** WON ** (dismissed at court ) Parking Control management - COURT

[RR113]

Re: Parking Control management - COURT

Thanks for the help so far guys. So my argument would be that no contract was formed based on the fact the signs are forbidding?

Any tips on preparing a defence? Is this where I would need to refer to previous cases?

[charitynjw]

Re: Parking Control management - COURT

& Jopson

http://legalbeagles.info/library/gui...-court-claims/
gives a basic idea of the format of a defence (but of course it is for a consumer credit claim defence, so needs to be modified.)

How much detail you go into at this stage is matter of some debate.
Some say 'chuck in everything including the kitchen sink'.
Others say just briefly cover all the points you want to address.
The important thing is to rebut all the stuff in their claim which you disagree with, & to add any other points which you want to plead.....& leave yourself a get-out-of-jail if you've asked for disclosure of docs but the Claimant hasn't complied.
Eg.

I request the court orders the Claimants to provide the necessary documentation in order for me to fully plead my case else the Claim should stand struck out.

In the event that the relevant documents are received from the Claimants I will then be in a position to amend my defence, and would ask that the Claimants bear the costs of the amendment.

[RR113]

Re: Parking Control management - COURT

Hi Everyone,

Apologies for the delay in getting back to everyone, work commitments have taken their toll.

I have a draft defence which I would like to submit, but before I do would someone kindly be able to give it the once over?

[RR113]

Re: Parking Control management - COURT

Also just a question in relation to the location of the hearing. Would it be possible for this to be moved to a court local to me? How would I go about requesting this?

I'll post my defence, if it ok to do so. I have removed all details linking it back, just wanted to confirm it is OK to post before proceeding.

[ostell]

Re: Parking Control management - COURT

When you complete the directions questionnaire you will be asked which court you want to use. The DQ should arrive after you have submitted your defence.

By all means post up your defence for critique.

[RR113]

Re: Parking Control management - COURT

When you complete the directions questionnaire you will be asked which court you want to use. The DQ should arrive after you have submitted your defence.

By all means post up your defence for critique.

Introduction
1. I am…….., the defendant in this matter. My address for service is ……

2. This is my statement of truth and my defence.

3. 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. For the avoidance of doubt on the relevant date I was the driver of a ….., registered number…..

5. It is believed that it will be a matter of common ground that the purported debt arose as the result of the issue of a parking charge notice in relation to an alleged breach of the terms and conditions by the driver of the above vehicle when it was parked at,….. ON…….

Purported Basis of Claim

6. Further based upon the scant and deficient details contained in the Particulars of Claim and correspondence, it appears to be the claimant's case that:
a. There was a contract formed by the defendant and the claimant on…..
b. There was an agreement to pay a sum or parking charge
c. That there were Terms and Conditions prominently displayed around the site that meet the test laid down in ParkingEye v Beavis
d. That in addition to the Parking charge there was an agreement to pay additional but unspecified additional sums.
e. The claimant company fully complied with their obligations within the International ParkingCommunity Code of Practice of which they were member at the time.
f. Further that the defendant has not paid the alleged debt.

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 but unspecified additional sums.
e. The claimant company fully complied with their obligations within the International Parking Community Code of Practice of which they were member at the time.
f. 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 claimant is put to the strictest proof of their assertions.

10. I request that the court orders the claimants to provide the necessary documentation in order for me to fully plead my case else the case should stand struck out.

In the event that the relevant documents are received from the claimants I will be in a position to amend my defence, and would ask that the claimants bear the costs of the amendment.



My Defence

My defence will rely principally upon the following points:

11. The Particulars of the Claim submitted to the Defendant provide no statement to the nature of the claim and the Defendant does not believe these particulars to be compliant with Civil Procedure Rules 16.4 nor Practice Direction 16 7.3-7.5 inhibiting the ability of the Defendant to provide a comprehensive and conclusive defence statement.


12. That the signs erected on site are incapable of forming the basis of a contract and indeed make it clear that that is not the case. 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.

13. The Particulars of Claim do not give any reasons why the Claimant requires a payment other than it results from ‘breaching the terms of parking on the land’. Signage displayed on ADDRESS are forbidding signs that cannot create a contract. In the cases of B4GF26K6 PCM (UK) v Mr B, B4GF27K3 PCM (UK) v Mr W and B4GF26K2 PCM (UK) v Ms L it was demonstrated that forbidding signage at residential parking spaces did not create a contract.

14. It should also be noted, that there are no loading bays on………, and any so called terms imposed by signage positioned by PARKING CONTROL MANAGEMENT Limited are impractical for all services loading or unloading to the tenants of ……., such as a courier delivering a parcel. An approach such as the Claimants which restricts any vehicles that do not ‘park wholly and centrally‘ would leave life in any block of flats close to unworkable.

15..The defendant relies upon the Oxford County Court decision in JOPSON v HOME GUARD SERVICES, Appeal case number B9GF0A9E on 29/9/2016 where Senior Circuit Judge Charles Harris QC found that Home Guard Services had acted unreasonably when issuing a penalty charge notice to Miss Jopson, a resident of a block of flats.

16. 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.”


17. 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

18. 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.

19. 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.

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.

20. 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 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.

21. That the amount demanded is therefore 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.

22. In the alternative, the attention of the court is drawn to para. 4(5) Schedule 4 Protection of Freedoms Act 2012 which sets out that the maximum amount recoverable from the registered keeper(in lieu of the driver), where the keeper liability provisions have been properly invoked (which is expressly denied in this case) is that amount specified in the Notice to Keeper (whether issued in accordance with paras 8(2)c; 8(2)d, 9(2)c or 9(2)d of the Act).

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

24. 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.

[RR113]

Re: Parking Control management - COURT

When you complete the directions questionnaire you will be asked which court you want to use. The DQ should arrive after you have submitted your defence.

By all means post up your defence for critique.

Hi Both,

Defence is up, would really appreciate some feedback as I was hoping to submit this today.

Thanks

[ostell]

Re: Parking Control management - COURT

You have 33 days, providing you have acknowledged the claim, from the date of issue on the claims form to submit your defence to the court. You have acknowledged the claim using the details on the claim form haven't you?

[charitynjw]

Re: Parking Control management - COURT

If it were me, to be safe I'd add

Each and every allegation in the Claimants statement of case is denied unless specifically admitted in this Defence.

Probably in para #9.

[RR113]

Re: Parking Control management - COURT

If it were me, to be safe I'd add


Probably in para #9.

Hi all

I've just had the following through, in relation to my defence:

"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."

How should I respond to this request? Is it wise to allow the court to make a decision on papers only? Or is it beneficial to attend court?

[charitynjw]

Re: Parking Control management - COURT

Do not agree to a hearing 'on papers'.

Both sides need to agree; if not it will go to a hearing which you can attend.

I think @ostell knows of suitable wording.

But basically the Defendant, as an unrepresented Litigant in Person, would be seriously prejudiced by a hearing on papers only.

You can add this to your DQ when you receive your copy from the court.

[ostell]

Re: Parking Control management - COURT

From Gan on Pepipoo. Modify to suit.

The Defendant has been informed that the Claimant has proposed a hearing on the papers because it considers the matter to be relatively straightforward.
The Claimant also requests to transfer the hearing to the claimants local court if the Defendant does not consent.

The Defendant objects strongly to these proposals.

The Defendant denies that the matter is relatively straightforward.

The issues in dispute include the rights of the defendant as a tenant of long standing and whether the party that employed the claimant has the authority to alter the terms of his lease without his agreement.
As a litigant in person, the defendant is seriously disadvantaged against the claimant, a parking company that has employed its trade association's solicitor to prepare its documents.
The defendant will probably also wish to question the claimant regarding its witness statement and other documents.

The defendant therefore requests that the matter is transferred to his local court in accordance with the Civil Procedure Rules when the defendant is a consumer.

[RR113]

Re: Parking Control management - COURT

Thank you so much for all you help.

As I was sent an email by Gladstone informing me of their intentions, do I now have to wait for the court to contact me before I request a hearing in person?

[ostell]

Re: Parking Control management - COURT

As Charity said you add it to your own DQ when you return it to the court.

[RR113]

Hi all,

Its been a long time, but I had nothing back from gladstone after submitting my defence, until a couple of days ago.

I've just recieved the attached. Do i need to respond to this?

The hearing is in a couple of weeks and now I'm nervous. All the details in this attachment are worrying me... Would appreciate some guidence on what I do next. I have attached and edited doc, removing any personal details etc.

Thanks in advance for your assistance.