Gladstones and old address - 1 unknown CCJ, 1 unknown Claim

Le_Kirk

For the claim that you have to defend, look at the NEWBIE sticky where you will find in post # 2, 17 pre-written defences that cover a multitude of circumstances. Pick the one that most suits your situation and adapt it to suit.

duckieb

Thank you very much. I have done the AoS already and am putting the defence together as well. I was just concerned because I don't have any of the previous letters (as they all went to my old address) so I don't know if cameras were involved or what other evidence to bring up. However I will do a defence which will have to be fairly generic and post it here tomorrow for some advice if that is ok.

Le_Kirk

You have until Wednesday 9th October as per KeithP's post above, so if you've submitted the SAR, you MIGHT get the data in time for your defence, however, if you don't you just use a generic defence (providing it has all the usual points you will find in any of the standard defences) you can then expand upon it in your Witness Statement once you have received the results of your SAR .

duckieb

Hi all. Thank you so much for all your help and swift replies so far. I am so grateful for your assistance. Apologies as I may not have made myself clear initially - I am trying to fight 2 things, both from PCM (UK) via Gladstones. One is a CCJ I need set-aside, and the other is a county court claim. I have emailed the SAR and done the AoS for the claim. I thought I would start with the claim. Below is my draft defence - it is probably overlong and quite laughable, and I have zero legal background and so am not sure if this is at all correct. My main defence is that: all letters went to my old address, I was not the driver at all and they cannot prove that, and the other generic things relating to inflated costs. I have no evidence as have no previous letters so it is quite generic. I would be grateful for your advice.


IN THE COUNTY COURT

CLAIM No: XXXXXXXXX

BETWEEN:

Parking Control Management (UK) Limited (Claimant)

-and-

XXXXXXXXXXX (Defendant)

________________________________________
DEFENCE

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

2. It is admitted that the Defendant is the registered keeper of the vehicle in question.

3. The Defendant was at work elsewhere on the day in question and as such cannot have been the driver of the vehicle.

4. The defendant has no liability as they are the Keeper of the vehicle, and the Private Parking Company has failed to comply with the strict provisions of PoFA 2012 to hold anyone other than the driver liable for the charges.

4(i) the driver has not been evidenced on any occasion.

4(ii) There is no presumption in law that the keeper was the driver and nor is a keeper obliged to name the driver to a private parking firm. This was confirmed in the POPLA Annual Report 2015 by the POPLA Lead Adjudicator and barrister, Henry Greenslade, when explaining the POFA 2012 principles of 'keeper liability' as set out in Schedule 4.

5. This claim form has not been served at my current address and I became aware of the claim incidentally. I understand that this Claim was served at an OLD ADDRESS (XXXXXXX). However, I moved to a new address in January 2017. In support of this I can provide confirmation from XXXXXXX County Council showing my updated details for the purposes of paying Council tax.

5(i). I have also never received any previous documentation from the Claimant in this matter and I thus was never able to properly challenge the Claimant’s claim.

5(ii). The court papers contain no details of the alleged incident and I do not know what the Default Judgement relates to.


5(iii). I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they held the Defendant’s current and correct contact details. According to publicly available information my circumstances are far from being unique. The Claimant’s persistent failure to use correct and current addresses results is an unnecessary burden for individuals and the justice system across the country.

5(iv). On the basis provided above I would suggest that the Claimant did not fulfil their duty to use the Defendant’s current address when bringing the claim.


6. If the Claimant can evidence that the alleged incident relates to a vehicle for which the Defendant is the Registered Keeper, any Notice to Keeper served by the Claimant would have needed to comply with the requirements of Schedule 4 of the Protection of Freedoms Act 2012. Otherwise, the Claimant is required to prove the driver of the vehicle they claim was involved in the alleged incident. I submit that the Claimant cannot provide such evidence and further submit that the Claimant does not include ‘Protection of Freedoms Act 2012’ wording on the Parking Charge Notices they issue and therefore cannot hold the Defendant automatically liable for the alleged incident merely for being the Registered Keeper of a vehicle.

6(i). A requirement of the Protection of Freedoms Act 2012 is that this any Notice to Keeper served by the Claimant must be served within 14 days of the date of the alleged incident. Since I have not received any documentation from the Claimant prior to finding out about the Default Judgement, I submit the Claimant will not have complied with the requirements of the Act and thus cannot claim this charge against me as the Registered Keeper in any case.



7. The Particulars of Claim does not state whether they believe 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 Claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

8. Due to the sparseness of the Particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. 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. As held by the Upper Tax Tribunal in Vehicle Control Services Limited v HMRC [2012] UKUT 129 (TCC), any contract requires offer and acceptance. The Claimant was simply contracted by the landowner to provide car-park management services and is not capable of entering into a contract with the Defendant on its own account, as the carpark is owned by and the terms of entry set by the landowner. Accordingly, it is denied that the Claimant has authority to bring this claim. The proper Claimant is the landowner.

9. In addition, the Claimant has failed to provide evidence of the alleged contravention. The Particulars of Claim lists the location as ‘Clement Danes & Holborn House -W12’ with no road name, which returns no clear results when searched on Google. The Defendant has made attempts to identify this location however with the lack of specific information, and the refusal to respond with evidence, the Defendant has been unable to ascertain where the parking event was.

10. Should PCM (UK) provide evidence to substantiate their claim then it is denied that the driver was properly informed about any parking charge, either by signage or by a CN. Therefore, 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.

11. Alternatively, even if there was a contract, the provision requiring payment of £689.22 is an unenforceable penalty clause.

12. With no POFA and no law of agency to rely on, the Claimant has no cause of action.

13. In addition, the amount demanded is excessive and unconscionable. The Claimant’s representative has artificially inflated the value of the claim from XX to XX. The legal costs are not justified additionally it would have been factored within the additional £60 charge per PCN thus claiming again would be considered double charging creating financial gain.

13(i). The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £417.66 total, for 'contractual costs pursuant to the Contract and PCN terms and conditions, together with statutory interest' which appears to be an attempt at double recovery.
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.

14. 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.

15. 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.

16. 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.

17. 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.

18. 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.

19. 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...''

20. 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.

21. 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.

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 has been intimidating, misleading and indeed mendacious in terms of the added costs alleged. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.



Statement of Truth:
I confirm that the contents of this statement are true to the best of my knowledge and belief.
•

Name
Signature
Date

ShakeItOff

What may (depending on the timings) help your current claim is the principle of res judicata, too. The Claimant shouldn't be subjecting the Defendant to multiple claims for broadly similar issues. I'm about to do the same with my new claim (I got a set aside for a CCJ issued for a 2015 PCN and then won in court, and they're now pursuing a PCN from 2014).

duckieb

Oh really. That is very interesting, thank you. Especially as they have quoted 3 tickets supposedly, on '13/7/17, 17/7/17, 17/7/17' and so not only is it multiple PCNs for the same issues, but for the same day. Has this been used in any of the previous sample defences? I hadn't come across it but can reread and see how to work it in.

ShakeItOff

It's more because they have already progressed one claim (the CCJ) and are now going for a second claim for additional tickets. By the sounds of it, the PCNs in the current claim were known and available (to make a claim for) when they progressed the original claim that you got the CCJ for. But double check the dates (if the current PCNs can after the default judgment for the CCJ, then you can't use res judicata). Does that make sense?

ShakeItOff

Sorry, I should add that I am in a similar(ish) situation. I had a 2015 PCN and a 2014 PCN. They turned the 2015 one into a claim in 2018 (default CCJ, set aside in 2019), but didn't include the 2014 one. Now, they are progressing the 2014 one separately, but should have progressed both PCNs together. To pursue them separately is a waste of the court's time and an abuse of process.

Le_Kirk

Defences should be written in the third person, hence "the Defendant did this, that or the other" not "I" did......
Change this: -

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.

to this: -

Order was identical in striking out both claims without a hearing and here the defendant quotes from the cases cited:
''IT IS ORDERED THAT The claim is struck out as an abuse of process.

This is to ensure that the judge knows you are quoting not ORDERING the court or Judge to do something. Also if you search for the Abuse of Process again, you will find that Coupon-mad has, at post # 14 on that thread by beamerguy, added another case at Caernarfon and changed the wording slightly.

duckieb

Thank you Le_Kirk, amended.
I would be grateful for any other comments people may have?
I will look into res judicata but will it not mean I have to then say I've had multiple PCNs sent to me in batches? Would that work against me?