Gladstones claim form received

edited 11 October 2018 at 4:19PM in Parking Tickets, Fines & Parking
113 replies 8K views
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  • Coupon-madCoupon-mad Forumite
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    No, the Counter claim goes with the defence so it is not too late.

    But if you would rather not try, stick to a decent defence and stick around, come back at WS and evidence stage.
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  • EzisolaEzisola Forumite
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    Coupon-mad wrote: »
    stick to a decent defence and stick around, come back at WS and evidence stage.


    I intend to, right pain seeing the threads go all the way to court and never report back!

    Do you think my defence posted on the previous page is about ready to go?
  • edited 18 January 2020 at 3:39PM
    bargepolebargepole Forumite
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    edited 18 January 2020 at 3:39PM
    Ezisola wrote: »
    I intend to, right pain seeing the threads go all the way to court and never report back!

    Do you think my defence posted on the previous page is about ready to go?

    No. What you have written is more of a rant than a defence. You have mixed first and third person, used a confusing numbering system of sub-paragraphs, and included a number of irrelevant assertions which you cannot prove.


    Here is my suggested alternative:

    IN THE COUNTY COURT

    CLAIM No: xxxxxxxxxx

    BETWEEN:

    UK CAR PARK MANAGEMENT LTD (Claimant)

    -and-

    xxxxxxxxxxxx (Defendant)

    ________________________________________
    DEFENCE
    ________________________________________

    1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

    2. The facts are that the vehicle, registration XXXX, of which the Defendant is the registered keeper, was parked on the material date in a marked bay allocated to Company XXXX at XXXX Business Park, and had a valid permit to be parked in that bay.

    3. The Particulars of Claim state that the Defendant !!!8220;was the registered keeper and/or the driver of the vehicle(s)!!!8221;. These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

    4. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

    5. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. They merely state that vehicles must be parked correctly within their allocated parking bay, giving no definition of the term 'correctly parked', nor indicating which bays are allocated to whom.

    6. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

    7. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

    8. The Protection of Freedoms Act 2012, Schedule 4, at Section 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. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

    9. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

    I believe the facts contained in this Defence are true.

    Name
    Signature
    Date

    I have been providing assistance, including Lay Representation at Court hearings (current score: won 51, lost 13), to defendants in parking cases for over 5 years. I have an LLB (Hons) degree, and have a Graduate Diploma in Civil Litigation from CILEx. However, any advice given on these forums by me is NOT formal legal advice, and I accept no liability for its accuracy.
  • EzisolaEzisola Forumite
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    bargepole wrote: »
    Here is my suggested alternative:


    Thank you so much for taking the time to help out. May I ask if its worth including:

    - Something about how there has been no letter before action or any attempt by the company to communicate other than debt collector letters

    - That a permit was owned and displayed (but the inspector clearly did not look closely enough)

    - That nowhere on the signage did it say a permit needed to be displayed

    - Anything about the added legal representitive costs which are unrecoverable
  • nosferatu1001nosferatu1001 Forumite
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    1) Yes, just add a single line that no LBA was received, in breach of the PAP for debt claims
    2) Yes, put them to proof that the permit was not displayed. It would help if their pictures are terrible or obv taken from an angle to obscure the permits position
    3) yes of course. There was no breach by the defendants vehicle because signage makes no requirement to display a permit.
    4) You state the claimants added "legal representative" costs are not permissible under CPR27
  • EzisolaEzisola Forumite
    66 Posts
    Second Anniversary
    1) Yes, just add a single line that no LBA was received, in breach of the PAP for debt claims
    2) Yes, put them to proof that the permit was not displayed. It would help if their pictures are terrible or obv taken from an angle to obscure the permits position
    3) yes of course. There was no breach by the defendants vehicle because signage makes no requirement to display a permit.
    4) You state the claimants added "legal representative" costs are not permissible under CPR27


    I've added that all in:

    IN THE COUNTY COURT

    CLAIM No: xxxxxxxxxx

    BETWEEN:

    UK CAR PARK MANAGEMENT LTD (Claimant)

    -and-

    xxxxxxxxxxxx (Defendant)

    ________________________________________
    DEFENCE
    ________________________________________

    1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

    2. The facts are that the vehicle, registration XXXX, of which the Defendant is the registered keeper, was parked on the material date in a marked bay allocated to Company XXXX at XXXX Business Park, and had a valid permit to be parked in that bay.

    3. The Claimant has failed to issue a Letter Before Action, or provided any details of the claim prior to issuing a claim at court. As such, the Claimant has failed to comply with the Practice Direction – Pre-Action Conduct and Protocols, para 6 (a) & (c).

    4. The Particulars of Claim state that the Defendant “was the registered keeper and/or the driver of the vehicle(s)”. These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16, 7.5 as there is nothing which specifies how the terms were breached.

    5. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

    6. Further and in the alternative, it is denied that the Claimant’s signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. They merely state that vehicles must be parked correctly within their allocated parking bay, giving no definition of the term 'correctly parked'. The signage gave no requirement to display the valid parking permit.


    7. The Claimant is put to strict proof that the vehicle did not have a valid permit to be parked in that bay.

    8. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would need to stand directly in front of a dangerous access ramp with poor visibility. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

    9. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

    10. The Protection of Freedoms Act 2012, Schedule 4, at Section 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. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.
    11. The claim includes an additional £50 for ‘Legal representative’s costs’, such costs are not permissible under Civil Procedure Rules – Part 27.

    12. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to Civil Procedure Rules 3.4.

    I believe the facts contained in this Defence are true.

    Name
    Signature
    Date
  • EzisolaEzisola Forumite
    66 Posts
    Second Anniversary
    Something else I've been looking into; I don't believe the NTK is POFA compliant. A copy of the NTD: https://dropbox.com/s/rc8c6o7hpfbyypq/NTKCombined.jpg

    I believe it fails:

    (2)The notice must—
    (a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;

    The NTK only specifies the day and time the PCN was issued, no period of parking specified.

    Are there any other POFA requirements not met that I may have missed?
  • EzisolaEzisola Forumite
    66 Posts
    Second Anniversary
    Hopefully final draft, would appreciate any comments from the fantastic regulars before I send this off to the court:

    IN THE COUNTY COURT

    CLAIM No: xxxxxxxxxx

    BETWEEN:

    UK CAR PARK MANAGEMENT LTD (Claimant)

    -and-

    xxxxxxxxxxxx (Defendant)

    ________________________________________
    DEFENCE
    ________________________________________

    1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

    2. The facts are that the vehicle, registration XXXX, of which the Defendant is the registered keeper, was parked on the material date in a marked bay allocated to Company XXXX at XXXX Business Park, and had a valid permit to be parked in that bay.

    3. The Claimant has failed to issue a Letter Before Action, or provided any details of the claim prior to issuing a claim at court. As such, the Claimant has failed to comply with the Practice Direction – Pre-Action Conduct and Protocols, para 6 (a) & (c).

    4. The Particulars of Claim state that the Defendant “was the registered keeper and/or the driver of the vehicle(s)”. These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16, 7.5 as there is nothing which specifies how the terms were breached.

    5. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

    6. Further and in the alternative, it is denied that the Claimant’s signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. They merely state that vehicles must be parked correctly within their allocated parking bay, giving no definition of the term 'correctly parked'. The signage gave no requirement to display the valid parking permit.


    7. The Claimant is put to strict proof that the vehicle did not have a valid permit to be parked in that bay.

    8. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would need to stand directly in front of a dangerous access ramp with poor visibility. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

    9. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

    10. The Notice To Keeper does not specify the period of parking, as required by the Protection of Freedoms Act 2012, Schedule 4, Section 8 (2)(a)&(b) and therefore cannot hold the keeper liable.

    11. The Protection of Freedoms Act 2012, Schedule 4, at Section 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. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

    12. The claim includes an additional £50 for ‘Legal representative’s costs’, such costs are not permissible under Civil Procedure Rules – Part 27.

    13. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to Civil Procedure Rules 3.4.

    I believe the facts contained in this Defence are true.

    Name
    Signature
    Date
  • nosferatu1001nosferatu1001 Forumite
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    There is only one type of proof - proof. I dont believe strict proof is a thing.
  • bargepolebargepole Forumite
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    Take out point 12 altogether.

    It is standard practice, in virtually every claim in every court, that a £50 fee is allowed where solicitors are involved.

    Don't waste your time, and annoy the Judge, by arguing points which are bound to fail.

    I have been providing assistance, including Lay Representation at Court hearings (current score: won 51, lost 13), to defendants in parking cases for over 5 years. I have an LLB (Hons) degree, and have a Graduate Diploma in Civil Litigation from CILEx. However, any advice given on these forums by me is NOT formal legal advice, and I accept no liability for its accuracy.
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