MCOL-Gladstones-PCM

Coupon thanks for your direction early hours of this morning

Can anyone please comment on my defence?
I believe I'm on day 32 (date of issue was 14th August) I'm guessing that bank holidays and weekends make no difference? So I'd like to email today and give the county court business centre a call.
Once I get the ok, I will sign date and pdf.
PS - glad I took some pictures of the signs a few weeks back, they seem to have changed with £100 in big bold lettering!

Statement of Defence

In the County Court Business Centre
Claim Number: ___

Between:

Parking Control Management v ___

DEFENCE


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.

1.1 The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking for a true cause of action. HMCS have identified thousands of similar poorly pleaded claims.

1.2 The Defendant believes the term for such conduct is ‘robo-claims’ which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. I have reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to my significant detriment as an unrepresented Defendant.

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.


Background

3. It is admitted that the Defendant was the registered owner of the vehicle in question.

4. It is denied that any "parking charges or indemnity costs" (whatever they might be) as stated on the Particulars of claim are owed and any debt is denied in its entirety.

5. It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking 'parking management'. The Claimant has provided no proof of any such entitlement.

6. It is denied that there was any relevant obligation upon the Defendant that can have been breached. The Defendant did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.
7. On the material date, the Defendant’s vehicle had stopped near a bin shed in the estate, which contains waste and recycling bins, to unload rubbish and items for recycling. The car stopped for some minutes whilst items were unloaded.
(i) The Car Park is not controlled by Automatic Number Plate Recognition.
(ii) The Claimant’s parking attendant took a picture of the Defendant’s vehicle from an access road, rather than attach a parking invoice on the windscreen.
(iii) The Defendant believes the Claimant’s parking attendant did this, knowing that the driver was in or around the bin shed.
(vi) The area on the estate that the vehicle stopped is the same place that the;
a) Local council refuse vehicles stop to collect weekly waste and recycling.
b) Delivery drivers stop their vehicles to deliver parcels to properties on the estate.

Authority to Park and Primacy of Contract
8. The Defendant’s lease imposes no loading /unloading conditions although a permit for parking is displayed purely for the convenience of the Claimant's parking attendant.

9. No parking has taken place therefore no Parking charge can be issued.

(i) The Road Traffic Regulation Act 1984 and The Highway Code distinguishes "parking","waiting", "loading or unloading" and "setting down or picking up passengers", each as a separate activity. "Loading and unloading" or "setting down or picking up passengers" are clearly different from parking or waiting.

(ii) Loading or unloading with the permission of the landholder is not 'parking' and signs cannot override existing rights enjoyed by landowners and their visitors, as was found in the Appeal case decided by His Honour, Judge Harris QC at Oxford County Court, in a similar case, number B9GF0A9E: 'JOPSON V HOME GUARD SERVICES’.

(iii) In the Jopson appeal it was also held as a finding of fact, that stopping to unload was not 'parking'.

(vi) In the Jopson appeal it was also held that signs added later by a third party parking firm are of no consequence to authorised visitors to premises where other rights prevail and supersede any alleged new 'parking contract’.

(v) In any event, the signs make no offer to authorised visitors engaged in permitted loading/unloading for which no 'parking permit' was ever required (neither before the arrival of this Claimant onsite, nor after).

(vi) In the Jopson appeal in June 2016, the Senior Circuit Judge found that the position was analogous to the right to unload which was the subject of Bulstrode v Lambert [1953] 2 All ER 728.
''After considering the facts at the time of the grant, Mr Justice Upjohn ruled that an ancillary right to stop, load and unload may be implied into the express grant of a right of way where such a right is necessary for the reasonable enjoyment of the right of way.'' The right of way in that case was: “To pass and re-pass with or without vehicles…for the purposes of obtaining access to the building…known as the auction mart.''
10. If it can be proven that "parking" has occurred The Claimant did not comply with the IPC code of practice (Part B 15.1), regarding grace periods: “Drivers should be allowed a sufficient amount of time to park and read any signs so they may make an informed decision as to whether or not to remain on the site.” 10 mins is generally accepted to be the minimum amount of time to read and understand a contract and make a decision to park or not to park.

11. Signage. - The Claimant’s signs do not mention anything regarding "loading" or "unloading" so it is impossible for any contract to be established. The Claimant’s signs only mention "parking" and at no time was the Defendants vehicle "parked" otherwise than in accordance with (Photograph evidence of sign boards will be provided if this should go to trial).



12. The presence of the Claimant on the land will have supposedly been to prevent parking by uninvited persons, for the benefit of the actual leaseholders. Instead, a predatory operation has been carried out on those very people whose interests the Claimant was purportedly there to uphold.

13. It is denied that the Claimant has authority to bring this claim. The proper Claimant is the landowner. Strict proof is required that there is a chain of contracts leading from the landowner to Parking Control Management and that they have a right to unilaterally remove or interfere with the overriding rights enjoyed by the lessee who is expressly allowed on site. The claimant is unable to re-offer a contract on more onerous terms than those already specified in the lease, which grants an easement/ right for the leaseholder “at all times to use the common parts and the Estate common parts for all purposes incidental to the occupation and enjoyment of the premises.”

14. If there was a contract, it is denied that the penalty charge is incorporated into the contract. The leaseholders' lease is missing any reference to parking permit requirements and involvement of Parking Control Management. And there is no evidence that the original lease contract and any potentially revised lease contract with specific details of Parking Control Management’s role and involvement was shared with the Defendant.

15. Alternatively, even if there was a contract, the provision requiring payment of £160 is an unenforceable penalty clause.


(i) Further and alternatively, the provision requiring payment of £160 is unenforceable as an unfair term contrary to Regulation 5 of The Unfair Terms in Consumer Contracts Regulations 1999 the Consumer Rights Act 2015.

(ii) The Claimant has at no time provided an explanation how the sum has been calculated, the conduct that gave rise to it or how the amount has climbed from £100 to £160. This appears to be an added cost with apparently no qualification and an attempt at double recovery, which the Protection of Freedoms Act 2012 Schedule 4 specifically disallows.

(iii) Furthermore, Paragraph 4, Schedule 4 of the Protection of Freedoms Act 2012 does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. The Claimant claims a sum of £100 as a ‘parking charge’ (for which liability is denied). The Particulars of Claim include an extra £60 that the claimant has untruthfully presented as parking charges plus interest.


16. Parking Control Management are not the lawful occupier of the land.

(i) absent a contract with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, the Defendant has 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 locus stand to bring this case.


17. The provision is a penalty and not a genuine pre-estimate of loss for the following reasons:

(A) As the Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the locations in question
(B) The amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unacceptable;
(C) The penalty bears no relation to the circumstances as the Defendant’s car was simply stopped for temporary loading/unloading and no loss or damage to the Claimant arose from this.
(D) The clause is specifically expressed to be a parking charge on the Claimant's current signs.

Wholly unreasonable and vexatious claim

18) 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).

19) The Defendant respectfully suggests that parking companies using the small claims track as a form of aggressive, automated monetary demands against residents, alleging 'debts' for parking at their own homes is not something the Courts should be seen to support.

20) 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).

21) 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.

22) 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.


I confirm that the above facts and statements are true to the best of my knowledge and recollection.


Signed

Date