PCM & Gladstones - Statement of Defence

Kas22

I'll keep this one brief as I'm already battling Gladstones (Claimant PCM) with another ticket dispute.


I'm in the process of modifying my statement of defence to send to [EMAIL="ccbcaq@justice.gov.uk"]ccbcaq@justice.gov.uk[/EMAIL], but will give the background details to help with anyone wishing to add anything that may be of help.



- I live on a private development where cars parked on the verges since it was built.
- At some point last year, PCM decided to put up signs during the day that no parking was allowed, which stated:
- Vehicles must display a valid permit clearly in the windscreen
- Unlettered bays - valid resident permit
- Visitor v bay - valid 24hr max stay scratch card
- Disabled bays - valid pcm disabled permit
- No parking on paved, yellow lines or landscaped areas or in front of dropped kerbs at anytime


- No prior letters were sent to residents stating that a parking controlled zone was being introduced, and as of when.
- The next morning, all the vehicles on the development (that where either parked on verges or in front of their drives) were issued with parking ticket. Reason: 'parked within a restricted area'.
- PCM were contacted (by a fellow resident) to ask how to purchase a permit, to which they were told that you couldn't.

- I contacted PCM to find out who gave them the authority to instate the parking control zone, and why were letters not sent in advance to residents? Of course, they weren't very helpful.
- After much digging around I found out who the land owner was (London and Quadrant), and contacted them through the means of getting my local MP involved, who assisted with getting an initial response.
- I continued to communicate with the land owner asking questions as to why letters where not sent to residents, and why nobody was informed of a parking zone being introduced. In good old fashion I received no response after a brief time of communication. Have since followed up with emails but have had no response at all.


Since then I've gone through the mail chain of receiving the generic letters from PCM, and Gladstones etc etc.


I'm now at the stage of drafting my statement of defence, and was wondering what I could use as good backing to support the unfair instating a controlled parking zone without any prior communication.

Coupon-mad

Try adapting this one, that was based on a defence template by bargepole:

https://forums.moneysavingexpert.com/discussion/comment/74708527#Comment_74708527

Have you done the AOS online to get time to do this defence?

Are you a leasehold owner, or a tenant, and what does your lease or AST say about the right to park a vehicle, or rights of way, or the right of L&Q to impose new restrictions?

Kas22

Thanks C-m.


Yes, I've done the AOS online and extended it by a further 14 days. I have until the 11th Sept to submit the SoD (a bit late from my end).



Am a freehold owner as it's a house. However, L&Q bought the land off of Taylor Wimpey a few years back, so am not sure if anything will be stipulated in the deeds if landowers were to change. Would rights be carried forth onto the new landowner?

Coupon-mad

Yes your leasehold rights stay unfettered, unless YOU agreed to a variation under the L&T Act, as per point #7 of that template defence:

The Claimant, or Managing Agent, in order to establish a right to impose unilateral terms which vary the terms of the lease, must have such variation approved by at least 75% of the leaseholders, pursuant to s37 of the Landlord & Tenant Act 1987, and the Defendant is unaware of any such vote having been passed by the residents.

I am sure residents did not go through all that and agree to this private nuisance?

KeithP

What is the Date of Issue on your Claim Form?

Kas22

KeithP wrote: »

What is the Date of Issue on your Claim Form?

10th August

Coupon-mad wrote: »

Yes your leasehold rights stay unfettered, unless YOU agreed to a variation under the L&T Act, as per point #7 of that template defence:

I am sure residents did not go through all that and agree to this private nuisance?

No, no one was made aware of this, nor did anyone receive any letters

Kas22

[FONT=&quot]Thoughts and feedback on the draft defence?[/FONT][FONT=&quot] Many thanks in advance.
[/FONT]
[FONT=&quot]Sentences highlighted in bold have been adjusted to suit the statement[/FONT]

[FONT=&quot]DEFENCE[/FONT][FONT=&quot]

[/FONT][FONT=&quot]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.[/FONT][FONT=&quot]

[/FONT][FONT=&quot]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.[/FONT][FONT=&quot]

[/FONT][FONT=&quot]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. [/FONT][FONT=&quot]

[/FONT][FONT=&quot]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.[/FONT][FONT=&quot]

[/FONT][FONT=&quot]2.3 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. [/FONT][FONT=&quot]

[/FONT][FONT=&quot]2.4 The IAS, which is ostensibly described as an appeal service, does not disclose the Assessors' names. 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). It is unsurprising then, given the relationship between the parties, that the IAS rejected the Defendant's appeal. [/FONT][FONT=&quot]

[/FONT][FONT=&quot]2.5 Now the Defendant notes that Gladstones are employed in bringing this claim, demonstrating a clear conflict of interests.[/FONT]

[FONT=&quot]Background[/FONT]

[FONT=&quot]3. The Particulars of Claim on the N1 Claim Form refer to 'Parking Charge(s)' incurred on xx/xx/2017 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[/FONT]

[FONT=&quot]4. The Particulars refer to the material location as '[LOCATION]'. The Defendant and other residents have, since 2001, been parking on the side pavements for 18 years without any prior issues or complaints. At some point, the managing agents contracted with the Claimant Company to enforce parking conditions at the estate.
[/FONT]
[FONT=&quot]5. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all. [/FONT]
[FONT=&quot]6. There are no terms within the title deeds requiring the freeholder to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same.
[/FONT]
[FONT=&quot]7. The Defendant, at all material times, parked in accordance with the terms granted by in the title deeds. The erection of the Claimant's signage, and the purported contractual terms conveyed therein, are incapable of binding the Defendant in any way, and their existence does not constitute a legally valid variation of the terms of the freehold. Accordingly, the Defendant denies having breached any contractual terms whether express, implied, or by conduct.[/FONT]

[FONT=&quot]8. The Claimant, or Managing Agent, in order to establish a right to impose unilateral terms which vary the terms of the lease, must have such variation approved by at least 75% of the leaseholders, pursuant to s37 of the Landlord & Tenant Act 1987, and the Defendant is unaware of any such vote having been passed by the residents.
[/FONT]
[FONT=&quot]9. Further and in the alternative, the signs refer to 'vehicles must display a valid pcm permit clearly in the windscreen’, and suggest that by parking without a permit, motorists are contractually agreeing to a parking charge of £100. This is clearly a nonsense, since if there is no permission, there is no offer, and therefore no contract.[/FONT]
[FONT=&quot][/FONT]
[FONT=&quot]10. The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 as a binding precedent on the lower court. However, that only assists the Claimant if the facts of the case are the same, or broadly the same. In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas it is the Defendant's position that no such breach occurred in this case, because there was no valid contract, and also because the 'legitimate interest' in enforcing parking rules for retailers and shoppers in Beavis does not apply to these circumstances. Therefore, this case can be distinguished from Beavis on the facts and circumstances.
[/FONT]
[FONT=&quot]11. The Claimant, or their legal representatives, has added an additional sum of £60 to the original £100 parking charge, for which no explanation or justification has been provided. Schedule 4 of the Protection Of Freedoms Act, at 4(5), states that the maximum sum which can be recovered is that specified in the Notice to Keeper, which is £100 in this instance. It is submitted that this is an attempt at double recovery by the Claimant, which the Court should not uphold, even in the event that Judgment for Claimant is awarded. [/FONT][FONT=&quot]

[/FONT][FONT=&quot]12. It is admitted that at all material times the Defendant was the owner of the vehicle in question.[/FONT]
[FONT=&quot]
[/FONT][FONT=&quot]13. It is admitted that the Defendant parked the vehicle on the material date, whilst residing at the private residential property. It is denied that there was any relevant obligation upon the Defendant that 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.[/FONT][FONT=&quot]

[/FONT][FONT=&quot]Authority to Park and Primacy of Contract[/FONT]

[FONT=&quot]14. It is not admitted that the Claimant has contractual or other lawful authority to make contracts with residents at this location, and/or to bring proceedings against the Defendant. The Claimant is put to strict proof. Further, and in the alternative, the Defendant avers that the Claimant requires the permission of the land owner of the relevant land - not merely another contractor or site agent not in possession - in order to commence proceedings.

15. The Defendant avers that the Claimant cannot:
(i) override the existing rights enjoyed by residents and their visitors, or
(ii) decide to ban parking outside residents drives
[/FONT]
[FONT=&quot] 16. It is denied that the vehicle was “parked within a restricted area”. The Defendant parked legitimately on the pavement, used without penalty for many years by various residents at the site.[/FONT]

[FONT=&quot]17. The Managing Agent have been contacted with the assistance of the local MP [Name], but have failed to responded to further emails as to why no notices where sent to residents before the inception of the controlled parking zone, as made in point eight.

18. There is no site plan of restricted areas. If such a plan now exists, the Claimant is put to strict proof of its origin and on what basis/on whose authority these restricted areas have been decided after many years of normal use by residents.

19. 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.

20. 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).[/FONT]

[FONT=&quot]21. There have 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

22.[/FONT][FONT=&quot] For all or any of the reasons stated above, the Court is invited to dismiss the Claim in its entirety, and to award the Defendant such costs as are allowable on the small claims track, pursuant to Civil Procedure Rule 27.14. Given that the claim is based on an alleged contractual parking charge of £100 - already significantly inflated and mostly representing profit, as was found in Beavis - but the amount claimed on the claim form is inexplicably £244.06, the Defendant avers that this inflation of the considered amount is a gross abuse of process.[/FONT]
[FONT=&quot]
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.

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


Signed


[/FONT]
[FONT=&quot]Date[/FONT]

Coupon-mad

That's based on an old one and is very waffly. I know it's old because the IPC changed their name about 2 years ago, so this is wrong:

Independent Parking Committee (IPC),

I would use the shorter version I showed you and not have so much repetition.

KeithP

With a Claim Issue Date of 10th August and the Acknowledgement of Service having been done in a timely manner, you have until 4pm on Wednesday 12th September 2018 to file your Defence.

Still a little while, but don't leave it to the last minute.


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 for the Directions Questionnaire and come back here.

System

@Kas22

If you read the threads here for long enough, you will see there is a common theme. A number of people appear to be unable to read instructions properly. Whether it be a sign or a letter from a solicitor or a court - people just don't take their time to read.

So a big, big hint for you is to read what C-M has told you already. Unlike others she will nurse these claims along so you MAY get a cancellation or a win. But rather than take up everyone's time, why not spend a little of your own and read the advice.

Don't take it as criticism, just helpful advice - assuming you've read this of course.

Kas22

Coupon-mad wrote: »

That's based on an old one and is very waffly. I know it's old because the IPC changed their name about 2 years ago, so this is wrong:

I would use the shorter version I showed you and not have so much repetition.

Thank you C-M. I have reviewed the initial draft and have revised it (with a much shorter version) with the below:

[FONT=&quot]1. The defendant denies that the Claimant is entitled to relief in sum claimed, or at all.[/FONT]
[FONT=&quot]
[/FONT][FONT=&quot]2. The Particulars of Claim on the N1 Claim Form refer to 'Parking Charge(s)' incurred on 25/10/2017. 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.[/FONT]
[FONT=&quot]
[/FONT][FONT=&quot]3. The Particulars refer to the material location as '[LOCATION]'. The Defendant and other residents have, since 2001, been parking partially on the pavement without any prior issues or complaints. At some point, the managing agents contracted with the Claimant Company to enforce parking conditions at the development. [/FONT]

[FONT=&quot]4. The development does not have any marked or allocated parking bays for home residents, nor signs or markers for parking restrictions. Streets are narrow and do not allow for vehicles to wholly park on two sides of the road without blocking access. [/FONT]

[FONT=&quot]5. There are no terms within the title deeds requiring the freeholder to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same. [/FONT]

[FONT=&quot]6. The Defendant, at all material times, parked in accordance with the terms granted by in the title deeds. The erection of the Claimant's signage, and the purported contractual terms conveyed therein, are incapable of binding the Defendant in any way, and their existence does not constitute a legally valid variation of the terms of the freehold. Accordingly, the Defendant denies having breached any contractual terms whether express, implied, or by conduct. [/FONT]

[FONT=&quot]7. There is no site plan of restricted areas. If such a plan now exists, the Claimant is put to strict proof of its origin and on what basis/on whose authority these restricted areas have been decided to be 'designated' after many years of normal use by residents.[/FONT]

[FONT=&quot]8. The Claimant, or Managing Agent, in order to establish a right to impose unilateral terms which vary the terms of the lease, must have such variation approved by at least 75% of the leaseholders, pursuant to s37 of the Landlord & Tenant Act 1987, and the Defendant is unaware of any such vote having been passed by the residents. [/FONT]

[FONT=&quot]9. The Managing Agent [NAME] were contacted with the assistance of the local MP [NAME], but have failed to respond to communication attempts as to why residents where not consulted prior to the introduction of the scheme, as per point 8.[/FONT]

[FONT=&quot]10. Further and in the alternative, the signs refer to 'vehicles must display a valid PCM permit clearly in the windscreen’, and suggest that by parking without a permit, motorists are contractually agreeing to a parking charge of £100. This is clearly a nonsense, since if there is no permission, there is no offer, and therefore no contract.[/FONT]

[FONT=&quot]10.1 The Claimant, or Management agent failed to provide residents with [/FONT][FONT=&quot]newly issued permits. Upon contacting the Claimant to request such permits, it was denied that permits were needed.[/FONT]

[FONT=&quot]11. The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 as a binding precedent on the lower court. However, that only assists the Claimant if the facts of the case are the same, or broadly the same. In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas it is the Defendant's position that no such breach occurred in this case, because there was no valid contract, and also because the 'legitimate interest' in enforcing parking rules for retailers and shoppers in Beavis does not apply to these circumstances. Therefore, this case can be distinguished from Beavis on the facts and circumstances. [/FONT]

[FONT=&quot]12. There have 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[/FONT]

[FONT=&quot]13. The Claimant, or their legal representatives, has added an additional sum of £60 to the original £100 parking charge, for which no explanation or justification has been provided. Schedule 4 of the Protection Of Freedoms Act, at 4(5), states that the maximum sum which can be recovered is that specified in the Notice to Keeper, which is £100 in this instance. It is submitted that this is an attempt at double recovery by the Claimant, which the Court should not uphold, even in the event that Judgment for Claimant is awarded. [/FONT][FONT=&quot]

[/FONT][FONT=&quot]14. For all or any of the reasons stated above, the Court is invited to dismiss the Claim in its entirety, and to award the Defendant such costs as are allowable on the small claims track, pursuant to Civil Procedure Rule 27.14. Given that the claim is based on an alleged contractual parking charge of £100 - already significantly inflated and mostly representing profit, as was found in Beavis - but the amount claimed on the claim form is inexplicably £244.06, the Defendant avers that this inflation of the considered amount is a gross abuse of process.[/FONT]