Your browser isn't supported
It looks like you're using an old web browser. To get the most out of the site and to ensure guides display correctly, we suggest upgrading your browser now. Download the latest:

Welcome to the MSE Forums

We're home to a fantastic community of MoneySavers but anyone can post. Please exercise caution & report spam, illegal, offensive or libellous posts/messages: click "report" or email forumteam@.

Search
  • FIRST POST
    • FJ1000
    • By FJ1000 6th Nov 17, 3:06 PM
    • 9Posts
    • 1Thanks
    FJ1000
    Gemini/Gladstones - Small Claim
    • #1
    • 6th Nov 17, 3:06 PM
    Gemini/Gladstones - Small Claim 6th Nov 17 at 3:06 PM
    Hi All

    Thanks for the fantastic resource.

    After some advice on this PCN from Gemini, which has been taken to court by Gladstones. Current (6th Nov) state of play is that a defence has been submitted and accepted.

    However, the defence might not be great – I’m not sure, please read on!

    Background:

    • I received a PCN for my wife’s car, which was deemed by Gemini parking to be parked (not by myself) at Gambado softplay in Beckenham in excess of 2 hours, during my son’s birthday party
    • I foolishly binned the letters from Gemini and then the debt collector
    • I then received a letter “from Gladstones”. On advice from the pepipoo forum, I checked it and it actually seemed to have come from the debt collectors, but made to look like a Gladstones letter
    • I wrote to Gladstones to confirm if the letter was from them – and gave them a date by which to respond. They did not, but the debt collector did!
    • Gladstones then actually did become involved, and I received a letter from the county court
    • I acknowledged online. BUT – I made a stupid miscalculation on the dates and thought I had longer than I actually did to respond
    • I realised my error at ~1am the night before going on holiday with the family! So had to throw together a defence (below), submit at 2am, and hope they court would still accept it although a couple of days late
    • The court did accept the defence

    Given the cobbled together nature of the defence, unsighted by you guys that would’ve been able to direct me, I wonder which parts to emphasise as the strongest arguments if/when proceeding to witness statements and a hearing?

    The defence I sent in:



    I am XXX, Defendant in this matter and I assert that the Claimant has no cause for action for the following reasons:

    1.It is admitted that the Defendant was the authorised registered keeper of the vehicle in question at the time of the alleged alleged breach of the terms and conditions by the driver of the vehicle XXX when it was parked at Beckenham Gym – Former Natwest Playing Fields Coper Cape Road, Beckenham, London, BR3 1NZ.

    3. 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 03/12/2016.
    b. There was an agreement to pay a sum or 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 British Parking Association Code of Practice of which they were member at the time.

    4. It is denied that:
    a. A contract was formed
    b. That the Defendant was driving the vehicle XXX at the time
    c. There was an agreement to pay a parking charge.
    d. That there were Terms and Conditions prominently displayed around the site.
    e. That in addition to the parking charge there was an agreement to pay additional and unspecified additional sums.
    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.


    5. It is further denied that the Defendant is liable for the purported debt.

    Rebuttal of Claim

    6. The Defendant was not the driver of XXX at the time of the incident, and is not liable for any parking charge

    a. The Defendant was present at the time of the incident, to host a birthday party for his son at the Gambado soft play centre, but drove a different vehicle, which was parked outside the venue on a public road
    b. Nevertheless, Gemini Parking have pursued the Defendant on the basis of Keeper Liability (under POFA 2012), but have not met the conditions to do so.
    d. The Defendant was not issued with a notice within 14 days of the incident, violating a condition of Keeper Liability, POFA 2012.
    e. The Notice to Keeper was deficient: it did not specify the time that the vehicle was parked. The time mentioned on the notice, was the total time the vehicle was onsite at the grounds shared by Gambado softplay, and several other businesses. The time mentioned on the notice does not account for the considerable time spent unloading and loading the vehicle with items related to the birthday party (with the permission of Gambado Management), during which time the vehicle was not parked. The photos supplied by Gemini Parking Solutions were of the vehicle in motion entering and leaving the site, not parked.


    7. The Defendant did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.

    8. The Defendant denies that they would have agreed to pay the original demand of £80, later raised to £160 and then to £169.23, to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.
    a. 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 £60 or £30 if paid within 14 days.
    b. Within 1 month of the incident, Gemini Parking Solutions changed the terms of the parking to 3 hours free, and the cost of the parking charge was changed to £100. This illustrates how the parking charge and terms of parking are plucked from thin air, and not representative of any damages to the owner of the private land. Furthermore, the vehicle XXX was onsite for less than 3 hours and would not have been issued with a parking charge from January 2017.

    9. The signage on this site was inadequate to form a contract with the motorist.
    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 BPA 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. The size of font of the “Free Parking” advised for parking is much larger than the font of the contract and the offer is not sufficiently brought to the attention of the motorist, nor are the onerous terms (the £160 parking charge) sufficiently prominent to satisfy Lord Dennings "red hand rule”.
    c. 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.
    e. The signage specifically states that Gambado customers are entitled to 5 hours free parking. Therefore there was no breach of any ‘relevant obligation’ or ‘relevant contract’ as required under Schedule 4 of POFA, as the vehicle was parked for less than this time, but the driver had not entered the registration into Gemini Parking Solutions computer system
    f. The Claimant is aware that the vehicle was one of several onsite as customers entitled to 5 hours free parking, as the Principal has emailed them twice stating this and asking them to waive the parking charge: Gemini Parking Solutions failed to respond on both instances


    10. The Claimant’s representatives, Gladstones, have artificially inflated the value of the Claim from £160 to £169.23. 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 Claimant has at no time provided an explanation how the sum has been calculated, the conduct that gave rise to it or how the amount has climbed from £160 to £169.23. This appears to be an added cost with no apparently no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.
    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.

    Non-disclosure of reasonable grounds or particulars for bringing a claim:
    11. Gemini Parking Solutions Ltd are not the lawful occupier of the land. The Defendant has 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 action regarding this claim.
    a. 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.
    b. The Claimant is not the landowner and suffers no loss whatsoever as a result of a
    vehicle parking at the location in question
    c. 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
    d. The Particulars of Claim are deficient in establishing whether the claim is brought in trespass. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then 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 claiming for a nominal sum.





    12. The Defendant has reason to believe Gladstones are allowing Debt Recovery Plus ( a debt collection company) to impersonate them in order to intimidate. Having received a letter on headed paper from Gladstone Solicitors, which looked suspicious and had Debt Recovery Plus’s phone number on it, the defendant sent a letter to Gladstones to enquire if this was a genuine piece of correspondence, specifying a reasonable date by which a non-response reply from Gladstones would be taken to mean the letter was not genuine. No response to that letter from Gladstones was received within the specified time period, nor later.

    13. 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.


    14. The Defendant believes the terms for such conduct is ‘robo claims’ which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. The Defendant has reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to their significant detriment as an unrepresented Defendant.

    15. 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.

    16. 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.

    17. The Defendant invites the court to dismiss this claim out as it is in breach of pre court protocols in relation to the particulars of claim under Practice Direction 16, set out by the Ministry of Justice and also Civil Procedure Rules (CPR) under 16.4 and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14.

    I believe the facts stated in this Defence Statement are true.
Page 1
    • FJ1000
    • By FJ1000 7th Nov 17, 1:33 PM
    • 9 Posts
    • 1 Thanks
    FJ1000
    • #2
    • 7th Nov 17, 1:33 PM
    • #2
    • 7th Nov 17, 1:33 PM
    Just bumping this up as I've disappeared onto page 5 of the forum!
    • Coupon-mad
    • By Coupon-mad 9th Nov 17, 12:40 AM
    • 51,886 Posts
    • 65,532 Thanks
    Coupon-mad
    • #3
    • 9th Nov 17, 12:40 AM
    • #3
    • 9th Nov 17, 12:40 AM
    Bumping for you for others to reply tomorrow...
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • FJ1000
    • By FJ1000 11th Nov 17, 11:23 PM
    • 9 Posts
    • 1 Thanks
    FJ1000
    • #4
    • 11th Nov 17, 11:23 PM
    • #4
    • 11th Nov 17, 11:23 PM
    Anyone....?
    • Coupon-mad
    • By Coupon-mad 11th Nov 17, 11:44 PM
    • 51,886 Posts
    • 65,532 Thanks
    Coupon-mad
    • #5
    • 11th Nov 17, 11:44 PM
    • #5
    • 11th Nov 17, 11:44 PM
    Given the cobbled together nature of the defence, unsighted by you guys that would’ve been able to direct me, I wonder which parts to emphasise as the strongest arguments if/when proceeding to witness statements and a hearing?
    OK, good to see that you covered the bases but there are errors such as a missing para 2 and it says Gemini were in the IPC but they never have been, and are BPA AOS members.

    That's explainable (if criticised at a hearing) as minor errors by a litigant in person intimidated by the demands, and issues which are not material to the defence. Not a problem.

    I think your best points are #6 (no keeper liability and you were not driving) and #9 (signage, especially e and f, which you will need photo evidence of, to accompany your WS).

    Also #10, because your were not the driver so even if Gemini convince a stupid Judge that you are liable under the POFA (even though they served a late non-POFA PCN!) then the POFA itself covers the fact that double recovery is not allowed and the sum on the NTK of £80 is the only sum that can be recovered. In the Beavis case only £85 was recovered and it was held by the Supreme Court that the £85 was a sum that included a significant sum in profit, and that they had suffered no loss. Therefore it cannot also be argued by Gladstones that other random 'indemnity' or made-up debt recovery costs (never truly incurred) can be added, pretending those costs represent 'damages' when the £80 already more than covers their client's VERY minor costs in operating an automated parking business model.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • FJ1000
    • By FJ1000 16th Nov 17, 7:10 PM
    • 9 Posts
    • 1 Thanks
    FJ1000
    • #6
    • 16th Nov 17, 7:10 PM
    • #6
    • 16th Nov 17, 7:10 PM
    Coupon-mad: Thanks for the reassurance that I included something of value in my defence!

    I've since received a letter from Gladstones (which I'm unsure how to read), with an attached questionairre, and the same questionnaire from Northampton County Court.

    The gladstone letter - which says that they've enclosed a copy of the completed questionnaire but is actually blank - says they want to "request a special direction that the case be dealt with on the papers and without the need for an oral hearing" ?

    How should I proceed?
    • Coupon-mad
    • By Coupon-mad 16th Nov 17, 7:17 PM
    • 51,886 Posts
    • 65,532 Thanks
    Coupon-mad
    • #7
    • 16th Nov 17, 7:17 PM
    • #7
    • 16th Nov 17, 7:17 PM
    Search the forum (or Google, but if you do that, add the word 'parking' to the search) for

    Gladstones Special Directions

    or

    'Gladstones straightforward'.

    All been said a hundred or more times!

    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • FJ1000
    • By FJ1000 16th Nov 17, 8:07 PM
    • 9 Posts
    • 1 Thanks
    FJ1000
    • #8
    • 16th Nov 17, 8:07 PM
    • #8
    • 16th Nov 17, 8:07 PM
    Excellent - found the info. Thanks!
    • FJ1000
    • By FJ1000 21st Nov 17, 2:06 PM
    • 9 Posts
    • 1 Thanks
    FJ1000
    • #9
    • 21st Nov 17, 2:06 PM
    • #9
    • 21st Nov 17, 2:06 PM
    Just responding to the county court and Gladstones - I notice that the Directions uestionaire they sent me (stated as being completed) is actually completely blank. Is this of any relevance?

    I am going to write to them and propose they drop the case an cover my costs.
    • nosferatu1001
    • By nosferatu1001 21st Nov 17, 2:12 PM
    • 1,186 Posts
    • 1,230 Thanks
    nosferatu1001
    Yes, it is. They are required to serve on you a completed copy DQ
    Tell the court they didnt. Tell GS they didnt and demand they send one within 7 days.
    • FJ1000
    • By FJ1000 21st Nov 17, 3:50 PM
    • 9 Posts
    • 1 Thanks
    FJ1000
    Great thanks - will mention that in a cover letter to the court.

    This is my draft email to GS. Feedback please!

    Dear Sirs

    I refer to your letter of 7th November 2017.

    You have been aware for some time that the claim brought by your client is baseless and bound to fail. However, your client has nevertheless chosen to pursue the claim this far, forcing me to draft and file a full defence, upon which I rely. In comparison, all your client has done is to file a claim so brief that it verges on being incoherent, and have failed to provide a Directions Questionnaire (the one sent to me was entirely blank – I have made the court aware).

    Before you do write to me, I must make clear my position, as follows:

    1. As this is a baseless claim, and you have known that for some months, (since Gemini were notified by the principal and asked to cancel the charge on 18th July 2017) I will not accept anything other than a complete, unconditional withdrawal by your client;

    2. Again as this is a baseless claim, your client has breached my rights under the Data Protection Act by requesting, processing, storing and continuing to store my data and this has caused me significant distress. It must cease to do so immediately. My rights to bring a claim or a counterclaim are expressly reserved and I expect your client's proposals for settlement to include a sum of money in respect of damages, in return for which I will agree not to make any claim/counterclaim.

    3. I have been forced to spend a considerable amount of time and effort defending this baseless claim, including incurring direct expenses on site visits, postage, stationery and so on. I have had to spend hours researching the law and drafting a full, and gathering documentary evidence. As a litigant in person, this has caused me significant distress and inconvenience. In contrast, all your client has done is to draft and serve a robo-type claim so brief as to be almost incoherent, and have even failed to complete the Directions Questionnaire.

    4. It is clear that Gladstone Solicitors have authorised Debt Recovery Plus to send correspondence impersonating Gladstone. I fully intend to present the evidence to the court.


    As a goodwill gesture, and on an entirely without prejudice basis, in order to achieve a settlement I suggest that your client makes an offer of no less than £120 in respect of the points above. This sum reflects my costs to date. If however the case proceeds to trial and I win, I will also be claiming costs on the day, including loss of leave of £403.85 (my salary divided by 260), and punitive costs pursuant to Rule 27.14(2)(g).


    In the meantime, my rights under the Data Protection Act are expressly reserved.
    For the avoidance of doubt, I will not be telephoning you to discuss settlement. If your client has a proposal to make, then please make it in writing and I will consider it and respond.

    Should settlement not be reached, I am entirely confident that my defence of the claim will succeed and I make it clear that, since the claim is clearly baseless and this has been clear to you all along, I will be seeking a punitive costs order pursuant to Rule 27.14(2)(g).


    Yours faithfully
    • FJ1000
    • By FJ1000 22nd Nov 17, 3:20 PM
    • 9 Posts
    • 1 Thanks
    FJ1000
    Bump! Feedback much appreciated!

    Thanks
    • FJ1000
    • By FJ1000 1st Dec 17, 3:54 PM
    • 9 Posts
    • 1 Thanks
    FJ1000
    Just to keep this updated.

    I sent the letter to Gladstones, and have received the following response by email:


    Good Afternoon

    We write further to your letter dated the 22nd November 2017.

    Please find attached duplicate copy of our Directions Questionnaire filed at Court.

    We apologise that you received a blank copy. As we outsource our printing we were not aware that a blank copy had been sent out.

    Kind Regards
Welcome to our new Forum!

Our aim is to save you money quickly and easily. We hope you like it!

Forum Team Contact us

Live Stats

287Posts Today

1,465Users online

Martin's Twitter