Claim form received for UKCPM/Gladstones case

geordie777

Post #13

Thanks

Coupon-mad

Coupon-mad wrote: »

You have not got the Beavis case distinguished from your case at all now.

You've not added it back in? Please just do as advised - a new draft would help.

geordie777

Hi Coupon-mad,
sorry for late response, left laptop at work yesterday.

Here is the new draft, with Beavis paragraphs added back in.

Defence
In the county court
xxx
UK CAR PARK MANAGEMENT LTD V xxx
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;
!!!8220;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 !!!8216;Creditor!!!8217; 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!!!8217;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.!!!8221;

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 behaviour is !!!8216;roboclaims!!!8217; and as such is against the public interest. Practice Direction 3A which references Civil Procedure Rule 3.4 illustrates this point;

!!!8220; 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 !!!8216;Money owed £5000!!!8217;,
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 !!!8221;

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 !!!8216;parking charge!!!8217; 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 !!!8220;parking charges!!!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.
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 !!!8216;roboclaim!!!8217; particulars being incoherent, failing to comply with CPR. 16.4 and !!!8216;providing no facts that could give rise to any apparent claim in law.!!!8217;

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 !!!8211; 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

I assert that I am not liable to the Claimant for the sum claimed, or any amount at all, for the following reasons:

4. I was the registered keeper of the vehicle in question. The vehicle has since been sold. This vehicle was routinely used by more than one individual. The Claim relates to an alleged debt arising from the driver!!!8217;s alleged breach of contract when parking at The Bungalow, Front Street, Whickham car park on the 18th August 2016.

5. The defendant has visited the said car park as a result of this claim. It was noticed that there is no signage at the entrances to the site from the main road and within the car park itself the signage is poor.

6. Any signage present is simply unreadable whilst driving. In addition it is placed in locations where it is not obvious to the driver i.e. blind spots from the drivers!!!8217; line of sight, high up on posts. Therefore the signage on this site is inadequate to form any contract with the motorist.
This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. As far as I can ascertain, based upon the very vague particulars of claim and complete lack of evidence and photographs, and without having been furnished with the alleged signage contract, none of this applies in this material case.
7. In the absence of any proof of adequate signage contractually bound the Defendant then there can have been no contract and the Claimant has no case

a. The Claimant is put to strict proof at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs

b. In the absence of strict proof I submit that the Claimant was committing an offence by displaying their signs and therefore no contract could have been entered into between the driver and the Claimant

c. Inadequate signs incapable of binding the driver this distinguishes this case from the Beavis case:

i. Sporadic and illegible (charge not prominent nor large lettering) of site/entrance signage - breach of the POFA 2012 Schedule 4 and the BPA Code of Practice and no contract formed to pay any clearly stated sum
ii. It is believed the signage was not lit and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Consumer Rights Act 2015 in requiring a huge inflated sum as compensation from by an authorised party using the premises as intended
iii. 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
iv. The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.
v. The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.

d. BPA CoP breaches this distinguishes this case from the Beavis case:
i. The signs were not compliant in terms of the font size, lighting or positioning
ii. The sum pursued exceeds £100
iii. There is/was no compliant landowner contract

8. No standing this distinguishes this case from the Beavis case:
It is believed UK Car Park Management Ltd do not hold a legitimate contract at this car park. As an agent, the Claimant has no legal right to bring such a claim in their name which should be in the name of the landowner.

9. The Beavis case confirmed the fact that, if it is a matter of trespass (not breach of any contract), a parking firm has no standing as a non-landowner to pursue even nominal damages.

10. The charge is an unenforceable penalty based upon a lack of commercial justification. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim.


11. The Defendant also disputes that the Claimant has incurred £50 solicitor costs.
·The Defendant has the reasonable belief that the Claimant has not incurred £50 costs to pursue an alleged £100 debt.
·Notwithstanding the Defendant's belief, the costs are in any case not recoverable.
·The Claimant described the charge of £50.00 "legal representative!!!8217;s costs" not "contractual costs". CPR 27.14 does not permit these to be recovered in the Small Claims Court.

12. The allegation appears to be that the !!!8216;vehicle was not authorised to use the car park!!!8217;, photographed by a camera on the main road. This did not prove actual parking of the vehicle and is merely an image of the stationary vehicle. The Claimant has provided no evidence, photographic or otherwise that the vehicle is indeed parked and not waiting / giving way to pedestrians or vehicles. The allegation of !!!8216;No Authorisation!!!8217; is open to abuse by Claimants as it can be used in all cases regardless of the actual situation, this displays how the claimants claim is completely generic and not specific.

13. In order to issue parking charges, and to pursue unpaid charges via litigation, the Claimant is required to have the written authority of the landowner, on whose behalf they are acting as an agent. No evidence of such authority has been supplied by the Claimant or their legal representatives, and the Claimant is put to strict proof of same, in the form of an unredacted and contemporaneous contract, or chain of authority, from the landowner to the Claimant. A Managing Agent is not the Landowner.

14. 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; !!!8220;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 !!!8216;Creditor!!!8217; 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!!!8217;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.!!!8221;

15. The Claimant!!!8217;s representatives, Gladstones Solicitors Limited, have artificially inflated the value of the Claim from £100 to a total of £257.18. The defendant submits that the added costs have not actually been incurred by the Claimant; these are figures plucked out of thin air and applied regardless of facts, as part of their robo-claim litigation model, in an attempt at double recovery, circumventing the Small Claims costs rules. Further, Gladstones Solicitors Limited appear to be in contravention of the Solicitors!!!8217; Regulation Authority Code of Conduct.

15. Under the Protection of Freedoms Act 2012, Schedule 4, a registered keeper can only be held liable for the sum on a properly-served Notice to Keeper (NTK). UK Car Park Management Ltd do not use compliant NTKs, failed to serve one and cannot hold a registered keeper liable.

16.1. 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")
16.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
16.2.1. There was a !!!8216;relevant obligation!!!8217; either by way of a breach of contract, trespass or other tort; and
16.2.2. 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.

16.3. 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.

17. The defendant wrote to the claimant on 11th October 2017 asking for:
a) Full particulars of the parking charges
b) Who the party was that contracted with UK Car Park Management Ltd
c) The full legal identity of the landowner
d) A full copy of the contract with the landholder that demonstrated that UK Car Park Management Ltd had their authority.
e) If the charges were based on damages for breach of contract and if so to provide justification of this sum.
The claimant has not responded with any of the above information.
As Gladstones are a firm of solicitors who!!!8217;s Directors also run the IPC Trade Body and deal with private parking issues every single day of the week there can be no excuse for these omissions.

The Defendant asks that the court orders Further and Better Particulars of Claim and asks leave to amend the Defence.

18. The Claimant has at no time provided an explanation how the !!!8216;parking charge!!!8217; 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.
18.1. 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.
18.2. The driver did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.
18.2.1. 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.

19. The Claimant is attempting to claim additional charges such as solicitors and legal costs of £97.18. The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. The Defendant also has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have indeed been incurred. Furthermore, legal costs cannot be recovered in the Small Claims Court and should be struck out as unrecoverable.

20. I would like the Court to take note that the defendant was then aggressively harassed by letter after letter from different collection agencies, despite not being liable for these made up costs.
21. 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).

22. 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.

23. 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.

24. In view of all the foregoing the court is invited to strike the matter out of its own motion. The claimant is put to strict proof of the assertions they have made or may make in their fuller claim.


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

Name - Signed - Date

geordie777

See above post for my final draft of my defence. My main arguments are no evidence vehicle was parked (1 grainy photo taken from main road), non compliance with CPR, and lack of adequate signage.

Any final thoughts?

Thanks

Coupon-mad

Get rid of #24 as that's repeating the ones before it.

Then swap round, #22 and #23 and re-word to suit, like here where it ends by asking for a strike out for abuse of process, which might catch the Judge's eye:

https://forums.moneysavingexpert.com/discussion/comment/74503811#Comment_74503811

The figure to put in will be the total one on the clam, of £260-odd that they've made up.

geordie777

Hi,

I have today received a copy of the claimant's directions questionnaire, but haven't had my own copy from the court. Do I need to chase this up? Don't want to miss any deadlines for return of mine.
Thanks in advance.

KeithP

Either wait patiently for your own copy through the post of download one from the court website.

[Deleted User]

Download one. Google it.

geordie777

Hi all,

I have now received my court date (21st November) so need to have my witness statement and documents ready for the 7th November.
I am writing my witness statement, and have looked at the examples linked from post 2 of newbies sticky (thanks to everyone).
I have a query - if I refer to the driver ( I was not driving at the time) and detail their version of events, can a judge compel me to name the driver?
And obviously if the other side dispute the driver's version, I can't really comment further in court, as I can only rely on the witness statement. Does that sound right?

Thank you in advance for your advice.

Coupon-mad

I have a query - if I refer to the driver ( I was not driving at the time) and detail their version of events, can a judge compel me to name the driver?

No, the most a Judge might ask would be to clarify if it was you or not. Confidently say no (and point to 2015 POPLA Lead Adjudicator Henry Greenslade's words exhibited with your WS).

And obviously if the other side dispute the driver's version, I can't really comment further in court, as I can only rely on the witness statement.

How can they dispute this?

It was an office carpark, but the ticket was issued for a Sunday, office working days are Monday to Friday.

What details are you putting in the WS; please show us and we'll comment.