CPM Gladstones Court Claim

CrazyM101

Hi everyone, I have just received the Court Claim notice re parking without a permit.

I responded to their LBCC via email but did not receive a response, however I sent them a further email after receiving the court papers advising that I will refer to this lack of response as part of my defence to which they responded with a "we didn't receive your initial email..." and inviting me to pay up!

I've submitted the AOS and am now planning my defence.

A quick question, the initial PCN was received via post and is not dated - does this automatically fail POFA as I believe it was sent after the 14 days +1 period required for postal PCNs?
Thanks

KeithP

What is the Issue Date on your Claim Form?

CrazyM101

Hi Keith, the issue date is 7th November

KeithP

mumin999 wrote: »

Hi Keith, the issue date is 7th November

With a Claim Issue Date of 7th November, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Monday 10th December 2018 to file your Defence.

That's over three weeks. Loads of time to produce a perfect Defence, 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 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 "defended". If not chase the CCBC until it is.
   
6. Do not be surprised to receive a copy of the Claimant's Directions Questionnaire, they are just trying to put 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.

CrazyM101

Can I please get a response to this query:

A quick question, the initial PCN was received via post and is not dated - does this automatically fail POFA as I believe it was sent after the 14 days +1 period required for postal PCNs?

The PCN refers to the sending date in 2 sections but with no date provided on the letter other than the issue date. The formal notice demand does have a date:

1) You are advised that if, after the period of 28 days beginning with the day after that on which this notice is given

2) This notice is deemed to have been given to you on the second working day after the date of sending above.

Please see PCN below:
https://docdro.id/UfvVSNK

Formal Notice which is dated:
https://docdro.id/hAsIzJT

Parking sign:
https://imgur.com/a/mwthtTP

Castle

Issued date is not the same as "Date posted" or "Date of sending". In fact POFA makes no mention of "Date issued"; but does require the date sent to be shown on the NTK.

CrazyM101

Thank you!

CrazyM101

Hello good people of MSE! I have read as much as possible re my possible defence and have used Johnersh's brilliant template but have removed sections relating to lease agreements as this doesnt apply to my case.

I've included addtional points to consider below - just need advice if these should be added/amended/excluded?

A word regarding costs - as a consultant my time is charged on an hourly basis. If I were to attend court, will I be able to claim my full hourly costs (as I could be working for a client) as I would be losing real revenue for attending and defending this claim?

DEFENCE

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.

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. 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.

3. The Defendant was the registered keeper of vehicle registration number XXX on the material date.

4. It is admitted that on [date] the Defendant's vehicle was parked at [location]

5. It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.

5.1. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA")

5.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:

5.2.1. there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and

5.2.2. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
It is not admitted that the Claimant has complied with the relevant statutory requirements.

5.3. To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.

Is this relevant as I am defending as keeper with no keeper liability?

Alternative Defence - Failure to set out clearly parking terms
8. In the alternative, the Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to consider the imposition of a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.

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

8.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;

8.1.2. The signage did not comply with the requirements of the Code of Practice of the International Parking Committee’s ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and

8.1.3. The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3

9. It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking parking management. The Claimant has provided no proof of any such entitlement.

10. It is denied that the Claimant has any entitlement to the sums sought.

11. It is admitted that interest may be applicable, subject to the discretion of the Court on any sum (if awarded), but it is denied that interest is applicable on the total sums claimed by the Claimant.

STATEMENT OF TRUTH
I confirm that the contents of this Defence are true.

---

End of Defence

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Additional points to consider? Can I add these in the main defence as these are specific to my case. Or should I hold back on adding some/all of these?

As it is impossible to determine that the notice was given within the relevant period, thus violating the terms of POFA 2012 the Claimant is only able to pursue a claim against the Driver of the vehicle at the time. The driver has not been identified by the Claimant despite the Defendant requesting the evidence.

The Defendant, requested the Claimant to provide details of the claim following receipt of a "Letter before Claim". An email was sent on the 27th September to the Claimants contact address requesting information and evidence as part of its pre-action obligations set out in the Practice Direction - Pre-Action Conduct.
No correspondence has been received from the Claimant.

The Defendant sent a further email to the Claimaint when the Court Claim Form was received, this time the Defendant added a "delivery receipt" which confirms that the email was delivered to the Claimant. This also proves with a high probability that the earlier email sent on the 27th was also received.

The Claimant has not followed the standard protocol to responding to the Defendant's request for information therefore the Defendant requests the court to impose sanctions on the Claimant and seeks an immediate stay pursuant to paragraph 15(b) of the Practice Direction and an order that this information is provided.

The facts of the matter are that the claimant claims the ‘land’ which forms the basis of the current claim consists of a relatively small number of poorly marked ‘resident use’ parking spaces located amongst those forming dedicated parking bays for patrons of the retail business in the same area. Given this lack of clarity regarding how or where a patron or resident of the private area (with a parking permit) is, or is not, allowed to park in this car park, no contract can be construed from the Claimant's signage.

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, unless specifically authorised by the principal. The Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name, and that they have no right to bring any action regarding this claim.

The Defendant is requesting via this defence that the Claimant withdraw from this claim and cancel any legal action against the Defendant. Accordingly, as a gesture of goodwill the Defendant states that no claim for costs will be made against the Claimant for wastage of time, stress of impending court action, hours spent on researching the legal basis of the claims and for formulating a concise defence. However a costs claim will be raised for the Court to consider if the Claimant does not withdraw the Claim within 14 days of the filing of the Defence.

Coupon-mad

A word regarding costs - as a consultant my time is charged on an hourly basis. If I were to attend court, will I be able to claim my full hourly costs (as I could be working for a client) as I would be losing real revenue for attending and defending this claim?

Nope, not unless you had a list of conduct as long as your arm, to convince the Judge that the Claimant had acted 'wholly unreasonably' and vexatiously. I wrote such a list for a poster only last night to take to court; it's in my recent posts if you want to click on my username to see. But I make LOTS of posts!

5. It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.

Just checking, are you REALLY ''denying'' being the driver? If not, then never lie to the court.

And if you click on my recent posts you will see also, that I just posted on another thread just minutes ago, that theirs was a good example of a residential defence.

It is better/clearer than your draft and doesn't go on about the POFA at all (with UKCPM I would NOT, they are usually POFA compliant).

CrazyM101

Thanks Coupon-Mad, I'll check your posts and update my defence tonight.

I wasn't the driver at the time so am denying this - is it advisable to re-phrase this part?

Coupon-mad

No that's fine, you can and should certainly deny being the driver if it's true!