6 PCN's and a historic CCJ

Coupon-mad

Yes good idea. Send a SAR asking specifically

63realfan

Hi Coupon, 

Apologies for radio silence last week or so, been away so not been in the UK. So when I originally checked the SAR I received from Gladstones on my phone, I couldn't see the extra information they added in at the bottom but when I rechecked with my desktop it was slightly more clear. They did provide evidence of their ''traces'' but it was not on the history of communication between them and the defendant which I found odd so I guess they did provide the trace evidence but is what it is. 

Moving on I've made a defence which I'm still going through. I will have to bore you with all the extra template bullet points because I want to make sure they are appropriate for the situation he is in. I've taken points from forums as far back as 2017 so want to make sure all aline before submitting the defence.

Can you confirm that I don't have to make anymore WS or draft orders with the defence? I did have a good defence at work but I'm not due to go back till next week so had to redo a defence yesterday and today. 

Also, he's not heard anything from the courts or solicitors? No paperwork or anything which I found bizarre! 

63realfan

So for some reason, maybe internet issues but my previous comment I've made to do with the defence has not posted and I wrote a massive paragraph with it so I'll summarise the best I can with what I said. 

I hate to do it but I've going to send the full defence. If there's anything that needs changing, I won't keep posting it but will just edit where necessary. I know you hate the full defence templates but I've taken lots of information from different forum posts, both old and new ones. I am not 100% sure about paragraph 7 and 15 and if these are required or relevant. Also need to know if I need a WS or draft order again. I also have no claim numbers as not received anything from court or solicitors about anything which is odd. I thought the deadline was for Monday but it's actually for tomorrow. I worked it out that 2 weeks with weekend's don't count and its only working days but had another thought 2 weeks is obviously two weeks and don't want to take the risk. Again, sorry to post this but want to be sure before I send it off to the courts. Sorry for dodgy bullet points, not sure why its done that. I've had to post it in half as it's so long

• In The County Court
  
  
  Claim No: XXXXXXX
  
  
  Between
  
  
  (Claimant)
  
  -and-
  
  XXXXXXX (Defendant)
  
  ____________
  DEFENCE
  ____________
  
  1. The Defendant was the registered keeper and driver of vehicle registration number XXXXXXX on the material date. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
• 2. It is admitted that the Defendant was the registered keeper of the vehicle in question but liability is denied.
• 2.1 The facts of the matter are that the Defendant was did not display a “UKCPM permit”. The ‘land’ which forms the basis of the current claim consists of a relatively large area of poorly marked spaces. These spaces have no ‘Permit only’ markings and no numbers in order to link them with the properties in the area including any visible signs when entering this large area of land. Given this lack of clarity and the fact there was no sufficient lighting to see the few signs early hours of the morning when the Defendant arrived and parked, no contract can be construed from the Claimant's signage, under the contra proferentem principle.
  
  3. The sign does not conform to the IPC's Code of Practice:
  3.1.1 (Schedule 1 – Signage, 4), which states the signs should be “clearly legible and placed in such a position (or positions) such that a driver of a vehicle is able to see them clearly upon entering the site”; There is no sign upon entering the entrance of the site. 
  3.1.2 (Schedule 1 – Signage, 5), which states the signage ought to “have clear and intelligible wording and be designed such that it is clear to the reasonable driver that he is entering into a contract with the creditor or committing a trespass as the case may be”; Pace V Lengyel (from May 2017) showed that the Claimant's signs (including the one shown by the Claimant in this case) fail to enter into contract with the driver as implied by the Claimant. Nowhere on the sign does it inform the reader that by parking in in that area, he/she is entering into a contract with the Claimant. The words “contract’ or “agreement’ do not appear at all within the sign. The phrase “Terms and Conditions” are not synonymous with a contract. Furthermore, the opening words of the sign appear to be designed more to ward off trespassers than to enter into a contract with the driver. No promise was made by the driver that could constitute consideration because there was no offer known nor accepted. No consideration flowed from the Claimant.
  
  4. The Defendant was told to park at that area by his place of work of which is on the other side of the road in front of the shops where the land in question is, therefore was not unauthorised. The defendant, in this case, had no reason to conclude or agree that a parking charge applied to such a visitor.
• 5. Accordingly, it is denied that the Defendant breached any of the Claimant's purported contractual terms, whether express, implied, or by conduct.
  
  6. 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.

6. There are only a few small A2/A3 sized signs with extremely small font writing, one of which is stapled to a fence which had no lighting or bay marking in front of the sign or in that area as a whole. The signage on the fence stated in small font “all vehicles must hold a valid UK CPM e-permit or clearly display a valid UK CPM permit in the windscreen at all times” which would suggest the signs are prohibited and is only making an offer to permit holders. It is submitted that if this notice is attempting to make a contractual offer, then as it is forbidding, they do not fulfil the basic requirement of a contract, which is that each party to the contract must offer valuable consideration to the other party, on clear terms capable of acceptance. The notices cannot, therefore, reasonably be construed as having created a contractual relationship between the Claimant and the Defendant. The only claim would be for trespass which only the landholder can claim, and only for a nominal sum. 

6.1. The above point was tested in the County Court at High Wycombe, in the case of Parking Control Management (UK) Ltd v Bull & 2 Others (B4GF26K6, 21 April 2016), where District Judge Glen dismissed all three claims, stating in his judgment that: "If the notice had said no more than if you park on this roadway you agree to pay a charge then it would have been implicit that PCM was saying we will allow you to park on this roadway if you pay £100 and I would agree with Mr Samuels' first analysis that essentially the £100 was a part of the core consideration for the licence and was not a penalty for breach. The difficulty is that this notice does not say that at all. This notice is an absolute prohibition against parking at any time, for any period, on the roadway. It is impossible to construct out of this in any way, either actually or contingently or conditionally, any permission for anyone to park on the roadway. All this is essentially saying is you must not trespass on the roadway. If you do we are giving ourselves, and we are dressing it up in the form of a contract, the right to charge you a sum of money which really would be damages for trespass, assuming of course that the claimant had any interest in the land in order to proceed in trespass”.

6.2. Furthermore, as mentioned in paragraph 6, the claimant denies that the sign makes it clear that the driver of the vehicle is entering into a contract. The signs used were not dissimilar to those in the case Pace v Lengyel. Where District Judge Iyer dismissed the claim noting that:

6.3. “Nowhere on this sign does it inform the reader that by parking in this car park, he is entering into a contract with the Claimant. Indeed, the words “contract” or “agreement” do not appear at all within the sign it merely refers to the driver “accepting liability for a charge”. The phrase “Terms and conditions” are not synonymous with a contract. Further, the opening words of the sign appear to be designed more to ward off trespassers than to enter into a contract with the driver.” There were inadequate signs (at the time of the offence) incapable of binding the driver into the contract - this distinguishes this case from the Beavis case.

6.4. There are no damages and these cannot be added, or this would constitute double recovery and in any case, damages are only possible for a landowner to claim, under the tort of trespass (PACE v Lengyel confirms).

• 
  6.5. It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one
• 7. The charge imposed, in all circumstances is a penalty (not saved by the ParkingEye V Beavis case, which is fully distinguished). In addition to the fact that the sum claimed under purported ‘contract’ is disproportionately exaggerated, additionally the interest is inflated in two ways:
• 7.1. Interest appears to be miscalculated on the whole enhanced sum from day one as if £160 or £170 was ‘overdue’ on the day of the parking; 
• 7.2. Gladstones have applied the wrong interest rate of 10.25% which they appear to have made up. The highest rate allowed in civil claims (only at the discretion of courts) is 8%. I have discovered from research that this legal representative roboclaim firm (connected to the IPC trade body) always adds 10.25% interest and are highly likely to be one of the top five ‘bulk parking case litigators’ shown in the Government’s analysis. Gladstone’s indisputably issue tens of thousands of inflated parking claims every year, all of which have the wrong interest rate (a deplorable 10.25%) and the unconscionably enhanced £60 or £70 (per PCN) which can add hundreds to some claims. NOT SURE IF THIS IS VALID OR NOT
  
  8. The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 as a binding precedent on the lower court. However, that only assists the Claimant if the facts of the case are the same, or broadly the same. In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas it is the Defendant's position that no such breach occurred in this case because there was no valid contract
  
  9. No standing - this distinguishes this case from the Beavis case: It is unclear whether the claimant holds a legitimate contract at this private road. As an agent, the Claimant has no legal right to bring such a claim in their name which should be in the name of the landowner.
  
  10. The Beavis case confirmed the fact that, if it is a matter of trespass (not a breach of any contract), a parking firm has no standing as a non-landowner to pursue even nominal damages.
  The charge is an unenforceable penalty based upon a lack of commercial justification. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim.
  
  11. The Defendant has the reasonable belief that the costs on the claim are disproportionate and disingenuous. First of all, the Protection of Freedoms Act 2012, in Schedule 4, Para 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.
  
  12. 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.
  
  
  

63realfan

13. 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.

14. 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.

15. Unlike this mendacious and greedy Claimant, Parking Eye themselves took on board the Beavis case outcome and they never add fake costs on top of the parking charge. It is indisputable that an alleged 'parking charge' penalty is a sum which the Supreme Court found is already inflated to more than comfortably cover all costs. The case provides a finding of fact by way of precedent, that the £85 (or up to a Trade Body ceiling of £100 depending upon the parking firm) covers the costs of the letters, and all parking firms are very familiar with this case:

http://www.bailii.org/uk/cases/UKSC/2015/67.html
“
15.1 at para 98. {re ...The desirability of running that parking scheme at no cost, or ideally some profit, to themselves} ''Against this background, it can be seen that the £85 charge had two main objects. One was to manage the efficient use of parking space in the interests of the retail outlets, and of the users of those outlets who wish to find spaces in which to park their cars [...] The other purpose was to provide an income stream to enable Parking Eye to meet the costs of operating the scheme and make a profit from its services...''

15.2vat para 193. ''Judging by Parking Eye’s accounts, and unless the Chelmsford car park was out of the ordinary, the scheme also covered Parking Eye’s costs of operation and gave their shareholders a healthy annual profit.''

15.3 at para 198. ''The charge has to be and is set at a level which enables the managers to recover the costs of operating the scheme. It is here also set at a level enabling Parking Eye to make a profit.''
”
16. 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.

17. 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.

18. 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.

19. 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 earlier General Judgment or Orders of DJ Grand, who (when sitting at the Newport (IOW) County Court in 2018 and 2019) has struck out several parking firm claims. These include a BPA member serial Claimant (Britannia, using BW Legal's robo-claim model) and an IPC member serial Claimant (UKCPM, using Gladstones' robo-claim model) yet the Orders have been identical in striking out both claims without a hearing, with the Judge stating: ''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 Parking Eye 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...''

20. That is not an isolated judgment striking a parking claim out for repeatedly adding sums they are not entitled to recover. In the Caernarfon Court in Case number FTQZ4W28 (Vehicle Control Services Ltd v Davies) on 4th September 2019, District Judge Jones-Evans stated:

20.1 ''Upon it being recorded that District Judge Jones-Evans has over a very significant period of time warned advocates [...] in many cases of this nature before this court that their claim for £60 is unenforceable in law and is an abuse of process and is nothing more than a poor attempt to go behind the decision of the Supreme Court v Beavis which inter alia decided that a figure of £160 as a global sum claimed in this case would be a penalty and not a genuine pre-estimate of loss and therefore unenforceable in law and if the practice continued he would treat all cases as a claim for £160 and therefore a penalty and unenforceable in law it is hereby declared [...] the claim is struck out and declared to be wholly without merit and an abuse of process.''

21. 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 untrue in terms of the added costs alleged and the statements made, in trying to justify the unjustifiable.

22. 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.

23. 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.


Statement of Truth:

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


Name

Signature


Date

KeithP

Just a basic point...
Why is your Statement of Truth so brief?

Coupon-mad

This isn't the right SoT as it changed a few years ago (see the Template Defence):


"Statement of Truth:

I believe that the facts stated in this Defence are true."

63realfan

Apologies - I didn’t realise it had changed in 2019, guess it was added in on a post from 2018 so apologies. 

“ 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.”

Apart from the SoT is everything else ok? 

Le_Kirk

In paragraph #1 you state keeper and driver but in paragraph #2 you state keeper.  Which is correct?  Is that defence based on the template?

63realfan

Le_Kirk said:

In paragraph #1 you state keeper and driver but in paragraph #2 you state keeper.  Which is correct?  Is that defence based on the template?

He’s both. I’ll amend it. I can’t remember what template I pulled it from 

1505grandad

"6.5. It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice,..."

Who is the claimant?

"17. According to Ladak v DRC Locums UKEAT/0488/13/LA ..."  -  I believe that this has not been used for ages  -  just wondering why you have not used the template?