clam form - defence- help needed - ACE security services - Gladstone's

kanjar13

Hi all,

received claim form on 22nd of Feb. I have done AOS and assign I have 28 days from day of service 9 which would have been 27th of feb) to submit defence?

a bit of a back story:
my car was parked in a guest space outside a development where friends live. the permit was valid 21/05 or 21/05, the ticket was issued at 1am so technically 22/05. didn't intentionally overstay and to be honest the driver didn't see the signs even though some of the writing was in red. it was dark and the sign was a couple of parking parking spaces away at best and even though it was attached to a lamppost it wasn't that visible as it was quite high up the lamppost. I can attach pictures that they took on the night.
Received NTK within the timeframe, responded to it as I thought it didn't complain with POFA (they didn't include pictures or any evidence in the letter, didn't offer discount, didn't specify time the period of parking to which the notice related). they replied by disagreeing and then we requested all the documents such as agreement with the landowner etc which they said was irrelevant to us (they did send over all the correspondence we had with them). They then issued letter before claim which we responded to online (that was in December). Then in February we received Claim Form.
I am assuming I have until the 27th to submit defence ( 28 days from day of service which is 5 days after issue date of 22nd of Feb.

what is the best way to defend this? has anyone got a template I could use? and can you confirm I am correct about how long I have to write up defence? Thanks in advance, feel totally useless at this to be honest!

KeithP

Hi and welcome. You are right with your dates.

You need to be reading post #2 of the NEWBIES FAQ sticky thread - there is a link below - to help you compile a winning Defence.


With a Claim Issue Date of 22nd February, you had until 4pm on Wednesday 13th March 2019 to do the Acknowledgement of Service.

I am going to assume you did the AoS before then. Please confirm.

Having done the Acknowledgement of Service in a timely manner, as you say, you have until 4pm on Wednesday 27th March 2019 to file your Defence.

That's just over a week away. 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.

kanjar13

hi Keith and thanks for replying, I have done aos well before 13th so just wanted to confirm was correct in assuming I had another week to draft up defence

another question, we moved end of November, I updated my details with dvla and even redirected my mail for 3 months just in case Gladstones ignored it and send to all address. what do you know, they did and country court claim went to old address but was redirected to my current address thankfully. my redirection has now expired but I am making regular trips to the old address to pick up old mail. however, should I be providing them with my new address even though I updated all my documents with DVLA immediately within a week of moving to the new place?

Thanks, will draft up defence and come back here if I need help (which I probably will, no idea where to start at the minute!)

Redx

yes , send GLADRAGS and the PPC DPO a data rectification notice under GDPR and insist they use your new CURRENT ADDRESS for service of papers

keep copies of all correspondence, and dates etc

they are not allowed to ask or pay the DVLA for new details, hence why YOU inform them asap

also, send a SAR to the PPC DPO by email and get all their data on you as well

kanjar13

as for a SAR I have already done this as per someone's advice (done before we moved) so have all the photos and correspondence, which is when they refused to send a contract with landowner as, apparently, it was nothing to do with the PCN.

"The bundle does not include details of the owner of the car park, nor does it include a copy of the agreement between our Client and the landowner, as neither are relevant to the contract between you and our Client; which resulted in the charge being incurred.

Furthermore, the documentation concerning planning applications is not relevant to the validity of the charge incurred in this instance.

With regard to the addressee of the outstanding debt, POFA Schedule 4 enables our Client to pursue the registered keeper for the charge, unless the details of the driver are provided. As you have not provided the full name and serviceable address of the driver, you remain liable for the outstanding sum.

Additional correspondence and documentation will not be provided at this stage."

this is the response I got from them at the time

Redx

they are correct, its not your data, but it is evidence at the WS + EXHIBITS stage, so bear in mind to query all of it in any defence

so do the DATA RECTIFICATION NOTICES and forget about a SAR then

KeithP

That's a fair response to your SAR - Subject Access Request.

It is nothing to do with the Subject - i.e. it's not your data.

kanjar13

Hi, sent both gladstones and ppc data rectification email and got this response. I'm assuming one of those things, they are playing games or they simply don't know I have actually received the ccc form due to the simple fact I redirected my mail when I moved

Good afternoon,

We have now updated our system with your new address.

We write to confirm that further to our correspondence of 23 November 2018; a claim has in fact been issued against you on 22 February 2019, this was deemed served on 27 February 2019. It appears that you have elected to wait until after the claim has been issued to confirm that you moved to a new address some four months ago.

Furthermore, the opportunity to provide a defence has now expired.

In light of the above, we would like to provide you with the opportunity to make payment of the claim amount - £243.42, in lieu of a judgment in default being issued against you.

Please make payment before 5 April 2019. In the event payment is not received before this date, we will proceed to request that judgment be entered.

KeithP

They are of course mistaken.

As you know, you have until 4pm on Wednesday 27th March 2019 to file your Defence.

kanjar13

Ok,
this is what I have got so far.
Is anyone able to assist?

I am Bruce Wayne, the defendant in this matter and registered keeper of vehicle BAT M081LE. I currently reside at 1 Wayne Manor, Gotham.

This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The badly mail-merged documents contain very little information. The NOTICE TO KEEPER merely contains a supposed PCN number with no contravention nor photographs.

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.

The claimant has not provided enough details in the particulars of claim to file a full defence. In particular, the full details of the contract which it is alleged was broken have never been provided. As the claimant has not provided this information, signage details have been inferred from stock photographs and the details may not be correct. Minor variants in text may occur. All references to signage therefore, are subject to change once the full particulars of claim have been provided. The Defendant has reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to The Defendant’s significant detriment.

The claim is denied in its entirety except where explicitly admitted here. I assert that I am not liable to the Claimant for the sum claimed, or any amount at all, for the following reasons, any one of which is fatal to the Claimant's claim.

I. The Unfair Terms in Consumer Contract Regulations 1999 applies
II. The signage does not offer a contract with the motorist
III. The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 applies
IV. The Claimant has no standing to bring a case
V. The charge is not a genuine pre-estimate of loss and is therefore an unenforceable penalty
VI. Unfair Legal representative costs

I. The Unfair Terms in Consumer Contract Regulations 1999 applies
1. It is asserted that the Claimant’s charges are unlawful, as they are in breach of the Unfair Terms in Consumer Contract Regulations 1999, specifically regulation 8(1) of the Regulations and article 6(1) of the Unfair Terms Directive (in providing that an unfair term is not to be binding on the consumer), which is to redress the imbalance between the contracting parties’ bargaining power, and to re-establish equality between them, so that the contract terms which bind the parties are such as the parties would have agreed if they had negotiated the contract on equal terms.
2. The European Court of Justice case of Aziz v Caixa d’Estalvis de Catalunya, Tarragona I Manresa [2013] 3 CMLR 5 provides authority for this, and it is submitted that European Court of Justice decisions must be taken judicial notice of by lower courts in England and Wales. The test for unfairness and imbalance in that case is as follows (para 77);
Article 3(1) of Directive 93/13 must be interpreted as meaning that: – the concept of ‘significant imbalance’ to the detriment of the consumer must be assessed in the light of an analysis of the rules of national law applicable in the absence of any agreement between the parties, in order to determine whether, and if so to what extent, the contract places the consumer in a less favourable legal situation than that provided for by the national law in force. To that end, an assessment of the legal situation of that consumer having regard to the means at his disposal, under national law, to prevent continued use of unfair terms, should also be carried out;
– in order to assess whether the imbalance arises ‘contrary to the requirement of good faith’, it must be determined whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to the term concerned in individual contract negotiations.

3. It is asserted that no reasonable person, of whatever means, would willingly agree to pay a charge of £100 as a consequence of staying over time, if they had the opportunity to negotiate the contract on equal terms with the other contracting party.
4. It is asserted that any competent solicitor would have negotiated the charge to be equal to a genuine pre-estimate of loss, being the normal legal situation provided for by the national law in force.
5. It is submitted that the European Court of Justice definition of imbalance must take precedence.
6. However, in any case the instant case is not saved from being unfair by Beavis. In this particular location council charges for overstay are £60 discounted to £30, not £100 discounted to £60. As the charge is 100% greater than that which a motorist could expect to pay for overstaying in a municipal car park there is a clear imbalance.
7. Regulation 7 of UTCCR 1999 may also apply depending on the words of the signage.

II. The signage does not offer a contract with the motorist
1. Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case:
a) Entrance signage - breach of the POFA 2012 Schedule 4 and the BPA Code of Practice and no contract formed to pay any clearly stated sum.
b) 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 UTCCRs (as applicable at the time).
c) The terms on the Claimant's signage are also displayed in a font 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.
d) 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. They merely state that vehicles must be parked within Visitor Bay, giving no definition of the term 'correctly parked', nor indicating which bays are allocated to whom. ( Pace V Lengyel (from May 2017) showed that the Claimant's signs (including the one shown by the Claimant in this case) fail to enter into contract with the driver as implied by the Claimant. Nowhere on the sign does it inform the reader that by parking in the car park, he/she is entering into a contract with the Claimant. The words “contract’ or “agreement’ do not appear at all within the sign. The phrase “Terms and Conditions” are not synonymous with a contract. Furthermore the opening words of the sign appear to be design more to ward off trespassers than to enter into a contract with the driver.)
e)
f) 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
g) Absent the elements of a contract, there can be no breach of contract.
2. BPA CoP breaches - this distinguishes this case from the Beavis case:
a) The signs were not compliant in terms of the font size, lighting or positioning.
b) The defendant believes that the claimant does not have advertisement/planning consent for its signage, which is a criminal offence. It cannot rely on an unlawful act (the unlawful display of signs) to bring an action.
c) sum pursued exceeds £100.
3. The elements of offer, acceptance and consideration both ways have therefore not been satisfied and so no contract can exist.

III. The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 applies
1. Any alleged contract would be a distance contract for services as defined in The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.
2. The regulations define three types of contracts; distance contracts, on premises contract and off-premises contracts.
3. The definitions concern themselves with how a contract is concluded (and in particular if face to face contact occurs during this process) and not where the contract is eventually performed. Thus, if a consumer books a hair styling appointment over the web, that is a distance contract even though they go to the salon for the actual styling. If they re-book at the salon, that will be an on-premises contract. If they meet their stylist in Tesco, arrange for an appointment and immediately phone the salon to confirm, that will be an off-premises contract. All these contracts are performed on-premises, but concluded in different ways.
4. The regulations define an on-premises contract as:
“on-premises contract” means a contract between a trader and a consumer which is neither a distance contract nor an off-premises contract;
5. Thus a contract cannot be on-premises if it is a distance contract. The regulations define a distance contract as:
“distance contract” means a contract concluded between a trader and a consumer under an organised distance sales or service-provision scheme without the simultaneous physical presence of the trader and the consumer, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded;
6. This is clearly an organised service-provision scheme (for parking) The contract is clearly concluded without the simultaneous physical presence of the trader and the consumer. There is clearly the exclusive use of one means of distance communication (signage) up to and including the time at which the contract is concluded.
7. This is therefore a distance contract.
8. No vending machine or automated premises was used to conclude the contract. Any contract would be concluded by parking and walking away.
9. No standing - this distinguishes this case from the Beavis case:
It is unclear whether Pace Recovery & Storage Ltd hold a legitimate contract at this private road. As an agent, the Claimant has no legal right to bring such a claim in their name which should be in the name of the landowner.
10. The Beavis case confirmed the fact that, if it is a matter of trespass (not breach of any contract), a parking firm has no standing as a non-landowner to pursue even nominal damages.
11. The charge is an unenforceable penalty based upon a lack of commercial justification. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim.
12. The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. The Defendant also has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have actually been incurred. Even if they have been incurred, the Claimant has described them as "Legal Representatives Costs". These cannot be recovered in the Small Claims Court regardless of the identity of the driver.
13. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landowner can pursue a case under the tort of trespass, not this Claimant, and as the Supreme Court in the Beavis case confirmed, such a matter would be limited to the landowner themselves claiming for a nominal sum.
14. Save as expressly mentioned above, the Particulars of Claim is denied in its entirety. It is denied that the Claimant is entitled to the relief claimed or any relief at all.




IV. The Claimant has no standing to bring a case
1. The Claimant’s has not provided copies of the alleged contract in the letter before claim or particulars of claim. However it is believed the signage contains further clauses which show that the Claimant is acting as an agent of the landowner, not the principal, which are identical or similar to the following; ‘Pace Recovery & Storage Limited’ is authorised by the landowner to operate this private car park for and on its behalf’ and ‘Parking is at the absolute discretion of the Landowner’.
2. If Pace Recovery & Storage Limited deny acting as an agent then they are put to strict proof by disclosing the appropriate parts of their contact with the landowner.
3. Fairlie v Fenton establishes the situation regarding agency.
a. If the agent is acting on behalf of an undisclosed principal, they can sue and be sued
b. If the agent is acting on behalf of a named principal, they cannot sue
c. If the agent is acting on behalf of a principal whose name is not disclosed, then they can only sue if they assume the risk; in other words, if they can be sued if they fail to uphold their part of the bargain.
4. ParkingEye therefore have no standing to bring this case. Only the landowner has the right to do this.
5. Although each case turns on its own facts, in all cases where Pace Recovery & Storage Ltd. contract with the landowner has been fully disclosed, the charge for breach of contract is collected by Pace Recovery & Storage Ltd. on behalf of the landowner. This is usually disclosed in paragraph 3.11. This further confirms Pace Recovery & Storage Ltd. act as agent for the landowner.
6. In ParkingEye v Beavis, clauses 3.11 and 8 were redacted from the contract given to the judges. Therefore any judgment would not have been able to take these clauses into account.




V. The charge is not a genuine pre-estimate of loss and is therefore an unenforceable penalty
1. The claim is for breach of contract. In such cases, it is trite law that any charge is intended to put the recipient back in the position they were had the breach not occurred. If the charge is larger, as in this case, then it is a penalty and the whole charge is unenforceable.
2. The parking charge amount is due to the landowner, not the claimant. The Claimant collects it on the landowner’s behalf. The Claimant has suffered no actual, or genuine pre-estimate of, loss as a result of any alleged overstay. There is no initial loss to the Claimant, and they have no standing to bring any case.
3. In any case, all costs are due to the cost of enforcement, which was established in ParkingEye v Beavis to be an average of around £18 per ticket issued. These can therefore be mitigated by taking no action. The charge of £100 is primarily intended as a deterrent. It is, therefore, an unenforceable penalty.
4. The Claimant may rely on the ruling of ParkingEye v Beavis, held in the court of appeal in February 2015. This case has since been heard in the Supreme Court.
5. Each case must turn on its own fact and the facts of that case are different to this.
6. The Court of Appeal ruled that is a charge was not a genuine pre-estimate of loss it could nevertheless be saved as a penalty if (i) there was social justification, and (ii) the charge was no more than needed to deter, which was established by comparison with council charges at that site.
7. In this case equivalent council fines are £40 rising to £80 after 14 days. In comparison to this the sum demanded is clearly far more than that needed to deter, far more than genuine losses, and is therefore disproportionate.
8. Additionally, the sum is roughly equivalent to a week’s state pension or a day and a half take home pay at average earnings. It is therefore a huge sum, completely disproportionate to the costs involved in any overstay.

VI. Legal representative costs
1. The claim includes a sum of £50, described as ‘Legal representative costs’. The Claimant is known to be a serial litigant, issuing up to 1,000 similar claims on a weekly basis, using the bulk processing service, generating up to £50,000 of income. Given a standard working week, the claimant’s solicitor can spend no more than a few minutes per claim, hardly justifying the £50. Since these are fully automated, no intervention is required by a solicitor, and the Claimant is put to strict proof to show how this cost has been incurred. The Claimant maintains case notes for each person who has accessed the case, and it is suggested this would be sufficient. The Claimant cannot rely on Nossen’s Letter Patent (1969) to justify the charge, as this is part of their everyday routine, and no ‘expert services’ are involved. The £50 is not valid because it is not incurred by the claimant, generating over £1.5 million a year in profit.
2. Additionally, as this is already included as part of the costs of the claimant, factored into the £100 parking charge, this is essentially double charging.
3. To put this into context, if the work was done by an outside solicitor who charged Pace Recovery & Storage Ltd’s £10 (which is believed to be the going rate for this type of work) then Pace Recovery & Storage Ltd’s would only be able to claim £10, and not £50.
4. The defendant therefore puts the claimant strictly to proof, by way of timesheets or otherwise, that work was done by the litigant’s expert staff to the value of £50.
5. The £50 solicitor cost was disputed in the test case of ParkingEye v Beavis and Wardley. HHJ Moloney refused to award the £50. His award was; “JUDGMENT FOR CLAIMANT FOR £85 PLUS ISSUE COSTS”. These were presumably the £25 filing fee and £25 hearing fee.
6. The £50 was also struck out by DJ Sparrow on 19 August 2015 in ParkingEye v Mrs S, claim number B9FC508F.

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 Statement are true.

KeithP

Just one point:

The Unfair Terms in Consumer Contract Regulations 1999 were superseded by the Consumer Rights Act 2015 in October 2015.

That Defence is old and very long.

Look again at the winning Defences linked from post #2 of the NEWBIES thread.