegible. The Code of Practice of the Independent Parking Committee’s ("IPC") Accredited Operators Scheme, an organisation to which the Claimant is a signatory, states that “Text should be of such a size and in a font that can be easily read by a motorist having regard to the likely position of the motorist in relation to the sign”. The signage in the area does not meet this requirement.
31.9. It is therefore denied that the signs used by this claimant could have formed a fair or transparent contract with a driver or was capable of being formed 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:

31.9.1. Sporadic and illegible (charge not prominent nor large lettering) site/entrance signage - breach of the IPC Code of Practice and no contract formed to pay any clearly stated sum.
31.9.2. The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.
31.9.3. 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.
31.9.4. 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.
31.9.6. Absent the elements of a contract, there can be no breach of contract.
31.10. Furthermore, no figure for additional charges was 'agreed' nor could it have formed part of the alleged 'contract' because no such indemnity costs were quantified on the signs. Terms cannot be bolted on later with figures plucked out of thin air, as if they were incorporated into the small print when they were not.

31.11. Should the claimant rely on the case of ParkingEye v Beavis, I wish to point out that there is a test of good faith.
31.11.1. Para 205: “The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.”
31.11.2. Underlining that is Section B.2.1, B.2.2 of the IPC Code of Practice which gives clear instructions as to the placing, visibility and clarity of any signs that are used to form contracts. It says:
31.11.3. 2.1 Where the basis of your parking charges is based in the law of contract it will usually be by way of the driver of a vehicle agreeing to contractual terms identified by signage in and around a controlled zone. It is therefore of fundamental importance that the signage meets the minimum standards under The Code as this underpins the validity of any such charge. Similarly, where charges are founded in the law of trespass and form liquidated damages, these too must be communicated to drivers in the same way.
31.11.4. 2.2 Signs must conform to the requirements as set out in a schedule 1 to the Code
31.12. The defendant refutes that there were clear and visible signs, with Terms that formed the basis of a contact and which met the specifications above.
31.13. Section B.1.1 of the IPC Code of Practice outlines to operators:
31.13.1. 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.
31.14. The Claimant is put to strict proof they have such authority to operate on site and to take action in their own name. The same is a requirement of any contract based on conduct.
31.15. In the case of PCM vs Bull, DJ Glenn dismissed a similar case, commenting on signage that forbids parking other than prescribed, stating “it is impossible to construct out of this in any way, either actually or contingently or conditionally, any permission for anyone to park on the roadway. All this is essentially saying is you must not trespass on the roadway. If you do we are giving ourselves, and we are dressing it up in the form of a contract, the right to charge you a sum of money which really would be damages for trespass, assuming of course that the claimant had any interest in the land in order to proceed in trespass.”
31.16. As PARKING CONTROL MANAGEMENT (UK) LIMITED are not the landowners, merely an agent, and cannot pursue the defendant for trespass.


32. Failure to be compliant with POFA 2012

32.1. The identity of the driver of the vehicle on the date in question has not been ascertained. The Claimant is put to strict proof.
32.1.1. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the keeper in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA")
32.1.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
32.1.3. There was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
32.1.4. That it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
32.1.5. It is not admitted that the Claimant has complied with the relevant statutory requirements.
32.1.6. To the extent that the Claimant may seek to allege that any such presumption 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 POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.

32.2. 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 escalated from £100 to £160. This appears to be an added cost with apparently no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.

32.2.1. Para. 4(5) Schedule 4 Protection of Freedoms Act 2012 which sets out that the maximum amount recoverable from the registered keeper, where the keeper liability provisions have been properly invoked (which is expressly denied in this case) is that amount specified in the Notice to Keeper (whether issued in accordance with paras 8(2)c; 8(2)d, 9(2)c or 9(2)d of the Act).
32.2.2. The driver did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.
32.2.3. The Defendant denies that the driver would have agreed to pay the original demand of £100 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible

32.3. Under the Protection of Freedoms Act 2012, Schedule 4, a registered keeper can only be held liable for the sum on a properly-served Notice to Keeper (NTK). PARKING CONTROL MANAGEMENT (UK) LIMITED do not use fully compliant NTKs, failed to serve one and cannot hold a registered keeper liable.

32.4. The NTK’s sent to the defendant do not contain the duration the vehicle is stated to have been parked, which POFA requires. Furthermore the two NTK’s state different timings, 3 minutes apart, again demonstrating the claimants failure to comply with POFA schedule 4, Paragraph 9 (2) (a) which states that the NTK must “specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates”.

33. No Standing

33.1. PARKING CONTROL MANAGEMENT (UK) LIMITED are 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.

33.2. 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.

33.3. The claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question

33.3.1. 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. No evidence of such authority has been supplied by the Claimant or their legal representatives, even after being request under CPR 31.14, and the Claimant is put to strict proof of same, in the form of an unredacted and contemporaneous contract, or chain of authority, from the landowner to the Claimant. A Managing Agent is not the Landowner.
33.3.2. As a third party agent, the Claimant may not pursue any charge

33.4. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons. It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious. As such, I am keeping a note of my wasted time/costs in dealing with this matter.

34. Wholly unreasonable and vexatious claim

34.1. 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).

34.2. The Defendant respectfully suggests that parking companies using the small claims track as a form of aggressive, automated monetary demands against motorists, alleging 'debts' for parking on free customer parking areas is not something the Courts should be seen to support.

34.3. 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).

35. 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.

36. 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.

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

Signed
Dated xx/xx/xx

Coupon-mad

That is awfully long. Too long. Have a look at a concise defence posted by bargepole, instead.

Remove this for starters, I can't stand seeing this repeated again and again (it adds nothing to repeat their claim!):

Purported Basis of Claim

7. Further based upon the scant and deficient details contained in the Particulars of Claim and correspondence, it appears to be the claimant's case that:
7.1. There was a contract formed by the defendant and the claimant on xx/xx/xx.
7.2. There was an agreement to pay a sum or parking charge
7.3. That there were Terms and Conditions prominently displayed around the site
7.4. That in addition to the Parking charge there was an agreement to pay additional but unspecified additional sums.
7.5. The claimant company fully complied with their obligations within the terms of Schedule 4 of the Protection of Freedoms Act 2012.
7.6. The claimant company fully complied with their obligations within the International Parking Community Code of Practice of which they were member at the time.
7.7. Further that the defendant has not paid the alleged debt.

Rebuttal of Claim

8. It is denied that:
8.1. A contract was formed
8.2. There was an agreement to pay a parking charge.
8.3. That there were Terms and Conditions prominently displayed around the site.
8.4. That in addition to the Parking charge there was an agreement to pay additional and unspecified additional sums.
8.5. The claimant company fully complied with their obligations within the terms of Schedule 4 of the Protection of Freedoms Act 2012.
8.6. The claimant company fully complied with their obligations within the International Parking Community Code of Practice of which they were member at the time.
8.7. That I am liable for the purported debt.

The_Deep

Leaving site tickets were especially mentioned by an MP in the House two days ago as a scam. Also, Gladstones were cited as complicit in these scams and the SRA has been asked to investigate. Complain to your MP and watch this

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

beamerguy

I wonder how the SRA will report back to the MP's ???

It was only last year that the SRA said that Gladstones
and the other lot BWLegal were squeaky clean

Infact they made it very clear that they could not find
any proof that Gladstones were running a scam with the
IPC/IAS

The SRA fobbed us off ...... will they try the same
trick with the MP's

The_Deep

If they did they would be very unwise imo. I wonder how many MPs are members of The Law Society or The Bar Council.

The_Deep

They are claiming for "parking reserved for patrons during opening hours only".

So, outside of opening hours anyone can use the car park. Read this

https://uk.practicallaw.thomsonreuters.com/4-383-2653?transitionType=Default&contextData=(sc.Default)&firstPage=true&bhcp=1

everest95

Hi,

For anyone interested, following are the pics of the parking notice on the site and the two Notice to Keeper letters (i have removed the http:// to be able to post) :

i67.tinypic.com/1zvx6c7.jpg

i65.tinypic.com/8x8zva.jpg

i65.tinypic.com/34ihl6x.jpg

Le_Kirk

Here are your links: -
http://i67.tinypic.com/1zvx6c7.jpg
http://i65.tinypic.com/8x8zva.jpg
http://i65.tinypic.com/34ihl6x.jpg

The_Deep

What a lot of small print, I hope that it is not too high to read.

OP, have you seen this?

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

Gladstones could soon be toast. They were mentioned by at least one MP as being complicit in this scam, and have been reported to the SRA for antisocial and unprofessional behaviour. Their involvement with the IAS and the IPC is also being investigated.

If this gets to court, please bring it to his attention. Please also complain to your MP, the leaving site scan is mentioned in the video, and with a fair wind, we can soon rid ourselves of these parasites.y