CCJ from Gladstones passed to DCBL

mhj03

Quentin wrote: »

No - put it as a part of the initial application

Brilliant, thank you!

nosferatu1001

The "file limit" - is this mentioned anywhere?

Also, How on earth did a PDF of text get so big? You didnt include photos etc did you??

mhj03

nosferatu1001 wrote: »

The "file limit" - is this mentioned anywhere?

Also, How on earth did a PDF of text get so big? You didnt include photos etc did you??

It is, but buried deep on the gov.uk website somewhere... there isn't any mention on the court paperwork about it but then I also don't believe that the option to email is listed on there. I only got that I should email it from a thread on this forum.

The PDF got so big because I signed it and then scanned it in, stupidly not realising I was doing so at 300dpi, so my 5 page defence became a 17mb file. I didn't even think to check the size because it was only a pdf...my mistake

mhj03

Should I at any point in the set aside application form state that I would like the £255 application fee to be refunded, if I'm successful? Or do I just do this at a hearing?

Coupon-mad

Yes, state that, like you see in other set aside threads. Already worded loads of times.

mhj03

Hi all,

Please see below the defence which I attempted to send in previously. This is what I will use in my set aside application form. Any and all comments welcome to help improve my chances.

What else do I need to send alongside this, if anything? Thanks in advance. I have filled in the n244 explaining that I request the judgement to be set aside. Exact wording: The applicant seeks an order to set aside the judgment pursuant to part 13.3(1)(a) of the Civil Procedure Rules on the grounds that the defendant has a real prospect of successfully defending the claim.



In the Northampton County Court Business Centre
Claim No: *********

Parking Control Management (UK) Limited
Claimant
And

************
Defendant


DEFENCE
I received the claim ********* from the Northampton County Court on *********.
Each and every allegation in the Claimant's statement of case is denied unless specifically admitted in this Defence.

1/ This Claimant has not complied with pre-court protocol:

(a) The Claimant's Letter Before Claim did not comply with the Practice Direction – Pre-Action Conduct. The letter headed as Letter Before Claim failed to explain what the claim was, how it had arisen, how the sum allegedly due had been calculated, nor did it provide supporting evidence (all required by paragraphs 6(a), 6(c) and 12 of the Practice Direction). The Defendant responded, informing the Claimant that their Letter Before Claim did not comply and that they wouldn't be able to further respond to the claim until full details were provided.

(b) The Defendant also informed the Claimant's solicitors, in a letter dated 08/08/2017, of a change of address and that all future correspondence should be sent to the new address. This did not happen and a response to the Defendant was sent to a previous address on 12/10/2017, explaining the Claimant's solicitors believed their Letter Before Claim was compliant and that the Defendant has a further 14 day period in which to pay. Again, this letter was sent to the Defendant's old address, giving the defendant no chance to respond within the 14 day period, as mentioned.

2/ The International Parking Community's Code of Practice point 15 'Grace Periods', states in point 15.1: "Drivers should be allowed a sufficient amount of time to park and read any signs so they may make an informed decision as to whether or not to remain on the site." Evidence used against the defendant shows pictures taken over a total time period of four seconds, which is clearly not enough time for the driver to have made the informed decision, as mentioned above.

3/ The driver did not "park” and cannot therefore have accepted any contractual terms offered.!The Defendant denies that the driver parked according to the commonly understood meaning of that word and according to common understanding within POFA; the driver merely drove into the space, stopped to find reverse gear (as they were new to driving the car), and then left. For any contract to have been formed, the driver must have been made aware of the terms and must have been given the opportunity to consider whether or not to accept them. A less than ten second presence on the site clearly indicates that the driver cannot therefore have accepted any contractual terms!that were offered by the Claimant (if any were in fact offered, which is denied).

4/ The Claimant has also failed to comply with the court rules in issuing its claim. The Claim Form contains particulars which are extremely sparse - they divulge no cause of action nor sufficient detail for the Defendant to understand the claim being brought and to respond appropriately. This is in breach of CPR Rule 16.4 and Practice Direction 7E paragraph 5.2. If the claim is based on a contract (which is not clear from the Particulars), then it is also in breach of Practice Direction 16 para 7.3 which requires the contractual terms to be provided with the Particulars of Claim. The Claimant is a speculative serial litigant, issuing a large number of identical, similarly incoherent claims. The Defendant therefore has little idea what the claim is about - how the charge arose, what the terms of any alleged contract were or how they have been breached; whether the claim is for breach of contract or trespass - nothing that could be considered a fair exchange of information.

5/ The Defendant does not know whether the claim is for a breach of contract or for a trespass. If it is for a breach of contract (which is not at all clear from the Particulars of Claim) the Defendant denies that any contract was formed because there is an absence of offer, acceptance and consideration, as set out below.

6/ The Defendant assumes (but does not know) that if the claim concerns a breach of contract, the Claimant will assert that its signage contains the terms of that contract. The Defendant denies that the signage was capable of making an offer, and did not make any offer, which was capable of being accepted. The Defendant relies on the following:

(a) Inadequate site/entrance signage - the wording on the signs did not make any clear offer.
(b) The signage displayed on the Relevant Land at the relevant time was of a size, type and font, and was displayed in such a manner, that it was difficult to read from any distance, was not prominent, nor was it obvious, clear or easily legible to the driver of the vehicle. It was not beholden on the driver to look for signage, but on the Claimant to ensure that signage was so obvious that any reasonable driver would have seen it, understood what it was and been able to read it.
(c) In the alternative, to the extent that any offer was made, the signage was displayed in such a way that any terms were not brought to the driver's attention - in breach of the POFA 2012 Schedule 4 and the IPC compulsory ATA Code of Practice, of which the Claimant is a member, and no contract can have been formed to pay any clearly stated sum.
(d)Any contract which may have been formed (which, for the avoidance of doubt, is denied) is void because its terms are unfair as they were contrary to the UTCCRs (as applicable at the time).
(e) No terms were agreed by the driver
(f) 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.
(g) The sum pursued exceeds £100 and is therefore an unrecoverable penalty.

Absent the elements of a contract, there can be no contract of which the Defendant can have breached.

7/ If it is found that the signage was capable of making an offer, and that it was displayed in an appropriate manner, the Defendant denies that any contract exists because the driver cannot have accepted, and did not accept, the terms offered, because they did not "park” in the ordinary meaning of that word. They simply entered the site and left with a short period of time. In fact, the driver drove into the site looking for a space. When they saw a car reversing from that space, they drove in, tried to find reverse gear (as the car was brand new to them) and then moved away to find another space. For any contract to have been formed, the driver must have been made aware of the terms and must have been given the opportunity to consider whether or not to accept them. Pictures which show a period of less than a five second presence on the site clearly indicates that the driver cannot therefore have accepted any contractual terms offered by the Claimant (if any were in fact offered, which is denied).

8/ The Claimant has no legal standing to bring this claim.
It is unclear whether the Claimant entered into any contract with the landowner to manage the parking which authorised it to issue and pursue payment of charges at this car park and to do so in its own name. The Defendant’s case is that the Claimant has no legal right to bring such a claim in its name which should be in the name of the landowner, and puts it to full proof thereof.

9/ If, on the other hand, the claim arises from a trespass (again, which is not at all clear from the Particulars of Claim) then a third party has no standing as a non-landowner to pursue even nominal damages.

10/ To be liable as the “Keeper” of a vehicle under paragraph 4(1) of Schedule 4 to the Protection of Freedoms Act 2012 (“the Act” and “the Schedule” respectively), paragraph 4(2) of the Schedule clearly states that this is only if each of the four conditions set out in paragraphs 5, 6, 11 and 12 of the Schedule have been complied with. The Claimant has failed to comply with those conditions, as set out below. Having failed to comply with the conditions, there is no legal basis whatsoever to enforce the parking charge against the Defendant as the vehicle’s registered keeper. There is no other basis, at common law or by statute, for the Defendant to be held liable for the parking charges which are the subject matter of this Claim.

11/ The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has:

(a) Failed to disclose any cause of action in the Claim Form issued on 17/11/2017

(b) The vague Particulars of Claim disclose no clear cause of action.

The court is invited to strike out the claim as having no merit and no reasonable prospects of success under CPR Rule 3.4 using its inherent case management powers under Rule 1.4(2)(c) and Practice Direction 26, paragraph 5.1.

12/ Because the Particulars of Claim are so sparse it is difficult for the Defendant (a litigant in person) to file a proper and full defence. For the avoidance of doubt, should this matter proceed then the Defendant puts the Claimant to full proof of every aspect of its claim. The Defendant must also, given the lack of particularisation of the claim, reserve the right to raise further points in his defence, should the Claimant further particularise its claim (for instance, in any witness evidence).

Statement of Truth
The Defendant believes that the facts stated in this Defence are true.

Signed ________________________________

Dated ________________________________

mhj03

Hi everyone. Sorry to post again. Just wondering if anyone had had a chance to look over the post above? I'm aware that it's in my best interests to get my n244 application in ASAP and would just like reassuring that my defence is along the right lines. Thanks!

mhj03

@Coupon-mad I see you have helped people on a lot of similar threads. I was wondering if you have time, whether you would be able to assist me in finalising my n244 application? Hopefully you'll see I've posted my defence above, which was what I had put together and sent to the court via email (which obviously they unfortunately didn't receive. I'm mindful that I need to get the application in ASAP so please let me know if you're unable to look over my case. Thanks

mhj03

Hi all, should have posted this a little while ago. I just wanted to say thank you for all the advice as that Set Aside appeal was successful and then I was also successful in having the claim overturned in a court hearing. The judge ruled that because there are not enough clear markings in the car park to define what is and isn't a space that there was no way for the parking management company to say whether or not someone was indeed parked in a space or not.

beamerguy

mhj03 wrote: »

Hi all, should have posted this a little while ago. I just wanted to say thank you for all the advice as that Set Aside appeal was successful and then I was also successful in having the claim overturned in a court hearing. The judge ruled that because there are not enough clear markings in the car park to define what is and isn't a space that there was no way for the parking management company to say whether or not someone was indeed parked in a space or not.

That is good news. Did you claim all your costs and the
set aside fee ?