CPM Gladstones Court Claim

Castle

mumin999 wrote: »

hmmmm confused, again based on the response provided:



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?

Leave it in... furthermore, looking at the NTK again, (in post 5), it doesn't explain the circumstances and other facts for the NTK to be issued which is a requirement of para 9(2)(c) of POFA.

(The numbering for the Beavis section should be 8.1, not 5.1 etc).

CrazyM101

Castle wrote: »

Leave it in... furthermore, looking at the NTK again, (in post 5), it doesn't explain the circumstances and other facts for the NTK to be issued which is a requirement of para 9(2)(c) of POFA.

(The numbering for the Beavis section should be 8.1, not 5.1 etc).

Thanks, can you please advise how the NTK violates 9(2)(c) of POFA:
(c)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;

NTK states:
1) How much is due or outstanidng
2) Driver has breached T&Cs of the notice
3) notices were in the vicinity
4) PCN was issued due to "The reason we issued the PCN to the vehicle is as follows: Not Displaying a Valid Permit"

Is anything missing or not quite right?

And well spotted on the numbering!

Castle

mumin999 wrote: »

Thanks, can you please advise how the NTK violates 9(2)(c) of POFA:
(c)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;

NTK states:
1) How much is due or outstanidng
2) Driver has breached T&Cs of the notice
3) notices were in the vicinity
4) PCN was issued due to "The reason we issued the PCN to the vehicle is as follows: Not Displaying a Valid Permit"

Is anything missing or not quite right?

And well spotted on the numbering!

Thank you...just spotted the reason half way down the PCN so please ignore 9(2)(c).

However, if it wasn't possible to obtain a permit then you should have a look at Pace v Lengyel with regards to "Impossibility of contract":-
http://www.parking-prankster.com/more-case-law.html

CrazyM101

Thanks Castle, I will look to incorporate some of the content from the Pace v Lengyel case.

CrazyM101

I have now added additional points (marked in red) so those of you who have already read the now rather lengthy defence can skip to the relevant sections.

Please advise if wording or context is correct or needs amending.
Thanks again to those who have guided me so far!

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:

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

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

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

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

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

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

8.7. 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

8.8. 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 a 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 immediately prominent signs declaring the area is a private development;

9.3. The Defendant notes 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.

10. Part E of the IPC COP advises that notices should be placed at the entrance to the site, the Defendant observes that there are notices (at the entrance) but they are placed in a location which is directly opposite to the car park area and on the side of the road that a driver will easily miss them upon arrival to the site.

11. As per above, these entrance notices do not conform to the IPCs ‘text size’ guidance so even if the driver did notice them, they would not be able to easily read and understand the content.

12. 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 (both residential and retail spaces) as requiring to display a permit – this is evidently not the case.


PACE v Lengyel similarities noted
13. As per the legal ruling provided in the above case, there is no clear indication that the Driver is entering into a ‘Contract’ with the Claimant. The phrase ‘terms and conditions’ as displayed on the notice are not synonymous with a contract.

13.1. The opening wording used by the notice implies that the ‘Contract’ is between those drivers displaying a permit and the Claimant. This is something the Defendant was not able to do (display a permit). Therefore, insofar as there was any contract between the parties, it was invalid under the doctrine of ‘impossibility of performance’.

13.2. The wording used in the notice appears to ward off trespassers rather than to enter into a contract with the driver; the Defendant avers that neither intention is made clear by the Claimant on any of the notices.

14. 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, is not illuminated and is worded in a way that is both confusing and contradictory.

15. 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.

16. 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.

17. 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’.

18. 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.

19. 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 hands of the landowner alone, to seek damages.


Wholly unreasonable and vexatious claim

20. 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.

21. 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).

22. 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.

23. 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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Redx

seems too long to me and the header and footer dont match a BARGEPOLE concise defence linked by the NEWBIES FAQ sticky thread

https://forums.moneysavingexpert.com/showpost.php?p=74674865&postcount=24

I believe that BARGEPOLE would call it a scattergun defence

read post #23 in this thread about a concise derence and what you add

https://forums.moneysavingexpert.com/discussion/5847210/euro-parking-services-pcn

Coupon-mad

PACE v Lengyel similarities noted

PACE v Lengyel is not a precedent and will mean nothing to your local court. Bargepole also advises that it is bad form to refer to other court cases in a defence - they can be adduced later in a skeleton argument, or as evidence with your Witness Statement (later stages, weeks before the hearing).

CrazyM101

Thanks again, modified defence - removed case law ref (PvL) but have left Beavis as I've seen a few other defences have referenced it. Also removed some 'ranting' comments - still long but I can't see how to remove other parts without losing my ability to defend properly:


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 provided no evidence or basis for bringing the claim to Court.

3.1. Despite the Defendant requesting this information in pre-action communication, the Claimant has failed to clarify 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.

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 Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

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. The Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver.

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:

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

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

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

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

8.5. The Claimant has not provided evidence of standing or authority from the landowner.

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 a 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 immediately prominent signs declaring the area is a private development;

9.3. The Defendant notes 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.

10. Part E of the IPC COP advises that notices should be placed at the entrance to the site, the Defendant observes that there are notices (at the entrance) but they are placed in a location which is directly opposite to the car park area and on the side of the road that a driver will easily miss them upon arrival to the site.

11. As per above, these entrance notices do not conform to the IPCs ‘text size’ guidance so even if the driver did notice them, they would not be able to easily read and understand the content.

12. The signs which the Claimant are relying upon as notice of contractual terms are worded in such a way as to imply that all users of the parking spaces (both residential and retail spaces) are required to display a permit.

13. There is no clear indication that the Driver is entering into a ‘Contract’ with the Claimant. The phrase ‘terms and conditions’ as displayed on the notice are not synonymous with forming a contract.

14. The opening wording used by the notice implies that the ‘Contract’ is between those drivers displaying a permit and the Claimant. This is something the Defendant was not able to do (display a permit). Therefore, insofar as there was any contract between the parties, it was invalid under the doctrine of ‘impossibility of performance’.

15. The wording used in the notice appears to ward off trespassers rather than to enter into a contract with the driver; the Defendant avers that neither intention is made clear by the Claimant on any of the notices.

16. 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, is not illuminated and is worded in a way that is both confusing and contradictory.

17. 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.

18. 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’.

19. 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 hands of the landowner alone, to seek damages.


Wholly unreasonable and vexatious claim

20. 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.

21. 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).

22. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

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

CrazyM101

Defence has been emailed as per instructions provided previously.
Will update when I hear back.
Thanks everyone.

nosferatu1001

Nope, you need to get onto reading post 2 again, and knowing wha tstages come next
Chances are the DQ will be sent out near christmas, so a higher chance than normal of it nots howing up. If they send it , it fails to arrive and you dont realise, you find a default judgement waiting for you in the new year.