Gladstones LBC Response

nosferatu1001

Add that a breach of the CoP means their claimant cannto pursue the charge, as it remains a penalty that is unenforceable in the E&W courts; this judgement is binding on all lower coutrs, and I trust you are familiar with it as you have already quoted Beavis at me.

You made a typo on the strict proof on driver - you put THEM to strict proof that you were the driver. Your current version reads as an admission

You should make it simple:
1) You have admitted in your latest letter that you cannot rely upon POFA2012 to pursue me as the keeper, but instead on some spurious, baseless assertion that I am the driver because I have not identified anyone else. AS you are completely aware, this atttempt to mislead me as an unrepresented consumer is bound to fail, and in fact has failed in court on every occasion I can find record of. You are, in fact, required to prove every element of your claim, and therefore you are put to strict proof of your assertion that I am the driver. If you refuse to provide your evidence of this claim, it will be bruoght to the courts attention that you are unable to prove your claim, despite being given ample oppprtunity, and your claim must fail.

I am not required to name the driver, unless ordered by a court, and no negative inference may be taken from this.

Rugbybarmy

After a bit of back and forth with Glastones on this, with the typical dodging questions and lack of anything meaningful (though they have states I am being pursued as driver), I have received the claim form.


Claim form issued 7th May and acknowledged on the 10th. I believe that means the defence needs submitting by 4th June.


Usual sparse Particulars, though they have added that 'the driver agreed to pay the PCN within 28 days of issue yet failed to do so'.


My primary defence points are the standard ones on signage (poor lighting, grace period - timestamp shows only 8 minutes) - and then breach of POFA and IPC CoP which I think support the Grace Period point. I've filtered through the many defences of the past few months and have created a first draft.


I'd be very grateful for any comment/feedback/advice (I'm aware of the numbering issue - pasting format issue):

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

PARKING AND PROPERTY MANAGEMENT LTD (Claimant)

-and-

ME (Defendant)

________________________________________
DEFENCE
________________________________________

• The facts are that the Defendant is the registered keeper of the vehicle.
• The particulars of the Claim state that the Defendant was the registered keeper and/or the driver of the vehicle. These assertions indicate that the Claimant has failed to identify a Course of Action, and is instead offering a menu of choices. As a result, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, 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.
  1. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.
  2. This Claimant has not complied with pre-court protocol. And as an example as to why this prevents a full defense being filed at this time, a parking charge can be for trespass, breach of contract or a contractual charge. All these are treated differently in law and require a different defense.
     
     
• The Claimant failed to meet the Notice to Driver and Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012 (POFA).
  1. The Claimant has confirmed in pre litigation correspondence that I am being pursued as the keeper.
  2. The Claimant is unable to hold me liable under the strict ‘keeper liability’ provisions due to the absence of a Period of Parking, as required by POFA Section 7(2)(a) and 8(2)(a).
  3. Schedule 4 also states that the only sum a keeper can be pursued for (if Schedule 4 is fully complied with, which it was not, and if there was a 'relevant obligation' and ‘relevant contract' fairly and adequately communicated, which there was not), is the sum on the Notice to Keeper. They cannot pluck another sum from thin air and bolt that on as well when neither the signs, nor the NTK, mentioned a possible £248.30 for alleged outstanding debt and damages.
• The Claimant is in breach of their accredited trade association (ATA), the IPC, Code of Practice (CoP):
  1. The signs were not compliant in terms of the font, size, lighting or positioning as per Part E, Schedule 1:
     1. Photographs of the vehicle show that there is no lighting on the close up photo of the sign. This is relevant as the alleged infringement was outside of daylight hours.
  2. There are no entrance signs, as required by Part E, Schedule 1 of the CoP.
  3. The actual location of the signs is different to where they are marked on the Claimants site plan.
     1. The sign in the photograph is not present on the site plan.
  4. The sum pursued exceeds £100.
  5. There is / was no compliant landowner contract.
  6. Photos of the vehicle span a time period of 8 minutes. The CoP Section B Part 15 states that a minimum grace period should apply and that drivers should be allowed a sufficient amount of time to park and read any signs so they may make an informed decision as to whether or not to remain on the site.
  7. No period of parking on the Notice to Driver or NtK as per IPC CoP 2.1(d) and 3.1(d).
• The Claimant has added unrecoverable sums to the original parking charge. It is believed that the employee who drew up the paperwork is remunerated and the particulars of claim are templates, so it is simply not credible that £60 ‘costs' were incurred. I deny the Claimant is entitled to any interest whatsoever.

1. 1. The signage (alleged contract) states that the driver may be liable for charges surplus to the £100 in the event of a breach.
      1. This limits the Claimants claim against me, the keeper, to £100.
      2. No promise was made by the driver that could constitute consideration because there was no offer known, nor accepted. No consideration flowed from the Claimant.
      3. The signs are do not mention the value of any additional charge and as such cannot form part of any alleged contract.
2. In the absence of any proof of adequate signage that contractually bound the Defendant then there can have been no contract and the Claimant has no case.

1. The Claimant is put to strict proof that at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs.
2. In the absence of strict proof I submit that the Claimant was committing an offence by displaying their signs and therefore no contract could have been entered into between the driver and the Claimant.
3. Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case:
   1. Sporadic and illegible (charge not prominent nor large lettering) of site/entrance signage - breach of the POFA 2012 Schedule 4 and the IPC Code of Practice and no contract formed to pay any clearly stated sum.

• This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the IPC Code of Practice (CoP) was paramount and Mr. Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a license to park free. None of this applies in this material case.
• The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has sent a template, well-known to be generic cut and paste 'Particulars' of claim relying on irrelevant case law (Beavis) which ignores the fact that this Claimant cannot hold registered keepers liable in law, due to their own choice of non-POFA documentation.
• The vague Particulars of Claim disclose no clear cause of action. The court is invited to strike out the claim of its own volition as having no merit and no reasonable prospects of success.
  I believe the facts contained in this Defence are true.
• Given that the special costs rules of the small claims track are arguably its raison d’être, the Defendant can understand why the Court may be reluctant to order costs for unreasonable behaviour, but I believe that there are a number of features that when present together might mean that such an order is attainable.
  
  Those being:
  1. A consistent failure to respond to queries during correspondence.
  2. The failure to supply information that has been requested or give reason for not doing so.
  3. A failure to properly set out a case in respect of liability pre-litigation.
  4. An unwillingness to discuss the case and narrow issue.
  5. A claim that is unreasonably made and without merit.
  6. Dishonesty (fabricating evidence).
  7. A failure to follow the standard Small Claims track directions (See Conduct Annex).

Any denial of bad practice and unreasonable behaviour by the Claimant is just that, not fact as I have evidenced to the court. Based on the above the Defendant will be seeking their costs (CPR Rule 27.14(2g) on an indemnity basis due to the unreasonable and vexatious stance of Parking and Property Management Ltd. Please see below a breakdown of costs.

Name
Signature
Date

Le_Kirk

Claimant has failed to identify a Course of Action, and is instead offering a menu of choices.

Should be: -

Claimant has failed to identify a [strike]Course[/strike] Cause of Action, and is instead offering a menu of choices.

Defences should be written in the third person, therefore you should replace "I" or "me" with "the defendant."

KeithP

Rugbybarmy wrote: »

Claim form issued 7th May and acknowledged on the 10th. I believe that means the defence needs submitting by 4th June.

With a Claim Issue Date of 7th May, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Monday 10th June 2019 to file your Defence. A little longer than you thought.

That's over two weeks away. Loads of time to produce a perfect Defence and it is good to see that you are not leaving it to the last minute.


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

Print your Defence.
1. Sign it and date it.
   
2. Scan the signed document back in and save it as a pdf.
   
3. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
   
4. 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'.
   
5. Log into MCOL after a few days to see if the Claim is marked "defence received". If not chase the CCBC until it is.
   
6. Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire, they are just trying to keep you under pressure.
   
7. Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.

The_Deep

Nine times out of ten these tickets are scams so complain to your MP.

Parliament is well aware of the MO of these private parking companies, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, persistent offenders denied access to the DVLA database and unable to operate.

Hopefully life will become impossible for the worst of these scammers, but until this is done you should still complain to your MP, citing the new legislation.

http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted

Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.

Coupon-mad

The defence needs numbers rather than letters for each paragraph.

You can't use acronyms like 'NTK' or 'CoP' unless the first time you mention the term, you put it in full then the acronym in brackets afterwards to signal what you will call it later in the defence.

As Le_Kirk said, change it all into the third person: 'The Defendant'.

And this reads oddly, to say in point 1 that you are the rk, then in point 2 you criticise them for not homing in on the fact you've already confirmed!

The facts are that the Defendant is the registered keeper of the vehicle.
The particulars of the Claim state that the Defendant was the registered keeper and/or the driver of the vehicle. These assertions indicate that the Claimant has failed to identify a Course of Action, and is instead offering a menu of choices.

You have also given no facts apart from that you are the rk; for example you haven't said if you admit or deny (or cannot recall, due to the length of time passed) that you were the driver, and I didn't see any facts to tell the Judge what sort of car park it is and what the allegation is about and why you are not liable.

Rugbybarmy

Thank you all for your input. Taking these points on board I have posted the 2nd draft below:


IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

PARKING AND PROPERTY MANAGEMENT LTD (Claimant)

-and-

ME (Defendant)

________________________________________
DEFENCE
________________________________________


1. The facts are that the Defendant is the registered keeper of the vehicle, registration XXXXXX.

1.1. The Claim relates to an alleged outstanding liability arising from the Driver's alleged breach of the terms of parking when at XXXXXXX between 21:32 and 21:40 on XXXXX.

1.2. Due to the elapsed time since the alleged infringement, the Defendant cannot recall who the driver was.

2. The particulars of the Claim state that the Defendant was the registered keeper and/or the driver of the vehicle. These assertions indicate that the Claimant has failed to identify a Cause of Action, and is instead offering a menu of choices. As a result, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, 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.

2.1. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

2.2. This Claimant has not complied with pre-court protocol. And as an example as to why this prevents a full defence being filed at this time, a parking charge can be for trespass, breach of contract or a contractual charge. All these are treated differently in law and require a different defense.

3. The Claimant has confirmed in pre litigation correspondence that the Defendant is being pursued as the keeper.

3.1. The Claimant failed to meet the Notice to Driver and Notice to Keeper (NtK) obligations of Schedule 4 of the Protection of Freedoms Act 2012 (POFA).

3.2. The Claimant is unable to hold the Defendant liable under the strict ‘Keeper Liability’ provisions due to the absence of a Period of Parking, as required by POFA Section 7(2)(a) and 8(2)(a).

3.3. Schedule 4 also states that the only sum a keeper can be pursued for (if Schedule 4 is fully complied with, which it was not, and if there was a 'relevant obligation' and ‘relevant contract' fairly and adequately communicated, which there was not), is the sum on the NtK. They cannot pluck another sum from thin air and bolt that on as well when neither the signs, nor the NTK, mentioned a possible £248.30 for alleged outstanding debt and damages.

4. The Claimant is in breach of their accredited trade association (ATA), the Independent Parking Committee (IPC), Code of Practice (CoP):

4.1. The signs were not compliant in terms of the font, size, lighting or positioning as per Part E, Schedule 1:

4.1.1. Photographs of the vehicle show that there is no lighting on the close up photo of the sign. This is relevant as the alleged infringement was outside of daylight hours.

4.2. There are no entrance signs, as required by Part E, Schedule 1 of the CoP.

4.3. The actual location of the signs is different to where they are marked on the Claimants site plan.

4.3.1. The sign in the photograph is not present on the site plan.

4.3.2. The site plan indicates signs where there are none.

4.4. The sum pursued exceeds £100.

4.5. There is / was no compliant landowner contract.

4.6. Photos of the vehicle span a time period of 8 minutes. The CoP Section B Part 15 states that a minimum grace period should apply and that drivers should be allowed a sufficient amount of time to park and read any signs so they may make an informed decision as to whether or not to remain on the site.

4.7. No period of parking on the Notice to Driver or NtK as per IPC CoP 2.1(d) and 3.1(d).

5. The Claimant has added unrecoverable sums to the original parking charge. It is believed that the employee who drew up the paperwork is remunerated and the particulars of claim are templates, so it is simply not credible that £60 ‘costs' were incurred. I deny the Claimant is entitled to any interest whatsoever.

5.1. The signage (alleged contract) states that the driver may be liable for charges surplus to the £100 in the event of a breach.

5.1.1. This limits the Claimants claim against the Defendant to £100.

5.1.2. No promise was made by the driver that could constitute consideration because there was no offer known, nor accepted. No consideration flowed from the Claimant.

5.1.3. The signs do not mention the value of any additional charge and as such cannot form part of any alleged contract.

6. In the absence of any proof of adequate signage that contractually bound the Defendant then there can have been no contract and the Claimant has no case.

6.1. The Claimant is put to strict proof that at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs.

6.2. In the absence of strict proof I submit that the Claimant was committing an offence by displaying their signs and therefore no contract could have been entered into between the driver and the Claimant.

6.3. Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case:

6.3.1. Sporadic and illegible (charge not prominent nor large lettering) of site/entrance signage - breach of the POFA 2012 Schedule 4 and the IPC Code of Practice and no contract formed to pay any clearly stated sum.

7. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the IPC Code of Practice (CoP) was paramount and Mr. Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a license to park free. None of this applies in this material case.

8. The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has sent a template, well-known to be generic cut and paste 'Particulars' of claim which ignores the fact that this Claimant cannot hold registered keepers liable in law, due to their own choice of non-POFA documentation.

9. The vague Particulars of Claim disclose no clear cause of action. The court is invited to strike out the claim of its own volition as having no merit and no reasonable prospects of success.

10. Given that the special costs rules of the small claims track are arguably its raison d’être, the Defendant can understand why the Court may be reluctant to order costs for unreasonable behaviour, but I believe that there are a number of features that when present together might mean that such an order is attainable.

Those being:

10.1. A consistent failure to respond to queries during correspondence.
10.2. The failure to supply information that has been requested or give reason for not doing so.
10.3. A failure to properly set out a case in respect of liability pre-litigation.
10.4. An unwillingness to discuss the case and narrow issue.
10.5. A claim that is unreasonably made and without merit.
10.6. Dishonesty (fabricating evidence).
10.7. A failure to follow the standard Small Claims track directions (See Conduct Annex).

11. Any denial of bad practice and unreasonable behaviour by the Claimant is just that, not fact as the Defendant has evidenced to the court. Based on the above the Defendant will be seeking their costs (CPR Rule 27.14(2g) on an indemnity basis due to the unreasonable and vexatious stance of Parking and Property Management Ltd. Please see below a breakdown of costs.

I believe the facts contained in this Defence are true.

Name
Signature
Date

Coupon-mad

which ignores the fact that this Claimant cannot hold registered keepers liable in law, due to their own choice of non-POFA documentation.

Really? Are you sure the NTK was non POFA? And is it not better to defend this one with knowledge (were you a passenger? say so).

Dishonesty (fabricating evidence).
A failure to follow the standard Small Claims track directions (See Conduct Annex).

What annex? What dishonesty and fabricating evidence?

This should be in your defence, citing promissory estoppel:

At the time of parking, I was on crutches (sports injury), it was during the very snowy and icy period we had in the winter and all disabled bays were in use. We were told verbally by the reception staff that leaving the vehicle where it was eventually ticketed would be ok.

Search the forum for promissory estoppel defence and plagiarise.

Rugbybarmy

Hi

This one is still alive and going.

My witness statement is due in a few weeks (I haven't had the Claimants bundle yet either) and I've had another look at Notice of Trial Date document sent by the county court. Amongst the formalities of when and where the hearing will take place, the last point states:

Additional Directions in a contractual claim for breach of Parking terms. Additional Directions: The evidence which the Claimant must file at court and send to the Defendant must include:

a. A copy of any written terms of the contract;
b. Details of the location where the contract was made,
c. Detailed allegations of any breach of contract relied upon by the Claimant


It then also gives instructions and warnings to the claimant based on what to do if they don't plan on attending the hearing.

I haven't noticed this in any of the other threads. Is this a change of tact from the courts to dredge it of meritless parking claims? Has anyone else seen this before?

Le_Kirk

Seems like the judge is laying it on the line with NO wriggle room for the claimant to turn up at court without having supplied A, B & C! Doesn't affect you in a negative way, just make sure you file and serve YOUR witness statement, evidence and schedule of costs on time.