Uploading a file

KeithP

Having filed an Acknowledgment of Service before the optimum date your deadline for filing a Defence is earlier than I said above. I have adjusted my earlier post.

As you are saying you have used the template Defence, just copy and paste paras 2 and 3 into the thread.

Not_A_Hope

Hi guys. Tried to cut and paste but got two messages that 'the body is 2486 characters too long' and 'You have to be around for a little while longer before you can post links'. Tried getting round the first obstacle by splitting into two but cannot get rid of the second despite going through the document and trying to delete anything it might think is a link. No joy. Your advice please. Thanks

Fruitcake

As already mentioned, you only need to post the parts of the template that you have changed. This would normally be paragraphs 2 and 3, which should not be overly long.
Plain text is all that is needed, either typed out into a post or copied from a word document or wordpad/notepad, and pasted here.

This assumes you have used the template defence from the sticky threads at the top of this forum that includes just about every point necessary including the kitchen sink and a couple of en-suites as well.

If you have written a defence from scratch then it will take the regulars an awful lot of work to check it, which is unnecessary when using the template instead.

Not_A_Hope

Hi - first section posted in plain text. Apologies for the length but I tried to write a statement that detailed all the events and was simple enough that I or a Judge could follow and dismiss.
Part A - The facts in this case as known by the Defendant:

2.       It is admitted that the Defendant was the registered keeper of the vehicle in question but liability is denied. 

3.      The Defendant entered XXXXXXX car park in XXXXXX, parked and promptly attended a ticketing machine, with his passenger who was a witness to the event. Not having used the car park before, the prominent signs at the entrance suggested it was a normal pay and display. He did not see any signs suggesting ANPR cameras were in use, any details of Terms or Conditions nor a requirement to input his car registration number. The only payment machine was located in the narrow turning area of the entrance which meant its use actually requires users to stand in the single track access road, blocking traffic entering and leaving and affecting buses entering the adjacent busy bus station. Because of its potential hazardous location he quickly checked the rates and paid £1 for a ticket lasting for an hour. The pay machine did not prompt him to enter anything and he did not use the keyboard. He took the ticket that was issued and put this clearly on the dashboard of his car returning 30 minutes later to leave the car the car park. 

4. Several days later in response to the PCN that was subsequently posted to his home address, the Defendant completed an online form believing that car park companies had a duty to act fairly and that they had not suffered any loss. In this he admitted that he was the driver but provided evidence that he had purchased a ticket by attaching a copy. The dates and time of the ticket matched that of the incident date / time on the Parking Charge Notice. The Claimant rejected his appeal.

The appeal rejection from HX Car Parking states ''As per all the signs on the car park it is the responsibility of the driver to ensure that the pay and display ticket has been validated by entering the full registration number. All the signs in and around the site inform the driver of the terms and conditions of using this car park''.

5. The Defendant considered appealing to IAS but missed the stated deadline for free appeal as their rejection letter was only found a few weeks later amongst spam in his email inbox. The Defendant would be charged a non-refundable fee of £15 to appeal and he could find no evidence of the independent nature of this body or their processes. In fact online research suggested the IAS and Gladstones solicitors were all set up by the same people and have the same directors which strongly suggested a conflict of interest. As their process flowchart stated any decision was binding he decided not to progress an IAS appeal but rely on the fairness of the judicial system if necessary.

6. The Defendant will demonstrate through photographs and witness statements that the Claimants rejection statement that all signs in and around the site inform the driver of the terms and conditions is patently false as several older and very obvious signs remain in place and these have no such information. 

The fact that the signs have since been changed suggests the original signs were inadequate. To read the signs on the adjacent electrical panel would require a customer to crouch or kneel to read them. Other signs are at high level or obscured by vegetation. The signs were poorly located, unclear, have vague/hidden terms and a mix of small font, such that they would be considered incapable of binding any person reading them under common contract law, and would also be considered void pursuant to Schedule 2 of the CRA. Consequently, it is the Defendant’s position that no contract to pay an onerous penalty was agreed by the driver. 

7. The Defendant maintains that any failure to meet the Claimants required terms or conditions were not the fault of the driver but a result of their shortcomings in providing signage with prominent contract information, inadequate payment processes and equipment which were all outside his control. Even had the Defendant noticed the Terms or Conditions requirement to input a registration number the British Parking Association of which the claimant is a member states in section 17 of its Code of Practice ''.. car park operators,......have a responsibility in ensuring that obvious and inadvertent errors do not lead to unjustified charges''. Furthermore it suggests ''even a major keying error should be dealt with appropriately at the first stage appeal especially if it can be proven that the motorist has paid for the parking event''.

8. Over subsequent months the Defendant received several further demands for payment culminating in a Letter Before Claim dated 23/11/21. Unfortunately the Defendant was not home and did not see this letter until he returned home from University accommodation at Xmas. This was similar to previous demand letters and failed to provide evidence of any breach. Had the Defendant the opportunity within the timescales available he would have complied with Practice Direction for Pre-Action Conduct by acknowledging their letter and requesting the following missing information not provided by Gladstone Solicitors in contravention of the Practice Direction :-

• the claimant’s full name and address;

• the basis on which the claim is made (i.e. no details are provided on why the claimant says the defendant is liable);

• a clear summary of the facts on which the claim is based including provision of the alleged Terms or 

Conditions in place;

• details of the original signage, when and why it was replaced;

• a full explanation of how the amount has been calculated;

• details of any funding arrangement (within the meaning of rule 43.2(1)(k) of the CPR) that has been entered into by the claimant. ??? rule has been omitted on Justice.gov.uk????

• provide a list of the essential documents on which the claimant intends to rely; and most importantly

• set out an independent 3rd party form of Alternative Dispute Resolution instead of the stated requirement to dispute the debt via their own website www.gladstonessolicitors. co.uk.

By referring the Defendant to the Practice Direction for Pre-Action Conduct and wholly failing to provide any of the required information themselves in their Letter Before Claim the Claimants' conduct appears to be a tactical device to secure an unfair advantage over the Defendant in contravention of paragraph 4 of the Practice Direction and also avoid any fair alternative dispute resolution.

9. On the County Court Business Centre Claim Form the Particulars of Claim are generic and only refer to an undisclosed 'breach of the terms of parking'. The defendant therefore does not know what action he is defending nor the terms and conditions allegedly in place at that time. The defendant does not know whether the Claimant alleges that no payment was made or that one was made but not in accordance with terms and conditions. If the alleged breach is in relation to not entering the vehicle registration properly it is an unfair term under the Consumer Protection from Unfair Trading Regulations 2008 because the apparently innocuous requirement to type the registration number ''fails to identify its commercial intent''. It is also a breach of the Consumer Right s2015 Schedule 2 Para 3 and 6.

The Defendant requests the court strike out the claim for failure to disclose a course of action and failure to comply with Practice Direction 16 para 7.3 (1) whereby a copy of the 'alleged' contract should be attached or served with particulars of a claim.

Part B - Abuse of Process through Exaggerated Claims

 

10. In relation to parking on private land, it is settled law that for any penalty to escape being struck out under the penalty rule, it must be set at a level which already includes recovery of the costs of operating the scheme. However, this Claimant routinely claims (as in this case) a global sum of £160 per alleged PCN which includes '£60 contractual costs pursuant to the Contract'. This figure is a penalty, far exceeding the charge in the ParkingEye Ltd v Beavis [2015] UKSC 67 case and falling foul of the binding authority in ParkingEye Ltd v Somerfield Stores [2012] EWCA Civ 1338. In the 2012 case, the Court of Appeal held that £135 would be an unrecoverable penalty but a claim for the PCN itself would not [ref: para 419]. Thereafter, ParkingEye quietly dropped their ‘PCN plus indemnity costs’ double recovery business model and pursued £85 in the Beavis case, where it was determined by the Supreme Court that a significant justification for that private PCN was that it already included all operational costs [ref: paragraphs 98, 193 and 198]. 

11. It is an abuse of process for a Claimant to issue an inflated claim for a sum which it is not entitled to recover. The above authorities could not be clearer. Parking firms must choose between a ‘Beavis-level’ charge calculation or loss-based damages. A parking firm cannot seek to plead their claim in both but this Claimant routinely does - and has done in this case. 

12. An exaggerated claim such as this will always constitute an abuse of process that can be determined by a glance at the Particulars (before any facts and evidence are even scrutinised) and by applying the court’s duty under s71 of the Consumer Rights Act 2015 (‘the CRA’) at the earliest opportunity. For the avoidance of doubt and to demonstrate that this claim is unfair from the outset, the official CMA Guidance on the CRA clarifies under ‘Disproportionate financial sanctions’ that ‘‘Other kinds of penal provisions which may be unfair are clauses saying that the business can: 

 claim all its costs and expenses, not just its net costs resulting directly from the breach; "

????Deleted references to Indemnities against risk as I could not find such in their letters, LBC or Particulars though it might be in the small print of their old or current signs???

13. The Claimant’s claim is entirely tainted by their ‘forum-shopping’ business model which relies on routine abuse of process and disregard for the protections in the CRA. The Defendant avers that parking firm claims which add a duplicitous ‘costs’ sum to the private PCN are easily identified to be unlawful from the outset, without any need for a hearing to determine where the truth lies in terms of evidence. The Court is, therefore, invited to strike out the claim ab initio as an abuse of process, using its case management powers pursuant to CPR 3.4 and also give serious consideration to Practice Direction 3C, as to whether the level of similar abusive (and thus, wholly without merit) claims cluttering up the courts may provide grounds for issuing an Extended Civil Restraint Order to protect consumers in future from this Claimant and to save the courts time and money. 

14. This matter was recently determined by District Judge Grand, sitting at Southampton County Court on 11 November 2019, where the Claimants and their solicitors Gladstones sought to have multiple strike out Orders set aside. The application was dismissed. No appeal was made in that case, where the learned Judge found that £160 parking claims represented an abuse of process that ‘tainted’ each case. It was not in the public interest for courts to allow exaggerated claims to proceed and merely disallow the added £60 at trial on a case-by-case basis. To continue to do so would restrict the proper protections only to those relatively few consumers robust enough to reach hearing stage. 

15. In this situation, it ought not to be left to hardy individuals to raise this issue time and again at trial, yet other disputing consumers are being so intimidated by the threats in a barrage of debt demands and the possibility of facing court, that they pay a legally unrecoverable sum to make it go away. Such conduct has no proper function in the recovery of alleged consumer debt. To use the words of HHJ Chambers QC [ref: Harrison v Link Financial Ltd [2011] EWHC B3 (Mercantile) - 

‘‘Whatever the strength of the suggestion that the courts should only be a last resort, there can be no excuse for conduct of which the sole purpose must have been to make [...] life so difficult that they would come to heel. In a society that is otherwise so sensitive of a consumer's position, this is surely conduct that should not be countenanced’’ 

16. Should this claim continue, the Claimant will no doubt try to mislead the court by pointing to their Trade Association ‘ATA’ Code of Practice (‘CoP’) that now includes a clause 'allowing' added costs/damages. The CoP is a self-serving document, written in the parking firms’ interests. Further, the ‘admin fee’ model was reportedly the proud invention of a member of the BPA Board, Gary Osner, owner of ZZPS and whose previous firm, Roxburghe (UK) Limited, folded after being declared ‘unfit’ by the Office of Fair Trading who refused to renew their consumer credit licence due to ‘unfair and misleading’ business practices. 

Not_A_Hope

And the second section. Deleted a potential link quoting Mr Osners statement. Thanks for your patience

17. The BPA’s Mr Osner states in an article in the public domain since 2018 ''I created the model of ‘admin fees’ for debt recovery because ticket value was so low that nobody would make any money. Parking is business and business is about money, after all.'' The Defendant avers that it is clear that the competing ‘race to the bottom’ ATAs are sanctioning double recovery and both the BPA and the IPC/Gladstones (who had shared Directors) have engineered a veil of legitimacy to protect this industry for years. The ATAs operate more like a cartel, not ‘regulators’ and the conflicting CoPs have failed consumers so badly that the Secretary of State is overseeing a new regulatory Code, following the enactment of the Parking (Code of Practice) Act 2019. 

In contrast to the BPA Board member’s mindset, the will of Parliament as set out in the new 2019 Act is very much consumer-focussed, aiming for: ''good practice...in the operation or management of private parking facilities as appears to the Secretary of State to be desirable having regard to the interests of persons using such facilities.'' 

Paras 18-29 are Model template 4-16. Possible change to template para 4 below

18. In this specific case The Particulars of Claim set out an incoherent statement of case and the quantum has been enhanced in excess of any sum hidden in small print on the signage that the Claimant may be relying upon.  ???? Claiming ‘costs/damages’ on an indemnity basis is stated to be unfair in the Unfair Contract Terms Guidance, CMA37, para 5.14.3.  That is the official Government guidance on the Consumer Rights Act 2015 ('CRA 2015') legislation which must be considered, given the duty in s71. Damages not referenced on POC ????  The Defendant avers that the CRA 2015 has been breached due to unfair terms and/or unclear notices (signs), pursuant to s62 and with regard to the requirements for transparency and good faith, and paying regard to examples 6, 10, 14 and 18 in Sch2.  NB: this is different from the UTCCRs considered by the Supreme Court, in that there is now a requirement for contract terms and notices to be fair.

Summary 

30. The Defendant has established:

 the claimant has once again abused the process by presenting an exaggerated claim;

 the claimant has ignored their own industry Code of Practice in terms of signage and how claims should be fairly managed;

 the claimant has disregarded the protections in the Consumer Rights Act and not complied with the Practice Direction and Codes of Practice in terms of information or offering a fair Alternative Dispute Resolution process. no contract could be deemed to be in place based on the signage present;

 no contract could be deemed to be in place based on the signage present;

31. The Defendant asserts that parking firm claims which add a duplicitous ‘costs’ sum to the private PCN are easily identified to be unlawful from the outset, without any need for a hearing to determine where the truth lies in terms of evidence.

32. The Court is, therefore, invited to strike out this exaggerated claim ab initio as an abuse of process, using its case management powers pursuant to CPR 3.4. Otherwise the defendant requests that it orders the Claimant to file Particulars that comply with the practice direction as indicated in paragraph 8. Once filed the Defendant asks for reasonable time to add or amend the defence accordingly.

Remaining paras are MSE template paras 16-18, Statement of Truth etc

Coupon-mad

Coupon-mad said:

Yes, just copy and paste the bits you added, into a reply.  Not the whole defence please, not the template stuff that's unchanged.

As above, please remove the template words and let us see ONLY what you wrote yourself. 

We really don't want the whole defence...please spare us having to look for the needle in a haystack, where we know what a haystack looks like!

nosferatu1001

You do not write war and peace! The template is VERY clear that it is a brief summary of background facts
Trim. Trim. Trim some. More. 

Fruitcake

That is not the template defence from the sticky threads.

I don't know how you get from para 18 to para 30 with nothing in between.
The scammers are IPC members but at one point you say they are members of the BPA.

A lot of it reads like a WS not a concise defence.

I suggest you delete all of that and start again exactly as you have been advised to do several times.
Use the template defence from the stickies. Amend paragraphs 2 and 3 to suit your case.
Post paragraphs 2 and 3 here for us to see.

. 

Not_A_Hope

I am feeling like a scolded child.

I have tried to follow the Newbies thread and saw:-

EXPLAIN WHAT YOU KNOW IN YOUR OWN WORDS 

The facts of your case must be added as #2 and #3 - add more if you need more, and adjust the numbers below it.

It also stated somewhere that anything you wish to rely on needed to be in the Defence Statement because otherwise it cannot be added to a trial stage.

Following the Newbies thread further I found in relation to a post from robertcox999 who had posted a defence and witness statement for others which was described as 'gold dust' :

bargepole said:

I see many Defences and Witness Statements on here, where people have blindly cut and paste paragraphs which have no relevance to their case, and which they would struggle to explain to a Judge.

Yours is the complete opposite; it tells the narrative of events clearly, so that a Judge reading it on the day of the hearing can readily see exactly what happened, and cites relevant legal points in the correct manner. The evidence exhibits fully support your arguments, and it would take a very biased Judge not to find in your favour.

If this was the GBBO, you would get Star Baker for this.

Were these documents mis-labelled and led to my confusion? So I remain unclear where the narrative of the defence statement should end in order to get the judge to strike out before hearing and what to include so it can be referenced at the hearing to constitute what you might call a 'brief summary of background facts'. 
Thanks for your patience but navigating the forum discussions and advice is a challenge 

nosferatu1001

You're not going to get a strike out. Stop thinking that's likely. Its remote as a chance

you are writing a defence. Needs to be concise. Writing too much is counter productive.