County Court Claim Form Received Options

[PCNdriverhelp]

Hi,

A driver parked in a small car park where they had a permit for a privately owned housing association car park but they were in a hire vehicle. As keeper I have received CC documents from Gladstones who have now issued on it and I have 14 days to file a defence. Is it too late to file or defence or do I just cop up and pay? I have proof I had a permit, and I didn't think JD Parking Ltd have the authority to take me to court?

This post has been edited by PCNdriverhelp: Mon, 10 Sep 2018 - 17:46

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[PCNdriverhelp]

Does this defence make sense? Is there anything else I need to add to it?

1. I am the defendant in this matter.

2. The Particulars of Claim provide no information regarding what the terms of parking were, how they were allegedly breached, whether the claim is brought for breach of contract or trespass, nor anything which could be considered a fair exchange of information. The Claimant’s solicitor has not stated on the claim form that particulars of claim will follow. The Defendant wrote to the Claimant’s solicitor on 10th September 2018 to request further information on the grounds of the claim but did not receive a response.

3. The Defendant invites the court to strike out or dismiss the claim under 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).

4. In the alternative, the defendant requests the court orders the Claimant to provide further and better particulars of claim.

5. In order to assist the court, the defendant will submit a defence based on the particulars supplied of the date and location in question but reserves the right to amend the defence if the claimant provides further and better particulars.

6. The Claimant has no cause of action against the Defendant on the following grounds:

6.1 The defendant had full authority of the landowner to park on the land in question during the alleged incurrence on 04/10/2016, after purchasing an annual ticket through an online portal. An online receipt of purchase of an ‘annual car park pass’ was received by email dated 24th September 2016.

6.2 No evidence has been supplied by the Claimant as to who parked the vehicle. The defendant does not recognise the vehicle registration XXXXX and does not own this registration.

6.3 Should the vehicle be a hire car, keeper liability has not passed in accordance with Protection of Freedoms Act 2012 Schedule 4.

Section 14 (2)

(a) the creditor has within the relevant period given the hirer a notice in accordance with sub-paragraph (5) (a “notice to hirer”), together with a copy of the documents mentioned in paragraph 13(2) and the notice to keeper;

(b) a period of 21 days beginning with the day on which the notice to hirer was given has elapsed;

The defendant puts the claimant to strict proof that the ‘notice to hirer’ was sent together with the documents mentioned in paragraph 13 (2);

Section 13 (2)

The creditor may not exercise the right under paragraph 4 to recover from the keeper any unpaid parking charges specified in the notice to keeper if, within the period of 28 days beginning with the day after that on which that notice was given, the creditor is given—
(a)a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement;
(b)a copy of the hire agreement; and
© a copy of a statement of liability signed by the hirer under that hire agreement.


6.4 A contract was never formed. There was never a contractual relationship, whether categorised as a licence or some form of contractual permission, because the signage does not offer an invitation to park on certain terms.

6.5 Locus standi

The Claimant has no standing to bring this claim, or in the alternative the doctrine of privity applies and the Claimant is not privy to a contract that is between the landowner and the defendant. The proper Claimant is the landowner. The Claimant is put to strict proof that they have the legal right to bring a claim either as the landholder or the agent of the landholder. The Defendant has reasonable belief that a statutory assignment has not taken place, therefore per Viscount Haldane’s judgement in Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915] AC 847, the Claimant may only sue on the contract as an agent if consideration has been given by the landowner personally or through the Claimant acting as agent; no such consideration flows as the Claimant does not receive payment from the landowner to manage the site in the landowner’s commercial interest, does not receive any proceeds from the sale of tickets, and does not offer parking as consideration for the Defendant’s payment for a licence to park. The Claimant’s business model is solely driven by the recovery of penalty fees. Strict proof is required that there is an assignment of contractual rights leading from the landowner to KBT Cornwall Ltd T/as Armtrac Security Services. The Defendant has reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name and that they have no locus standi to bring this case, per Tweddle v Atkinson [1861] 1B &S 393, as confirmed by the House of Lords in Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd.

6.6 Trespass

The Particulars of Claim are deficient in establishing whether the claim is brought in trespass. In the event that a trespass claim is brought by the Claimant, the Defendant parked on land where parking was invited and paid for full authority to park, and did not overstay. Trespass cannot therefore apply. Furthermore, the Defendant has reasonable belief that the Claimant does not have a contractual or proprietary right to occupy or possess the car park per Hill v Tupper [1863] 2 H & C 121; the landowner has not assigned rights to enable the Claimant to pursue a case under the tort of trespass. In any event, the Defendant’s sole liability would be damages in favour of the landowner. Per the Supreme Court in the case of Cavendish Square Holding BV v Talal El Makdessi and ParkingEye Ltd v Beavis [2015] UKSC 67 (the Beavis case), trespass is limited to the landowner themselves claiming for a nominal sum.

7 Statement of Truth
I believe that the facts stated in this Witness Statement are true.
Dated 24/09/18

This post has been edited by PCNdriverhelp: Mon, 24 Sep 2018 - 21:16

[PCNdriverhelp]

Also.....in addition to the above, is there anything I can add regarding the signage? There are two or three of these signs in the car park, and one single sign at the entrance.



This post has been edited by PCNdriverhelp: Mon, 24 Sep 2018 - 21:45

[ostell]

Sign is a forbidding sign. It only permits parking for the authorised and permit holders only. It can not then go on to offer parking for those users not permitted.

[PCNdriverhelp]

Sign is a forbidding sign. It only permits parking for the authorised and permit holders only. It can not then go on to offer parking for those users not permitted.

What does this mean in terms of my defence?

[ostell]

It means it can't create a contract for parking with the driver and therefore with no contract to park there can be no breach. The only claimant would be the landowner, for trespass.

[nosferatu1001]

In order to create a contract you need
offer
acceptance
consideration

They do not OFFER anything at all if you are not an authorised person. If there is no offer there can be no contract. If there is no contract there cannot be a claim for breach of contract!

[PCNdriverhelp]

Finished. Added in the part about contract. Not sure if I need to add anything more?, or make this more concise? If someone could read over it I would be grateful!


1. I am the defendant in this matter.

2. The Particulars of Claim provide no information regarding what the terms of parking were, how they were allegedly breached, whether the claim is brought for breach of contract or trespass, nor anything which could be considered a fair exchange of information. The Claimant’s solicitor has not stated on the claim form that particulars of claim will follow. The Defendant wrote to the Claimant’s solicitor on 10th September 2018 to request further information on the grounds of the claim but did not receive a response.

3. The Defendant invites the court to strike out or dismiss the claim under 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).

4. In the alternative, the defendant requests the court orders the Claimant to provide further and better particulars of claim.

5. In order to assist the court, the defendant will submit a defence based on the particulars supplied of the date and location in question but reserves the right to amend the defence if the claimant provides further and better particulars.

6. The Claimant has no cause of action against the Defendant on the following grounds:

6.1 No evidence has been supplied by the Claimant as to who parked the vehicle.

6.2 The defendant does not recognise the vehicle registration ****** and does not own this vehicle. Should the vehicle be a hire car, keeper liability has not passed in accordance with Protection of Freedoms Act 2012 Schedule 4.

Section 14 (2)

(a) the creditor has within the relevant period given the hirer a notice in accordance with sub-paragraph (5) (a “notice to hirer”), together with a copy of the documents mentioned in paragraph 13(2) and the notice to keeper;

(b) a period of 21 days beginning with the day on which the notice to hirer was given has elapsed;

The defendant puts the claimant to strict proof that the ‘notice to hirer’ was sent together with the documents mentioned in paragraph 13 (2);

13 (2)The creditor may not exercise the right under paragraph 4 to recover from the keeper any unpaid parking charges specified in the notice to keeper if, within the period of 28 days beginning with the day after that on which that notice was given, the creditor is given—
(a)a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement;
(b)a copy of the hire agreement; and
©a copy of a statement of liability signed by the hirer under that hire agreement.

6.3 A contract was never formed. There was never a contractual relationship, whether categorised as
a licence or some form of contractual permission, because the signage does not offer an invitation to park on certain terms. The signs through the car park are forbidding signs, permitting only authorised vehicles and permit holders only.

6.4 Consumer Rights Act (CRA) 2015 – Unfair Terms

Even if a contract had been formed it would be void, or in the alternative the terms are either not transparent or are unfair, and these terms are not binding on the consumer. Section 71 of the Consumer Rights Act 2015 provides that the Court has a duty to consider the fairness of the terms.

6.5 Locus standi

The Claimant has no standing to bring this claim, or in the alternative the doctrine of privity applies and the Claimant is not privy to a contract that is between the landowner and the defendant. The proper Claimant is the landowner. The Claimant is put to strict proof that they have the legal right to bring a claim either as the landholder or the agent of the landholder. The Defendant has reasonable belief that a statutory assignment has not taken place, therefore per Viscount Haldane’s judgement in Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915] AC 847, the Claimant may only sue on the contract as an agent if consideration has been given by the landowner personally or through the Claimant acting as agent; no such consideration flows as the Claimant does not receive payment from the landowner to manage the site in the landowner’s commercial interest, does not receive any proceeds from the sale of tickets, and does not offer parking as consideration for the Defendant’s payment for a licence to park. The Claimant’s business model is solely driven by the recovery of penalty fees. Strict proof is required that there is an assignment of contractual rights leading from the landowner to KBT Cornwall Ltd T/as Armtrac Security Services. The Defendant has reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name and that they have no locus standi to bring this case, per Tweddle v Atkinson [1861] 1B &S 393, as confirmed by the House of Lords in Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd.

6.6 Trespass

The Particulars of Claim are deficient in establishing whether the claim is brought in trespass. In the event that a trespass claim is brought by the Claimant, the Defendant parked on land where parking was invited and paid for full authority to park and did not overstay. Trespass cannot therefore apply. Furthermore, the Defendant has reasonable belief that the Claimant does not have a contractual or proprietary right to occupy or possess the car park per Hill v Tupper [1863] 2 H & C 121; the landowner has not assigned rights to enable the Claimant to pursue a case under the tort of trespass. In any event, the Defendant’s sole liability would be damages in favour of the landowner. Per the Supreme Court in the case of Cavendish Square Holding BV v Talal El Makdessi and ParkingEye Ltd v Beavis [2015] UKSC 67 (the Beavis case), trespass is limited to the landowner themselves claiming for a nominal sum.

6.7 In the alternative, the defendant had full authority of the landowner to park on the land in question during the alleged occurrence on 04/10/2016, after purchasing an annual ticket through an online portal. An online receipt of purchase of an ‘annual car park pass’ was received by email dated 24th September 2016.


7. Statement of Truth
I believe that the facts stated in this Witness Statement are true.
Dated 24/09/18




This post has been edited by PCNdriverhelp: Sun, 30 Sep 2018 - 15:36

[PCNdriverhelp]

Quick question - I am filing my defence by email (the portal has locked me out). MCOL said I could serve by email but I am wondering - do I need to also send a copy of my defence to the claimant?

[ostell]

Yor defence goes only to the court, they then copy it and send to the claimant. This is the only time that this applies. After this it's a copy for the court and a copy for the claimant.

[PCNdriverhelp]

So I got told to just email it (my deadline is the 8th October), so I copied and pasted the above and put in an email with the title 'claim response' as instructed by MCOL on the phone, including the claim number.

I emailed ccbcaq@justive.go.uk but have not had an automated receipt (I sent it 40 mins ago) and have check my spam.

Bit worried on a couple of things:

1) Should I have put title as 'Defence'? is there a formal way to do it and have I messed up?
2) Is the email address incorrect if I did not receive automated response?
3) What should I have done about a signature? My email didn't really have one?

[ostell]

That email address is not correct, was it a mistype?

You convert the document to PDF and send it as an attachment to the email after applying your signature to statement of truth. Your defence could/will be rejected without a signature. it can be added directly to the PDF if you have a scan of your signature.

The email should have a subject of (if I remember correctly) the claim number, claim title (parking company name v PCNDriverhelp) and "Defence"

Sending it as PDF attachment maintains the formatting, making it easier for the judge to read.

Call the court and get their version of the correct email address.

This post has been edited by ostell: Fri, 5 Oct 2018 - 10:36

[PCNdriverhelp]

Anyone have an idea on the email address for serving? My post was a typo - I actually emailed : ccbcaq@justice.gov.uk but not had response

it is county court business centre Northampton

[ostell]

So phone up and check !!!

You will have to send again as there is no signature, and do it soon as a second copy may be refused.

[PCNdriverhelp]

Well I phoned up - could not get through for 30 minutes. In the meantime I submitted a redrafted defence, signed, as a PDF. I also changed a few errors - I noticed I put 'witness statement' at the end when this isn't a witness statement!!! (I got no response on here). I also noticed I hadn't put in the car reg number on 6.2 (I had just copied and pasted), and I didn't head the document naming claimant and defendant. I also forgot to change the claimant company in 6.5 which renders that point useless!!

I got through to MCOL, who said I had emailed the correct email address and that if I put my name at the end of the email, then that is classed as a signed document and will count as a defence. They have just emailed me back to say my recent defence (corrected and as a PDF) is being returned as they have already received a 'signed response'.

Awesome! This is not going well!

This post has been edited by PCNdriverhelp: Fri, 5 Oct 2018 - 15:24

[PCNdriverhelp]

So I have received the following email after I submitted my defence last week:


Please find attached a copy of our Client’s completed Directions Questionnaire, which will be filed with the court upon their request. You will note we intend to request a special direction that the case be dealt with on the papers and without the need for an oral hearing

This request is sought simply because the matter is in our Client’s opinion relatively straightforward and the costs incurred by both parties for attending an oral hearing would be disproportionate.

You will note our Client has elected not to mediate. Its decision is not meant to be in any way obstructive and is based purely on experience, as mediation has rarely proven beneficial in these types of cases. Notwithstanding this, our Client would be happy to listen to any genuine payment proposals that you wish to put forward.

I read that I do not want to have this dealt with on papers alone, but not sure how I stop it? They have sent a directions questionnaire (already filled out) with the venue section saying

'PD27 (2.4) SEE REQUEST FR SPECIAL DIRECTION AND N159. If the defendant does not consent - claimants home court'

1) Do I just fill out the N159 Notice of Allocation to Small Claims Track (No Hearing) form and tick the box saying 'I Do not agree that the claim should be dealt with on the papers alone'
2) Will the above then mean I will have to go to a court in Cheshire (claimants local court)?

Thanks!

[nosferatu1001]

1) No, five minutes of research using those phrasers would have told you what to do
2) No, of course not

Gladstones do this every time
You just fill out the N180 - court sent one or just download one! - and include a covering letter explaining how this isnt straightforward

[PCNdriverhelp]

1) No, five minutes of research using those phrasers would have told you what to do
2) No, of course not

Gladstones do this every time
You just fill out the N180 - court sent one or just download one! - and include a covering letter explaining how this isnt straightforward

Thanks, and apologies. I have been researching but quite a lot to take in! I have filled out the N180 form and will send to the court along with a covering letter (even though I have not received this from the court - only from Gladstones?). I will also send a copy to Gladstones. At what point do I get expanded particulars of claim or Gladstones evidence bundle?

[nosferatu1001]

You havent received a N180 from Gladstones, but a N159.
Of course you got a copy of i t- they have to send a copy oo you as well as the court.

You dont get further PoC unless the court Ordered it.
You will know when documents are exchanged from readin ghte other threads. You will get a court hearing date from your LOCAL court. THAT document explains it

MSE Forum -> Parking -> NEWBIES thread -> POst 2

BOOKMARK IT and READ IT. THOROUGHLY. It takes you through EVERY element of the court process, with zero ambiguity.

[PCNdriverhelp]

You havent received a N180 from Gladstones, but a N159.
Of course you got a copy of i t- they have to send a copy oo you as well as the court.

You dont get further PoC unless the court Ordered it.
You will know when documents are exchanged from readin ghte other threads. You will get a court hearing date from your LOCAL court. THAT document explains it

MSE Forum -> Parking -> NEWBIES thread -> POst 2

BOOKMARK IT and READ IT. THOROUGHLY. It takes you through EVERY element of the court process, with zero ambiguity.

Yes I read this. I guess I was confused as this thread says the court will send both parties an N180 and give a due date to received the completed form. I haven’t received anything from the court and only received the N159 from Gladstone essentially saying that is what they ‘intend to propose’.. As I have not received the N180 I wasn’t sure if I should just fill one out and submit or wait for the courts to send one

[nosferatu1001]

As long as the court get a completed N180 t makes no difference whether or not you compelte the one they send, or the one you download.