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County court defence -Gladstones
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DomG20
Posts: 20 Forumite
Hi all
After months of browsing the site and following the in depth and fantastic advice from the forum users here I have finally signed up to an account.
In October 2017 I parked in a small car park near to my work place. I parked here for over a week and never received any PCN ticket on my car or any other notices. Around a week later I was surprised to see 2 separate letters at my house advising I had incurred 'fines'. These letters were sent by the firm 'PARKING CONTROL MANAGEMENT' or PCM.
I returned to the car park to find hidden on only one wall 2 signs advising that PCM managed these premises.
After lots of reading I replied to PCM with the first stage defence from the stickies on this forum. As the stickies advised this was quickly thrown to one side with all the detail requested left unanswered.
Since then I have been reading and drafting a defence just in case this day came. I have now received the claim form from the county court business centre in Northamptonshire. I have acknowledged the claim and requested the 28 day response times online.
Below is my proposed defence of the claim which I have found within a successful defence thread on this forum. Prior to my submission I would greatly appreciate it if the wise and knowledgable people of this forum could provide guidance to me and coach me through this defence to a hopeful victory.
Thank you all in advance.
Defence
1. It is acknowledged that the defendant, xxx is the registered keeper of the vehicle.
2. 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 it's entirety. The date of the alleged incident is XX/XX/2017 as per the particulars of claim which is over a year ago.
It is perplexing that the Claimant waited until now to bring proceedings.
3. The Protection of Freedoms Act 2012 (PoFA 2012) which came into force in October 2012 is the only legislation currently available allowing a private parking firm to hold a registered keeper liable. From the limited information provided by the particulars of claim, it can be seen the date of the alleged incident is XX/XX/2017. This being the case, the claimant cannot surely hold the registered keeper liable, only the driver, of which no evidence has been produced.
PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, "There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and operators should never suggest anything of the sort" (POPLA report 2015).
4. The claim form itself is vague and lacks pertinent information as to the grounds for the claimant’s case. The particulars of claim fail to meet CPR16.4 and PD16 7.3-7.5 and merely provide a date, due date, and an "amount" consisting of a completely unsubstantiated and inflated three-figure sum, vaguely and incoherently adduced by the claimant's solicitors.
The claim also states "parking charges and indemnity costs if applicable" which gives no indication of on what basis the claim is brought, for example whether this charge is founded upon an allegation of trespass or 'breach of contract' or contractual 'unpaid fees'.
Because of this, it is necessary to cover all eventualities in defending such a 'cut & paste' claim which has caused significant distress and has denied a fair chance to defend this claim in an informed way.
Therefore, as an unrepresented litigant-in-person it is respectfully requestef that it be permitted to amend and or supplement this defence as may be required following a fuller disclosure of the Claimant's case.
5. I am yet to have knowledge of all documents provided to the court in support of the application, despite sending a request to the claimant to provide...... (as requested in initial appeal to PCM - to be added)
Accordingly, it is denied that the Claimant has authority to bring this claim. The proper Claimant (if any debt exists, which is denied) would be the landowner.
6. In the pre court stage the Claimant’s solicitor refused to provide me with the necessary information I requested in order to defend myself against the alleged debt.
They did not send me a Letter before Action that complied with the Practice direction on pre-action conduct. The Letter before Action can be seen to miss the following information
a) A clear summary of facts on which the claim is based.
b) A list of the relevant documents on which your client intends to rely.
c) How the “charge amount” of 125 pounds has been calculated and justified.
d) Any form of possible negotiation or ADR offered.
7. The alleged debt as described in the claim are unenforceable penalties, being just the sort of unconscionable charges exposed as offending against the penalty rule, in do I add a different case?
8. It is submitted that (apart from properly incurred court fees) any added legal fees/costs are simply numbers made up out of thin air, and are an attempt at double recovery by the Claimant, which would not be recoverable in the small claims court.
9. It is denied that there was any 'relevant obligation' or 'relevant contract' relating to any single parking event.
10. It is denied that the signs used by this claimant can have created a fair or transparent contract with a driver in any event. The signs were insufficient in terms of their distribution, wording and lighting hence incapable of binding the driver, which distinguishes this case from the Beavis case:
a) Sporadic and illegible (charge not prominent nor large lettering) site/entrance signage - breach of the BPA Code of Practice and no contract formed to pay any clearly stated sum.
b) The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.
c) The signage was not lit and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Unfair Terms in Consumer Contracts Regulations 1999.
d) No promise was made by the driver that could constitute consideration because there was no offer known nor accepted. No consideration flowed from the Claimant.
e) Absent the elements of a contract, there can be no breach of contract.
11. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons.
It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious.
As such, the defendant will note of my wasted time/costs in dealing with this matter.
12. I request the court strike out this claim for the reasons stated above, and for similar reasons cited by District
Statement of Truth: I believe that facts state within this Defence are true.
After months of browsing the site and following the in depth and fantastic advice from the forum users here I have finally signed up to an account.
In October 2017 I parked in a small car park near to my work place. I parked here for over a week and never received any PCN ticket on my car or any other notices. Around a week later I was surprised to see 2 separate letters at my house advising I had incurred 'fines'. These letters were sent by the firm 'PARKING CONTROL MANAGEMENT' or PCM.
I returned to the car park to find hidden on only one wall 2 signs advising that PCM managed these premises.
After lots of reading I replied to PCM with the first stage defence from the stickies on this forum. As the stickies advised this was quickly thrown to one side with all the detail requested left unanswered.
Since then I have been reading and drafting a defence just in case this day came. I have now received the claim form from the county court business centre in Northamptonshire. I have acknowledged the claim and requested the 28 day response times online.
Below is my proposed defence of the claim which I have found within a successful defence thread on this forum. Prior to my submission I would greatly appreciate it if the wise and knowledgable people of this forum could provide guidance to me and coach me through this defence to a hopeful victory.
Thank you all in advance.
Defence
1. It is acknowledged that the defendant, xxx is the registered keeper of the vehicle.
2. 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 it's entirety. The date of the alleged incident is XX/XX/2017 as per the particulars of claim which is over a year ago.
It is perplexing that the Claimant waited until now to bring proceedings.
3. The Protection of Freedoms Act 2012 (PoFA 2012) which came into force in October 2012 is the only legislation currently available allowing a private parking firm to hold a registered keeper liable. From the limited information provided by the particulars of claim, it can be seen the date of the alleged incident is XX/XX/2017. This being the case, the claimant cannot surely hold the registered keeper liable, only the driver, of which no evidence has been produced.
PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, "There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and operators should never suggest anything of the sort" (POPLA report 2015).
4. The claim form itself is vague and lacks pertinent information as to the grounds for the claimant’s case. The particulars of claim fail to meet CPR16.4 and PD16 7.3-7.5 and merely provide a date, due date, and an "amount" consisting of a completely unsubstantiated and inflated three-figure sum, vaguely and incoherently adduced by the claimant's solicitors.
The claim also states "parking charges and indemnity costs if applicable" which gives no indication of on what basis the claim is brought, for example whether this charge is founded upon an allegation of trespass or 'breach of contract' or contractual 'unpaid fees'.
Because of this, it is necessary to cover all eventualities in defending such a 'cut & paste' claim which has caused significant distress and has denied a fair chance to defend this claim in an informed way.
Therefore, as an unrepresented litigant-in-person it is respectfully requestef that it be permitted to amend and or supplement this defence as may be required following a fuller disclosure of the Claimant's case.
5. I am yet to have knowledge of all documents provided to the court in support of the application, despite sending a request to the claimant to provide...... (as requested in initial appeal to PCM - to be added)
Accordingly, it is denied that the Claimant has authority to bring this claim. The proper Claimant (if any debt exists, which is denied) would be the landowner.
6. In the pre court stage the Claimant’s solicitor refused to provide me with the necessary information I requested in order to defend myself against the alleged debt.
They did not send me a Letter before Action that complied with the Practice direction on pre-action conduct. The Letter before Action can be seen to miss the following information
a) A clear summary of facts on which the claim is based.
b) A list of the relevant documents on which your client intends to rely.
c) How the “charge amount” of 125 pounds has been calculated and justified.
d) Any form of possible negotiation or ADR offered.
7. The alleged debt as described in the claim are unenforceable penalties, being just the sort of unconscionable charges exposed as offending against the penalty rule, in do I add a different case?
8. It is submitted that (apart from properly incurred court fees) any added legal fees/costs are simply numbers made up out of thin air, and are an attempt at double recovery by the Claimant, which would not be recoverable in the small claims court.
9. It is denied that there was any 'relevant obligation' or 'relevant contract' relating to any single parking event.
10. It is denied that the signs used by this claimant can have created a fair or transparent contract with a driver in any event. The signs were insufficient in terms of their distribution, wording and lighting hence incapable of binding the driver, which distinguishes this case from the Beavis case:
a) Sporadic and illegible (charge not prominent nor large lettering) site/entrance signage - breach of the BPA Code of Practice and no contract formed to pay any clearly stated sum.
b) The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.
c) The signage was not lit and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Unfair Terms in Consumer Contracts Regulations 1999.
d) No promise was made by the driver that could constitute consideration because there was no offer known nor accepted. No consideration flowed from the Claimant.
e) Absent the elements of a contract, there can be no breach of contract.
11. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons.
It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious.
As such, the defendant will note of my wasted time/costs in dealing with this matter.
12. I request the court strike out this claim for the reasons stated above, and for similar reasons cited by District
Statement of Truth: I believe that facts state within this Defence are true.
0
Comments
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What is the Date of Issue on your Claim Form?
Can you please post the exact contents of the Particulars of Claim box on your Claim Form.
A Defence is written in the third person. You have slipped into the first person a couple of times. Paras 1, 5, 6, 7, 8, 14 and 15... at least.0 -
That Defence does not give any facts at all regarding the parking incidents, and how the PCNs came to be issued. Most Judges do not like 'technical' defences.
Para 1: You do not put your address in the Defence. That comes later in the Witness Statement.
Para 2: Starts in the third person, then switches to the first. It should all be in the third person.
Para 3: You do not cite case law (Elliot v Loake) at this stage, when the Claimant hasn't yet raised it.
Para 4: Slips back into first person again. Also this is not an 'interim defence, there is no such thing in law.
Para 5: This is just a rant. Unless you have actual evidence to prove all this, get rid of it.
Para 6: Doesn't make sense. What is "a CPR 31.14"?
Para 7: So what. This is not fatal to the claim.
Para 8: Another rant
Paras 9-10: Guaranteed losers. Delete.
Para 14: Back to first person again.
Para 15: Do you have a copy of the Judgment Order, or transcript from that St Albans case? If not, this is a waste of ink.
Statement of Truth: The correct form of words is "I believe that the facts stated in this Defence are true".
I have been providing assistance, including Lay Representation at Court hearings (current score: won 57, lost 14), to defendants in parking cases for over 5 years. I have an LLB (Hons) degree, and have a Graduate Diploma in Civil Litigation from CILEx. However, any advice given on these forums by me is NOT formal legal advice, and I accept no liability for its accuracy.0 -
The issue date is 3 October 2018
Particulars of claim
The driver of the vehicle registration xxxxxxx (the 'vehicle') incurred the parking charge(s) on 30/10/2017 & 1/11/2017 for breaching the terms of parking on the land at Xxxxx NG1
The defendant was driving the vehicle and/or is the keeper of the vehicle.
AND THE CLAIMANT CLAIMS
£320 for parking charges/damages and indemnity costs if applicable, together with interest costs if applicable, together with interest of £21.63 pursuant to s69 of the county courts act 1984 at 8% pa, continuing th judgement ar £0.07 per day.
I notice I need to amend the incident dates at the start of my defence and also the amount within the defence to reflect the entire amount as per the particulars of claim.0 -
With a Claim Issue Date of 3rd October, and having done the AoS in a timely manner, you have until 4pm on Monday 5th November 2018 to file your Defence.The issue date is 3 October 2018.
Three weeks to go. Loads of time to produce a perfect Defence, but don't leave it to the very last minute.
When you are happy with the content, your Defence should be filed via email as described here:
1) Print your 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 chase the CCBC until it is.
7) Wait for your Directions Questionnaire and then re-read post #2 of the NEWBIES thread to find out exactly what to do with it.0 -
That Defence does not give any facts at all regarding the parking incidents, and how the PCNs came to be issued. Most Judges do not like 'technical' defences.
Para 1: You do not put your address in the Defence. That comes later in the Witness Statement.
Para 2: Starts in the third person, then switches to the first. It should all be in the third person.
Para 3: You do not cite case law (Elliot v Loake) at this stage, when the Claimant hasn't yet raised it.
Para 4: Slips back into first person again. Also this is not an 'interim defence, there is no such thing in law.
Para 5: This is just a rant. Unless you have actual evidence to prove all this, get rid of it.
Para 6: Doesn't make sense. What is "a CPR 31.14"?
Para 7: So what. This is not fatal to the claim.
Para 8: Another rant
Paras 9-10: Guaranteed losers. Delete.
Para 14: Back to first person again.
Para 15: Do you have a copy of the Judgment Order, or transcript from that St Albans case? If not, this is a waste of ink.
Statement of Truth: The correct form of words is "I believe that the facts stated in this Defence are true".
Thank you for the guidance I have removed the relevant and inputted some comments regarding further guidance in places.0 -
1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
2. The facts are that the vehicle, registration XXXX, of which the Defendant is the registered keeper, was parked on the material date on XXXXX (location)
3. The Particulars of Claim state that the Defendant “was the registered keeper and/or the driver of the vehicle(s)”.These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.
4. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.
5. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. They merely state that vehicles must be parked correctly within their allocated parking bay, giving no definition of the term 'correctly parked', nor indicating which bays are allocated to whom.
6. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.
7. The Claimant is put to strict proof that it has sufficient prorpietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.
8. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.
9. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.
I believe the facts contained in this Defence are true.
Name
Signature
Date0 -
Is it also worth noting that I never got a letter before claim from gladstones prior to the pack from the county court?0
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In para 3, replace !!!8220; and !!!8221; with quotation marks.0
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No.Thank you, I have edited to show XXXX initially to reflect my name and the second will reflect the car registration is this correct?
The first sentence of para 3 should look like:3. The Particulars of Claim state that the Defendant "was the registered keeper and/or the driver of the vehicle(s)".Isn't that what the Particulars of Claim state?0
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