Looks like I am going to court with Gladstones.

Umkomaas

If anyone spots any inadequacies on the NTK or LBC please advise!!!!

Many thanks!!

http://s1070.photobucket.com/user/onearmba...pbuioo.jpg.html

First inadequacy:

Your link doesn't work!

onearmbandit

Blimey - it doesn't work. I am sorry. Just posted over at pepipo - worked there? What am I doing wrong??

Thanks for the spelling correction!

Here is another link - the pictures are all orientated in this one - but for some reason when the pictures are clicked on they then flip around??

http://s1070.photobucket.com/

http://s1070.photobucket.com/user/onearmbandits/media/6e8303da-f89a-444b-a751-8a01cfa0afba_zpspuhvdqpe.jpg.html?o=0

Hope that is better???

Coupon-mad

If anyone spots any inadequacies on the NTK

Yes, a technical point that they have misstated the '28 day period' for keeper liability under the POFA but a judge might say 'it's close enough' (it's not - but hey!). But haven't you already admitted the driver? If so then the NTK is not something to particularly scrutinise, as the wording flaws are an argument ONLY for a 'registered keeper' defendant.

Here's the Parking Prankster's version from today which also covers the CCRs and it covers predatory tactics of lurking and jumping out to issue a PCN where signs are not immediately obvious:

http://parking-prankster.blogspot.co.uk/2016/12/heath-parade-graham-park-way-scam-site.html

Of course you would need to go through it with a fine tooth comb and remove the stuff specific to 'Mrs Sunglasses' etc. But I think you could adapt it. Show us!


My approach quite similar in terms of the 'not clean hands' wording but in defences I write about Gladstones cases, I normally start like this:


PRELIMINARY MATTERS:

The Particulars of Claim (PoC) do not meet the requirements of Practice Direction 16.7.5 as there is nothing which specifies the terms, nor how they were allegedly breached. Indeed the PoC are not ‘clear and concise’ as is required by CPR 16.4 1(a).
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, e.g.‘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 20/09/16 a similar, poorly pleaded parking charge claim from Gladstones was struck out by DJ Cross of St Albans County Court without a hearing, due to their particulars being ‘‘incoherent’’, failing to comply with CPR. 16.4, ‘‘providing no facts that could give rise to any apparent claim in law.’’ Further, on 27/07/16 DJ Anson sitting at Preston County Court ruled that Gladstones’ PoC were deficient. He ordered the Claimant in that case to file new particulars which they failed to do, so the court confirmed that the claim be struck out.

These incoherent PoC display a want of any cause of action and are indicative of a robo-claim, which is vexatious, unreasonable and against the public interest. The Claimant’s Solicitors are run by the same ‘controlling minds’ as their Trade Body and notorious IPC ‘Appeals Service’ and are known to be a serial issuer of generic claims with no scrutiny. The individuals in question are John Davies and William Hurley and such a set-up is incapable of providing any fair means for motorists to challenge parking charges. As such, the Claimant and Gladstones Solicitors do not come to this matter with clean hands and leave recipients of unfair charges with no option other than to pay or face court action.

onearmbandit

Cheers coupon-mad! Getting on it now - that prankster link is utterly hilarious and disturbing in equal measure!

Here is the defence thus far:

1. The Defendant believes this claim is in breach of pre court protocols in relation to the particulars of claim and so are therefore are an abuse of the courts process and or otherwise likely to obstruct the just disposal of proceedings. Therefore, as currently drafted, this claim has no reasonable prospect of success for the following reasons:

1 a): The particulars of claim fail to comply with Civil procedure rule 16.4 and practice direction 16 paragraphs 7.3 -7.5 as, set out by the Ministry of Justice. If the parking charge is considered a written agreement between the defendant and claimant they do not contain a copy of the contract and do not explain how the contract was concluded. It is allowable to file these within 14 days as additional particulars if they do not fit the claim form under PD16 3.2(2) and 3.3. However the claimant did not do this.

1 b): Under Practice Direction 16, the particulars of claim fails to adhere to 7.1 & 7.5 which states they should include an “identification of the land” on which the offence took place.

1 c): As a result of the particulars to claim being extremely sparse and divulging no course of action puts the Defendant at a distinct disadvantage by preventing a coherent defence being filed This is because a ‘parking charge’ can be for the act of trespass, breach of contract or a contractual charge and each one would be treated differently in law, requiring a different defence. The wording of any contract will naturally be a key element in this matter and a copy of the alleged contract has never been provided to the defendant.

It must be pointed out that, in line with the above, the claimant’s solicitors are serial abusers of the court process. By issuing such scant Particulars is typical of Gladstones “Cut and Paste” approach to the issuing of proceedings and demonstrates a disregard for the dignity of the court and little concern for the Claimant’s duties in supporting the court to achieve the overriding objectives. I understand that HM Courts Service have identified over 1000 similar sparse claims.

Indeed, claims with similar Particulars to those received by the defendant were struck out without a hearing for failing to comply with CPR 16.4 & Practice Direction 16 paragraphs 7.3 – 7.4 by the District Judge Cross of St Albans County Court on 20 Sept. 2016 due to the Gladstones' template. Similarly, on the 27th July 2016 DJ Anson sitting at Preston County Court ruled that the particulars of claim for a similar parking charge to which the defendant has been charged were efficient and failed to meet CPR 16.4 and PD 16 paragraphs 7.3 – 7.6. In this case the claimant was ordered to file new particulars which they failed to do and so the court confirmed that the claim be struck out.

1 d): In view of inadequate particulars of claim submitted by the claimants solicitors the Defence asks the court to strike out the claim.
Alternatively, the Defendant asks that the claimant is required to file particulars which comply with practice directions and include at least the following information

a. Whether the matter is being brought for trespass, breach of contract or a contractual charge, and an explanation as to the exact nature of the charge
b. A copy of any contract it is alleged was in place (eg copies of signage)
c. How any contract was concluded (if by performance, then copies of signage maps in place at the time)
d. Whether the Claimant is acting as agent or principal, together with a list of documents & contracts that they will rely on in this matter including evidence of a chain of contracts from the landowner to the claimant.
e. All photographs taken at the time of the ‘alleged’ offence which the will be relied on for their claim.
f. If the charge was based on a contractually agreed sum for the provision of parking, the provision of a valid VAT invoice for this 'service'.

Once these particulars have been filed, the Defendant asks for reasonable time to file a defence

2. The defendant believes the claimant and associated solicitors has further failed to meet pre-court protocols as set out in the Ministry of Justice’s Practice Direction


2 a). Under Practice Direction Pre-Action Conduct and Protocols 3 (a, b, c, d, e, f) and 6c whereby the Claimant has failed to disclose “key documents relevant to the issues in dispute”. Point 6c of the Practice Direction states that steps in pre-action protocol should include “the parties disclosing key documents relevant to the issues in dispute”.

In accordance with the Over-riding Objective and CPR 1.1(2) (a) & 31.14 the defendant wrote to the claimant’s solicitors on the 8/11/16 & 04/12/16 asking:

a) To provide a signage map including entrance signage
b) To provide a clear copy of the signage which is alleged to have formed a contract between defendant and claimant
c) A copy of the contract between the landowner and the claimant
d) The provision of any and all photographs taken at the time of the alleged incident which the defendant will rely on in court

The claimant’s solicitors have as yet not responded to these requests, therefore, by withholding any relevant documents is against the claimants solicitors are also in breach of their SRA code as well as over-riding objective’ in the pre action protocol. This non action has also prevented the defendant from complying with objectives of pre-action conduct 3a,b,c,d,e and f therefore has prevented from making a fully informed decision on how to proceed. As Gladstones are a firm of solicitors whose Directors also run the IPC Trade Body and deal with private parking issues each and every day there can be no excuse for these omissions

2 b) Paragraph 8 of the PD states that “litigation should be the last resort”. I appeal to the courts that such a poor exchanges of information by the claimant are a direct breach of these pre conduct protocols which states all measures to be taken to resolve the issue. By ignoring the defendants requests the conduct of Gladstones has not only been unreasonable but wholly incompatible with a party seeking a mediated resolution.

2 c): Furthermore, paragraph 13 of the PD makes it clear that “the court will expect the parties to have complied with a relevant pre-action protocol” whilst 14a states that “the court may decide that there has been a failure of compliance when a party has not provided sufficient information to enable the objectives in paragraph 3 to be met.” In particular the Claimant failed sections 3a (to understand each other’s position) 3c (trying to settle the issues without proceedings) and 3f (reduce the costs of resolving the dispute by unnecessarily engaging solicitors).

As this first point indicates the complete failure of the Claimant to follow the most basic of requirements, which has put the Defendant at a distinct disadvantage, I ask the court again to either strike the out the claim out or order the claimant to re-plead their claim. In the case of the latter I ask leave to file an amended defence.

2 d) 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 has been given as to the Claimants contractual authority to operate there or bring this claim 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 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.

3. The stated reasons for the charge are contradictory, the PCN states and the claimant has confirmed, that the charge was issued due to the defendant not clearly displaying a valid permit however the claimants solicitors claim the charge to be a contractual one. If this charge is considered a contractual agreement then it is denied that a contract exists between the defendant and the claimant for the following reasons:

3 a): No contract was entered by performance due to inadequate signage. The site contains no entrance signage that would have been seen by the driver – this is a stipulation of the IPC code of practice part E schedule 1 and is believed by the defendant to be an example of predatory tactics as stipulated in the IPC code of conduct 14.1. Furthermore, unlike in Beavis V Parking eye, which was dependant upon an un-denied contract formed by entrance signs as well as prominent signage with large lettering, the lettering of the charge claimed against the defendant is neither prominent or in sufficiently large font size to form a clear contract and as such does not comply with legislation as stipulated in the consumer rights act 2015 (does this apply to parking signs?)

It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the IPC Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print. Under Lord Denning's Red Hand Rule, this should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the IPC Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently in far larger lettering. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency'

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

The sign does not contain an obligation as to how to ‘validly display’ the ticket in the contract’ as required under Schedule 4 of POFA.

3 b): No contract as the signage is forbidding: The PCN clearly states that it was issued due to not clearly displaying a valid permit, since the signage makes it clear that parking is authorised for permit holders only and does not make any offer of obtaining a valid permit to the defendant there can be no contract considered to have been made because an offer & subsequent agreement are the very essence of a legal contract. No legally binding contract would mean a claim of trespass may be accurate – a claim that can only be made by the landowner.

3 c): No contract formed due to the failure to provide adequate grace periods: The purpose of which is to provide sufficient time for an individual to read the terms of a contract and decide he they agree to them. .

3 d): Even if there was a contract it would be non-binding as the contract fails informational requirements for contracts established in the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, enacted 13 June 2014.

3 e): The reasons for the charge issued by the claimant, as evidenced by the PCN and NTK, show this charge to be a penalty and not merely an invoice as would be expected as part of an agreed contract. Therefore, the alleged charge is not saved by the case law established in ParkingEye v Beavis [2015] UKSC 67 confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim.


4. The defendant believes that the claimant engaged in predatory behaviour by not allowing any grace period.

4.a): As per the IPC Code of Practice 15 paragraphs 1 it made clear that drivers should be allowed a sufficient amount of time to park and read any signs so they may make an informed decision as to whether or not to remain on the site. I submit that 5 minutes isn’t sufficient time and so this requirement of the IPC code of conduct was breached. Furthermore, the defendant believes the claimant has also breached the IPC code of practice paragraph 14.1 by not allowing any grace period

5) The defendant disputes the sum requested by the claimant

5 a): No sum payable to this Claimant was accepted nor even known about by the defendant as they were not given a fair opportunity to discover the onerous terms by which they would later be bound due to inadequate grace period given.

5 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. In this case, £100 & not the £228.45 now requested. The Claimant at no time provided an explanation how the original sum has been calculated or how the amount initially climbed from £100 to £150 as per the letter of claim. As per the court claim form, the total amount now claimed includes legal costs and court fees – despite pre-court arbitration not yet being fully pursued as per the Practice Direction with the destination of court still not certain. The Defendant suggests the particulars of claim are templates, so it is cannot be credible that any legal costs have been incurred thus far and so it is put to strict proof that they have been. Furthermore, the defendant understands that such costs are not recoverable in small claims in any case. These appear to be added costs with no clear reason and as such, may be deemed to be an attempt at double recovery, which the POFA Schedule 4 specifically disallows.

I believe the statements in this defence to be true

The_Deep

I am somewhat disturbed at the complexity of this defence, it reminds me of medieval philosophers debating how many angels can dance on a pin head.

In essence, thus is a case about a motorist getting lost, leaving his car and seeking directions. It is the matter if a claim in a small claims court where disgruntled homeowners sue tradesmen for poor work. It seems that we have lost all sense of proportion.

Why not just tell the judge the facts and let justice take its course. ,

Quentin

The_Deep wrote: »

Why not just tell the judge the facts and let justice take its course. ,

OP, take care who's advice you take on dealing with this in court!!

The_Deep

And be wary of apostrophe abusers.

onearmbandit

The Deep
I agree that it is absurd that such a simple matter could give rise to such a defence. I will stand up in court and give my account however I think it would be incredibly naive for me to solely rely on the judge simply believing me! I have no actual evidence do I. So I must have a solid and legitimate legal argument which can disprove their claim that i entered into a contract with them regardless of anything else. I am going up against trained legal representatives so I must be ready. This was not how I planned to spend Christmas mate! I take your point though!

Coupon-mad

The_Deep wrote: »

And be wary of apostrophe abusers.

I got a nice book from my student kids for Christmas, you would like it too (warning - do not look if easily offended):

https://pbs.twimg.com/media/CpqEa5nW8AALmEX.jpg

Perfect for us grammar pedants!

I am somewhat disturbed at the complexity of this defence, it reminds me of medieval philosophers debating how many angels can dance on a pin head.

It has been said before that I write appeals and defences in the style of Tolstoy. But it works and at this stage the OP needs to cover every base.

onearmbandit

Coupon-mad

Do you think I should add something which brings in Jopson.

For example, in point 5 where I dispute the sum - I could say that i dispute the sum because I never agreed to park - I had stopped to find directions....then mention Jopson and the definition of parking...not sure if this is plausible as having looked at Jopson I have struggled to integrate it into this one. Do youhave any ideas at all?

Anyway - HAPPY NEW YEAR! I wish the best of one to all of you!