UK Car Park Management / Gladstones - County Court Business Centre Defence

neoneel

Dear Experts on defending private PCNs,
I have a country court claim initiated against me by Gladstones solicitors on behalf of UK Car Park Management. I have read the stickys and completed the AOS for a claim that was issued on 9th Oct 19. I assume I am due to file my defence by the end of week 1 of November. Having read a few posts, I have compiled a defence and need your help in making it firm and sensible.

Particulars of the Claim "[The driver of the vehicle with registration ABCD (the 'Vehicle') parked in breach of the terms of parking stipulated on the signage ('the contract') at XXX Business park,AAA DDDDD BBB, Postcode, on XX/XX/2018 thus incurring the parking charge (the 'PCN'). The PCN was not paid within 28 days of issue. The Claimant claims the unpaid PCN from the defendant as the driver/keeper of the vehicle. Despite demands being made, the Defendant has failed to settle their outstanding liability. The claimant claims £100 for the PCN, £60 contractual costs pursuant to the Contract and the PCN terms and conditions, together with statutory interest of £XX pursuant to s69 of the county courts act 1984 at 8% per annum continuing at £0.04 per day."

The background
My company moved to a new business park, where we were told parking was free. We were never issued parking permits nor were we advised they were needed. Of the whole parking area (with a capacity of nearly 200 cars) there are only 3 signages with is of the size roughly A2/3 with super small fonts stating terms and conditions. The alleged offence occurred in Oct 2018 and my company had been operating there since early 2018.

The communication I have received so far from UK CPM / Gladstones is in the following order
There was no windsceen ticket / notice stuck on the car
Letter 1 Late Oct 2018 - PCN to the keeper of the vehicle demanding £100 after 10 days of the alleged breach
Letter 2 Formal demand - Nov 2018 exactly after 1 month of Letter 1
Letter 3 Gladstones Solicitors - Letter before claim Aug 2019 - asking for £160
Letter 4 Gladstones Solicitors - Letter before claim Sep 2019 - asking for £160
Some scammy text message "£160 due - you have not responded to our pre-action letter" (not sure how they got my telephone number) - Sep 2019
Letter 5 - Claim Form Oct 2019

At that point, I thought this was serious and needed to do something. So started with MSE and found you briliant lot. I posted a SAR requesting the below documents from UK CPM to which they sent letter 1 and letter 2 and two A4 size copies of the photos 1) Of the car and 2) of the illegible signage across the other side of the road"

Happy to share these photos after redacting the obvious.

Please find the draft defence below and kindly help.

IN THE COUNTY COURT BUSINESS CENTRE

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 ABCD, of which the Defendant is the registered keeper, was seen without a driver on the material date at XXXX Business Park, Postcode. The Defendant's employer moved to XXXX business park (site address, postcode) in early 2018, and staff were told parking was free and no permits were issued nor were any conditions mentioned for parking/waiting/loading. Of the whole parking area (with a capacity of nearly 200 cars) there are only 3 small A2/A3 sized signs with extremely small font writing. Any t&cs were unknown and staff had the honest belief that such terms would not relate to authorised drivers and even if the signs were read, they appear to relate only to deterring 'unauthorised' drivers/trespass by persons with no business to be there. The alleged parking event occurred in Oct 2018 and the employing company had been operating there since early 2018 with no information or obligations placed upon staff regarding parking/loading and there were certainly no contractual agreements, permits or warnings issued. The Defendant had never had cause to read any terms and nor can they be taken to have had that opportunity. It cannot be said that the minuscule terms were 'bound to be seen' or that there can be any 'legitimate interest' in penalising workers permitted to park there, and these facts fully distinguish this case from the unusual commercial set up in ParkingEye Ltd v Beavis [2015] UKSC67.

3. The evidence presented by the claimant is two photographs with a timestamp with a difference of six seconds which can hardly be construed as parking.

4. The defendant would like to bring to your notice that upon requesting the copies of the PCN issued and communication to the alleged driver of the car or the keeper of the car (the defendant here) under a subject access request, the claimant only presented a letter based PCN sent to the defendant on XX Nov 2019 and a letter on XXth Nov 2018 followed by a silence for months and then a letter before claim in Aug 2019.

5. As no windscreen ticket PCN was issued and the communication to the keeper was done insufficiently, the statutory notification duties per the BPA Code of Practice were not followed by the claimant which makes this claim invalid.

6. The defendant would also like to bring to your notice that the address/postcode where the claimant claims the car was alleged parked is actually a location with no access to cars. Thus, the claimant is requested to present further proof to show that the photograph presented as evidence are in fact of the location quoted in the claim.

7. Further, on examining the evidence presented in terms of the photographs, it is seen that there are no red/yellow lines indicating any restriction which a driver can understand (by default) that would alarm them to not load/park on the side of the road where the car reg XXXX is shown standing.

8. The Particulars of the claim state that the Defendant XXXX; was the registered keeper and/or the driver of the vehicle(s) ABCD that was allegedly parked in breach of conditions of the business park, XXXX postcode on the date XXXX. 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.

9. The claimant claims that the parking was “unauthorized”, however, fails to define the conditions based on which the terms classified the car as unauthorizedly parked. Firstly, there are no signs which indicate to anyone that the area has controlled parking or that one is entering a designated car park. Further, the signage (shown in the evidence presented by the claimant) with extremely small fonts is placed very sparsely in the large carpark (3 pieces of signage in parking/open land of >150 vehicles) and states the following in relation to the applicable terms and conditions “A valid permit must be clearly displayed in windscreen at all times or the vehicle registration must be registered for an Electronic permit. No parking outside of a designated area. If unsure seek advice from CPM or refrain from parking.”

10. The defendant puts the claimant to strict proof to show there is enough clear signage to show the area of the business park as “designated” for the purpose of loading/parking of cars where the car XXXX is shown to be standing in the photograph.

11. The defendant puts the claimant to strict proof to provide evidence that employees of companies at XXXX business park were issued parking permits by the claimant (UK Car Park Management) and that sufficient and legible signage was in place to ensure anyone entering/loading/parking in the said parking area was made aware of the conditions applicable in relation of entering/loading/parking.

12. 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.

13. Further and in the alternative, 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. They merely state that vehicles must be parked correctly within the designated area and or with a parking permit displayed/electronically registered, giving no definition of the term 'designated area' and or the method of registering the given vehicle.

14. As seen in the evidence presented by the claimant, the terms on the Claimant's signage are also 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. The defendant puts the claimant to strict proof if there is disagreement to the above.

15. 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.

16. 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 £60 contractual costs, for which no calculation or explanation is given, and which appears to be an attempt at double recovery. Many similar cases against companies in the business similar to the claimant have been struck out previously for abuse of process. (References: Claim number: F0DP201T, District Judge Taylor in Southampton Court, 10th June 2019; Claim Number F0DP163T, District Judge Grand in Southampton Court, 11 July 2019).
17. The defendant would like to bring it to the attention of the judiciary that the claimant and or their representative Gladstones Solicitors have not responded to the defendant's request for documents that the claimant intended to rely upon in this case against the defendant. The request under CPR 31.14 was made on the XX to which the claimant requested an identity verification which was completed on the xx. 7 days have passed and the defendant has not received the requested documents. This is not in line with the duties and responsibilities that the claimant should discharge within 7 days under CPR 31. This leaves the defendant at a disadvantage and prevents the defendant from creating a robust defence. This is another attempt by the claimant to abuse the process and create an unfair playing field for the defendant

18. 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

neoneel wrote: »

I have completed the AOS for a claim that was issued on 9th Oct 19. I assume I am due to file my defence by the end of week 1 of November.

Hi and welcome to the forums.

With a Claim Issue Date of 9th October, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Monday 11th November 2019 to file your Defence.

That's well over a week away. Plenty of time to produce a Defence, but please don't leave it to the last minute.


When you are happy with the content, your Defence could be filed via email as suggested here:

Print your Defence.
1. Sign it and date it.
   
2. Scan the signed document back in and save it as a pdf.
   
3. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
   
4. Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
   
5. Log into MCOL after a few days to see if the Claim is marked "defence received". If not chase the CCBC until it is.
   
6. Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire, they are just trying to keep you under pressure.
   
7. Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.

The_Deep

No doubt you have read this

https://forums.moneysavingexpert.com/discussion/6014081/abuse-of-process-district-judge-tells-bwlegal

Gladstones have been told many times that this extra £60 is unlawful by judges so bring it to the attention of their regulatory body.

https://www.sra.org.uk/consumers/problems/report-solicitor

Le_Kirk

Defences are written in the Third Person, so no "I" but "the Defendant."Also, search the forum for Abuse of Process and add that to emphasise your point 16.

neoneel

Thank you all
@KeithP - Will follow the procedure to the letter
@The Deep - I will add a paragraph in relation to abuse of process today. Thanks for the push
@Le_Kirk - Post corrected and written in third person now. Will make point 16 stronger after reading up more today.

Coupon-mad

Add these facts to your #2:

The Defendant's company moved to a new business park, and staff were told parking was free and no permits were issued nor mentioned. Of the whole parking area (with a capacity of nearly 200 cars) there are only 3 small A2/A3 size signs with extremely small font writing. Any t&cs were unknown and staff had the honest belief that such terms would not relate to authorised drivers and even if the signs were read, they appear to relate only to deterring 'unauthorised' drivers/trespass by persons with no business to be there. The parking event occurred in Oct 2018 and the employing company had been operating there since early 2018 with no information or obligations placed upon staff regarding parking and there were certainly no contractual agreements, permits or warnings issued. The Defendant had never had cause to read any terms and nor can they be taken to have had that opportunity. It cannot be said that the minuscule terms were 'bound to be seen' or that there can be any 'legitimate interest' in penalising workers permitted to park there, and these facts fully distinguish this case from the unusual commercial set up in ParkingEye Ltd v Beavis [2015] UKSC67.

neoneel

@Coupon-mad Points 2 has been strengthened
@The Deep & @Le_Kirk Point 16 strengthened up.

Also, what do you all think of the last statement of point 16? too much?

Also, do you fellas think this is ready to go out?
The SAR got me back two letters and two photos of the car taken in the area from DPO of UK CPM.
I have sent in a CPR request so waiting to see if there is anything else they have come up with (I doubt they have but still)

Shall I list the documents requested as part of the SAR and CPR?

Thanks

Le_Kirk

neoneel wrote: »

Also, what do you all think of the last statement of point 16? too much?

From a personal point of view, I would love hear that the judge had "clapped then in irons, locked them up and thrown away the key" but I doubt it will happen. From a defence point of view, it's more of a narrative than a legal/technical point so maybe best left to the witness statement stage. Others will, of course, have their own opinion.

Coupon-mad

No need to repeat twice:

XXX business park site (postcode).

neoneel

@Coupon-mad - Repetition removed
@Le_Kirk - Took off the last statement.

also, in point 9, I mentioned that there is no signage stating that one actually entering a car park (controlled or otherwise)....which I guess is very important. I have gone back to the car park and taken photos as evidence.

To the CPR request, they sent me an identity verification request as they had insufficient information to verify my identity. They needed me to prove I was the keeper to which I uploaded the V5C front page (as requested by them). After that, I have not received a response to the CPR request yet which was posted to them in the very end of Oct. 7 days by which they needed to have responded has passed considering the date of the original CPR request.

Thus, I was thinking of adding the following in relation to that
"I would like to bring it to the attention of the judiciary that the claimant and or their representative Gladstones Solicitors have not responded to the defendant's request for documents that the claimant intended to rely upon in this case against the defendant. The request under CPR 31.14 was made on the XX to which the claimant requested an identity verification which was completed on the xx. 7 days have passed and the defendant has not received the requested documents. This is not in line with the duties and responsibilities that the claimant should discharge within 7 days under CPR 31. This leaves the defendant at a disadvantage and prevents the defendant from creating a robust defence. This is another attempt by the claimant to abuse the process and create unfair playing field for the defendant"


@all - Do you think this is good enough to finalize and be posted as the defence?

Thanks

Coupon-mad

Yes that's a fair addition.