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Help please - Court Claim Form Recieved from Gladstones / UKCPM, PCN court claim
FlyingHorse
post Thu, 30 Nov 2017 - 19:17
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** UPDATED WITH FINAL SUBMITTED DEFENCE STATEMENT **

Hi All,

My situation is as follows:

19/10/16 The incident - M’s flat is a residential building. M and R arrived in a car (belonging to R) and parked in the car park which M has a permit to park in, where it was left for a maximum of 15 minutes whilst unloading.

28/12/16 first letter received from Debt Recovery Plus (DRP) – we moved house in August 2016, the first correspondence we received was from DRP at the end of December claiming a PCN had been sent to our old address from ‘UK Car Park Management Ltd’ and that they had used a ‘tracing service’ to find our new address, we therefore went straight to the ‘debt recovery’ stage and so were advised to ignored the letter. £149 claimed by DRP.

27/01/17 Next letter received from DRP – Letter received with a ‘reduced payment offer’ of £126.65. This letter states “refer to our letter dated 27/01/17” – which is the date of the letter it is written on! Clearly a problem with their mail merge program! Letter ignored.

31/01/17 Another letter from DRP – Duplicate letter received three days later still stating “refer to out letter dated 27/01/17”. Letter ignored.

30/03/17 First letter received from Gladstones Solicitors – More threats of court action. Letter ignored.

Letter Before Claim (LBC) received - LBC received week beginning 16/10/17 stating 30 days to reply (not sure of exact date received). Thinking we had this time, we left this aside as we were having extensive work done on our house and didn’t have the time to respond immediately. Charge increased to £160.

04/11/17 Court Claim Form received – approx. 2 weeks from receiving LBC, and on the day we said we would sit down to respond properly to the LBC (typical!), we received a court claim. We were surprised as we thought we had around 2 more weeks to respond, but after going back to check the LBC, we find it was dated 03/10/17 so looks as though it was backdated! I realise we should have checked this carefully in the first place but we were extremely busy at the time.

Court Claim = £160 + £25 court fee + £50 legal representative costs + interest.

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I have Acknowledged Service through MCOL and submitted a defence statement (see below).
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Things I am doing:

• M’s landlord will be providing the contract with the landlord and/or PCC so that terms of the lease RE: parking can be examined.

• I have checked M’s tenancy agreement for terms regarding parking. The only thing contained is:
4.6 Use of the Room and the Property and the Contents In this clause, obligations relating to the Room and the Room Contents are the Tenant’s sole responsibility. Obligations relating to the shared areas of the Property and the Property Contents are the Tenant’s joint responsibility, together with the other occupiers (see also clause 3.3). The Tenant will:

q. show proper consideration for others in the neighbourhood and, if keeping a car at the Property, not park so as to cause a nuisance or obstruction, or sound the car’s horn without due course, or rev the engine or slam the doors late at night;

• I have taken photographs / videos of signage at the car park.




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Notes:

• The signage is very poor. Font sizes very small. The charge stated is £100, yet the first letter we received states £149.

• There are other signs from a totally different company (W.Y.C.S Parking Services) placed adjacent to the UKCPM ones, which totally conflict with the ones from UKCPM. Highly confusing to say the least. How can one be expected to comply with terms from two separate companies?

• No PCN was ever received, we went straight to debt recovery stage and no evidence has been presented to us.

------------------------------------------------------------------------------

Defence Statement

1. The Defendant denies that the Claimant is entitled to relief claimed in the sum of £XXX, or at all, for the reasons stated in the following paragraphs.

2. It is admitted that the Defendant is/was the Registered Keeper of the vehicle in question on the material date. The Defendant was, at the material time, accompanied by the tenant of a property at the location at that time.

3. On the material date, the Defendant and another party stopped the vehicle at a convenient point close to the entrance of the building, for the purposes of loading and unloading.

4. On any reasonable construction, this action did not constitute 'parking'. In any event, it would be an implied term of the tenancy agreement that tenants should be able to park near the entrance temporarily, in order to transfer heavy or bulky items from the vehicle to the property, or vice versa.

5. The Assured Shorthold Tenancy Agreement is the legal basis upon which the Tenant occupied the property. On the subject of parking, it states "...if keeping a car at the Property, not park so as to cause a nuisance or obstruction, or sound the car’s horn without due course, or rev the engine or slam the doors late at night...". The agreement does not specify any other conditions of parking, and the Defendant relies upon the Tenant's delegated authority under this contract as having primacy of contract over any purported contractual terms asserted by the Claimant's signage.

6. It is, therefore, denied that the Defendant was under any obligation to display a permit at any time, or to pay penalties to a third party (the Claimant) for non-display of same. There are a number of authorities which support this position.

7. The Defendant has no knowledge of whether there is any contractual arrangement between the Claimant and the owner or occupier of the land in question, or, if such a contractual arrangement exists, what the terms of that arrangement are. The Claimant is therefore required to prove that it has the necessary standing to bring this claim.

8. It is denied that a contract was formed between the Claimant and the Defendant. This is because no offer was communicated by the Claimant, effectively or at all, that was capable of acceptance by the Defendant, expressly, by conduct, or at all.

9. The Claimant’s signs are positioned adjacent to signs from a separate company (‘XXXX’) claiming management of the car park. A driver could not reasonably be expected to comply with different terms of parking claimed by two separate companies on the same land, and the principle of contra proferentem would mean that such ambiguity should be resolved in the Defendant's favour.

10. It is denied that the Claimant is entitled to the sum claimed. If, which is denied, a contract was in place between the Claimant and the Defendant and the Defendant breached a term of that contract it is denied that the Claimant's losses amount to the sum claimed. Alternatively, if, which is denied, a contract was in place between the Claimant and the Defendant under which the Defendant is liable to pay the sum claimed to the Claimant it is denied that the sum due under the contract is the sum claimed.

11. The Claimant has not complied with the relevant Pre-Action Protocol. The Defendant has not had the opportunity to comply.

12. When Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because it is expected that the Claimant will use its witness statement to provide the sort of detail which should have been disclosed much earlier, and the Defendant should have the opportunity to consider it, prior to serving evidence and witness statements in support of this Defence.

I believe that the facts stated in this Defence are true.

This post has been edited by FlyingHorse: Tue, 5 Dec 2017 - 10:04
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Jlc
post Thu, 30 Nov 2017 - 20:37
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We are to assume the permit was not displayed?

Was a PCN placed on the car at the time? (I'm thinking this could be a resident snapper 'self ticketing')

In regards to the signage the large font draws one's attention to 'authorised vehicles only' - it isn't immediately clear what 'authorised' means. (It could be argued that the tenant authorised the use)

The core £100 term is tiny. (Fails the 'Beavis' test)

Are the spaces number / allocated? (Or 'free for all'?)

See here.

Was the v5 updated on the car promptly? (The move seems ages before the incident)

The LBC was dated in October - was it compliant with the new Pre-Action Protocol for debt claims?

In regards to the other parking company - it would be diligent for UKCPM to have removed these signs (or at least contacted the other company) when they gained authority on the land as there is now doubt with who you formed a contract with. You could argue you read the other company's signs and agreed those terms and the claimant is wrong!

This post has been edited by Jlc: Thu, 30 Nov 2017 - 21:07


--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information, SAR=Subject Access Request

Private Parking - remember, they just want your money and will say almost anything to get it.
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southpaw82
post Thu, 30 Nov 2017 - 20:53
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Your defence is far (far) too long.

It contains references to law, which is unnecessary.

It contains evidence, which properly belongs in a witness statement.

A defence has to:
(1) admit, deny (with reasons), or state that the defendant is unable to comment on every allegation in the claim
(2) advance any positive defence the defendant may have (aka tell his side of the story

Should be done in a dozen paragraphs at most.





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FlyingHorse
post Thu, 30 Nov 2017 - 21:49
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Thanks both for the responses.

QUOTE (Jlc @ Thu, 30 Nov 2017 - 20:37) *
We are to assume the permit was not displayed?


No permit was displayed, and indeed, no permit was ever issued. The resident text her registration plate to some guy when she moved in who then added her plate to a 'database'.

QUOTE
Was a PCN placed on the car at the time? (I'm thinking this could be a resident snapper 'self ticketing')


There was no ticket placed on the car. The first we heard about it was when we received a debt collectors letter to our new address. We have never seen an actual PCN.

QUOTE
In regards to the signage the large font draws one's attention to 'authorised vehicles only' - it isn't immediately clear what 'authorised' means. (It could be argued that the tenant authorised the use)


That indeed would be my argument.

QUOTE
Are the spaces number / allocated? (Or 'free for all'?)


No allocated / numbered parking. And the car park is not busy, there is always plenty of space - I don't know if that is at all relevant.

QUOTE
Was the v5 updated on the car promptly? (The move seems ages before the incident)


No the v5 was not updated for a good few months after moving. It slipped our minds until it came time to tax the vehicle.

QUOTE
The LBC was dated in October - was it compliant with the new Pre-Action Protocol for debt claims?


No I don't believe it was. The exact wording on the LBC was:

‘The driver of the vehicle registration
XXXX XXX incurred the parking
charge(s) on XX/XX/2016 for breaching the
terms of parking on the land at xxxx.
The Defendant was driving the Vehicle and/or
is the Keeper of the Vehicle
AND THE CLAIMANT CLAIMS
£160.00 for Parking Charges / Damages and
indemnity costs if applicable, together with
interest of £12.xx pursuant to s69 of the
County Courts Act 1984 at 8% pa, continuing
to Judgement at £0.04 per day’

We have also never received a PCN - which again I think breaches the new protocols (?)

QUOTE
In regards to the other parking company - it would be diligent for UKCPM to have removed these signs (or at least contacted the other company) when they gained authority on the land as there is now doubt with who you formed a contract with. You could argue you read the other company's signs and agreed those terms and the claimant is wrong!


I have pictures of the other sign if that helps?





Any advice on how to modify / shorten my defence?

This post has been edited by FlyingHorse: Fri, 1 Dec 2017 - 20:38
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southpaw82
post Thu, 30 Nov 2017 - 21:54
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You can't do a defence until you have some facts. They allege the defendant broke the terms of the contract. Was the vehicle not authorised to be there? Did the defendant have a permit?

I don't think you've quoted from a letter before claim, you appear to have quoted the very brief particulars of claim from the claim form. No matter, as a failure to abide by a pre-action protocol is rarely a defence and normally only goes to costs once the case is decided.


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Jlc
post Thu, 30 Nov 2017 - 22:01
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Indeed, the new PAP is not a defence but does allow certain communication and timescales to narrow issues prior to the claim.

The copied text is indeed the Particulars of Claim.

Not updating the v5 does do any favours.

QUOTE (FlyingHorse @ Thu, 30 Nov 2017 - 21:49) *
We have also never received a PCN - which again I think breaches the new protocols (?)

They don't have to put a PCN on the car at the time. It can all be done to the keeper. There are certain timings in regards to keeper liability.

Obviously, we don't know if they are claiming such liability under the Protection of Freedoms Act.


--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information, SAR=Subject Access Request

Private Parking - remember, they just want your money and will say almost anything to get it.
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southpaw82
post Thu, 30 Nov 2017 - 22:01
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QUOTE (Jlc @ Thu, 30 Nov 2017 - 21:58) *
Indeed, the new PAP is not a defence but does allow certain communication and timescales to narrow issues prior to the claim.

Which is why a simple sentence in the defence stating that it hasn't been complied with is sufficient. It needs no more than that.


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ostell
post Thu, 30 Nov 2017 - 22:11
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Both those signs are forbidding, neither are offering a contract ot park if you are not authorised, though the WYCS one tries.

Go for the confusing and forbidding signage, who are you allegedly contracting with?
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FlyingHorse
post Thu, 30 Nov 2017 - 22:13
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Thanks again for the responses.

The tenant gave permission for the vehicle to park in the car park - the tenant was being given a lift by the defendant who then helped the tenant in to her flat with her bags before leaving roughly 15 minutes later.

The defendant didn't have a permit - but I must stress that the tenant also didn't have a physical permit that needed to be displayed in the windscreen as the sign says it should. The tenant text her reg plate to some guy who claimed to be managing the car park when she moved in, who then added her reg plate to a 'database' of some sort. She wasn't given a permit to display.

I have the text correspondence between this person and the tenant regarding this.

What would you suggest I include in the defence - would you be able to give me some pointers as to what I should include as I was led to believe I would need to put in the sort of detail I included in my original post.

QUOTE (ostell @ Thu, 30 Nov 2017 - 22:11) *
Both those signs are forbidding, neither are offering a contract ot park if you are not authorised, though the WYCS one tries.

Go for the confusing and forbidding signage, who are you allegedly contracting with?


Hi Ostell. I'm unsure what you mean by 'forbidding' in this context? Could you perhaps clarify?
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southpaw82
post Thu, 30 Nov 2017 - 22:26
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QUOTE (FlyingHorse @ Thu, 30 Nov 2017 - 22:13) *
The tenant gave permission for the vehicle to park in the car park - the tenant was being given a lift by the defendant who then helped the tenant in to her flat with her bags before leaving roughly 15 minutes later.


So arguably an authorised vehicle, in objective terms?

QUOTE
The defendant didn't have a permit - but I must stress that the tenant also didn't have a physical permit that needed to be displayed in the windscreen as the sign says it should. The tenant text her reg plate to some guy who claimed to be managing the car park when she moved in, who then added her reg plate to a 'database' of some sort. She wasn't given a permit to display.


So arguably a permitted vehicle?

QUOTE
What would you suggest I include in the defence - would you be able to give me some pointers as to what I should include as I was led to believe I would need to put in the sort of detail I included in my original post.


Yes, when I'm not trying to do it on a phone. You were led to believe that presumably by people who have never practiced civil litigation in their lives, I suppose? The stuff isn't fundamentally wrong (though sometimes it can be) but a defence of that length and those many issues in a small claims case is arguably unreasonable. If I was acting for the claimant and won I'd be arguing for costs against you on the basis of unreasonable conduct. If I lost I'd be arguing you shouldn't get your costs for the same reason.

QUOTE
QUOTE (ostell @ Thu, 30 Nov 2017 - 22:11) *
Both those signs are forbidding, neither are offering a contract ot park if you are not authorised, though the WYCS one tries.

Go for the confusing and forbidding signage, who are you allegedly contracting with?


Hi Ostell. I'm unsure what you mean by 'forbidding' in this context? Could you perhaps clarify?

If I understand him correctly, he means the sign fails to communicate a contractual offer that can be accepted. I'm not wholly convinced and a court will only adopt such an approach as a last resort, it will always try to give commercial meaning to a contract (unless the judge wants a reason to dismiss the case!)

This post has been edited by southpaw82: Thu, 30 Nov 2017 - 22:30


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Jlc
post Thu, 30 Nov 2017 - 22:32
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'Forbidding' simply means a contract was not offered that could be accepted. (Some Judges buy it)

So, a proper contract would say - 'You can park here without a permit for a charge of £100'.


--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information, SAR=Subject Access Request

Private Parking - remember, they just want your money and will say almost anything to get it.
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FlyingHorse
post Fri, 1 Dec 2017 - 11:01
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Hi All,

I have shortened my defence statement and removed any references to specific cases (except the Bevis case which I think needs to be referenced - correct me if I'm wrong!)

I've also added in specific arguments referring to the 'valid permit' and 'authorisation' parts of the sign, and some added weight to the argument regarding the conflicting sign from another parking company.

Please let me know if there is anything in here that shouldn't be or if you think I've missed anything. Thanks!!


Preliminary matters.

This Claimant has not complied with pre-court protocol (as outlined in the new Pre Action Protocol for Debt Claims, 1 October 2017).

a. A copy of the alleged contract has never been provided to the Defendant.
b. There was no compliant ‘Letter before County Court Claim’, under the Practice Direction.
c. This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The badly mail-merged documents contain very little information.
d. The Schedule of information is sparse of detailed information.
e. The Claim Form Particulars were extremely sparse and divulged no cause of action nor sufficient detail. The Defendant has no idea what the claim is about - why the charge arose, what the alleged contract was; nothing that could be considered a fair exchange of information.

The Claim Form Particulars did not contain any evidence of contravention or photographs. These documents, and the ‘Letter before County Court Claim’ should have been produced, pursuant to paragraph 3 of the Practice Direction – Pre Action Conduct. This constitutes a deliberate attempt to thwart any efforts to defend the claim or to “take stock”, pursuant to paragraph 8 of the Practice Direction. Again, this totally contradicts the guidance outlined in the new Pre-Action Protocol for Debt Claims (2017).
Once Particulars compliant with the Pre-Action Protocol for Debt Claims (2017) have been filed, the Defendant asks for reasonable time to file another defence.

Defence Statement

As the registered keeper of the relevant vehicle, the Defendant denies liability for the entirety of the claim, for each of the following reasons:

1. This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The badly mail-merged documents contain very little information. 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.

2. It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking parking management. The Claimant has provided no proof of any such entitlement. The Claimant is not 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 rights to bring this case.

3. It is denied that there was a contract made between the Claimant and the driver through signage or that there was any agreement between the Defendant or driver of the vehicle and the Claimant. 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 tenancy agreement. The signs fail for the following reasons:
3.1 The area was badly lit and sparsely signed.
3.2. The Claimant’s signs are in small print, the terms are illegible and a driver could not reasonably be expected to read and understand the terms of parking on entering the car park.
3.3. The Claimant’s signs are positioned adjacent to signs from a separate company claiming management of the car park. A driver could not reasonably be expected to comply with different terms of parking claimed by two separate companies on the same land. It is impossible for the defendant to have agreed conflicting terms with two wholly separate companies on the same land, or indeed to determine which company (if any) has the right to demand compliance with said terms.
3.4 It is denied that the signs used by this claimant can have created a fair or transparent contract with a driver. The signs are forbidding and do not offer a contract to park. Nowhere on the sign does it inform the reader that by parking in the car park, he/she is entering into a contract with the Claimant. The words “contract’ or “agreement’ do not appear at all within the sign. The phrase “Terms and Conditions” are not synonymous with a contract. The opening words of the sign appear to be designed more to ward off trespassers than to enter into a contract with the driver. As the signs failed to enter the Driver into a contract with the Claimant then any costs claimed on a contractual basis cannot be valid.
3.5 The signs did not comply with the requirements of the Code of Practice of the Independent Parking Committee’s Accredited Operators Scheme to which the claimant was a signatory at the relevant time.
3.6. The signs read ‘AUTHORISED VEHICLES ONLY’. The vehicle was given objective authorisation to park on the land by a resident who was an occupant of the vehicle at the time. It is the defendant’s belief that the resident has the right to authorise a vehicle to park in the car park. There are no limits to the number or allocation of parking spaces available to residents and the spaces are not numbered.
3.7. The signs read ‘A Valid Permit must be clearly displayed in windscreen at all times’. However, no physical permit was ever issued to the resident and there was no obligation to display a permit expressed within the tenancy agreement. It was impossible for a ‘valid permit’ to have been displayed in the windscreen of the vehicle.

4. The Defendant would like to point out that this car park can be fully distinguished from the details, facts, and location in the Beavis (2015) case. It is denied that at a residential site with residents parking with full authorisation at their own home, the claimant as a third party firm incentivised to issue penalties, have any overriding 'legitimate interest' (like there was in the Beavis case) nor complex contractual arrangement that can disengage Lord Dunedin's penalty rule.

5. The Claimant has added unrecoverable sums to the original parking charge.
5.1 The Defendant also disputes that the Claimant has incurred £50 legal representative’s costs to pursue an alleged £160 debt.
5.2 The Claimant described the charge of £50.00 "legal representative’s costs" not "contractual costs". CPR 27.14 does not permit these to be recovered in the Small Claims Court.

6.1 The Claimant claimed to have sent a Parking Charge Notice to the Defendant’s former address which was not received by the Defendant. No replacement PCN was sent to the Defendant’s current address. The first correspondence seen by the Defendant was a ‘Demand for payment’ from ‘Debt Recovery Plus Ltd’ dated 28th December 2016.
6.2 The Claimant has sent threatening and misleading demands which stated that further debt recovery action would be taken to recover what is owed, adding further unexplained charges of varying amounts (£49, £26.65, £60) with no evidence of how this extra charge has been calculated. This appears to be an added cost with no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.
6.2.1 No figure for additional charges was 'agreed' nor could it have formed part of the alleged 'contract' because no such indemnity costs were quantified on the signs.
6.3 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, which has never been seen by the Defendant.
6.4 The Defendant denies that the driver 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.

7. The Defendant asks that the court gives consideration to exercise its discretion to strike out or dismiss the case under Rule 3.4(2)(a) of PRACTICE DIRECTION 3A as having not set out a concise statement of the nature of the claim or disclosed reasonable grounds or particulars for bringing a claim (Part 16.4(1)(a) and PRACTICE DIRECTION 16 paragraphs 3.1-3.8) and/or for the claim having no realistic prospects of success.

8. If the court is not minded to make such an order, then when Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because it is expected that the Claimant will use its witness statement to provide the sort of detail which should have been disclosed much earlier, and the Defendant should have the opportunity to consider it, prior to serving evidence and witness statements in support of this defence.

9. The Defendant denies the claim in its entirety voiding any liability to the claimant for all amounts due to the aforementioned reasons. It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious. As such, the Defendant is keeping careful note of all wasted time/costs in dealing with this matter and should the case continue to trial (or in the event of the Claimant filing a Notice of Discontinuance) the Defendant will seek further costs, pursuant to Civil Procedure Rule 27.14(2)(g).

I believe the facts stated in this Defence Statement are true.

This post has been edited by FlyingHorse: Fri, 1 Dec 2017 - 11:56
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southpaw82
post Fri, 1 Dec 2017 - 11:58
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Far too long.

The preliminary matters section can be deleted in its entirety.

As to the rest I’ll have a look later. But we’re really talking less than two pages of A4 here, not a novel.


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FlyingHorse
post Fri, 1 Dec 2017 - 12:31
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QUOTE (southpaw82 @ Fri, 1 Dec 2017 - 11:58) *
Far too long.

The preliminary matters section can be deleted in its entirety.

As to the rest I’ll have a look later. But we’re really talking less than two pages of A4 here, not a novel.


Should I make no reference to the new protocols not being followed? Or should I just add this as another short paragraph in my defence statement?

Removing the preliminary matters would reduce the length to 2 pages of A4 I believe.

I'm struggling to prune it down further. Any pointers as to what else I could remove would be much appreciated.
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nosferatu1001
post Fri, 1 Dec 2017 - 12:34
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It isnt strictly a defence, so doesnt realy belong in a defence. You could add this in the WS you produce later on.
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southpaw82
post Fri, 1 Dec 2017 - 12:48
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QUOTE (FlyingHorse @ Fri, 1 Dec 2017 - 12:31) *
Should I make no reference to the new protocols not being followed? Or should I just add this as another short paragraph in my defence statement?


It will simply appear towards the end of your defence, thus “The Claimant has not complied with the relevant pre-action protocol.”

QUOTE
Removing the preliminary matters would reduce the length to 2 pages of A4 I believe.


Right but it’s not just a matter of arbitrary length, it’s a matter of content.

QUOTE
I'm struggling to prune it down further. Any pointers as to what else I could remove would be much appreciated.

Well, anything that is law or evidence should be removed. Your defence isn’t arguing your case for you: you do that at trial and prove any assertions via evidence. All your defence is doing is letting the claimant and the court know the nature of your defence.

QUOTE (nosferatu1001 @ Fri, 1 Dec 2017 - 12:34) *
It isnt strictly a defence, so doesnt realy belong in a defence. You could add this in the WS you produce later on.

Compliance with a pre-action protocol should be stated in a particulars of claim (PD 16, 9.7) and it is logical that this should be mirrored in the defence, and that is indeed the practice.


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FlyingHorse
post Fri, 1 Dec 2017 - 13:24
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QUOTE (southpaw82 @ Fri, 1 Dec 2017 - 12:48) *
Well, anything that is law or evidence should be removed. Your defence isn’t arguing your case for you: you do that at trial and prove any assertions via evidence. All your defence is doing is letting the claimant and the court know the nature of your defence.


I think where I'm struggling is in determining what constitutes evidence.

Perhaps some of paragraph 6 is evidence?

Do paragraphs 3.6 and 3.7 constitute evidence? As it seems to me that these are the main crux of my argument, is it not prudent to include this level of detail?

As an example, could I modify paragraph 3.4 to:

"3.4 It is denied that the signs used by this claimant can have created a fair or transparent contract with a driver. The signs are forbidding and do not offer a contract to park. As the signs failed to enter the Driver into a contract with the Claimant then any costs claimed on a contractual basis cannot be valid."

Does this cover my bases at this stage?
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southpaw82
post Fri, 1 Dec 2017 - 14:20
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QUOTE (FlyingHorse @ Fri, 1 Dec 2017 - 13:24) *
I think where I'm struggling is in determining what constitutes evidence.


I’m not surprised - it’s a skill and like all skills it’s developed by repetition.

QUOTE
As an example, could I modify paragraph 3.4 to:

"3.4 It is denied that the signs used by this claimant can have created a fair or transparent contract with a driver. The signs are forbidding and do not offer a contract to park. As the signs failed to enter the Driver into a contract with the Claimant then any costs claimed on a contractual basis cannot be valid."

Does this cover my bases at this stage?


Using your example in quote marks, all but the last sentence is applicable. The last sentence is argument, which should be saved for court.


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FlyingHorse
post Fri, 1 Dec 2017 - 19:00
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OK thanks. Any other help here - I am struggling a bit now to be honest.

Here's my latest version:

Defence Statement

As the registered keeper of the relevant vehicle, the Defendant denies liability for the entirety of the claim, for each of the following reasons:

1. This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The badly mail-merged documents contain very little information. 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.

2. It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking parking management. The Claimant has provided no proof of any such entitlement. The Claimant is not 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 rights to bring this case.

3. It is denied that there was a contract made between the Claimant and the driver through signage or that there was any agreement between the Defendant or driver of the vehicle and the Claimant. 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 tenancy agreement. The signs fail for the following reasons:
3.1 The area was badly lit and sparsely signed.
3.2. The Claimant’s signs are in small print, the terms are illegible and a driver could not reasonably be expected to read and understand the terms of parking on entering the car park.
3.3. The Claimant’s signs are positioned adjacent to signs from a separate company claiming management of the car park. A driver could not reasonably be expected to comply with different terms of parking claimed by two separate companies on the same land. It is impossible for the defendant to have agreed conflicting terms with two wholly separate companies on the same land, or indeed to determine which company (if any) has the right to demand compliance with said terms.
3.4 It is denied that the signs used by this claimant can have created a fair or transparent contract with a driver. The signs are forbidding and do not offer a contract to park. As the signs failed to enter the Driver into a contract with the Claimant then any costs claimed on a contractual basis cannot be valid.
3.5 The signs did not comply with the requirements of the Code of Practice of the Independent Parking Committee’s Accredited Operators Scheme to which the claimant was a signatory at the relevant time.
3.6. The vehicle was given objective authorisation to park on the land by a resident who was an occupant of the vehicle at the time. It is the defendant’s belief that the resident has the right to authorise a vehicle to park in the car park. There are no limits to the number or allocation of parking spaces available to residents and the spaces are not numbered.
3.7. No physical permit was ever issued to the resident and there was no obligation to display a permit expressed within the tenancy agreement. It was impossible for a ‘valid permit’ to have been displayed in the windscreen of the vehicle.

4. The Defendant would like to point out that this car park can be fully distinguished from the details, facts, and location in the Beavis (2015) case. It is denied that at a residential site with residents parking with full authorisation at their own home, the claimant as a third party firm incentivised to issue penalties, have any overriding 'legitimate interest' (like there was in the Beavis case) nor complex contractual arrangement that can disengage Lord Dunedin's penalty rule.

5. The Claimant has added unrecoverable sums to the original parking charge.
5.1 The Defendant also disputes that the Claimant has incurred £50 legal representative’s costs to pursue an alleged £160 debt.
5.2 The Claimant described the charge of £50.00 "legal representative’s costs" not "contractual costs". CPR 27.14 does not permit these to be recovered in the Small Claims Court.

6.1 The Claimant claimed to have sent a Parking Charge Notice to the Defendant’s former address which was not received by the Defendant. No replacement PCN was sent to the Defendant’s current address. The first correspondence seen by the Defendant was a ‘Demand for payment’ from ‘Debt Recovery Plus Ltd’ dated 28th December 2016.
6.2 The Claimant has sent threatening and misleading demands which stated that further debt recovery action would be taken to recover what is owed, adding further unexplained charges of varying amounts (£49, £26.65, £60) with no evidence of how this extra charge has been calculated. This appears to be an added cost with no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.
6.2.1 No figure for additional charges was 'agreed' nor could it have formed part of the alleged 'contract' because no such indemnity costs were quantified on the signs.
6.3 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, which has never been seen by the Defendant.
6.4 The Defendant denies that the driver 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.

7. The Defendant asks that the court gives consideration to exercise its discretion to strike out or dismiss the case under Rule 3.4(2)(a) of PRACTICE DIRECTION 3A as having not set out a concise statement of the nature of the claim or disclosed reasonable grounds or particulars for bringing a claim (Part 16.4(1)(a) and PRACTICE DIRECTION 16 paragraphs 3.1-3.8) and/or for the claim having no realistic prospects of success.

8. If the court is not minded to make such an order, then when Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because it is expected that the Claimant will use its witness statement to provide the sort of detail which should have been disclosed much earlier, and the Defendant should have the opportunity to consider it, prior to serving evidence and witness statements in support of this defence.

9. The Defendant denies the claim in its entirety voiding any liability to the claimant for all amounts due to the aforementioned reasons. It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious. As such, the Defendant is keeping careful note of all wasted time/costs in dealing with this matter and should the case continue to trial (or in the event of the Claimant filing a Notice of Discontinuance) the Defendant will seek further costs, pursuant to Civil Procedure Rule 27.14(2)(g).

10. The Claimant has not complied with the relevant pre-action protocol.

I believe the facts stated in this Defence Statement are true.
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southpaw82
post Fri, 1 Dec 2017 - 19:03
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I’d just stop trying if I were you and wait til I show you my version. You’ll be amazed at the difference.


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