Defence Statement Needs Beefing Up

NoahUB

Hi guys and gals,
here I am seeking counsel in the unfortunate event of me receiving a MCOL letter initiated by the firm Gladstone solicitors from their client PCC, ‘hounslow enforcement limited’ stating I owe them large sums of money. And I have specifically created a thread as mentioned which was suggested by the newbies thread.

After several days of delving in to many threads and posts the selfless people here have written, I can say I would like to take the opportunity to thank you.

My current standing is as follows, I received many letters prior to an LBCC which I carelessly ignored, my defence statement has been drafted and follows the general outline of many others posted on this forum.

My first reason for defence would be the fact that at the time of the alleged incident there was warehouse units under construction/renovation where debris, paint and materials littered the car park, HEAVILY. To the point where no bay markings were visible, there was no sign to say bays were not in use.

In addition to this I was neither the driver at the time. However the person driving does have their own traders insurance so they are not on my policy but I will not be able to prove another individual was insured on my car.

If this means anything, no yellow pcn sticker was placed on my windscreen at the time of the alleged offence.

I would like to know how to word or highlight in my defence the poor state of the car park without simply ‘putting myself in !!!!!!’ and quite possibly if I have a leg to stand on nothing being placed on my windscreen.

Thanks for your time
Regards N.U

The_Deep

This is an entirely unregulated industry which is scamming the public with inflated claims for alleged breaches of contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors.

Parking Eye, CPM, Smart, and another company have already been named and shamed, as has Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each year). They nearly always lose, and have been reported to the regulatory authority by an M.P.

Hospital car parks and residential complex tickets have been especially mentioned.

The problem has become so rampant that MPs have agreed to enact a Bill to regulate these scammers. Watch the video of the Second Reading in the HofC recently.

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

and complain in the most robust terms to your MP. With a fair wind most of these companies may well be put out of business by Christmas.

Coupon-mad

My first reason for defence would be the fact that at the time of the alleged incident there was warehouse units under construction/renovation where debris, paint and materials littered the car park, HEAVILY. To the point where no bay markings were visible, there was no sign to say bays were not in use.

OK search for Gladstones defence Saeed v Plustrade and you should find an example defence already written, about bays being blocked and/or markings obscured.

In addition to this I was neither the driver at the time. However the person driving does have their own traders insurance so they are not on my policy but I will not be able to prove another individual was insured on my car.

You don't have to prove you were not the driver, you can simply state it as fact and of course, point out that the Notice to Keeper they posted to you was not compliant with the POFA so cannot hold a registered keeper liable.

Are you defending it as an individual keeper, or is the Defendant named as your company?

NoahUB

Coupon-mad wrote: »

OK search for Gladstones defence Saeed v Plustrade and you should find an example defence already written, about bays being blocked and/or markings obscured.

You don't have to prove you were not the driver, you can simply state it as fact and of course, point out that the Notice to Keeper they posted to you was not compliant with the POFA so cannot hold a registered keeper liable.

Are you defending it as an individual keeper, or is the Defendant named as your company?

So I can find several threads with the case cited however no draft letter including it, I have read through the case and it mentions the reduction of spaces as oppose to blocking bays, do correct me if I am wrong.

I shall definitely quote the POFA 2012 regulation, I also shall be defending as a Individual keeper.

Coupon-mad

it mentions the reduction of spaces as oppose to blocking bays, do correct me if I am wrong.

Similarities surely? You can argue that case has application, do you not agree?

Try instead, just reading any Gladstones threads. Find a defence and copy and adapt it.

NoahUB

Technically yes, as there was a misconfiguration of the car park at that time. It!!!8217;s ridiculous as to how many cases are opened initiated by these useless organisations.

I!!!8217;ll be posting it off this week, for some strange reason I!!!8217;m really excited.
Thanks for your help!

Lamilad

ll be posting it off this week, for some strange reason I!!!8217;m really excited.
Thanks for your help!

Posting what off? Have you written a defence? If so, don't you think you should post it here for review before submitting?

Coupon-mad

You are not posting anything snail mail.

Read plenty of other current claims threads in the first 20 pages of the forum. You will see examples that help, and the email address to send the signed/dated defence to, as a PDF attachment.

We assume you have read the NEWBIES thread post #2 and done the AOS first, as shown in pictures.

NoahUB

Lamilad wrote: »

Posting what off? Have you written a defence? If so, don't you think you should post it here for review before submitting?

I think I am being a bit of a jack the lad and being too hasty here, my defence letter is as follows. I feel as if I mentioned some similar points twice, do correct me if I am wrong.

cheers guys

IN THE COUNTY COURT
CLAIM NO. XXXXXXXX


XXXXXXXX ENFORCEMENT LIMITED (CLAIMANT)

V

XXXX XXXX (DEFENDANT)



1. It is acknowledged that the defendant, XXXX XXXX, residing at X XXXX XXXX is the registered keeper of the vehicle.

2. It is denied that any "parking charges or indemnity costs" (whatever they might be) as stated on the Particulars of claim are owed and any debt is denied in it's entirety. The date of the alleged incident is XX/XX/2017 as per the particulars of claim. I am perplexed as to why the Claimant waited until now to bring proceedings nearly a year on. 3) The Defendant has prepared the defence on the presumption that the alleged parking contravention is in reference to an occasion whereby the Defendant’s vehicle was parked in an industrial parking space at the mentioned location.

3. The claim form itself is vague and lacks pertinent information as to the grounds for the claimants case. The particulars of claim fail to meet CPR16.4 and PD16 7.3-7.5 and merely provide a date, due date, and an "amount" consisting of a completely unsubstantiated and inflated three-figure sum, vaguely and incoherently adduced by the claimant's solicitors.
The claim also states "parking charges/damages and indemnity costs if applicable" 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.

4. The Defendant disputes that the Claimant has incurred solicitors costs of £XX to prepare the claim. The Defendant refers the Court to the incompetent Particulars of Claim that disclose neither the basis for the claim nor a definite cause of action.

5. The Claimants 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.
HMCTS have identified many similar poorly produced claims and the solicitor's conduct in many of these cases is believed to be currently the subject of an active investigation by the SRA.
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.

6. I am yet to have knowledge of all documents provided to the court in support of the application.

7. The Defendant believes that his personal details have been obtained unlawfully by the Claimant and asks that the Court does not to assist the Claimant to benefit from a wrongdoing.

8. The Defendant has no liability as they are the keeper of the vehicle and the Claimant has failed to comply with the strict provisions of POFA 2012 to hold anyone other than the driver liable for the charges.

a) The driver has not been evidenced on any occasion.

b) There is no presumption in law that the keeper was the driver and nor is the keeper obliged to name the driver to a private parking firm. This was confirmed in the POPLA Annual Report 2015 by the POPLA Lead Adjudicator and the barrister, Henry Gleenslade, when explaining the POFA 2012 principles of ‘keeper liability’ as set out in Schedule 4.

9. In the pre court stage the Claimants solicitor 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
a) A clear summary of facts on which the claim is based.
b) A list of the relevant documents on which your client intends to rely.
c) How the charge amount of XXX pounds has been calculated and justified.
d) Any form of possible negotiation or ADR offered.

10. 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.

11. 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.

12. 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.

13. In the case of Saeed v Plustrade Limited [2001] EWCA Civ 2011 parking restrictions and a change which caused detriment to tenants and their visitors were held to be in breach of the well-known and well established principle that ‘a grantor shall not derogate from his grant’

14. 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.

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 is wholly unreasonable and vexatious.
As such, I am keeping a note of my wasted time/costs in dealing with this matter.

16. It is denied that the signs used by this claimant can have created a fair or transparent contract with a driver 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:
a) Sporadic and illegible (charge not prominent nor large lettering) site/entrance signage - breach of the BPA Code of Practice and no contract formed to pay any clearly stated sum.
b) The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.
c) 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.
d) 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.
e) Absent the elements of a contract, there can be no breach of contract.

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

18. The Defendant denies that the Claimant has the authority to bring a claim. The Claimant does not own the land where the vehicle was parked, nor does he have any interest in the land. He therefore lacks the capacity to offer parking.

a) The Claimant has failed to provide strict proof of a chain of contracts leading from the landowner to the Claimant which show that they have a right to unilaterally remove or interfere with the overriding rights conferred in the Lease.

b) Alternatively, even if a contract could be established, the provision requiring payment of £xxx.xx is an unenforceable penalty clause and an unfair term contrary to the Consumer Rights Act 2015.

19. I request 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''.

Statement of Truth: I confirm that the contents of this statement are true to the best of my knowledge and belief.

SIGNED__________________ DATE_____________

Coupon-mad

Needs a heading: DEFENCE

And changes here; lose the address, but say early on that you were not the driver:

1. It is acknowledged that the Defendant is the registered keeper of the vehicle but it is denied that the Defendant was the driver on the material date.

I would delete #5 and #9

You have two x point 3) and I would delete then second (longer) point #3 entirely and move the first one down as at the moment it's joined into #2 and hidden.


You said this was your main point of defence but you didn't include it! Add it, I suggest it should be just before the Saeed v Plustrade point.

At the time of the alleged incident there was warehouse units under construction/renovation where debris, paint and materials littered the car park, HEAVILY. To the point where no bay markings were visible, there was no sign to say bays were not in use.

NoahUB

Coupon-mad wrote: »

You are not posting anything snail mail.

Read plenty of other current claims threads in the first 20 pages of the forum. You will see examples that help, and the email address to send the signed/dated defence to, as a PDF attachment.

We assume you have read the NEWBIES thread post #2 and done the AOS first, as shown in pictures.

My goodness, I am really jumping the gun. I have submitted my AOS online via the MCOL website, the file with images was extremely helpful!

Right I shall try and find posts regarding email address' to send to, I guess it is not possible to upload your defence letter signed and dated via the MCOL website.

Really appreciate the help, especially in such awful weather :beer: