Gladstones / Euro Car Parks / CCJ / Wrong Address

Hey all!

I've put together my first draft defence document if you would be kind enough to review it and provide me with any feedback/amendments you have.

Cheers

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In the County Court Business Centre
Claim Number XXXXXXXX


BETWEEN:
Euro Parking Services Limited (Claimant)
v
XXX XXXXX (Defendant)




________________________________

DRAFT DEFENCE

________________________________

I am XXX XXXXXX and I am the Defendant in this matter and this is my supporting Statement in support of my application dated 19/10/17:

Preliminary

1. The claimant has failed to prove reasonable steps taken to ascertain the address of the defendant’s current residence or place of business (‘current address’) as outlined in Civil Procedure Rules 6.9(3)-(4):

(3) Where a claimant has reason to believe that the address of the defendant referred to in entries 1, 2 or 3 in the table in paragraph (2) [i.e. referring to the Defendant's usual or last known address] is an address at which the defendant no longer resides or carries on business, the claimant must take reasonable steps to ascertain the address of the defendant’s current residence or place of business (‘current address’).

(4) Where, having taken the reasonable steps required by paragraph (3), the claimant –
(a) ascertains the defendant’s current address, the claim form must be served at that address; or
(b) is unable to ascertain the defendant’s current address, the claimant must consider whether there is
(i) an alternative place where; or
(ii) an alternative method by which, service may be effected.

1.1. The claimant should assume that lapse of time, or a failure to respond to correspondence, gives rise to a risk that the defendant has moved.

1.2. The claimant took no due diligence to check that the details that they had on their systems were up to date

1.3. The claimant had no correspondence from the defendant to allow them to assume the address was still current;

1.4. Despite having no affirmation that the address was current and ample time to check, The claimant issued proceedings anyway.

2. The claimant failed to include a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the Claimants contractual authority to operate there as required by the Claimants Trade Association's Code of Practice B1.1 which says;
“If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the ‘Creditor’ within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges. There is no prescribed form for such agreement and it need not necessarily be as part of a contract but it must include the express ability for an operator to recover parking charges on the landowner’s behalf or provide sufficient right to occupy the land in question so that charges can be recovered by the operator directly. This applies whether or not you intend to use the keeper liability provisions.”

3. The particulars of claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached. Indeed the particulars of claim are not clear and concise as is required by CPR 16.4 1(a). The Claimants are known to be serial issuers of generic claims similar to this one. HM Courts Service have identified over 1000 similar sparse claims. I believe the term for such behaviour is ‘roboclaims’ and as such is against the public interest. Practice Direction 3A which references Civil Procedure Rule 3.4 illustrates this point;

“ 1.4 The following are examples of cases where the court may conclude that particulars of claim (whether contained in a claim form or filed separately) fall within rule 3.4(2)(a):
1. those which set out no facts indicating what the claim is about, for example ‘Money owed £5000’,
2. those which are incoherent and make no sense,
3. those which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable claim against the defendant ”

4. The claimant has not provided enough details in the particulars of claim to file a full defence;

4.1. The Claimant has disclosed no cause of action to give rise to any debt.

4.2. The Claimant has given no indication of the nature of the alleged charge in the Particulars of Claim. The Claimant has therefore disclosed no cause of action.

4.3. The Particulars of Claim contains no details and fails to establish a cause of action which would enable the Defendant to prepare a specific defence. It just states “You have not replied to the claim form” which does not give any indication of on what basis the claim is brought.

There is no information regarding why the charge arose, what the original charge was, what the alleged contract was, nor anything which could be considered a fair exchange of information.
The Particulars of Claim are incompetent in disclosing no cause of action.

4.4.1 On the 20th September 2016 another relevant poorly pleaded private parking charge claim by Gladstones was struck out by District Judge Cross of St Albans County Court without a hearing due to their ‘roboclaim’ particulars being incoherent, failing to comply with CPR. 16.4 and ‘providing no facts that could give rise to any apparent claim in law.’

4.4.2. On the 27thJuly 2016 DJ Anson sitting at Preston County Court ruled that the very similar parking charge particulars of claim were deficient and failing to meet CPR 16.4 and PD 16 paragraphs 7.3 – 7.6. He ordered the Claimant in that case to file new particulars which they failed to do and so the court confirmed that the claim be struck out.

Background

5. It is admitted that at the time of the alleged infringement the Defendant was the registered keeper of vehicle registration mark ****** which I believe is the subject of these proceedings. The vehicle was insured with two named drivers permitted to use it and is no longer owned by the defendant since March 2017.

6. The Claimant has provided no evidence, photographic or otherwise that the vehicle is indeed parked and not waiting / giving way to pedestrians or vehicles.

7. It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.

7.1. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the keeper in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA")

7.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:

7.2.1. There was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and

7.2.2. That it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.

It is not admitted that the Claimant has complied with the relevant statutory requirements.

7.3. To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.

8. The defendant wrote to the claimant on ******* after being advised on the phone to email, asking for information and clarification on the particulars.

The claimant has not responded with any information.

As Gladstones are a firm of solicitors who’s Directors also run the IPC Trade Body and deal with private parking issues every single day of the week there can be no excuse for these omissions.

The Defendant asks that the court orders Further and Better Particulars of Claim and asks leave to amend the Defence.

9. Euro Parking Services Limited are not the lawful occupier of the land. I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no rights to bring action regarding this claim.

9.1. The Claimant is not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract.

9.2. The claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question

9.3 The Claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge

10. The Claimant has at no time provided an explanation how the judgement has been calculated, the conduct that gave rise to it or how the amount has resulted in a total of £250.81 . This appears to be an added cost with apparently no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.

10.1. The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.

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

10.2.1. The Defendant denies that the driver would have agreed to pay the original demand of £100 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.

Failure to set out clear parking terms

11. 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.

11.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, woefully inadequate.

11.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;

11.1.2. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee’s ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and

11.1.3. 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

Wholly unreasonable and vexatious claim

12. It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, the Defendant is keeping careful note of all wasted time/costs in dealing with this matter and should the case continue to trial (or in the event of the Claimant filing a Notice of Discontinuance) the Defendant will seek further costs, pursuant to Civil Procedure Rule 27.14(2)(g).

13. The Defendant respectfully suggests that parking companies using the small claims track as a form of aggressive, automated monetary demands against motorists, alleging 'debts' for parking on free customer parking areas is not something the Courts should be seen to support.

14. The Court is invited to take Judicial Notice of the fact that the Claimant's solicitors, Gladstones, is engaged in a course of conduct which involves issuing tens of thousands of totally meritless Claims, which are routinely dismissed by District Judges sitting in this Court, and other County Court hearing centres in all parts of England & Wales. The Court is therefore invited to refer the matter to the Designated Civil Judge, for consideration of the issuing an Extended Civil Restraint Order against the Claimant, pursuant to CPR Practice Direction 3.1(3).

15. The Defendant denies the claim in its entirety, voiding any liability to the Claimant for all amounts due to the aforementioned reasons. The Defendant asks that the court gives consideration to exercise its discretion to order the case to be struck out under CPR Rule 3.4, for want of a detailed cause of action and/or for the claim having no realistic prospects of success.

16. If the court is not minded to make such an order, then when Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because it is expected that the Claimant will use its witness statement to provide the sort of detail which should have been disclosed much earlier, and the Defendant should have the opportunity to consider it, prior to serving evidence and witness statements in support of this defence.


Statement of Truth:
I believe that the facts stated in this Defence Statement are true.
Full name: XXX XXX

Dated 14/01/18

Signed: __________________________________

Thanks Coupon-mad. Just making the changes now, just one query:

1. The 'Unfairness' section you recommend including refers to PCM but my claimant is Euro Parking Services Limited, does this section still apply?

Thanks Coupon-mad. I have changed it around a bit, made the changes, added the recommended section in and also noticed a few points I referred to the IPC which is false because Euro Car Parks are members of the BPA so corrected them and added a couple of points about BPA.

If you could double check it over, and let me know if I need any other reference about BPA would be much appreciated!

============================

In the County Court Business Centre
Claim Number XXXXXXXXX


BETWEEN:
Euro Parking Services Limited (Claimant)
v
XXXXXXXX (Defendant)




________________________________

DRAFT DEFENCE

________________________________

I am XXXXXX and I am the Defendant in this matter and this is my supporting Statement in support of my application dated 19/10/17:

Preliminary

1. The claimant has failed to prove reasonable steps taken to ascertain the address of the defendant’s current residence or place of business (‘current address’) as outlined in Civil Procedure Rules 6.9(3)-(4):

(3) Where a claimant has reason to believe that the address of the defendant referred to in entries 1, 2 or 3 in the table in paragraph (2) [i.e. referring to the Defendant's usual or last known address] is an address at which the defendant no longer resides or carries on business, the claimant must take reasonable steps to ascertain the address of the defendant’s current residence or place of business (‘current address’).

(4) Where, having taken the reasonable steps required by paragraph (3), the claimant –
(a) ascertains the defendant’s current address, the claim form must be served at that address; or
(b) is unable to ascertain the defendant’s current address, the claimant must consider whether there is
(i) an alternative place where; or
(ii) an alternative method by which, service may be effected.
1.1. The claimant should assume that lapse of time, or a failure to respond to correspondence, gives rise to a risk that the defendant has moved.
1.2. The claimant took no due diligence to check that the details that they had on their systems were up to date
1.3. The claimant had no correspondence from the defendant to allow them to assume the address was still current;
1.4. Despite having no affirmation that the address was current and ample time to check, The claimant issued proceedings anyway.

2. The particulars of claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached. Indeed the particulars of claim are not clear and concise as is required by CPR 16.4 1(a). The Claimants are known to be serial issuers of generic claims similar to this one. HM Courts Service have identified over 1000 similar sparse claims. I believe the term for such behaviour is ‘roboclaims’ and as such is against the public interest. Practice Direction 3A which references Civil Procedure Rule 3.4 illustrates this point;

“ 1.4 The following are examples of cases where the court may conclude that particulars of claim (whether contained in a claim form or filed separately) fall within rule 3.4(2)(a):
1. those which set out no facts indicating what the claim is about, for example ‘Money owed £5000’,
2. those which are incoherent and make no sense,
3. those which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable claim against the defendant ”

3. The claimant has not provided enough details in the particulars of claim to file a full defence;

3.1. The Claimant has disclosed no cause of action to give rise to any debt.

3.2. The Claimant has given no indication of the nature of the alleged charge in the Particulars of Claim. The Claimant has therefore disclosed no cause of action.

3.3. The Particulars of Claim contains no details and fails to establish a cause of action which would enable the Defendant to prepare a specific defence. It just states “You have not replied to the claim form” which does not give any indication of on what basis the claim is brought.
There is no information regarding why the charge arose, what the original charge was, what the alleged contract was, nor anything which could be considered a fair exchange of information.
The Particulars of Claim are incompetent in disclosing no cause of action.

3.4.1 On the 20th September 2016 another relevant poorly pleaded private parking charge claim by Gladstones was struck out by District Judge Cross of St Albans County Court without a hearing due to their ‘roboclaim’ particulars being incoherent, failing to comply with CPR. 16.4 and ‘providing no facts that could give rise to any apparent claim in law.’

3.4.2. On the 27thJuly 2016 DJ Anson sitting at Preston County Court ruled that the very similar parking charge particulars of claim were deficient and failing to meet CPR 16.4 and PD 16 paragraphs 7.3 – 7.6. He ordered the Claimant in that case to file new particulars which they failed to do and so the court confirmed that the claim be struck out.

Background

4. It is admitted that at the time of the alleged infringement the Defendant was the registered keeper of vehicle registration mark ****** which is the subject of these proceedings. The vehicle was insured with two named drivers permitted to use it.

5. The Claimant has provided no evidence, photographic or otherwise that the vehicle is indeed parked and not waiting, loading/unloading, dropping off or picking up a passenger or giving way to pedestrians or vehicles.

5.1. None of these constitute 'parking' under the definition explained in detail In the case of Jopson v Homeguard [2016] B9GF0A9E, heard on Appeal in Oxford Court on 2016, by Circuit Judge HHJ Charles Harris QC and therefore a persuasive finding as well as being on all fours with this case.

5.2. It was held that: “it is possible to draw a real and sensible distinction between pausing for a few moments or minutes to enable passengers to alight or for awkward items to be unloaded, and parking in the sense of leaving a car for some significant duration of time” and ''I am quite satisfied, and I find as a fact, that while the appellant’s car had been stationary for more than a minute and without its driver for the same period (whatever precisely it was), while she carried in her desk, it was not “parked”. Accordingly, for that reason too, the appellant was not liable to the charge stipulated in the respondent’s notice.’'

6. There is no evidence that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.

6.1. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the keeper in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA")

6.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:

6.2.1. There was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and

6.2.2. That it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
It is not admitted that the Claimant has complied with the relevant statutory requirements.

6.3. To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.


7. The defendant wrote to the claimant on ******* after being advised on the phone to email, asking for information and clarification on the particulars.
The claimant has not responded with any information.
As Gladstones are a firm of solicitors who’s Directors also run the IPC Trade Body and deal with private parking issues every single day of the week there can be no excuse for these omissions.

The Defendant asks that the court orders Further and Better Particulars of Claim and asks leave to amend the Defence.


8. Euro Parking Services Limited are not the lawful occupier of the land. I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no rights to bring action regarding this claim.

8.1. The Claimant is not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract.

8.2. The claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question

8.3 The Claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge

9. The Claimant has at no time provided an explanation how the judgement has been calculated, the conduct that gave rise to it or how the amount has resulted in a total of £250.81 . This appears to be an added cost with apparently no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.

9.1. The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.

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

9.2.1. The Defendant denies that the driver would have agreed to pay the original demand of £100 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.

Unfairness - no regard for the Trader's duty for 'Fair Dealing' and Misleading Trading Practices

10. Trade Body Codes of Practice are 'effectively binding' according to the Supreme Court in the Beavis case.

10.1. 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.

10.2. 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”.

10.3. 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.”

10.4. 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.

10.5. 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.

10.5.1. 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

11. 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.

11.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, woefully inadequate.

11.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;

11.1.2. The signage did not comply with the requirements of the Code of Practice of the British Parking Association ("BPA") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and

11.1.3. 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

11.2. Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

"7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

7.3 The written authorisation must also set out:
(a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined
(b) any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation
(c) any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement
(d) who has the responsibility for putting up and maintaining signs
(e) the definition of the services provided by each party to the agreement"

Wholly unreasonable and vexatious claim

12. It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, the Defendant is keeping careful note of all wasted time/costs in dealing with this matter and should the case continue to trial (or in the event of the Claimant filing a Notice of Discontinuance) the Defendant will seek further costs, pursuant to Civil Procedure Rule 27.14(2)(g).

13. The Defendant respectfully suggests that parking companies using the small claims track as a form of aggressive, automated monetary demands against motorists, alleging 'debts' for parking on free customer parking areas is not something the Courts should be seen to support.

14. The Court is invited to take Judicial Notice of the fact that the Claimant's solicitors, Gladstones, is engaged in a course of conduct which involves issuing tens of thousands of totally meritless Claims, which are routinely dismissed by District Judges sitting in this Court, and other County Court hearing centres in all parts of England & Wales. The Court is therefore invited to refer the matter to the Designated Civil Judge, for consideration of the issuing an Extended Civil Restraint Order against the Claimant, pursuant to CPR Practice Direction 3.1(3).

15. The Defendant denies the claim in its entirety, voiding any liability to the Claimant for all amounts due to the aforementioned reasons. The Defendant asks that the court gives consideration to exercise its discretion to order the case to be struck out under CPR Rule 3.4, for want of a detailed cause of action and/or for the claim having no realistic prospects of success.

16. If the court is not minded to make such an order, then when Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because it is expected that the Claimant will use its witness statement to provide the sort of detail which should have been disclosed much earlier, and the Defendant should have the opportunity to consider it, prior to serving evidence and witness statements in support of this defence.


Statement of Truth:
I believe that the facts stated in this Defence Statement are true.
Full name: XXX XXX

Dated 14/01/18

Signed: __________________________________