Small Claims Court, Parking fine

Coupon-mad

This heading is jumbled and wrongly set out:

DEFENCE

In the COUNTY COURT BUSINESS CENTRE
Claim No.
Issue Date: 07 June 2019

...and the rest does read like a witness statement which is not your stage.

Read the example defences in the NEWBIES thread, there are loads. And read any Gladstones defence threads, you can search the forum for those words to read hundreds/thousands of them.

Also read beamerguy's recent Abuse of Process thread and end the defence with the wording I posted there about the fake added costs lies that must be exposed more.

Le_Kirk

As well as C-m's advice above, remember that a defence is written in the third person, so not "I" or "me" but "the defendant."

JonathanGd

This is my second draft, far from perfect, I know. Any feedback is therefore greatly appreciated.



IN THE COUNTY COURT

CLAIM No: xxxxxxxxxxxx

BETWEEN:

ES Parking Enforcement Limited, represented by Gladstone Solicitors Limited (Claimant)

-and-

xxxxxxxxxxxxxxxs (Defendant)

Preliminary Matter

(1). The claimant failed to include a copy of their writte contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the Claimants contractual authority to operate there as required by the Claimants Trade Association's Code of Practice B1.1 which says

1.1 If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the ‘Creditor’ within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges. There is no prescribed form for such agreement and it need not necessarily be as part of a contract but 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. This applies whether or not you intend to use the keeper liability provisions.

(2). The particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as the facts stated in the PCN contradict the stipulations listed in the carpark signage, which the Claimant assumes to be the basis of a contract concluded between the driver and the Claimant.

On the basis of the above, we request the court strike out the claim for want of a cause of action.

________________________________________
DEFENCE STATEMENT
________________________________________

I am XXXXX, defendant in this matter. It is admitted that the Defendant was the authorised registered keeper of the vehicle in question at the time of the alleged incident. The Defendant denies liability for the entirety of the claim for the following reasons.

(1). The identity of the driver of the vehicle on the date in question has not been ascertained.
1. The Claimant did not identify the driver
2. The Defendant has no liability, as they are the Keeper of the vehicle and the Claimant must rely upon the strict provisions of the Protection of Freedoms Act 2012 in order to hold the defendant responsible for the driver’s alleged breach.
3. The Claimant has posted the Notice to Keeper to the Defendant on day 19 after the alleged incident, which is in breach of Schedule 4.(9)(5) of the Protection of Freedoms Act 2012.

4. In the particulars of the claim, the Claimant makes the unfounded assumption that the identity of the driver is known to them and that the driver had agreed to pay the parking fee. The defendant has made it known to the Claimant that they were not the driver.

JonathanGd

I had to split this, because the forum did not allow me to post the text in full: here comes the next part:


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 not been provided.
5.1. The Claimant has disclosed no cause of action to give rise to any debt.
5.2. The Claimant has stated that a parking charge was incurred.
5.3. The Claimant has given no indication of the nature of the alleged charge in the Particulars of Claim. The Claimant has therefore disclosed no cause of action.
5.4. The Particulars of Claim contains no details and fails to establish a cause of action which would enable the Defendant to prepare a specific defence. It just states “parking charges” which does not give any indication of on what basis the claim is brought. There is no information regarding why the charge arose, what the original charge was, what the alleged contract was nor anything which could be considered a fair exchange of information. The Particulars of Claim are incompetent in disclosing no cause of action.
6. On the 20th September 2016 another relevant poorly pleaded private parking charge claim by Gladstones was struck out by District Judge Cross of St Albans County Court without a hearing due to their ‘roboclaim’ particulars being incoherent, failing to comply with CPR. 16.4 and ‘providing no facts that could give rise to any apparent claim in law.’ 7) On the 27th July 2016 DJ Anson sitting at Preston County Court ruled that the very similar parking charge particulars of claim were eficient and failing to meet CPR 16.4 and PD 16 paragraphs 7.3 – 7.6. He ordered the Claimant in that case to file new particulars which they failed to do and so the court confirmed that the claim be struck out.

JonathanGd

And the final part:


8. Costs on the claim - disproportionate and disingenuous
- CPR 44.3 (2) states: ''Where the amount of costs is to be assessed on the standard basis, the court will
(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and
(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.

- Whilst quantified costs can be considered on a standard basis, this Claimant's purported costs are wholly disproportionate and do not stand up to scrutiny. In fact it is averred that the Claimant has not paid or incurred such damages/costs or 'legal fees' at all. Any debt collection letters were a standard feature of a low cost business model and are already counted within the parking charge itself.

- The Parking Eye Ltd v Beavis case is the authority for recovery of the parking charge itself and no more, since that sum (£85 in Beavis) was held to already incorporate the minor costs of an automated private parking business model. There are no losses or damages caused by this business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages. It is indisputable that the alleged 'parking charge' itself is a sum which the Supreme Court found is already inflated to more than comfortably cover the cost of all letters.

- Any purported 'legal costs' are also made up out of thin air. Given the fact that robo-claim solicitors and parking firms process tens of thousands of claims handled by an admin team or paralegals, the Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste claims. The court is invited to note that no named Solicitor has signed the Particulars, in breach of Practice Direction 22, and rendering the statement of truth a nullity.

- According to Ladak v DRC Locums UKEAT/0488/13/LA a Claimant can only recover the direct and provable costs of the time spent preparing the claim in a legal capacity, not any administration costs allegedly incurred by already remunerated administrative staff.

- The Protection of Freedoms Act 2012, Schedule 4 (POFA) makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant 'Notice to Keeper' (and the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is £100). This also depends upon the Claimant fully complying with the statute, including 'adequate notice' of the parking charge and prescribed documents served in time/with mandatory wording. It is submitted the claimant has failed on all counts and the Claimant is well aware their artificially inflated claim, as pleaded, constitutes double recovery.

- Judges have disallowed all added parking firm 'costs' in County courts up and down the Country. In Claim number F0DP201T on 10th June 2019, District Judge Taylor sitting at the County Court at Southampton, echoed an earlier General Judgment or Order of DJ Grand, who on 21st February 2019 sitting at the Newport (IOW) County Court, had struck out a parking firm claim. One was a BPA member serial Claimant (Britannia, using BW Legal's robo-claim model) and one an IPC member serial Claimant (UKCPM, using Gladstones' robo-claim model) yet the Order was identical in striking out both claims without a hearing:
''IT IS ORDERED THAT The claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in ParkingEye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998...''

- In summary, the Claimant's particulars disclose no legal basis for the sum claimed and it is the Defendant's position that the poorly pleaded claim discloses no cause of action and no liability in law for any sum at all. The Claimant's vexatious conduct from the outset has been intimidating, misleading and indeed mendacious in terms of the added costs alleged.

- There are several options available within the Courts' case management powers to prevent vexatious litigants pursuing a wide range of individuals for matters which are near-identical, with meritless claims and artificially inflated costs. The Defendant is of the view that private parking firms operate as vexatious litigants and that relief from sanctions should be refused.

- The Court is invited to make an Order of its own initiative, dismissing this claim in its entirety and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14 on the indemnity basis, taking judicial note of the wholly unreasonable conduct of this Claimant, not least due to the abuse of process in repeatedly attempting to claim fanciful costs which they are not entitled to recover.





"I believe the facts contained in this Defence Statement are true."

Signature
Date

KeithP

In the first paragraph 1. The contract referred to by Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A) is that between the Claimant and the Defendant. I.e. the signs.

In the un-numbered paragraph before the second paragraph numbered 1. What is an authorised registered keeper?
Best to drop the word 'authorised'.


You have stopped paragraph numbering at paragraph 8.
Why is that?

Why the quotation marks around your statement of truth?

Egbert_Nobacon

DJ Anson found the POC were ‘’INEFFICIENT’’

JonathanGd

Thank you all for your input, I really appreciate it! I will implement the suggested corrections and send the defence off.

nosferatu1001

"4. In the particulars of the claim, the Claimant makes the unfounded assumption that the identity of the driver is known to them and that the driver had agreed to pay the parking fee. The defendant has made it known to the Claimant that they were not the driver.
"
Yeah no. Thats not what theyre saying
Theyre saying that a driver agreed to pay them the £100 (or whatever) parking charge. Not thtat they know who the driver is. Youre fundamentally misunderstanding what they have written.
They argue a contract has been offered by their client and accepted, by the driver, by performance. As such the "driver" has "agreed" to pay them the charge.

As far as the 56 days argument - it SOUNDS LIKE gladrags are claiming that the "notice to driver" required under para 8 is somehow a sign - but this is clearly crap. There is no way a sign can POSSIBLY meet the reuqirements to be a NtD. You can check yourself - read up POFA 2012 scheudle 4 para 8. Notice what a NTD HAS to have? All the things a sign canot *possibly* have in it?

JonathanGd

I am trying to post my final draft but the board somehow prevents me from doing so. I might have to break it up into small portions.