Gladstones claim form

KeithP

Lpppparker wrote: »

Hi,


I have just received a reply from CPM data protection saying they will provide evidence by 6th April, however that doesn't give me enough time to use what they have in my defence.


Not sure what I should do from here

Obviously you write your Defence without the response to your SAR - just like most other people do, and everyone did before SARs became free last May.

You have no other option.

Anyway, the SAR response in likely to be of more use at Witness Statement and evidence stage.

Lpppparker

Hey guys,


Please see my draft that has been taken from others but edited to my own situation- If there are any edits (sure there will be!) so any advice would be much appreciated.


To back up my defence I'll be collating all evidence tonight (pictures of signs, videos of driving in)








IN THE COUNTY COURT


CLAIM NO: XXXXXXXXX


BETWEEN:


UK CAR PARK MANAGEMENT LIMITED (Claimant)


-and-


XXXXXXXXXX (Defendant)


DEFENCE STATEMENT





Preliminary-

• It is admitted that theDefendant was thedriver on the material date
• The Defendant denies entering into any contract with theClaimant. In the alternative, if any such contract was entered into it is denied thatthe driver breached its terms.
  
  
  
  

2.1. The claim is denied in its entirety except where explicitly admitted here. The Defendant asserts that they have no liability to the Claimant for the sum claimed, or any amount at all.



3. The defendant denies any liability to the Claimant whatsoever on the following basis:
a) insufficient signage: The PCN was issued on a poorly signed private road where defendant had parked at night time. The defendant was completely unaware that the road was privately owned because of the insufficient signage. Refer to the IPC Code of Practice, Part E, highlighting that entrance signs are necessary – there were none, as I can evidence in photographs taken at the site at night time.
b) There were no entrance signs at all to highlight that the defendant was entering private land.

4. In the pre-court stage the Claimant did not send The Defendant a Letter before Claim that complied with the Practice direction on pre-action conduct. The Letter before Claim can be seen to miss the following information
a) A clear summary of facts on which the claim is based.
b) A list of the relevant documents on which your client intends to rely.
c) How the charge amount of £160 has been calculated and justified.


5. It is not admitted that the Claimant has contractual or other lawful authority to make contracts with residents and their visitors at this location, and/or to bring proceedings against the Defendant. The Claimant is put to strict proof. Further, and in the alternative, the Defendant avers that the Claimant requires the permission of the owner of the relevant land - not merely another contractor or site agent not in possession - in order to commence proceedings.

6. The Defendant parked what was thought to be a legitimate space on private land at night



7. The Court's attention is drawn to the ''Red Hand Rule'', as set out in the leading judgment in J Spurling v Bradshaw [1956] EWCA Civ 3, where Denning MR stated: ''The more unreasonable a clause is, the greater the notice which must be given of it. Some clauses would need to be printed in red ink with a red hand pointing to it before the notice could be held to be sufficient''.

8. Underlining that is Section B.2.1, B.2.2 of the IPC Code of Practice which gives clear instructions as to the placing, visibility and clarity of any signs that must be used to form contracts. It says: ''It is therefore of fundamental importance that the signage meets the minimum standards under The Code as this underpins the validity of any such charge.''

8.1 In the Beavis case, the Supreme Court Judges reiterated the requirement for fair and open dealing, at paragraph 205: ''The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer''

9. Courts must now consider the fairness of a term, where it is not 'prominent and transparent'. Unfair terms here include the penalty fine itself, charges hidden in small print, lack of any fair grace period for the driver to seek out, read decide whether to accept any advertised parking contract, misleading and predatory conduct, added costs not specified prominently in the alleged contract, disproportionate default charges, non-observance of a Code of Practice. Such conduct and terms breach Part 2 'Unfair Contract Terms' of the Consumer Rights Act 2015 (the CRA) which was enacted after the Beavis case final hearing, and remains untested in the context of unfair parking penalty charges.

10. The Court's attention is drawn to the CRA at SCHEDULE 2, a non-exhaustive list of 'Consumer contract terms which may be regarded as unfair' which include clear references to conduct that is on all fours with that of this Claimant, and their solicitors.

10.1. The CRA requires that key terms of a contract, including price, must be assessed for fairness by a court, where those terms are not both 'prominent and transparent' (which the Defendant avers they are not).
The CRA, at para 71, sets out the duty of court to consider fairness of a consumer contract term: ''(2) The court must consider whether the term is fair even if none of the parties to the proceedings has raised that issue or indicated that it intends to raise it''.



Failure to Set Out Clear Parking Terms
11. The Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to impose 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.

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

12. No indemnity costs or damages have been incurred, nor were any debt collection 'fees' paid by this Claimant, and it is averred that the sum claimed is invented out of thin air as part of the Claimant's solicitors' robo-claim model.

13. The Claimant's solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence and no scrutiny of details. HMCS has identified thousands of similar poorly produced claims, and the solicitor's conduct in many of these cases is believed to be currently the subject of an active investigation by the SRA.

14. The Particulars of Claim lack specificity and are embarrassing. The Court is respectfully invited to strike out the claim, for similar reasons cited by District Judge Cross of St Albans County Court on 20/09/16 where a parking claim was struck out without a hearing, due to Gladstone’s' template particulars for a private parking firm being 'incoherent', failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''.

15. Should the Claim not be struck out by the Court, as an alternative when Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange). This is because it is expected that the Claimant/Gladstones will use the witness statement to finally provide the sort of detail which should have been disclosed much earlier in the missing Particulars of Claim. The Defendant should have the opportunity to consider the full particulars/evidence, prior to serving evidence and witness statements in support of this Defence.

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

Coupon-mad

To back up my defence I'll be collating all evidence tonight (pictures of signs, videos of driving in)

Not anything like yet, because none of that goes with a defence. The NEWBIES thread tells you what happens when, and WS/evidence stage is not yet.

That defence is far too long and old. Start again, it's horrible to read.

You were meant to simply use bargepole's concise one and add your own facts; that's why the NEWBIES thread is there, to save you this worry and to save us this time!

Lpppparker

No problem, have seen bargepoles and amended mine- You're right mine was a mess!


Would you say this is still a weak case as there is only 1/2 reasons? (Poor signage and no lighting)


Any comments please let me know




In The County Court


Claim No: XXXXXXX


Between


UK CAR PARK MANAGEMENT (Claimant)

-and-

XXXXXXX (Defendant)

____________
DEFENCE
____________

1. The Defendant was the registered keeper and driver of vehicle registration number XXXXXXX on the material date. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The facts of the matter are that the Defendant is a visitor of XXXXXXX. The ‘land’ which forms the basis of the current claim consists of a relatively small number of poorly marked ‘private land’ parking spaces located. Given this lack of clarity and the fact there was no sufficient lighting to see these signs at night time when the Defendant arrived and parked, no contract can be construed from the Claimant's signage, under the contra proferentem principle.

3. Accordingly, it is denied that the Defendant breached any of the Claimant's purported contractual terms, whether express, implied, or by conduct.

4. 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.

5. The Defendant has the reasonable belief that the Claimant has not incurred £60 costs to pursue an alleged £160 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.

6. 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.

Statement of Truth:

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

Name
Signature

Coupon-mad

Would you say this is still a weak case as there is only 1/2 reasons? (Poor signage and no lighting)

No.

You need the usual point from other defences about no landowner authority, and how about:

- grace periods, if the PCN was issued with just minutes of 'observation'!

and

- if this is a residential or business car park, a comment that the Defendant was authorised by a resident with a tenancy agreement (or lease, if they own the flat), or a company on site, and was not 'unauthorised' so had no reason to conclude or agree that a parking charge applied to such a visitor. And in any case, the resident/company has primacy of contract...

- and, look at PACE v Lengyel (see the parking prankster's case law, and use some of the reasoning cited by DJ Iyer in that transcript about it being impossible for non-permit holders to be bound by a contract offered only to permit holders, etc.

Lpppparker

Unfortunately it was parked at night and woke up to a ticket, so I'm working on the basis that it was dark with poor signage so feel grace period would not work...


What would I do if I cannot get hold of the lease of the owner of the flat that gave me authority? Is it still a feasible argument without the evidence? Due to it being an ex partner I doubt I will get my hands on this lol


I cannot seem to find an argument around landowners authority- Can anyone send me a link to a relevant page?


I seem to get very lost and confused in these threads, is the Pace V Lengyel on a separate page?


Thank you in advance

Lpppparker

I have added the land owner authority part as well as residential visitor etc.


I will need to submit this this afternoon as I'm away this weekend with no access to laptop. Any advice would be great! You've all been so helpful so far thank you






In The County Court


Claim No: XXXXXXX


Between


UK CAR PARK MANAGEMENT (Claimant)

-and-

XXXXXXX (Defendant)

____________
DEFENCE
____________

1. The Defendant was the registered keeper and driver of vehicle registration number XXXXXXX on the material date. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The facts of the matter are that the Defendant is a visitor of XXXXXXX. The ‘land’ which forms the basis of the current claim consists of a relatively small number of poorly marked ‘private land’ parking spaces located. Given this lack of clarity and the fact there was no sufficient lighting to see these signs at night time when the Defendant arrived and parked, no contract can be construed from the Claimant's signage, under the contra proferentem principle.

3. Accordingly, it is denied that the Defendant breached any of the Claimant's purported contractual terms, whether express, implied, or by conduct.

4. 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.

5. 9. 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

5. The Defendant was authorised by a resident of the flat with a lease agreement, therefore was not unauthorised. The defendant in this case had no reason to conclude or agree that a parking charge applied to such a visitor.

6. The Defendant has the reasonable belief that the Claimant has not incurred £60 costs to pursue an alleged £160 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.

7. The Defendant questions that the Claimant has authority to bring this claim. The proper
Claimant is the landowner. Strict proof is required that there is a chain of contracts
leading from the landowner to Vehicle Control Services Limited and that Vehicle Control
Services Limited have the locus standi to bring this matter to court.

6. 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.

Statement of Truth:

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

Name
Signature

Le_Kirk

What would I do if I cannot get hold of the lease of the owner of the flat that gave me authority? Is it still a feasible argument without the evidence? Due to it being an ex partner I doubt I will get my hands on this

Evidence is submitted later at Witness Statement stage, so you could leave in the point whilst your work out a way to obtain a copy of the lease. Other people live there, maybe you could ask someone else if you could see their lease!! Failing that what about the management company or estate agent that looks after rentals/leasing. I haven't gone back over the thread to see your exact circumstances.

Lpppparker

Apart from that, is it OK to go forward with my defence?


Thanks

KeithP

You still have over two weeks to file your Defence.

Do not rush this important step.