Got my 1st CCBC Claim from Gladstone - Please Help

Coupon-mad

Search for PACE v Lengyel defence, and copy & adapt to suit, one like that from a recent 2018/19 thread.

ParkingTicketGuy

Coupon-mad wrote: »

Search for PACE v Lengyel defence, and copy & adapt to suit, one like that from a recent 2018/19 thread.

I followed your advice and I found a very similar case with mine that had a Defence build on a previous one of Bargepole.

I am still a bit uncomfortable knowing that I was not visiting anybody...but I still have the contact of my previous landlord from the flat I used to live in.

So the defence looks like this and any correction would be highly appreciated:

In The County Court


Claim No: XXXXXXX


Between


PACE RECOVERY & STORAGE LIMITED (Claimant)

-and-

XXXXXXX (Defendant)

____________
DEFENCE
____________

1. The Defendant was the registered keeper and driver of vehicle registration number XXXXXXX on the material date. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The facts of the matter are that the Defendant is a visitor of XXXXXXX. The ‘land’ which forms the basis of the current claim consists of a relatively small number of poorly marked ‘private land’ parking spaces located. Given this lack of clarity and the fact there was no sufficient lighting to see these signs at night time when the Defendant arrived and parked, no contract can be construed from the Claimant's signage, under the contra proferentem principle.

3. 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.

4. The Defendant was authorised by a resident of the flat with a lease agreement, therefore was not unauthorised. The defendant, in this case, had no reason to conclude or agree that a parking charge applied to such a visitor. I don’t know if it is ok to put this here as I parked based on my own knowledge since I used to live in that residential area and used to park 3 cars at the same time. The signage was the same and no there was no enforcement for years. At one point they sent us a letter(which I don’t have) saying that they will implement some kind of residential permit but even having one residential permit for a car…I still had 2 more cars parked with no problems without the permits.

5. Accordingly, it is denied that the Defendant breached any of the Claimant's purported contractual terms, whether express, implied, or by conduct.

6. The Claimant is put to strict proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge, unless specifically authorised by the principal. The Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name, and that they have no right to bring any action regarding this claim.

7. The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 as a binding precedent on the lower court. However, that only assists the Claimant if the facts of the case are the same, or broadly the same. In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas it is the Defendant's position that no such breach occurred in this case because there was no valid contract


8. 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.

9. The Beavis case confirmed the fact that, if it is a matter of trespass (not a 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.

10. The Defendant has the reasonable belief that the Claimant has not incurred £60 costs to pursue an alleged £160 debt. The Protection of Freedoms Act 2012, in Schedule 4, Para 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.

11. In summary, the Claimant's particulars disclose no legal basis for the sum claimed, and the Court is invited to dismiss the claim in its entirety.

Statement of Truth:

I believe that the facts stated in this Defence are true.

Name
Signature

ParkingTicketGuy

I don't know what advantage can be raised for me and if I need to add an extra paragraph to my defence but in the PoC, the Claimant refers to 3 PCN for 3 different days but they wrote down:

...on 12/05/2019, 14/05/2019, 14/05/2019, thus incurring the parking charges (PCN's)....

These dates I just gave are purely for example...what I want to underline is that they referred to only 2 dates by mistake by writting down 14/05/2019 twice instead of 13/05 and 14/05.

ParkingTicketGuy

nosferatu1001 wrote: »

1) Yes, of course it is.
2) The parking firm, and for giggles, Gladstones. Gladstones wont even have any documents at this point - they never do.

But why ar eyou thinking SAR? Your defence is paramount. Youve wasted enough time - the closer yo uget without showing us something, the less time you have for anyone to even glance at it. Get to it!

I have sent the SAR to both Pace Recovery and Gladstones.
I hope I can claim back some costs as I spent 6 hours to put together some meaningful texts.
If I will continue to navigate through these treads, I will end up losing more money from not working than the actual value of the fine

Anyway, your help makes my defence possible and it is highly appreciated.
Thank you, guys!

nosferatu1001

That mistke is unlikely to be of much help to you, but you can at least point it out and state they shouldnt be allowed to make a different Pleading now.

Costs - you need to actually read upon the relatibvely HIGH bar you have to meet in order to claim anything more than the capped £95 for time off at hearing.

ParkingTicketGuy

ParkingTicketGuy wrote: »

I followed your advice and I found a very similar case with mine that had a Defence build on a previous one of Bargepole.

I am still a bit uncomfortable knowing that I was not visiting anybody...but I still have the contact of my previous landlord from the flat I used to live in.

So the defence looks like this and any correction would be highly appreciated:

In The County Court


Claim No: XXXXXXX


Between


PACE RECOVERY & STORAGE LIMITED (Claimant)

-and-

XXXXXXX (Defendant)

____________
DEFENCE
____________

1. The Defendant was the registered keeper and driver of vehicle registration number XXXXXXX on the material date. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The facts of the matter are that the Defendant is a visitor of XXXXXXX. The ‘land’ which forms the basis of the current claim consists of a relatively small number of poorly marked ‘private land’ parking spaces located. Given this lack of clarity and the fact there was no sufficient lighting to see these signs at night time when the Defendant arrived and parked, no contract can be construed from the Claimant's signage, under the contra proferentem principle.

3. 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.

4. The Defendant was authorised by a resident of the flat with a lease agreement, therefore was not unauthorised. The defendant, in this case, had no reason to conclude or agree that a parking charge applied to such a visitor. I don’t know if it is ok to put this here as I parked based on my own knowledge since I used to live in that residential area and used to park 3 cars at the same time. The signage was the same and no there was no enforcement for years. At one point they sent us a letter(which I don’t have) saying that they will implement some kind of residential permit but even having one residential permit for a car…I still had 2 more cars parked with no problems without the permits.

5. Accordingly, it is denied that the Defendant breached any of the Claimant's purported contractual terms, whether express, implied, or by conduct.

6. The Claimant is put to strict proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge, unless specifically authorised by the principal. The Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name, and that they have no right to bring any action regarding this claim.

7. The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 as a binding precedent on the lower court. However, that only assists the Claimant if the facts of the case are the same, or broadly the same. In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas it is the Defendant's position that no such breach occurred in this case because there was no valid contract


8. 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.

9. The Beavis case confirmed the fact that, if it is a matter of trespass (not a 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.

10. The Defendant has the reasonable belief that the Claimant has not incurred £60 costs to pursue an alleged £160 debt. The Protection of Freedoms Act 2012, in Schedule 4, Para 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.

11. In summary, the Claimant's particulars disclose no legal basis for the sum claimed, and the Court is invited to dismiss the claim in its entirety.

Statement of Truth:

I believe that the facts stated in this Defence are true.

Name
Signature

Any thoughts on this? is it ok to go further with it?
Many thanks

ParkingTicketGuy

One more thing; in the Newbies Thread#2 in the SAR section it says the following:

'You can find out where to send the SAR (usually by email) by looking on the Parking firm's PRIVACY webpage, telling you where to send a SAR or any 'data concerns' to their Data Protection Officer. You should NOT have to supply intrusive ID like your driving licence or Passport, that's excessive - and if they are sending an LBC then they already hold sufficient data to ID you!'

I just got a reply from the Claimant(Pace Recovery) to my request saying:

'Thank you for your request. I will need to see something that proves your identity, such as a copy of your driving licence, before I can release any information.

Yours sincerely,
XXXXX'

Is it wise to reply with my ID/ Driving licence?

Thank you for your help,

1505grandad

Definitely no driving licence. Perhaps a redacted utility bill.

Some observations re Defence:-


Para 2 - "that the Defendant is a visitor of XXXXXXX." - perhaps use "was a visitor"

The way you have stated it may suggest frequent visits so you should know the signs.


- "‘private land’ parking spaces located." - is there something missing at the end of this sentence?


- "under the contra proferentem principle." - the definition of this is:-

"The contra proferentem rule is a legal doctrine in contract law which states that any clause considered to be ambiguous should be interpreted against the interests of the party that created, introduced, or requested that a clause be included."

Not sure that by stating that principle in this instance is correct as you say you did not see the signs. If I have misunderstood perhaps an expert will put me right.

PLEASE ALSO SEE POST #6 ABOVE WHERE BEAMERGUY REFERS TO ABUSE OF PROCESS. THE POST #14 BY C-M IN THE LINK SHOULD BE C & P IN FULL - NUMBERING PARAS ACCORDINGLY.

ParkingTicketGuy

1505grandad wrote: »

Definitely no driving licence. Perhaps a redacted utility bill.

Some observations re Defence:-


Para 2 - "that the Defendant is a visitor of XXXXXXX." - perhaps use "was a visitor"

The way you have stated it may suggest frequent visits so you should know the signs.


- "‘private land’ parking spaces located." - is there something missing at the end of this sentence?


- "under the contra proferentem principle." - the definition of this is:-

"The contra proferentem rule is a legal doctrine in contract law which states that any clause considered to be ambiguous should be interpreted against the interests of the party that created, introduced, or requested that a clause be included."

Not sure that by stating that principle in this instance is correct as you say you did not see the signs. If I have misunderstood perhaps an expert will put me right.

PLEASE ALSO SEE POST #6 ABOVE WHERE BEAMERGUY REFERS TO ABUSE OF PROCESS. THE POST #14 BY C-M IN THE LINK SHOULD BE C & P IN FULL - NUMBERING PARAS ACCORDINGLY.

I have made the changes and added extended version of the defence in case of the abuse of process. I have also numbered it accordingly.
I am planning to print, sign, scan and send this in a few hours.
Any thoughts on this before I press SEND button?
Thank you in advance!

In The County Court


Claim No: XXXXXXX


Between


PACE RECOVERY & STORAGE LIMITED (Claimant)

-and-

XXXXXXX (Defendant)

____________
DEFENCE
____________

1. The Defendant was the registered keeper and driver of vehicle registration number XXXXXXX on the material date. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The facts of the matter are that the Defendant was a visitor. The ‘land’ which forms the basis of the current claim consists of a relatively small number of poorly marked parking spaces. These spaces have no ‘visitor’ markings and no numbers in order to link them with the properties in the area and there are literally no signs with private land around them. Given this lack of clarity and the fact there was no sufficient lighting to see the few signs at night time when the Defendant arrived and parked, no contract can be construed from the Claimant's signage, under the contra proferentem principle.

3. 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 in that area, 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.

4. The Defendant was authorised by a resident, therefore was not unauthorised. The defendant, in this case, had no reason to conclude or agree that a parking charge applied to such a visitor.
5. Accordingly, it is denied that the Defendant breached any of the Claimant's purported contractual terms, whether express, implied, or by conduct.

6. The Claimant is put to strict proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge, unless specifically authorised by the principal. The Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name, and that they have no right to bring any action regarding this claim.

7. The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 as a binding precedent on the lower court. However, that only assists the Claimant if the facts of the case are the same, or broadly the same. In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas it is the Defendant's position that no such breach occurred in this case because there was no valid contract

8. 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.

9. The Beavis case confirmed the fact that, if it is a matter of trespass (not a 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.

10. The Defendant has the reasonable belief that the costs on the claim are disproportionate and disingenuous. First of all, the Protection of Freedoms Act 2012, in Schedule 4, Para 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.

11. 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.

12. 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.

13. 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.

14. Unlike this mendacious and greedy Claimant, Parking Eye themselves took on board the Beavis case outcome and they never add fake costs on top of the parking charge. It is indisputable that an alleged 'parking charge' penalty is a sum which the Supreme Court found is already inflated to more than comfortably cover all costs. The case provides a finding of fact by way of precedent, that the £85 (or up to a Trade Body ceiling of £100 depending upon the parking firm) covers the costs of the letters, and all parking firms are very familiar with this case:

http://www.bailii.org/uk/cases/UKSC/2015/67.html
“
at para 98. {re ...The desirability of running that parking scheme at no cost, or ideally some profit, to themselves} ''Against this background, it can be seen that the £85 charge had two main objects. One was to manage the efficient use of parking space in the interests of the retail outlets, and of the users of those outlets who wish to find spaces in which to park their cars [...] The other purpose was to provide an income stream to enable Parking Eye to meet the costs of operating the scheme and make a profit from its services...''

at para 193. ''Judging by Parking Eye’s accounts, and unless the Chelmsford car park was out of the ordinary, the scheme also covered Parking Eye’s costs of operation and gave their shareholders a healthy annual profit.''

at para 198. ''The charge has to be and is set at a level which enables the managers to recover the costs of operating the scheme. It is here also set at a level enabling Parking Eye to make a profit.''
”
15. 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.

16. 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.

17. 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.

18. 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 earlier General Judgment or Orders of DJ Grand, who (when sitting at the Newport (IOW) County Court in 2018 and 2019) has struck out several parking firm claims. These include a BPA member serial Claimant (Britannia, using BW Legal's robo-claim model) and an IPC member serial Claimant (UKCPM, using Gladstones' robo-claim model) yet the Orders have been identical in striking out both claims without a hearing, with the Judge stating: ''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 Parking Eye 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...''

19. That is not an isolated judgment striking a parking claim out for repeatedly adding sums they are not entitled to recover. In the Caernarfon Court in Case number FTQZ4W28 (Vehicle Control Services Ltd v Davies) on 4th September 2019, District Judge Jones-Evans stated:

''Upon it being recorded that District Judge Jones-Evans has over a very significant period of time warned advocates [...] in many cases of this nature before this court that their claim for £60 is unenforceable in law and is an abuse of process and is nothing more than a poor attempt to go behind the decision of the Supreme Court v Beavis which inter alia decided that a figure of £160 as a global sum claimed in this case would be a penalty and not a genuine pre-estimate of loss and therefore unenforceable in law and if the practice continued he would treat all cases as a claim for £160 and therefore a penalty and unenforceable in law it is hereby declared [...] the claim is struck out and declared to be wholly without merit and an abuse of process.''

20. 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 untrue in terms of the added costs alleged and the statements made, in trying to justify the unjustifiable.

21. 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.

22. 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.


Statement of Truth:

I believe that the facts stated in this Defence are true.


Name

Signature


Date

ParkingTicketGuy

defence sent...I will keep you updated.
thank you