Horizon/Gladstones claim - court this week

victorian12

Great. Thanks so much. I'm on it....

victorian12

OK, I've put together a draft of the defence based on my best assumptions about similar cased in the newbies thread. I would be grateful for any feedback. I am not sure of the relevance of some sections to my case. In particular the points about signage. I took a photo of the sign today if that would be of any use? 

DEFENCE:

I am XXX, Defendant in this matter and I assert that the Claimant has no cause for action for the following reasons:

1.It is admitted that the Defendant was the authorised registered keeper of the vehicle in question at the time of the alleged incident.

2. It is believed that it will be a matter of common ground that the claim relates to a purported debt as the result of the issue of a Parking Charge Notice (PCN) in relation to an alleged breach of the terms and conditions by the driver of the vehicle XXXX XXX when it was parked at Water Gardens Shopping Centre, Harlow, Essex, CM20 1AN. The PCN stated the contravention as “breach of the terms of parking stipulated on the signage (the ‘Contract’).”

3. It is denied that:

a. A contract was formed, and it is further denied that any ‘breach of contract’ occurred since the keeper purchased a ticket on exiting the car park

b. There was any agreement to pay a parking charge.

c. That there were Terms and Conditions prominently displayed around the site which communicated any additional punitive parking charge (effectively a private 'fine') in large lettering, in a clear and concise way, on a par with the tariff signs where the fees were advertised in the largest font. By contrast, the 'parking charge' is positively buried in small print, contrary to Lord Denning's 'Red Hand Rule' and contrary to the requirements of the Consumer Rights Act 2015.

d. That in addition to the parking charge there was any agreement to pay additional and unspecified additional sums, which are in any case unsupported by the Beavis case and unsupported for cases on the small claims track.

e. The claimant company fully complied with their obligations within the British Parking Association Code of Practice of which they were member at the time.

4. It is further denied that the Defendant is liable for the purported debt.

5. The claim is rebutted because the Defendant made all reasonable efforts to make payment for parking prior to leaving the car park by using the payment machine.
a. Payment for parking was made prior to exiting the car park using the payment machine.
b. The failure of the payment service to correctly identify the keeper’s vehicle is not the Defendants responsibility.
c. In Jolley v Carmel Ltd [2000] 2 –EGLR -154, it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach when unable to fully comply with the terms.

6. The Defendant did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.

7. The Defendant denies that they would have agreed to pay the original demand of £60 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.
a. The amount demanded is excessive and unconscionable and especially so when compared to the level of Penalty Charge Notice issued by the local Council which is set at £50 or £25 if paid within 14 days.

8. The signage on this site was inadequate to form a contract with the motorist.
a. The signage on and around the site in question was not prominent and did not meet the British Parking Association (BPA) Code of Practice or the International Parking Community (IPC) Code of Practice. The Claimant was a member of the BPA at the time and committed to follow its requirements. Therefore no contract has been formed with driver to pay the amount demanded by the Claimant, or any additional fee charged if unpaid in 28 days.
b. In the absence of ‘adequate notice’ of the terms and the charge (which must be in large prominent letters such as the brief, clear and multiple signs in the Beavis case) this fails to meet the requirements of Schedule 4 of the POFA.

9. The Claimant’s representatives, Gladstones, have artificially inflated the value of the Claim from £120 to £354.61. The Defendant submits the added costs have not actually been incurred by the Claimant; that these are figures plucked out of thin air and applied regardless of facts.
a. If the “parking charge” listed in the particulars of claim is to be considered a written agreement between Defendant and Claimant then under 7.3, the particulars fail to include “a copy of the contract or documents constituting the agreement”.
b. 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.

Non-disclosure of reasonable grounds or particulars for bringing a claim:
10. Horizon Parking Ltd are not the lawful occupier of the land. The Defendant has 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.
a. 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.
b. The Claimant is not the landowner and suffers no loss whatsoever as a result of a
vehicle parking at the location in question.
c. The Claimant is put to 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.
d. The Particulars of Claim are deficient in establishing whether the claim is brought in trespass. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landowner can pursue a case under the tort of trespass not this Claimant, and as the Supreme Court in the Beavis vs ParkingEye (2015) [2015] UKSC 67 case confirmed, such a matter would be limited to the landowner themselves claiming for a nominal sum.

11. The Particulars of Claim fail to fulfil CPR Part 16.4 because it does not include a statement of the facts on which the claimant relies, only referring to a Parking Charge Notice with no further description; it fails to establish a cause of action which would enable the Defendant to prepare a specific defence:
‘The driver of the vehicle registration
XXXX XXX parked in breach of the terms of parking stipulated on the signage (the ‘Contract’) at Water Gardens Shopping Centre, Harlow, Essex, CM20 1AN on xxxx/2019 and xxxx/2019 thus incurring the parking charges (the ‘PCN’s’). The PCN’s were not paid within 28 days of issue. The claimant claims the unpaid PCN’s 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
£60.00 per PCN, £70.00 per PCN contractual costs pursuant to the contract and PCN terms and conditions, together with statutory interest of £19.61 pursuant to s69 of the County Courts Act 1984 at 8.00% per annum, continuing at £0.06 per day.

12. 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.
a) The Claimant has disclosed no cause of action to give rise to any debt.
b) The Claimant has stated that a parking charge was incurred.
c) 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.
d) 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.

13. The Defendant invites the court to strike out or dismiss the claim under Rule 3.4(2)(a) of PRACTICE DIRECTION 3A as having not set out a concise statement of the nature of the claim or disclosed reasonable grounds or particulars for bringing a claim (Part 16.4(1)(a) and PRACTICE DIRECTION 16 paragraphs 3.1-3.8). In C3GF84Y (Mason, Plymouth County Court), the judge struck out the claim brought by KBT Cornwall Ltd as Gladstones Solicitors had not submitted proper Particulars of Claim, and similar reasons were cited by District Judge Cross of St Albans County Court on 20/09/16 where another relevant poorly pleaded private parking charge claim by Gladstones was struck out without a hearing due to their ‘roboclaim’ particulars being incoherent, failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''. The Practice Direction also sets out the following example which is analogous to this claim: ‘those which set out no facts indicating what the claim is about, for example ‘Money owed £5000’.’

14. The Defendant researched the matter online, and discovered that the Claimant is a member of the Independent Parking Committee (IPC), an organisation operated by Gladstones Solicitors. They also operate the Independent Appeals Service (IAS), the allegedly independent body appointed by the Claimant’s trade body, the IPC. This research revealed that the IAS, far from being independent, is a subsidiary of the IPC, which in turn is owned and run by the same two Directors who also run Gladstones Solicitors. The individuals in question are John Davies, and William Hurley. These findings indicate a conflict of interest. Such an incestuous relationship is incapable of providing any fair means for motorists to challenge parking charges, as well as potentially breaching the Solicitors Regulation Authority Code of Conduct.

15. The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking for a true cause of action. Her Majesty's Courts and Tribunals Service have identified over one thousand similar poorly produced claims and the solicitors conduct in many of these cases is believed to be currently the subject of an active investigation by the Solicitors Regulation Authority.

16. The Defendant believes the terms for such conduct is ‘robo claims’ which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. The Defendant has reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to their significant detriment as an unrepresented Defendant.

17. The Defendant respectfully suggests that parking companies using the small claims track as a form of aggressive, automated debt collection is not something the Courts should be seen to support.

18. The Defendant denies the claim in its entirety voiding any liability to the claimant for all amounts due to the aforementioned reasons. It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious.

19. The Defendant invites the court to dismiss this claim out as it is in breach of pre court protocols in relation to the particulars of claim under Practice Direction 16, set out by the Ministry of Justice and also Civil Procedure Rules (CPR) under 16.4 and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14.

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

KeithP

That is quite old.
Is it still linked from post #2 of the NEWBIES thread?
For example, the IPC changed their name from the Independent Parking Committee (IPC) several years ago.

But what is the relevance of any of paragraph 14 anyway?
Horizon are not members of the IPC, whatever those letters stand for.

victorian12

Yes it was linked from the NEWBIES thread. The second example. 

Le_Kirk

Yes, that defence is from 2017.  Coupon-mad, the guru lady behind the sticky is (or at least was until the move to the new forum platform temporarily stopped that) rewriting it.  In the meantime she has written recent new defences in threads (discussions) by basher52, jellybelly23 and an older one worth reading by CEC16.

victorian12

Thanks I will look those up.

Redx

Do not use any defence older than 6 months (unless it's by Bargepole) and preferably as new as possible , especially if it talks about recent strike outs due to abuse of process , examples of words like Brighton ,Warwick , Portsmouth , Southampton and the names of the judges
So the newer , the better , also those using the correct name of the IPC and use the forum Search for successful cases with a hit record by Queen as the search words (AOBTD - hint)

victorian12

OK. A complete re-write. This time based on the Bargepole example. I like the succinct style and given my imminent deadline on Tuesday I feel like I need to work with something I can get my head around. I think point 13 covers 'abuse of process' or would it be better to spell this out? Unfortunately I do not have the original PCNs so not sure if POFA has been followed. I have sent an SAR request to Horizon.

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

HORIZON PARKING 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 XXXX, of which the Defendant  the registered keeper, was parked on the material dates at Water Gardens Shopping Centre, Harlow, Essex, CM20 1AN. The PCN stated the contravention as “breach of the terms of parking stipulated on the signage (the ‘Contract’).”

3. The Particulars of Claim state that the Defendant “was the driver/keeper 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 the claim do not meet the requirements of Practice Direction 16, 7.5 as there is nothing which specifies how the terms were breached.

4. The Particulars of the Claim are sparse (“The driver of the vehicle registration
XXXX XXX parked in breach of the terms of parking stipulated on the signage (the ‘Contract’) at Water Gardens Shopping Centre, Harlow, Essex, CM20 1AN on xxxx/2019 and xxxx/2019 thus incurring the parking charges (the ‘PCN’s’). The PCN’s were not paid within 28 days of issue. The claimant claims the unpaid PCN’s 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 £60.00 per PCN, £70.00 per PCN contractual costs pursuant to the contract and PCN terms and conditions, together with statutory interest of £19.61 pursuant to s69 of the County Courts Act 1984 at 8.00% per annum, continuing at £0.06 per day.”). 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.

5. 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. The option to pay online within a time limit is offered as an alternative to using the ticket machine for those ‘in a hurry’. Given the extremely long queues at the ticket machines this seems a necessary option. However it is not clear if the terms on the Claimant’s signage apply to online payments.

6. 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 need to stand directly in front of the sign. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

7. The Claimant is put to strict proof that the vehicle did not have a valid permit to be parked since a cash payment could have been made but incorrectly assigned to another vehicle due to an input error and/or an a technical issue with the ANPR system.

8. 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.

9. The Notice To Keeper does not specify the period of parking, as required by the Protection of Freedoms Act 2012, Schedule 4, Section 8 (2)(a)&(b) and therefore cannot hold the keeper liable.) ……….I don’t have the original NTK or PCNs so not sure if I can include this. I have sent an SAR request to Horizon but I might not hear back before I need to submit on Tuesday.

10. 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 £120. The claim includes an additional £140 for ‘PCN contractual costs’, for which no calculation or explanation is given. ……again is this still worth including if ‘contractual costs’ are listed in the claim particulars?

11. The two parking charges in question are at a level of £60 each, yet the Claimant is trying to recover an eye-watering £260 (plus interest, court costs and Legal representative’s costs). The purported added 'costs' are disproportionate, a disingenuous double recovery attempt, vague and in breach of both the CPRs, and the Consumer Rights Act 2015 Schedule 2 ('the CRA') 'terms that may be unfair’.……again is this still worth including if ‘contractual costs’ are listed in the claim particulars?

12. The claim includes an additional £50 for ‘Legal representative’s costs’, such costs are not permissible under Civil Procedure Rules – Part 27.

13. 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 Civil Procedure Rules 3.4.

I believe the facts contained in this Defence are true.

Name
Signature
Date

Le_Kirk

That has everything that Bargepole recommends for a succinct defence.  Now you can search for the longer defence posted by Coupon-mad in the beamerguy Abuse of Process thread OR you can leave it to the Witness Statement stage and submit it then.  Coupon-mad is advocating sending the longer argument at defence stage.  Have a look at recent threads by basher52 and jellybelly23 to see which way you want to do it.

victorian12

Thanks for the feedback. I'm leaning towards waiting until the Witness Statement as I'm not sure if I will get additional info back from the SAR request.
The reason I'm so late is because The Court Claim went to my old address. Gladstone had previously written to me at my new address ('we know where you are' style) so I had asssumed there was no need to worry about post going to my old place!

Another question - are paragraphs 10 and 11 still valid given that 'contractual costs' were detailed in the Particulars?