Gladstones Letter before Claim

Coupon-mad

Dear Sir/Madame,

Nope (Madam doesn't take an 'e' unless you are French but drop 'Madam' anyway):

'Dear Sirs' is how to address solicitors - not being sexist, I am female but you do just write 'Dear Sirs'!

And I would add here:

When these are supplied, please also confirm whether the intended action is founded on a contractual charge, a breach of a contract or trespass and on what basis your client has issued a PCN within the 'grace period' that is required to be allowed under their ATA Code of Practice.

maily

Coupon-mad wrote: »

Nope (Madam doesn't take an 'e' unless you are French but drop 'Madam' anyway):

'Dear Sirs' is how to address solicitors - not being sexist, I am female but you do just write 'Dear Sirs'!

And I would add here:

Thank you kindly for your response. I will amend my letter with those changes and get it e-mailed and sent of. I believe i am now over the "14 days" but i only received the letter 17/01/17 so still within plenty of time.

Appreciate the advice and pointers.. My wife keeps telling me to just pay it off haha, am really tempted at times but equally very angry about the whole thing and don't just want to hand over my hard earned money to these crooks!!

maily

Ok guys there has been an update since e-mailing my response to Gladstones regarding the LBCCC we have now received proper court papers from Northampton County Court.

It is a claim form showing that Gladstones are demanding £229.61.

I am not sure what we do next they didn't even bother responding to our response to the LBCCC surely this will be frowned upon in court?

Do i need to start putting a defense together now?

System

Do i need to start putting a defense together now?

Yes but acknowledge first. See https://forums.moneysavingexpert.com/discussion/5546325

maily

IamEmanresu wrote: »

Yes but acknowledge first. See https://forums.moneysavingexpert.com/discussion/5546325

Thank you! I wonder if it can be acknowledged online will have a through read of that thread and then start putting together some points of defense i guess i am more shocked t hat they issued this straight away without engaging any further with us!! Guess they just want nothing but the full amount.

Coupon-mad

maily wrote: »

Thank you! I wonder if it can be acknowledged online will have a through read of that thread and then start putting together some points of defense i guess i am more shocked t hat they issued this straight away without engaging any further with us!! Guess they just want nothing but the full amount.

That linked thread comes from the NEWBIES thread section headed 'Small Claim?' which you need to read first. That explains what to do - and YES you must acknowledge online using the awful Govt 'Gateway' for MCOL. Don't panic, this was bound to happen and even if a person loses they pay less than the inflated sum 'claimed' as a way of intimidating you into paying more than a Judge would award them.

And we haven't lost one on here as of yet, not with Gladstones, although I think two posters are in court hearings today.

maily

Coupon-mad wrote: »

That linked thread comes from the NEWBIES thread section headed 'Small Claim?' which you need to read first. That explains what to do - and YES you must acknowledge online using the awful Govt 'Gateway' for MCOL. Don't panic, this was bound to happen and even if a person loses they pay less than the inflated sum 'claimed' as a way of intimidating you into paying more than a Judge would award them.

And we haven't lost one on here as of yet, not with Gladstones, although I think two posters are in court hearings today.

Thank you for your kind words and assistance my wife was in a right panic today!!! "what have you done".. I have told her to not worry to much and that i will take care of it all for her hopefully Fingers crossed will acknowledge this later on and then start putting together a defense and post it up here.

Coupon-mad

How does it matter, even if you lose there is no CCJ if you pay what the Judge says (all life experience, no risk!). Your wife needs to know not to give in to scams - and I'm female and have the reverse situation at home, my OH wold worry more about this sort of thing than me. I research stuff, like you do!

Remember if your wife is the defendant the acknowledgement and defence is in HER name. You are not the defendant are you?

maily

Coupon-mad wrote: »

How does it matter, even if you lose there is no CCJ if you pay what the Judge says (all life experience, no risk!). Your wife needs to know not to give in to scams - and I'm female and have the reverse situation at home, my OH wold worry more about this sort of thing than me. I research stuff, like you do!

Remember if your wife is the defendant the acknowledgement and defence is in HER name. You are not the defendant are you?

Indeed i am not the defendant, all paper work i will submit on her behalf will be in her name and any correspondence that i send, i am showing to her prior to submission to ensure she is also happy and does not disagree with any points and that she has a good understanding of what is going on also.

It is a real shame that the government doesn't step in to bring in laws to regulate this very shady industry. Imagine a world where parking companies can only hand out fixed invoices and not penalize drivers unfairly.... oh i am dreaming now Makes me think twice about parking anywhere now so paranoid!!!

maily

Coupon-mad wrote: »

How does it matter, even if you lose there is no CCJ if you pay what the Judge says (all life experience, no risk!). Your wife needs to know not to give in to scams - and I'm female and have the reverse situation at home, my OH wold worry more about this sort of thing than me. I research stuff, like you do!

Remember if your wife is the defendant the acknowledgement and defence is in HER name. You are not the defendant are you?

Below is my Draft Defense have i waffled on a bit to much? IS there any other relevant points or cases i can stick in there i have read various defenses and picked out the bits i feel are relevant its the first time i have ever done this so wanted your thoughts feedback please.

1. I am the Defendant, ???? , DOB xx/xx/xxxx, and reside at ?????? and it is admitted that I was the driver of the vehicle on the day of xx/xx/xxxx

2. The Defendant denies each and every allegation set out in the Particulars of Claim, or implied in Pre-action correspondence.

3. The claimant failed to include a copy of their written contract nor any detail or reason for - nor clear particulars pertaining to - this claim (Practice Directions 16 7.3(1) and 7C 1.4(3A) refer).
It is submitted that the Claimant is merely an agent acting ‘on behalf of’ the landowner who would be the only proper claimant. Strict proof is required of a chain of contracts leading from the landowner to this Claimant, to allow them the right to form contracts and to sue in their name.

4. It is submitted that (apart from properly incurred court fees) any added solicitors fees are simply numbers made up out of thin air, and are an attempt at double recovery by the Claimant, which would not be recoverable in any event.
The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. The Defendant also has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have actually been incurred. Even if they have been incurred, the Claimant has described them as "legal expenses". These cannot be recovered in the Small Claims Court
In addition to the original ‘parking charge’, believed to be £60, for which liability is denied, the Claimant’s legal representatives, Gladstones Solicitors, have artificially inflated the value of the Claim by adding various ‘Solicitor’s Costs’ of £50.00 which I submit have not actually been incurred by the Claimant, and which are artificially invented figures in an attempt to circumvent the Small Claims costs rules using double recovery. The Court is invited to report Glastones to the Solicitors’ Regulation Authority for this deliberate attempt to mislead the Court, in contravention of their Code of Conduct.

5. The Particulars of Claim (PoC) do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how any terms were breached. Indeed the PoC are not clear and concise as is required by CPR 16.4 1(a) and CPR 1.4. It just vaguely states “parking charges” which does not give any 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', so I have had to cover all eventualities and this has denied me a fair chance to defend this in an informed way. I have asked questions in the form of a letter to the claimaints solicitor and have received no response.

6. The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no diligence, no scrutiny of details nor even checking for a true cause of action. HMCS have identified over 1000 similar sparse claims. I believe the term for such conduct is ‘roboclaims’ which is against the public interest, unfair on unrepresented consumers and 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. On the basis of the above, I request the court strike out the claim.

7. The Claimant did not comply with the Part B, section 15.2 of the IPC Code of Practice regarding 'grace periods'. The Penalty Charge Notice on the car states overstaying by a period of 10 minutes however the defendant strongly denies overstaying by this much time.
8. The Claimant may try to rely upon ParkingEye Ltd v Beavis [2015] UKSC 67, ('the Beavis case') yet such an assertion is not supported by any similarity in the location, circumstances nor signage. Absent any offer or agreement on a charge, the Beavis case does not assist the claimant and in fact, supports this defence. Further, there is no ‘legitimate interest’ served by immediate ticketing of a car on arrival, with no attempt to mitigate loss or draw terms to the attention of drivers, or allow any period of grace.
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.
d) 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 Particulars of Claim are incompetent in disclosing no cause of action.

9. On the 20th September 2016 another relevant poorly pleaded private parking charge claim by Gladstones was struck out by District Judge Cross of St Albans County Court without a hearing due to their ‘roboclaim’ particulars being incoherent, failing to comply with CPR. 16.4 and ‘providing no facts that could give rise to any apparent claim in law’
10. ) On the 19th August 2016 DJ Anson sitting at Preston County Court ruled that the very similar parking charge particulars of claim were deficient and failing to meet CPR 16.4 and PD 16 paragraphs 7.3 - 7.5. He ordered the Claimant in that case to file new particulars which they failed to do, and the court confirmed the claim will now be struck out.

11. The Claimant has not complied with the pre-court protocol.
a) No Valid 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) Gladstones nor their client ever acknowledged or responded to my letter & e-mail dated 23/01/17 which was sent out to them to try and establish some answers as to why the defendant was being asked to pay £150.

12. The Defendant disputes that the Claimant has incurred solicitors costs of £50 to prepare the claim. The Defendant refers the Court to the incompetent Particulars of Claim that disclose neither the basis for the claim nor a definite cause of action.
a) Additionally, as this is already included as part of the costs of the claimant, factored into the £100 parking charge, this is essentially double charging.
b) The £50 solicitor cost was disputed in the test case of ParkingEye v Beavis and Wardley. HHJ Moloney refused to award the £50.
c) The £50 was also struck out by DJ Sparrow on 19 August 2015 in ParkingEye v Mrs S, claim number B9FC508F.

13. I refer to case Vehicle Services Ltd vs Ibbotson (2012) in which it was agreed that a private parking firm was responsible for mitigating any loss. The parking operative had every opportunity to write to me and ask for a settlement. Gladstones refused a previous settlement offer of £15 which was provided by the keeper of the vehicle as a gesture of good faith which is a very reasonable amount as the claimant has suffered no financial losses and the car park charged 80p an hour and therefore an offer of £15 for an alleged overstay of 10 minutes was extremely reasonable.

14. It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, I am keeping a note of my wasted time/costs in dealing with this matter.


15. Even if a contract had been formed it would be void, or in the alternative the following terms are either not transparent or are unfair, and these terms are not binding on the consumer, for the following reasons. Section 71 of the Consumer Rights Act 2015 provides that the Court has a duty to consider the fairness of the terms.

16. The Particulars of Claim are deficient in establishing whether the claim is brought in trespass. In the event that a trespass claim is brought by the Claimant, the Defendant parked on land where parking was invited and paid for full authority to park. Trespass cannot therefore apply. Furthermore, the Defendant has reasonable belief that the Claimant does not have a contractual or proprietary right to occupy or possess the car park per Hill v Tupper [1863] 2 H & C 121; the landowner has not assigned rights to enable the Claimant to pursue a case under the tort of trespass. In any event, the Defendant’s sole liability would be damages in favour of the landowner. Per the Supreme Court in the case of Cavendish Square Holding BV v Talal El Makdessi and ParkingEye Ltd v Beavis [2015] UKSC 67 (the Beavis case), trespass is limited to the landowner themselves claiming for a nominal sum.


17. The damages clause is a penalty. The signage provides for a parking charge of £100 if the terms and conditions of parking are breached. The Claimant seeks £150 which is an extravagant and unconscionable penalty, and therefore unenforceable.

18. Applicability of ParkingEye Ltd v Beavis [2015] UKSC 67
a) The Claimant might argue that the Supreme Court’s landmark decision in the Beavis case is applicable.

b) This case is not supported by any similarity in the circumstances or signage. Mr Beavis refused to pay a charge of £85 for overstaying a permitted period of free parking in a car park at a retail park. The signs displaying this information were accepted to be large, prominent and legible. The notice stated ‘2 hour max stay… Failure to comply … will result in a Parking Charge of £85.’ Mr Beavis exceeded the time limit by one hour but declined to pay the charge and maintained the term which sought to impose the charge was an unfair term. The Beavis case does not assist the claimant and in fact, supports my defence.
c) In ParkingEye Ltd v Beavis the Supreme Court recast the test to be applied when seeking to distinguish a liquidated damages clause from a penalty clause. To engage a penalty the question was whether the relevant provision was “unconscionable” or “extravagant” (Lord Hodge at [221]). The full test was expounded by Lord Hodge (at [255]).
d) The Supreme Court was only prepared to accept a charge (£85) that was sufficient to act as a disincentive and that was worth collecting. The Supreme Court had previously stated that £135 would be unacceptable (ParkingEye v Somerfield). The charge to the Defendant of £150 is evidently extravagant and unconscionable in that it is disproportionate to the Claimant’s interest, and disproportionate to the highest level of damages that could possibly arise from the Defendant’s alleged breach of contract.
19. The Defendant therefore disputes the amount claimed, as it comprises excessive and non-contractual elements, and additional costs must be proved. With reference to paragraph c, the Claimant claims a sum of £150 as a ‘parking charge’ (for which liability is denied), which includes £50 that the claimant has untruthfully presented as contractual charges, which amounts to double charging.
The Claimant has claimed a £50 legal representative’s cost on the claim form, despite being well aware that CPR 27.14 does not permit such charges to be recovered in the Small Claims Court. The Defendant also has the reasonable belief that the charges have not been invoiced and/or paid. The Defendant also has a good faith belief that due to the sparse particulars the £50 claimed for filing the claim has not been incurred. This appears to be an attempt at double recovery as a way to inflate the value of the claim. The solicitor has been incompetent and is not due £50. In the alternative, the Claimant is put to strict proof to show how this cost has been incurred.

The court is invited to strike out the claim, due to no cause of action nor prospects of success.

The facts and information in this defence are true and the Defendant is not liable for the sum claimed, nor any sum at all.