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  • FIRST POST
    • LewiiiD
    • By LewiiiD 13th Sep 18, 12:50 AM
    • 67Posts
    • 26Thanks
    LewiiiD
    UKCPM - Take Two
    • #1
    • 13th Sep 18, 12:50 AM
    UKCPM - Take Two 13th Sep 18 at 12:50 AM
    Hi everyone,

    Some of you may have followed my previous case against UK CPM and Gladstones back towards the end of last year with it concluding in February. Well I'm back again with the same issue basically.


    This time around they are chasing me for parking outside of a marked bay in the same residential estate. This PCN dates back to May 2017.

    I have acknowledged MCOL, but unfortunately work has been hectic and I've only now managed to draft my defense. It needs to be submitted in a couple of days, could someone have a once over........

    I did also ask for the evidence to be sent to me as per the Practice Direction on Pre-Action Conduct and they failed to get back to me in 30 days.

    However yesterday afternoon I received a rather lengthy email from Gladstones with various cases quoted stating that I still owed the debt...blah blah blah. Interestingly though towards the end of the email they stated: It has been noted that legal proceedings have been issued prematurely and as such, we are willing to offer you the chance to pay a reduced amount of £160

    Has anyone seen this before? And is this something worthwhile adding into the defense?



    Please see drafted defense below: Comments greatly appreciated.



    Introduction


    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. This is my statement of truth and my defence.
    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 I seek the Court’s permission to amend and supplement this defence as may be required upon disclosure of the claimant’s case.
    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.
    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 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 WV02 ATK when it was parked at Pembroke Park, Crawley. The PCN stated the contravention as “No Parking Outside Of A Marked Bay”.


    Rebuttal of Claim

    7. 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 terms of Schedule 4 of the Protections of Freedoms Act 2012.
    f. The claimant company fully complied with their obligations within the International Parking Community Code of Practice of which they were member at the time.
    g. 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.



    My Defence

    11. My defence will reply principally upon the following points:
    12. 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.
    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. 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”.
    c. The claimant is put to strict proof that the signage on the date in question clearly sets out the onerous terms of a parking charge notice, to sufficiently draw the attention of a visitor, as set out in the leading judgement of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3.
    d. In the absence of ‘adequate notice’ 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.

    13. Should the claimant rely on the case of ParkingEye v Beavis, I wish to point out that there is a test of good faith.
    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.”

    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
    d. 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

    17. If in the alternative it is the claimant's case that his claim is founded in trespass (which is in any event denied) then in a residential car park setting any damages in trespass can only be assessed based on a calculation of the proportion of income lost based on the time of the alleged occupation. Any sum sought could therefore only be minimal and de-minimis
    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.
    18. It is denied that the Defendant was the driver of the vehicle. 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 Freedom Act 2012 (“POFA”). The claimant is put to strict proof.
    19. If the Claimant seeks 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 provisions. 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 strict limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.
    20. The case of Elliot v Loake (1982) is often cited by UK Car Park Management Ltd, however it is a criminal case with forensic evidence, whereby the keeper of the vehicle was also proved to be the driver at the time of an offence and thus has no basis upon this case or contract law. This is supported by the ruling of the Judge in Excel v M. X (Manchester) C8DP5C7T, who dismissed Elliot v Loake as it is a criminal case that doesn’t bear any weight in the small claims court.
    21. Similarly CPS vs AJH Films (2015) is another case heavily relied upon by UK Car Park Management. However time and time again this gets thrown out of court. As recently as 22nd June 2017, DJ McKay dismissed Excel Parking Services Ltd vs Mrs. L. Evans (Cardiff) C8DP79CC as the judge fully agreed with Mrs L. Evans witness statement which correctly pointed out that this case involved employer/employee liability. As this claim was not a comparable situation, it also had no relevance to Excel’s case.
    22. 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. 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.
    23. The Claimant’s representatives, Gladstones, have artificially inflated the value of the Claim from £100 to £241.32. 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 “parking charge” 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 “a copy of the contract or documents constituting the agreement”.
    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.

    24. 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’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.

    25. 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. 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.

    26. 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.

    27. In view of all the foregoing the court is invited to strike the matter out of its own motion.

    28. The claimant is put to strict proof of the assertions they have made or may make in their fuller claim.



    This statement is true to the best of my knowledge and belief.

Page 1
    • KeithP
    • By KeithP 13th Sep 18, 1:02 AM
    • 10,585 Posts
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    KeithP
    • #2
    • 13th Sep 18, 1:02 AM
    • #2
    • 13th Sep 18, 1:02 AM
    What is the Date of Issue on your Claim Form?
    .
    • Coupon-mad
    • By Coupon-mad 13th Sep 18, 1:20 AM
    • 63,827 Posts
    • 76,484 Thanks
    Coupon-mad
    • #3
    • 13th Sep 18, 1:20 AM
    • #3
    • 13th Sep 18, 1:20 AM
    It has been noted that legal proceedings have been issued prematurely and as such, we are willing to offer you the chance to pay a reduced amount of £160

    Has anyone seen this before? And is this something worthwhile adding into the defense?
    Wooo hoo, not seen that before but yes!

    Add to your defence some detail about that admission by Gladstones, and then add after that:

    The Defendant will 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:

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

    - 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, and

    - 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

    - 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).

    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.

    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.
    Remove your points 18 through to 26, all of that, delete & replace with the above instead.

    You are surely not going to 'deny being the driver' in this case, and the rest is just template waffle and you have better things to say to the Judge than that!

    Oh, and remove the various times you have copied 'I' and 'My Defence' because a defence does not have 'me', 'myself' or 'I'.

    Replace each time with The Defendant.
    Last edited by Coupon-mad; 13-09-2018 at 1:25 AM.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
    • LewiiiD
    • By LewiiiD 13th Sep 18, 1:29 AM
    • 67 Posts
    • 26 Thanks
    LewiiiD
    • #4
    • 13th Sep 18, 1:29 AM
    • #4
    • 13th Sep 18, 1:29 AM
    "What is the Date of Issue on your Claim Form?"


    Issue was the 14th of Aug, acknowledgment was done on the 17th which was received on the 20th all via MCOL.
    • LewiiiD
    • By LewiiiD 13th Sep 18, 1:30 AM
    • 67 Posts
    • 26 Thanks
    LewiiiD
    • #5
    • 13th Sep 18, 1:30 AM
    • #5
    • 13th Sep 18, 1:30 AM
    Coupon-mad - Ill have a proper look through this in the morning now and get it all drafted up.



    I believe I have to submit defense before the 16th of this month unless mistaken....
    • KeithP
    • By KeithP 13th Sep 18, 10:30 AM
    • 10,585 Posts
    • 10,972 Thanks
    KeithP
    • #6
    • 13th Sep 18, 10:30 AM
    • #6
    • 13th Sep 18, 10:30 AM
    With a Claim Issue Date of 14th August, and having done the AoS in a timely manner, you have until 4pm on Monday 17th September 2018 to file your Defence.

    Still a few days left, but please don't leave it until the 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 the Directions Questionnaire and come back here.
    .
    • Fruitcake
    • By Fruitcake 13th Sep 18, 11:03 AM
    • 37,724 Posts
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    Fruitcake
    • #7
    • 13th Sep 18, 11:03 AM
    • #7
    • 13th Sep 18, 11:03 AM
    Did you get your MP involved last time?
    Have you got him/her involved this time?

    I would have thought that a previous court win should plainly show even an MP that this is a scam and tantamount to demanding money with menaces.
    I married my cousin. I had to...
    I don't have a sister.

    All my screwdrivers are cordless.
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    • LewiiiD
    • By LewiiiD 13th Sep 18, 11:10 AM
    • 67 Posts
    • 26 Thanks
    LewiiiD
    • #8
    • 13th Sep 18, 11:10 AM
    • #8
    • 13th Sep 18, 11:10 AM
    Coupon-Mad



    Please see updated Defence. I have amended and included the points you made. Hope it reads better:






    Introduction


    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. This is a statement of truth and bases of the defence.


    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 defence as may be required upon disclosure of the claimant’s case.


    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.


    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”.


    Rebuttal of Claim

    7. 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 terms of Schedule 4 of the Protections of Freedoms Act 2012.
    f. The claimant company fully complied with the requirements of the Practice Direction for Pre-Action Conduct (Pre-Action Protocol October 2017)
    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.
    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.


    The Defence

    11. The Defendant will reply principally upon the following points:


    12. 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.


    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. 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”.


    c. The claimant is put to strict proof that the signage on the date in question clearly sets out the onerous terms of a parking charge notice, to sufficiently draw the attention of a visitor, as set out in the leading judgement of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3.


    d. In the absence of ‘adequate notice’ 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.

    13. 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.


    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.”

    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


    d. 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

    17. If in the alternative it is the claimant's case that his claim is founded in trespass (which is in any event denied) then in a residential car park setting any damages in trespass can only be assessed based on a calculation of the proportion of income lost based on the time of the alleged occupation. Any sum sought could therefore only be minimal and de-minimis


    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.

    18. 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.


    19. The Claimants Letter of Claim (Letter before claim) failed to include:


    a. The information sheet and reply form
    b. Financial statement


    Further again ignoring the requirements of the Pre-Action Protocol.


    20. 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.


    Once again the Creditor has failed to comply with the Pre-Action protocol as court proceedings were served 14th August 18.


    21. 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”


    22. Taking into account the above points the Defendant will 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).

    23. 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.

    24. 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.


    25. In view of all the foregoing the court is invited to strike the matter out of its own motion.


    26. The claimant is put to strict proof of the assertions they have made or may make in their fuller claim.



    This statement is true to the best of my knowledge and belief.
    Last edited by LewiiiD; 13-09-2018 at 11:12 AM.
    • Le_Kirk
    • By Le_Kirk 13th Sep 18, 11:34 AM
    • 3,346 Posts
    • 2,297 Thanks
    Le_Kirk
    • #9
    • 13th Sep 18, 11:34 AM
    • #9
    • 13th Sep 18, 11:34 AM
    2. This is a statement of truth and bases of the defence
    2. This is a statement of truth and bases basis of the defence
    • LewiiiD
    • By LewiiiD 13th Sep 18, 12:02 PM
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    LewiiiD
    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
    • LewiiiD
    • By LewiiiD 13th Sep 18, 8:46 PM
    • 67 Posts
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    LewiiiD
    Just a thread bump.
    • Fruitcake
    • By Fruitcake 13th Sep 18, 9:24 PM
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    Fruitcake
    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
    Originally posted by LewiiiD
    It would help us if you got your MP involved anyway.
    I married my cousin. I had to...
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    • LewiiiD
    • By LewiiiD 13th Sep 18, 10:17 PM
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    LewiiiD
    I’ll get onto that once this defence has been submitted 👍
    • Coupon-mad
    • By Coupon-mad 13th Sep 18, 11:16 PM
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    Coupon-mad
    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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    • LewiiiD
    • By LewiiiD 13th Sep 18, 11:22 PM
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    LewiiiD
    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
    • By Coupon-mad 13th Sep 18, 11:29 PM
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    Coupon-mad
    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.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
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    • LewiiiD
    • By LewiiiD 13th Sep 18, 11:48 PM
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    LewiiiD
    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!
    • LewiiiD
    • By LewiiiD 14th Sep 18, 11:43 AM
    • 67 Posts
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    LewiiiD
    18,21
    Coupon-mad, I've updated the defense accordingly.



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


    Let me know what you think.


    Introduction


    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. This is a statement of truth and basis of the defence.
    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.
    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.
    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”.


    Rebuttal of Claim

    7. 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 terms of Schedule 4 of the Protections of Freedoms Act 2012.
    f. The claimant company fully complied with the requirements of the Practice Direction for Pre-Action Conduct (Pre-Action Protocol October 2017)
    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.
    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.


    The Defence




    11. The Defendant will reply principally upon the following points:
    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.
    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.
    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.
    15. The Claimants Letter of Claim (Letter before claim) failed to include:
    a. The information sheet and reply form
    b. Financial statement
    Further again ignoring the requirements of the Pre-Action Protocol.
    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.
    Once again the Creditor has failed to comply with the Pre-Action protocol as court proceedings were served 14th August 18.
    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”
    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.
    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.
    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”.

    21. 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.
    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.”

    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
    23. Taking into account the above points the Defendant will 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.

    26. In view of all the foregoing the court is invited to strike the matter out of its own motion.
    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.
    • LewiiiD
    • By LewiiiD 14th Sep 18, 9:18 PM
    • 67 Posts
    • 26 Thanks
    LewiiiD
    Defence bump....
    • Coupon-mad
    • By Coupon-mad 14th Sep 18, 9:50 PM
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    Coupon-mad
    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.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
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