County Court claim letter

Coupon-mad

But you aren't writing a WS yet! 

You are merely at DQ stage, where you put in the 'witnesses' box:
 1

Nathanb

This was advised to be included in 2016.
Note: Gladstones are currently including a 'request for special directions' asking the Court to hear the case on the papers only, without an oral hearing. You should oppose this, and include the following text in D1: “The Defendant opposes the Claimant’s request for special directions, and requests that the case be listed for an oral hearing at the defendant’s home court, pursuant to CPR 26.2A(3)”.

hi, im currently in a case that is at the questionnaire stage. I have filled in as advised and It is gladstones that are representing es parking enforcement ltd. I cant see anywhere where it says that they are requesting it is done on paper rather than attending court, I know your original post is from 2016 but where would it say this if they are requesting it or not? 
at the minute I have put in D1 my local court and put the reason that "this is my local court and I may struggle to attend a court that isn't local" but I can possibly cross that off and put it on the paper somewhere what was advised above. Should I keep it as it is or put in what you have advised?

thanks

KeithP

It really is quite simple.

If the Claimant has not made that request, then you don't need to oppose it.

Nathanb

I am starting to panic now as they have completely ruined my defence as they even state that i have just copied a generic defence and i wouldnt understand the law behind it. This is what they have sent back in reply to my defence also they sent original fine letters and the letter before claim which i never received but i got the actually court letter. Even so I possibly wouldnt of replied anyway so I suppose it doesnt matter but its frustrating when literally 24 days before court I have only just found out what part of the contact i broke over 2 years after the original incident.

They have stated it is a 3 hour free stay and no return within 90 minutes 

" 24/09/2018 Entered at 15:50, Exited at 16:12 - returned at 16:32, exited at 17:36 
28/09/2018 Entered at 15:32, Exited at 16:09 – returned at 16:27, exited at 17:11 "

These times dont even equate to 2 hours stay even after leaving and returning so at no point did i take up a space that somebody else could of had. I could of stayed there for 3 hours so more than an hour more than the full time I stayed for. 

It also says i did this twice on the onday and again on the friday surely this shows that I didnt notice the signage. 
These companies prey on people like myself that wont get legal representation as i couldnt afford to lose the money and bully us into paying as to not risk losing thousands. I dont understand most of what they are stating and makes it very difficult to get a good defence together as I spent ages going over my last one and they said some of it doesnt even count towards my case so they know I have got it off the internet.

They called me offering me if i want to settle for £350 and im seriously considering it does anyone think I should take this option as to avoid costing me a lot more?

I have included what I have been sent.

1. I am the Employee of the Claimant Company (‘my Company’) and I am duly authorised to make this statement on its behalf. The facts and matters set out in this statement are within my own knowledge unless otherwise stated and I believe them to be true. Where I refer to information supplied by others, the source of the information is identified; facts and matters derived from other sources are true to the best of my knowledge and belief.

2. Exhibited to this Witness Statement at ‘GSL1’ are the following documents which my Company wishes to rely upon: i) The Agreement authorising my Company to manage parking on the relevant land (as described therein and hereinafter referred to as ‘the Site’); ii) The Sign (‘the Contract’); iii) The Site Plan; iv) Notices; v) Photographs of the incident.

3. The Defendant is liable for a parking charge relating to the parking of a vehicle on the Relevant Land in a manner so as to incur the same pursuant to the Contract (i.e. the Sign). Set out in the Schedule below are details of the parking charge: 1

4. My Company is and was at all material times involved in the management and enforcement of parking on private land. We achieve this by way of a variety of schemes including warden controlled sites, CCTV and ANPR. We are a member of an accredited Trade Association, the International Parking Community (IPC) and a signatory to the KADOE (keeper at the date of the event. As a result we are audited on a regular basis by both the IPC and the DVLA.

5. My Company were instructed to operate a parking management and enforcement scheme at ******* *********, Multi-Storey Car Park, *******************. At all material times we acted with the authority of Arndale Centre Holdings General Partnership pursuant to an agreement dated the 5th March 2018, the same having chosen to restrict and enforce parking on the land in question.

6. There is clear and unambiguous signage at the site which informs users that it is Private Land and that Terms and Conditions apply. Users are also informed that by entering or remaining on the land they agree to abide by all the terms and conditions failing which the driver will be liable for a parking charge of £100. The terms and conditions for parking at the site include inter alia: 3 hours maximum free parking – No return within 90 minutes

7. As can been seen from the site plan these signs are repeated throughout the site and there is clear signage at the entrance to the site with clear road markings showing the private land begins. The rules of interpretation require simply that the parties knew of their obligations to one-another. Users of the site are offered the opportunity of using the Land and thereafter either follow the rules and park for free or park in breach of the rules and agree to pay £100.

8. It is the driver’s responsibility, to check for signage, check the legality and obtain any authorisation for parking before leaving their vehicle. The signage on site is the contractual document. THE BREACH PCN No Charge Date Location Description ******* ******** 24/09/2018 28/09/2018 Multi-Storey ***************************Vehicle returned within a no return period Vehicle returned within a no return period
THE BREACH PCN No Charge Date Location Description PC***** PC******** 24/09/2018 28/09/2018 Multi-Storey Car Park ******* Street ******* Multi-Storey Car Park ******* Street ******* Vehicle returned within a no return period Vehicle returned within a no return period 2

9. On the 24th and 28th September 2018 vehicle registration number **** *** was observed to enter the Site. The photographic evidence shows that on each occasion the vehicle returned to the Site as set out below:
 24/09/2018 Entered at 15:50, Exited at 16:12 - returned at 16:32, exited at 17:36
28/09/2018 Entered at 15:32, Exited at 16:09 – returned at 16:27, exited at 17:11

10. The vehicle is therefore parked in clear contravention of the terms and conditions applicable at the site.

11. PCNs were not affixed to the screen at the time. My Company therefore requested the registered keeper’s details from the DVLA under the terms of the KADOE. These were supplied to us by the DVLA and postal PCNs were sent to the registered keeper, the Defendant in this case on the 2 nd and 23rd October 2018. Those notices gave the registered keeper three options: i. If they were the driver to pay the £100 charge within 28 days (discounted to £60 if paid within 14 days). ii. If they were not the driver to transfer liability for the charge by supplying the Company with the drivers full name and address. iii. Appeal the PCN initially via my Company’s internal appeals department and if dissatisfied with the outcome, appeal to the IAS.

12. Those PCNs were not returned to my office, no payment was received, no appeal was lodged and liability was not transferred. Further notices were therefore sent to the registered keeper on the 6 th and 27th November 2018. These notices were also not returned to my office and we received no response. INTERNET DEFENCE

13. My Company would like the Court to note that the Defendant is using, for the most part, a generic defence which can be found on the internet and it is highly doubtful that the Defendant would understand the complexities of all the references to the Civil Procedure Rules, the requirements in the Protection and Freedoms Act (POFA) and in established case law, which is often the case when a Defendant is questioned about such references at Court. Therefore, everything that the Defendant has outlined is not accepted and denied by my Company. THE DEFENCE 3

14. Whilst the Defendant raises various in relation to the claim based on an internet defence, it is noted that he has failed to plead his position specifically in relation to the breaches incurred at the Site. Charge is excessive/No loss suffered

15. The charge sought is industry standard and is set at a rate so as to suitably satisfy my Company’s legitimate interest. In the case of ParkingEye v Beavis 2015 it was held that an £85.00 charge was neither extravagant nor unconscionable. The Accredited Trade Associations of which parking operators must be a member in order to apply for DVLA data prescribe a maximum charge of £100. My Company’s charges are within this level. The charge is not, therefore, excessive.

16. The recent decision of the Supreme Court also made it clear that the charges are not penal nor do they have to be reflective of the parking operator’s loss. Furthermore, they are entitled to be at a level that provides a deterrent effect. The Sign does indicate the applicable charge for failing to comply with the terms of the sign is £85 however; the sign is clear that enforcement action may incur additional costs for which the Defendant will be liable on an indemnity basis. Further, the Letter Before Claim also highlights the amount due may increase in respect of costs and interest if a claim has to be issued.

17. In view of the Defendant not paying the charges within the 28 days allowed or the further 28 days allowed after the Notices to Keeper were sent, the Parking Charges have become overdue and a reasonable sum of £60.00 has been added.

18. Notwithstanding the above, the Defendant was given the option of paying each of the charges at reduced rate of £60 if paid within 14 days. The Defendant chose not to accept this option. By the Defendant’s own failures in continuing to breach the terms and conditions of parking and in failing to pay the charges when they were due, he has allowed the matter to escalate to Court proceedings where further costs have been incurred. Signage

19. The signage at the Site is clearly visible and the information on the signage informs the driver of the parking conditions at the location. Signage is prominent throughout the parking area. Signage location, size, content and font has been audited and approved by the British Parking Association (“the BPA”). 
Unfair Consumer Contract Terms

20. In accordance with the Act, “A term of a consumer contract must be regarded as unfair if it has the effect that the consumer bears the burden of proof with respect to compliance by a distance supplier or an intermediary with an obligation under any enactment or rule implementing the Distance Marketing Directive”. It is denied that the contract constitutes a ‘ distance contract’ within the meaning of the Act, in particular:- i) It is denied that the Defendant was acting as ‘consumers’. The Defendant parked on the Land wholly or mainly for the purpose of their trade, business, craft or profession; ii) It is denied that the contract was concluded by ‘means of distance communication’. Iii The Claimant maintained a physical presence on the Land.

21. In addition, my Company also rely upon paragraph 104 of the ParkingEye v Beavis [2015] which found as follows; “104. In our opinion, the same considerations which show that the £85 charge is not a penalty, demonstrate that it is not unfair for the purpose of the Act”. In view of this, it is my Company’s position that the Defendant’s submissions in this respect do not apply.

22. The Defendant refers to previous claims having been struck out on the basis of double recovery and unfair terms and as such, deemed an abuse of process. My Company relies upon the Judgment in Britannia Parking Group Ltd v Matthew Semark-Jullien [29 July 2020] in the County Court at Salisbury on appeal from the County Court at Southampton: a claim should not be struck out ‘ab initio’ on the basis of the additional charges ie. “it was wrong in principle to strike out a claim as an abuse of process on the footing that the claimant knows it to be inflated and unlawful, when there is no evidence that the claimant knows anything of the kind”. Pre-action Protocol For Debt Claims

23. The Defendant appears to aver that my Company failed to comply with the Pre-action Protocol for Debt Claims by failing to provide the wording of the sign or consumer notice. The Defendant is aware the signage on the Site is the contract and the onus was upon the Defendant to read the signage before leaving his vehicle unattended. On this basis, the Defendant was fully aware of the terms and conditions of the contract.

24. It is noted that the Defendant failed to respond to my Company’s Solicitor’s Letter Before Claim; he did not provide an account of his position in relation to the debt and made no attempt to 5 narrow the issues in dispute nor did he make any requests for supporting documentation. As a result of the above, my Company submits the Defendant has failed in respect each point of paragraph 2.1 of the Protocol and therefore, ought not to suggest my Company failed as is averred. For the avoidance of doubt, this is rejected in any event. Particulars of Claim

25. The Claim is issued via the County Court Business Centre which is a procedure specifically provided for in the Civil Procedure Rules. This only allows the Claimant to insert brief details of the Claim. In any event, I can confirm that the Particulars of Claim contained sufficient information for the Defendant to be aware of what the claim relates to. Notwithstanding this, the Defendant having received the parking charge notices was fully of the claim.

26. I refer in any event to paragraph 5.2A of Practice Direction 7E which states that “the requirement in paragraph 7.3 of Practice Direction 16 for documents to be attached to the particulars of contract claims does not apply to claims started using an online Claim Form”. Further, prior to proceedings being issued the Defendant was sent notices in accordance with the Act and a Letter Before Claim. As such, the Defendant would have been aware of the charges which are the subject of this claim. No PCNs Received

27. It is evident from the documents annexed hereto that the relevant notices were sent to the Defendant together with reminder notices. Prior to proceedings being issued, a letter before claim was also sent to the Defendant. The PCNs and all correspondence was sent to the same address at which the Claim Form was served. It is apparent the Defendant received the Claim Form, a Defence having been filed in response thereto. My Company therefore knows of no good reason why all the previous correspondence would not have been received.

 28. In any event, on the basis that the Defendant is using an internet defence, it is apparent that he has used extracts from that defence which do not relate specifically to this claim as contradictorily, he later avers within his defence that the Notice to Keeper was not compliant. Distinguishing from Beavis 6

Nathanb

29. My Company notes the Defendant infers that this case is distinguishable from the Beavis Case. In this regard, it is my Company’s view that this is not the case. In the VCS case, Judge Saffman found at paragraph 52 the following: "In the particular circumstances of the case, as was the case indeed with Mr Crutchley, the outcome, to the effect that Mr Ward is penalised for stopping for no more than 4 seconds to deal with the unforeseen illumination of his car's engine management light, may be seen to be a harsh one. Nonetheless, that is where the authorities clearly lead me. I really cannot find any basis for a proper distinction between this case and Beavis. It is true that one relates to overstaying in the car park for almost an hour and the other relates to stopping on a road for a matter of seconds but the principles in both are identical. Not only are the principles in Crutchley identical, but the facts are almost identical." 

30. It is therefore our view that the principles of the contractual license in this matter are no more or less different than in the VCS Appeal and therefore, this matter cannot be distinguished from the Beavis case. No authority to enforce charges 

31. My Company have been instructed to manage and enforce parking at the Site and pursuant to the agreement with the landowner, my Company is authorised to act as creditor. As stated, the signage on the Site is the contract and as the contract is between my Company and the Defendant, my Company does have the authority to enforce parking charges. However, both VCS v HM Revenue & Customs (2013) and Parking Eye v Beavis (CA 2015) made it clear that a contracting party need not show they have a right to do what they have promised in the performance of a contract, nor is (in the case of a parking operator) the agreement between Operator and Landowner of any relevance. 

32. It is the Defendant’s case that my Company has not adhered to the landholder’s definitions however, the Defendant is not party to the landowner agreement and has not had sight of the agreement, and therefore he is unable to make such comments. In any event, the issues raised by the Defendant are not relevant to this claim. Discontinuance 

33. The Claimant infers that he is entitled to summary costs should the claim be discontinued. There is no entitlement to costs on discontinuance in a small claims track matter. The Defendant is a litigant in person and is only entitled to his costs of attendance at a final hearing relating to travelling expenses, loss of earnings and which are awarded at the Judge’s discretion. THE CONTRACT 7 

34. The rules of interpretation require simply that the parties knew of their obligations to oneanother. The Defendant was offered to use the Land and thereafter either follow the rules and park for free or in breach of the rules agree to pay £100. 

35. The Court has concluded that one should consider the obligations imposed by the agreement, not the terminology used i.e. the agreement’s substance, not form. 

36. The principles in this case are the same as in the Parking Eye case, save that in the Parking Eye case, as the particular parking rules were different, the rule breached was that motorists must leave the Site within 2 hours, whereas here, as set out above, the rule was “3 hours maximum free parking – no return within 90 minutes”. In that case it was accepted as an established principle that a valid contract can be made by an offer in the form of the terms and conditions set out on the sign, and accepted by the driver’s actions as prescribed therein. 

37. The Court may conclude that the Site is managed as follows; the Claimant grants a contractual license to all; this license allows anyone permission to be on the Site. This is inferred by the nature of the land and the lack of any general prohibition of entry on the signage. In this regard, the Defendant (as were all the motorists) was offered to comply with the normal conditions (as clear on the sign), or park otherwise than in accordance with the normal conditions and incur a £100 charge. The acceptance was at the point the Defendant decided to park, having read the sign, and his consideration was the promise to pay £100 for the privilege of parking outside the normal conditions. The Claimant’s consideration is the provision of parking services. 

38. I refer to the Court to Judge Hegarty’s comments in ParkingEye v Somerfield [2011] that “If this is the price payable for the privilege, it does not seem to me that it can be regarded as a penalty, even though it is substantial and obviously intended to discourage motorists from leaving their cars on the car park”. 

39. Alternatively; it could be concluded that, any person can use the Site provided they do not exceed the licensed activity as set out on the sign and in failing to comply with the license granted to them, they in turn agree to the Claimant’s entirely distinct offer from that license which is ‘to park otherwise than in accordance with the license for a charge of £100’. 

40. The signage at the Site is clearly visible and the information on the signage informs the driver of the parking conditions at the location. Signage is prominent throughout the parking area. Signage location, size, content and font has been audited and approved by the International Parking Community (“the IPC”). It is the driver’s responsibility, to check for signage, check the legality and obtain any authorisation for parking before leaving their vehicle. The signage on Site is the contractual document. By parking in the manner in which they did, the charge was properly incurred. THE CURRENT DEBT 

41. In view of the Defendant not paying the charge within the 28 days allowed they are in breach of the contract. Breach of contract entitles the innocent party to damages as of right in addition to the parking charge incurred. 

42. My Company is an Accredited Operator of the International Parking Community (IPC) who prescribes a maximum charge of £100. The Code of Practice states: "Parking charges must not exceed £100 unless agreed in advance with the IPC. Where there is a prospect of additional charges, reference should be made to this where appropriate on the signage and/ or other documentation. Where a parking charge becomes overdue a reasonable sum may be added. This sum must not exceed £60 (inclusive of VAT where applicable) unless Court Proceedings have been initiated." 

43. In view of the Defendant not paying the charge within the initial 28 days allowed or the further 28 days allowed after the Notice to Keeper has been sent, the parking charge has become overdue and a reasonable sum of £60 has been added. 

44. The Sign states the prescribed charge for failing to comply with the terms is £100, however it also specifies “Where a parking charge becomes due an application may be made to DVLA for the keeper's details. Non-payment will result in additional charges which will be added to the value of the charge and for which the driver will be liable on an indemnity basis”. Further the Letter Before Claim also made it clear the debt may increase in respect of costs and interest if a claim had to be issued. Due to the Defendant not paying the charge the matter was passed to my Company's legal representatives, Gladstones Solicitors Ltd, who were instructed to commence legal proceedings. The potential additional costs mentioned above are now sought. 9 

45. The debt has, as a result of this referral risen as my Company’s staff have spent time and material in facilitating the recovery of this debt. This time could have been better spent on other elements of my Company’s business. My Company believes the costs associated with such time spent were incurred naturally as a direct result of the Defendant’s breach and as such asks that this element of the claim be awarded as a damage. The costs claimed are a pre-determined and nominal contribution to the actual losses. Alternatively, my Company does have a right to costs pursuant to the sign (i.e. the contract). 

STATEMENT OF TRUTH
 The Claimant believes that the facts stated in this Witness Statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth. I can confirm to the Honourable court, that after having approved the contents of this my statement, I authorised my electronic signature to be applied to the same.

Coupon-mad

But they always say that.  This is a template.  You weren't expecting that?

The NEWBIES thread shows you how to write your own WS.

Nathanb

I supposed initially I was expecting it but when it comes through and they made a point that I wouldnt be able to understand it if it went to court which I was a bit worried about. 
Is there nothing thats concerning to you in what they have sent that would make you think I should settle. Me and my partner arguing a lot over this at the minute she seems to think I am stupid to think Ill win as their solicitors and Im not.

I read up all of this and took me ages and I thought that was it and it was finished. Over 2 years after the initial incident.

Le_Kirk

Just read a few threads written by posters who have received this template drivel and read what the regulars have said about it.  They always claim that a "template" defence "off the internet" cannot be right and then go on to use template rubbish of their own.  You go with your defence and your witness statement and evidence and the judge will decide, so there is no point worrying and no point arguing.  Wait for your day "in court" (or over the phone or video) just know your own case inside out.

D_P_Dance

They always claim that a "template" defence "off the internet" cannot be right and then go on to use template rubbish of their own. 

By the same token they could argue that any information obtained from the internet is without value.  Including instructions on how to complete tax returns. 

Coupon-mad

but when it comes through and they made a point that I wouldn't be able to understand it if it went to court which I was a bit worried about. 

But that's what their template says...discussed all over the place...a really pointless letter and patronising to you as well.