County Court Defense - Gladstones Solicitors Limited and private Parking Solutions (LONDON) LTD

portsboy

[Image removed by Forum Team]
Dear team of experts, 

I am very glad to see that there is so much support and data available to defend the above case. 

I have gone thru the newbie template and also the most similar cases

https://forums.moneysavingexpert.com/discussion/6446702/county-court-defense-gladstones-solicitors-limited-and-private-parking-solutions-london-ltd/p1 

Followed all the advice mentioned and the final draft that i have been able to draw. Please could you advice me on the draft before submission. Raw text and dropbox links are both included in separate posts.

Claim issue date on 11/09/2024

I have acknowledged the claim as per instructions on 21/09/2024

Thanks so much in advance!!!

portsboy

Here is my draft after following newbie thread and the exact same claim from 2023 the final draft as well:

IN THE COUNTY COURT

Claim No: XXXXXX

 

 

PRIVATE PARKING SOLUTIONS (LONDON) LTD

(Claimant)

- and -

……….

(Defendant)

_________________

DEFENCE

 

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 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 and driver.

 

WITNESS STATEMENT OF DEFENDANT

 

1.     I am -----------------------------------------------------------------------------------------, and I am the defendant against whom this claim is made. The facts below are true to the best of my belief and my account has been prepared based upon my own knowledge.

 

2. It is admitted that the Defendant was the registered keeper and driver of the vehicle.

 

3. The Claimant mentions Zone A+B, Holloway Street Hounslow in the Parking Charge Notice issued to the Defendant, but the picture taken was on Matisse Rd.  Holloway street is not accessible by cars.

 

4. The Defendant entered a dead-end public road called Matisse Rd in Hounslow.  The defendant then took a U-turn and stopped by the side of the road to ask for directions and re buckle the car seat belt of one of his daughters who had managed to unbuckle it. 

 

5. When the defendant stopped his car on the side of the road he was not trying to enter the private space. From pictures taken by the Claimant it can be clearly shown that there is no clear demarcation on the road showing where the private space begins.

 

6. The driver did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.

 

7.  The terms on the signage in the car park are of a forbidding nature.  This means that there was never a contractual relationship. The defendant refers you to the following case law: PCM-UK v Bull (et all) B4GF26K6 [2016], UKPC v Masterson B4GF26K6[2016], Horizon Parking v Mr J C5GF17X2 [2016]. In all three of these cases the signage was found to be forbidding and thus only a trespass had occurred and would be a matter for the landowner. From the "Guidance on Section 56 and Schedule 4 of the Protection of Freedoms Act 2012: Recovery of Unpaid Parking Charges"

link removed

For Schedule 4 to apply the driver of a vehicle must first be liable for unpaid parking charges. There are broadly two situations where a driver could become liable for parking charges:

a. where a driver has entered a contract to park on private land and failed to comply with the terms and conditions of that contract; or

b. where a driver has trespassed on private land where signs showing charges for unauthorised parking are displayed.

 

8. The Defendant denies that he would have agreed to pay the parking charge of £100 to agree to the alleged contract had the terms and conditions of the contract been legally binding and properly displayed and accessible to a driver.

 

8.1 A driver can be liable to pay a charge for parking on land where parking is not invited and they are trespassing. For Schedule 4 to apply to trespass situations the landholder needs, as a minimum, to place clear signs stating that parking is not permitted and setting out the charge that will be sought for unauthorised parking (i.e. damages for trespass). For example “No parking – charge £50 for unauthorised parking”. Charges sought for trespass must be appropriate (see Q1 of FAQ).

 

9. The alleged contract does not permit parking, but states a parking charge of £100, which is contradictory and confusing. The pictures also show parking bays but signage says no parking at any time.

 

10. The Defendant claims that the area belonging to the Claimant is not clearly marked.  As seen in the pictures the Defendant has stopped the vehicle at the edge of the white striped area, not in any parking bays. The Defendant is on the edge of a public road and understood that the white striped area is also public access.

 

 

11.The Claimant has submitted no evidence regarding a consideration period. A contract to park by conduct cannot be formed unless there is a consideration period to discover, read, understand and accept the contract.

 

12. Despite legal challenges delaying the Code's implementation (marking it as temporarily 'withdrawn' as shown in the link above) a draft Impact Assessment (IA) to finalise the DLUHC Code was recently published on 30th July 2023, which has exposed some industry-gleaned facts about supposed 'Debt Fees'. This is revealed in the Government's analysis, found here: link removed

 

13. Paragraphs 4.31 and 5.19 reveal that the parking industry has informed the DLUHC that the true minor cost of what the parking industry likes to call debt recovery or 'enforcement' (pre-action) stage totals a mere £8.42 per recovery case.

 

14. With that sum in mind, it is clear that the extant claim has been enhanced by an excessive amount, disingenuously added as an extra 'fee'. This is believed to be routinely retained by the litigating legal team and has been claimed in addition to the intended 'legal representatives fees' cap set within the small claims track rules. This conduct has been examined and found - including in a notably detailed judgment by Her Honour Judge Jackson, now a specialist Civil High Court Judge on the Leeds/Bradford circuit - to constitute 'double recovery' and the Defendant takes that position.

 

15. The new draft IA now demonstrates that the unnecessarily intimidating stage of pre-action letter-chains actually costs 'eight times less' (says the DLUHC analysis) than the price-fixed £70 per PCN routinely added. This has caused consumer harm in the form of hundreds of thousands of inflated CCJs each year that District Judges have been powerless to prevent. This abusively enhanced 'industry standard' Debt Fee was enabled only by virtue of the self- serving Codes of Practice of the rival parking Trade Bodies, influenced by a Board of parking operators and debt firms who stood to gain from it.

 

16. In support of my contention that the sum sought is unconscionably exaggerated and thus unrecoverable, attention is drawn to paras 98, 100, 193, 198 of ParkingEye Ltd v Beavis [2015] UKSC67 ('the Beavis case'). Also ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was £75, discounted to £37.50 for prompt payment. Whilst £75 was reasonable, HHJ Hegarty (decision later ratified by the CoA) held in paras 419-428 that unspecified 'admin costs' inflating a parking charge to £135 was not a true reflection of the cost of a template letter and 'would appear to be penal'.

 

17. This Claimant has not incurred any additional costs because the full parking charge (after expiry of discount) is already high and more than covers what the Supreme Court called an 'automated letter-chain' business model that generates a healthy profit. In Beavis, there were 4 or 5 letters in total, including pre-action phase reminders. The £85 parking charge was held to cover the 'costs of the operation' and the DLUHC's IA suggests it should still be the case that the parking charge itself more than covers the minor costs of pre-action stage, even if and when the Government reduces the level of parking charges.

 

18. Whilst the new Code is not retrospective, the majority of the clauses went unchallenged by the parking industry and it stands to become a creature of statute due to the failure of the self-serving BPA & IPC Codes. The DLUHC's Secretary of State mentions they are addressing 'market failure' more than once in the draft IA, a phrase which should be a clear steer for Courts in 2023 to scrutinise every aspect of claims like this one

 

19. In addition, pursuant to Schedule 4 paragraph 4(5) of the Protection of Freedoms Act 2012 ('the POFA') the sum claimed exceeds the maximum potentially recoverable. It is also disproportionate and in breach of the Consumer Rights Act 2015.

 

CRA breaches

 

20. Claiming costs on an indemnity basis is unfair, per the Unfair Contract Terms Guidance (CMA37, para 5.14.3), the Government guidance on the CRA which introduced new requirements for 'prominence' of both contract terms and 'consumer notices'. In a parking context, this includes a test of fairness and clarity of signage and all notices, letters and other communications intended to be read by the consumer.

 

21. Section 71 creates a duty upon courts to consider the test of fairness, including (but not limited to) whether all terms/notices were unambiguously and conspicuously brought to the attention of a consumer. Signage must be prominent, plentiful, well-placed (and lit in hours of darkness/dusk) and all terms must be unambiguous and contractual obligations clear.

 

22. The CRA has been breached due to unfair/unclear terms and notices, pursuant to s62 and paying due regard to examples 6, 10, 14 & 18 of Schedule 2 and the requirements for fair/open dealing and good faith (NB: this does not necessarily mean there has to be a finding of bad faith).

 

ParkingEye v Beavis is distinguished

 

23. The Supreme Court clarified that ‘the penalty rule is plainly engaged’ in parking cases, which must be determined on their own facts. That 'unique' case met a commercial justification test, given the location and clear signs with the charges in the largest/boldest text. Rather than causing other parking charges to be automatically justified, that case, in particular, the brief, conspicuous yellow & black warning signs

 

24. Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of a 'legitimate interest' in performance extending beyond the prospect of compensation flowing directly from the alleged breach. The intention cannot be to punish a driver, nor to present them with hidden terms, unexpected/cumbersome obligations nor 'concealed pitfalls or traps'.

 

25. In the present case, the Claimant has fallen foul of those tests. Court of Appeal authorities which are on all fours with a case involving a lack of ‘adequate notice’ of a charge, include:


(i)              Spurling v Bradshaw [1956] 1 WLR 461 (‘red hand rule’) and

(ii)             Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ2,

both leading authorities confirming that a clause cannot be incorporated after a contract has been concluded; and


(iii)           Vine v London Borough of Waltham Forest: CA 5 Apr 2000, where Ms Vine won because it was held that she had not seen the terms by which she would later be bound, due to "the absence of any notice on the wall opposite the parking space".

 

 

Observations re this Claimant's Witness Statement

26. It is also pertinent to note that the Britannia v Semark-Jullien appeal judgment by HHJ Parkes (which I believe is relied upon by this Claimant) criticised two District Judges for apparently 'not having enough evidence' to conclude that Britannia 'knew' that their added costs were exaggerated 'double recovery'. Unbeknown to HHJ Parkes, of course all District Judges deal with generic evidence in cases like this every week, and parking operators certainly have been told this by Judges for many years.

 

29. Now for the first time, the DLUHC's draft IA exposes that template 'debt chaser' stage costs less than £9. This shows that DJ Grand and DJ Taylor were right all along. As was HHJ Jackson in Excel v Wilkinson.

 

30. I have found that parking Defendants are often ambushed by 'Chaplair v Kumari' but that case has no application in my case.  To preempt this: Kumari concerns a lease where both parties signed/agreed a contract and knew about the terms. Completely different to predatory ticketing, unclear terms and pitfalls/traps set up by ex-wheelclampers and firms of their ilk, to catch out drivers in car parks.

 

31. Similarly, my research has revealed that parking Claimants often cite 'One Parking Solution v Wilshaw' (a flawed judgment, wrongly missing the point whereby the DVLA requires mandatory landowner authority in parking cases, but it was a unique site where OPS had title in the land and were held to be 'tenants-at-will, unlike in this case).  That case seems to be used to mislead courts into thinking that no landowner contract is required (relying on an old and inapplicable 'I could sell you Buckingham Palace' argument). Quite the contrary.  Landowner authority is always required in these cases because it is a prerequisite of the DVLA KADOE rules before keeper data can even be obtained. The DLUHC Code reiterates this and it will be effectively cemented as a statutory requirement.

 

Conclusion

 

32. The claim is entirely without merit. The Defendant believes that it is in the public interest that claims like this should be struck out because knowingly enhanced parking claims like this one cause consumer harm on a grand scale.

 

33. There is now ample evidence to support the view - long held by many District Judges - that these are knowingly exaggerated claims. The July 2023 DLUHC IA analysis surely makes that clear because it is now a matter of record that the industry has told the Government that 'debt recovery' costs eight times less than they have been claiming in almost every case.

 

34. In the matter of costs, the Defendant asks:

 

a)              at the very least, for standard witness costs for attendance at Court, pursuant to CPR 27.14 and

b)              for a finding of unreasonable conduct by this Claimant, seeking costs pursuant to CPR 46.5.

 

35. Attention is drawn specifically to the (often-seen) distinct possibility of an unreasonably late Notice of Discontinuance. Whilst CPR r.38.6 states that the Claimant is liable for the Defendant's costs after discontinuance (r.38.6(1)) this does not normally apply to claims allocated to the small claims track (r.38.6(3)). However, the White Book states (annotation 38.6.1): "Note that the normal rule as to costs does not apply if a claimant in a case allocated to the small claims track serves a notice of discontinuance although it might be contended that costs should be awarded if a party has behaved unreasonably (r.27.14(2)(dg))."

 

Statement of Truth

 

I believe that the facts stated in this witness statement 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:

Gr1pr

That appears to be a witness statement, it says so several times 

You should be preparing a defence based on the template defence by coupon mad, or a recent approved defence in a claim of a similar nature 

We expect to see just the early paragraphs, not the rest of an unchanged template, only your work needs checking 

KeithP

Hello and welcome.

I am not sure that 'parked in breach of the terms of parking stipulated on the signage' is a good enough description of what the driver is alleged to have done wrong. Wait for others to comment on that.

With a Claim Issue Date of 11th September, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 14th October 2024 to file a Defence.

That's nearly three weeks away. Plenty of time to produce a Defence but please don't leave 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.

Do not try and file a Defence via the MoneyClaimOnline website. Once an Acknowledgment of Service has been filed, the MCOL website should be treated as 'read only'.

portsboy

Editable file for review comments. Cannot thankyou all enough for such valuable insights.

dropbox.com/scl/fi/9z4obf99tz42rlwt8slyz/PPS-Defense-DRAFT-1.0.docx?rlkey=du7r0mbbm2tqjhhja8zatxb6d&st=rq7g2d26&dl=0

Coupon-mad

No, bin it.  You are still trying to shove a witness statement into a defence.

Maybe this is one for @LDast to suggest the short defence and separate Draft Order.

LDast

I see the image was removed. However, if the "reason" given was "parked in breach of the terms of parking stipulated on the signage" then it has not complied with CPR 16.4(1)(a). The short defence and draft order together with the two transcripts of Chan and Akande would be submitted as the defence:

IN THE COUNTY COURT

Claim No: [Claim Number]

BETWEEN:

[Claimant's Full Name]

Claimant

- and -

[Defendant's Full Name]

Defendant

________________________________________________________________________

DEFENCE

Preliminary matter

1. The Defendant respectfully submits that the Particulars of Claim (PoC) served by the Claimant are defective and fail to comply with CPR 16.4. The Defendant requests that the court consider this matter as a preliminary issue and strike out the claim pursuant to CPR 3.4(2)(a), as the PoC disclose no reasonable grounds for bringing the claim.

2. In particular, the PoC:

• Fail to provide a concise statement of the facts upon which the Claimant relies.
• Do not specify the exact contractual terms allegedly breached.
• Lack sufficient detail to enable the Defendant to understand the case and provide a full response.

3. The Defendant relies on two recent persuasive appeal cases:

• In CEL v Chan 2023 [E7GM9W44], the court struck out the claim due to inadequate PoC that failed to meet the requirements of CPR 16.4. (See Exhibit A)
  
  
• Similarly, in CPMS v Akande 2024 [K0DP5J30], the claim was struck out due to vague and insufficient PoC, which did not provide enough information for the Defendant to respond appropriately. (See Exhibit B)

4. In light of these deficiencies, the Defendant respectfully submits that the claim should be struck out for failing to meet the necessary legal standards.

5. Alternatively, should the court not agree to strike out the claim, the Defendant requests that the Claimant be ordered to provide amended or further Particulars of Claim that comply with CPR 16.4, as detailed in the attached draft order referred to in paragraph 9.

Defendants Understanding of the Claim

6. The Defendant denies any liability for this claim and puts the Claimant to full proof of any allegation.

7. There is a lack of precise detail in the Particulars of Claim (PoC) in respect of the factual and legal allegations made against the Defendant such that the PoC do not comply with CPR 16.4.

8. The Defendant is unable to plead properly to the PoC because:

• (a) The Particulars of Claim fail to comply with CPR 16.4(1)(a). The Claimant's vague statement that the Defendant "parked in breach of the terms of parking stipulated on the signage" lacks the specific terms allegedly breached. This prevents the Defendant from properly pleading a defence, and the claim should be struck out under CPR 3.4.

• (b) The contract referred to is not detailed or attached to the PoC in accordance with CPR PD 16.7.5;

• (c) The PoC do not state the exact wording of the clause (or clauses) of the terms and conditions of the contract (or contracts) which is/are relied on;

• (d) The PoC do not set out the reason (or reasons) why the claimant asserts the defendant has breached the contract (or contracts);

• (e) The PoC do not state with sufficient particularity exactly where the breach occurred, the exact time when the breach occurred and how long it is alleged that the vehicle was parked before the parking charge was allegedly incurred;

• (f) The PoC do not state exactly how the claim for statutory interest is calculated;

• (g) The PoC do not state what proportion of the claim is the parking charge and what proportion is damages;

• (h) The PoC states that the Claimant is suing the defendant as the driver or the keeper. The claimant obviously knows whether the defendant is being sued as the driver or the keeper and should not be permitted to plead alternative causes of action.

9. The Defendant has attached to this defence a copy of an order made at another court which the allocating judge ought to make at this stage so that the Defendant can then know and understand the case which they face and can then respond properly to 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.

Signed:

Date:

The two transcripts and the Draft Order are here:

Draft Order for the short defence

CEL v Chan

CPMS v Akande

The only editing required is on the defence for the claimants name, the defendants name, the claim number and for the signature to be typed and dated. The transcripts should be tabled "A" and "B" respectively as referenced in the defence.

Coupon-mad

And emailed together? Not as one merged PDF? Just thinking that if they are separate then inly the defence might be carried forward and seen.

LDast

It is better to keep the documents as separate files when submitting them to the court. This makes it easier for the court staff, the judge, and the other party to identify and navigate through each document, particularly when referring to the defence, exhibits (transcripts), and the draft order. Courts are used to handling separate documents, and bundling everything into a single PDF makes it harder for specific parts of the submission to be accessed quickly.

Here’s the recommended format:

1. Defence document: Clearly marked as "Defence."
2. Exhibits (transcripts): Label them with exhibit numbers or letters (e.g., Exhibit A – Transcript of CEL v Chan 2023).
3. Draft order: A separate document titled "Draft Order."

portsboy

LDast said:

It is better to keep the documents as separate files when submitting them to the court. This makes it easier for the court staff, the judge, and the other party to identify and navigate through each document, particularly when referring to the defence, exhibits (transcripts), and the draft order. Courts are used to handling separate documents, and bundling everything into a single PDF makes it harder for specific parts of the submission to be accessed quickly.

Here’s the recommended format:

1. Defence document: Clearly marked as "Defence."
2. Exhibits (transcripts): Label them with exhibit numbers or letters (e.g., Exhibit A – Transcript of CEL v Chan 2023).
3. Draft order: A separate document titled "Draft Order."

Thankyou very much! Will follow these instructions.

portsboy

[Image removed by Forum Team]


Posting the Claim form - hopefully will not be removed - as this has been redacted and no personal/ sensisitve details are included.