Defence v. TSP/Gladstones

TheDefender

Please could someone check this defence to a CCC from TSP and Gladstones?

Brief details of the case are;

The car was parked on land outside of a gated residents' car park on what looked like a public highway. No illuminated signs. TSP are no longer managing this space and, despite a request they haven't let us have any evidence of the basis for their claim.

All correspondence until the CCC was not received because the keeper was no longer living at the address the scammers got from the DVLA. So, no appeal was made. First we knew about the case was when we got the CCC (except that there was a windscreen ticket in the first place).

I am writing this on behalf of the keeper and would appear in court with her as a McKenzie friend if that is allowed.

In the County Court
Claim No: xxxxxx
Claimant: TSP Car Park Management Ltd
Defendant: xxxxx

1. It is acknowledged that the Defendant, xxxxxx, was the registered keeper of vehicle registration number xxxxx on the material date.
2. I deny any liability in this claim and any debt is denied in its entirety. I have no knowledge of the address “xxxxxx” which is claimed is the location at which the car was parked. Further, my investigations have not revealed an address with that name in xxxxx.
3. The particulars of claim do not meet the requirements of Procedure Rules for Civil Cases in particular Practice Direction 16 7.5; there is nothing in the claim which specifies how the terms were breached. Indeed the particulars of claim are not clear and concise as is required by CPR 16.4 1(a).
The claim form itself also gives no indication of on what basis the claim is brought, for example whether this charge is founded upon an allegation of trespass or 'breach of contract' ; or contractual 'unpaid fees'. Because of this, I have had to cover all eventualities in defending such a 'cut & paste'; claim which has caused significant distress and has denied me a fair chance to defend this claim in an informed way. Therefore, as an unrepresented litigant-in- person I respectfully ask that I be permitted to amend and or supplement this interim defence as may be required following a fuller disclosure of the Claimant's case.
In the pre court stage the Claimant’s solicitor did not send me a Letter before Action so I
have;
a) No summary of facts on which the claim is based.
b) No list of the relevant documents on which the claimant intends to rely and
c) I wasn't offered any form of possible negotiation.
Further to this, I wrote to both the Claimant and the claimant's solicitors asking for evidence of their claim. As of today’s date the claimant has not furnished me with any evidence and the claimant's solicitors very unhelpfully refused to supply any evidence.
4. If the driver was considered to infringe on this land, then only the Landowner can pursue a case under the tort of trespass, not this Claimant. Such a matter would be limited to the Landowner claiming a nominal sum. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

The Claimant failed to include a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the Claimant’s contractual authority to operate there as required by the IPC Code of Practice which states that members of the association must supply written authority from the land owner sufficient to establish them as the ‘Creditor’ within the meaning of [the POFA] and in any event to establish them as a person who is able to recover parking charges. It must include the express ability for an operator to recover parking charges on the landowner’s behalf or provide sufficient right to occupy the land in question so that charges can be recovered by the operator directly.

5. The Claimant has provided no evidence of who the driver was.

6. The Claimant has at no time provided an explanation how the sum claimed has been calculated, the conduct that gave rise to it or explained the ‘indemnity’ or legal costs which appear to have been plucked from thin air and do not appear on the signage. 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. This is an attempt at double recovery, which the POFA specifically disallows. In addition, CPR 27.14 does not permit these extra costs to be recovered in the Small Claims Court.

7. It is denied that the signs used by this claimant can have created a fair or transparent
contract with a driver in any event. The signs were insufficient in terms of their distribution,
wording and lighting hence incapable of binding the driver, which distinguishes this case
from the ParkingEye Ltd v. Beavis case:
a) Sporadic and illegible (charge not prominent nor large lettering) site/entrance signage -
breach of the IPC Code of Practice and no contract formed to pay any clearly stated sum.
b) The signs are believed to have no mention of any debt collection additional charge, which
cannot form part of any alleged contract.
c) The signage was not lit and any terms were not transparent or legible; this is an unfair
contract, not agreed by the driver and contrary to the Unfair Terms in Consumer Contracts
Regulations 1999.
d) No promise was made by the driver that could constitute consideration because there was
no offer known nor accepted. No consideration flowed from the Claimant.
e) Absent the elements of a contract, there can be no breach of contract.
8. The Claimant’s solicitors, Gladstones, are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking for a true cause of action. HMCTS have identified over 1000 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. I believe the term for such conduct is ‘robo-claims’ which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. I have reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to my significant detriment as an unrepresented Defendant.
9. The Defendant denies the claim in its entirety, voiding any liability to the Claimant for all amounts due to the aforementioned reasons. 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.

D_P_Dance

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 become so widespread that MPs agreed to enact a Bill to regulate these scammers. It received The Royal Assent today.

bargepole

TheDefender wrote: »

2. … I have no knowledge of the address “xxxxxx” which is claimed is the location at which the car was parked.

7. It is denied that the signs used by this claimant can have created a fair or transparent contract with a driver in any event. The signs were insufficient in terms of their distribution, wording and lighting hence incapable of binding the driver ...

So you have no knowledge of the location, but a detailed knowledge of the signage? A Judge will rip you a new one if you rely on a self-contradictory defence like that.

This is based on a very old and out of date template, and certainly doesn't need adding to the confusion with all those sub-paragraphs a), b), c) etc - just number each paragraph sequentially.

It also contains no facts whatsoever about the actual parking incident, and appears to be one of those 'spray and pray' defences which people blindly copy, with no understanding whatsoever of what they are writing.

I suggest trashing this completely, and starting again.

Umkomaas

All correspondence until the CCC was not received because the keeper was no longer living at the address the scammers got from the DVLA.

What address is currently showing on the V5C (logbook) for the vehicle involved? Please check it.

I am writing this on behalf of the keeper and would appear in court with her as a McKenzie friend if that is allowed.

What do you propose doing in that capacity at the hearing?

8. The Claimant’s solicitors, Gladstones, are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking for a true cause of action. HMCTS have identified over 1000 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. I believe the term for such conduct is ‘robo-claims’ which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. I have reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to my significant detriment as an unrepresented Defendant.

Does the 'ranty' paragraph make the charge any more or less legitimate? Gladstones and their practices have no bearing on whether this is enforceable or not.

TheDefender

Thanks for your reply.



That defence was based on an old template but re the contradictory nature of it;

1. This defence does say that we're having to raise a defence to all points because we don't have any details of the claim. That explains the scattergun approach.

2. I covered the parking sign argument simply so we could use it later if it turns out the signs were inadequate. The original signs are no longer in situ because TSP no longer manage the site.

I'll go back and add the facts of the case but, with no details of the claim from the claimants, I was hoping that perhaps they didn't actually have any evidence!

KeithP

What is the Issue Date on your Claim Form?

TheDefender

What address is currently showing on the V5C (logbook) for the vehicle involved? Please check it.

The same address as the CCC was addressed to; one at which the defendant no longer lives.

What do you propose doing in that capacity at the hearing?

Helping in any way I'm allowed! The defendant isn't confident of being able to handle this case.

Point taken about the rant!

Umkomaas

The same address as the CCC was addressed to; one at which the defendant no longer lives.

That needs urgently updating with the DVLA. The DVLA can issue eye watering fines of up to £1,000.

If you find (or not find more likely!) that a speeding ticket goes to the former address and is not acknowledged, your wife will be in a real fix of trouble.

Helping in any way I'm allowed! The defendant isn't confident of being able to handle this case.

In which case I think you might be better checking out what a Lay Representative can do. Do a Google on LR and MF to learn the differences in case you get any queries from the Judge on the day as to the specific role you propose undertaking.

TheDefender

Is this a better defence? Is it good enough?

The defence has to be in by Weds 20th March.

In the County Court
Claim No: xxxx
Claimant: TSP Car Park Management Ltd
Defendant: xxxxx

_______________________________________
DEFENCE
________________________________________

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
2. The facts are that the vehicle, registration XXXX, of which the Defendant is the registered keeper, was parked on the material date on xxxx outside of the gated area marked as the parking area for the flats on xxxx.
3. The Particulars of Claim state that the Defendant was the registered keeper and/or the driver of the vehicle;. These assertions indicate 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. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

4. Due to the sparseness of the particulars, it is unclear 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.

5. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them.

6. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a vehicle, and is in such a position that anyone attempting to read it would be unable to do so easily. Further the signs are not illuminated and so impossible to read at night when the car was parked. It is therefore denied that the Claimant's signage is capable of creating a legally binding contract.

7. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

8. 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 and interest of £11.79. The claim also includes legal costs of £50, costs not recoverable in a small claims court.

9. 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.

I believe the facts contained in this Defence are true.

Name
Signature
Date

TheDefender

What is the Issue Date on your Claim Form?

20th Feb 2019

KeithP

TheDefender wrote: »

KeithP wrote: »

What is the Issue Date on your Claim Form?

20th Feb 2019

TheDefender wrote: »

The defence has to be in by Weds 20th March.

With a Claim Issue Date of 20th February, you had until Monday 11th March to do the Acknowledgement of Service.

I am going to assume you did do the AoS within that timescale. Please confirm.

Having done the AoS in a timely manner, you have until 4pm on Monday 25th March 2019 to file your Defence.

A few more days than you thought. Loads of time to produce a Defence, but don't leave it to the very last minute.


When you are happy with the content, your Defence should be filed via email as suggested here:

Print your Defence.
1. Sign it and date it.
   
2. Scan the signed document back in and save it as a pdf.
   
3. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
   
4. Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
   
5. Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
   
6. Do not be surprised to receive a copy of the Claimant's Directions Questionnaire, they are just trying to put you under pressure.
   
7. Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.