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UKCPM - Take Two

2456

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  • Fruitcake
    Fruitcake Posts: 58,155
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    LewiiiD wrote: »
    KeithP - Thanks for your reply. I hadn't seen prior to posting my latest response.

    That's the timeline I was aiming for. Hoping to have it submitted today all being well :)

    Fruitcake - Iv'e moved counties since my last court claim. Atm I haven't gone down this route yet but will be sure to get them involved if it does go all the way to court again.

    Le_Kirk - Thanks for the heads up, I'll amend accordingly.

    LewiiiD

    It would help us if you got your MP involved anyway.
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  • I’ll get onto that once this defence has been submitted 👍
  • Coupon-mad
    Coupon-mad Posts: 130,637
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    If there is still time to tweak it, I think as a resident, you have an overly long defence, with a bit too much in it about signage which is secondary to the argument about 'primacy of contract' granted by the implied or specific right or easement that allows residents to park in the estate.

    Signage not being adequate should be an afterthought near the end, starting:

    'In the alternative...' then mentioning the fact that the signs are not compliant with Lord Denning's Red Hand rule or their own Trade Body's Code of Practice, being small in size and font, sparsely placed on non-prominent fences and/or in a dark corner by the bins, and not drawn to the attention of residents who would reasonably conclude that they relate only to unauthorised visitors.

    One paragraph, near the end.

    You can safely remove ALL of this which is far too wordy and adds nothing:
    14. Underlining that is Section B.2.1, B.2.2 of the IPC Code of Practice, which gives clear instructions as to the placing, visibility, and clarity of any signs that are used to form contracts. It says:

    2.1 Where the basis of your parking charges is based in the law of contract it will usually be by way of the driver of a vehicle agreeing to contractual terms identified by signage in and around a controlled zone. It is therefore of fundamental importance that the signage meets the minimum standards under The Code as this underpins the validity of any such charge. Similarly, where charges are founded in the law of trespass and form liquidated damages, these too must be communicated to drivers in the same way.

    2.2 Signs must conform to the requirements as set out in a schedule 1 to the Code

    15. The defendant refutes that there were clear and visible signs, with Terms that formed the basis of a contact and which met the specifications above

    16. 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.

    a. The Claimant is put to strict proof they have such authority to operate on site and to take action in their own name. The same is a requirement of any contract based on conduct.

    b. 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.

    c. The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question

    Just keep the (d) paragraph that immediately follows that wall of words, and give it its own para number; that's all you need to say on landowner authority in a defence (as long as they are made briefly now, points can be expanded in the WS and at the hearing).

    The defence should end:
    The defendant believes that the facts stated in this defence are true.

    signed:


    date

    Can you prune this and show us your final draft?
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  • Coupon-mad

    An issue might arise with what you stated above - I was not a resident at the estate merely visiting the other half at the time.

    Will your points you raised still be valid....?
  • Coupon-mad
    Coupon-mad Posts: 130,637
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    Yes, worded to say that the car was parked relying upon the primacy of contract enjoyed by the resident, which the D avers grants an implied or specific right or easement to residents and their authorised visitors to park... (blah blah what I said before, only re-worded).

    Show us a new draft as you have the weekend to email this safely and in time.
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  • Okay, I’ve got tomorrow to sort before heading back into work on Saturday.

    I’ll amend and post tomorrow morning all being well.

    Thanks again!
  • Coupon-mad, I've updated the defense accordingly.



    I have reservations about points 18 + 21 and whether they are adding anything to the defence......

    [FONT=&quot][/FONT]
    [FONT=&quot]Let me know what you think. [/FONT]
    [FONT=&quot]
    [/FONT]

    [FONT=&quot]Introduction[/FONT][FONT=&quot]
    [/FONT]
    [FONT=&quot]

    1. It is admitted that the Defendant was the authorised registered keeper of the vehicle in question at the time of the alleged incident.[/FONT]
    [FONT=&quot]2. This is a statement of truth and basis of the defence.[/FONT]
    [FONT=&quot]3. 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 as an unrepresented litigant-in-person and seeks the Court’s permission to amend and supplement this defensc as may be required upon disclosure of the claimant’s case. [/FONT]
    [FONT=&quot]4. 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.[/FONT]
    [FONT=&quot]5. The residential area in question has particularly poor lighting at night when the car was parked. The terms and conditions of parking have no lighting and were unreadable. It was not made clear that there was any restriction regarding parking outside of marked bays and a valid permit was on display,

    6. It is believed as a matter of common ground, the 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 WV02 ATK when it was parked at Pembroke Park, Crawley. The PCN stated the contravention as “No Parking Outside Of A Marked Bay”.

    [/FONT]
    [FONT=&quot]Rebuttal of Claim[/FONT]
    [FONT=&quot]
    7. It is denied that:[/FONT]
    [FONT=&quot]a. A contract was formed[/FONT]
    [FONT=&quot]b. There was an agreement to pay a parking charge.[/FONT]
    [FONT=&quot]c. That there were Terms and Conditions prominently displayed around the site. [/FONT]
    [FONT=&quot]d. That in addition to the parking charge there was an agreement to pay additional and unspecified additional sums. [/FONT]
    [FONT=&quot]e. The claimant company fully complied with their obligations within the terms of Schedule 4 of the Protections of Freedoms Act 2012. [/FONT]
    [FONT=&quot]f. The claimant company fully complied with the requirements of the Practice Direction for Pre-Action Conduct (Pre-Action Protocol October 2017)[/FONT]
    [FONT=&quot]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. [/FONT]
    [FONT=&quot]h. That the Defendant is liable for the purported debt.

    8. It is further denied that the Defendant owes 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.

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

    10. The claimant is put to the strictest proof of their assertions.

    [/FONT]
    [FONT=&quot]The Defence[/FONT]




    [FONT=&quot]11. The Defendant will reply principally upon the following points:[/FONT]
    [FONT=&quot]12. The car was parked relying upon the primacy of contract enjoyed by the residents, which the Defendant avers grants an implied or specific right or easement to residents and their authorised visitors to park in the estate. Therefore it is denied that the defendant was in breach of any parking conditions.[/FONT]
    [FONT=&quot]13. The Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease/tenancy agreement. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial.[/FONT][FONT=&quot][/FONT]
    [FONT=&quot]14. The Claimant failed with its obligations to comply with the Practice Direction for Pre-Action Conduct. The updated legislation of the new Pre-Action Protocol (October 2017) outlines procedures that need to be followed prior to Claimants engaging in court proceedings. [/FONT]
    [FONT=&quot]15. The Claimants Letter of Claim (Letter before claim) failed to include:[/FONT]
    [FONT=&quot]a. The information sheet and reply form [/FONT]
    [FONT=&quot]b. Financial statement [/FONT]
    [FONT=&quot]Further again ignoring the requirements of the Pre-Action Protocol.[/FONT]
    [FONT=&quot]16. The Pre-Action Protocol encourages early disclosure of documents. The defendant requested information from the Claimant via letter dated 29th June 18. As per timescales under the protocol the creditor should not issue court proceedings until 30 days after the date on which the creditor provides documents requested by the debtor. [/FONT]
    [FONT=&quot]Once again the Creditor has failed to comply with the Pre-Action protocol as court proceedings were served 14th August 18. [/FONT]
    [FONT=&quot]17. An email was received from the Claimant dated 11th Sept 18. Included within this email was an admission from the Claimant that it had failed to follow the correct Pre-Action Protocol – “It has been noted that legal proceedings have been issued prematurely” [/FONT]
    [FONT=&quot]18. In the alternative the signage on this site was inadequate to form a contract with the motorist. Further it is trite law that a term that is forbidding cannot also constitute an offer. It is therefore denied that any contract was formed or was capable of being formed. [/FONT]
    [FONT=&quot]19. 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.[/FONT]
    [FONT=&quot]20. Further, Lord Denning’s ‘Red Hand Rule’ can be seen as applicable in this case, as the parking charge notice of £100 (being ‘out of all proportion’ with expectations of drivers in this car park and thus being an onerous term) should have been effectively: “In red letters with a red hand pointing to it” i.e. Very clear and prominent with the terms in large lettering. Lord Denning stated this in the case of Spurling vs Bradshaw Ltd; “The more unreasonable a clause is, the greater the notice which must be given of it. Some clauses would need to be printed in red ink with a red hand pointing to it before the notice could be held to be sufficient”. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]21. [/FONT][FONT=&quot]Should the claimant rely on the case of ParkingEye v Beavis, the Defendant wishes to point out that there is a test of good faith.[/FONT]
    [FONT=&quot]Para 205: “The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.”[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]22. 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[/FONT]
    [FONT=&quot]23. Taking into account the above points the Defendant w[/FONT][FONT=&quot]ill be seeking their costs on the indemnity basis due to the above conduct which was the final insult after the wholly unreasonable and vexatious stance of a parking firm who:

    a. has already lost a baseless case (claim no. xxxxxxxx heard at Horsham County Court on xx/x/18 - about exactly the same car and location) that they filed against this Defendant in 2017.

    b. Appear to be ignorant regarding the doctrine of res judicata, despite using a solicitor, Gladstones, which shared Directors with the parking Trade Body, the IPC, and files thousands of parking claims and is expected to conduct itself professionally with regard to its first duty to the Courts and due process.

    c. Is clearly engaging in a vexatious pursuit of this Defendant, when they already know about the easements and rights enjoyed by residents at the material location, who indisputably have primacy of contract, and

    d. filed this second baseless claim after months of harassment, having ignored a request for evidence (contrary not only to the CPRs but in breach of the Defendant's right to subject data access) then rushed to file & serve poorly pleaded Particulars of Claim, then afterwards, admitted that the court claim was served 'prematurely' (Gladstones solicitors' own word, but in the same letter they still demanded £160).

    24. These failures and the vexatious nature of this typical cut & paste 'one size fits all' parking charge robo-claim, with no checks being made about the facts to show that the Claimant has any claim in law or even that the CPRs, the DPA and Practice Direction are being fairly followed, cannot be described as 'trivial' conduct.

    25. As a result, the Defendant avers that having been put to the distress and harassment of a second baseless claim, where this Claimant is no doubt hoping for a different result from their first failed claim but have spiralled into conduct that amounts to a gross abuse of process, sanctions should be imposed. The Defendant relies upon para 41 of Mitchell v. News Group Newspapers Ltd [2013] EWCA Civ 1537, [2014] 1 WLR 795 which is re-iterated in para 24 of Denton v T H White Ltd [2014] EWCA Civ 906 and seeks an order to grant the Defendant's wasted costs on the indemnity basis, not least to send a message to Gladstones and this prolific and notorious parking firm Claimant.[/FONT][FONT=&quot][/FONT]
    [FONT=&quot]26. In view of all the foregoing the court is invited to strike the matter out of its own motion.[/FONT]
    [FONT=&quot]27. The claimant is put to strict proof of the assertions they have made or may make in their fuller claim.


    The defendant believes that the facts stated in this defence are true. [/FONT]
  • Defence bump....
  • Coupon-mad
    Coupon-mad Posts: 130,637
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    Looks better to me and 18 and 21 are relevant, IMHO.

    Typo here:
    3. 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 as an unrepresented litigant-in-person and seeks the Court’s permission to amend and supplement this defensc as may be required upon disclosure of the claimant’s case.
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  • Okay, I’ll amend and send it off this evening. Thanks for your help again Coupon ��
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