Gladstones claim form received

Ezisola

Just to add, I've got photos of the signage at the time of the incident showing no requirement to display a permit. It appears UKCPM have since added the term on their signs. I assume this could be used as a major point that no contract has been broken, and have included it in defence point #6.3


Sign before: hxxps://dropbox.com/s/db3o7wkgrqto3ge/Sign1.jpg
Sign after: hxxps://dropbox.com/s/uq14ld4ff6dgnf6/Sign2.jpg

KeithP

And the simple fact that the wording on the signs has recently been changed clearly demonstrates that the wording was previously inadequate.

Coupon-mad

Ezisola wrote: »

Just to add, I've got photos of the signage at the time of the incident showing no requirement to display a permit. It appears UKCPM have since added the term on their signs. I assume this could be used as a major point that no contract has been broken, and have included it in defence point #6.3


Sign before: https://www.dropbox.com/s/db3o7wkgrqto3ge/Sign1.jpg

Sign after: https://www.dropbox.com/s/uq14ld4ff6dgnf6/Sign2.jpg

That is dynamite, and could even make your case worth adding a counter-claim £££ - because there was never a contravention of a signed term, and so UKCPM had no right or reasonable excuse to obtain your DVLA data (assuming you didn't appeal before they went to the DVLA).

And so they had no reasonable cause under the KADOE rules (DVLA) and they then breached the DPA by processing your data unlawfully and demanding money on the back of data that they should never have been storing or processing.

Ezisola

Coupon-mad wrote: »

That is dynamite, and could even make your case worth adding a counter-claim £££ - because there was never a contravention of a signed term, and so UKCPM had no right or reasonable excuse to obtain your DVLA data (assuming you didn't appeal before they went to the DVLA).

Thank you CM. Do you think it worth highlighting this specific point more in the defence? Or leave it as is?

nosferatu1001

Yes, of course you highlight it!

You state that the Claimants signage made no requirement to display a permit, and therefore there was never a breach of any term. Since the material date the claimant has added such a requirement to their signs.

You then add on a counterclaim, for
1) Misuse of data
2) harassment

Ezisola

nosferatu1001 wrote: »

Yes, of course you highlight it!

You state that the Claimants signage made no requirement to display a permit, and therefore there was never a breach of any term. Since the material date the claimant has added such a requirement to their signs.

Thank you, I have moved the point on that up to section (1) of the defence and moved some of the paragraphs around so it flows better;






IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

UK CAR PARK MANAGEMENT LTD (Claimant)

-and-

xxxxxxxxxxxx (Defendant)

________________________________________
DEFENCE
________________________________________


Background


1. The Defendant is the registered keeper of the vehicle registration XXX
2. The vehicle was parked in a parking bay within XXXX business park allocated to XXX company
3. The vehicle had a valid permit to be parked in the parking bay within XXXX business park allocated to XXX company
4. Despite the vehicle having a valid permit to park and the permit being displayed on the dashboard, the vehicle was issued with a PCN on 17/05/2017.

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;
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.”

2. The particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached. Nor do the particulars of claim specify whether they are pursuing the defendant as the registered keeper of the vehicle or as the assumed driver. 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.
Practice Direction 3A which references Civil Procedure Rule 3.4 illustrates this point:

2.1 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):
2.2 those which set out no facts indicating what the claim is about, for example “Money
owed £1000”,
2.3 those which are incoherent and make no sense,
2.4 those which contain a coherent set of facts but those facts, even if true, do not
disclose any legally recognisable claim against the defendant


3. The Claimant has not complied with the pre-court protocol.

3.1 I'd refer the court to Para 4 on non-compliance and sanction, and I'd also point out
that there can be no reasonable excuse for the Claimant's failure to follow the
Pre-action Conduct process, especially bearing in mind that the Claim was issued by
their own Solicitors so they clearly had legal advice before issuing proceedings.

3.2 There was no compliant Letter before County Court Claim, under the Practice Direction.

3.3 This is a speculative serial litigant, issuing a large number of draft particulars. The badly mail-merged documents contain very little information.

3.4 The Schedule of Information is sparse of detailed information.

On the basis of the above, we request the court strike out the claim for want of a
cause of action.

The Defendant denies liability for the entirety of the claim for the following reasons:

(1). The Claimant's increasingly demanding letters failed to evidence any contravention of signage.

1.1. The signage states “Corresponding Permit Holders Only”, which the driver was.
1.2. The signage does not contain any requirement to display a permit, therefore there was no breach of any obligation or relevant contract; as required under Schedule 4 of POFA.

(2). 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.
2.1. The Claimant has disclosed no specific cause of action to give rise to any debt.
2.2. The Claimant has stated that a parking charge was incurred.
2.3. 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.
2.4. 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 / Damages” 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.
2.5. The claimant’s signage is inadequate, it details only that vehicles are parked correctly within their allocated parking bay. It gives no indication of what defines as correctly parked, nor which bays are allocated to whom.
2.6. 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 particulars being incoherent, failing to comply with CPR. 16.4 and providing no facts that could give rise to any apparent claim in law
a) On the 27th July 2016 DJ Anson sitting at Preston County Court ruled that the very
similar parking charge particulars of claim were inefficient and failing to meet CPR 16.4
and PD 16 paragraphs 7.3 & 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.

(3). The Claimant has not complied with the pre-court protocol.

3.1. I'd refer the court to Para 4 on non-compliance and sanction, and I'd also point out
that there can be no reasonable excuse for the Claimant's failure to follow the Pre-
action Conduct process, especially bearing in mind that the Claim was issued by their
own Solicitors so they clearly had legal advice before issuing proceedings.

(4). UK Car Park Management are not the lawful occupier of the land.

UK Car Park Management have provided no evidence that they have the authority to issue charges on this land in their own name and that they have rights to bring action regarding this claim.

4.1. 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.
4.2. The claimant is not the landowner and suffers no loss whatsoever as a result of a
vehicle parking at the location in question
4.3. The Claimant is put to strict 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.

(5). The signage was inadequate to form a contract with the driver.

5.1. The signage on this site is inadequate to form a contract. It is in small font which is impossible to read from a passing vehicle.
5.2. The signage is in such a position that anyone attempting to read the tiny font would need to stand directly infront of a dangerous access ramp with poor visibility.
5.3. 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.


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

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.

(7). The Claimant has at no time provided an explanation how the sum has been
calculated

7.1. 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 £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.
7.2. 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.

(8) The Claimant has added on unrecoverable fees

8.1. 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 ”local recovery agent”, which suggested to the Defendant they would be calling round like bailiffs.
8.2. 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 sign.
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.
8.3. The Defendant also disputes that the Claimant has incurred £50 legal representatives’ costs.
8.4. The Defendant has the reasonable belief that the Claimant has not incurred £50 costs
to pursue an alleged £100 debt.
8.5. Notwithstanding the Defendant's belief, the costs are in any case not recoverable.
8.6. The Claimant described the charge of £50.00 "legal representative costs" not "contractual costs". CPR 27.14 does not permit these to be recovered in the Small Claims Court.

(9). The Defendant would like to point out that this car park can be fully distinguished
from the details, facts and location in the Beavis case. This site does not offer a free
parking licence, nor is there any comparable 'legitimate interest' nor complex
contractual arrangement to disengage the penalty rule, as ParkingEye did in the
unique case heard by the Supreme Court in 2015.

(10). The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons.

It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious in nature.

(11). I request the court strike out this claim for the reasons stated above, and for similar reasons cited by District Judge Cross of St Albans County Court on 20/09/16 where a similar claim was struck out without a hearing, due to Gladstones' template particulars for a private parking firm being 'incoherent', failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''.

I believe the facts contained in this Defence are true.

Le_Kirk

In your preliminary at Para 3 and the unnumbered Para after 3.3 you slip into first person, shouldn't all defences be written in third person (and the Witness Statement is First Person)

Ezisola

Le_Kirk wrote: »

In your preliminary at Para 3 and the unnumbered Para after 3.3 you slip into first person, shouldn't all defences be written in third person (and the Witness Statement is First Person)

Thank you, will amend offline but not edit post to avoid MSE's infamous formatting bug

Coupon-mad

And the counter-claim that has to be filed at the same time? (and a £25 fee to file a small counter claim, where you also list the fees/costs to be claimed on top).

Search the forum for counter claim Vidal Hall Blamires DPA

In your shoes with that evidence I would try it and I agree with nosferatu1001:

You then add on a counterclaim, for
1) Misuse of data
2) harassment

Ezisola

Coupon-mad wrote: »

And the counter-claim that has to be filed at the same time? (and a £25 fee to file a small counter claim, where you also list the fees/costs to be claimed on top).

Search the forum for counter claim Vidal Hall Blamires DPA

In your shoes with that evidence I would try it and I agree with nosferatu1001:

I have already acknowledged the claim online, would it be too late to counter claim now?

Not sure if it would be worth the extra hassle, would prefer they discontinue.