Gladstones LBC received

nosferatu1001

YouEasier way to work it out is to go you have 33 days from the date of issue.

All dates are calculated from this date.

DefenCe. With a C. English UK spell checker on please!
Have you read, understood, and read again post 2 of the NEWBIES thread?

cornel1311

nosferatu1001 wrote: »

YouEasier way to work it out is to go you have 33 days from the date of issue.

All dates are calculated from this date.

DefenCe. With a C. English UK spell checker on please!
Have you read, understood, and read again post 2 of the NEWBIES thread?

Yes, I have read post 2 and I have seen examples in which the defendent has used the parking operator appeal system which I have not.

nosferatu1001

Yes, and?
Do you think a defence is a siungular, indivisible entity?
No, its a series of arguments

SO, get going.

KeithP

With a Claim Issue Date of 6th August you have until 4pm on Monday 10th September 2018 to file your Defence.

That's nearly three weeks, but don't leave it to the last minute.

Coupon-mad

I have read post 2 and I have seen examples in which the defendent has used the parking operator appeal system which I have not.

Defendant. Not being funny, these terms must be spelt right in the defence so you may as well be corrected here too!

So search the forum for:

defence court junk mail ignored

and you get lots of defence threads from people who ignored the letters.

cornel1311

IamEmanresu wrote: »

As Quentin says plus the issue of estoppel.

Start sending Subject Access Requests for the pics. Also ask for a copy of the agreement between them and the landowners, copies of the site layout and when the signs were placed (important) and copies of the actual signs. Make sure you have proof you asked as you'll be going for a strike out at the DQ stage.

I am researching other posts to start writing my defence. Am I supposed to only write the defence and send it to court before the due date, or also ask for evidence as stated in the post above?

Defendant files an Acknowledgement of Service and then a defence. You do not have to go into intricate detail, but must mention every defence you have and particularise (ie explain) each aspect of your defence in sufficient detail for it to be understood. If you don't, the risk is that you cannot run certain aspects of your defence later. A defendant is required to make clear in the defence what aspects of the claim are accepted or specifically denied, and which the Claimant is required to prove ("put to full proof"). A defence should be written in the third person ("the Defendant", not "I/my/me")

from my understanding I have to find every point in my favour? ie. the signs are not visible, also the entrance of the parking does not state the possibility of a fine etc.?

Coupon-mad

Sending a SAR to the company is a good idea and is completely separate from filing a defence to the court. In the defence you do have to cover all bases.

cornel1311

Good afternoon everyone,

Here is my draft for the defence that I have to submit by the 10th of September. As suggested by you, I have used as examples several defences on this forum. I have tried to take anything that applies to my particular case. I would be grateful if you could have a look at it and point out any suggestions. Thank you in advance!


1. It is acknowledged that the defendant, xxx, residing at xxx is the registered keeper of the vehicle.

2. It is denied that any "parking charges or indemnity costs", as stated on the Particulars of claim, are owed. Hence, any debt is denied in its entirety.

3. It is denied that the Claimant has authority to bring this claim. 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 states: “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.”

3.1. Given these circumstances, Horizon Parking Ltd is not the lawful occupier of the land. I have 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.
3.2. 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.
3.3. The claimant is not the landowner and suffers no loss whatsoever because of a vehicle parking at the location in question
3.4. The Claimant is put to proof that it has enough 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


4. To the extent that the Claimant may seek to allege that any such presumption exists, 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.

5. //Deleted

6. With regard to the Claimant’s assertion that the Defendant, as keeper of the vehicle, should be presumed to be the driver unless he sufficiently rebuts this presumption, which it claims is a principle established by Elliott v Loake 1983 Crim LR 36, I dispute it:
The case relied upon does not provide that any such presumption can or should be made, nor 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 crimal case.
In the case relied upon there was overwhelming evidence that the keeper of the car was driving it at the relevant time – there is no such evidence in this Claim..

7. If a valid contract exists, the parking charges sought amount to a penalty which is unenforceable and is an unfair term contrary to the Consumer Rights Act 2015.

8. 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. 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 £70 to £140. This appears to be an added cost with apparently no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.

9.1. 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.
9.2. The driver did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.
9.3. The Defendant denies that the driver would have agreed to pay the original demand of £70 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.
9.4. The Claimant described the charge of £70.00 "legal representative’s costs" not "contractual costs". CPR 27.14 does not permit these to be recovered in the Small Claims Court.

10. 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.

11. Due to the length of time, the Defendant has little to no recollection of the day in question. It would not be reasonable to expect a registered keeper to be able to recall the potential driver(s) of the car over 18 months later. In any case, there is no such obligation in law and this was confirmed in the POPLA Annual Report 2015 by parking expert barrister and Lead Adjudicator, Henry Greenslade, who also clarified the fact that registered keeper can only be held liable under the POFA Schedule 4 and not by presumption or any other legal argument.

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 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).


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

Name - Signed – Date

Coupon-mad

xxx, residing at xxx

Remove your name and address here, not needed as the headings already identify you (as does your signature at the bottom).

Address is not needed in a defence. Technically - from my reading of the CPRs - I believe a date of birth is! Even though we never tell people that, and it's never a problem.

Other thoughts:

The POFA is ''Freedoms'' (plural).


This is wrong, it's taken from an old-ish defence that wrongly muddled up the two meanings of 'contract' so remove the bits crossed out:

3. It is denied that the Claimant has authority to bring this claim. 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).

[STRIKE]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 states: “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.”

3.1. Given these circumstances,[/STRIKE]

...then move this down to be #5 & remove the waffle I've crossed out:

Horizon Parking Ltd is not the lawful occupier of the land. I have reasonable belief that they are mere agents acting 'on behalf of' a landholder, and 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.
[STRIKE]3.2. 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.
3.3. The claimant is not the landowner and suffers no loss whatsoever because of a vehicle parking at the location in question
3.4. The Claimant is put to proof that it has enough 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[/STRIKE]

Replace this:

[STRIKE]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 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).

Statement of Truth: I confirm that the above facts and statements are true to the best of my knowledge and recollection.
[/STRIKE]

...with an ending like this instead:

https://forums.moneysavingexpert.com/discussion/comment/74710387#Comment_74710387


Finally, really important - I see no 'The facts are' near the top, so we have no idea what your defence even is!

Search the forum for bargepole defence and see a concise example he wrote recently where he is straight in with a defence point about the facts of the case. Copy that style.

KeithP

When you are happy with the content, your Defence should be filed via email as described here:

1) Print the Defence.
2) Sign it and date it.
3) Scan the signed document back in and save it as a pdf.
4) Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
5) Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
6) Log into MCOL after a few days to see if the Claim is marked "defended". If not, you should chase the CCBC until it is.
7) Wait patiently for your Directions Questionnaire.