Gladstones CPM County Court Business Centre - Company

PAE123456

Hi again all,

Below is the first draft of my defence. Could you please give it a read over and let me know any amendments I should make. Thanks!

'1. The defendant has no record of receiving any parking notices from the claimant. On the received County Court Business Centre Claim Form the company’s name is spelt wrong and address incorrect, which could explain this. Therefore, no appeals could have taken place prior to this point.

2. The Particulars of Claim state that ‘[t]he Defendant was driving the Vehicle and/or is the Keeper of the Vehicle.’ These assertions indicate that the Claimant has failed to identify a Cause of Action, and is rather 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. Further, the particulars of the Claim do not meet the requirements of Practice Direction 16 para 7.5 as there is nothing which specifies how the terms were breached.

3. It is admitted that the Defendant is the registered keeper of the vehicle in question.

4. The Defendant has no liability as they are the keeper of the vehicle, and Private Parking Solutions has failed to comply with the strict provisions of POFA 2012 to hold anyone other than the driver liable for the charges.

5. The driver has not been evidenced on any occasion.

6. There is no presumption in law that the keeper was the driver and nor is a keeper obliged to name the driver to a private parking firm. This was confirmed in the POPLA Annual Report 2015 by the POPLA Lead Adjudicator and barrister, Henry Greenslade, when explaining the POFA 2012 principles of 'keeper liability' as set out in Schedule 4.

7. The Claimant’s signs on the site are small and the words on the signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

8. 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'. 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, in this case Peel Land & Property Ltd. No evidence of such authority was supplied by the Claimant at any time, 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. Thus far the Claimant has provided no proof of any such entitlement.

9. No evidence has been provided that the Claimant has locus standi to bring this claim: it was not identified on the signage, nor the notice to driver, and the Defendant has reason to believe that it is not named in the parking contract.

10. The claimant is claiming a £160 ‘parking charge’ per event despite the signage stating a parking charge of £100. This is another example of the claimant’s unreasonable claim and attempt to cause distress.

11. In addition to the £160 'parking charge', for which liability is denied, the Claimant's legal representatives, Gladstones Solicitors, have artificially inflated the value of the Claim by adding costs of £50 which I submit have not actually been incurred by the Claimant, and which are artificially invented figures in an attempt to circumvent the Small Claims costs rules using double recovery. The Court is invited to report Gladstones Solicitors to the Solicitors' Regulation Authority for this deliberate attempt to mislead the Court, in contravention of their Code of Conduct.

12. The parking charges sought are not a genuine pre-estimate of loss, but an extravagant penalty, and therefore unenforceable. In the Beavis case, the Supreme Court was only prepared to accept a charge of £85 sufficient to act as a disincentive. The Supreme Court had previously stated that £135 would be unacceptable (ParkingEye v Somerfield). The charge of £320 to the Defendant is clearly extravagant and disproportionate to the Claimant's interest and in fact comprises non-contractual elements

13. In addition to the above, the claimant is claiming a £160 ‘parking charge’ per event despite the signage stating a parking charge of £100. Another example of an unenforceable inflated figure.

14. It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. 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, pursuant to Civil Procedure Rule 27.14(2)(g).

15. The Defendant respectfully suggests that parking companies using the small claims track as a form of aggressive, automated monetary demands against residents, alleging 'debts' for loading and alighting at Loading bays is not something the Courts should be seen to support.

16. The Court is invited to take Judicial Notice of the fact that the Claimant's solicitors, Gladstones, is engaged in a course of conduct which involves issuing tens of thousands of totally meritless Claims, which are routinely dismissed by District Judges sitting in this Court, and other County Court hearing centres in all parts of England & Wales. The Court is therefore invited to refer the matter to the Designated Civil Judge, for consideration of the issuing an Extended Civil Restraint Order against the Claimant, pursuant to CPR Practice Direction 3.1(3).

17. There has been recent discussions at the House of Commons about the Parking (Code of Practice) Bill, and the rogue industry, which can be read here: XXXXXXXX

18. 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.'

Thanks in advance for you help.

Le_Kirk

In your point 8. you have repeated (with the last sentence) something that you have already stated.
You need to rethink/reword/research point 12 as GPEOL is dead in the water since Beavis.

Coupon-mad

Remove 12, 15, 16 and 17.

You've read a very old defence to base yours on, so why not simply read the 2018 ones by bargepole as linked in the NEWBIES thread?

PAE123456

Thank you for your responses. I had used an amalgamation of several defences, however can see from Bargepole's 2018 defence that it doesn't need to be so long winded. Nonetheless, due to the difference in situation i have left some additional points in.

Can you please let me know if the second draft is any better:

1. The defendant has no record of receiving any parking notices from the claimant. On the received County Court Business Centre Claim Form the company’s name is spelt wrong and address incorrect, which could explain this. Therefore, no appeals could have taken place prior to this point.
2. The Particulars of Claim state that the Defendant was driving the Vehicle and/or is the Keeper of the Vehicle.’ These assertions indicate that the Claimant has failed to identify a Cause of Action, and is rather 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. Further, the particulars of the Claim do not meet the requirements of Practice Direction 16 para 7.5 as there is nothing which specifies how the terms were breached.
3. It is admitted that the Defendant is the registered keeper of the vehicle in question.

4. The Defendant has no liability as they are the keeper of the vehicle, and Private Parking Solutions has failed to comply with the strict provisions of POFA 2012 to hold anyone other than the driver liable for the charges.

5. The driver has not been evidenced on any occasion.

6. There is no presumption in law that the keeper was the driver and nor is a keeper obliged to name the driver to a private parking firm. This was confirmed in the POPLA Annual Report 2015 by the POPLA Lead Adjudicator and barrister, Henry Greenslade, when explaining the POFA 2012 principles of 'keeper liability' as set out in Schedule 4.
7. The Claimant’s signs on the site are small and the words on the signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.
8. Accordingly, it is denied that the Defendant breached any of the Claimant's purported contractual terms, whether express, implied, or by conduct.

9. 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.
10. The Defendant has the reasonable belief that the Claimant has not incurred £50 costs to pursue an alleged £320 debt. The Protection of Freedoms Act 2012, in Schedule 4, Para 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.

11. The claimant is claiming a £160 ‘parking charge’ per event despite the signage stating a parking charge of £100. This is another example of the claimant’s unreasonable claim and attempt to cause distress.
12. In summary, the Claimant's particulars disclose no legal basis for the sum claimed, and the Court is invited to dismiss the claim in its entirety.


Thank you in advance.

KeithP

Is there some way in paras 5 or 6 that you can re-iterate that the Defendant is a company and not a person, and therefore there is no way that the Defendant can have been the driver?

That point of course also makes a mockery of their statement in their Particulars of Claim that "the Defendant was driving the Vehicle and/or is the Keeper of the Vehicle".

Farcical.