CCBC Form received for UKCPM/Gladstones

FTB_Peter · 26 August 2018 at 3:19PM

After the recommended tweaks my defence now looks like this. I fully appreciate your help on this, without it I would have just panicked and paid the £265 as soon as the Claim Form hit the doormat....

In the County Court Business Centre
Claim Number: xxxxxxxx

Between:

UK Car Park Management Ltd (Claimant)

v

xxxxxx (Defendant)

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 has stated that a ‘parking charge’ was incurred.

1.2. 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.

1.3. 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 “parking charges” 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.

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 fully engage in pre-action correspondence in accordance with the pre-action protocol and with the express aim of avoiding contested litigation.

Background

3) It is admitted that at all material times the Defendant was the registered keeper of the vehicle which is the subject of these proceedings.

4) It is admitted that on the material date, the Defendant's vehicle was parked at the location stated. This followed verbal consent from a member of staff at xxxx xxxxx Centre given that ‘as it was out of hours on a Saturday afternoon’ the Defendant ‘should be ok as you have privately hired the soft play centre’.

5) This charge represents a breach of the well-known and well-established principle of promissory estoppel, i.e. that a promise is enforceable by law, even if made without formal consideration, when party A has made a promise to party B, who then relies on that promise to his subsequent detriment.

6) The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver.

6.1. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 (the 'POFA').

6.2. Before seeking to rely on the keeper liability provisions of Schedule 4 of the POFA, a private parking operator must demonstrate that:

6.2.1. there was a 'relevant obligation' and/or 'relevant contract' formed with the driver, and

6.2.2. there was 'adequate notice' of the terms and the parking charge itself, on prominent signs in large lettering displayed clearly at the place where the car was parked, and at the entrance, and

6.2.3. 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) It is denied that any "parking charges, damages or indemnity costs" (whatever they might be) as stated on the Particulars of Claim are owed. The alleged debt is denied in its entirety.

8) 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 putting up parking signs and issuing letters on behalf of the true landowner. The Claimant is put to strict proof.

8.1. It is not admitted that the Claimant has contractual or other lawful authority to make contracts, specifically by offering parking to non-permit holders at this location, and/or to bring proceedings against the Defendant. The Claimant is put to strict proof.

Failure to set out clear parking terms

9) The Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to consider the imposition of 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.

10) The Defendant avers that the parking signage in this matter was inadequate and no consideration flowed between the driver and the Claimant.

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

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

10.1.3. The signage contained particularly onerous terms not sufficiently drawn to the attention of the driver, as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3

10.2. In this case neither the Claimant, nor their principal, the landowner, is offering anything to motorists who do not have a permit. The Defendant avers that the sign - in fact, not seen by the driver due to outside line of sight placement and lack of signage on the entrance - creates a prohibition against parking without a permit. The notices cannot, therefore, reasonably be construed as having created a contractual relationship between the Claimant and the Driver.

10.3. Even if the Court finds that a non-permit holder should have seen a sign and was a trespasser, this is a matter of tort whereby (as confirmed in the Beavis case and also by the 2012 Guidance Notes relating to Section 56/Schedule 4 of the POFA) only the landowner themselves would be potentially able to pursue damages. In Beavis, this was because ParkingEye Ltd were not in possession and thus unable to pursue damages, one of the same difficulties this Claimant faces, yet they lack the 'legitimate interest/commercial justification’ reasoning that disengaged the penalty rule for ParkingEye, given the unusual and case-specific facts in the Beavis case.

11) This operation at this location is predatory, with minimal/misplaced signage designed not to be seen from inside a vehicle once parked, in order to penalise unsuspecting drivers rather than offer a clear contract to park at a price. The charge is unconscionable and unfair in this context, with ParkingEye v Beavis fully distinguished.

12) The concept of the fairness of a contract must be considered in every case (Consumer Rights Act 2015). and was considered by District Judge Iyer in Pace Recovery v Lengyel, case C7GF6E3R, on 24 May 2017. The Judge held that 'the concept of fairness requires the parking firm to comply with the requirements of the relevant code of practice' which the parking operator had not; the same difficulty this Claimant faces.

13) It is denied that the Claimant has any entitlement to the sums sought and it is denied that interest is applicable on the total sums claimed by the Claimant, which bear no relation to the maximum sum potentially able to be recovered from a registered keeper, as set out in the POFA, namely the sum stated in the Notice to Keeper.

14) 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.

15) 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).

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.

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

Signed...........................

Date.....................

Coupon-mad · 26 August 2018 at 4:03PM

Maybe change the final 4 points to:

13. The Claimant, or their legal representatives, has added an additional sum of £60 to the original £100 parking charge, for which no explanation or justification has been provided. Schedule 4 of the Protection Of Freedoms Act, at 4(5), states that the maximum sum which can be recovered is that specified in the Notice to Keeper, which is £100 in this instance. It is submitted that this is an attempt at double recovery by the Claimant, which the Court should not uphold, even in the event that Judgment for Claimant is awarded.

14. It is denied that the Claimant has any entitlement to the sums sought. Given that the claim is based on an alleged contractual parking charge of £100 - already significantly inflated and mostly representing profit, as was found in Beavis - but the amount claimed on the claim form is inexplicably £xxx.xx, the Defendant avers that this inflation of the considered amount is a gross abuse of process.

15. For all or any of the reasons stated above, the Court is invited to dismiss the Claim in its entirety, and to award the Defendant such costs as are allowable on the small claims track, pursuant to Civil Procedure Rule 27.14.

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 been afforded the opportunity to consider it.

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

………………………………………………………. (Defendant)

……………………… (Date)

FTB_Peter · 26 August 2018 at 4:15PM

I’ll amend the last few points the evening. I’ll have to pop into work tomorrow to print, sign and rescan ready to email in.

Do you know what the deadline is for defence submissions? The claim was issued on 13/08 with AoS received on 20/08.

Coupon-mad · 26 August 2018 at 4:20PM

Max 33 days from 13th August. Do not push it that far.

KeithP · 26 August 2018 at 4:50PM

FTB_Peter wrote: »

Do you know what the deadline is for defence submissions? The claim was issued on 13/08 with AoS received on 20/08.

With a Claim Form Issue Date of 13th August and the AoS done in a timely manner, you have until 4pm on Monday 17th September 2018 to file your Defence.

When you are ready to file your Defence, it should be filed via email as described here:

1) Print the Defence.
2) Sign it and date it.
3) Scan the signed document back in and save it as a pdf.
4) Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
5) Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
6) Log into MCOL after a few days to see if the Claim is marked "defended". If not, you should chase the CCBC until it is.
7) Wait for the Directions Questionnaire and come back here.

FTB_Peter · 26 August 2018 at 10:05PM

Defence emailed in with automatic acknowledgement received. Now I can go on holiday and wait for the DQ to arrive.

Thank you for everyone’s help so far!

Coupon-mad · 26 August 2018 at 11:54PM

Great as long as it isn't the acknowledgement from the CCBC email account rather than the CCBC AQ one, that says it's the wrong email and the defence hasn't been filed...?

I am sure you got it right as KeithP gave you the right email addy, but just checking!

System · 27 August 2018 at 6:39AM

Defence emailed in with automatic acknowledgement received.

You should log in after Tuesday and check that the MCOL list has been updated by the staff. Sometimes the emails get lost so it's just an additional check to avoid (court) human error.

FTB_Peter · 4 September 2018 at 8:29PM

Progress update after the hols -

Defence acknowledged on MCOL.

SAR to Gladstones has been responded to with a request for further proof of identification as I am no longer the registered keeper of the vehicle in question and we have since moved home also.

However, SAR to UKCPM has been responded to with a full pack of documents and photos.

These photos show 2 signs high up in plain view on the side walls, with 3 more sited lower down on the back wall so if you were to reverse into the spaces your vehicle would then block them. I have since been back and took photos showing there are no signs on either side of the access road to this small ‘private’ car park.

I am still relying heavily on the member of staff from the soft play centre stating we would be ok to park outside “as it is out of hours and we have privately hired the venue”.

FTB_Peter · 14 September 2018 at 8:03AM

It’s all gone very quiet. Should I be doing anything at this point?

CCBC Form received for UKCPM/Gladstones

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