Court Claim form from UK Car park management & Gladstone

Coupon-mad

Well done!

Please can you post a more full 'court report' about what happened, which court, which Judge, what the rep said, what their face looked like when they knew they'd lost, whether you got costs, etc., in your thread here:

https://forums.moneysavingexpert.com/discussion/5829957/county-court-claim-by-scs-law-ukpc-ltd

We all love to read the 'here's what happened' full court reports!

No new thread though, add it as a reply there to continue and conclude the thread with the successful outcome.

Coupon-mad

masatoi wrote: »

Introduction


1. It is admitted that the Defendant was the authorised registered keeper of the vehicle in question at the time of the alleged incident.

2. This is a statement of truth and bases of the defence.

3. The Particulars of Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant as an unrepresented litigant-in-person and seeks the Court’s permission to amend and supplement this defence as may be required upon disclosure of the claimant’s case.

4. 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. 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.

5. It is believed as a matter of common ground, the claim relates to a purported debt as the result of the issue of a Parking Charge Notice (PCN) in relation to an alleged breach of the terms and conditions by the driver of the vehicle XXXXXXX when it was parked at XXXXXXX. The PCN stated the contravention as “Not displaying a valid permit”.


Rebuttal of Claim

6. It is denied that:

a. A contract was formed
b. There was an agreement to pay a parking charge.
c. That there were Terms and Conditions prominently displayed around the site.
d. That in addition to the parking charge there was an agreement to pay additional and unspecified additional sums.
e. The claimant company fully complied with their obligations within the terms of Schedule 4 of the Protections of Freedoms Act 2012.
f. The claimant company fully complied with the requirements of the Practice Direction for Pre-Action Conduct (Pre-Action Protocol October 2017)
g. The claimant company fully complied with their obligations within the International Parking Community Code of Practice of which they were member at the time.
h. That the Defendant is liable for the purported debt.

7. It is further denied that the Defendant owes any debt to the claimant or that any debt is in fact owed or that any debt exists or could ever exist or has ever existed. That in any event the claimant has failed to comply with the requirements of the Civil Procedure Rules and that their claim is both unfounded and vexatious.

8. The Defendant did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.

9. The claimant is put to the strictest proof of their assertions.


The Defence

10. The Defendant will reply principally upon the following points:

11. Section B.1.1 of the IPC Code of Practice outlines to operators:

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.

a. 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.

b. 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.

c. The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question

d. 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

12. If in the alternative it is the claimant's case that his claim is founded in trespass (which is in any event denied) then in a residential car park setting any damages in trespass can only be assessed based on a calculation of the proportion of income lost based on the time of the alleged occupation. Any sum sought could therefore only be minimal and de-minimis

Only the landowner can pursue a case under the tort of trespass not this Claimant, and as the Supreme Court in the Beavis vs ParkingEye (2015) [2015] UKSC 67 case confirmed, such a matter would be limited to the landowner themselves.

13. The Claimant failed with its obligations to comply with the Practice Direction for Pre-Action Conduct. The updated legislation of the new Pre-Action Protocol (October 2017) outlines procedures that need to be followed prior to Claimants engaging in court proceedings.

14. The Claimants Letter of Claim (Letter before claim) failed to include:

a. The information sheet and reply form
b. Financial statement

Further again ignoring the requirements of the Pre-Action Protocol.

15. The Pre-Action Protocol encourages early disclosure of documents. The defendant requested information from the Claimant via E-mail dated 18th July 18. As per timescales under the protocol the creditor should not issue court proceedings until 30 days after the date on which the creditor provides documents requested by the debtor.

Once again the Creditor has failed to comply with the Pre-Action protocol as court proceedings were served 4th October 18.

16. Taking into account the above points the Defendant will be seeking their costs on the indemnity basis due to the above conduct which was the final insult after the wholly unreasonable and vexatious stance of a parking firm who:

a. Already has an ongoing case (claim no. xxxxxxxx - about the same location) that they filed against this Defendant in June 2018.

b. Appear to be ignorant regarding the doctrine of res judicata, despite using a solicitor, Gladstones, which shared Directors with the parking Trade Body, the IPC, and files thousands of parking claims and is expected to conduct itself professionally with regard to its first duty to the Courts and due process.

c. Is clearly engaging in a vexatious pursuit of this Defendant, when they already know about the easements and rights enjoyed by residents at the material location, who indisputably have primacy of contract, and


17. These failures and the vexatious nature of this typical cut & paste 'one size fits all' parking charge robo-claim, with no checks being made about the facts to show that the Claimant has any claim in law or even that the CPRs, the DPA and Practice Direction are being fairly followed, cannot be described as 'trivial' conduct.

18. As a result, the Defendant avers that having been put to the distress and harassment of a second baseless claim, where this Claimant is no doubt hoping for a different result from their first failed claim but have spiralled into conduct that amounts to a gross abuse of process, sanctions should be imposed. The Defendant relies upon para 41 ofMitchell v. News Group Newspapers Ltd [2013] EWCA Civ 1537, [2014] 1 WLR 795 which is re-iterated in para 24 ofDenton v T H White Ltd [2014] EWCA Civ 906 and seeks an order to grant the Defendant's wasted costs on the indemnity basis, not least to send a message to Gladstones and this prolific and notorious parking firm Claimant.

19. In view of all the foregoing the court is invited to strike the matter out of its own motion.

20. The claimant is put to strict proof of the assertions they have made or may make in their fuller claim.

This statement is true to the best of my knowledge and belief.

How can the bit in bold at #18 be correct, if the two claims are current and not 'failed'? I think the above defence is too long and wordy, and based on an old one.

#16 a, b, and c are all vital but are hidden in the middle!

Where is your primary defence about the fact you OWN the flat, and these facts, and that you were a permitted authorised driver:

On 2nd March 2017 I parked a lease car from a Volvo dealer within a communal parking slot within private car park of my flat I live as a owner.

This slot is pay & display during day time and after 17:30 it becomes permit holders only.
I usually park my car at my allocated space but on that day I left my permit in my car and didn’t have one for the lease car and I thought the slot I parked was free after 17:30 rather than permit holders only so I parked the lease car overnight and got a ticket on windscreen next morning.

You need to attack this as well, this is simply not true/not allowed to be added:

The charge amount includes £60 claimed by our Client for its time spent and resource facilitating the recovery of the charge. The amount is a pre-determined and nominal contribution to our Client's losses as a direct result of your nonpayment.

Why not go and find the examples of residential defences in the NEWBIES thread? There is one by Johnersh (a solicitor poster) and one by bargepole (legally qualified at GCILEx level, roughly equivalent to a Masters degree in law). Use them as your base then add your facts and attack the made up added 'indemnity costs if applicable' - wording for rebutting that is all over the forum in any Gladstones defence written this month.

redrabbit17

I just read this after creating a full new thread :doh:

I will post it in my original thread too as I'm struggling to find the delete thread option at such an early hour. Thanks to Coupon-mad especially, you have been extremely helpful.

Coupon-mad wrote: »

Well done!

Please can you post a more full 'court report' about what happened, which court, which Judge, what the rep said, what their face looked like when they knew they'd lost, whether you got costs, etc., in your thread here:

https://forums.moneysavingexpert.com/discussion/5829957/county-court-claim-by-scs-law-ukpc-ltd

We all love to read the 'here's what happened' full court reports!

No new thread though, add it as a reply there to continue and conclude the thread with the successful outcome.

uselesspleasehelp

I’m sorry to jump on this post but I have seen your replies on other posts and you seem to have very sound help and advice that I am in desperate need of, it’s regarding Gladstones and a papers only court case, I’m lost and spent over 50 hours reading all the posts but I’m so confused, and my dyslexia is stopping me writing a sensible
And appropriate defence, I would be eternally grateful if you could help me?

masatoi

UK CAR PARK MANAGEMENT LIMITED
(Claimant)

-and-


[NAME OF DEFENDANT]
(Defendant)



DEFENCE

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

2. The Particulars of Claim on the N1 Claim Form refer to 'Parking Charge incurred on 24/02/2016. However, they do not state the basis of any purported liability for these charges, in that they do not state what the terms of parking were, or in what way they are alleged to have been breached. In addition, the particulars state 'The Defendant was driving the vehicle and/or is the keeper of the vehicle' which indicates 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, paras. 7.3 to 7.5.

3. The Particulars refer to the material location as '[LOCATION]'. The Defendant has, since [04/07/2014], held legal title under the terms of a lease, to Flat No. XX at that location. At some point, the managing agents contracted with the Claimant company to enforce parking conditions at the estate.

4. Under the terms of the Defendant's lease, a number of references are made to conditions of parking motor vehicles.
{The definitions, at para. 4.8.6, define Not at any time use or permit it to be used or occupied except as a parking space for the parking of one motor car in the ownership or control of the Tenant.
In the First schedule at para. 4.4.1 Not to underlet or part with possession or occupation of the Space or allow the Space to be occupied by any Car or other motor vehicle except as authorised by this Licence and not to assign the benefit of this Licence to any party other than a tenant of the Flat.}

4.1. There are no terms within the lease requiring lessees to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same.

5. The Defendant, at all material times, parked in accordance with the terms granted by the lease. The erection of the Claimant's signage, and the purported contractual terms conveyed therein, are incapable of binding the Defendant in any way, and their existence does not constitute a legally valid variation of the terms of the lease. Accordingly, the Defendant denies having breached any contractual terms whether express, implied, or by conduct.

6. The Claimant, or Managing Agent, in order to establish a right to impose unilateral terms which vary the terms of the lease, must have such variation approved by at least 75% of the leaseholders, pursuant to s37 of the Landlord & Tenant Act 1987, and the Defendant is unaware of any such vote having been passed by the residents.

7. Further and in the alternative, the signs refer to 'Authorised Vehicles Only/Terms of parking without permission', and suggest that by parking without permission, motorists are contractually agreeing to a parking charge of £100. This is clearly a nonsense, since if there is no permission, there is no offer, and therefore no contract.

7.1. The Defendant's vehicle clearly was 'authorised' as per the lease and the Defendant relies on primacy of contract and avers that the Claimant's conduct in aggressive ticketing is in fact a matter of tortious interference, being a private nuisance to residents.

7.2. In this case the Claimant has taken over the location and runs a business as if the site were a public car park, offering terms with £100 penalty on the same basis to residents, as is on offer to the general public and trespassers. However, residents are granted a right to park/rights of way and to peaceful enjoyment, and parking terms under a new and onerous 'permit/licence' cannot be re-offered as a contract by a third party. This interferes with the terms of leases and tenancy agreements, none of which is this parking firm a party to, and neither have they bothered to check for any rights or easements that their regime will interfere with (the Claimant is put to strict proof). This causes a substantial and unreasonable interference with the Defendant's land/property, or his/her use or enjoyment of that land/property.

8. The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 as a binding precedent on the lower court. However, that only assists the Claimant if the facts of the case are the same, or broadly the same. In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas it is the Defendant's position that no such breach occurred in this case, because there was no valid contract, and also because the 'legitimate interest' in enforcing parking rules for retailers and shoppers in Beavis does not apply to these circumstances. Therefore, this case can be distinguished from Beavis on the facts and circumstances.

9. The Claimant, or their legal representatives, has added an additional sum of £60 to the original £100 parking charge, for which no explanation or justification has been provided. Schedule 4 of the Protection Of Freedoms Act, at 4(5), states that the maximum sum which can be recovered is that specified in the Notice to Keeper, which is £100 in this instance. It is submitted that this is an attempt at double recovery by the Claimant, which the Court should not uphold, even in the event that Judgment for Claimant is awarded.

10. For all or any of the reasons stated above, the Court is invited to dismiss the Claim in its entirety, and to award the Defendant such costs as are allowable on the small claims track, pursuant to Civil Procedure Rule 27.14. Given that the claim is based on an alleged contractual parking charge of £100 - already significantly inflated and mostly representing profit, as was found in Beavis - but the amount claimed on the claim form is inexplicably £267.43, the Defendant avers that this inflation of the considered amount is a gross abuse of process.

11. Given that it appears that this Claimant's conduct provides for no cause of action, and this is intentional and contumelious, the Claimant's claim must fail and the court is invited to strike it out.

11.1. In the alternative, the Court is invited, under the Judge's own discretionary case management powers, to set a preliminary hearing to examine the question of this Claimant's substantial interference with easements, rights and 'primacy of contract' of residents at this site, to put an end to not only this litigation but to send a clear message to the Claimant to case wasting the court's time by bringing beleaguered residents to court under excuse of a contractual breach that cannot lawfully exist.

12. This claim and the other very similar one merely states: ''parking charges and indemnity costs if applicable'' which does not give any 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'. Nor are any clear times/dates or coherent grounds for any lawful claim particularised, nor were any details provided to evidence any contract created nor any copy of this contract, nor explanation for the vague description 'parking charges' and 'indemnity costs'.

13. Taking into account the above points the Defendant will be seeking their costs on the indemnity basis due to the above conduct which was the final insult after the wholly unreasonable and vexatious stance of a parking firm who:

a. Already has an ongoing case (claim no. xxxxxxxx - about the same location) that they filed against this Defendant in June 2018.

b. Appear to be ignorant regarding the doctrine of res judicata, despite using a solicitor, Gladstones, which shared Directors with the parking Trade Body, the IPC, and files thousands of parking claims and is expected to conduct itself professionally with regard to its first duty to the Courts and due process.

c. Is clearly engaging in a vexatious pursuit of this Defendant, when they already know about the easements and rights enjoyed by residents at the material location, who indisputably have primacy of contract.



I believe that the facts stated in this Defence are true.

Coupon-mad

In your #13a, ask the court to order that the claims be merged, so that one Witness Statement/hearing covers both, since the claims are identical and turn on the same facts.

Add that the Claimant has described the £60 as 'losses' which is patently untrue (impossible, given that the £100 is mostly profit) and in fact, damages/loss cannot be successfully pleaded in a parking ticket case where the Claimant is not in possession of the land, as was confirmed in the Beavis case.

The charge amount includes £60 claimed by our Client for its time spent and resource facilitating the recovery of the charge. The amount is a pre-determined and nominal contribution to our Client's losses as a direct result of your nonpayment.

masatoi

Thanks for the advice and please let me know if this is good to go.

I highlighted the parts that I changed from last time. The rest remains the same.


DEFENCE

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

2. The Particulars of Claim on the N1 Claim Form refer to 'Parking Charge incurred on 24/02/2016. However, they do not state the basis of any purported liability for these charges, in that they do not state what the terms of parking were, or in what way they are alleged to have been breached. In addition, the particulars state 'The Defendant was driving the vehicle and/or is the keeper of the vehicle' which indicates 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, paras. 7.3 to 7.5.

3. The Particulars refer to the material location as '[LOCATION]'. The Defendant has, since [04/07/2014], held legal title under the terms of a lease, to Flat No. XX at that location. At some point, the managing agents contracted with the Claimant company to enforce parking conditions at the estate.

4. Under the terms of the Defendant's lease, a number of references are made to conditions of parking motor vehicles.
{The definitions, at para. 4.8.6, define Not at any time use or permit it to be used or occupied except as a parking space for the parking of one motor car in the ownership or control of the Tenant.
In the First schedule at para. 4.4.1 Not to underlet or part with possession or occupation of the Space or allow the Space to be occupied by any Car or other motor vehicle except as authorised by this Licence and not to assign the benefit of this Licence to any party other than a tenant of the Flat.}

4.1. There are no terms within the lease requiring lessees to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same.

5. The Defendant, at all material times, parked in accordance with the terms granted by the lease. The erection of the Claimant's signage, and the purported contractual terms conveyed therein, are incapable of binding the Defendant in any way, and their existence does not constitute a legally valid variation of the terms of the lease. Accordingly, the Defendant denies having breached any contractual terms whether express, implied, or by conduct.

6. The Claimant, or Managing Agent, in order to establish a right to impose unilateral terms which vary the terms of the lease, must have such variation approved by at least 75% of the leaseholders, pursuant to s37 of the Landlord & Tenant Act 1987, and the Defendant is unaware of any such vote having been passed by the residents.

7. Further and in the alternative, the signs refer to 'Authorised Vehicles Only/Terms of parking without permission', and suggest that by parking without permission, motorists are contractually agreeing to a parking charge of £100. This is clearly a nonsense, since if there is no permission, there is no offer, and therefore no contract.

7.1. The Defendant's vehicle clearly was 'authorised' as per the lease and the Defendant relies on primacy of contract and avers that the Claimant's conduct in aggressive ticketing is in fact a matter of tortious interference, being a private nuisance to residents.

7.2. In this case the Claimant has taken over the location and runs a business as if the site were a public car park, offering terms with £100 penalty on the same basis to residents, as is on offer to the general public and trespassers. However, residents are granted a right to park/rights of way and to peaceful enjoyment, and parking terms under a new and onerous 'permit/licence' cannot be re-offered as a contract by a third party. This interferes with the terms of leases and tenancy agreements, none of which is this parking firm a party to, and neither have they bothered to check for any rights or easements that their regime will interfere with (the Claimant is put to strict proof). This causes a substantial and unreasonable interference with the Defendant's land/property, or his/her use or enjoyment of that land/property.

8. The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 as a binding precedent on the lower court. However, that only assists the Claimant if the facts of the case are the same, or broadly the same. In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas it is the Defendant's position that no such breach occurred in this case, because there was no valid contract, and also because the 'legitimate interest' in enforcing parking rules for retailers and shoppers in Beavis does not apply to these circumstances. Therefore, this case can be distinguished from Beavis on the facts and circumstances.

9. The Claimant, or their legal representatives, has added an additional sum of £60 to the original £100 parking charge, for which no explanation or justification has been provided. Schedule 4 of the Protection Of Freedoms Act, at 4(5), states that the maximum sum which can be recovered is that specified in the Notice to Keeper, which is £100 in this instance. It is submitted that this is an attempt at double recovery by the Claimant, which the Court should not uphold, even in the event that Judgment for Claimant is awarded.

9a. The Claimant has described the £60 as 'losses' which is patently untrue (impossible, given that the £100 is mostly profit) and in fact, damages/loss cannot be successfully pleaded in a parking ticket case where the Claimant is not in possession of the land, as was confirmed in the Beavis case.

10. For all or any of the reasons stated above, the Court is invited to dismiss the Claim in its entirety, and to award the Defendant such costs as are allowable on the small claims track, pursuant to Civil Procedure Rule 27.14. Given that the claim is based on an alleged contractual parking charge of £100 - already significantly inflated and mostly representing profit, as was found in Beavis - but the amount claimed on the claim form is inexplicably £267.43, the Defendant avers that this inflation of the considered amount is a gross abuse of process.

11. Given that it appears that this Claimant's conduct provides for no cause of action, and this is intentional and contumelious, the Claimant's claim must fail and the court is invited to strike it out.

11.1. In the alternative, the Court is invited, under the Judge's own discretionary case management powers, to set a preliminary hearing to examine the question of this Claimant's substantial interference with easements, rights and 'primacy of contract' of residents at this site, to put an end to not only this litigation but to send a clear message to the Claimant to case wasting the court's time by bringing beleaguered residents to court under excuse of a contractual breach that cannot lawfully exist.

12. This claim and the other very similar one merely states: ''parking charges and indemnity costs if applicable'' which does not give any 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'. Nor are any clear times/dates or coherent grounds for any lawful claim particularised, nor were any details provided to evidence any contract created nor any copy of this contract, nor explanation for the vague description 'parking charges' and 'indemnity costs'.

13. Taking into account the above points the Defendant will be seeking their costs on the indemnity basis due to the above conduct which was the final insult after the wholly unreasonable and vexatious stance of a parking firm who:

a. Already has an ongoing case (claim no. xxxxxxxx - about the same location) that they filed against this Defendant in June 2018. The defendant requests the court to merge the 2 claims.

b. Appear to be ignorant regarding the doctrine of res judicata, despite using a solicitor, Gladstones, which shared Directors with the parking Trade Body, the IPC, and files thousands of parking claims and is expected to conduct itself professionally with regard to its first duty to the Courts and due process.

c. Is clearly engaging in a vexatious pursuit of this Defendant, when they already know about the easements and rights enjoyed by residents at the material location, who indisputably have primacy of contract.



I believe that the facts stated in this Defence are true.

Coupon-mad

Looks good to sign & date and email to the CCBC.

What stage is the June case at, you need to mention THIS claim, in that case's paperwork/Witness Statement, asking for the hearing to cover both claims.

Mention this every time you are required to submit anything, for both, until a Judge sees it and it happens. If the other claim is allocated to your local court already and you have a Judge's name on an initial set of Directions, write to that Judge by name now and ask for the 2 claims to be merged...

masatoi

Thank you very much Coupon-mad for the advice.

Hopefully they strike both out before hearing. I'm sure they are fed up with reading a bunch of sxxt.

How much do you reckon I could claim if I win these cases?

I want to make the scums pay for the time I spent on this.

Umkomaas

How much do you reckon I could claim if I win these cases?

If you've not made a counterclaim as part of your AOS, then the answer is £0.00.

You might get some costs - max £95 for half a day loss of earnings/use of annual leave, plus mileage @ 0.45ppm and your cost of parking to attend the hearing (say) £5. You could also try for a bit of post and stationery £10(?).

Any other costs (like your time costs) will hinge on you proving the claimant to have been unreasonable, but the bar is set much higher than the fact they've peed you off and harassed you in making their claim.