Do I have a valid defence?

The_Deep

Those sigs look very high to me, what does the COP say about this?

Oscar_UK

Thanks for all your help

The claim is dated the 9th. I've acknowledged it already.

Thanks for the tip on previous cases I'll get searching.

I've seen lots of references to signage tests but i can't seam to find the actual wording i.e. The sign must be x by x etc is there such a thing?

Cheers

Oscar_UK

Hi The Deep what is the COP?

nosferatu1001

Code of Practice. Explained in the NEWBIES Thread you must read.

Oscar_UK

Yes, found it!


The COP say's


There must be at least one item from Group 1. But no more than three items from Group 1 should appear before, and more prominently than, text from Group 2.
Group 1


[FONT=GillSans Light,GillSans Light]

[FONT=GillSans Light,GillSans Light]

Pay and display [except/free for blue badge holders]


[x minutes!!!8217;/hour!!!8217;s/hours!!!8217;] free parking [for [business name] customers only]


Pay on exit


Pay [on foot/at machine] when leaving


Parking for [business name] customers only


Permit holders only
[/FONT]

[/FONT][FONT=GillSans Light,GillSans Light][FONT=GillSans Light,GillSans Light] [/FONT][/FONT][FONT=GillSans Light,GillSans Light][FONT=GillSans Light,GillSans Light] [/FONT][/FONT]Group 2


[FONT=GillSans Light,GillSans Light]

[FONT=GillSans Light,GillSans Light]

Charges apply [after this][after x minutes/hours]


Private land


Terms and conditions apply


See the notice [in the car park] for details
[/FONT]

[/FONT]

on the sign there is nothing from group 1 however it does say "No parking in this area" then goes onto mention a parking charge, isn't this a contradiction?

nosferatu1001

Well its not a contradiction

It DOES MEAN there can be no contract. Search for "forbidding".

To have a contract you must offer something, by forbidding there is no offer, therefore no contract.

Oscar_UK

Hi Everyone, this is my defence statement which I've borrowed and adapted to suite my case.


The main points I wanted to put across was the forbidding signs could not have formed a contract and the position of the sign was not prominent.


How am I doing so far?




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;


“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.”

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 behavior is “roboclaims” and as such is against the public interest. Practice Direction 3A which references Civil Procedure Rule 3.4 illustrates this point.
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 ”Money owed “
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.

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 “parking charge” 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 “parking charges” 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 “roboclaim” particulars being incoherent, failing to comply with CPR. 16.4 and “providing no facts that could give rise to any apparent claim in law.”
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, 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 “relevant obligation” 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. 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.
6.1. 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.
6.2. The claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question
6.3 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

7. 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.
7.1. 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.
7.2. The driver did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.
7.2.1. 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.
......................
7.3 The NTK’s sent to the defendant do not contain the duration the vehicle is stated to have been parked, 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”
......................

Failure to set out clear parking terms

8.1 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.
8.2 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.
8.3. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, woefully inadequate.
8.3.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;
8.3.2. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee’s ("IPC") Accredited Operators Scheme, an organization to which the Claimant was a signatory; and
8.3.3. 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
....................
8.4. There are no signs at the entrance at all and no additional signs or notices to alert drivers.
8.5. 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.
8.5.1. 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.
8.5.2. The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.
8.5.3. The signage was lit from above and behind 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.
8.5.4. 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.
8.5.6. Absent the elements of a contract, there can be no breach of contract.
8.6. 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.
........................
8.7. Should the claimant rely on the case of ParkingEye v Beavis, I wish to point out that there is a test of good faith.
8.7.1. 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.”
8.7.2. 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:
8.7.3. 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.
8.7.4. 2.2 Signs must conform to the requirements as set out in a schedule 1 to the Code
8.8. 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.
8.9. Section B.1.1 of the IPC Code of Practice outlines to operators:
8.9.1. 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 “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.
8.10. 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.
8.11. As PARKING CONTROL MANAGEMENT (UK) LIMITED are not the landowners, merely an agent, and cannot pursue the defendant for trespass.
....................
9. 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.
9.1. The Defendant also disputes that the Claimant has incurred £50 solicitor costs.
9.2. The Defendant has the reasonable belief that the Claimant has not incurred £50 costs to pursue an alleged £100 debt.
9.3. Notwithstanding the Defendant's belief, the costs are in any case not recoverable.
9.4. 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.

Wholly unreasonable and vexatious claim

10. 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).

11. 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.

12. 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 centers 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).

13. 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.

14. 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.

15. 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''.

16. 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 -

[Deleted User]

THIS NEEDS A LOT OF PRUNING. Some comments below in red. Probably not exhaustive. It's your defence not mine, so make sure you are happy with the final draft - whatever I say.
________

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

DEFENCE STATEMENTdelete

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).
unless separate Particulars were served, this is not actually required. A better argument is that material details have been omitted such that you don't understand what if any terms have been breached
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;


“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.”
How do you know that the trade association haven't seen the contract - the duty is to provide them with it, not you. The allegation should be that they must have one and you have not seen it or the material details are not addressed in the particulars
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 behavior is “roboclaims” and as such is against the public interest. In my view this adds nothing. Whilst you can be critical of the Claimant for this, it doesn't mean that the claim against you is not valid. Practice Direction 3A which references Civil Procedure Rule 3.4 illustrates this point.
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 ”Money owed “
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.
I would certainly address those points at an oral hearing, but you neither state how these are breached nor say here directly that the court should strike out the particulars

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 “parking charge” 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. T Repetitive. Delete.he Particulars of Claim contains insufficient details and fails to establish a cause of action which would enable the Defendant to prepare a specific defence. It just states “parking charges” 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.Accordingly, the Defendant is prejudiced. The Defendant cannot prepare a full and complete Defence in response to an inadequate and poorly drafted statement of case from the Claimant. The Defendant reserves the right to add to or amend the Defence should the Claimant (a) advance a different case via his witness evidence and/or (b) serve Amended Particulars of Claim. Any additional court fees or other litigation costs - of and occasioned by the amendment - should be borne by the Claimant.
The Particulars of Claim are incompetent in disclosing no cause of action.repetitive, much? Delete.
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 “roboclaim” particulars being incoherent, failing to comply with CPR. 16.4 and “providing no facts that could give rise to any apparent claim in law.”
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, 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.None of that is binding. I would delete it. By all means ask for new Particulars from the Claimant, but this is not concise. The court is aware of its powers.

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 “relevant obligation” 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. PARKING CONTROL MANAGEMENT (UK) LIMITED are not the lawful occupier of the land. The Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name and that they have no rights to bringa legal action on behalf of any third party who may be entitled to pursue a claim
6.1. 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.
6.2. The Claimant ihas suffered no loss whatsoever as a result of a vehicle parking at the location in question
6.3 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 chargedelete. repetition.

7. 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.
7.1. 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.
7.2. The driver did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.
7.2.1. 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.
......................
7.3 The NTK’s sent to the defendant do not contain the duration the vehicle is stated to have been parked, 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”
......................

Failure to set out clear parking terms

8.1 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.
Bear in mind the difficulty in saying this when this is likely to be the contract that you deny having had sight of. Rephrase?
8.2 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.
8.3. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, woefully inadequate.
8.3.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;
8.3.2. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee’s ("IPC") Accredited Operators Scheme, an organization to which the Claimant was a signatory; and
8.3.3. 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
....................
8.4. There are no signs at the entrance at all and no additional signs or notices to alert drivers.
8.5. 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.Repetition. See 8.3.1. above. This is boring and makes your own document look like a "roboclaim" template of its own
8.5.1. 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.
You refer to entrance signs elsewhere. J Spurling deals with bringing onerous terms to consumer attention - referred to elsewhere
8.5.2. The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.
8.5.3. The signage was lit from above and behind 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. was it dark?
8.5.4. 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.
this won't fly
8.5.6. Absent the elements of a contract, there can be no breach of contract.
8.6. 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.
this is emotive speak that adds nothing. It is repetitive of 8.5.2.
........................
8.7. Should the claimant rely on the case of ParkingEye v Beavis, I wish to point out that there is a test of good faith.
8.7.1. 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.”
I'd delete all of this. the Court will be well aware of PE v Beavis and you can argue all of that in your oral submissions
8.7.2. 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:
8.7.3. 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.
8.7.4. 2.2 Signs must conform to the requirements as set out in a schedule 1 to the Code
8.8. 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.
8.9. Section B.1.1 of the IPC Code of Practice outlines to operators:
8.9.1. 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 “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.
8.10. 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.
8.11. As PARKING CONTROL MANAGEMENT (UK) LIMITED are not the landowners, merely an agent, and cannot pursue the defendant for trespass.
Repetition. Much?
....................
9. 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.delete.
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.
9.1. The Defendant also disputes that the Claimant has incurred £50 solicitor costs.The Claimant is put to strict proof by means of hourly rate breakdown and receipted invoice for payment
9.2. The Defendant has the reasonable belief that the Claimant has not incurred £50 costs to pursue an alleged £100 debt.
9.3. Notwithstanding the Defendant's belief, the costs are in any case not recoverable.
9.4. 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.delete

Everything below this line can be deleted. Nothing prejudices your right to costs under CPR 27(1)(g) which are optional. You can ask for these costs once the Court has made an order in your favour.

Wholly unreasonable and vexatious claim

10. 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).

11. 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.

12. 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 centers 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).

13. 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.

14. 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.

15. 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''.

16. 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 -

Oscar_UK

Thanks Johnersh,


I've amended it as you suggested. Please bear with me I am by no means a budding Rumpole of the Bailey. some of the legal argument's I understand others go over my head.


How's it looking now




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

DEFENCE

Preliminary

1. Material details have been omitted from the particulars such that I don't understand what, if any terms have been breached. 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 the material details of this contract are not addressed in the particulars.


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)


I took out the whole paragraph about Practice Direction 3a as I didn!!!8217;t fully understand the argument and thought it may not be relevant to my claim perhaps you can advise


This is the particulars of the claim


The Driver of the vehicle registration !!!8230;!!!8230;!!!8230; (the !!!8216;Vehicle!!!8217;) Incurred the parking charge(s) on !!!8230;!!!8230;!!!8230;.. for breaching the terms of parking on the land at!!!8230;!!!8230;!!!8230;!!!8230;.


The defendant was driving the Vehicle and/or is the Keeper of the Vehicle.


AND THE CLAIMENT CLAIMS £160 for Parking Charges / Damages and Indemnity costs if applicable, together with interest of £11.27 pursuant to s69 of the County Courts Act 1984 at 8% pa, continuing to Judgement at £0.04 per day



3. The claimant has not provided enough details in the particulars of claim to file a full defence.
3.1. The Particulars of Claim contains insufficient 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 for breaching the terms of parking!!!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. Accordingly, the Defendant is prejudiced. The Defendant cannot prepare a full and complete Defence in response to an inadequate and poorly drafted statement of case from the Claimant. The Defendant reserves the right to add to or amend the Defence should the Claimant (a) advance a different case via his witness evidence and/or (b) serve Amended Particulars of Claim. Any additional court fees or other litigation costs - of and occasioned by the amendment - should be borne by the Claimant.

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 !!!8220;relevant obligation!!!8221; 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. PARKING CONTROL MANAGEMENT (UK) LIMITED are not the lawful occupier of the land. The Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name and that they have no rights to bring a legal action onbehalf of any third party who may be entitled to pursue a claim.
6.1. 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.
6.2. The claimant has suffered no loss whatsoever as a result of a vehicle parking at the location in question



7. The Claimant has at no time provided an explanation how the !!!8220;parking charge!!!8221; 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.
7.1. 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.
7.2. The driver did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.
7.2.1. 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.
......................
7.3 The NTK!!!8217;s sent to the defendant do not contain the duration the vehicle is stated to have been parked, 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;
......................

Failure to set out clear parking terms

8.1 The signs on site when eventually found, on close inspection? 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.












8.2 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.
8.3. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, woefully inadequate.
8.3.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;
8.3.2. 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 organization to which the Claimant was a signatory; and
8.3.3. 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
....................
8.4. There are no signs at the entrance at all and no additional signs or notices to alert drivers.
8.5. The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.
8.5.3. The signage was lit from above and behind and in the dark (as it was) any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Unfair


Yes it was dark


Terms in Consumer Contracts Regulations 1999.
8.5.4. Absent the elements of a contract, there can be no breach of contract
8.6. Section B.2.1, B.2.2 of the IPC Code of Practice gives clear instructions as to the placing, visibility and clarity of any signs that are used to form contracts. It says:
8.6.1. !!!8220;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.!!!8221;
8.6.2. !!!8220;2.2 Signs must conform to the requirements as set out in a schedule 1 to the Code !!!8220;
8.7. 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.
8.8. Section B.1.1 of the IPC Code of Practice outlines to operators:
8.8.1. 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. 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.
9.1. The Defendant also disputes that the Claimant has incurred £50 solicitor costs. The Claimant is put to strict proof by means of hourly rate breakdown and receipted invoice for payment.
9.2. The Defendant has the reasonable belief that the Claimant has not incurred £50 costs to pursue an alleged £100 debt.
9.3. Notwithstanding the Defendant's belief, the costs are in any case not recoverable.

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

Name -
Signed -
Date -

KeithP

On 1 October 2015, the Unfair Terms in Consumer Contracts Regulations 1999 were revoked and replaced by the Consumer Rights Act 2015 (CRA). The CRA applies to consumer contracts entered into on or after this date.