Claim Form from County Court and No LBA from Gladstones

fellsider

I received a PCN from ES parking enforcements for £100 through the post as the registered keeper stating "did not pay and display a prepaid voucher or place it in view". The photograph only shows the right rear of the car and no photo of the dashboard or windscreen which would have shown the required prepaid voucher quite clearly.
I wrote to the company using the template for IPC asking for all photos taken etc. of course not naming the driver.
I quickly received a letter back stating that my "appeal" had been rejected, even though it was not an appeal.
On 21st October I received a Claim Form from The County Court Business Centre with the claimant as ES Parking enforcements with Gladstones as the address for correspondence.
The original charge was £100 but the claimant claims £150 plus interest of £1.32.
It reads:
Total Due. £150
The claimant claims the sum of £151.32 for parking charges and indemnity costs if applicable including £1.32 interest at %8.00 per annum.
Total cost and interest £151.32.

Then Amount claimed £151.32
Court fee £25
Legal Representatives Costs £50
Total Amount £226.32.

This is the first correspondence I have had since the "appeal" rejection.
I have not received an LBA or any details of their claim other than this Claim Form.

I know I have to respond that I will be defending within 14 days (with no details of my defence at this time)

My questions are:
1. Is an LBA mandatory?
2. At what point in the 14 days do I send my response?
3. At what point in the 28 days do I send in my defense?

If anyone has any advice or comments or needs more information that I may have not included. I'd be very pleased to hear
Regards

Coupon-mad

Is an LBA mandatory?

It is required under the Practice Direction that a claimant writes first to supply details, the contract (pics of the signs) etc., and yes, it should be an LBC or LBA. Have a Google of the Pre-Action Protocols.

Send the acknowledgement online immediately, that then changes the timeline to defend (also online) to 28 days from the day you got that claim form, as long as it wasn't badly delayed by more than 5 days. So you will have 4 weeks.

You will find Gladstones defences all over this forum which already cover the fact they offer such sparse particulars of claim that a defendant is disadvantaged. To find those already written, search:

Gladstones indemnity

or

Gladstones incoherent

Colgoo

Gladstones have just initiated a CCJ against my son claiming they haven't received a payment he made. His bank statement clearly shows the payment to them and he wrote a letter at the time (to be signed for) confirming he'd made it. All this was done well within the time allowed. We chased and chased for confirmation of full and final settlement but they ignored us. Now we've pointed out the serious situation with the CCJ and asked what they intend to do about it. They've acknowledged receipt of our message but the CCJ was made four days ago and getting meaningful responses from Gladstones is a nightmare. From this experience they appear unprofessional and disorganised so beware!

Coupon-mad

Colgoo wrote: »

Gladstones have just initiated a CCJ against my son claiming they haven't received a payment he made. His bank statement clearly shows the payment to them and he wrote a letter at the time (to be signed for) confirming he'd made it. All this was done well within the time allowed. We chased and chased for confirmation of full and final settlement but they ignored us. Now we've pointed out the serious situation with the CCJ and asked what they intend to do about it. They've acknowledged receipt of our message but the CCJ was made four days ago and getting meaningful responses from Gladstones is a nightmare. From this experience they appear unprofessional and disorganised so beware!

It is a shame you got cold feet after acknowledging a claim, then paid, then got a CCJ (what a mess!) as we have not seen a Gladstones well-defended case here lose yet. Here is your thread in case people want to comment:

https://forums.moneysavingexpert.com/discussion/5539887

fellsider's thread should remain for fellsider's own case and questions.

fellsider

At what point do I need to let court (and or Gladstones) know that an LBC was not received before the court claim process was initiated?

System

In the defence you send within 28 days. You might want to amend this to add in the lack of LBCC too

Preliminary matters.

3. The claimant failed to include a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the Claimants contractual authority to operate there as required by the Claimants Trade Association's Code of Practice B1.1 which says

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.

4. The particulars of claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached. Indeed the particulars of claim are not clear and concise as is required by CPR 16.4 1(a). The Claimant are known to be a serial issuer of generic claims similar to this one. HM Courts Service have identified over 1000 similar sparse claims. I believe the term for such behaviour is roboclaims and as such is against the public interest.

Practice Direction 3A which references Civil Procedure Rule 3.4 illustrates this point:

1.4 The following are examples of cases where the court may conclude that particulars of claim (whether contained in a claim form or filed separately) fall within rule 3.4(2)(a):
(1) those which set out no facts indicating what the claim is about, for example ‘Money owed £5000’,
(2) those which are incoherent and make no sense,
(3) those which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable claim against the defendant

On the basis of the above, we request the court strike out the claim for want of a cause of action.

beamerguy

The Prankster just posted this

District Enforcement - you've been Gladstoned
C8GF33C8 District Enforcement v Mr X. Portsmouth

Incompetent rogues Gladstones Solicitors have had yet another claim chucked out, this time without even making it to a hearing.

http://parking-prankster.blogspot.co.uk/2016/10/district-enforcement-youve-been.html

Mr Bean and Mr Bean wasting the courts time yet again

fellsider

Thank you all. I'm getting a much clearer view of compiling my defence. Your information and help.is much appreciated.
Like many this is new to me so i thank you for your patience.

fellsider

Hi again.
I have also posted this on PePipoo.
I have put together the bare bones of my defence for the Claim against me.( I still have over 3 weeks left to submit.)
I would be very grateful if you could take a look. I know it’s not formatted correctly yet.
I think I have covered the points needed and realise that although I may think things may be relevant I will not be offended by a ‘hatchet’ job or a suggestion to dig further!
I have uploaded jpgs which may be helpful.
The signs are photographed from eye level!!
(The claim form description only gives the car reg and the pcn number. No other information)

To recap:
I received a PCN from ES Parking Enforcements a member of IPC through the post as the registered keeper stating "did not pay and display a prepaid voucher or place it in view". On the xxth July 2016 The photograph only shows the right rear of the car and no photo of the dashboard or windscreen which would have shown the required prepaid voucher quite clearly
I sent a letter asking for more proof (photos etc) which was ignored. (jpg uploaded)
Received a letter stating my “appeal” was rejected (jpg uploaded)
Received a further demand.(jpg uploaded)
Received a Claim form dated 20th Oct with no prior. LBC. (jpg uploaded)
Acknowledged Claim online.

1st Draft Defence

Statement of Defence

I am XXXXX, defendant in this matter and deny liability for the entirety of the claim 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 incident.


2. The Defendant was not the driver of the vehicle on the date in question.
a) The Claimant did not identify the driver

b) The Defendant has no liability, as they are the Keeper of the vehicle and the Claimant must rely upon the strict provisions of the Protection of Freedoms Act 2012 in order to hold the defendant responsible for the driver’s alleged breach.

c) The claimant also failed to state that the creditor does not know both the name of the driver and a current address for service for the driver.


3) The claimant has not provided enough details in the particulars of claim to file a full defence. In particular, the full details of the contract which it is alleged was broken have not been provided.

a) The Claimant has disclosed no cause of action to give rise to any debt.

b) The Claimant has stated that a parking charge was incurred.
c) The Claimant has given no indication of the nature of the alleged conduct in the Particulars of Claim. The Claimant has therefore disclosed no cause of action.

d) The Defendant asks the Court that they Strike out the claim entirely as there has been no Cause of Action disclosed. The Particulars of Claim are incompetent in disclosing no cause of action.

The Claimant has not complied with the pre-court protocol. The
Particulars of Claim contains no details and fails to establish a
cause of action which would enable the Defendant to prepare a
specific defence. It just states “parking charges” which does not
give any indication of on what basis the claim is brought. There
is no information regarding why the charge arose, what the
original charge was, what the alleged contract was nor anything
which could be considered a fair exchange of information. The
defendant contacted the claimant on xxxxx requesting
information on the parking charges . The claimant has not responded. The
defendant therefore asks that the court orders the case to be
struck out for want of a detailed course of action and/or for the
claim as having no prospect of success.
I'd refer the court to Para 4 on non-compliance and sanction, and I'd also point out that there can be no reasonable excuse for the Claimant's failure to follow the Pre-action Conduct process, especially bearing in mind that the Claim was issued by their own Solicitors so they clearly had legal advice before issuing proceedings

Alternatively the Defendant asks that the court orders Further and Better Particulars of Claim and asks leave to amend the Defence.

4. ES Parking Enforcements are not the lawful occupier of the land. I have the 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 this case.

(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 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. I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no right to bring action regarding this claim.
ParkingEye v Sharma (3QT62646 Brentford County Court) examined the contract and dismissed the claim for the reason that the Claimant had no ownership of, or proprietary interest in, the land; it followed that the Claimant, acting as an agent, had no locus standi to bring court proceedings in its own name.

ParkingEye v Gardam (3QT60598) similarly examined the contract and found the Sharma judgment persuasive.

The Defendant also refers the court to ParkingEye v Somerfield (2012) (EWCA Civ 1338 case A3/2011/0909) that examined ParkingEye contracts. This stated that any debt was due to Somerfield and that ParkingEye did not have the authority to issue proceedings. It follows therefore that if a debt exists, it is owed to the landowner, not the Claimant.


(5 The amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable

(a)The Defendant refers the court to the tests suggested by the House of Lords in Dunlop Pneumatic Tyre v New Garage & Motor Co. Ltd (1915) and Lordsvale Finance plc v Bank of Zambia to determine if the sum is a penalty or a genuine pre-estimate of damages. The Defendant also refers the court to O.B. Services v Thurlow (Worcester County Court 2011) and Excel v Hetherington-Jakeman (2008) that involved similar facts to the present case.

The Defendant asserts that the Claimant has also ignored the Government’s official position on parking charges as expressed clearly in the Department for Transport Guidance on the Recovery of Parking Charges:
“Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver.”
The Defendant submits that the amount demanded cannot possibly be a genuine pre-estimate of the Claimant’s loss.

(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 £100 to £150.

(c) 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.

5) The signage was inadequate to form a contract with the motorist

a) The signage on this site is inadequate to form a contract. It is barely legible, making it difficult to. Part E, Schedule 1 of the Code of Practice of the Independent Parking Committee (of which ES is a member), clearly states that “Text should be of such a size and in a font that can be easily read by a motorist having regard to the likely position of the motorist in relation to the sign.” As can be seen from the attached photographic evidence this is not the case.

( b) The sign fails because it must state what the ANPR data will be used for. This is an ICO breach.

5) The provision is a penalty and not a genuine pre-estimate of loss The terms of that contract cannot be enforced for the following reasons:

(a) The amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable;!

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

(d) The Defendant denies that the driver would have agreed to pay the original demand of £100 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.


6). The Defendant would like to point out that as this car park does not offer a free parking period the ParkingEye v Beavis and Wardley case does not apply (ParkingEye v Cargius case)


7) The Defendant also disputes that the Claimant has incurred £50 solicitor costs.
The Defendant has the reasonable belief that the Claimant has not incurred £50 costs to pursue an alleged £100 debt. Not withstanding the Defendant's belief, the costs are in any case not recoverable. The Claimant described the charge of £50.00 "legal fees" not "contractual costs". CPR 27.14 does not permit these to be recovered in the Small Claims Court.


The court is invited to strike out the claim as having no prospect of success.


I believe the facts stated in this defence are true.


(Name) (Signature) (Date)



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fellsider

Hi again. I’ve prepared this initial defence to the court.
I have given the bare bones which I will fill out further if I need to file a full defence.

I’d be grateful if someone could take a look and give me any tips on tweaking it.
There are photos in my previous post.

Should I mention in it that the initial PCN stated that no ticket was displayed even though the claim gives no details of this?
The driver insists that a ticket was displayed but I have no proof of this.
ES Parking have not produced photographic evidence of this although this has been requested.

The reason I ask this is if I don’t mention it in the initial defence and ES produce a badly taken photo conveniently missing the ticket on display I won’t be able to produce my own evidence to contradict it later. Ie. photos taken which would show where the ticket would be displayed.


Statement of Defence

I am XXXXX, defendant in this matter and deny liability for the entirety of the claim 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 incident.

2). The Defendant was not the driver of the vehicle on the date in question.

a) The Claimant did not identify the driver
b) The Defendant has no liability, as they are the Keeper of the vehicle and the Claimant must rely upon the strict provisions of the Protection of Freedoms Act 2012 in order to hold the defendant responsible for the driver’s alleged breach.
c) The claimant also failed to state that the creditor does not know both the name of the driver and a current address for service for the driver.


3) The claimant has not provided enough details in the particulars of claim to file a full defence.
In particular, the full details of the contract which it is alleged was broken have not been provided.

a) The Claimant has disclosed no cause of action to give rise to any debt.
b) The Claimant has stated that a parking charge was incurred.
c) The Claimant has given no indication of the nature of the alleged charge in the Particulars of Claim. The Claimant has therefore disclosed no cause of action.
The Particulars of Claim contains no details and fails to establish a cause of action which would enable the Defendant to prepare a specific defence.
It just states “parking charges” which does not give any indication of on what basis the claim is brought.
There is no information regarding why the charge arose, what the original charge was, what the alleged contract was nor anything which could be considered a fair exchange of information.

d) The Defendant asks the Court that they Strike out the claim entirely as there has been no Cause of Action disclosed.
The Particulars of Claim are incompetent in disclosing no cause of action.

The Claimant has not complied with the pre-court protocol.
a) No Letter of Claim was sent to the Defendant and no initial information was sent to the Defendant.
b) I'd refer the court to Para 4 on non-compliance and sanction, and I'd also point out that there can be no reasonable excuse for the Claimant's failure to follow the Pre-action Conduct process, especially bearing in mind that the Claim was issued by their own Solicitors so they clearly had legal advice before issuing proceedings.

c) The defendant wrote to the claimant on xxxxx requesting information on the parking charges .
The claimant has not responded.

The defendant therefore asks that the court orders the case to be struck out for want of a detailed course of action and/or for the claim as having no prospect of success.

Alternatively the Defendant asks that the court orders Further and Better Particulars of Claim and asks leave to amend the Defence.

4). ES Parking Enforcements are not the lawful occupier of the land. I have the 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 this case.

(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 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. I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no right to bring action regarding this claim.


5) The amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable

6) The Defendant asserts that the Claimant has also ignored the Government’s official position on parking charges as expressed clearly in the Department for Transport Guidance on the Recovery of Parking Charges:

a) The Defendant submits that the amount demanded cannot possibly be a genuine pre-estimate of the Claimant’s loss.

(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 £100 to £150.

c)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.

7) The signage was inadequate to form a contract with the motorist

a) The signage on this site is inadequate to form a contract. It is barely legible, making it difficult to read.

( b) The sign fails because it must state what the ANPR data will be used for. This is an ICO breach.

5) The provision is a penalty and not a genuine pre-estimate of loss The terms of that contract cannot be enforced for the following reasons:

(a) The amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable;

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

(d) The Defendant denies that the driver would have agreed to pay the original demand of £100 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.


6). The Defendant would like to point out that that this car park does not offer a free parking period


7) The Defendant also disputes that the Claimant has incurred £50 solicitor costs.
The Defendant has the reasonable belief that the Claimant has not incurred £50 costs to pursue an alleged £100 debt.
Not withstanding the Defendant's belief, the costs are in any case not recoverable.
The Claimant described the charge of £50.00 "legal fees" not "contractual costs". CPR 27.14 does not permit these to be recovered in the Small Claims Court.


The court is invited to strike out the claim as having no prospect of success.

I believe the facts stated in this defence are true.


(Name) (Signature) (Date)!

Fruitcake

I don't have time to read it all in detail, but there are a number of typos that need sorting out, so you need to carefully proof read and edit it.

example,

5 a ... It is barely legible, making it difficult to. Part E, Schedule 1