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  • FIRST POST
    • Sassii
    • By Sassii 9th Jun 17, 6:47 PM
    • 235Posts
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    Sassii
    my draft defence Gladstones - PCM Court action
    • #1
    • 9th Jun 17, 6:47 PM
    my draft defence Gladstones - PCM Court action 9th Jun 17 at 6:47 PM
    Hi All
    Thanks for all can help me for my case as PCM want to take me to court for 3 PCNs. As PCM replace their signage from POFA12 to Contract term I sent to them Notice of Cancellation letter long time ago. Agian same process up to reach to court claim from Gladestones which that was my 1 st time. I spent all last 3 weeks digging and please find my draft defence for advise.

    https://www.keepandshare.com/doc16/16884/epson007-pdf-801k?da=y


    Statement of Defence
    IN THE COUNTY COURT BUSINESS CENTRE

    CLAIM No:

    BETWEEN:

    PARKING CONTROL MANAGEMENT (UK) LIMITED (Claimant)

    -and-

    xxxxxx (Defendant)

    I am representing myself due to the cost of a solicitor and due to this I request some leeway or in other words please take it easy on me I am new at this.

    (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) As the car mentioned in the particulars of claim was a company car which all company employees & others are insured to drive that car & the parking events / alleged breaches were 7-10 months ago, so nobody can remember who was driving. It’s strictly requested that PCM to provide any evidence of who the driver was.
    (3) I never knew what are Gladstones Solicitors was talking about as their letters dated xxxxx have no cross reference to any PCN numbers up to I received Letter Before Claim dated xxxxx so all of that time Gladstones Solicitors was misleading me.
    (4) I have received no copies of any disclosure of any documents from Gladstones Solicitors Ltd with the exception of the Letter Before Claim & court summons. Although I asked for that documents on my letters to Gladestones Solicitors dated xxxxxx & on my letters to PCM dated xxxxx but they never send the requested documents. This is likely to mean I may have to alter my defence in light of any new evidence.
    So in light of the little information I have please find below:
    (a) Charge dated xxxxx:
    - There is no contract in force between the claimant & defendant as Cancelation Of Contact Notice (COCN sent to PCM on xxxxx before issuing the charge in question. The signage on the site stated that parking will be under contractual terms and Gladstones Solicitors letter dated xxxxxx saying ‘’your contract was with our client’’ while there is no contract in force as mentioned above. (Signage photo, COCN letter, Proof of post & confirmation photo attached).
    - The signage was located on UKPN property which I was working for & I can confirm there is no contract between PCM & UKPN, so it’s strictly requested that PCM to show they have a permission to fix their signage on UKPN property.
    - Claimant & their representative strictly required to provide the full documents requested in the above mentioned letters.

    (b) Charges dated 10/10/2016:
    - I have only unclear copy of NTK dated xxxxx saying ‘’this notice is given in line with schedule 4 of the POFA 2012’’ while the the signage on the site stated that parking will be under contractual terms and Gladstones Solicitors letter dated xxxxx saying ‘’your contract was with our client’’. That makes confusion of the reason of that charge.

    - Claimant & their representative strictly required to provide the full documents requested in the above mentioned letters.

    (c) Charge date xxxx: I have no documents relating to that charge so Claimant & their representative strictly required to provide the full documents requested in the above mentioned letters. The signage on the site stated that parking will be under contractual terms and Gladstones Solicitors letter dated xxxxx saying ‘’your contract was with our client’’ while there is no contract in force as mentioned above.
    (5) I have no idea at this stage whether I am being pursued under the Protection of Freedoms Act 2012 for this debt or whether this is for civil trespass. A parking charge can be for trespass, breach of contract or a contractual charge. All these are treated differently in law and require a different defence. The wording of any contract will naturally be a key element in this matter, and a copy of the alleged contract has never been provided to the Defendant.

    (6) I have never been supplied with any confirmation from the claimant or his agents that they actually own or have a contract with the landowner of the land in question which would allow them issue penalty tickets although I asked them several times to provide that contract but they never responded. So I have no idea if this is just a speculative invoice.

    (7) I am yet to have knowledge of all documents provided to the court in support of the application, despite sending a CPR 31.14 request to the claimant's solicitors on xxxxxx.

    (8) Claimant & his representative should supply a contract with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no locus stand to bring this case.
    (9) Gladstones Solicitors Ltd has supplied no contract showing they have the right to pursue cases on behalf of Parking Control Management (UK) Ltd. It is request that this right is confirmed with a signed unredacted contract.
    (10) The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. The Defendant also has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have actually been incurred. Even if they have been incurred, the Claimant has described them as "legal representative’s costs". These cannot be recovered in the Small Claims Court.
    (11) Whilst it is admitted that the Defendant was the registered keeper of the above vehicle at the time of the alleged events it is averred that the Defendant was not the driver on the date and time mentioned in the particulars and the Claimant is put to strict proof in this respect.
    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).

    (12) The government have put in place a mechanism whereby liability can be transferred from driver to keeper, under the Protection Of Freedoms Act 2012, sch 4. The claimant has made the conscious decision not to avail themselves of this legislation and use a notice to keeper which fails to comply with 8.1, 8.2a, 8.2c, 8.2f, 8.8b, 9.2.a, 9.8b of the Act.
    - 17. Further the Claimant must also demonstrate that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the Registered Keeper.
    - The Claimant is put to strict proof that such a “relevant obligation” existed and that the Claimant has followed the correct procedure to transfer liability to the Registered Keeper.
    - In the absence of strict proof as to the existence or otherwise of a “relevant obligation” and as to properly transferring liability to the Registered Keeper the court is invited to strike the matter out.
    (13) On the other hand it is believed that the Claimant may seek to rely on a rather
    unique interpretation of the judgement in Elliott -v- Loake
    - endeavour to persuade the court that the case created a precedent amounting to a presumption that the registered keeper is the driver where no other evidence or admission exists and thereby prove his allegations.
    - I submit that this interpretation actually represents a very considerable reworking of the case and does not fairly convey the findings.
    - The reality is that no such precedent was created and that Mr Loake was found guilty (it was a criminal matter) on a surfeit of evidence including forensic evidence of being the driver at the time of a road traffic accident which he had previously lied to the police about. Crucially this evidence proved the case to a criminal standard not simply on a balance of probabilities as applies in the instant matter.
    (14) This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. None of this applies in this material case.
    (15) The Claimant has not complied with the pre-court protocol.
    - No Letter of Claim was sent to the Defendant showing the PCN numbers mentioned in Letter Before Claim and no initial information was sent to the Defendant although it was requested.
    - I'd refer the court to Para 4 on non-compliance and sanction, and I'd also point out that there can be no reasonable excuse for the Claimant's failure to follow the Pre-action Conduct process, especially bearing in mind that the Claim was issued by their own Solicitors so they clearly had legal advice before issuing proceedings.
    (16) 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.
    - Direction 16, paragraphs 7.3 – 7.5: CPR 16.4 Contents of the particulars of claim
    (1) Particulars of claim must include –
    (a) a concise statement of the facts on which the claimant relies
    (b) if the claimant is seeking interest, a statement to that effect and the details set out in paragraph (2);They have stated they are seeking interest from date x to date y, but provide no details (the defendant clearly told the Claimant that the debt was denied and that they were not the driver. The Defendant is not therefore liable for the Claimant’s delay in bringing a claim).
    (e) such other matters as may be set out in a practice direction.

    - PD 16 paras 7.3 – 7.5
    7.3 Where a claim is based upon a written agreement:
    (1) a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing, and
    (2) any general conditions of sale incorporated in the contract should also be attached (but where the contract is or the documents constituting the agreement are bulky this practice direction is complied with by attaching or serving only the relevant parts of the contract or documents).
    7.4 Where a claim is based upon an oral agreement, the particulars of claim should set out the contractual words used and state by whom, to whom, when and where they were spoken.
    7.5 Where a claim is based upon an agreement by conduct, the particulars of claim must specify the conduct relied on and state by whom, when and where the acts constituting the conduct were done.
    (17) The Claimant’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.
    HMCS have identified over 1000 similar poorly produced claims and the solicitor's conduct in many of these cases is believed to be currently the subject of an active investigation by the SRA.
    I believe the term for such conduct is ‘robo-claims’ which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers.
    I have reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to my significant detriment as an unrepresented Defendant.
    (18) The defendant wrote to the claimant on 06/1/2017asking for:

    1. Who is the party that contracted with your Client for that claim? I require their contact details and the full identity of the landowner.
    2. Is that charge based on damages for breach of contract? Answer yes or no.
    3. If the charge is based on damages for breach of contract please provide your justification of this sum.
    4. Is that charge based on an agreed 'fee' for the provision of parking? Answer yes or no. If so, please provide a valid VAT invoice for this 'service'.
    5. Please provide a copy of the signs that you can evidence were on site & locations of all signs at the site as well as all photographs taken of this vehicle.


    The claimant has responded on his letter dated 31/01/2017 refusing to provide the documents requested.Withholding any relevant photos of the car, particularly the windscreen and dashboard, and the signage terms, despite being asked for by the Defendant at the outset, is against the SRA code as well as contrary to the ‘overiding objective’ in the pre action protocol.

    - As Gladsones are a firm of solicitors whose Directors also run the IPC Trade Body and deal with private parking issues every single day of the week there can be no excuse for these omissions.

    The Defendant asks that the court orders Further and Better Particulars of Claim and asks leave to amend the Defence.
    (19) 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 160 pounds has been calculated and justified.
    d) Any form of possible negotiation or ADR offered.
    (20) I suggest 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.
    (21) If the court is minded to accept that the Claimant has standing then I submit that the signs on site at the time of the alleged event were insufficient in terms of their numbers, distribution, wording and lighting to reasonably convey a contractual obligation and did not in any event at the time comply with the requirements of the Code of Practice of the Independent Parking Committee’s Accredited Operators Scheme a signatory to which the Claimant was at the relevant time.
    - 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.
    f) It is denied that the signs on display fall under any of the classes in Schedule 1 or Schedule 3 of The Town and Country Planning (Control of Advertisements) (England) Regulations 2007 or that the Claimant has advertisement consent for the signs.
    g) The Claimant is therefore put to strict proof that at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs.
    h) In the absence of strict proof I submit that the Claimant was committing an offence by displaying their signs and therefore no contract could have been entered into between the driver and the Claimant.
    (22)It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious. As such, I am keeping a note of my wasted time/costs in dealing with this matter.

    The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons and I respectfully ask that the court dismiss the claim
    I believe the facts contained in this Defence Statement are true
Page 9
    • one_cruzer
    • By one_cruzer 10th Nov 18, 12:59 PM
    • 35 Posts
    • 5 Thanks
    one_cruzer
    Any updates on this?
    • Umkomaas
    • By Umkomaas 10th Nov 18, 1:53 PM
    • 22,582 Posts
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    Umkomaas
    Any updates on this?
    Originally posted by one_cruzer
    Click on Sassii's username, click the Statistics box in the drop down, then click on 'Threads started by Sassii'. You'll read some great tales.
    Please note, we are not a legal, residential or credit advice forum, rather one that helps motorists fight private parking charges, primarily at the 'front-end' of the process.
    Give a man a fish, and you feed him for a day;
    show him how to catch fish, and you feed him for a lifetime.
    • Sassii
    • By Sassii 13th Nov 18, 11:14 PM
    • 235 Posts
    • 196 Thanks
    Sassii
    Yes!

    Object to BOTH requests, the Claimant has had ample time and cannot move an individual Defendant away from his/her local court.
    Originally posted by Coupon-mad
    Hi All

    letter / application served to court objecting both pcm application for extension of time and court transfer but heard nothing from the court up to now.

    in the mean time the court granted extension of time for 44 days from pcm application date but the court order received one week before dead line date.

    pcm again didn't comply with the extension of time court order and missed dead line date and didn't submit any application.

    A week after dead line the court received another extension of time application from pcm as per the link below.

    http://www.keepandshare.com/doc16/view.php?id=21782&da=y

    Of course Gladstones tried to mislead by not explaining that they requested for transcript one month after court order requesting that on 07/08/2018 and why they didn't submit the 2nd extension of time application before dead line date.

    Could please help of how to reply for that application. I'm preparing a letter / application to court refuseing Gladstones application and will ask for hearing but your help and ideas will help more as usual.

    Regards
    Last edited by Sassii; 13-11-2018 at 11:17 PM.
    • DoaM
    • By DoaM 14th Nov 18, 8:52 AM
    • 6,487 Posts
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    DoaM
    Make sure you keep all this as ammunition for your punitive costs claim ... this is unreasonable behaviour. If the court grant another extension I'd be wondering what was going on - Gladstones are supposed to be a professional company so shouldn't be needing to apply for further extensions.
    Last edited by DoaM; 14-11-2018 at 8:54 AM.
    Diary of a madman
    Walk the line again today
    Entries of confusion
    Dear diary, I'm here to stay
    • Castle
    • By Castle 14th Nov 18, 9:45 AM
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    • 2,930 Thanks
    Castle
    Hi all

    Now the court ordered pcm to serve a skeleton argument and transcript of set aside hearing. Also court stayed the set aside order order. pcm one day before serving due date asked the court for time extension and transfer the case to another court. do I need to ask the court to reject pcm requests specially transfer the court to other court as it will disadvantage to me if the appeal heard in court away from my home.

    Regards
    Originally posted by Sassii
    Is this the same Order Gladstones are claiming not to have received until 26th October, but you knew about it by the 28th September?
    • Sassii
    • By Sassii 14th Nov 18, 11:02 AM
    • 235 Posts
    • 196 Thanks
    Sassii
    Is this the same Order Gladstones are claiming not to have received until 26th October, but you knew about it by the 28th September?
    Originally posted by Castle
    No, there are 2 court orders:

    1st court order dated 07/08/2018 ordered pcm to file transcript of hearing & Skeleton Argument by 21/09/2018.
    pcm asked for for transcript on 10/09/2018 one month after court order.
    pcm asked for time extension on 20/09/2018.
    2nd court order dated 24/10/2018 granted time extension up to 02/11/2018.
    pcm asked for 2nd time extension on 05/11/2018 received by court on 09/11/2018.
    • Castle
    • By Castle 14th Nov 18, 11:46 AM
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    Castle
    I'm confused as Gladstones keep referring to a hearing on 4th January 2018 but there's nothing on this thread about it.
    • Sassii
    • By Sassii 14th Nov 18, 12:13 PM
    • 235 Posts
    • 196 Thanks
    Sassii
    I'm confused as Gladstones keep referring to a hearing on 4th January 2018 but there's nothing on this thread about it.
    Originally posted by Castle
    Go back to post 142 of this thread.

    pcm tried to set aside costs order against them, so hearing for that was on 04/01/2018 which was dismissed and Gladstones wanted to appeal that. so court asked them to get hearing transcript for that trial to consider Gladstones permission to appeal request.
    Last edited by Sassii; 14-11-2018 at 12:16 PM.
    • Castle
    • By Castle 14th Nov 18, 1:28 PM
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    • 2,930 Thanks
    Castle
    Go back to post 142 of this thread.

    pcm tried to set aside costs order against them, so hearing for that was on 04/01/2018 which was dismissed and Gladstones wanted to appeal that. so court asked them to get hearing transcript for that trial to consider Gladstones permission to appeal request.
    Originally posted by Sassii
    Thanks...I think the other hearing on the 11th January which you referred to in posts 121 and 124 confused me.
    • Sassii
    • By Sassii 15th Nov 18, 12:02 AM
    • 235 Posts
    • 196 Thanks
    Sassii
    Hi All

    that is the draft I'm going to file to court in reply to pcm 2nd extension of time application. Do I need to write that on N244 form or a letter will be enough.

    Could please someone review that letter and give me his opinion.


    IN THE COUNTY COURT AT xxxx
    CLAIM NO: xxxx

    B E T W E E N:-


    PARKING CONTROL MANAGEMENT (UK) LIMITED
    Claimant

    and

    xxxx
    Defendant
    __________________________________________________ ___________

    Defendant’s request to refuse Claimant’s 2nd extension of time application and permission to appeal request for Claimant non compliance with court order dated xxxx and previous court orders
    __________________________________________________ __________

    I am xxx and I am the Defendant in this matter. I received a court letter dated 13 November 2017 along with the Claimant’s 2nd extension of time application N244 dated 05 November 2018 which signed on 06 November 2018 and received by court on 07 November 2018.

    Claimant missed to say in his application that he did not act promptly in according to the court order dated 07/08/2018 as Claimant 1st asking for transcript was on 10 September 2018, one month after court order and that is why he failed to get the transcript on time not as he claimed because the granted extension of time order dated 24 October 2018 gave him only one week to comply with the order while this order gave Claimant 44 days to comply from Claimant extension of time application served to court on 20 September 2018.

    Claimant as well did not explain in his application why he failed to serve his 2nd extension of time application to court before dead line due date 02 November 2018 as stated in extension of time granted order dated 24 October 2018.

    The Claimant and his solicitor Gladstones are known to be a serial wasters of court times and resources and behaving unreasonable as well, Defendant rely on this case in question and on case no. E4GF4771 at Central London County court between same Claimant v Mr. Nilesh Tank, Court order attached, which DDJ Linwood stated that.

    The Claimant’s Solicitor Gladstones been shamed in parliament bill debate on 02 February 2018 for his poor practiced mentioned above.

    Defendant recently had another case with the same Claimant, Claim no. xxxx at Romford County Court, heard on xxxx, which Claimant did not comply with the court order and his claim been struck out and Defendant awarded £1705 for his costs as a result of Claimant unreasonable behave and non compliance with court order, Protocol for Debt Claims, Protection Of Freedom Act 2012, CPR or PD. Court order attached

    That is added to Claimant and his Solicitors Gladstones habit for non compliance with previous court orders throughout that proceeding. Claimant never ever complied with any single court order, CPR or PD and behaved unreasonably which lead to waste Court and Defendant times and efforts.

    Defendant explained that in more details in the application / letter dated 09 October 2018, registered at court on 16 October 2018.

    The Defendant, as Individual, throughout that proceeding complied with all court orders, meet all court deadlines and attended all hearing on time so there is no reason why the professional Claimant or his professional Solicitor did not, which that appears to have been negligence on Claimant part.

    It is the responsibility of the Claimant & its Solicitor to meet the court deadlines and to comply with it. I should not be prejudiced by an (apparently) negligent failure of Claimant and his solicitor.

    The Defendant believes that the Claimant’s intension for his 2nd extension of time application is to increase the costs on Defendant trying to make the case / appeal a high costs environment to Defendant.


    The Defendant therefore asks the court to reject Claimant applications, consider Claimant non compliance with the court orders as unreasonable behave and refuse Claimant permission to Appeal Application.

    Kind Regards

    Your faithfully

    Name:
    Date:
    Address:
    • DoaM
    • By DoaM 15th Nov 18, 9:21 AM
    • 6,487 Posts
    • 6,356 Thanks
    DoaM
    Proof-read that for spelling and grammar ... there are a number of instances where the sentences don't "flow" thus making them difficult to comprehend. A couple of examples:

    I received a court letter dated 13 November 2017 along with the Claimant’s 2nd extension of time application N244 dated 05 November 2018 which was signed on 06 November 2018 and received by court on 07 November 2018.

    Claimant missed to say in his application that he did not act promptly in according to accordance with the court order dated 07/08/2018, as Claimant's first request 1st asking for the transcript was on 10 September 2018, one month after the court order, and that is why he failed to get the transcript on time not as he claimed because (the granted extension of time order dated 24 October 2018 gave him only one week to comply with the order) while - in fact this order gave Claimant 44 days to comply from Claimant extension of time application served to court on 20 September 2018.
    Diary of a madman
    Walk the line again today
    Entries of confusion
    Dear diary, I'm here to stay
    • Sassii
    • By Sassii 15th Nov 18, 11:55 AM
    • 235 Posts
    • 196 Thanks
    Sassii
    Hi, Do I need to put that in N244 application notice form or just a normal letter as above?

    Could someone review it all as you know English is not my 1st language.

    Regards
    • Sassii
    • By Sassii 15th Nov 18, 9:04 PM
    • 235 Posts
    • 196 Thanks
    Sassii
    Hi

    Could someone please help for the questions above.

    Regards
    • Umkomaas
    • By Umkomaas 15th Nov 18, 9:08 PM
    • 22,582 Posts
    • 35,538 Thanks
    Umkomaas
    Hi

    Could someone please help for the questions above.

    Regards
    Originally posted by Sassii
    Over 70 separate and different cases today demanding assistance. About half a dozen regulars helping on the forum today. Sometimes we simply get overwhelmed.
    Please note, we are not a legal, residential or credit advice forum, rather one that helps motorists fight private parking charges, primarily at the 'front-end' of the process.
    Give a man a fish, and you feed him for a day;
    show him how to catch fish, and you feed him for a lifetime.
    • Sassii
    • By Sassii 16th Nov 18, 10:31 PM
    • 235 Posts
    • 196 Thanks
    Sassii
    Over 70 separate and different cases today demanding assistance. About half a dozen regulars helping on the forum today. Sometimes we simply get overwhelmed.
    Originally posted by Umkomaas
    Ok I'll wait up to someone find a time to review that the letter before sending to court.

    Thanks v much
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