Court Claim Received from HX & Gladstones

Car1980

Worzel_ said:

I have my amended defence document here: https://docs.google.com/document/d/16DPNuW1olQsUSQP0Hp7nyJfWJDRhrZtRKceNUsoh50Q/edit?usp=sharing

Could anyone guide me what else I need to add to it.

You can see the old defence in Strikethrough and new defence in blue.

Question: did the new particulars remove the basis for point 5.4 in the old defence about them calculating interest?

Question: if the signs at the car park do mention a £100 charge does it undermine this defence, or is it still valid since it attacks the signage relied upon in their particulars (that do not show a £100 charge).

You defend against what they are claiming. They have set out their contract. They can't ambush you at a later date, and if they did you'd say it's inadmissable because they've already submitted the contract to the Court.

1505grandad

Just a thought:-

"Para 7......"The Defendant further denies that they entered into any contract with the Claimant or that they were made aware of any terms that could form a binding agreement."

As you are defending as keeper only (was not the driver) should the words  -   "as they were not the driver"  -  or similar be added at the end of the sentence to reiterate the fact?

KeithP

1505grandad said:

Just a thought:-

"Para 7......"The Defendant further denies that they entered into any contract with the Claimant or that they were made aware of any terms that could form a binding agreement."

As you are defending as keeper only (was not the driver) should the words  -   "as they were not the driver"  -  or similar be added at the end of the sentence to reiterate the fact?

Maybe simpler just to state...
      "The Defendant further denies that the driver entered into any contract...".

Worzel_

Thanks, have made that change.

Before I submit it, is there anything in the crossed out old defence that should still be in the new defence?

Also should I add something about the fact Gladstones rescheduled the mediation call twice and then said no one was available on the day of the call? (detailed earlier in the thread on page 3)

Coupon-mad

I struggled to find any facts. Can't even tell if you are admitting to driving or not. You also removed the stuff about them not being able to hold you liable as registered keeper under the POFA. I think those should stay (unless they know you were the driver).

And yes, under your Preliminary Matter effort to get the claim struck out, add something like:

There has been a course of unreasonable conduct in this litigation. As well as wasting the court's time with inadequate POC when filing the boilerplate claim, the Claimants then compounded this by utterly wasting the time of the Defendant and the court Mediator and they have not asked the court for relief from sanctions for any of their behaviour.

The Claimants/Gladstones inconvenienced the Defendant by rescheduling the mediation call (twice) and then said "no one is available" on the very day of the re-arranged Mediation call. They failed to attend. Now that Mediation is Compulsory, the Civil Procedure Rules re that stage of litigation state that the court has power to impose sanctions on a party, including striking a claim out and cost penalties.

In the case of Barton v Wright Hassall LLP [2018] UKSC 12, the Supreme Court’s decision reinforced the position that no party (in that case, a litigant in person claimant) should be given allowances to disregard the CPRs which were held to be 'neither inaccessible nor obscure'. This Claimant was already indulged by a lifeline (an allowance to re-write the Particulars of Claim) and still failed to attach a contract showing the purportedly 'agreed' £100 'penalty' clause. The Defendant was caused detriment by all aspects of this behaviour - including being subjected to considerable time wasting and now having to read a lengthy but still woefully pleaded POC and amend the defence less than a fortnight before Christmas. Given the binding authority of Barton, it would be absurd if legally represented parties were let off CPR compliance and escaped sanctions for not attending a Mediation call three times. The Defendant feels that the Claimant's course of conduct and lack of respect for the court process - it being a litigation solicitor's day job, after all - could be determined as so unreasonable as to be a case of 'three strikes and they're (struck) out'. 

Worzel_

Coupon-mad said:

I struggled to find any facts. Can't even tell if you are admitting to driving or not. You also removed the stuff about them not being able to hold you liable as registered keeper under the POFA. I think those should stay (unless they know you were the driver).

Thanks very much for writing all that about mediation!

I have not admitted driving.

@Coupon-mad Is this the bit to add back about "them not being able to hold you liable as registered keeper ":

5. It is denied that the Claimant can pursue the registered keeper pursuant to the POFA 2012 because this Claimant's consumer notices are likely to fail to comply with Schedule 4 and the sum pursued exceeds the 'maximum sum' that Act sets.

5.1. The Claim should be struck out on the basis that it contravenes Schedule 4, Paragraph 4(5) of the Protection of Freedoms Act 2012 (PoFA).

5.2.  PoFA clearly stipulates that a creditor may not make a claim against the keeper of a vehicle for more than the amount of the unpaid parking charges as they stood when the notice to the driver was issued. The original Parking Charge Notice (PCN) issued by the claimant was presumably for £100 (as pleaded in the POC). However, the claimant's current claim is for £160. The Claimant’s attempt to claim an unlawful amount constitutes an abuse of process and should not be allowed to proceed.

5.3. The Defendant respectfully request the allocating judge to dismiss the claim on the basis of the Claimant’s contravention of Schedule 4, Paragraph 4(5) of PoFA and thereby CPR 1.1, CPR 3.4(2)(a) and (b) and CPR 27.14 and to award costs - if incurred at the point of claim dismissal - to the Defendant.

5.4.  As the claim (fully disputed in any event) should only be for the amount of £100 as stated on the original PCN, the interest calculated should only be on that amount. By also calculating interest on the purported £60 "contractual" escalation fee (which is, in itself, an abuse of process and POFA breach) the Claimant has not only acted unreasonably but also abused the courts process and breached the following CPRs:

Worzel_

I have fully amended the defence document. You can safely ignore all strikethrough text (old defence) and everything in blue is new.

Could someone take a look, particularly at the first paragraph which isn't written in legalese.

My Amended Defence: https://docs.google.com/document/d/16DPNuW1olQsUSQP0Hp7nyJfWJDRhrZtRKceNUsoh50Q/edit?usp=sharing

Gladstones Amended POC: https://drive.google.com/file/d/1-0X-W_QdJIbnlx8xFG7tE1QXER6njRzk/view?usp=sharing

Thanks and Merry Christmas

P.S. Ignore the paragraph numbering after blue text, I will fix it if there are no further edits.

Worzel_

Merry Christmas bump 

Coupon-mad

I think it's a difficult weekend for people to fit in looking at detailed stuff!  Links are especially daunting when busy.

If I were you, I'd copy & paste your WS into two replies if needed.  We can then cast an eye over it much more easily.

Worzel_

I don't think I'm at the WS stage yet. Above is an amended defence because the judge gave Gladstones the ability to amend their POC and they did.

It's all the advice I got in this thread cobbled together, so don't think I could go too far wrong.

The judge gave me a deadline of 30th december to file my amended defence. Is there any disadvantage to sending earlier (like it gives Gladstones chance to fix holes in their POC i.e. no penalty on sign)