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

kanjar13

Yes! sorry, used one of the templates and never changed any of the details on it until coupon-mad pointed out the bit about pace, I realised I had uk car park at the top of the claim as claimant. it actually is pace. hope this doesn't change anything?

kanjar13

could anyone please assist before I send this off?

also, one more question. Seeing as the county court claim was sent to to our old address should we state in the defence somewhere the fact we have moved? or will they have the new address as we updated gladrags and PPC?
thank you!

Coupon-mad

Mention your new address in the defence, and in the covering email that you send to the CCBC, asking the CCBC specifically to rectify the address data to <new address> so that the Directions Questionnaire and all future correspondence is sent to the right address.

kanjar13

that's very helpful thanks, will do that now, is the rest of it ok to send now? we edited no 9 to add pace v Lengyel and added 16

Coupon-mad

Can you reply with the new version, here, rather than ask us to click back? Your defence isn't even on this page now, in the view I see of the forum.

kanjar13

sorry, on my laptop still showing as this page
here it is again
cheers


IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

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

-and-

xxxxxxxxxxxx (Defendant) of xx xxxxx xxx, xxx xxxx

________________________________________
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

Coupon-mad

I'd add this (and don't forget to also state it in the email to the CCBC):

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

1.1 The Defendant draws the urgent attention of the Court and the Claimant to the correct address for service, above. An old address was used by the Claimant for the Claim and this is not a suitable address for service.

I think #16 should be moved up and would sit better as #6.

And this isn't right, as PACE don't issue 1,000 claims per week! Gladstones do:

The Claimant's solicitor is known to be a serial litigant, enabling parking firms to issue [STRIKE]issuing[/STRIKE] up to 1,000 similar unjustified and unchecked claims on a weekly basis, using the bulk processing service, generating up to £50,000 of income.

kanjar13

ok here it is the final version before I print, sign, scan, and email, hopefully

IN THE COUNTY COURT

CLAIM No: xxxx xxxx

BETWEEN:

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

-and-

xxxxxx xxxxxx (Defendant) of xxxxxx xxx xxx

________________________________________
DEFENCE
________________________________________

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

1.1 The Defendant draws the urgent attention of the Court and the Claimant to the correct address for service, above. An old address was used by the Claimant for the Claim and this is not a suitable address for service.

2. The facts are that the vehicle, registration XXXXXX, 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. The Defendant was de facto 'authorised' as a visitor and permitted to park at xxxx 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.
7. 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.

8. 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.

9. 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.

10. 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 xxxx xxxx, 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.

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 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.
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's solicitor is known to be a serial litigant, enabling parking firms to issue up to 1,000 similar unjustified and 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.

XXXXXXXX

Signature




Date: 27/03/2019

Coupon-mad

nothing short or predatory by knowingly seeking out and ticketing a genuine visitor, contrary to the IPC CoP.

Typo above, probably by me originally! Should be 'of'.

And remove this from #15. Stop at 'incurred' then delete this bit (repetition):

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.

kanjar13

Thanks you coupon-mad.

I have now made those amendments.

For some reason my IP had been banned. Have I done something wrong?