PCM Parking fine - Heath Parade NW9

KeithP

Well yes... if you haven't filed an acknowledgement of service before 14 days from the date of service the Claimant is free to seek a Default Judgment.

Don't get too hung up on it.

Do the AoS sometime next week if you'd prefer... just don't forget to do it.

Dhudds

Great. Thank you KeithP.
I will let you know once AoS is done.

Dhudds

Hi All,

The AoS is submitted.
I should start writing up my defence following the post #2 of the NEWBIES FAQ. Any comments welcome.

nosferatu1001

Comments once youve shown us your draft
Its important you understand YOUR defence.

Dhudds

Hi All,
After some research about a defence format, below is what I've drafted. Anyway, this is my full defence it's a long read, but if anyone can provide feedback that would be very much appreciated.
Also should I prepare my counterclaim?

---

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:!

UK CAR PARK MANAGEMENT LTD (Claimant)

-and-

xxxxxxxxxxxx (Defendant)

________________________________________
DEFENCE
________________________________________


It is acknowledged that at all material times the defendant, XXXX, residing at XXXXX is the registered keeper of the vehicle in question.

Denial of claim:

The claim [Parking Charge number and court claim number] is denied in its entirety except where explicitly admitted here. I assert that I am not liable to the Claimant for the sum claimed, or any amount at all, for the following reasons, any one of which is fatal to the Claimant's case.

1. The Particulars of Claim lack specificity and are embarrassing. The claimant is prejudiced and is unable to prepare a full and complete claim, failing to meet CPR16.4 and PD16 7.3-7.5 and merely provide a date, due date, and an "amount" consisting of a completely unsubstantiated and inflated three-figure sum, vaguely and incoherently adduced by the claimant's solicitors. 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 un-evidenced 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. The Defendant has reason to believe to their significant detriment that this is a claim that will proceed without any facts or evidence supplied until the last possible minute. A punitive costs order will be sought against the Claimant and a wasted costs order against its solicitors.
1.3. 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. It is admitted that the Defendant's vehicle was stopped on the material date, for a very short period of time, 1 minute and 20 seconds. 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.


3. The Defendant received a Notice to Keeper from the Claimant, alleging that a charge of £100 was due to them. It is asserted that no reasonable person, of whatever means, would willingly agree to pay a charge of £100 as a consequence of instantly stopping on a public highway, if they had the opportunity to negotiate the contract on equal terms with the other contracting party.!An appeal was sent to the Claimant, which was rejected. But not a further appeal to the Independent Appeals Service (IAS), the allegedly independent body appointed by the Claimant's trade body, the Independent Parking Committee (IPC). Research revealed that the IAS, far from being independent, is a subsidiary of the IPC, which in turn is owned and run by the same two Directors who also run Gladstones Solicitors, the individuals in question being John Davies, and William Hurley. Such an incestuous relationship is incapable of providing any fair means for motorists to challenge parking charges, as well as potentially breaching the SRA Code of Conduct. As such, the Claimant does not come to this matter with clean hands.

4. The Claimant failed three times to reply to Defendant Letter Before Court Claim and to address the Defendant’s queries, leaving them non-compliant with the Practice direction on pre-action conduct (paragraphs 6(a) and 6(c)) and the new Pre-Action Protocol for Debt Claims (paragraphs 3.1(a)-(d), 5.1 and 5.2. The information was requested as early as [date or month/year of first request] yet the claimant refused to provide all the requested information and documents and therefore claimants should not issue proceedings without complying with that protocol. Therefore the Defendant will be relying on the cases of!Webb Resolutions Ltd v Waller Needham & Green [2012] EWHC 3529 (Ch), Daejan Investments Limited v The Park West Club Limited (Part 20); Buxton Associates [2003] EWHC 2872, Charles Church Developments Ltd v Stent Foundations Limited & Peter Dann Limited [2007] EWHC 855!and inviting the court to impose sanctions on claimant and order a stay of the proceedings, pursuant to paragraphs 13 ,15(b) and (c) and 16 of the Practice Direction, as referred to in paragraph 7.2 of the Protocol.!


This prejudiced the Defendant from vital information such as:

4.1. A clear summary of facts on which the claim is based.
4.2. A list of the relevant documents on which the Defendant intends to rely on.
4.3. Copy of the contract with the landowner under which the claimant assert authority to bring the claim, as required by the IPC code of practice section B, Clause 1.1, “Establishing yourself as the creditor”
4.4. How the increased 'charge amount' of £160 has been calculated and justified.
4.5. A confirmation if they are relying on the provision od Schedule 4 of POFA 2012.

5. 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'. 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, in this case Peel Land & Property Ltd. No evidence of such authority was supplied by the Claimant at any time, and the Claimant is put to strict proof of same, in the form of an underacted and contemporaneous contract, or chain of authority, from the landowner to the Claimant. Thus far the Claimant has provided no proof of any such entitlement.!
6. No evidence has been provided that the Claimant has standing to bring this claim: it was not identified on the signage, nor the notice to driver, and the Defendant has reason to believe that it is not named in the parking contract.!In fact, the conflicting signage one stating Genesis Housing and the other PCM UK it is unclear which contract was formed. From the Defendant's due diligence, the registered landowner of the layby is 'CHOICES FOR GRAHAME PARK LIMITED (Co. Regn. No.05303074)' Title Number NGL931573 of Capital House, 25 Chapel Street, London NW1 5DT. Therefore, if any document presented by the Claimant from "Genesis Housing Association" purporting to be the freeholder and providing the Claimant authority to issue parking tickets is regarded invalid.
7. The site appears to be a lay-by and part of the public highway and there was no information close enough to be read by an approaching driver to suggest it is private land or otherwise restricted. Neither there are any physical barriers preventing public vehicle access.!

8. On the material date, the vehicle is shown as stopped for a very brief period of time (1 minute and 20 seconds) with the vehicle unlocked and Defendant’s son sitting in the passenger side and remained in the car. Photographs obtained from the Claimant’s website will be provided to support this. There was no nearby signage prohibiting a driver from entering the area. It is clear that the signs were so high and the writing so small it cannot be read from a vehicle or even by a pedestrian until right by the sign. At the time of stopping the car the parking warden with a private suite standing behind Defendant’s car on the layby waiting for a hunt. As soon the care stopped the parking warden manually took photographs of the vehicle. If the parking company genuinely wished to prevent parking, the warden could politely ask the Defendant or other drivers in similar situation to leave immediately.

9. The IPC code of conduct states that a grace period must be allowed in order that a driver might spot signage, go up to it, read it and then decide whether to accept the terms or not. A reasonable grace period in any car park would be from 5-15 minutes from the period of stopping. This grace period was not observed and therefore the operator is in breach of the industry code of practice. Additionally, no contract can be in place by conduct until a reasonable period elapses.


10. The Claimant's signage with the largest font at this site states!“No Customer Parking At Any Time”. A further sign with much smaller writing and higher up states!“The loading bay is only for authorised vehicles actively loading & unloading when delivering to the commercial tenants of Heath!parade”.!Not only is the further sign illegible to anyone without a microscope but it is submitted that if these notices are attempting to make a contractual offer, then as they are forbidding they do not fulfil the basic requirement of a contract, which is that each party to the contract must offer valuable consideration to the other party, on clear terms capable of acceptance. In this case neither the Claimant, nor their principal the landowner, is offering anything to motorists. The notices cannot, therefore, reasonably be construed as having created a contractual relationship between the Claimant and the Defendant.!

11. The above point was recently tested in the County Court at High Wycombe, in the case of Parking Control Management (UK) Ltd v Bull & 2 Others (B4GF26K6, 21 April 2016), where District Judge Glen dismissed all three claims, stating in his judgment that:!"If the notice had said no more than if you park on this roadway you agree to pay a charge then it would have been implicit that PCM was saying we will allow you to park on this roadway if you pay £100 and I would agree with Mr Samuels' first analysis that essentially the £100 was a part of the core consideration for the licence and was not a penalty for breach. The difficulty is that this notice does not say that at all. This notice is an absolute prohibition against parking at any time, for any period, on the roadway. It is impossible to construct out of this in any way, either actually or contingently or conditionally, any permission for anyone to park on the roadway. All this is essentially saying is you must not trespass on the roadway. If you do we are giving ourselves, and we are dressing it up in the form of a contract, the right to charge you a sum of money which really would be damages for trespass, assuming of course that the claimant had any interest in the land in order to proceed in trespass."

12. While this is a County Court decision and therefore not binding, it is on all fours with the present case and may be considered as persuasive. A full transcript of the Approved Judgment for the above case will be provided in the event that this case proceeds to a hearing.

13. In Beavis vs ParkingEye case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were large lettering on all signs according to the Judges. By comparison the signs provided by the Claimant fails as an example of the large lettering that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park, a contract and agreement on the charge existed.

14. In addition, the Consumer Rights Act 2015 rules that if signage has multiple interpretation the interpretation most favourable to the consumer applies. It is clear from this the signage with the largest font should apply.

15. In the alternative, if it was held that the signage was contractually valid, it would be impossible for a motorist to have read the terms and conditions contained therein from a moving or stopped vehicle, and if the vehicle is stopped, the 'contravention' according to the Claimant is already committed.

16. The above point was tested in several cases regarding Hayes and Harlington station. There a similar situation arises as the vehicles were charged for briefly stopping but the signs are far away from vehicles and high up. In all cases it was ruled that no contract was entered by performance as the signage could not be read from a vehicle. No transcripts are available but as PCM UK were the Claimant in all cases they will be fully aware of the cases; C3GF46K8, C3GF44K8, C3GFY8K8.

17. Thus the signage is simply a device to entrap motorists into a situation whereby the Claimant sends them invoices for unwarranted and unjustified charges, for which motorists can have no contractual liability due to the terms and conditions not having been sufficiently brought to their attention. This activity is bordering on, if not actually crossing the boundary of, a criminal offence of Fraud by False Representation.

18. The Defendant notes since the material event additional signage has been added by Sainsbury, which can only suggest that the existing signage provided by the Claimant had not been clear enough for motorists.

Wholly unreasonable and vexatious claim

19. 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).

20. 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 loading and alighting at Loading bays is not something the Courts should be seen to support.

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. There has been recent discussions at the House of Commons about the Parking (Code of Practice) Bill, and the rogue industry, which can be read here:!https://hansard.parliament.uk/commons/2018-02-02/debates/CC84AF5E-AC6E-4E14-81B1-066E6A892807/Parking(CodeOfPractice)Bill

23. 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.!

24. 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.

25. In addition to the £100 'parking charge', for which liability is denied, the Claimant's legal representatives, Gladstones Solicitors, have artificially inflated the value of the Claim by adding costs of £50 which I submit have not actually been incurred by the Claimant, and which are artificially invented figures in an attempt to circumvent the Small Claims costs rules using double recovery. The Court is invited to report Gladstones Solicitors to the Solicitors' Regulation Authority for this deliberate attempt to mislead the Court, in contravention of their Code of Conduct.

26. The parking charges sought are not a genuine pre-estimate of loss, but an extravagant penalty, and therefore unenforceable. In the Beavis case, the Supreme Court was only prepared to accept a charge of £85 sufficient to act as a disincentive. The Supreme Court had previously stated that £135 would be unacceptable (ParkingEye v Somerfield). The charge of £125 to the Defendant is clearly extravagant and disproportionate to the Claimant's interest and in fact comprises non-contractual elements.

27. The Court is invited to dismiss this Claim, and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14.



Statement of Truth:!
I believe that the facts stated in this Witness Statement are true.
Full name: [NAME]
Address: [ADDRESS]
Dated

Signed: __________________________________

bargepole

Fixed this for you. I've taken out all the waffle and repetition, and removed the irrelevant rants about stuff which you can't prove. Also you don't put your address in a Defence, and you don't cite specific cases, that comes later in the process. Please also note that you have wrongly identified the Claimant in your version, the correct name is as below:


IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

Between:

PCM (UK) LTD (Claimant)

-and-

xxxxxxxxxxxx (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(s)” incurred on [DATE]. 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 facts are that the Defendant's vehicle was stopped on the material date, for a very short period of time, 1 minute and 20 seconds. The location in question is a layby which appears to be part of the public highway, and is not signposted such that any reasonable person would conclude that it was subject to private enforcement of parking restrictions.

4. The Claimant's signage with the largest font at this site states “No Customer Parking At Any Time”. A further sign with much smaller writing and higher up states “The loading bay is only for authorised vehicles actively loading & unloading when delivering to the commercial tenants of Heath Parade”. This wording does not make any contractual offer capable of being accepted by drivers, and in the absence of an offer on clear terms, no contract can be construed. Accordingly, the Defendant denies having breached any contractual terms, whether express, implied, or by conduct.

5. The signage is simply a device to entrap motorists into a situation whereby the Claimant sends them invoices for unwarranted and unjustified charges, for which motorists can have no contractual liability due to the terms and conditions not having been sufficiently brought to their attention, or containing a valid contractual offer. This activity is bordering on, if not actually crossing the boundary of, a criminal offence of Fraud by False Representation.

6. A number of persuasive judgments, dismissing claims brought by the same Claimant have been given by various District Judges in different County Court hearing centres, based upon the above points. The Defendant will provide transcripts should this matter proceed to a hearing.

7. The Claimant's legal representatives failed three times to reply to the Defendant's queries arising from the Letter Before Court Claim, and therefore failed to comply with the Practice Direction on pre-action conduct (paragraphs 6(a) and 6(c)) and the new Pre-Action Protocol for Debt Claims (paragraphs 3.1(a)-(d), 5.1 and 5.2). Such conduct may be considered prejudicial to the Defendant.

8. 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, in this case Peel Land & Property Ltd. No evidence of such authority was supplied by the Claimant at any time, and the Claimant is put to strict proof of same, in the form of an underacted and contemporaneous contract, or chain of authority, from the landowner to the Claimant. To date, the Claimant has provided no evidence of any such entitlement.

9. In addition to the £100 'parking charge', for which liability is denied, the Claimant's legal representatives, Gladstones Solicitors, have artificially inflated the value of the Claim by adding costs of £50 which, it is submitted, have not actually been incurred by the Claimant, and which are artificially invented figures in an attempt to circumvent the Small Claims costs rules using double recovery

10. The Court is invited to dismiss this Claim in its entirety, and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14.

Statement of Truth:

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

Full name: [NAME]
Dated
Signature

KeithP

I would make one very slight change to Bargepole's excellent Defence -

Change the Statement of Truth to mention Defence rather than Witness Statement.

bargepole

KeithP wrote: »

I would make one very slight change to Bargepole's excellent Defence -

Change the Statement of Truth to mention Defence rather than Witness Statement.

Oops! Noted, and edited.

Dhudds

Dear Bargepole,

Thank you so much for your time and effort correcting and revising the defence. As KeithP commented it's indeed an excellent Defence. Much apprecaited.
What do you suggest for Counter claim?

Dhudds

Also the claimant is asking the following in the claim form:
Amount Claimed: £175
Court fee: £25.00
Legal representative's cost: £50.00

The original fine was £60 then it increased to £100 and later to £160 however in the claim form it's increased to £175 which the claimant saying it has added the interest on top of £160.
So in section 9 of the defence should I say £100 or £165?