CPM Gladstones Court Claim

CrazyM101

Hi Coupon-mad, I've read through your posts made on the 25th (you DO make a lot of posts - but you are providing an AMAZING amount of support to people on this board!)

The posts refer to residents parking without a permit - our situation is that the keeper is not the resident.

The car was supposedly parked by the driver in the "wrong bay" reserved for residents (which according to the photos provided were not adequately marked anyway)

As the keeper I am denying keeper liability as in this case CPM didn't date the NTK - thus violating POFA. Main defence.

Signs were inadequate - these will be my secondary defence which I would like to know if I should add as I am not defending as driver?

Gladstones didn't comply with the pre-action protocol which I mentioned in the defence.

I would like to add the below under my primary defence - is this ok?
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.

I will leave out the sections re CPMs right to issue tickets, landholder permission etc? Is that wise?

Thank you

Coupon-mad

I will leave out the sections re CPMs right to issue tickets, landholder permission etc? Is that wise?

Extremely unwise, so much so that you will be going off piste and if you do lose this case, it will not be a forum one to count as a loss.

UKCPM do usually comply with the POFA so not being the driver is not a strong defence.

CrazyM101

Got it thanks, have found another defence that won in court against CPM so will look to incorporate that with my current one.

CrazyM101

Hi CM - back again, I've rejigged most of the content and re-worded to fit the particular situation. I used one of your old defences that you tidied up for someone last year:

DEFENCE

1. The Defendant denies that the Claimant is entitled to the relief claimed, or any amount at all.

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

3. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the Civil Procedure Rule 16. Its sparse Particulars do not disclose any cause of action which could give rise to a claim, and their single-page Letter Before Claim was no more than an aggressive demand, designed to intimidate and mislead the defendant, rather than narrow the issues or provide any specific detail.

3.1. Despite the Defendant requesting this information in pre-action communication, the Claimant has failed to set out the basis of the claim - trespass or contractual breach? It has not specified how the sum sought represents any fee, charge, costs or damages incurred - nor evidenced that any contract existed or was breached - hence the Defendant is having to attempt to cover all possibilities, with no fair opportunity to make an informed response.

Absence of keeper liability

4. It is admitted that at all material times the Defendant is the registered keeper of the vehicle which is the subject of these proceedings. The vehicle is insured and more than one driver is permitted to use it.

5. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver.

6. The Claimant has at no time provided an explanation how the ‘parking charge’ has been calculated, the conduct that gave rise to it or how the amount has been inflated from £XX to over £XX. This appears to be an attempt at more than 'double recovery', which the POFA specifically disallows.

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

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

7.2. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.

7.3. It is not admitted that the Claimant has complied with the relevant statutory requirements and the Claimant is put to strict proof that the postal “notice to keeper” was sent within the prescribed deadlines.

7.4. 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.

7.5. 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.

ParkingEye Ltd v Beavis is distinguished
8. ParkingEye Ltd v Beavis [2015] UKSC 67 is fully distinguished from this claim, due to the completely different facts, including but not limited to:

5.1. There was no parking licence or offer, no consideration flowed and there was no contract capable of being breached.

5.2. The Claimant did not follow the effectively binding IPC Code of Practice.

5.3. The sum claimed is extortionate, and can be seen as being both extravagant and unconscionable.

5.4. The Claimant has no standing or authority from the landowner.

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

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

5.7. 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

5.8. There is no comparable legitimate interest or commercial justification to disengage the penalty rule.

No contract

9. For the avoidance of doubt, the Defendant has since visited the material site and makes a number of observations;

9.1. In the sparse information provided to the Defendant, the car appears to be parked on public highway adjacent to shops, not in any private car park.

9.2. On site visit the Defendant notes that the area that the Claimant is alleging to have parking management for appears to be a public highway with no visible signs declaring the area is a private development;

9.3. 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 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.

9.4. The signs which the Claimant are relying upon as notice of contractual terms are worded in such a way as to require all users of the parking spaces as requiring to display a permit – this is evidently not the case.

9.5. The bay in which the car was parked is one the Claimant deems as “requiring a permit” did not have a sign immediately next to it. The sign was several feet away and contained small lettering and is worded in a way that is both confusing and contradictory.

10. Conversely, in the present case there was no agreed contract. It is apparent to the Defendant that a driver would not have had a fair chance to read the very small terms on a sign at this location, would not have seen signs as they entered the area and which has other signs with contradictory messages.

11. Such is the density and complexity of the text on the sign that the most onerous term – the parking charge – is buried amongst a mass of small print. There are no signs adjacent to the parking bay and no prominent terms facing a driver when parking, to alert them to any contract. This location fails to meet the “Red Hand Rule”, as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3.

12. The Claimant has not confirmed in communication whether a ‘grace period’ was given to the driver as provisioned by the IPC CoP. The Claimant is put to strict proof to provide evidence as to how long the car was parked for and whether this time exceeded ‘sufficient time’ so as to go beyond a reasonable period of ‘grace’.

13. No indication was provided as evidence to support the Claimant's contractual authority to operate at this specific location. The Defendant avers that the business model utilised at this site is predatory, punitive, unauthorised by the landowner and operates contrary to the IPC Code of Practice.

14. It is averred that the Claimant is not the landowner and therefore lacks any cause of action. If it is alleged that a trespass had occurred then the remedy available for that tort (which is denied) is in the gift of the landowner alone, to seek damages.


Wholly unreasonable and vexatious claim

14. It is submitted that the conduct of the Claimant in operating a predatory model with what appears to be deliberately scarce and contradictory signage, then intimidating the Defendant with misleading threats in the pre-action stage before pursuing this claim, is wholly unreasonable and vexatious.

15. As such, the Defendant is keeping careful note of all wasted time/costs in dealing with this matter and should the case continue to trial (or in the event of the Claimant filing a Notice of Discontinuance) the Defendant will seek further costs on an indemnity basis, pursuant to Civil Procedure Rule 27.14(2)(g).

16. The Defendant denies the claim in its entirety, voiding any liability to the Claimant for all amounts. The Defendant asks that the court gives consideration to exercise its discretion to order the case to be struck out under CPR Rule 3.4, for want of a detailed cause of action and/or for the claim having no realistic prospects of success.

17. In the alternative, 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.


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

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End of Defence

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Coupon-mad

Looks good to me.

the initial PCN was received via post and is not dated

Not dated at all?

CrazyM101

Thanks mate, appreciate your help!

Not dated at all?

Sorry I meant NTK, although they used the words 'Parking Charge Notice' (as per the attachment in my 5th post - no date on the letter, the next letter 'Formal Demand' was dated. There was no PCN on the windscreen. I know it might be a weak argument but I have added all the other relevant defence statements to give me more ammo.

KeithP

mumin999 wrote: »

Sorry I meant NTK, although they used the words 'Parking Charge Notice' (as per the attachment in my 5th post - no date on the letter, the next letter 'Formal Demand' was dated.

Then what have you obliterated here:

Looks like a date in 2017.

CrazyM101

That's the issued date, but the letter itself is not dated - if you look at the 2nd letter received 'formal notice', you will see that has a date on the top left.

I asked this question earlier and received this response:

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.

Coupon-mad

The 'issued date' is the day they say that letter was posted, and it will be about a month later than the 'Incident time/date' just under it.

CrazyM101

hmmmm confused, again based on the response provided:

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.

also these words can be seen clearly on the PCN/NTK:
"This notice is deemed to have been given to you on the second working day after the date of sending above."

there was no date of sending "above" only the issued date in the box on the right.

should I be amending my primary defence? or ok to leave it in?