CCBC from Gladstone

blue_ice

Hi - Hope someone can help

I have been issued with a County Court Claim Form, Claimant being Link Parking Ltd who are using Gladstone Solicitors. They are claiming a parking charge for breaking the terms of the agreement at my residential address.

It is generally a car free development but vehicles can access all areas, including pickup drop offs, delivery drivers, taxis etc, As a resident with a disability there are parking spaces available for people who are blue badge holders to park their cars. These are not dedicated per flat\household but shared across other disabled residents.

I have checked the terms of my lease and cannot find anything that explicitly supports this, however this is agreed with the concierge staff.

The only reference I could find in my lease is this
"Not to permit any vehicle of any description belonging to the Leaseholder his family servants visitors or licensees to remain on the parking space or any part of the Estate in such manner as to obstruct the ready approach to any part of the Estate"

There is no other mention in the lease about vehicles being allowed to park,
Can I still rely on the above terms in the lease?
What else can I use to support my defense?
Thoughts?

Coupon-mad

As a resident with a disability there are parking spaces available for people who are blue badge holders to park their cars. These are not dedicated per flat\household but shared across other disabled residents.

I have checked the terms of my lease and cannot find anything that explicitly supports this, however this is agreed with the concierge staff.

Get it in writing from the Concierge staff, that they have made a 'reasonable adjustment' for you and your vehicle to park. This is under the disability provisions of the Equality Act 2010. If the Concierge staff won't sign to confirm that, ask for the name of their Manager to write to, in order to get that vital evidence. You have time, because evidence comes LATER, not with your defence (but you WILL need to prove your case on the balance of probabilities so you will need this later).

Your defence must state that you are a Blue Badge holder who has been granted by Concierge staff as a reasonable adjustment under the Equality Act 2010, the right to park your vehicle on the estate, and it was not parked in an obstructive manner.

Plus the usual other defence points - look at the example about primacy of contract for residential car parks, written by Johnersh, it's linked in the NEWBIES thread post #2.

Have you done the AOS, as shown in a simple pictogram link in the NEWBIES thread?

blue_ice

Thanks, Coupan-mad

I have used the AOS so have a little more time,

I have also asked concierge for the letter (they did mention they had prepared one for another disabled resident who subsequently lost the claim, not sure exactly why though)

I have intentionally not included reference to this term in the lease,

Not to permit any vehicle of any description belonging to the Leaseholder his family servants visitors or licensees to remain on the parking space or any part of the Estate in such manner as to obstruct the ready approach to any part of the Estate

do you think this should be included? as the claimant will probably use this to support the claim.

Here is the first draft prepared using the wealth of info available on the forum; any feedback would be greatly appreciated, Thanks again.

Preliminary
1. The Particulars of Claim lack specificity and details sufficient for the Defendant to fully and accurately respond to. The claim references “breaching the terms of parking on the land at XXX” without providing any further information as to exactly what the breach is. The Defendants responses are a best guess as to what this “breach” is referring to. The Defendant is therefore prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.
1.1 The Claimant’s 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. HMCS have identified thousands of similar poorly pleaded claims.
1.2 The Defendant believes 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.

2. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct.
2.1 The Defendant further notes the Claimant's failure to engage in pre-action correspondence in accordance with the pre-action protocol and with the express aim of avoiding contested litigation.

Background
3. It is admitted that at all material times the Defendant is the registered keeper of vehicle in question. The vehicle is a Motability Vehicle; insured with RSA and includes other named drivers permitted to use it. In addition the Defendant has a disability and is therefore also the owner of a disabled blue badge issued by XXX Council.

4. It is admitted that the Defendants vehicle was parked on the material date in a non-obstructive manner, whilst residing (and still residing) at their private residential property at XXXX. It is denied that there was any relevant obligation upon the Defendant that can have been breached. The Defendant did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.

5. It is denied that the Defendant was the driver of the vehicle. 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 Defendant 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.

Authority to Park and Primacy of Contract
6. It is denied that the Defendant or lawful users of the vehicle were in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the Defendant by the Concierge staff/Site Management Agents (XXX) as a reasonable adjustment under the Equality Act 2010, the right to park the vehicle on the land at XXX estate. A copy of this agreement will be provided to the Court, together with witness evidence that prior permission to park had been given. The Defendant avers that there was an absolute entitlement to park deriving from the terms of this agreement, which cannot be fettered by any alleged parking terms. The agreement provide the right for disabled residents who are blue badge holders to park their vehicle on the XXX estate, without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle or the requirement to display a parking permit.

7. The Defendant avers that the operator signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial.

8. Accordingly it is denied that:
8.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant
8.2. there was any obligation (at all) to display a permit; and
8.3. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.


Alternative Defence - Failure to set out clearly parking terms
9. In the alternative, the Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to consider the imposition of a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.
9.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate.
9.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;
9.1.2. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and
9.1.3. 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
9.1.4 In addition to well-placed signs, such that disabled people can see the full terms, the applicable BPA CoP (Feb-Oct 2014 version) stated unequivocally:’16.5: If your landowner provides a concession that allows parking for disabled people, if a vehicle displays a valid Blue Badge you must not issue it with parking charge notices.’
9.2. The Defendant avers that the residential site that is the subject of these proceedings is not a site where there is a commercial value to be protected. The Claimant has not suffered loss or pecuniary disadvantage. The penalty charge is, accordingly, unconscionable in this context, with ParkingEye distinguished.

10. It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking parking management. The Claimant has provided no proof of any such entitlement.

No contract and no breach - this bay has never been ''undesignated'' nor was it clearly marked as such
11. It is denied that the Defendant has “breached the terms of the parking on the land at XXX”. The Defendant parked legitimately, without penalty for many years, and continues to do so without penalty.

12. The Claimant had only at the start of the year, begun a predatory parking regime targeting residents and has unilaterally attempted to foist upon residents a change of rules, in complete disregard to any existing rights and grants; the Claimant being a stranger to the various residents' Agreements. No variation of residents' Agreements has taken place and any such variation would be solely a matter between the landowner and the resident, in any case.

13. There is no site plan of bays in existence (the Defendant has checked with the site Managing Agents). If such a plan now exists, the Claimant is put to strict proof of its origin and on what basis/on whose authority this particular bay has been decided to be 'undesignated' after many years of normal use by residents, and how this change of use was communicated to residents and/or agreed.

14. Other disabled residents also routinely park their vehicles in the communal bays and when the Defendant contacted the Managing Agents they advised that there was no site plan identifying any bays or 'non-designated bays'. The Defendant concludes that, given the fact that the Managing Agents state there is no site plan, the Claimant is not entitled, nor has any locus standi to decide that one bay is 'undesignated' as opposed to any other.

15. The Defendant denies any separate contract with the Claimant in respect of parking arrangements. The Claimant has offered nothing by way of consideration, given the primacy of contract enjoyed by residents who already have rights of way, and have been parking in these spaces for years and have a reasonable expectation to continue to do so, free of harassment, predatory conduct and 'parking charges'.

16. It is denied that there was any breach of contract or of any relevant parking terms. The Claimant's claim is wholly misconceived.

17. It is admitted that interest may be applicable, subject to the discretion of the Court on any sum (if awarded), but it is denied that interest is applicable on the total sums claimed by the Claimant.

Wholly unreasonable and vexatious claim
18. 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).

19. The Defendant respectfully suggests that parking companies using the small claims track as a form of aggressive, automated monetary demands against residents, alleging 'debts' for parking at their own homes is not something the Courts should be seen to support.

20. The Court is invited to take Judicial Notice of the fact that the Claimant's solicitors, Gladstones, is engaged in a course of conduct which involves issuing tens of thousands of totally meritless Claims, which are routinely dismissed by District Judges sitting in this Court, and other County Court hearing centres in all parts of England & Wales. The Court is therefore invited to refer the matter to the Designated Civil Judge, for consideration of the issuing an Extended Civil Restraint Order against the Claimant, pursuant to CPR Practice Direction 3.1(3).

21. The Defendant denies the claim in its entirety, voiding any liability to the Claimant for all amounts due to the aforementioned reasons. The Defendant asks that the court gives consideration to exercise its discretion to order the case to be struck out under CPR Rule 3.4, for want of a detailed cause of action and/or for the claim having no realistic prospects of success.

22. 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.

STATEMENT OF TRUTH
I confirm that the contents of this Defence are true.

Coupon-mad

do you think this should be included?

No. And the car was not obstructing, it was expressly allowed to park.

It is denied that the Defendant was the driver of the vehicle.

Only if you can truthfully DENY being the driver. If you were, then admit parking, and remove #5 entirely.

Remove 8.3. as they are not claiming damages for loss:

8.3. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

Independent Parking Committee

should be International Parking Community

Add to #7:

7. The Defendant avers that the operator signs cannot:

(i) override the existing rights enjoyed by residents and their visitors and

(ii) override a 'reasonable adjustment' for a disabled person made under the EA. Whether that agreement became an easement over time or not, the law is clear and a contract cannot override statutory rights.

(iii) retrospectively and unilaterally restrict parking easements where provided for within the lease and/or specifically by agreement by the Concierge staff. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial.

System

There is a lot of detail about what Link shouldn't have done but what exactly did the driver do to attract the attention of Link.

Can't see detail of what the driver is supposed to have done and the rebuttal. It hints at obstruction but what exactly? Was it in the wrong space? Was it on the road or on common parts?

Who actually owned the small bit of tarmac the car was parked on?

blue_ice

@IamEmanresu - I parked in a communal disabled bay open to other disabled residents causing no obstruction, There are no dedicated spaces, the claim is "breaching the terms" without providing anything else.

Thanks Coupon-mad I have updated the defense - I started copying the defense to the MCOL website, and the defense statement is limited to 122 lines; which means I have to cut my statement in half to fit it in ; there also is no option for uploading a pdf, I am inclined to email them and call to confirm reciept as suggested in other posts - but I guess it increases the risk of it being lost plus plus I can never contact them on the phone because they are always so busy. I have just been hold for almost an hour then hung up. Perhaps best to send via royal mail recorded delivery.

I also saw in other posts people suggesting not to enter anything in the defense statement like "refer to attached doc" or a full stop or any text, however if doing this online it is mandatory field so you are forced to enter something in order to proceed with the form, How do people get around this?

Lastly I am also thinking of doing a counter claim for loss of earnings, for the defendant and defendants partner of a full days salary in preparing for the defense, I dont think this is unreasonable as the amount of time I have had to spend on this probably exceeds this (This will end up being more than what they are claiming from me), do you think this is fair?

KeithP

blue_ice wrote: »

- I started copying the defense to the MCOL website, and the defense statement is limited to 122 lines; which means I have to cut my statement in half to fit it in ; there also is no option for uploading a pdf, I am inclined to email them and call to confirm reciept as suggested in other posts - but I guess it increases the risk of it being lost plus plus I can never contact them on the phone because they are always so busy. I have just been hold for almost an hour then hung up. Perhaps best to send via royal mail recorded delivery.

I also saw in other posts people suggesting not to enter anything in the defense statement like "refer to attached doc" or a full stop or any text, however if doing this online it is mandatory field so you are forced to enter something in order to proceed with the form, How do people get around this?

They get around it by emailing it as a pdf attachment.

I posted this earlier:

forums.moneysavingexpert.com/showpost.php?p=74354771&postcount=27

nosferatu1001

You cannot counterclaim for Costs for the case, obviously. They are costs of the case and are dealt with within the claim they arise from.
In order to "unlock" the ability to claim these costs back you need to show cpr27.14(2)(g) has been met.. nirmallynthese costs cannot be reclaimed in small claims.

The_Deep

This is an entirely unregulated industry which is scamming the public with inflated claims for minor 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 lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

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 they will be out of business by Christmas.

blue_ice

Thanks KeithP - I will email - however just to confirm is the email address correct in your post CCBCAQ@Justice.gov.uk, or should it be ccbc@hmcts.gsi.gov.uk as suggested in the MCOL user guide?

Also regarding the online defense statement, given its a mandatory field the form does not allow me to proceed unless I enter something in the text field, so if I enter the text "Defence Statement has been email seperately to <email_address>" - does anyone see a problem with this, I have seen people saying it should remain empty but dont know how else to get aaround this, (sorry I couldnt find anything in the newbie section on this)

KeithP

The email address definitely starts ccbcaq - not just ccbc.

On the CCBC webpage it lists ccbcaq@hmcts.gsi.gov.uk
as the address for claim responses.

However recently someone, can't remember who, advised that CCBCAQ@Justice.gov.uk is the new address.

I would say either of the CCBCAQ addresses would work.

If you want a more definitive answer you may need to phone them to ask.