HX CPM Non POFA compliant and citing Elliot v Locke

Mr_Picklehead

Well we had our day in court on Monday... I attended as a lay representative and that wasn't a problem at all.... Gallstones didn't even show up!! They had given the required seven days notice that "our client" may not attend the hearing but the necessary "requirements" and "detail" set out in the Small Claims Track Practice Directions (27.9 a, b and c) had not been evident in their brief email / letter and the judge struck out their claim!! Shame I didn't get to present our case - but it's the result that matters!! I'll post up the defence later as it might be useful to others...... Thank you to everyone who gave their advice and help!! Another victory against "the man"!!!!
:rotfl: :beer:

BrownTrout

Well done and look forward to reading it

Coupon-mad

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part27#27.9

Non-attendance of parties at a final hearing
27.9

(1) If a party who does not attend a final hearing–

(a) has given written notice to the court and the other party at least 7 days before the hearing date that he will not attend;

(b) has served on the other party at least 7 days before the hearing date any other documents which he has filed with the court; and

(c) has, in his written notice, requested the court to decide the claim in his absence and has confirmed his compliance with paragraphs (a) and (b) above,

the court will take into account that party’s statement of case and any other documents he has filed and served when it decides the claim.

(2) If a claimant does not –

(a) attend the hearing; and

(b) give the notice referred to in paragraph (1),

the court may strike out(GL) the claim.

Woohoo, sounds like the Judge is p'eed off with these claims!

AND ANOTHER ONE BITES THE DUST

Did you ask for your wasted costs for attending?

Which court and which Judge?

beamerguy

Gladstones sheer incompetence strikes again.

WHOOPS said Davies, the SATNAV was broken :rotfl:

Maybe they did not turn up because it's easier to get a strike out than a spanking for trying to scam the public with their £60 abuse of process scam

They can only be classed as idiots

Mr_Picklehead

It was the court in Lancaster (Lancaster County Court and Family Court). I don't recall the judge's name... He did seem pee'd off with Gallstones - he commented that they had done the same thing the week before and they had been told then what detail was required under civil procedure rules 27.9.... Sadly no costs granted as my relative is on a staffing bank and hadn't cancelled an already booked shift - but just couldn't work that day, He didn't see that as loss of earnings as she didn't have to cancel a shift nor take a day in annual leave. I'm sure if I was better prepared I could have argued the toss... but to be fair he did seem pretty reasonable and relatively helpful right from us walking in, and having the case struck out was good enough for us!

beamerguy

Mr_Picklehead wrote: »

He did seem pee'd off with Gallstones - he commented that they had done the same thing the week before and they had been told then what detail was required under civil procedure rules 27.9....

That's not the only court they don't turn up to ????

They might do this a lot more as the momentum builds up regarding the fake £60 ...... Gladstones will not know when and where the next spanking will come from

The_Deep

Your relative should consider asking the court for costs under CPR27.14(2)(g). If that fails invoicing Gladstone for her time, and if that fails sending then a letter of claim for her time at £19 an hour.

https://www.which.co.uk/consumer-rights/letter/letter-before-small-claims-court-claim

At the end of the day, even if she ends up with diddly, it will have cost her virtualy nothing but considerably more for the scammer and their low rent dirty shirt.



At the end of the day 14.27.

Mr_Picklehead

It was Deputy Divisional Judge Horton.

Mr_Picklehead

Here is the defence filed with the court. It may provide a few pointers for others.


IN THE COUNTY COURT OF LANCASTER - CLAIM No: F7GF59M5


BETWEEN: HX CAR PARK MANAGEMENT LTD (Claimant) - and -

MISS XXXXXX (Defendant) ________________________________________



DEFENCE ________________________________________



1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.


2. The facts are that the vehicle, registration XXXXX, of which the Defendant is the registered keeper, entered the Damside Street Car Park in Lancaster on the material date and time and left the car park 21 minutes later. There is photographic evidence which purports to show these facts. No evidence has been forthcoming to indicate if the vehicle parked in a marked parking space. The Defendant who was not the driver is unable to state if the vehicle was actually parked during the stated period. No evidence has been provided by the Claimant that the vehicle was actually parked at the time of the alleged breach of contract.



3. The Particulars of Claim, earlier letters from Gladstones Solicitors (acting for HX Car Park Management) and the original Parking Charge Notice (PCN) state that the Defendant “was the registered keeper and/or the driver of the vehicle” and that the charge was “incurred for No payment registered for the above vehicle” (6.4.18) as “you did not pay & display or did not enter the correct registration number” (23.5.18).These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paragraphs. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached. The PCN and subsequent letters from the Claimant do not clearly specify the “circumstances in which the requirement to pay them arose”. There is therefore a breach of the International Parking Community (IPC) Accredited Operator Code of Practice: The Defendant was not the driver; it is not common ground nor established that a contract was agreed; the claimant has never stated that “the creditor does not know the name and address of the driver” before attempting to transfer liability to the keeper.


4. Due to the vague assertions by the Claimant it is unclear as to what legal basis the claim is brought. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.



5. Further and in the alternative, it is denied that the Claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. They merely state that vehicles must “park wholly” in their allocated parking bay without indicating which bays are allocated to, or managed by, the Claimant. It is unclear at what point and for which bays the Claimant has the right to claim for a contractual parking charge.



6. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract. After taking a digital photograph of the signage, then enlarging the image to facilitate reading, it was found that The Claimant’s signage specifically cites the driver as with whom a contract is agreed. The registered keeper in this case was not the driver and no evidence has been forthcoming to suggest otherwise.


7. The signage at this location fails to create any contractual liability due to the failure to comply with the provisions of the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. The purported contract created by the signage is a ‘distance contract’ as defined in section 5 of the Regulations, and is therefore subject to the mandatory requirements set out in section 13, relating to the statutory information which must be provided by the trader. The Regulations state, at 13(1)(a), that the information listed in Schedule 2 must be given or made available to the consumer in a clear and comprehensible manner. The Defendant avers that the Claimant’s notice fails to comply with various clauses of Schedule 2 and The Claimant is put to strict proof to show otherwise.


8. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.


9. The Protection of Freedoms Act 2012 (POFA), Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the PCN, in this case £100 (this sum also being the ceiling allowed by the British Parking Association (BPA)). The claimant includes an additional £145.14.This appears to be an attempt at double recovery. It is averred that the Claimant has not paid or incurred such damages, costs or “legal fees”. No individual Director or solicitor has signed the Particulars of Claim - in breach of Practice Direction 22, and rendering the statement of truth a nullity. Template based letters received from Gladstones Solicitors clearly have no input from any supervising Solicitor nor were they signed. According to Ladak v DRC Locums UKEAT/0488/13/LA the Claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration costs allegedly incurred by already remunerated clerical staff. Parking Eye v Beavis (2015) ruled that Claimants are the authority for recovery of the parking charge itself and no more, since that sum is, by definition, already hugely inflated for profit, not loss, and the Judges held that a parking firm not in possession cannot plead their case in damages, as none exist.


10. The Claimant has not identified the driver. The vehicle can be driven by anyone legally insured to do so therefore the stated assumption that the Defendant was the driver is erroneous. The Defendant has requested from the Claimant evidence regarding the alleged contravention and evidence of the identity of the driver. No further evidence has been forthcoming but rather Gladstones Solicitors, representing the Claimant, have implied that the defendant is responsible to “provide proof” (6.12.18 and 2.1.19) as to who the driver was (or was not). The burden of proof does not rest with the Defendant.


11. It is the Claimant’s assertion that the Defendant, as keeper of the vehicle, should be presumed to be the driver unless they sufficiently rebut this presumption, which it claims is a principle established by Elliott v Loake (1983) Crim LR 36. The Defendant disputes this assertion for the following reasons: The case relied upon does not provide that any such presumption can or should be made, or that it is for the Defendant to rebut it. A claim is for the Claimant to prove and there is no reverse burden of proof in respect of parking charges; in addition the case was a criminal case not a civil court dispute; In the case relied upon there was overwhelming evidence that the keeper of the car was driving it at the relevant time, including strong forensic evidence – there is no such evidence in this Claim.


12. For a keeper to be held liable for a parking charge POFA, paragraph 4(1) of Schedule 4 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. In this case there is a failure to do so and no valid POFA compliant Notice to Keeper (NTK) was served on the Defendant. Furthermore there is a failure to comply with other paragraphs from POFA notably including, though not exclusive to, paragraph 9. The PCN and subsequent letters from the Claimant do not constitute a valid NTK in accordance with Schedule 4 and therefore the Defendant cannot be held liable as the registered keeper. The Claimant throughout has recognised this stating; “we do not have to comply with POFA in regards to issuing tickets” (23.5.18). Having failed to comply with the conditions set out in POFA Schedule 4, there is no legal basis to enforce the parking charge against the Defendant as the vehicle’s registered keeper. There is no other basis, in common law or by statute, for the defendant to be held liable for the parking charges.


13. The defendant intends to cite the following County Court Judgments as precedent to support their case: C3DP56Q5 Excel versus Lamoureux 2016; C1DP0H0J VCS versus Quayle.


14. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4. I believe the facts contained in this Defence are true. Signed: XXXXXX 12.5.2019