Draft Defence -Help please with Gladestones claim

KeithP

Androsian wrote: »

Dear All
I just have a quick question before I post my DQ today.
The cover letter with Gladestone DQ say that they intend to request a special direction that the case be dealt with on the papers and without the need for an oral hearing.
I also note that for question D1 they have 'Pursuant to PD27 (2.4) see request for special direction and N159.If the defendant does not consent-Claimant's home court'

I have requested my local county court but how do I stop the case being dealt with on the papers and get a oral hearing??

Thanks

Why aren't you following the guidance in post #2 of the NEWBIES thread?

Those questions are asked almost every day and the answer is in Bargepole's walkthrough linked from post #2 of the NEWBIES thread.

The actual words to put in the D1 box on your form are there to copy. No thinking needed.

Androsian

Thank you for pointing this out KeithP. I've realised that I looked a shorted version of the advice here:
and can now see that my question has been answered further down another thread.

Androsian

Thank you for your help with this.
I would be grateful if I could have some feedback on my witness statement before I file it with the court and claimant next week.


I am the Defendant in this matter, 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.
In this Witness statement, the facts and matters stated are true and within my own knowledge, except where indicated otherwise.

This matter relates to a pay and display parking lot on the xxxxxxx. Whilst I was the Registered Keeper of the vehicle concerned at that time, there is no evidence of the driver provided and at that time more than one adult had access to this vehicle and was covered on the insurance.

Having not heard about this matter before, I received a letter before claim dated October 2nd. After researching I found that this letter breached the requirements of the Practice Direction - Pre-Action Conduct (paragraphs 6(a) and 6(c)) and the new Pre-Action Protocol for Debt Claims (paragraphs 3.1(a)-(d), 5.1 and 5.2. I requested further details in my letter Dated October 27th.

(see attached
Letter before claim
letter dated October 27th
proof of postage)

3. I then received a letter dated November 5th which contained only a paper version of the reply form and none of the information requested in my letter.

(see attached letter from solicitors dated November 5th.

4. I wrote to then again requesting that the detailed information of the claim be sent in order to consider my position.

(see attached letter to solicitors dated November 25th)

5. I saw an email on 5th January with 2 photos, a parking charge notice to keeper and a document of Frequently Asked questions.
One photo is time stamped xxxxxxxx 14:20 and the other xxxxxx 17:10
The registration of the vehicle in the photos is not clearly seen
The reason given on this PCN was : exceeded maximum stay period.
The claimant did not send any evidence of exceeded the maximum stay period. The PCN gives parking charge details of duration 02:50. The PCN does not contain any details of what the time period allowance is.

(attached copy of email with attachments)

6. I wrote to the solicitors a third time dated xxxxxx advising them that this was insufficient detail of the claim and in particular there was no evidence of a contract or of a contractual breach.
I asked for details of the signs displayed and the contract with the landowner under which they assert the authority to bring the claim. I did not receive a reply to this letter.

(see attached letter dated xxxxxx and proof of postage)

7. I was not sure how to proceed after not getting the information to determine is I was liable for the charges. I referred to the Frequently Asked Questions document sent by the solicitors for further information with regards to the contract. In sections 13 and 14 they claim that that a valid contract is the terms and condition on the sign and that I can go and visit the land to see the signs, they would not be providing a copy prior to the witness statement as quoted below.
(frequently asked document from solicitors attached)

“13. How can I be liable for the charge when I do not believe that I entered a contract?
In the case of ParkingEye v Beavis [2015] it was accepted as an established principle that a valid contract can be made by an offer in the form of the terms and conditions set out on the sign, and accepted by the driver’s actions. By parking in the manner in you did, the charge was properly incurred.

14. Can you provide a copy of the contract?
The contract (i.e. the signs) are on display on the relevant land. You can visit the land to view the contract again. Copies will not be provided prior to our clients witness statements.”


8. I visited the relevant land to view the contract in good faith as I was not provided with one. The signs were small measuring 27.5 x 21.5 inches with lots of small text and displayed at heights of 59 to 94 inches and I couldn't see the details of these from inside my car. I came out and took photos of them which I have attached here date stamped. I concluded that there was no case to answer as even if there was a contract formed by these signs they allow parking for 3 hours and the information provided by the claimant as exceeding maximum limit was under this time limit.


9. They issued proceeding against me despite not fully complying with the Pre-Action Protocol for Debt Claims . I will be relying on the cases of Webb Resolutions Ltd v Waller Needham & Green [2012] EWHC 3529 (Ch), Daejan Investments Limited v The Park West Club Limited (Part 20) – Buxton Associates [2003] EWHC 2872, Charles Church Developments Ltd v Stent Foundations Limited & Peter Dann Limited [2007] EWHC 855 in asking the court to impose sanctions on your client and to order a stay of the proceedings, pursuant to paragraphs 13 ,15(b) and (c) and 16 of the Practice Direction, as referred to in paragraph 7.2 of the Protocol.


10. The witness statement and exhibits from the claimant
The sign provided by the claimant- This states ‘2 hours free parking’. However as this is not date stamped this does not service as proof that it was from the time of the alleged incident. If this sign was from the date of the incident why was it not provided to the defendant when requested as a part of the pre-action protocol so allow the defendant to fully consider the claim and if found liable for a charge to deal with the matter in a quick and cost effective manner avoiding the need of wasting the courts time. I argue that information was withheld despite 3 written requests in an attempt to frustrate the defendant into paying inflated charges for something they are not liable for.

The site plan provided by the claimant- This states that there are 13 x 3 hours free parking sign. These leaves the question as to which of the time periods were valid at the time of the incident. Again I would argue that the signs stated ‘3 hours free parking’ when I visited the site as instructed by the claimant and that the claimant has submitted as evidence a site plan at the time of the incident detailing ‘ 3 hours free parking’.

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



Signed xxxxxxxxxxxxxxxx


Dated xxxxxxxxxxx

I will also include
a) a copy of the Beavis case sign as a comparison to show how awful the small print sign was in yours case
(b) photos proving the scarce and illegible small print signs in your case, a view showing the lack of entrance signs, etc.
(d) a copy of Schedule 4 of the POFA - there is a link to it in post #1 above. The Judge will NOT have this to hand & is unlikely to be familiar with it. This is only applicable if you are defending as keeper.
(e) a copy of Henry Greenslade's wording from the POPLA Annual Report 2015 'Understanding Keeper Liability' if defending as keeper.

[Deleted User]

I'd pare that right back.

By all means include a paragraph saying that the claimant failed to provide any information pre-issue, but you don't need a paragraph to deal with each letter - the case doesn't turn on that. All of the correspondence can be bundled into a single exhibit attached to your statement.

Your evidence is basically (a) you don't recall receiving a ticket whilst the driver - be careful if you were - and (b) in relation to your findings when you visited the site recently.

The last paragraph is your best one. The signs you have show 3 hours, even the defendant documents do - save for 1 sign. You contend that the terms were 3 hours. There would be no reason to change the signs. There was no breach if the signs were 3 hours (as even some of the claimant documents suggest) and the undated facsimile of what were said to be the signs at the relevant time is not to be relied upon.

By all means have the Beavis signs to hand and PoFA but those can be supplied during oral argument. If memory serves the Beavis sign was part of the judgment. Your witness statement is at risk of being bogged down in generic guff that won't help you. I can tell you now, that you won't get a stay for failure to comply with the protocol. At best the claimant won't be permitted his court costs and even that's only an argument you might want to raise after losing at trial.

Androsian

Thanks so much for your feedback.
I have taken out the bit about who the driver was. It could have been me, my partner or my sister. I just don’t know. We share one car.


I am the Defendant in this matter, 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.
In this Witness statement, the facts and matters stated are true and within my own knowledge, except where indicated otherwise.


I received a letter before claim dated xxxxx. After researching I found that this letter breached the requirements of the Practice Direction - Pre-Action Conduct (paragraphs 6(a) and 6(c)) and the new Pre-Action Protocol for Debt Claims (paragraphs 3.1(a)-(d), 5.1 and 5.2. I requested further details in my letters dated October x, November x, and January xin order to consider my position. I did not receive all of the information requested specifically there was no evidence of a contract or of a contractual breach provided.They issued proceeding against me despite not fully complying with the Pre-Action Protocol for Debt Claims.

3. I referred to the Frequently Asked Questions document sent by xxxxx solicitors for further information with regards to the contract which advises that I visit the land to see the signs and would not be sent a copy prior to the witness statement. The signs were small measuring 27.5 x 21.5 inches with lots of small text and displayed at heights of 59 to 94 inches and I couldn't see the details of these from inside my car. I came out and took photos of them which I have attached here date stamped. I concluded that there was no case to answer as even if there was a contract formed by these signs they allow parking for 3 hours and the information provided by the claimant as exceeding maximum limit was under this time at 2 hour 50 minutes.

4. The witness statement and exhibits from the claimant
The signs I have show 3 hours, even the claimant documents do - save for 1 sign. I contend that the terms were 3 hours. There would be no reason to change the signs. There was no breach if the signs were 3 hours (as even some of the claimant documents suggest) and the undated facsimile of what were said to be the signs at the relevant time is not to be relied upon.

OR - should I say the above in court and submit the point below in the WS?

The sign- This states ‘2 hours free parking’. However as this is undated and not to be relied upon as evidence from the relevant time.
The site plan provided by the claimant states that there are 13 x 3 hours free parking sign. My photos and the claimants document (except for one sign) support no breach.



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



Signed xxxxxxxxxxxxxxxx


Dated xxxxxxxxxxx

I will also include
a) a copy of the Beavis case sign as a comparison to show how awful the small print sign was in yours case
(b) photos proving the scarce and illegible small print signs in your case, a view showing the lack of entrance signs, etc.
(d) a copy of Schedule 4 of the POFA

Coupon-mad

How come it's taken a year to get near a hearing?

You were talking about a DQ a year ago.

Androsian

It was rescheduled by the courts twice. I was told it was because there was a backlog. I rang last week to find out if it was still going ahead.

Coupon-mad

Can you find the place on Google Streetview and change the date and go back, and back, to see the signs before/after your visit? StreetView can be really useful.

Does it help as evidence? If so, use that too.

I think your WS needs to mention their own site plan supports your defence.

beamerguy

Androsian wrote: »

It was rescheduled by the courts twice. I was told it was because there was a backlog. I rang last week to find out if it was still going ahead.

Not surprised there is a backlog with the amount of timewasting claims issued by the dodgy solicitors with their roboclaims

This site (Mon to Fri) ... as regulars know, shows just how the courts are being bogged down with dodgy claims
https://www.parkingcowboys.co.uk/parking-court-case-daily-listings/

When will the courts wake up to this abuse

Androsian

Thank you very much for your feedback. I am very grateful for this place and the people who give their expertise.
I have amended and I hope that this witness statement is fine for submitting now.

Also, is it mandatory to submit a skeleton argument??




I am the Defendant in this matter, 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. In this Witness statement, the facts and matters stated are true and within my own knowledge, except where indicated otherwise.

Exhibited to this witness statement are a bundle of documents marked A/01. Throughout this statement I will refer to the pages in the bundle.

A/01
Letter before claim from claimant dated xxxx
Letter to claimant xxx
Letter to claimant xxxx
Letter to claimant xxxx
Proof of postage for letters to claimant
Notices
Freqently Asked Questions document from claimant
Photos of signs from relevant site visit
Photo of sign from ParkingEye V Beavis
Site plan provided by claimant
Undated sign from Claimant


3. I received a letter before claim ( copy marked xxxx). After researching I found that this letter breached the requirements of the Practice Direction - Pre-Action Conduct (paragraphs 6(a) and 6(c)) and the new Pre-Action Protocol for Debt Claims (paragraphs 3.1(a)-(d), 5.1 and 5.2. I requested further details in my letters dated October xxx, November xxxx, and January xxxx (copies marked xxxx proof of postage markedxxxx) in order to consider my position. I did not receive all of the information requested specifically there was no evidence of a contract or of a contractual breach provided in their notices (copy marked xxxxx).They issued proceeding against me despite not fully complying with the Pre-Action Protocol for Debt Claims.

3. I referred to the Frequently Asked Questions document sent by xxxx solicitors (copy marked xxxxx) for further information with regards to the contract which advises that I visit the land to see the signs and would not be sent a copy prior to the witness statement. From my car I could see signs allowing for 3 hours free parking. I could not see any details of a penalty charge from inside my car which I noted was different to a sign I saw while doing my research to compare (copy of sign from ParkingEye v Beavis marked xxxx). I came out and took photos of the signs (photos marked xxxxx). The signs were small measuring 27.5 x 21.5 inches with lots of small text and displayed at heights of 59 to 94 inches.
I concluded that there was no case to answer as even if there was a contract formed by these signs they allow parking for 3 hours and the information provided by the claimant as exceeding maximum limit was under this time at 2 hour 50 minutes.

4. The site plan provided by the claimant states that there are 13 x 3 hours free parking sign (marked xxxx). The sign provided by the claimant is undated (marked xxxx) and not to be relied upon as evidence from the relevant time. My photos and the claimants document (except for one sign) support no breach.



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



Signed


Dated