Claim form (Gladstones solicitors)

goodluck798

Hi everyone

I received a notice to keeper from HX Car Park Management Limited back in January. I have since followed all the steps listed in newbies post relevant to non-POPLA parking companies.
I have recently received a Claim Form dated 03 October 2018 to which I have replied with an AOS via the online account. After that I received a letter from Gladstones to say that as a result of an admin error the payment reference for the payment was incorrect and that if Id already paid I should send them evidence of the payment or if not, then make payment wth the correct reference number. Should I mention anything about this letter in the defence?

I have now completed the first draft of the defence and kindly ask for your critique.

IN THE COUNTY COURT
Claim No:
Between
HX CAR MANAGEMENT LIMITED
(Claimant)
-and-

(Defendant)

DEFENCE STATEMENT

1. It is acknowledged that the defendant, xxx, residing at xxx is the registered keeper of the vehicle.

2. 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. No evidence of such authority has been supplied by the Claimant or their legal representatives, and the Claimant is put to strict proof of same, in the form of an unredacted and contemporaneous contract, or chain of authority, from the landowner to the Claimant. I am yet to have sight of all documents provided to the court in support of the application.
Accordingly, it is denied that the Claimant has authority to bring this claim. The proper Claimant (if any debt exists, which is denied) would be the landowner. Strict proof is required that there is a chain of contracts leading from the landowner to HX Car Park Management, and no proof has been provided.

3. The claim form itself is vague and lacks pertinent information as to the grounds for the claimant’s case. The particulars of claim fail to meet CPR16.4 and PD16 7.3-7.5 and merely provide a date, location, and an "amount" consisting of a completely unsubstantiated and inflated three-figure sum, vaguely and incoherently adduced by the claimant's solicitors. Gladstones have also added a ‘Legal representatives costs’. I propose these have not been incurred by the claimant but artificially invented in an attempt to circumvent the Small Claims costs rules using double recovery.

4. The claim also states "parking charges and indemnity costs if applicable" which gives no indication of on what basis the claim is brought, for example whether this charge is founded upon an allegation of trespass or 'breach of contract' or contractual 'unpaid fees'.
Because of this, I have had to cover all eventualities in defending such a 'cut & paste' claim which has caused significant distress and has denied me a fair chance to defend this claim in an informed way.
Therefore, as an unrepresented litigant-in-person I respectfully ask that I be permitted to amend and or supplement this interim defence as may be required following a fuller disclosure of the Claimant's case.

5. 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.
HMCTS have identified over 1000 similar poorly produced claims and the solicitor's conduct in many of these cases is believed to be currently the subject of an active investigation by the SRA. I believe 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.



6. 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.

7. In the pre court stage the Claimant’s solicitor refused outright to provide me with the necessary information I requested in order to defend myself against the alleged debt.

8. They sent me a Letter before Action that did not comply with the Practice direction on pre-action conduct as set out in Pre-Action Protocol for Debt Claims.

9. As a notorious and seasoned user of the small claims system, the Claimant's Solicitors - who file such baseless, unevidenced claims in their hundreds every week - will know that the Pre-Action Protocol for Debt Claims must be followed (paragraphs 3; 5; 6; 7; and 8).

10. I put this Claimant to explain why they have failed to comply with the Protocol and why Gladstones appear to consider themselves and their clients to be immune from the rules of the court, which bind every other litigant.

11. The purported Letter before Action can be seen to miss the following information:

a) A clear summary of facts on which the claim is based.
b) A list of the relevant documents on which your client intends to rely.
c) How the “charge amount” of £160 has been calculated and justified.
d) Any form of possible negotiation or ADR offered.
e) Copies of the documents upon which their Client intends to rely, including the purported contract they allege was breached.

12. I suggest that parking companies using the small claims track as a form of aggressive, automated debt collection is not something the courts should be seen to support.

13. The alleged debt as described in the claim are unenforceable penalties, being just the sort of unconscionable charges exposed as offending against the penalty rule, in ParkingEye Ltd v Beavis.

14. This case can be easily distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes.
Charges cannot exist merely to punish drivers. This claimant has failed to show any comparable 'legitimate interest' to save their charge from Lord Dunedin's four tests for a penalty, which the Supreme Court Judges found was still adequate in less complex cases, such as this allegation.

15. It is strongly denied that there was any 'relevant obligation' or 'relevant contract' relating to any single parking event.

16. It is denied that the signs used by this claimant created a fair or transparent contract with a driver in any event. The signs were insufficient in terms of their distribution, lighting, and light coloured font and background hence incapable of binding the driver, which distinguishes this case from the Beavis case:

a) Sporadic and illegible (charge not prominent nor large lettering) site/entrance signage - breach of the BPA Code of Practice and no contract formed to pay any clearly stated sum.
b) The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.
c) The signage was not lit and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Consumer Rights Act 2015.
d) 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.
e) Absent the elements of a contract, there can be no breach of contract.
f) Sudden change from being a free car park with no warnings and no obvious, noticeable or clear signage

17. I propose that the sudden change at ‘MFA Fantasy Park, The Kursaal Park’ from free parking to a ANPR system with no prior warning, clear signage (nor in the carpark or the Kursaal itself), was a deliberate attempt by HX Car Park Management to mislead drivers and increase cash revenue by issuing excessive and unfair parking charges, aided by Gladstones and their ‘Roboclaims’.

18. 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.
As such, I am keeping a note of my wasted time/costs in dealing with this matter.

19. 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''.

20. Furthermore, given that the Claimant is in significant breach of the pre-action Protocol, I ask that the claim is struck out pursuant to CPR Part 3.4. The court may of course make such an order of its own volition, by exercising its inherent case management powers under CPR Part 1.4(2)(c) and Practice Direction 26, paragraph 5.1.

21. I invite the court to take this step without putting me - a Litigant in Person significantly disadvantaged by a firm of Solicitors - to the time, trouble and cost of a formal application.


Statement of Truth: I confirm that the contents of this statement are true to the best of my knowledge and belief.

KeithP

goodluck798 wrote: »

I have recently received a Claim Form dated 03 October 2018 to which I have replied with an AOS via the online account.

With a Claim Issue Date of 3rd October, and having done the AoS in a timely manner, you have until 4pm on Monday 5th November 2018 to file your Defence.

Not long now, but don't leave it to the very last minute.


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

1) Print your 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 chase the CCBC until it is.
7) Wait for your Directions Questionnaire and then re-read post #2 of the NEWBIES thread to find out exactly what to do with it.

Coupon-mad

After that I received a letter from Gladstones to say that as a result of an admin error the payment reference for the payment was incorrect and that if Id already paid I should send them evidence of the payment or if not, then make payment wth the correct reference number. Should I mention anything about this letter in the defence?

No.

DEFENCE STATEMENT

No, just: DEFENCE.

You have so many first person 'I' within that defence draft and so many templatey long paragraphs hat need completely removing, that I am not sure where to start.

I can't even see a defence in there, no facts at all, so a Judge might consider that defence 'incoherent', failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent DEFENCE in law''.

Can we start again?

Go and read bargepole's concise defence examples in the NEWBIES thread.

And read any recent Gladstones defence, not old ones. Ones from this Summer (search defence HX keeper liability true as keywords).

You need the facts and you need to reply to the Particulars of Claim, which you haven't. There isn't anything admitting or denying anything...

goodluck798

KeithP many thanks for the summary of action.

goodluck798

Coupon-mad many thanks for the feedback. I have reviewed and came up with the following defence. I kindly ask for everyone's views.

IN THE COUNTY COURT
Claim No:
Between
HX CAR MANAGEMENT LIMITED
(Claimant)
-and-

(Defendant)

DEFENCE






1. The Defendant is xxxx and it is admitted that I am the registered keeper of the vehicle. At all material times the Defendant was at home looking after a poorly 18 months old baby. There is no clear cause of action shown in the Particulars of Claim and liability for this charge, or any sum at all claimed by this Claimant, is denied for the following reasons:

2 ‘Keeper liability’ under Schedule 4 of the Protection of Freedoms Act 2012 (“the POFA”) is dependent upon full compliance with that Act. It is submitted that the Claimant’s Parking Charge Notice and/or Notice to Keeper failed to comply with the statutory wording set out in Schedule 4, Section 9 (f) POFA. And, further, that the signs failed to provide ‘adequate notice’ of any charge. Any non-compliance voids any right to ‘keeper liability’.

3. Even if the Defendant is found to be liable under the POFA 2012, that law only permits a claimant to recover no more than the sum stated on the PCN. It is submitted that any added fees are simply numbers made up out of thin air, and are an attempt at double recovery by the Claimant, which would not be recoverable in any event.

4. 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. Strict proof is required that there is a chain of contracts leading from the landowner to HX Car Park Management, and no proof has been provided despite several requests in writing by the Defendant to the Claimant’s solicitors before and after the Letter before claim.

5.The purported Letter before claim can be seen to miss the following information:

a. A clear summary of facts on which the claim is based.
b. A list of the relevant documents on which the Defendant intends to rely
c. How the “charge amount” of £160 has been calculated and justified.
d. Any form of possible negotiation or ADR offered.
e. Copies of the documents upon which their Client intends to rely, including the purported contract they allege was breached.

6. The Claimant’s signs are in small print, the terms are illegible. And so no contract was formed with the driver to pay £60, £100, £160 or any sum at all, since the signs have no legible ‘charge’ which could be visible on arrival and the wording is prohibitive and in any event. No sum payable to this Claimant was accepted nor even known about by any driver who was not given a fair opportunity to discover the onerous terms by which they - and this Defendant- would later be pursued. Where terms on a parking sign are not seen then there can be no contract (the Defendant relies upon the case of Vine v London Borough of Waltham Forest; CA 5 APR 2000 in this regard).

7. The Claimant may try to rely upon ParkingEye Ltd v Beavis [2015] UKSC 67, ('the Beavis case') yet such an assertion is not supported by any similarity in the location, circumstances nor signage. Absent any offer or agreement on a charge, the Beavis case does not assist the claimant and in fact, supports this defence in that the Defendant was the driver (not so here).

8. The claim form itself is vague and lacks pertinent information as to the grounds for the claimant’s case. The particulars of claim fail to meet CPR16.4 and the Pre-action Protocol. It merely provides a date, location, and an "amount" consisting of a completely unsubstantiated and inflated three-figure sum, vaguely and incoherently adduced by the claimant's solicitors. Gladstones have also added a ‘Legal representatives costs’. I propose these have not been incurred by the claimant but artificially invented in an attempt to circumvent the Small Claims costs rules using double recovery.

9. The Claimant is put to strict proof to explain why they have failed to comply with the Protocol and why Gladstones appear to consider themselves and their clients to be immune from the rules of the court, which bind every other litigant.


10. The Claimant has failed to follow the Code of Practice (CoP) of their Trade Body, as regards clear signage and acting in a professional manner to ensure that action is not taken without any cause. The Supreme Court Judges in the Beavis case held that such a CoP is effectively 'regulation' full compliance with which is both expected and binding upon any parking operator.

11. It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, the Defendant is keeping a note of wasted time and costs so far in dealing with this matter, with a view to claiming any reasonable losses connected with defending this claim and attending any hearings.

12. Based on the above reasons, the Court is invited to strike out the claim, due to no cause of action nor prospects of success.





I believe the facts stated in this defence are true.


(Name) (Signature) (Date

goodluck798

I went back to the original notice and it fails to mention anything in line with Schedule 4, S9(f) POFA and so have included that as a point in my defence.

Coupon-mad

Yes, HX use non-POFA PCNs, or did a while back.

If you search for HX keeper liability you will find a case well argued and won in court on that point, I recall, last year.