Judge Iyer request to deal on papers

The_Deep

Personally, I would attend, even If I was not called upon to speak, it costs the PPC money.

This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors.

Parking Eye, CPM, Smart, and another company have already been named and shamed, as has Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each year). They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

Hospital car parks and residential complex tickets have been especially mentioned.

The problem has become so rampant that MPs have agreed to enact a Bill to regulate these scammers. Watch the video of the Second Reading in the HofC recently.

http://parliamentlive.tv/event/index/2f0384f2-eba5-4fff-ab07-cf24b6a22918?in=12:49:41

and complain in the most robust terms to your MP. With a fair wind they will be out of business by Christmas.

Loadsofchildren123

The OP seems aware that we never recommend paper only hearings.


However, the OP has identified that this is DJ Iyer. DJ Iyer hates PPCs and regularly finds against them. He already gave them the runaround, making them file proper PoCs.


Have you got a good solid defence OP? If yes, then as it's Iyer perhaps go with the paper hearing. Reading between the lines, Iyer has already decided what he's going to do and is trying to save you the bother of attending.


It's way too late to throw in a counterclaim, which someone else has mentioned. A counterclaim has to go in at the same time as the Defence. It can be added later, but you'd have to apply for permission and that would cost you an application fee of either £100 (decision on the papers without a hearing) or £255 (if it needs a hearing).

ld123

Hello

I am wondering if I can get some advice on my witness statement. I'm not sure how much detail I need to go in to or what I should include here, so firstly I've included my original defence below.


Preliminary

1. 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 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 unevidenced 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. I have reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to my significant detriment as an unrepresented Defendant.

2. 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.

2.1 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.

2.2 The Defendant has discovered that the Claimant's Trade Body, the Independent Parking Committee (IPC), is an organisation operated by the same Directors as are/were recorded at Gladstones Solicitors, at least until very recently. They - John Davies and Will Hurley - are also responsible for the IAS.

2.3 The Defendant now submits that the IAS 'decision' should be disregarded; it is ostensibly described as an appeal service, yet the Assessors' names remain secret. No figures or reports are published by the IAS but the publication 'Parking Review' reported that only 20% of appeals were upheld (compared to POPLA where 50% have consistently been upheld since its inception in 2012).

2.4 Now the Defendant notes that Gladstones are employed in bringing this claim, demonstrating a clear conflict of interests.

Background

3. It is admitted that at all material times the Defendant was the authorised registered keeper of the vehicle in question.

4. It is believed that it will be a matter of common ground that claim relates to 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 xxxxx when it was parked on the land at xxxxx

4.1 For the avoidance of doubt, not only is any debt denied, but it is confidently argued that the Defendant, as a resident who had an ongoing monthly payment to rent the right to park on the land, has primacy of contract within an existing lease and had already paid for parking, using an App which did not set out within that distance contract, any possible tariff or 'parking charge' as unconscionable as £100, nor were any additional charges stated under the terms and nor was it stated that further T&Cs on signage were incorporated into the parking App contract.

Rebuttal of Claim

5. The Defendant made all reasonable efforts to make payment for parking by using an approved payment channel.

5.1. Payment for parking was made monthly via mobile app using a cashless system provided by PayByPhone.

5.2. This is a distance contract which requires certain information to be supplied in advance.

5.3. The service makes no provision for the printing of a ticket to display.

5.4. The Defendant paid monthly sums of £45.30 via the PayByPhone app in exchange for parking on the land for 30 days from payment.

5.5. The payment channel promised to notify the user before the expiry of each monthly ticket in order to renew the parking charge for a further 30 days, something which regularly failed to happen. As such the Defendant believed the necessary payment had been made.

5.6. The defendant has invoice receipts from the PayByPhone app from 5 monthly payments for this car park totalling £228.80, as well as 4 daily payments of £2.30 each in addition, proving the defendant was regularly paying the charge for this car park and was not intentionally setting out to avoid payment. The defendant can also provide further bank statements spanning a 12 month period, as the PayByPhone app only records the previous 10 payments.

5.7. The regular failure of the payment service to notify payment is due and often to take payment at all is not the Defendants responsibility. It is not reasonable in these circumstances for the driver to assume any more obligations for making the payment. In Jolley v Carmel Ltd [2000] 2 –EGLR -154, it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach when unable to fully comply with the terms.

5.8. When the PCN was noted the app was checked which showed no record of the payment or notification of its failure. Successful payment for the parking is shown at 8.59am the day after the alleged breaching of terms. The PayByPhone app unfortunately does not show any more than 10 transactions, meaning the defendant does not have access to a receipt for when the previous months agreement expired.

5.9. The car park was used again for the same times the following four months and has been used before, always being paid for.

5.10. The car park in question is no longer owned, managed or controlled by SIP and has since had planning permission agreed for residential properties.


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


7. The Defendant denies that they 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.

7.1. The amount demanded is excessive and unconscionable and especially so when compared to the level of Penalty Charge Notice issued by the local Council which is set at £50 or £25 if paid within 14 days.

Frustration of contract and distance contract, non communicated failure of claimants payment system

8. The PCN stated the contravention as “No ticket displayed.” This cannot be a contravention when a driver uses the Pay by Phone option as the driver in this case did when paying a regular monthly charge over a period of twelve months to park in the car park for 30 days at a time.


9. It is denied that:

9.1. A contract was formed, and it is further denied that any contravention of ''no ticket displayed'' occurred or can have occurred when using the Pay by Phone option, the failure of which was not communicated to me nor was it within my control. Even if a contract was potentially formed it was frustrated by the unexpected and uncommunicated failure of the Claimant's app, and it is trite law that no party can be held liable for breach to another under such circumstances of frustration of contract.

9.2. There was any agreement to pay a parking charge.

9.3. That there were Terms and Conditions prominently displayed around the site which communicated any additional punitive parking charge (effectively a private 'fine') in large lettering, in a clear and concise way, on a par with the tariff signs where the fees were advertised in the largest font. By contrast, the 'parking charge' is positively buried in small print, contrary to Lord Denning's 'Red Hand Rule' and contrary to the requirements of the Consumer Rights Act 2015.

9.4. That in addition to the parking charge there was any agreement to pay additional and unspecified additional sums, which are in any case unsupported by the Beavis case and unsupported for cases on the small claims track.

9.5. The claimant company fully complied with their obligations within the International Parking Community Code of Practice of which they were member at the time.

9.6. The Pay by Phone app, being indisputably an offer of a 'distance contract', complied with the The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, which says: ''Confirmation of distance contracts: 16.—(1) In the case of a distance contract the trader must give the consumer confirmation of the contract on a durable medium. (2) The confirmation must include all the information referred to in Schedule 2 unless the trader has already provided that information to the consumer on a durable medium prior to the conclusion of the distance contract. (3) If the contract is for the supply of digital content not on a tangible medium and the consumer has given the consent and acknowledgment referred to in regulation 37(1)(a) and (b), the confirmation must include confirmation of the consent and acknowledgement.''

10. It is further denied that the Defendant is liable for the purported debt.

In the Alternative: Failure to set out clear parking terms - ParkingEye Ltd v Beavis (2015) UKSC 67 distinguished

11. The Defendant relies upon ParkingEye Ltd v Beavis, insofar as the Court were only willing to exempt a parking charge from falling foul of the penalty rule which would normally render it unrecoverable, in the context of a site of commercial value, where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.

11.1. The Defendant avers that the parking signage in this matter was, without prejudice to his primary defence above, inadequate.

11.2. The car park is in fact wasteland, with no marked bays and no clear signage as to where the car park starts and ends, whilst being completely unmaintained, with large pot holes and craters in the ground, regularly causing damage to the vehicles parked there.

11.3. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation; The signage on and around the site in question was unclear and not prominent and did not meet the British Parking Association (BPA) Code of Practice or the International Parking Community (IPC) Code of Practice. The Claimant was a member of the IPC at the time and committed to follow its requirements. Therefore no contract has been formed with driver to pay the amount demanded by the Claimant, or any additional fee charged if unpaid in 28 days.

11.4. The size of font of the prices advised for parking is much larger than the font of the contract and the offer was not sufficiently brought to the attention of the motorist, nor are the onerous terms (the £100 parking charge) sufficiently prominent to satisfy Lord Dennings "red hand rule”.

11.5. In the absence of ‘adequate notice’ of the terms and the charge (which must be in large prominent letters such as the brief, clear and multiple signs in the Beavis case) this fails to meet the requirements of Schedule 4 of the POFA.

11.6. The PayByPhone signage specifically states that there is “No need to display a ticket in your car” therefore there was no breach of any ‘relevant obligation’ or ‘relevant contract’ as required under Schedule 4 of POFA.

11.7. If the Claimant wanted to impose a condition to continuously display permits, then they should have drafted clear instruction to that effect, requiring specific terms of how to 'continuously display' when a paper ticket has not been issued or there is no contravention.

11.8. Where contract terms have different meanings, as in this instance when a paper ticket was not issued due to the chosen method of payment, then Section 69 of the CRA 2015 provides a statutory form of the contra proferentem rule, such that the consumer must be given the benefit of the doubt. The term is fundamental to the contract, and the Defendant invites the Court to find that it is not transparent and therefore unfair. If a fundamental term to the contract is deemed to be unfair, then the contract will cease to bind the parties. The Defence invites the Court to take these issues into account in determining the fairness of the term.

11.9 The charge is, accordingly, unconscionable in this context, with ParkingEye v Beavis distinguished.

Non-disclosure of reasonable grounds or particulars for bringing a claim

12. SIP Parking Ltd are not the lawful occupier of the land. The Defendant has 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.

12.1. 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.

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

12.3. 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

12.4. The Particulars of Claim are deficient in establishing whether the claim is brought in trespass. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then 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 claiming for a nominal sum.

13. The Particulars of Claim fail to fulfil CPR Part 16.4 because it does not include a statement of the facts on which the claimant relies, only referring to a Parking Charge Notice with no further description; it fails to establish a cause of action which would enable the Defendant to prepare a specific defence: ‘The driver of the vehicle registration xxxxx (the ‘Vehicle’ incurred the parking charge(s) on xxxx for breaching the terms of parking on the land at xxxx The Defendant was driving the Vehicle and/or is the Keeper of the Vehicle AND THE CLAIMANT CLAIMS £160.00 for Parking Charges / Damages and indemnity costs if applicable, together with interest of £7.69 pursuant to s69 of the County Courts Act 1984 at 8% pa, continuing to Judgement at £0.04 per day’

14. The claimant has not provided enough details in the particulars of claim to file a full defence. In particular, the full details of the contract which it is alleged was broken have not been provided.

14.1. The Claimant has disclosed no cause of action to give rise to any debt.

14.2. The Claimant has stated that a parking charge was incurred.

14.3. 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.

14.4 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 “parking charges” 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.

15. The Defendant invites the court to strike out or dismiss the claim under Rule 3.4(2)(a) of PRACTICE DIRECTION 3A as having not set out a concise statement of the nature of the claim or disclosed reasonable grounds or particulars for bringing a claim (Part 16.4(1)(a) and PRACTICE DIRECTION 16 paragraphs 3.1-3.8). In C3GF84Y (Mason, Plymouth County Court), the judge struck out the claim brought by KBT Cornwall Ltd as Gladstones Solicitors had not submitted proper Particulars of Claim, and similar reasons were cited by District Judge Cross of St Albans County Court on 20/09/16 where another relevant poorly pleaded private parking charge claim by Gladstones was struck out without a hearing due to their ‘roboclaim’ particulars being incoherent, failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''. The Practice Direction also sets out the following example which is analogous to this claim: ‘those which set out no facts indicating what the claim is about, for example ‘Money owed £5000’.’


Wholly unreasonable and vexatious claim
16. The Claimant’s representatives, Gladstones, have artificially inflated the value of the Claim from £100, to a total sum of £242.69 The charge is steep considering a 24 hour stay in this car park was priced at just £2 at the time. The Defendant submits the added costs have not actually been incurred by the Claimant; that these are figures plucked out of thin air and applied regardless of facts.

16.1. If the “parking charge” listed in the particulars of claim is to be considered a written agreement between Defendant and Claimant then under 7.3, the particulars fail to include “a copy of the contract or documents constituting the agreement”.

16.2. The Claimant has at no time provided an explanation how the sum has been calculated, the conduct that gave rise to it or how the amount has climbed from £100 to £167.69. This appears to be an added cost with apparently no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.

16.3. 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.


17. 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).

18. 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 parking at their own homes is not something the Courts should be seen to support.


19. 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).


20. 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.


21. 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.

Quentin

That's not a WS - it's a defence rehash


Forget that and read up on the WS in the newbies faq thread #2

Coupon-mad

That's a defence, not a WS. How do so many posters find this easy stage hard?

Look at the example WS and evidence in the NEWBIES thread if you want to win on the papers. You have to give DJ Iyer the paperwork and evidence that he can use!

ld123

As this is now to be heard on papers by DJ Iyer, I'm unsure how thorough the witness statement needs to be and what it should include. Presumably;

1. Evidence of past receipts for carpark payments
2. Photographs of the building site where the carpark used to be?
3. Jolley v Carmel Ltd [2000] 2 !!!8211;EGLR -154

Would I also need to include the below which I referenced in my defence -
4. Lord Denning's 'Red Hand Rule'
5. Consumer Rights Act 2015.
6. The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013
7. ParkingEye Ltd v Beavis (2015) UKSC 67 distinguished
8. Section 69 of the CRA 2015
9. Rule 3.4(2)(a) of PRACTICE DIRECTION 3A
10. (Part 16.4(1)(a) and PRACTICE DIRECTION 16 paragraphs 3.1-3.8)


Thanks in advance for any advice!

ld123

I was posting my defence for reference? I'm asking what I would need to include in terms of the evidence

Quentin

Have you read up as advised in #15 & #16


Seeing as you posted again within minutes of the advice I doubt you have bothered!

ld123

I posted again because I hadn’t finished my question. Because I’ve seen countless irritable messages when there hasn’t been enough information included, too much info in one post, post not formatted correctly. I was trying to avoid getting a roasting for any of this but alas!

I’ve read the newbies thread, and combed back through my defence to pull out what I included in the defence which I then need to include in the witness statement, in terms of evidence.

Coupon-mad

Ah OK, sorry we didn't realise you were re-posting the defence for reference!

We are also very quick to reply, sometimes too quick!

Please can we start again, we are a lovely bunch really, but the amount of spoon-feeding I've done today (even telling someone how to Google the equivalent of 'Control & F' on a MAC...when he uses a MAC and I don't) is unbelievable.

You don't sound like someone who needs spoonfeeding so we are all ears/eyes.