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

Coupon-mad

Far too long! I agree with KeithP. Use bargepole's concise defences as your base.

kanjar13

great, thanks, I am looking at it now, the templates however are either for own spaces or undesignated spaces and, not sure if this makes any difference, but the bay the driver parked in was clearly marked visitor?

Coupon-mad

Search the forum for:

visitor defence true

or

permit dark unlit signs defence true

etc., to see defences like yours (the reason for the word 'true' is to see defences, not chat).

kanjar13

thanks, will get on it now.
Just a quick question. I am the registered keeper and want to figure out what the best way to go about my defence would be. Obviously not naming the driver but is it a good idea to refer to the circumstances of what/when/where happened as a registered keeper? or is it best to defend it as a keeper or only acknowledge from NTK?
Thanks guys (hope this makes sense)

kanjar13

any help would be greatly appreciated

kanjar13

also...here is where the sign was in relation to the car, it's quite high up but it was lit and the only thing that says on their permits is that they are only valid if displayed in a clear position on the front windscreen of the vehicle
dropbox.com/s/464jc10lox54p5n/BUNDLE%20%28dragged%29.pdf?dl=0



and here is their standard sign
dropbox.com/s/60x82mid2zgj8w3/BUNDLE%20%28dragged%29%202.pdf?dl=0

Le_Kirk

If the claim is against you as registered keeper, then that is how you defend. This info should be in the particulars of claim (POC). You will have a point about signage in your defence, especially if you are using one of the Bargepole or Coupon-mad defences. The circumstances and the evidence come later, in and along with, your Witness Statement (WS).

kanjar13

ok, re-wrote the defence, not sure if this is any better but here is hoping

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

UK CAR PARK MANAGEMENT LTD (Claimant)

-and-

xxxxxxxxxxxx (Defendant)

________________________________________
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 in a marked Visitor bay allocated to guests visiting the xxxxxx


5. 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. 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.


6. 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.

7. The claim is brought, for breach of contract. 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.

8. Further and in the alternative, the terms on the Claimant's signage are 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.

9. In preparing this defence I examined the entrance signage and a driver would have to rely upon a sign facing incoming cars, which stated “Parking control in operation, no unauthorised vehicles” clearly offering no contract and no chargeable terms. As well as all the above, the signage at the entrance of the site is unlit and this makes it impossible to read at night to someone in a moving vehicle. The signage, which the Claimant refers to as the ‘Contract’ in the particulars of claim. If there was another sign with other terms, it was not prominent (not seen at all) and neither were those terms referred to in the prominent 'visitors parking bays' so there was no reason to expect a circumspect the driver to seek out more signs. And no lawful reason to conclude that the parking decision and conduct of the driver meant that a charge had been accepted or agreed.

10. The Claimant’s signage is at a height of 3 meters (the defendant is 1.75m), with details and terms in small print, as can be seen in evidence photos. The positioning, font size and height mean that the sign is hard to read even if a visitor knows where to find it. In addition, the sign is affixed to the lamppost and, as seen in the photos provided in the Claimant’s bundle, all that can be seen by the driver from their seat is a white board as the illumination from the light is so bright that the contents of the sign are invisible whilst sitting in the 'VISITOR’ Space.

11. The sign does not conform to the IPC's Code of Practice (Schedule 1 - Signage), which states the signs should be “clearly legible and placed in such a position (or positions) such that a driver of a vehicle is able to see them clearly upon entering the site or parking a
vehicle within the site; The sign is located near the site entrance is unlit and therefore impossible to see at night by a driver in a passing vehicle.

12. Nowhere on the sign does it inform the reader that by parking in xxxxxx, 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.
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

13. 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.

14. It should be obvious from the above that signage at this location is entirely inadequate, misleading and incapable of creating a contract with the Defendant. the Claimant cannot place a sign out of sight and expect the driver to see a sign which has been placed unlit and further signs, which have been placed at inadequate height and in inadequate lighting.

15. 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.

16. 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.

17. 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.
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.

18. 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 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. If the driver on the date of the event was considered to be a trespasser, 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.

19. 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.

20. 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

Le_Kirk

In point 9, you have slipped into the First Person. All defences should be written in the Third Person. Not sure about the last sentence of your point 5, upon what do you base this? Do you have proof?

kanjar13

Le_Kirk wrote: »

In point 9, you have slipped into the First Person. All defences should be written in the Third Person.

9. In preparing this defence and examining the entrance signage it appears the driver would have to rely upon a sign facing incoming cars, which stated “Parking control in operation, no unauthorised vehicles” clearly offering no contract and no chargeable terms. As well as all the above, the signage at the entrance of the site is unlit and this makes it impossible to read at night to someone in a moving vehicle. The signage, which the Claimant refers to as the ‘Contract’ in the particulars of claim. If there was another sign with other terms, it was not prominent (not seen at all) and neither were those terms referred to in the prominent 'visitors parking bays' so there was no reason to expect a circumspect the driver to seek out more signs. And no lawful reason to conclude that the parking decision and conduct of the driver meant that a charge had been accepted or agreed.

Is this better?


[QUOTE=Le_Kirk;75630192__Not_sure_about_the_last_sentence_of_your_point_5,_upon_what_do_you_base_this?__Do_you_have_proof?

I got rid of that last sentence now.