Gladstones court claim received - help please

IamEmanresu wrote: »

Removed

+1 for the above.

Sorry I'm not sure what this means?

Hi there,

Thanks so much for your help so far! Fairly confident in the defence now. I have to submit it by 4pm tomorrow from my understanding, and I will send it via email. Do you recommend posting too? I saw some posts that suggested this as well as email.

Unfortunately haven't been able to get a copy of the contract from the managing agent, so does point 9.1 need to be removed if evidence can't be provided to support it? The defendant has spoken to the resident and they don't recall signing a new contract since parking enforcement has been put in place.

Statement of Defence

In the County Court Business Centre
Claim Number: ___

Between:

Parking Management and Control Ltd 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.

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 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 is the registered keeper of vehicle registration mark XXZZZ which is the subject of these proceedings. The vehicle is insured with [provider] with 3 named drivers permitted to use it.

4) It is admitted that on [date] the Defendant's vehicle was parked at [location]

5) It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.

5.1. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. 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 ("POFA")
5.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
5.2.1. there was a !!!8216;relevant obligation!!!8217;; either by way of a breach of contract, trespass or other tort; and
5.2.2. 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.

5.3. To the extent that the Claimant may seek to allege that any such presumption exists, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.

6) 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.

Authority to Park and Primacy of Contract

7) It is not admitted that the Claimant has contractual or other lawful authority to make contracts with residents and their visitors at this location, and/or to bring proceedings against the Defendant. The Claimant is put to strict proof. Further, and in the alternative, the Defendant avers that the Claimant requires the permission of the owner of the relevant land - not merely another contractor or site agent not in possession - in order to commence proceedings.

8) The Defendant avers that the Claimant cannot:

(i) override the existing rights enjoyed by residents and their visitors, or
(ii) offer parking on more onerous terms than were already granted and agreed in the lease/tenancy Agreement, or
(iii) decide to remove parking bays from use by residents and their visitors and/or start charging for them.

9) The Defendant parked legitimately in a visitor bay, used without penalty or charge for many years, by various residents/visitors at the site. After all these years, the resident and the Defendant shared the legitimate expectation of a continuing right of way and unfettered right to use the demised parking bays.

9.1 The Defendant avers that there has been no variation of the resident's lease under the Landlord and Tenant Act 1987. The Defendant understands that for such a variation to have been agreed by the residents, 75% of the parties must have consented and not more than 10% must not have objected to any proposed material change (which this most certainly is).

9.2 Due process has not been followed and the Claimant is put to strict proof, including proving delivery of the requisite notices and the consensus obtained for the introduction of this unwelcome nuisance. Onerous terms cannot be foisted upon residents merely by a third party putting some signs up and beginning a predatory charging regime - even with the authority of a site agent - since this would be a derogation from grant.

9.3 The Defendant will provide a witness statement from the resident, confirming that the Defendant was authorised by the resident to park on site, was legitimately and properly parked in a visitors' bay and could not be described as ''unauthorised'' (i.e. a trespasser). In any case, a parking operator firm not in possession of the land, cannot recover such damages.

9.4 In D7GF307F - UKCPM v Mr D - before Deputy District Judge Skelly on 1st February 2018 at Clerkenwell, a similar thin excuse of an argument from a private parking firm inflicting a nuisance on residents & visitors was dismissed. When not sitting as a Judge, DDJ Skelly is a barrister specialising in property law. The managing agents were named as a party to the lease, and there was a clause which said that they could make regulations for the 'comfort and convenience' of lessees. However, this could not excuse a change as intrusive and onerous as to override the grant of free resident/visitor parking, effectively restricting and charging for a right previously enjoyed, without the required consensus and deed of variation. It would be like the agents suddenly stipulating that residents had to hang a Union Jack out of the window whenever they were at home; clearly unreasonable and not in the interests of the consumer.

10) The Claimant does not require all residents at the site to hold and display parking permits, thus causing inconsistency in parking terms across the same land and causing confusion. The signage fails to inform clearly which bays require permits.

11) This Claimant has only in recent months, begun a predatory parking regime targeting residents and their visitors and has unilaterally attempted to foist upon residents a change of rules, in complete disregard to any existing rights and grants; the Claimant being a stranger to the various residents' Agreements. No variation of residents' Agreements has taken place and any such variation would be solely a matter between the landowner and the resident, in any case.


Alternative Defence - Failure to set out clearly parking terms

12) In the alternative, 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.


12.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate.
12.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;
12.1.2. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee!!!8217;s ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and
12.1.3. The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3
12.2. The Defendant avers that the residential site that is the subject of these proceedings is not a site where there is a commercial value to be protected. The Claimant has not suffered loss or pecuniary disadvantage. The penalty charge is, accordingly, unconscionable in this context, with ParkingEye distinguished.


13) The Defendant denies any separate contract with the Claimant in respect of parking arrangements. The Claimant has offered nothing by way of consideration, given the primacy of contract enjoyed by residents who already have rights of way, and have been parking in that space for years and have a reasonable expectation to continue to do so, free of harassment, predatory conduct and 'parking charges'.


13.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate.
13.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;
13.1.2. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee!!!8217;s ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and
13.1.3. The signage contained particularly onerous terms not sufficiently drawn to the attention of existing residents, as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3

13.2. The Defendant avers that the residential site that is the subject of these proceedings is not a site where there is a commercial value to be protected. In fact, the existing rights of residents should have been protected.

13.3 The charge is, accordingly, unconscionable in this context, with ParkingEye v Beavis distinguished.



14) 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.



15) It is denied that the Claimant has any entitlement to the sums sought.

16) It is admitted that interest may be applicable, subject to the discretion of the Court on any sum (if awarded), but it is denied that interest is applicable on the total sums claimed by the Claimant.

17) 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).

18) 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.

19) 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).

20) 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.

21) 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

nosferatu1001 wrote: »

Print
Sign
Scan to PDF
Email as an attachment

Thank you! Have followed your instructions and sent across as an attachment with signature to the claim responses email address

nosferatu1001 wrote: »

The Managing AGent is there on YOUR behalf. They can only sign contracts for YOUR benefit. You require them to send a copy of the contract through within 7 days else you will...

I'm referring to the managing agent who the resident normally deals with regarding anything related to the property they own. Resident surprisingly doesn't have a copy of their original contract, and so have advised the defendant to request a copy from the managing agent (i.e. the middle person between resident and land owner), with no luck