Defence for court action

Hi,

We received a Claim Form letter from Country Court about a claim from HX Car Park Management which is being dealt with Gladstones Solicitors.

This is for an alleged parking infringement on private land. Either alleging that we didn't pay for the ~3 hours we were parked , or that we didn't get a ticket in the allotted time.

Fortunately, we still have the payment ticket with the car registration number, and the expiry time which almost covers the time stated.

What it doesn't cover is about the 12-13 mins from the point we entered the car park (looking for parking space, getting change etc).

However, I'm unsure what the claim is about. They mention in vague terms about exceeding the grace period in which to purchase the ticket, but the incident time is identified much later.

We've written to them once before, stating that we have a parking ticket, provided photo copies, and told them they are free to inspect the original at our premises. In hindsight, I should have sent this via recorded mail as we did not receive a response.

Sadly, as a new user I can't post links to the signage, but its inadequate, and at the time of the alleged offence it would be under the cover of darkness as well.

Thanks to this Pepipoo and this forum, i've managed to construct a Defence using another similar Defence as a template.

This is the first draft:

I am XXX, Defendant in this matter and I assert that the Claimant has no cause for action for the following reasons:

1.It is admitted that the Defendant was the authorised registered keeper of the vehicle in question at the time of the alleged incident.

2. It is believed that it will be a matter of common ground that claim relates to a purported debt as the result of the issue of a Parking Charge Notice (PCN) in relation to an alleged breach of the terms and conditions by the driver of the vehicle XXXX XXX when it was parked at XXXXXXXXXX. The PCN stated the contravention as !!!8220;Failed to purchase a pay and display ticket within the grace period allowed!!!8221; and "liability for the same having been brought to the attention of the driver at the time of parking by clear signage in and around the site"

3. Further based upon the scant and deficient details contained in the Particulars of Claim and correspondence, it appears to be the Claimant's case that:

a. There was a contract formed by the Defendant and the Claimant on XX/XX/2017.

b. There was an agreement to pay a sum or parking charge within a specified time.

c. That there were Terms and Conditions prominently displayed around the site.

d. That in addition to the parking charge there was an agreement to pay additional and unspecified additional sums.

e. The Claimant company fully complied with their obligations within the International Parking Community Code of Practice of which they were member at the time.



4. It is denied that:

a. A contract was formed

b. There was an agreement to pay a parking charge.

c. That there were Terms and Conditions prominently displayed around the site.

d. That in addition to the parking charge there was an agreement to pay additional and unspecified additional sums.

e. The claimant company fully complied with their obligations within the International Parking Community Code of Practice of which they were member at the time.

5. It is further denied that the Defendant is liable for the purported debt.


Rebuttal of Claim

6. The Defendant made all reasonable efforts to make payment for parking by using an approved payment channel.

a. Payment for parking was made via payment machine and a ticket was issued and displayed in car windscreen. The ticket (reference no: xxxxxx) expiry was xx/xx/2017 at 06:00 hours

b. The ticket covered the incident time of xx:xx mentioned in the following correspond from HX CAR PARK MANAGEMENT dated: xx/xx/2017, xx/xx/2018.

c. The parking charge details in the letter dated xx/xx/2017 refers to the whole parking duration of xxx minutes. No reference is made to the disputed time interval.

d. The Claimant has deliberately obfuscated the incident time in the correspondence.

e. In Jolley v Carmel Ltd [2000] 2 !!!8211;EGLR -154, it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach when unable to fully comply with the terms.

f. An inadequate grace period has been given as required by the BPA Code of Practice which states a grace period of greater than 10 minutes must be offered (10 minutes to exit the car park and an unspecified period to study, accept the terms and make payment). The Claimant is operating in breach of Code of Practice.



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

8. The Defendant denies that they 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.

a. The amount demanded is excessive and unconscionable and especially so when compared to the level of Penalty Charge Notice issued by the local Council which is set at £50 or £25 if paid within 14 days.

9. The signage on this site was inadequate to form a contract with the motorist.

a. The signage on and around the site in question was unclear and not prominent and did not meet the British Parking Association (BPA) Code of Practice or the International Parking Community (IPC) Code of Practice. The Claimant was a member of the IPC at the time and committed to follow its requirements. Therefore no contract has been formed with driver to pay the amount demanded by the Claimant, or any additional fee charged if unpaid in 28 days.

b. The size of font of the prices advised for parking is much larger than the font of the contract and the offer is not sufficiently brought to the attention of the motorist, nor are the onerous terms (the £100 parking charge and grace period) sufficiently prominent to satisfy Lord Dennings "red hand rule!!!8221;.

c. In the absence of !!!8216;adequate notice!!!8217; of the terms and the charge (which must be in large prominent letters such as the brief, clear and multiple signs in the Beavis case) this fails to meet the requirements of Schedule 4 of the POFA.

e. The ticket was displayed clearly in the car and therefore there was no breach of any !!!8216;relevant obligation!!!8217; or !!!8216;relevant contract!!!8217; as required under Schedule 4 of POFA.

f. The signage in good light is inadequate, not at eye level, and with a small typeface font used. At the time of the alledged offence, it would be night, and all the points mentioned do not meet the standards laid out by British Parking Association (BPA) Code of Practice or the International Parking Community (IPC) Code of Practice.

g. Where contract terms have different meanings, then Section 69 of the CRA 2015 provides a statutory form of the contra proferentem rule, such that the consumer must be given the benefit of the doubt.

The term is fundamental to the contract, and the Defendant invites the Court to find that it is not transparent and therefore unfair. If a fundamental term to the contract is deemed to be unfair, then the contract will cease to bind the parties. The Defence invites the Court to take these issues into account in determining the fairness of the term.


10. The Claimant!!!8217;s representatives, Gladstones, have artificially inflated the value of the Claim from £xx to £xx. The Defendant submits the added costs have not actually been incurred by the Claimant; that these are figures plucked out of thin air and applied regardless of facts.

a. If the !!!8220;parking charge!!!8221; listed in the particulars of claim is to be considered a written agreement between Defendant and Claimant then under 7.3, the particulars fail to include !!!8220;a copy of the contract or documents constituting the agreement!!!8221;.

b. 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 £xx to £xx. This appears to be an added cost with no apparently no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.

b. 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.



Non-disclosure of reasonable grounds or particulars for bringing a claim:

11. HX Car Park Management are not the lawful occupier of the land. The Defendant has 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.

a. 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.

b. The Claimant is not the landowner and suffers no loss whatsoever as a result of a

vehicle parking at the location in question

c. 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

d. The Particulars of Claim are deficient in establishing whether the claim is brought in trespass. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landowner can pursue a case under the tort of trespass not this Claimant, and as the Supreme Court in the Beavis vs ParkingEye (2015) [2015] UKSC 67 case confirmed, such a matter would be limited to the landowner themselves claiming for a nominal sum.


12. The Particulars of Claim fail to fulfil CPR Part 16.4 because it does not include a statement of the facts on which the claimant relies, only referring to a Parking Charge Notice with no further description; it fails to establish a cause of action which would enable the Defendant to prepare a specific defence:

!!!8216;The driver of the vehicle registration XXXXXXX (the 'Vehicle') incurred the parking charge(s) on XX/11/2017 for breaching the terms of parking at the land at XXXXXXXXXX

The Defendant was driving the Vehicle and/or is the Keeper of the Vehicle.

AND THE CLAIMANT CLAIMS

£160 for Parking Charges / Damages and indemnity costs is applicable, together with interest of £5.16 pursuant to s69 of the County Courts Act 1984 at 8% pa, continuing to Judgement at £0.04 per day.!!!8217;


13. The claimant has not provided enough details in the particulars of claim to file a full defence. In particular, the full details of the contract which it is alleged was broken have not been provided.

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

b) The Claimant has stated that a parking charge was incurred.

c) 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.

d) 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 !!!8220;parking charges!!!8221; 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.


14. The Defendant invites the court to strike out or dismiss the claim under Rule 3.4(2)(a) of PRACTICE DIRECTION 3A as having not set out a concise statement of the nature of the claim or disclosed reasonable grounds or particulars for bringing a claim (Part 16.4(1)(a) and PRACTICE DIRECTION 16 paragraphs 3.1-3.8). In C3GF84Y (Mason, Plymouth County Court), the judge struck out the claim brought by KBT Cornwall Ltd as Gladstones Solicitors had not submitted proper Particulars of Claim, and similar reasons were cited by District Judge Cross of St Albans County Court on 20/09/16 where another relevant poorly pleaded private parking charge claim by Gladstones was struck out without a hearing due to their !!!8216;roboclaim!!!8217; particulars being incoherent, failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''. The Practice Direction also sets out the following example which is analogous to this claim: !!!8216;those which set out no facts indicating what the claim is about, for example !!!8216;Money owed £5000!!!8217;.!!!8217;

15. The Defendant researched the matter online, and discovered that the Claimant is a member of the Independent Parking Committee (IPC), an organisation operated by Gladstones Solicitors. They also operate the Independent Appeals Service (IAS), the allegedly independent body appointed by the Claimant!!!8217;s trade body, the IPC. This research revealed that the IAS, far from being independent, is a subsidiary of the IPC, which in turn is owned and run by the same two Directors who also run Gladstones Solicitors. The individuals in question are John Davies, and William Hurley. These findings indicate a conflict of interest. Such an incestuous relationship is incapable of providing any fair means for motorists to challenge parking charges, as well as potentially breaching the Solicitors Regulation Authority Code of Conduct.

16. The Claimant!!!8217;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. Her Majesty's Courts and Tribunals Service have identified over one thousand similar poorly produced claims and the solicitors conduct in many of these cases is believed to be currently the subject of an active investigation by the Solicitors Regulation Authority.

17. The Defendant believes the terms for such conduct is !!!8216;robo claims!!!8217; which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. The Defendant has reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to their significant detriment as an unrepresented Defendant.

18. The Defendant respectfully suggests that parking companies using the small claims track as a form of aggressive, automated debt collection is not something the Courts should be seen to support.

19. The Defendant denies the claim in its entirety voiding any liability to the claimant for all amounts due to the aforementioned reasons. It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious.

20. The Defendant invites the court to dismiss this claim out as it is in breach of pre court protocols in relation to the particulars of claim under Practice Direction 16, set out by the Ministry of Justice and also Civil Procedure Rules (CPR) under 16.4 and to allow such Defendant!!!8217;s costs as are permissible under Civil Procedure Rule 27.14.

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