[Defence Stage] UK CPM & Gladstones Residential Spot

The_Deep

£160 is more than the Law allows for this sort of claim. The down market solicitors whom the PPCs engage know this, but, because they are solicitors, know that a lot of people will pay up.

It is in fact double charging and non claimable debt collectors' add ons. Imo, this is fraud, or, at the very least, improper conduct.

Were this to get to court and win, the judge would be unlikely to award the claimant more than £175 - £200.

I urge you to report this grubby law firm to their regulatory body, the SRA.

https://www.sra.org.uk/solicitors/handbook/code/content.page

as I am sure they do not condone this conduct.

BarraDisciple

Hi everyone, here is a draft for my defence. Do you think it's worth mentioning that Gladst0nes contacted me via sms without me consenting and/or giving my number to them?

Thanks to everyone and @Coupon-mad you might recognise a lot of this as I've taken most of it from a similar thread you posted this on.

All feedback is much appreciated

IN THE COUNTY COURT
Claim No.: XXXXXXXX


Between

[NAME OF PARKING COMPANY]
(Claimant)

-and-


[NAME OF DEFENDANT]
(Defendant)


DEFENCE

It was not cost effective to employ a solicitor in this case so I have had to arrange this defence myself, please excuse me if I fail to use the correct legal terms.

The Defendant denies liability for the entirety of the claim for the following reasons:

1. The Particulars of Claim on the N1 Claim Form refer to 'Parking Charge(s)' incurred on [DATE]. However, they do not state the basis of any purported liability for these charges, in that they do not state what the terms of parking were, or in what way they are alleged to have been breached. In addition, the particulars state 'The Defendant was driving the vehicle and/or is the keeper of the vehicle' which indicates that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5.

2. The Particulars refer to the material location as '[LOCATION]'. The Defendant has, since [DATE], held legal title under the terms of a lease, to Parking Bay No. XX at that location. At some point, the managing agents contracted with the Claimant company to enforce parking conditions at the estate.

3. The car parking area contains allocated parking spaces demised to the residents. Entry to the car park is by means of a key fob, of a type only issued to residents. Any vehicles parked therein are, therefore, de facto authorised to be there.

4. There are no terms within the lease requiring lessees to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same.

5. The Defendant, at all material times, parked in accordance with the terms granted by the lease. The erection of the Claimant's signage, and the purported contractual terms conveyed therein are incapable of binding the Defendant in any way, and their existence does not constitute a legally valid variation of the terms of the lease. Accordingly, the Defendant denies having breached any contractual terms whether express, implied, or by conduct.

6. The Claimant, or Managing Agent, in order to establish a right to impose unilateral terms which vary the terms of the lease, must have such variation approved by at least 75% of the leaseholders, pursuant to s37 of the Landlord & Tenant Act 1987, and the Defendant is unaware of any such vote having been passed by the residents.

6.1. The Claimant has not complied with the pre-court protocol which binds all litigants equally. No initial information was sent to the Defendant for the following:
a) Full particulars of the parking charges
b) Who the party was that are contracted with the Claimant
c) The full legal identity of the landowner
d) A full copy of the contract with the landholder that demonstrated that the Claimant had their authority
e) If the charges were based on damages for breach of contract and if so to provide justification of this sum
f) If the charge was based on a contractually agreed sum for the provision of parking and If so to provide a valid invoice for this 'service'

This information should have been provided pursuant to paragraph 6 of the Practice Direction -Pre-Action Conduct.

6.2 The Defendant asks the court to consider Para 4 13-15 on non-compliance, sanction and points out that there can be no reasonable excuse for the Claimant's failure to follow the Pre-action Conduct process, especially bearing in mind that the Claim was issued by their own Solicitors so they clearly had legal advice before issuing proceedings.

7. Further and in the alternative, the signs refer to 'Authorised Vehicles Only/Terms of parking without permission', and suggest that by parking without permission, motorists are contractually agreeing to a parking charge of £100. This is clearly a nonsense, since if there is no permission, there is no offer, and therefore no contract.

7.1. The Defendant's vehicle clearly was 'authorised' as per the lease and the Defendant relies on primacy of contract and avers that the Claimant's conduct in aggressive ticketing is in fact a matter of tortious interference, being a private nuisance to residents.

7.2. In this case, the Claimant has taken over the location and runs a business as if the site were a public car park, offering terms with £100 penalty on the same basis to residents, as is on offer to the general public and trespassers. However, residents are granted a right to park/rights of way and to peaceful enjoyment, and parking terms under a new and onerous 'permit/licence' cannot be re-offered as a contract by a third party. This interferes with the terms of leases and tenancy agreements, none of which is this parking firm a party to, and neither have they bothered to check for any rights or easements that their regime will interfere with (the Claimant is put to strict proof). This causes a substantial and unreasonable interference with the Defendant's land/property, or his/her use or enjoyment of that land/property.

8. The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 as a binding precedent on the lower court. However, that only assists the Claimant if the facts of the case are the same, or broadly the same. In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas it is the Defendant's position that no such breach occurred in this case, because there was no valid contract, and also because the 'legitimate interest' in enforcing parking rules for retailers and shoppers in Beavis does not apply to these circumstances. Therefore, this case can be distinguished from Beavis on the facts and circumstances.

9. The Claimant, or their legal representatives, has added an additional sum of £60 to the original £100 parking charge, for which no explanation or justification has been provided. Schedule 4 of the Protection Of Freedoms Act, at 4(5), states that the maximum sum which can be recovered is that specified in the Notice to Keeper, which is £100 in this instance. It is submitted that this is an attempt at double recovery by the Claimant, which the Court should not uphold, even in the event that Judgment for Claimant is awarded.

10. For all or any of the reasons stated above, the Court is invited to dismiss the Claim in its entirety, and to award the Defendant such costs as are allowable on the small claims track, pursuant to Civil Procedure Rule 27.14. Given that the claim is based on an alleged contractual parking charge of £100 - already significantly inflated and mostly representing profit, as was found in Beavis - but the amount claimed on the claim form is inexplicably £xxx.xx, the Defendant avers that this inflation of the considered amount is a gross abuse of process.

11. Given that it appears that this Claimant's conduct provides for no cause of action, and this is intentional and contumelious, the Claimant's claim must fail and the court is invited to strike it out.

11.1. In the alternative, the Court is invited, under the Judge's own discretionary case management powers, to set a preliminary hearing to examine the question of this Claimant's substantial interference with easements, rights and 'primacy of contract' of residents at this site, to put an end to not only this litigation but to send a clear message to the Claimant to case wasting the court's time by bringing beleaguered residents to court under excuse of a contractual breach that cannot lawfully exist.

I believe that the facts stated in this Defence are true.

BarraDisciple

Hey guys, can someone please give me some feedback on the above? Thank you

BarraDisciple

Can someone give me a few pointers please? Even a simple thumb up would suffice. I'm planning to send this out on Monday.

Thanks for your help!

Grimble

11.1 you have put case when you mean cease.
Looks good to me.

BarraDisciple

Thank you! I'll change that and send it tomorrow

BarraDisciple

Hi! Hope everyone's had a good start of the year so far.

Small update:
I received a letter from Gladstones with a copy of the client's Directions Questionnaire and they (of course) want the case to be dealt with on the papers and at their home court.

I know the procedure is to deny both requests.

Should I just wait for the court to send me the form to fill now or is there anything I can do to prepare further?

Thank you

The_Deep

You should get your MP involved, it is time the government banned
these parasites from residential car parks.

It is the will of Parliament that these scammers be put out of business.

Hopefully that will take place in the near future. The Bill has passed through the HOC without hitch, and goes to the Lords soon. In the meantime involve your MP, the poor dears are buckling under the weight of complaints about these scammers. Read this one which I wrote earlier

This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of alleged contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors. Is has been suggested by an MP that some of these companies may have connections to organised crime.

Parking Eye, CPM, Smart, (especially Smart}, and others have already been named and shamed in the House of Commons as have Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each week), hospital car parks and residential complex tickets have been especially mentioned. They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

The problem has become so widespread that MPs have agreed to enact a Bill to regulate these scammers.

Sir Greg Knight's Private Members Bill to curb the excesses, and perhaps close down, some of these companies passed its Third Reading in late November, and, with a fair wind, will become Law next year.

All three readings are available to watch on the internet, (some 6-7 hours), and published in Hansard. MPs have an extremely low opinion of the industry. Many are complaining that they are becoming overwhelmed by complaints from members of the public. Add to their burden, complain in the most robust terms about the scammers.

Umkomaas

BarraDisciple wrote: »

Should I just wait for the court to send me the form to fill now or is there anything I can do to prepare further?

Thank you

It might be quicker to check what legal expert bargepole has provided in the NEWBIES FAQ sticky, post #2 than wait for another poster with legal background dropping by.

The sticky is always there 24/7 for the ultimate advice.

KeithP

BarraDisciple wrote: »

Small update:
I received a letter from Gladstones with a copy of the client's Directions Questionnaire and they (of course) want the case to be dealt with on the papers and at their home court.

I know the procedure is to deny both requests.

Should I just wait for the court to send me the form to fill now or is there anything I can do to prepare further?

Thank you

The answers to those questions are in the list in post #8 above.