Draft Defence -Help please with Gladestones claim

Thank you very much to everyone that helps those of us with less knowledge of the law. A have posted a brief summary of what happened and My defence is drafted below. I would be grateful for your comments before I send this off next week.

A brief summary :
Incident December 2016-it is said that my vehicle exceeded the maximum stay period in a parking lot. This is somewhere I have been before and subsequently so rather suprised by this.
PCNs: Not certain of exactly when or if these were sent. I have subsequently received copies (last month) and apparently the initial letter issued January 2017 ( I have a bereavement during this time and still dealing with this so only doing the absolute necessary).
Letter before claim - October - £160
October 2017 -Sent a reply about the new pre-action protocol (as in Daniel san's thread from October 2017 - link on newbie thread, post 2, regarding new PAP)
November 2017 -Received a paper version of the PAP - sent another copy of my letter requesting the details of the claim.
December 2017 -Received an email, the email had photos of the car I assume entering and leaving the parking lot. Also attached the PCN and reminder stating the reasons for the PCN.
There was also a FAQ sheet which said that if I wanted a copy of the contract I can visit the land and see it. It said I have 30 days to pay which would have been January 9th.
Can you provide a copy of the contract?
The contract (i.e. the signs) are on display on the relevant land. You can visit the land to view the contract again. Copies will not be provided prior to our clients witness statements.
January 2017-my response stating that there was no evidence of contractual breach and again requesting details of the contract.
January 8th- claim issued, a day before the 30 days which means they were probably going to issue it anyway.
I have acknowledged the claim online as per the advice.
When email was received I went back and checked the signage and took photos of one of them. It allows free parking for 3 hours.
The PCN is saying my car overstayed at 2 hours 40 minutes so I am confused. I suppose they may have changed the signs but I requested details of signs and I wasn't sent them so as far as i'm concerned there is no breech.


DRAFT DEFENCE

IN THE COUNTY COURT
CLAIM NO. XXXXX
BETWEEN:
PARKING CONTROL MANAGEMENT (UK) LIMITED Claimant
AND
XXXXX Defendant

DEFENCE

Introduction

1. I am XXXX, the defendant in this matter. My address for service is XXXXX

2. This is my statement of truth and my defence.

3. For the avoidance of doubt on the relevant date I was the keeper of vehicle registered number XXXXX. I can neither confirm nor deny who was driving on the day as it is some time since the event.

4. It is believed that it will be a matter of common ground that the purported debt arose as the result of the issue of a parking charge notice in relation to an alleged breach of the terms and conditions by the driver of the above vehicle when it was parked at …………...on 29/12/2016.

Purported Basis of Claim

5. Further, based upon the scant and deficient details contained in the correspondence from the solicitor at request, it appears to be the claimant's case that:
a. There was a contract formed by the defendant and the claimant on 29/12/2016.
b. There was an agreement to park on the land for a set period of time.
c. That there were Terms and Conditions clearly and prominently displayed around the site and the defendant would need to visit the site to confirm the contents of these terms and conditions.
d. That there is clear and prominent signage on entry to the ………….outlining the terms and conditions and the defendant would need to visit the site to view these.
e. That in addition to the Parking charge there was an agreement to pay additional and unspecified additional sums.
f. The claimant company fully complied with their obligations within the terms of Schedule 4 of the Protection of Freedoms Act 2012.
g. The claimant company fully complied with their obligations within the International Parking Community Code of Practice of which they were member at the time.
h. That the claimant and/or representatives (Gladstones Solicitors Limited) have responded to all reasonable requests for support information as part of this claim and alleged offence.
i. Further that the defendant has not paid the alleged debt.


Rebuttal of Claim
6. It is denied that:
a. A contract was formed.
b. A contract was breached.
c. The claimant company fully complied with their obligations within the terms of
Schedule 4 of the Protection of Freedoms Act 2012.
d. The claimant company fully complied with their obligations within the International
Parking Community Code of Practice of which they were member at the time.
e. That the claimant and/or representatives (Gladstones Solicitors Limited) have
responded to all reasonable requests for support information as part of this claim and
alleged offence in accordance with the Pre-Action Protocol for Debt Claims (2017)
f. That I am liable for the purported debt.
g. It is further denied that I owe any debt to the claimant or that any debt is in fact owed or that any debt exists or could ever exist or has ever existed. That in any event the claimant has failed to comply with the requirements of the Civil Procedure Rules and that their claim is both unfounded and vexatious.
h. The claimant is put to the strictest proof of their assertions.

My Defence

I deny I am liable to the Claimant for the entirety of the claim on the following grounds, any of which are fatal to the Claimant’s case:

6. Failure to comply with PD for Pre-Action Conduct. Namely, they did not provide all on the information to my request for clarification of the claim details on October 24th 2017 and again on November 20th 2017 as follows:

“I require your client to comply with its obligations by sending me the following information/documents:

1. an explanation of the cause of action
2. whether they are pursuing me as driver or keeper
3. whether they are relying on the provisions of Schedule 4 of POFA 2012
4. what the details of the claim are; where it is claimed the vehicle was parked, for how long, evidence of such, how the monies being claimed arose and have been calculated
5. Is the claim for a contractual breach? If so, what is the date of the agreement? The names of the parties to it and provide to me a copy of that contract.
6. Is the claim for trespass? If so, provide details.
7. Provide me a copy of the contract with the landowner under which they assert authority to bring the claim, as required by the IPC code of practice section B, clause 1.1 “establishing yourself as the creditor”
8. a plan showing where any signs were displayed
9. details of the signs displayed (size of sign, size of font, height at which displayed)
10. Provide details of the original charge, and detail any interest and administrative or other charges added
11. Provide a copy of the Information Sheet and the Reply Form

If your client does not provide me with this information then I put you on notice that I will be relying on the cases of Webb Resolutions Ltd v Waller Needham & Green [2012] EWHC 3529 (Ch), Daejan Investments Limited v The Park West Club Limited (Part 20) – Buxton Associates [2003] EWHC 2872, Charles Church Developments Ltd v Stent Foundations Limited & Peter Dann Limited [2007] EWHC 855 in asking the court to impose sanctions on your client and to order a stay of the proceedings, pursuant to paragraphs 13 ,15(b) and (c) and 16 of the Practice Direction, as referred to in paragraph 7.2 of the Protocol.

Until your client has complied with its obligations and provided this information, I am unable to respond properly to the alleged claim and to consider my position in relation to it, and it is entirely premature (and a waste of costs and court time) for your client to issue proceedings. Should your client do so, then I will seek an immediate stay pursuant to paragraph 15(b) of the Practice Direction and an order that this information is provided.”

I wrote to them a third time on January 5th 2018 as follows

“Dear Sirs,

I am in receipt of an email dated December 11th 2017 which contains 8 attachments some of poor quality and no description which I am unable to fully interpret.
Please contact me by post on the address above to avoid future emails being blocked by my server or going into spam. I note also that on this email you state that you do not accept service of documents by email.

I ask again that you please review my letter dated October 24th 2017 which lists the further information required from your client.
Your email contains insufficient detail of the claim in particular but not exhausting the following:

No evidence of a contract
No evidence of a contractual breach

1. Details of the signs displayed (Content, size of sign, size of font, height at which displayed)
2. A plan showing where any signs were displayed
3. The names of the parties to it and provide to me a copy of that contract.
4. Provide me a copy of the contract with the landowner under which they assert authority to bring the claim, as required by the IPC code of practice section B, clause 1.1 “establishing yourself as the creditor”

Until your client has complied with its obligations and provided this information, I am unable to respond properly to the alleged claim and to consider my position in relation to it, and it is entirely premature (and a waste of costs and court time) for your client to issue proceedings. Should your client do so, then I will seek an immediate stay pursuant to paragraph 15(b) of the Practice Direction and an order that this information is provided.


If your client does not provide me with this information then I put you on notice that I will be relying on the cases of Webb Resolutions Ltd v Waller Needham & Green [2012] EWHC 3529 (Ch), Daejan Investments Limited v The Park West Club Limited (Part 20) – Buxton Associates [2003] EWHC 2872, Charles Church Developments Ltd v Stent Foundations Limited & Peter Dann Limited [2007] EWHC 855 in asking the court to impose sanctions on your client and to order a stay of the proceedings, pursuant to paragraphs 13 ,15(b) and (c) and 16 of the Practice Direction, as referred to in paragraph 7.2 of the Protocol.

Until your client has complied with its obligations and provided this information, I am unable to respond properly to the alleged claim and to consider my position in relation to it, and it is entirely premature (and a waste of costs and court time) for your client to issue proceedings. Should your client do so, then I will seek an immediate stay pursuant to paragraph 15(b) of the Practice Direction and an order that this information is provided.”


7. In replying by email they have accepted this request was made, but they did not provide all of the information requested.
Instead they sent an FAQ sheet asking the defendant to visit the site to view the contract and in doing so they have accepted that the signs in place are that have formed an alleged contract with the driver
The site was visited by the defendant as advised by the correspondence sent by the claimant's representative in order to consider my position
- Their signs are standard issue it seems with lots of small text. The 'bottom' of the signs are high, so it is impossible to read from inside a car.
- The prominent text on the sign shows that Parking is Permitted for 3 Hours Free and is accompanied by some details of charges for additional charges.

8. Having requested confirmation of a contract and evidence of breech (which was ignored in my three postal request), Gladstones have sent a parking charge notice to keeper stating a parking duration of 2 hours 49 minutes and therefore the claimants purported basis of claim has no standing.


The claimant would not provide evidence of contract and therefore as advised by the claimant representatives the defendant visited to the site to view the signs erected and could not find any breach of contract.
That the signs erected on site are incapable of forming the basis of a contract and indeed make it clear that that is not the case. It is therefore denied that any contract was formed or was capable of being formed.




9. In order to issue parking charges, and to pursue unpaid charges via litigation, the Claimant is required to have the written authority of the landowner, on whose behalf they are acting as an agent. Section B.1.1 of the IPC Code of Practice outlines to operators:
1.1 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.
The Claimant, and their legal representatives, have failed to supply the Defendant with evidence of such authority even upon the Defendant’s written request. The Claimant is put to strict proof of the same, in the form of an unreacted and contemporaneous contract, or chain of authority, from the landowner to the Claimant. A Managing Agent is not the Landowner.
The same is a requirement of any contract based on conduct.
a. If in the alternative it is the claimant's case that his claim is founded in trespass (which is in any event denied) then in a “free parking” setting, any damages in trespass can only be assessed based on a calculation of the proportion of income lost based on the time of the alleged occupation. Any sum sought could therefore not be established or at worst would be minimal and de-minimis.
b. That the original amount demanded through speculative invoicing is excessive and unconscionable.
c. Further, the Claimant and their legal representatives, Gladstones Solicitors, have artificially inflated the value of the Claim from £100 to £197.07. I submit the added costs have not actually been incurred by the Claimant; any additional charges were not stated on the parking signs and these figures have been plucked out of thin air and applied regardless of facts, as part of their robo-claim litigation model, in an attempt at double recovery, circumventing the Small Claims costs rules. Further, Gladstones Solicitor appear to be in contravention of the Solicitors’ Regulation Authority Code of Conduct.
d. In the alternative, the attention of the court is drawn to para. 4(5) Schedule 4 Protection of Freedoms Act 2012 which sets out that the maximum amount recoverable from the registered keeper, where the keeper liability provisions have been properly invoked (which is expressly denied in this case) is that amount specified in the Notice to Keeper (whether issued in accordance with paras 8(2)c; 8(2)d, 9(2)c or 9(2)d of the Act).
e. In view of all the foregoing The Court is invited to dismiss the Claim out of its own motion, and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14
f. The claimant is put to strict proof of the assertions they have made or may make in their fuller claim.


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