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

Le_Kirk

You have removed the First Person comment which is good, however you have a sentence that goes nowhere: -

The signage, which the Claimant refers to as the ‘Contract’ in the particulars of claim.

kanjar13

thanks, honestly I am looking and rereading and at this point it all reads the same, I am not even able to spot any grammar mistakes anymore. Think I need to take a break! (also not very good in the grammar department anyway so would be grateful if anything could spot what I've been unable to pick out)

I have added on a couple of bits in point 9 and fixed a few typos I was able to see.

Any further help MUCH appreciated

thanks guys


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

3. 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.

4. 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.

5. 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 expressed, implied, or by conduct.

6. 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.

7. 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. 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 'VISITOR’ bays and there was no reason to expect a circumspect 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.

8. 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.

9. The sign does not conform to the IPC's Code of Practice:
a. (Schedule 1 – Signage, 4), 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 located near the site entrance is unlit and therefore impossible to see at night by a driver in a passing vehicle.
b. (Schedule 1 – Signage, 5), which states the signage ought to “have clear and intelligible wording and be designed such that it is clear to the reasonable driver that he is entering into a contract with the creditor or committing a trespass as the case may be”; 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

10. 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.

11. 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 there unlit or to spot further signs, which have been placed at an inadequate height and in an inadequate lighting.

12. 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.

13. 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.

14. 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.

15. 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.

16. 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.

17. 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

Coupon-mad

Remove #10.

#13 has 'Pace Recovery & Storage Ltd' who are a completely different company!

kanjar13

Thanks for the quick reply,

Have removed #10 and updated #13 to state the claimant.

Apart from that is it fairly decent or should i work on it more.

Thanks

Coupon-mad

Looks good to me, albeit I would look at defences with PACE v Lengyel cited, and use some of that wording too.

As you were visiting a resident, I think I would add something that says that fact, and thus the car was de facto 'authorised' as a visitor and permitted to park. The permit from earlier that day, proves that, and you believed it would cover you for the visit and would perhaps need a new permit from 8am for a new day. No driver expects to be ticketed at 1am when displaying a permit showing they had the right to be there.

Also how about pointing out the photos are only taken over about 2 minutes (probably?) and that ticketing in the wee small hours at 1am when a visitor was displaying a permit from that day, is nothing short of predatory, by knowingly seeking out and ticketing a genuine visitor, contrary to the IPC CoP.

kanjar13

Also how about pointing out the photos are only taken over about 2 minutes (probably?) and that ticketing in the wee small hours at 1am when a visitor was displaying a permit from that day, is nothing short of predatory, by knowingly seeking out and ticketing a genuine visitor, contrary to the IPC CoP.

In the NTK time observed is about 0:46 and ticket issued at 0:56 and their argument is that the sign says 24-hour enforcement zone. Also in NTK states the permit was invalid (it was issued after midnight so basically a day later than what the permit was issued for)

Thanks Coupon-mad for the help, will edit the defence and re-post for HOPEFULLY, final review

Coupon-mad

Yes I know it was issued after midnight - my words hopefully explain why you can argue this ticketing at 1am is predatory and unfair, and it seems they deliberately use 'day permits' to set people up for EXACTLY this situation.

kanjar13

Yeah, they do explain why I was just trying to clear things up, JUST in case

Yes I know it was issued after midnight - my words hopefully explain why you can argue this ticketing at 1am is predatory and unfair, and it seems they deliberately use 'day permits' to set people up for EXACTLY this situation.

of course, which is why this situation is that much more frustrating

kanjar13

ok, fingers crossed, last draft
thanks to everyone who has helped so far

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

PACE RECOVERY AND STORAGE LIMITED (Trading as Ace Security Services)
(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

3. 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.

4. 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.

5. 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 expressed, implied, or by conduct.

6. 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.

7. 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. 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 'VISITOR’ bays and there was no reason to expect a circumspect 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.

8. 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.

9. The sign does not conform to the IPC's Code of Practice:
a. (Schedule 1 – Signage, 4), 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 located near the site entrance is unlit and therefore impossible to see at night by a driver in a passing vehicle.
b. (Schedule 1 – Signage, 5), which states the signage ought to “have clear and intelligible wording and be designed such that it is clear to the reasonable driver that he is entering into a contract with the creditor or committing a trespass as the case may be”; 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 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. Furthermore, the opening words of the sign appear to be designed more to ward off trespassers than to enter into a contract with the driver. 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.

10. 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 there unlit or to spot further signs, which have been placed at an inadequate height and in an inadequate lighting.

11. 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.

12. No standing - this distinguishes this case from the Beavis case: It is unclear whether the claimant holds 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.

13. 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.

14. 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.

15. 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.

16. The Defendant was de facto 'authorised' as a visitor and permitted to park at XXXX. The permit from earlier that day, proves that, and the Defendant believed it would cover the defendant for the visit and would perhaps need a new permit from 8am for a new day. No driver expects to be ticketed at 1am when displaying a valid permit showing they had the right to be there. The issuing of ticketing in the early hours at 12:54am when a visitor was displaying a permit from that day, is nothing short or predatory by knowingly seeking out and ticketing a genuine visitor, contrary to the IPC CoP.

17. 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

KeithP

I am getting a little confused.

You first few draft Defences had the Claimant listed as UK CAR PARK MANAGEMENT LTD.

In your latest draft the Claimant has changed to PACE RECOVERY AND STORAGE LIMITED (Trading as Ace Security Services).