County Court Claim- Gladstone solicitors on behalf of UK Car Management

Chattyish

I have not received a ticket before this so would really appreciate some help. 

I have received a county court claim from Uk Car Management for allegedly parking at Atlip Centre in Alperton.  I did not receive a PCN or A NTK but letters from Debt Recovery Plus since Jan 2020.  I ignored the letters thinking they were fraudulent as no real information was given other then the money they were claiming.  I then got a Gladstone solicitor letter and finally a county court claim for 265.  I have already acknowledged service and have until 19 August 2021 to file my defence.  I have gone through the forums and written out my defence, and would appreciate feedback. I have requested a SAR from UK Car Management.  

Lastly I read going through the threads not to provide evidence before its requested with the witness statement.  Is the defence meant to be different from a witness statement, I am a bit confused.  I thought the defence statement and witness statement are the same things.  Clarity on this would be appreciated.  

Apologies for such a lengthy post.  Thanks in advance 

IN THE COUNTY COURT

Claim No.: XXXXXXXX

Between

UK Car Park Management

- and -  

                         XXXX                    

 (Defendant)

____________________

DEFENCE

____________________

1.    The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that a contract was entered into - by conduct or otherwise. 

The facts as known to the Defendant:

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

3. Until the court papers arrived, I believed that the letters from Debt Recovery Plus were fraudulent. The reason being when I received the letter dated 30/1/2020 it was more than two months after the alleged parking breach took place. There was no pictures or video link provided to prove the incident. It was also not a PCN but a letter from Debt Recovery Plus.  The only reason I even kept the paperwork was in case I later became a victim of fraud by this company who I believe were demanding unfair parking charges. The letter dated 30/1/2-020 gave no information about the actual incident.  It only mentioned the place and that the charge was for ‘vehicle not registered or exceeded allowed time’. 

4. The Claimant states that the ‘driver of the vehicle with registration xxxx (the vehicle) parked in breach of the terms of parking stipulated on the signage (the contract) at the Atlip Centre ANPR’ Due to the time lapse from November 2019 it is impossible for me to know who was driving the car on 20/11/2019 as other family members and my ex-partner had use of my vehicle. I have also not been provided with any evidence to the signage the claimant mentions in the claim form.

5. The Defendant is unable to comment on the incident that allegedly occurred on 20/11/2019 without the Claimant providing the signage that was present at the time of the alleged offence and photographic evidence/video evidence of the parking violation, proving the duration of stay.  16. I would also request the Claimant to provide reasons why I was harassed by Debt Collection letters, without them following due process of the Defendant receiving a Penalty Charge Notice and a Notice to Keeper. 

17. The Defendant denies not paying the PCN within 28 days, as no PCN was received.  The letter received on 30/1/2020 from Debt Recovery Plus only gave me 14 days to make the payment.  Furthermore, the amount claimed from Debt Recovery Plus was for £160 and not £90 for the PCN as stated by the Claimant.

18. The Claimant claims the unpaid PCN from the Defendant as the driver/keeper of the vehicle.  It is denied that the Claimant can transfer liability from the driver to the Defendant, because they have not complied with the requirements set out in the Protection of Freedoms Act 2012 (POFA), which is the only mechanism for such a transfer. 

19. The Particulars of Claim fail to disclose a cause of action. They fail to meet CPR 16.4 and PD16 7.3-7.5. Neither did the Claimant send a Letter Before Action in accordance with the Pre-action Protocol for Debt Claims. Because of this, the Defendant has had to cover all eventualities in defending such a 'copy & paste' claim which has denied him a fair chance to defend this claim in an informed way. The Defendant respectfully invites the court to strike out the claim or order the Claimant to provide further and better particulars and permit the Defendant to amend and/or supplement this defence as may be required. 

20. The Defendant disputes that the Claimant has authority to bring this claim. The Claimant is not the land-owner and is put to proof that it has occupier rights to recover charges on its own behalf in accordance with the IPC Code of Practice Para B 1.1

21. 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.  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.

22. It is denied that the exaggerated sum sought is recoverable.  The Defendant's position is that this moneyclaim is in part/wholly a penalty, applying the authority in ParkingEye cases (ref: paras 98, 100, 193, 198) ParkingEye Ltd v Beavis [2015] UKSC 67 and para 419 of HHJ Hegarty’s High Court decision in ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was set at £75 (discounted to £37.50 for prompt payment) then increasing ultimately to £135.  Much like the situation in this claim, the business model involved sending a series of automated demands to the keeper.  At para 419, HHJ Hegarty found that adding £60 to an already increased parking charge 'would appear to be penal' and unrecoverable.  ParkingEye had dropped this punitive enhancement by the time of Mr Beavis' famous parking event.

23. Even if the Claimant had shown the global sum claimed in the largest font on clear and prominent signs - which is denied - they are attempting double recovery of the cost of their standard automated letter-chain.  It is denied that the Claimants have expended additional costs for the same letters that the Beavis case decision held were a justification for the (already increased from the discount) parking charge sum of £85.  

24. Pursuant to Sch4 of the POFA at 4(5), the sum claimed exceeds the maximum potentially recoverable from a registered keeper, even in cases where a parking firm has complied with its other requirements (denied in this case).  It is worth noting that even though the driver was known in Beavis, the Supreme Court considered the POFA, given that it was the only legislation specifically dealing with parking on private land. 

The ParkingEye Ltd v Beavis [2015] UKSC 67 case is distinguished

25. Unlike in this case, ParkingEye demonstrated a commercial justification for their £85 private PCN, which included all operational costs, and they were able to overcome the real possibility of the charge being dismissed as punitive and unrecoverable.  However, their Lordships were very clear that ‘the penalty rule is plainly engaged’ in such cases.  

26. Without the Beavis case to support the claim and no alternative calculation of loss/damage, this claim must fail.  Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of an overriding legitimate interest in performance extending beyond the prospect of compensation flowing directly from the alleged breach.  

27. The Supreme Court held that the intention cannot be to punish a motorist - nor to present them with concealed pitfalls, traps, hidden terms or unfair/unexpected obligations - and nor can the operator claim an unconscionable sum. In the present case, the Claimant has fallen foul of the tests in Beavis.

28. In the alternative, the Claimant is also put to strict proof, by means of contemporaneous and unredacted evidence, of a chain of authority flowing from the landholder of the relevant land to the Claimant.  It is not accepted that the Claimant has adhered to the landholder's definitions, exemptions, grace period, hours of operation, etc. and any instructions to cancel charges due to complaints.  There is no evidence that the freeholder authorises this Claimant to issue parking charges or what the land enforcement boundary and start/expiry dates are, nor whether this Claimant has standing to enforce such charges by means of civil litigation in their own name rather than a bare license to act as an agent ‘on behalf of’ the landowner.

29. Should this poorly pleaded claim not be summarily struck out for any/all of the reasons stated above, it is the Defendant’s position that no contract was entered into with the Claimant, whether express, implied, or by conduct. Therefore, as a matter of contract as well as consumer law, the Defendant cannot be held liable to the Claimant for any charge or damages arising from any alleged breach of the purported terms. Whilst there is a lack of evidence from the Claimant, the Defendant sets out this defence as clearly as possible with the limited information provided by the Claimant. 

In the matter of costs, the Defendant seeks:

30. (a) standard witness costs for attendance at Court, pursuant to CPR 27.14, and

(b) that any hearing is not vacated but continues as a costs hearing, in the event of a late Notice of Discontinuance.  The Defendant seeks a finding of unreasonable behaviour in the pre-and post-action phases by this Claimant, and will seek further costs pursuant to CPR 46.5.

31. The Defendant invites the court to find that this exaggerated claim is entirely without merit and to dismiss the claim. 

Statement of Truth

I believe that the facts stated in this defence 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.

Defendant’s signature:

Date:

 

KeithP

Hello and welcome.

What is the Issue Date on your County Court Claim Form?

Usually a Defence is written in the third person. I.e. not using the word 'I'.

For example, your paragraph 3 should perhaps start...
3. Until the court papers arrived, the Defendant believed...

Chattyish

Hi Keith 

Many thanks for your quick response. 

That’s great. I will change the sentences to the third person as you’ve suggested. 

The issue date is 19 July 2021. 

KeithP

Chattyish said:

The issue date is 19 July 2021. 

You said you "have until 19 August 2021 to file my defence".

That leads me to ask when you filed an Acknowledgment of Service? 
Your MCOL Claim History will have the definitive answer to that.

I am going to assume you filed an AoS sometime after 23rd July and say...

With a Claim Issue Date of 19th July, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 23rd August 2021 to file your Defence.

That's two weeks away. Plenty of time to produce a Defence and it is good to see that you are not leaving it to the last minute.

To create a Defence, and then file a Defence by email, look at the second post in the NEWBIES thread.

Don't miss the deadline for filing a Defence.

Redx

Just post the Adapted paragraphs from the coupon mad template , usually 2 and 3 , not the rest , we are checking your homework only. 😁😁

Chattyish

Apologies I calculated incorrectly. I filed the AOS on 22 July 2021. I think I didn’t add the 5 additional days. Thank you for clarifying the date. 

I’ve gone through the information on Newbies, it’s been extremely useful. I adapted my defence using the template on the newbies forum along with gathering information from other threads. I’m not sure if I’ve given too much information and that I have used the template/legislations/case law correctly.  I’ll make the amendments you’ve already suggested. 

It would be appreciated if I could be advised on my query regarding the defence statement vs witness statement. 

Many thanks for your assistance. 

Chattyish

Redx thank you. I can’t seem to find the template you are speaking about. 

Redx

Chattyish said:

Redx thank you. I can’t seem to find the template you are speaking about. 

It's in the announcements at the top of this forum , plus it's linked from the newbies FAQ sticky thread near the top of the forum , in announcements

Both threads are posted and amended by coupon mad , you said you had used her template in the post above

KeithP

Chattyish said:

Apologies I calculated incorrectly. I filed the AOS on 22 July 2021. I think I didn’t add the 5 additional days. Thank you for clarifying the date. 

Ahh... if you filed an AoS on 22nd July then you did indeed do the calculation correctly.

By filing an AoS before those five days had passed, you are effectively telling the CCBC that the Date of Service of the Claim occurred on 22nd July. 

As one is allowed twenty eight days from Service to file a Defence, your Defence filing deadline is 4pm on Thursday 19th August - as you originally stated.

By filing an AoS earlier than necessary, you have reduced the time available to file a Defence by a few days, That's all.

D_P_Dance

Have you complained yo your MP?

Le_Kirk

Chattyish said:

Redx thank you. I can’t seem to find the template you are speaking about. 

Well, you used it as the basis for your defence, although you have added some text!  What @Redx is stating is that we only need to see the paragraphs that you have written/adapted (normally 2 & 3) as we accept that the rest is correct as it was written for the forum by the accepted guru (well guru-ess if such a word exists) @Coupon-mad and we don't need to check her work.