Help with defence please

br28

Received a claim form from gladstone , issue date 13/01/2020. The particulars of claim says "XXX" vehicle parked in breach of the terms of parking stipulated on the signage at Vista Centre ( ANPR)  - Hounslow on 26/03/2019 thus incurring parking charge. I have done AOS using MCOL. I do not recall receiving any letters regarding this prior to this claim form, hence do not know the nature of the breach that resulted in the parking charge. I'm due to submit my defence in couple of days and have put together the following defence. Please could  some one take a look at the defence statement posted below?  I have raised SAR with Uk CPM and sent a letter to gladstones asking for contract etc as advised on the forum. 

Statement of 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 XXXXXX, of which the Defendant is the registered keeper, was parked on the material date in a parking bay at The Vista Centre, and had a valid Pay and Display Ticket on display.  
3. 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.  
4.  The Particulars of Claim contain no details and fails to establish a cause of action which would enable the defendant to prepare a specific defence and as such defendant can only assume this relates to some form of parking charge incurred on the material date. 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. 
5. 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. 
6.  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 their allocated parking bay with a valid ‘PAY & DISPLAY’ ticket, giving no definition of the term 'correctly parked', or how to validly display the ticket nor indicating which bays are allocated to whom.  
7. 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. UK Car Park Management are not the lawful occupier of the land. The defendant has the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no rights to bring action regarding this claim. 
8. The Claimant is not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract. 
9. The claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question. 
10. 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. 
11.  The Claimant has at no time provided an explanation how the sum has been calculated, the conduct that gave rise to it or how the amount has climbed from £100 to £160. This appears to be an added cost with apparently no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows. 
12. The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper. 
13. The claim includes an additional £50 for ‘Legal representative’s costs’, such costs are not permissible under Civil Procedure Rules – Part 27. 
14. The driver did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established. The Defendant denies that the driver would have agreed to pay the original demand of £100 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible. 
15. 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. 

D_P_Dance

Nine times out of ten these tickets are scams, so consider complaining to your MP., it can cause the scammer extra costs and work, and in some cases, cancellation.

Parliament is well aware of the MO of these private parking companies, many of whom are former clampers, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, persistent offenders denied access to the DVLA database and unable to operate.

Hopefully life will become impossible for the worst of these scammers, but until this is done you should still complain to your MP, citing the new legislation.

http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted

Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.

Le_Kirk

Take out paragraph 9, as that argument went out when Beavis lost his case.  There is more ammunition for you around the Abuse of Process aspect - the additional £60 for debt recovery purposes.  The £50 is, I believe allowed but you will need to check out the CPRs to clarify this (or someone will post about it).  Check the Abuse of Process thread by beamerguy and in particular the comment by Coupon-mad (the 14th post on that thread) and/or read threads by CEC16 and basher52.

D_P_Dance

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

KeithP

br28 said:

Received a claim form from gladstone , issue date 13/01/2020. 
I have done AOS using MCOL.

With a Claim Issue Date of 13th January, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 17th February 2020 to file your Defence.

As you say... not long.

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

1. Print your Defence.
   
2. Sign it and date it.
   
3. Scan the signed document back in and save it as a pdf.
   
4. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
5. 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'.
   
6. No need to do anything on MCOL, but do check it after a few days to see if the Claim is marked "defence received". If not, chase the CCBC until it is.
   
   After filing your Defence, there is more to do...
   
   
7. Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire. Nothing of interest there. Just file it.
   
8. Wait for your own Directions Questionnaire from the CCBC, or download one from the internet - https://www.gov.uk/government/publications/form-n180-directions-questionnaire-small-claims-track , and then complete it as described by bargepole in his 'what happens when' post linked from post #2 of the NEWBIES thread - https://forums.moneysavingexpert.com/discussion/4816822/newbies-private-parking-ticket-old-or-new-read-these-faqs-first-thankyou"]
   
9. The completed DQ should be returned by email to the CCBC to the same address and in the same way as your Defence was filed earlier.
   
10. Send a copy of your completed DQ to the Claimant - to their address on your Claim Form.

br28

I have made amendments based on the suggestion from  Le_Kirk. Please let me know if it looks good.

Statement of 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 XXXXXX, of which the Defendant is the registered keeper, was parked on the material date in a parking bay at The Vista Centre, and had a valid Pay and Display Ticket on display.  
3. 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. 
4.  The Particulars of Claim contain no details and fails to establish a cause of action which would enable the defendant to prepare a specific defence and as such defendant can only assume this relates to some form of parking charge incurred on the material date. 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. 
5. 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. 
6.  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 their allocated parking bay with a valid ‘PAY & DISPLAY’ ticket, giving no definition of the term 'correctly parked', or how to validly display the ticket nor indicating which bays are allocated to whom.  
7. 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. 
8. 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. 
9. 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, for which no calculation or explanation is given, and which appears to be an attempt at double recovery. 
10. 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. 
11. 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. 
12. 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. 
13.  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. 
14.  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. 
15. 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.
16. 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 by Judge Tailor and DJ Grand was identical in striking out both claims without a hearing and stating that: ''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...'' 
17. 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. 
18. 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. 
19. 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 are true. 

br28

This the signage at Vista Centre ( image obtained from google ), does it comply with  PART E Schedule 1 – Signage ? Just wanted to be sure that the point about signage is valid ?

D_P_Dance

deleted

br28

br28 said:

This the signage at Vista Centre ( image obtained from google ), does it comply with  PART E Schedule 1 – Signage ? Just wanted to be sure that the point about signage is valid ?

1505grandad

  Para 14  -  The fact you are quoting "Ladak v DRC Locums" shows you are using old Abuse of Process paras.

See post #14 in the AoP thread for the required paras and instructions:-   (no post numbers now but it is a long post by Couypon-mad)

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

Le_Kirk

As 1505grandad says find the later version of the AoP info, possibly by searching for threads (now called discussions) by CEC16, basher52 or jellybelly23 HERE and that is a link.  Unfortunately it takes you to the last post, so you will have to scroll up a bit for the actual defence.