Gladstone - Claim Form Received

everest95

Hi,

Thank you again for your feedback. Following is the revised, shorter version of the defence. Please note point 14 re. the Parking CoP Bill - is it ok include ? Also, should I admit about the driver parking and leaving the site and quote "Vehicle Control Services v Ibbotson" for defence (around point 5) ?

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In the County Court
Claim Number: ******************
Between
PARKING CONTROL MANAGEMENT (UK) LTD v ************************

DEFENCE STATEMENT

Preliminary

1. The claimant failed to include a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the Claimants contractual authority to operate there as required by the Claimants Trade Association's Code of Practice B1.1 which says;
!!!8220;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 !!!8216;Creditor!!!8217; 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!!!8217;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.!!!8221;

2. The particulars of claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached. Indeed the particulars of claim are not clear and concise as is required by CPR 16.4 1(a). The Claimants are known to be serial issuers of generic claims similar to this one. HM Courts Service have identified over 1000 similar sparse claims. I believe the term for such behaviour is !!!8216;roboclaims!!!8217; and as such is against the public interest. Practice Direction 3A which references Civil Procedure Rule 3.4 illustrates this point;
!!!8220; 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):
1. those which set out no facts indicating what the claim is about, for example !!!8216;Money owed £5000!!!8217;,
2. those which are incoherent and make no sense,
3. those which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable claim against the defendant !!!8221;

3. The claimant has not provided enough details in the particulars of claim to file a full defence;
3.1. The Claimant has disclosed no cause of action to give rise to any debt.
3.2. The Claimant has stated that a !!!8216;parking charge!!!8217; was incurred.
3.3. The Claimant has given no indication of the nature of the alleged charge in the Particulars of Claim. The Claimant has therefore disclosed no cause of action.
3.4. The Particulars of Claim contains no details and fails to establish a cause of action which would enable the Defendant to prepare a specific defence. It just states !!!8220;parking charges!!!8221; which does not give any indication of on what basis the claim is brought.
There is no information regarding why the charge arose, what the original charge was, what the alleged contract was, nor anything which could be considered a fair exchange of information.
The Particulars of Claim are incompetent in disclosing no cause of action.
3.4.1 On the 20th September 2016 another relevant poorly pleaded private parking charge claim by Gladstones was struck out by District Judge Cross of St Albans County Court without a hearing due to their !!!8216;roboclaim!!!8217; particulars being incoherent, failing to comply with CPR. 16.4 and !!!8216;providing no facts that could give rise to any apparent claim in law.!!!8217;
3.4.2. On the 27th July 2016 DJ Anson sitting at Preston County Court ruled that the very similar parking charge particulars of claim were deficient and failing to meet CPR 16.4 and PD 16 paragraphs 7.3 !!!8211; 7.6. He ordered the Claimant in that case to file new particulars which they failed to do and so the court confirmed that the claim be struck out.

Background

4. It is admitted that at the time of the alleged infringement the Defendant was the registered keeper of vehicle registration mark ****** which is the subject of these proceedings. The vehicle was insured with two named drivers permitted to use it.

5. The identity of the driver of the vehicle on the date in question has not been ascertained. The Claimant is put to strict proof.
5.1. 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")
5.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
5.2.1. There was a !!!8216;relevant obligation!!!8217; either by way of a breach of contract, trespass or other tort; and
5.2.2. 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.
5.3. 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.

6. The defendant wrote to the claimant!!!8217;s solicitors on xx/xx/2017 & xx/xx/2017 asking for:
- an explanation of the cause of action
- whether they are pursuing me as driver or keeper
- whether they are relying on the provisions of Schedule 4 of POFA 2012
- what the details of the claim are; where it is claimed the vehicle was parked, for how long, how the monies being claimed arose and have been calculated
- is the claim for a contractual breach? If so, what is the date of the agreement? The names of the parties to it and provide to me a copy of that contract.
- is the claim for trespass? If so, provide details.
- provide me a copy of the contract with the landowner under which they assert authority to bring the claim, as required by the IPC code of practice section B, clause 1.1 !!!8220;establishing yourself as the creditor!!!8221;
- a plan showing where any signs were displayed
- details of the signs displayed (size of sign, size of font, height at which displayed)
- provide details of the original charge, and detail any interest and administrative or other charges added
- provide a copy of the Information Sheet and the Reply Form
The claimant has not responded fully with any of the above information.

As Gladstones are a firm of solicitors who!!!8217;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.

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

7. 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.
7.1. 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.
7.2. The claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question
7.3 The Claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge

8. The Claimant has at no time provided an explanation how the !!!8216;parking charge!!!8217; 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.
8.1. The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.
8.2. The driver did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.
8.2.1. 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.
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8.3 The NTK!!!8217;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!!!8217;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 !!!8220;specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates!!!8221;.
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Failure to set out clear parking terms

9.1 The signs 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.
9.2 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.
9.3. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, woefully inadequate.
9.3.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;
9.3.2. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee!!!8217;s ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and
9.3.3. 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
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9.4. There are no signs at the entrance at all and no additional signs or notices to alert drivers.
9.5. 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:
9.5.1. 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.
9.5.2. The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.
9.5.3. 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.
9.5.4. 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.
9.5.6. Absent the elements of a contract, there can be no breach of contract.
9.6. 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.
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9.7. Should the claimant rely on the case of ParkingEye v Beavis, I wish to point out that there is a test of good faith.
9.7.1. Para 205: !!!8220;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.!!!8221;
9.7.2. 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:
9.7.3. 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.
9.7.4. 2.2 Signs must conform to the requirements as set out in a schedule 1 to the Code
9.8. 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.
9.9. Section B.1.1 of the IPC Code of Practice outlines to operators:
9.9.1. 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 !!!8220;Creditor!!!8221; 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.
9.10. 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.
9.11. As PARKING CONTROL MANAGEMENT (UK) LIMITED are not the landowners, merely an agent, and cannot pursue the defendant for trespass.
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10. 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.
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.
10.1. The Defendant also disputes that the Claimant has incurred £50 solicitor costs.
10.2. The Defendant has the reasonable belief that the Claimant has not incurred £50 costs to pursue an alleged £100 debt.
10.3. Not withstanding the Defendant's belief, the costs are in any case not recoverable.
10.4. The Claimant described the charge of £50.00 "legal representative!!!8217;s costs" not "contractual costs". CPR 27.14 does not permit these to be recovered in the Small Claims Court.

Wholly unreasonable and vexatious claim

11. 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).

12. 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.

13. 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).

14. The Court is also invited to take Judicial Notice of House of Commons, Friday 2 February 2018 meeting on Parking (Code of Practice) Bill where the MPs highlight these scams of the private parking companies and their solicitors and the Claimant's solicitors, Gladstones were mentioned by at least one MP as being complicit in this scam.

15. 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 in ignoring the defendant is wholly unreasonable. As such, the defendant will keep a note of their wasted time/costs in dealing with this matter.

16. The defendant respectfully requests the court strike out this claim for the reasons stated above, and for similar reasons cited by District Judge Cross of St Albans County Court on 20/09/16 where a similar claim was struck out without a hearing, due to Gladstones' template particulars for a private parking firm being 'incoherent', failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''.

17. 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.

Name -
Signed -
Date -

Coupon-mad

should I admit about the driver parking and leaving the site and quote "Vehicle Control Services v Ibbotson" for defence (around point 5) ?

I say no.

VCS v Ibbotson is old (pre-Beavis) and mentions mitigating loss, which a PPC can fairly easily rebut by showing a 'legitimate interest'.

I think it's better to take advantage of the fact the Claimant will have NO evidence of anyone 'leaving the site' and put them to strict proof.

everest95

Thank you Coupon-mad, I will add that point as well then. If everything else looks alright, I plan to email the defence by tomorrow.

Coupon-mad

What has happened since?

If you have a court date, you'll need to show us your WS and evidence that needs filing beforehand.

everest95

Hi Coupon-mad,

Many thanks for following up on this. Yes indeed we received Notice of Allocation and court date has been fixed for 6 of July. The letter says claimant has until 8 of June to pay court fee or the case will be struck out. But it doesn't mention deadline for submission of witness statement and other documents. Can I assume that it will be 14 days before hearing date or do I need to call the court and ask ?

KeithP

everest95 wrote: »

...it doesn't mention deadline for submission of witness statement and other documents. Can I assume that it will be 14 days before hearing date or do I need to call the court and ask ?

Whilst 14 days is usual, you should not assume that.

Have a look again at your Notice of Allocation.

Does it say "Each party must deliver to every other party and to the court office copies of all documents on which he intends to rely at the hearing no later than 14 days before the hearing"?

Or does it say something different?

everest95

You are correct, it does say exactly that on the second page, point 6 Thanks for pointing that out - don't know how I missed it ! I am preparing witness statement and gathering photographs of the entry, notice, parking bay etc for evidence.

everest95

Hi,
I have pieced together the following Witness Statement. I would be grateful if experts could review and advise on any additions / deletions / revisions :

Witness Statement :

I, ************ of **************************************** am the defendant in this case. I am unrepresented, with no experience of Court procedures. If I do not set out documents in the way that the Claimant may do, I trust the Court will excuse my inexperience.

1. The facts in this statement come from my personal knowledge. Where they are not within my own knowledge there are true to the best of my information and belief.

2. I am not liable to the Claimant for the sum claimed, or any amount at all and this is my Witness Statement in support of my defence as already filed.

3. Whilst I was the Registered Keeper of the vehicle concerned, there is no evidence of the driver.

4. My Defence is repeated.

5. At the time in 2017, the insurance had full comprehensive cover so any other person such as a family member could have driven the vehicle at the time, whom I have no obligation to name to a private parking firm. It remains the burden of the Claimant to prove their case.

6. This unwarranted harassment and baseless litigation has caused me significant alarm and distress, such that I intend to report the claimant to the Information Commissioner for misuse of my data, obtained from the DVLA in 2017.

7. My DVLA data was supplied for the single strict purpose of enquiring who was driving, not for suing me in the hope I will not defend/will have lost the paperwork/will have moved house, or that I will be so scared that I will pay £xxxxxx including the legal insult of interest, for what was apparently an unproven £100 charge, allegedly incurred by another party, if incurred at all.

8. The claimant has failed to properly respond to my request made on xx/xx/2017 by Royal Mail postal service, requesting any documentation and relevant contracts with the land owners that allow the claimant to issue claims upon the landowner's behalf. My request was not auctioned appropriately.

9. The Claimants are known to be serial issuers of generic claims similar to this one. I believe the term for such behaviour is roboclaims and as such is against the public interest.

10. I also dispute that the Claimant has incurred £50 Legal representative's costs to pursue an alleged £100 debt, the costs of which are in any case not recoverable.

11. The claimant described the charge of £50 as 'legal fees' not 'contractual costs', CPR.14 does not permit these to be recoverable in the Small Claims Court.

12. The Claimant has at no time provided an explanation how the sum has been calculated, the conduct that gave rise to it or how the amount has climbed from £100 to £xxx. This is the epitome of a typical robo-claim emanating from what MPs described recently as an 'outrageous scam' (Hansard 2.2.18) industry.

13. Parking Control Management (UK) Ltd is not the lawful occupier of the land. I have 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 this case.

14. Parking Control Management (UK) Ltd 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.

15. The Claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge. I have reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no right to bring action regarding this claim.

16. I would like to point out that according to their parking sign this parking area does not offer a free parking period, so the ParkingEye v Beavis does not apply in this case.

17. The Claimant has no legitimate interest to set the charge. Considering the time of the alleged contravention was out of hours on a Sunday as is shown from the pictures provided to me by the Claimant. There is no legitimate interest that is being protected as there are no businesses operating at the parking area during that time.

18. On the entrance to the carpark there is no visible entrance signage related to parking as mandated by The Independent Parking Committee (IPC) 'Code of Practice' (Exhibit X) of which the Claimant is purportedly a member.

19. The signs displayed at random bays are small, positioned high up on the walls making it difficult to read from the driver's position. The font size of this sign makes it very difficult to be read, even when standing as close as possible (Exhibit X). The video provided in the evidence bundle (Exhibit X) as well as photographs taken from the vehicle (Exhibit X) show this.

20. The parking bay where the car was actually parked does not have sign, The signs on adjacent bays are small and positioned in locations which make them difficult to read and / or notice when in the carpark.

21. The Claimants notices are forbidding with no offer of a contract. (Exhibit X)

22. Whilst any contravention or relevant contract/relevant obligation is denied, if there was a charge at all, it was £100. It is astonishing that they have proceeded this far against a consumer, with no checks being made regarding the sum they are trying to recover, which is made up out of thin air with no basis in law.

23. The Claimant's failure to comply with the Practice Direction and failure to set out clear Particulars of Claim has caused me and my family considerable wasted time and stress, prevented the possible avoidance of litigation, and prevented me from being on an equal footing with the Claimant.

24. These failures and the vexatious nature of this typical cut & paste 'one size fits all' parking charge robo-claim, with no checks being made about the facts to show that the Claimant has any claim in law, cannot be described as 'trivial' and as a result, sanctions should be imposed as per para 41 of Mitchell v. News Group Newspapers Ltd [2013] EWCA Civ 1537, [2014] 1 WLR 795 which is re-iterated in para 24 of Denton v T H White Ltd [2014] EWCA Civ 906.

I believe that the facts stated in this Witness Statement are true.

Coupon-mad

Bump for any comments from others...

everest95

Also, does the 14 days before hearing include the standard 5 days for post ? So does it need to go out 19 days before hearing ?