Gladstone Court Claim - Visitors Bay - Help

Is anyone available to provide advice on my defence post?

Thank you Coupon-mad, below is the edited defence - i Moved 10, 11, 12 and 13 to point 6 and on wards as I thought it fit better with the headings. Is there anyway we can use the articles NeilCr posted to our advantage?

Preliminary
1. The Particulars of Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.
2. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct. The Defendant further notes the Claimant's failure to engage in pre-action correspondence in accordance with the pre-action protocol and with the express aim of avoiding contested litigation.
3. In the pre-court stage the Claimant refused to provide The Defendant with the necessary information they requested in order to defend themselves against the alleged debt.
They did not send The Defendant a Letter before Action that complied with the Practice direction on pre-action conduct. The Letter before Action can be seen to miss the following information
a) A clear summary of facts on which the claim is based.
b) A list of the relevant documents on which your client intends to rely.
c) How the charge amount of £168.88 has been calculated and justified.
d) Any form of possible negotiation or ADR offered.
Background
4. It is admitted that The Defendant, XXXXXX XXXXX, is the registered keeper of the vehicle.
4.1. It is denied that there was any 'relevant obligation' or 'relevant contract' relating to any parking event.
4.2. It is denied that any 'parking charges or indemnity costs' (whatever they might be) are owed. Any purported 'debt' is denied in its entirety.
5. It is not admitted that the Claimant has complied with the relevant statutory requirements.
Authority to Park and Primacy of Contract
6. It is not admitted that the Claimant has contractual or other lawful authority to make contracts with residents and their visitors at this location, and/or to bring proceedings against the Defendant. The Claimant is put to strict proof. Further, and in the alternative, the Defendant avers that the Claimant requires the permission of the owner of the relevant land - not merely another contractor or site agent not in possession - in order to commence proceedings.
7. The Defendant avers that the Claimant cannot:
(i) override the existing rights enjoyed by residents and their visitors, or
(ii) offer parking on more onerous terms than were already granted and agreed in the lease/tenancy Agreement, or
(iii) decide to remove parking bays from use by residents and their visitors and/or start charging for them.
8. The Defendant parked legitimately in a visitor bay, with permission from a resident at the site.
9. The Claimant does not require all residents at the site to hold and display parking permits, thus causing inconsistency in parking terms across the same land and causing confusion. The signage fails to inform clearly which bays require permits.
10. The Claimant has imposed unreasonable limits of 40 visitors per flat, per year and charge residents for additional parking permits, this is an unnecessary nuisance to residents and restricts the !!!8216;peaceful enjoyment!!!8217; of the resident!!!8217;s property.
11. The process of purchasing new visitor parking permits is onerous, expensive and time consuming. There is no alternative offered during the time of residents running out of permits and ordering new ones, it is totally unacceptable that residents are expected to have no visitors during this period.
Unfairness - no regard for the Trader's duty for 'Fair Dealing' and Misleading Trading Practices
12. Trade Body Codes of Practice are 'effectively binding' according to the Supreme Court in the Beavis case.
12.1. Further, the Consumer Protection from Unfair Trading Regulations identifies at section 5 'Misleading Actions': (3) A commercial practice satisfies the conditions of this paragraph if - (b) it concerns any failure by a trader to comply with a commitment contained in a code of conduct which the trader has undertaken to comply with, if;
(i) the trader indicates in a commercial practice that he is bound by that code of conduct, and
(ii) the commitment is firm and capable of being verified and is not aspirational.
12.2. The Court's attention is drawn to the ''Red Hand Rule'', as set out in the leading judgment in J Spurling v Bradshaw [1956] EWCA Civ 3, where Denning MR stated:''The more unreasonable a clause is, the greater the notice which must be given of it. Some clauses would need to be printed in red ink with a red hand pointing to it before the notice could be held to be sufficient''.
12.3. Underlining that is Section B.2.1, B.2.2 of the IPC Code of Practice which gives clear instructions as to the placing, visibility and clarity of any signs that must be used to form contracts. It says: ''It is therefore of fundamental importance that the signage meets the minimum standards under The Code as this underpins the validity of any such charge.''
12.4. In the Beavis case, the Supreme Court Judges reiterated the requirement for fair and open dealing, at paragraph 205:''The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer''
12.5. Courts must now consider the fairness of a term, where it is not 'prominent and transparent'. Unfair terms here include the penalty fine itself, charges hidden in small print, lack of any fair grace period for the driver to seek out, read decide whether to accept any advertised parking contract, misleading and predatory conduct, added costs not specified prominently in the alleged contract, disproportionate default charges, non-observance of a Code of Practice. Such conduct and terms breach Part 2 'Unfair Contract Terms' of the Consumer Rights Act 2015 (the CRA) which was enacted after the Beavis case final hearing, and remains untested in the context of unfair parking penalty charges.
12.5.1. The Court's attention is drawn to the CRA at SCHEDULE 2, a non-exhaustive list of 'Consumer contract terms which may be regarded as unfair' which include clear references to conduct that is on all fours with that of this Claimant, and their solicitors.
12.5.2. The CRA requires that key terms of a contract, including price, must be assessed for fairness by a court, where those terms are not both 'prominent and transparent' (which the Defendant avers they are not).
The CRA, at para 71, sets out the duty of court to consider fairness of a consumer contract term: ''(2) The court must consider whether the term is fair even if none of the parties to the proceedings has raised that issue or indicated that it intends to raise it''.
Failure to Set Out Clear Parking Terms
13. The Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to impose a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.
13.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, woefully inadequate.
13.1.1. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee!!!8217;s ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and
13.1.2. The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3
No commercial justification to penalise a visitor - predatory conduct
14. This Claimant is not the lawful occupier of the land is at best acting 'on behalf of' another agent. It is averred that this Claimant has no more than a bare licence to put signs up under an agency agreement, and this punitive charge is in conflict with any purported commercial justification, having been issued to punish a prospective tenant.
14.1. It is averred that there is no agreement from the landholder that bestows any rights to this non-landholder Claimant, to pursue visitors in the courts, in its own name.
14.2. Specifically, it is the Defendant's honest belief that, even if there is a chain of authority from the landowner conferring such a right to pursue drivers of cars that have actually been parked/left at the location, this cannot reasonably allow immediate, predatory ticketing of drivers dropping off potential tenants for a viewing whilst the driver was seeking out terms of parking.
14.3. The Claimant is put to strict proof of its legitimate interest and cause of action, given the facts of the case.
This Claim is artificially inflated, but is embarrassing for scarce Particulars
15. It is denied that the Claimant has any entitlement to the sums sought, and it is noted that this Claim has inflated the 'charges' in a typically routine attempt at double recovery of a sum which bears no relation to the sum on any sign or parking charge notice.
16. No indemnity costs or damages have been incurred, nor were any debt collection 'fees' paid by this Claimant, and it is averred that the sum claimed is invented out of thin air as part of the Claimant's solicitors' robo-claim model.
17. The Claimant's solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence and no scrutiny of details. HMCS have identified thousands of similar poorly produced claims, and the solicitor's conduct in many of these cases is believed to be currently the subject of an active investigation by the SRA.
18. The Particulars of Claim lack specificity and are embarrassing. The Court is respectfully invited to strike out the claim, for similar reasons cited by District Judge Cross of St Albans County Court on 20/09/16 where a parking claim was struck out without a hearing, due to Gladstones' template particulars for a private parking firm being 'incoherent', failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''.
19. Should the Claim not be struck out by the Court, as an alternative when Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange). This is because it is expected that the Claimant/Gladstones will use the witness statement to finally provide the sort of detail which should have been disclosed much earlier in the missing Particulars of Claim. The Defendant should have the opportunity to consider the full particulars/evidence, prior to serving evidence and witness statements in support of this Defence.

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