County Court Claim Form received

NeverBackDown

Quick update, I submitted the AoS on 18th Sept

Coupon-mad

NeverBackDown said:

Quick update, I submitted the AoS on 18th Sept

OK. Don't miss adding the new transcripts to your defence as seen in threads this week, such as the one by @andyl3004

AND the wording about Gladstones adding 10.25% interest.

Search the forum.

NeverBackDown

Hello all,

Taken me a bit longer to draft a defence than I would have liked, due to other major issues going on that I won't bore you with - bad news comes in three's, as they say. Please could you have a read, any feedback is appreciated:

IN THE COUNTY COURT

Claim No.:  XXXXXX

Between

National Parking Management Ltd

(Claimant) 

- and -  

XXXXXX              

 (Defendant)

_________________

DEFENCE

1.  The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that any conduct by the driver was in breach of any term.  Further, it is denied that this Claimant (understood to have a bare licence as agents) has standing to sue or form contracts in their own name. Liability is denied, whether or not the Claimant is claiming 'keeper liability', which is unclear from the boilerplate text in the Particulars of Claim ('the POC').

The facts known to the Defendant:

2. The facts in this defence come from the Defendant's own knowledge and honest belief.  Conversely, the Claimant sets out a cut-and-paste incoherent and sparse statement of case. The POC appear to be in breach of CPR 16.4, 16PD3 and 16PD7, and fail to "state all facts necessary for the purpose of formulating a complete cause of action". The Defendant is unable, on the basis of the POC, to understand with certainty what case, allegation(s) and what heads of cost are being pursued, making it difficult to respond. However, the vehicle is recognised and it is admitted that the Defendant was the registered keeper. It is denied that the Defendant was the driver.

3. It is admitted that on XXXXXXX the Defendant’s vehicle was parked at the location shown in the photos on the PCN, although the postcode on the PCN and subsequent Claim Form is incorrect. The Defendant was visiting family members who were residing in XXXXX which is the block adjacent to where the Defendant’s vehicle was parked.

4. A valid Visitor’s parking permit was given by the occupier and leaseholder of XXXXX and clearly displayed on the dashboard of the Defendant’s vehicle. There were no available visitor parking spaces in the car park of XXXXX.

5. The Defendant’s vehicle was parked on the main road adjacent to XXXXX. This appeared to be an ordinary public road that would commonly be maintained by the Local Authority. There was inadequate signage indicating that it was a private road. The Defendant’s vehicle was also parked in good faith with reassurance of the occupier and leaseholder of XXXXX that the Defendant’s vehicle could be parked there.

6. It is denied that the Defendant or lawful users of his/her vehicle were in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the Defendant permitting the above mentioned vehicle to be parked by the occupier and leaseholder of XXXXX.

7. The Defendant avers that the operator’s signs cannot override the existing rights enjoyed by residents and their visitors.

8. There are issues with the signage the Claimant uses which are:

(i) The amount of the PCN (£100) is in small font, and not prominent (Lord Denning's "Red Hand" rule).

(ii) The sign is forbidding and you cannot contract to do that which is forbidden. If you're not permitted to park there without a valid permit, then you cannot contract to park there for an arbitrary sum.

(iii) The sign is placed in a misleading location that can be construed to indicate the XXXXX car park, and makes no indication that it is for the road where the Defendant’s vehicle was parked.

(iv) The Claimant has since replaced the signage, and the Defendant will rely on both to show that the Claimant recognises that the signage was wholly inadequate at the point of issue.

9. Accordingly it is denied that:

(i) There was any agreement between the Defendant or driver of the vehicle and the Claimant.

(ii) The Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

10. The Claimant, or their legal representatives, has added an additional sum of £70 to the original £100 parking charge, for which no explanation or justification has been provided. Schedule 4 of the Protection Of Freedoms Act, at 4(5), states that the maximum sum which can be recovered is that specified in the Notice to Keeper, which is £100 in this instance. It is submitted that this is an attempt at double recovery by the Claimant, which the Court should not uphold, even in the event that Judgment for Claimant is awarded.

11. Whatever the allegation turns out to be, it must be common ground that the terms have been complied with or substantially complied with, and the Claimant will concede that no financial loss has arisen.  The charge imposed, in all the 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:

(i).  Interest appears to be miscalculated on the whole enhanced sum from day one as if £160 or £170 was 'overdue' on the day of parking;

(ii). 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, linked elsewhere in this statement.  Gladstones 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.  Given that the MoJ's quarterly statistics show that 90% of small claims go to default CCJs, this is clearly an abuse, and it appears to be for the profit of Gladstones and nothing to do with the Claimant's alleged £100 PCN.  I hope the Judge addresses this in the final judgment, at the very least to warn or sanction Gladstones as the court sees fit.

NeverBackDown

Coupon-mad said:

NeverBackDown said:

Quick update, I submitted the AoS on 18th Sept

OK. Don't miss adding the new transcripts to your defence as seen in threads this week, such as the one by @andyl3004

AND the wording about Gladstones adding 10.25% interest.

Search the forum.

The PCN I received and subsequent letters stated - No Parking in No Parking Area

Does that mean I will not be able to use the persuasive appeal judgement Civil Enforcement Limited v Chan in my defence?

Coupon-mad

No you must. We are not talking about the PCN or letters.  We are talking about the POC - an acronym explained in the NEWBIES thread and even in the first paragraph of your defence above!

How come you denied driving?

A defence must be the truth. All of this suggests it was you which has made me ask (and would make a Judge doubt your denial):

The Defendant was visiting family members who were residing in XXXXX which is the block adjacent to where the Defendant’s vehicle was parked.

B789

NeverBackDown said:

Coupon-mad said:

NeverBackDown said:

Quick update, I submitted the AoS on 18th Sept

OK. Don't miss adding the new transcripts to your defence as seen in threads this week, such as the one by @andyl3004

AND the wording about Gladstones adding 10.25% interest.

Search the forum.

The PCN I received and subsequent letters stated - No Parking in No Parking Area

Does that mean I will not be able to use the persuasive appeal judgement Civil Enforcement Limited v Chan in my defence?

The persuasive appeal judgment by HHJ Murch only applies to the PoC in the claim form. It has nothing to do with what was alleged in the PCN/NtK.

NeverBackDown

B789 said:

NeverBackDown said:

Coupon-mad said:

NeverBackDown said:

Quick update, I submitted the AoS on 18th Sept

OK. Don't miss adding the new transcripts to your defence as seen in threads this week, such as the one by @andyl3004

AND the wording about Gladstones adding 10.25% interest.

Search the forum.

The PCN I received and subsequent letters stated - No Parking in No Parking Area

Does that mean I will not be able to use the persuasive appeal judgement Civil Enforcement Limited v Chan in my defence?

The persuasive appeal judgment by HHJ Murch only applies to the PoC in the claim form. It has nothing to do with what was alleged in the PCN/NtK.

Ah ok, I understand now. Yes the PoC does not contain that information - I will add it to my defence

NeverBackDown

Coupon-mad said:

No you must. We are not talking about the PCN or letters.  We are talking about the POC - an acronym explained in the NEWBIES thread and even in the first paragraph of your defence above!

How come you denied driving?

A defence must be the truth. All of this suggests it was you which has made me ask (and would make a Judge doubt your denial):

The Defendant was visiting family members who were residing in XXXXX which is the block adjacent to where the Defendant’s vehicle was parked.

So I am the driver. The defendant named on the Claim Form is my partner and was with me when I parked. All of the advice at the time (2019) was to not inform NPM Ltd who was driving because doing so would legitimise their claim - at least that was my understanding. So we never told them who was driving. In the AoS (filed by the Defendant) the Defendant has named me as the Driver - in the box specifically for that reason.

Does that now make me the Defendant? I am confused as to who's point of view this Defence is being written from. If this goes to Court I want to be the one to give evidence, as I was the driver - I don't want that stress on my partner. This is currently being written from my partner's PoV.

B789

NeverBackDown said:

In the AoS (filed by the Defendant) the Defendant has named me as the Driver - in the box specifically for that reason.

Does that now make me the Defendant? I am confused as to who's point of view this Defence is being written from. If this goes to Court I want to be the one to give evidence, as I was the driver - I don't want that stress on my partner. This is currently being written from my partner's PoV.

What exactly do you mean by the bit I highlighted above? Did you partner actually put anything in the Defence box? If so, they have FUBARed the defence.

Whoever's name is on the clam form is the Defendant. Irrespective of who was driving or not, the Defendant is the person defending the claim. Just because you were the driver, matters not. our partner is defending the claim.

You can do most of the legwork but it is your partner who is signing the statement of truth and should it ever get to an actual hearing, it is your partner who will have to appear.

Coupon-mad

So we never told them who was driving. In the AoS (filed by the Defendant) the Defendant has named me as the Driver - in the box specifically for that reason.

No, the Defendant can't do that.

That box about 'name if different' is obviously only for a case where THEIR name has changed (e.g. if they got married and have a new surname that should be used).

That box isn't what you think it is...

Doesn't the heading on the Template Defence (that you've read, copied and are using) give you a clue? It says very clearly:

 "DEFENDANT (can't be changed to the driver now!")

Does that now make me the Defendant? 

No. Your partner is the Defendant.

And it's not properly written by the keeper defendant in your draft, because it says:

 "The Defendant was visiting family members who were residing in XXXXX which is the block adjacent to where the Defendant’s vehicle was parked."

The Defence must be written from the keeper's POV and they obviously CAN deny driving and say 'the driver was my partner'.  If they were a passenger they can say that too.  Then they talk about what the DRIVER did.

AND your partner needs the silver bullet orders and judgments seen in the other defences this month.

The whole point is to get the best chance of your local Judge striking the claim out without a hearing!  It would be madness to omit that section, so glad to see your partner is now adding it.

claim struck out = stress free result!