Defence help. Gladstone taking me to court for a parking charge.

Britton

Here's hoping, my colleugue and gym partner is going through the same process however he only put a few sentances saying that the ticket was not valid, he's recieived his court summons at our local court so it will be interesting to see how that pans out!

I've added the updated bits however I was unsure if some where to replace some of the points already in but expanded so I thought best to leave in and have twice than not have at all!


1) It is admitted that the defendant, ******** residing at ******* is the registered keeper of the vehicle.

2) The vehicle has a gym member parking permit and it is regularly parked in the ******* car park, both myself and my wife are long term members at the fitness centre, evidence of this can be provided. There is variable (indeed ambiguous) allocated parking space for this Gym. The information over the years around parking has been vague and has changed at various times, including the Gym opening access to different spaces at different times.


3) The Defendant relies upon the prior contract agreed with the Gym several years ago which permits parking and the Defendant asserts that the terms that the Claimant is now trying to impose are incompatible with that agreement. The Defendant further relies on the doctrine of promissory estoppel, since (in addition to the prior contract which granted permission to park) the Gym has issued verbal instructions more than once, to the effect that when asking about unfair parking tickets we have been instructed by Gym staff to ignore them.

4) I am yet to have sight of any documents provided to the court in support of the application. The claim form itself is vague and lacks pertinent information as to the grounds for the claimant’s case. It merely provides a date, amount and due date. The claim also states: ''parking charges and indemnity costs if applicable'' which give no indication of on what basis the claim is brought. For example whether this charge is founded upon an allegation of trespass or 'breach of contract' or contractual 'unpaid fees'.


5) There have been no documents served with Gladstones pre-court letter but the Defendant believes that the Claimant has failed to fulfil the strict requirements of Schedule 4 of the POFA. This includes fully-compliant documents being served, adequate notice of the terms and 'parking charge' in large prominent lettering and proof of the existence of a 'relevant contract' and a 'relevant obligation' (as defined in the Act). The Defendant denies that any such requirements were met.

6) I note the absence of;
a. clear times/dates or coherent grounds for any lawful claim
b. details to evidence any contract created or a copy of the same
c. details as to the described sum of 'parking charges' and 'indemnity costs'.

7) No evidence has been supplied by the claimant as to who was driving the vehicle at the time the alleged charges were incurred. I have also not seen any photographs and on subsequent investigation of the car park there is no indication that cctv/photographs are being taken. As per the Protection of Freedoms Act 2012, there is no presumption in law as to who parked a vehicle on private land nor does there exist any obligation for a keeper to name a driver. I choose to defend this claim as the registered keeper, as is my right. As previously stated both me and my wife are both members at the gym which grants permission to use the parking facilities.
8) Notwithstanding the provisions of the POFA, it is denied that the signs used by this claimant can have created a fair or transparent contract with a driver in any event.

9) It is denied that any 'parking charges or indemnity costs' (whatever they might be) are owed and any debt is denied in its entirety. I also question the claimant’s authority to bring this claim (if any debt exists, which is denied), as they are not the landowner.

10) It is not believed that the claimant has incurred additional costs. This is a completely unsubstantiated and inflated three-figure sum, vaguely and incoherently adduced by the claimant's solicitors.

11) The Claimant’s solicitors are known to be a serial issuer of similar generic claims put before the court in the absence of enquiries as to whether there is a valid cause of action. I understand from my research that HMCTS have identified over 1000 similar poorly produced claims which appear to be against the public interest, a waste of court time and unfair on unrepresented consumers. I have reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to my significant detriment as an unrepresented defendant.


12) I suggest 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.

13) I request the court strike out the claim for similar reasons cited by District Judge Cross of St Albans County Court on 20/09/16 where a similar claim was struck out without a hearing, due to Gladstones' template particulars for a private parking firm being 'incoherent', failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''.

14) The alleged debt as described in the claim is an unenforceable penalty, being just the sort of unconscionable charges exposed as offending against the penalty rule, in ParkingEye Ltd v Beavis.

15) This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which centred around an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis (unlike the Defendant in this case) had no prior overriding agreement with the landholder and was known to be driver who saw and read the brief terms and was held to have entered into a contract to pay £85 after exceeding a licence to park free. None of this applies in this material case.

16) In Beavis it was held that the purpose of a parking charge must not be to penalise drivers. Justification must depend on some other 'legitimate interest in performance extending beyond the prospect of pecuniary compensation flowing directly from the breach in question'. The true test was held to be 'whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest [...] in the enforcement of the primary obligation'.


17) There can be no 'legitimate interest' in penalising longstanding, permit-holding Gym members. It is unconscionable, contrary to the requirement of good faith and 'out of all proportion to any legitimate interest' for a third party to fine drivers who are already authorised by the Gym. The burden rests with the Gym and this Claimant to ensure that there is a system under which established Gym members are not inconvenienced by the presence of a parking firm nor charged as if they were trespassers.


18) A third party parking firm cannot claim a charge under the guise of trespass in any case (Beavis is the authority which supports this contention). If the Claimant later suggests - despite the lack of Particulars - that the car was 'unauthorised' then this is not only factually incorrect but the only remedy for such trespass would be for the landowner to seek nominal damages in their own name. There are no damages arising in this case.


19) The Claimant does not own the car park and has no interest in it so they lack any legal standing. Unlike in Beavis, which was 'complex' and the decision confirmed by the Supreme Court as unique to the facts in that case alone, this Claimant provided no service to the driver, nor could the Claimant have made any parking offer imposing different terms than already agreed with the Gym many years before.

20) The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons.

Statement of Truth: I confirm that the contents of this statement are true to the best of my knowledge and belief.

Thanks again.

Coupon-mad

Here's hoping, my colleugue and gym partner is going through the same process however he only put a few sentances saying that the ticket was not valid, he's recieived his court summons at our local court so it will be interesting to see how that pans out!

Oh no.

It is not a Summons. He seems not to understand what he needs to do!

He must be at the stage of having to supply his witness statement and evidence. He needs to add to what he said in defence or he is a lamb to the slaughter. HE WILL LOSE if he can't rescue that awful defence by beefing it up in a decent Witness Statement and with exhibits (evidence).

He does know he does have to do something at this stage; has a deadline to get his WS and exhibits in?

He needs to come here urgently to give him any fighting chance, and start his own thread telling us what his deadline is to get his WS and exhibits in, and telling us what he actually said in defence...oh dear. We will try to rescue it.

He can't just rock up on the day.

Coupon-mad

Your defence looks good to go except to go through it and change the FIRST mention of the POFA and of Beavis, to be the full words 'the Protection of Freedoms Act, Schedule 4 (the POFA)' and 'ParkingEye Ltd v Beavis [2015] UKSC 67 (the Beavis case)' then change the subsequent mention of each to the words in brackets.

At the moment the defence has 'the Beavis case' and 'POFA' before you tell the Judge what you mean by those phrases. Here is a defence set out in the way this forum recommends; this one was written by bargepole:

https://www.dropbox.com/s/dykc9qeqd271y7p/PCG_Defence1.docx?dl=0

I would follow bargepole's advice here and post (snail mail) your defence to the Court, set out formally in the way he suggests, double line-spaced and in Times New Roman 12 font:

https://forums.moneysavingexpert.com/discussion/5546325

That info re 'what happens when' will also help your friend to learn where he is at and that he needs urgent help from this forum, I suggest. Don't let him be the victim lamb to the slaughter, you can't defend without evidence and a decent argument.

Britton

Done! I'll get it posted tomorrow. I'll show him the thread and encourage him to get advice. If I give him a copy of my defence will he be able to take those points in despite not putting them in his defence pre-court?

Umkomaas

If I give him a copy of my defence will he be able to take those points in despite not putting them in his defence pre-court

He can only elaborate on defence points already made, unless he pays the court (£255?) to add to his defence.

He could ask the judge (others with more experience of the mechanics and timing of this hopefully will advise) if he can add to it as an unrepresented, legally unaware (naive) individual without charge - but the PPC's Solicitors might well object.

Wait for other advice on this.

Coupon-mad

Britton wrote: »

Done! I'll get it posted tomorrow. I'll show him the thread and encourage him to get advice. If I give him a copy of my defence will he be able to take those points in despite not putting them in his defence pre-court?

NO. He has burnt his boats to an extent. But he needs to show us what he actually said in that defence on the court form. We might be able to suggest what evidence can be used to 'support' his defence as worded.

I do hope he kept a copy and is not expecting to just rock up with no evidence & no defence. He can't use yours, but he MIGHT be able to use some of the same evidence, at a push.

Another thought is that if he is at the stage of Witness statement, we can help him write a covering letter to the Judge pointing out the incoherent and sparse Particulars of claim which breach the CPR and have made it impossible to meaningfully defend. There is a chance that his Judge MIGHT strike the claim out on the basis of G's lack of Particulars but he needs to know how to ask and when and what to say.

NOT to wait for the hearing. NOT to take his chances, please send him here to start his own new thread!

Britton

Hi all, hope you had a good christmas and New Year. I've recieved a court date; 24th Feb!

It says that I have to send any documents to other party 14 days before and viceaversa, Do I need to send them anything? I took pictures of the car park (its a complete tip) is this where I'd send them? Also I take it I should recieved what evidence they have on me before this date?

My friend has recieved a date too on the same date! Hope they haven't lined a load of cases up, feel like there would be more chance of gladstones actually sending someone if so!

As ever any help much apprieciated!

Coupon-mad

Britton wrote: »

Hi all, hope you had a good christmas and New Year. I've recieved a court date; 24th Feb!

It says that I have to send any documents to other party 14 days before and viceaversa, Do I need to send them anything? I took pictures of the car park (its a complete tip) is this where I'd send them? Also I take it I should recieved what evidence they have on me before this date?

My friend has recieved a date too on the same date! Hope they haven't lined a load of cases up, feel like there would be more chance of gladstones actually sending someone if so!

As ever any help much apprieciated!

Of course you do, you send the court and the solicitor, your exhibits you will be relying on, and your full witness statement. People who drop the ball and do nothing at this point are far more likely to lose; you can't just submit a defence and sit back and wait for your day in court.

This is covered in bargepole's advice in the NEWBIES thread under 'Small Claim?' where there is at least one example of a linked Witness Statement and evidence.

You will also find a recent witness statement in Gin and Milk's thread and also in spaceman8's thread. Things are here when you search and look at other threads like the regulars do (some of us read them all every day).

Britton

Thanks Coupon Mad, I did have a good browse after posting that comment and I have seen the witness statements etc that have to put in, :eek: It seems absolutely carzy to me, feel like I may get into trouble if a solicitor tried to pass me documents last minute after reading about that, I feel things like that are totally taking advantage of others and I find that higlhy offensive. :mad:

Anyway i'm going to have to set aside some time to proper get my head around it, think I was hoping that the defence would be the end of it all.

In regards to my case, the car park continues to deteriorate; there is smashed glass in places and the whole lower floor was unlit the last couple of times, would it be worth putting that stuff in? I did take pictures of the masses of litter that has built up. I'm thinking it appeals to the emotional side of how the whole operation are just cowboys trying to milk money out of people with no concern for safety etc?

mark.taylor

I just won a case against Gladstone. They didn't turn up in the court and the Judge ruled against them. They will try to threaten until the last week. Try to go though the sign, agreement between the parking operator and the Land owner. I hope you will find some clue. In my case I found that the Parking operator were not strictly following the agreement they have with the land owner. Ask for the agreement between the operator and land owner and see if there are any points which can invalidate their claim. Good luck.