Gladstones Claim Form

[b789]

@therealrjp, here is the defence you can copy and paste into the defence webform in MCOL. It has been checked that it will fit into the 122 line limit:

1. The Defendant denies that the Claimant is entitled to the relief claimed, or at all. The Defendant was the registered keeper (RK) of the vehicle but does not admit to being the driver on the material date. The Claimant is put to strict proof of the identity of the driver and, insofar as liability is pursued against the Defendant as RK, strict compliance with Schedule 4 of the Protection of Freedoms Act 2012 (PoFA).

2. The Particulars of Claim (PoC) allege that the driver breached the terms by "PARKING IN NO PARKING AREA" and expressly plead that "The signage constituted an offer of a unilateral contract accepted by the act of parking". The Defendant denies that any contract was formed in the manner pleaded and puts the Claimant to strict proof of the offer, acceptance and consideration relied upon.

3. The Claimant's signage expressly states "No parking, waiting, loading or unloading on the roads and footpaths at any time", while also stating "DO NOT PARK HERE UNLESS YOU AGREE TO THE TERMS & CONDITIONS DISPLAYED". The signage therefore prohibits the very conduct which the Claimant now pleads constituted acceptance of its alleged contractual offer. The Claimant is put to strict proof of precisely what contractual offer was made, the consideration provided, when and how its terms were communicated, and how an express prohibition against parking at any time was capable of acceptance "by the act of parking".

4. Further and in the alternative, the Defendant denies that any contractual terms capable of giving rise to the charge were adequately communicated before the alleged acceptance. The Claimant has produced only one evidential photograph of a contractual sign. It does not establish the sign's position relative to the entrance or vehicle, what entrance signage existed, whether the driver passed that sign before stopping, or whether its terms were capable of being read from a moving vehicle before the alleged contract was formed.

5. The Claimant's photographs show the vehicle only from 11:32:36 to 11:33:13, a period of 37 seconds. The only later photograph, at 11:34:17, shows the Claimant's sign and not the vehicle. Yet the Notice to Keeper (NtK) alleges that the vehicle "at 11:34 was parked". The Defendant denies that the evidence establishes parking at the time alleged, or that being stationary for only 37 seconds establishes the pleaded act of parking.

6. The Defendant will rely upon Jopson v Homeguard Services Ltd [2016] B9GF0A9E, in which HHJ Harris QC recognised that merely stopping a vehicle does not necessarily constitute parking and that whether a vehicle is parked or merely stopped is a question of fact and degree. The extremely brief duration evidenced by the Claimant's photographs is therefore relevant to whether the pleaded act of "parking" occurred.

7. The Private Parking Sector Single Code of Practice applicable on the material date requires an appropriate consideration period, including the time required to identify and read signs displaying the terms or consequences of parking where public parking is not invited, and to leave the controlled land if the driver decides not to accept those terms.

8. The Code provides that a consideration period may end earlier where there is evidence of acceptance, giving examples including parking and leaving the premises, paying a tariff, or remaining for more than five minutes. The Claimant's evidence establishes none of those examples and records the vehicle for only 37 seconds. The Defendant denies that the driver had a reasonable opportunity to discover, read and decide whether to accept the terms before the conduct said simultaneously to constitute acceptance and breach.

9. During the previous POPLA proceedings, the Claimant itself accepted that it "may not be safe or practical for a motorist to read the signage from the driving position of a moving vehicle" and that it was reasonable to stop near a sign "for the purpose of reviewing the terms before deciding whether to remain parked". The Claimant cannot reasonably rely upon stopping being necessary to consider its terms whilst also contending that stopping itself constituted immediate acceptance and breach.

10. Insofar as liability is pursued against the Defendant as RK, the Defendant denies compliance with PoFA. Paragraph 9(2)(a) requires the NtK to specify "the period of parking to which the notice relates". The NtK specifies no period, alleging only that the vehicle "at 11:34 was parked". A single point in time is not a period of parking. Moreover, the vehicle photographs end at 11:33:13 and do not evidence the vehicle at the time specified. Photographic timestamps do not relieve the Claimant of the statutory requirement for the NtK itself to specify the period of parking.

11. Absent compliance with every mandatory condition of Schedule 4 PoFA, liability cannot be transferred from an unidentified driver to the RK. The Defendant's status as RK does not establish that the Defendant was driving.

12. The Defendant denies liability for the additional £70 described in the PoC as "contractual costs pursuant to the Contract and PCN terms and conditions". The Claimant is put to strict proof of the contractual term creating liability for that sum, its incorporation into any contract, the event triggering it, and its legal recoverability.

13. The Defendant disputes that the evidence establishes landowner authority. The agreement identifies the other contracting party merely as "TRADE SALES", without establishing its legal identity or interest in the land. The agreement expressly requires a site map "clearly defining boundaries", yet none was supplied. It also requires a leaseholder to provide evidence of its authority, of which none has been produced. The Claimant is put to strict proof that the contracting party had authority over the relevant land, that the location concerned fell within the agreement, and that the Claimant was authorised to contract with motorists, issue charges and litigate in its own name.

14. Accordingly, the Defendant denies that the Claimant has established the pleaded contract or act of parking, keeper liability, landowner authority, or entitlement to the principal or additional sums claimed.

Let me know when you have submitted the defence.