Urgent help! Gladstones letter before claim

Coupon-mad

I found some interesting things in the BPA code of practice, particularly 21.9 "if you receive information from the keeper which identifies the driver and the driver is someone else you must serve the parking charge notice on the driver" also following on from that 33.5 "you have an extra 21 days after receiving the information to serve the parking charge notice on the driver" Gladstone's were informed of the driver's identity in January. How can/ should I use this? Is it worth writing to NCP to tell them they've missed the boat?

Yes indeed, but use that in your defence as well as perhaps sending a ''look, NCP, Gladstones have mucked up your case'' letter (what fun)!

Were Gladstones given the name and postal address of the driver? If so, then the keeper cannot be held liable because Gladstones were acting for NCP, so you have complied with the POFA 2012 if you transferred liability as keeper, by naming the driver and giving an address for service, prior to court proceedings.

BTW the acknowledgement is not to be posted, it's best done online as CCBC have such a postal backlog right now, don't trust the post to CCBC in case it piles up, it's too worrying for you. Post #2 of the NEWBIES FAQS thread shows a pictorial link about doing the AOS online. That could be done tonight.

TW2011

Yes indeed, silly me, acknowledgement now completed online. Letter fired off to NCP, now to work on the defence, lots of reading to be done and many questions I'll be asking I'm sure. Thanks to all so far

TW2011

Defence is mostly done, copy and paste of others deleting bits as appropriate and adding in case specific points. I am having some trouble though as all the ones I have seen so far are being defended by the keeper where as obviously in this case the driver has been named, I'm worried that as the driver is known that's all they need to win.

Coupon-mad

I don't see the problem? The keeper is defending in your case too, and can't be held liable because the driver has already been named earlier on, completely discharging any legal liability under statute.

The PPC can't win against a keeper defendant where the driver's name & address was already, before proceedings started.

TW2011

Sorry if I didn't make it clear in the update, the claim is against my wife: the named driver.

Coupon-mad

Oh sorry, I was thinking you were the defendant. SHAME, you should have been, seeing as NCP (if it is them) couldn't have held you liable, and you could have beaten them easily.

Is it definitely NCP and not NPC? I know this has been going on a while but what is the full name of the parking firm, and were these windscreen PCNs, or ANPR postal ones?

TW2011

It's National car parks Ltd, definitely an ANPR car park no windscreen tickets

Coupon-mad

You are the only person I know to have a claim from them in years. Must be having a punt at your wife (and maybe a few others to test the water) because the driver has been identified and there's more than one PCN; an unlucky combo.

You should never have named the driver in a non-POFA PCN situation. Too late for that now though.

But as you say, the defendant was never sent any PCN to appeal so this breaches the BPA Code of Practice and the intention of the POFA, which encourages a parking firm to ask who was driving so that they can serve a PCN to that person. The lack of any PCNs might rescue this for your wife but it's probably harder than it would have been for you to defend.

So your wife the defendant, will just have to write it as the driver, which half the defences here are having to do. Loads of people make this mistake on appeal. Read other defences but don't search for NCP ones, you are the only one right now.

TW2011

Here is a copy of the defence, any feedback would be greatly appreciated.

1) It is admitted that the defendant, Miss xxxxxx residing at xxxxxxxx was the driver of the vehicle registration xxxxxxx on the dates stated in the claim form but denied that the claimant is liable for any alleged parking charge.

2) It is denied that any indemnity costs are owed, and any debt is denied in its entirety.


3) The Particulars are not clear and concise, and the claimant has not provided enough information to file a full defence. In particular, the full details of the contract, which it is alleged was broken, have not been provided.
1. The Claimant has disclosed no cause of action to give rise to any debt.
2. The Claimant has stated that a parking charge was incurred.
3. 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.

4) 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 little information regarding why the charge arose stating ‘breaching the terms’, neither 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.

5) This claim merely states: “parking charges and indemnity costs if applicable” which does not give an accurate 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'. Nor are any clear times/dates or coherent grounds for any lawful claim particularised, nor were any details provided to evidence any contract created nor any copy of this neither contract, nor explanation for the vague description 'parking charges' and 'indemnity costs'. It is evident in many other claims brought by Gladstone’s that it is a common tactic for them to file particulars of claim so brief that the defendant has nothing substantial they can defend against whilst they withhold information until the last possible minute.

6) On the 20th September 2016 another relevant poorly pleaded private parking charge claim by Gladstone’s 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.’
On the 27thJuly 2016 DJ Anson sitting at Preston County Court ruled that the very similar parking charge particulars of claim were efficient and failing to meet CPR 16.4 and PD 16 paragraphs 7.3 – 7.6. He ordered the Claimant in that case to file new particulars which they failed to do and so the court confirmed that the claim be struck out.

7) 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 checking for a true cause of action. HMCS has identified over 1000 similar poorly produced claims and the solicitor's conduct in many of these cases is believed to be currently the subject of an active investigation by the SRA.

8) The term 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 the significant detriment of the unrepresented Defendant.

9) It is suggested by the defendant 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.!

10) The claimant is a member of the British Parking Association (BPA), which sets out the standards that their members have agreed to comply with. The claimant has failed to follow the procedures that are set out in the BPA code of practice.
a. The claimant has failed to issue the defendant with a parking charge notice therefore the defendant is completely unaware of what the claimants claim is based upon and cannot rebute the claim. Parking charge notices should have been served upon the driver when the claimant was informed of their identity.
b. Without being issued with a parking charge notice the defendant has not had the chance to appeal the charge, in the first instance with the private parking company or subsequently through POPLA an independent appeals service, therefore no ADR has been offered before burdening the court with this matter and the claimant has made no attempt to mitigate their losses, contrary to the practice direction.


11) Despite the requests for documentation and evidence by the defendant, the claimant has not produced valid documents to date. It is reasonable for the defendant to request sight of documents and evidence as there is doubt as to the whether the claimant invoked Schedule 4 of the POFA 2012 with fully compliant documents. As stated within a letter sent by the defendant to Gladstone’s solicitors, it is the belief of the defendant that the letter of claim does not comply with the requirements of the Practice Direction on Pre-action Conduct and Protocols.

12) The claimant presents a completely unsubstantiated and inflated sum on account for costs, vaguely and incoherently adduced by the claimant's solicitors in their claim. 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. The defendant has the reasonable belief that a qualified solicitor would not prepare such a claim that discloses no cause of action and puts the claimant to proof of the fact that the £70 legal cost was actually incurred. The Claimant has at no time provided an explanation of how the sum has been calculated, the conduct that gave rise to it or the amount of the initial charge and how this has risen to £160 per charge. The BPA state in their code of practice that they would not expect a parking charge for breach of contract to be more than £100.


13) It is denied that the Claimant has authority to bring this claim. The proper Claimant (if any debt exists, which is denied) would be the landowner. 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. The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question. 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.

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) The claimant may try to rely upon ParkingEye Ltd v Beavis [2015] UKSC 67, ('the Beavis case') yet ParkingEye would not have been able to recover any sum at all without 'agreement on the charge'. In the Beavis case, the £85 charge was held to be allowable to act as a disincentive in that case only, based upon very specific and unique facts in a 'complex' case involving the existence of a specific legitimate interest from the landowners regarding turnover of parking spaces and very clear, brief and prominent signs. In fact, the Supreme Court Judges observed that it would be unfair if drivers were to be penalised for parking slightly out of bay lines when causing no obstruction (this was specifically mentioned at the hearing and was clearly not something they would have allowed). Further, it was held at the Court of Appeal that a parking charge sum of £135 would fail the penalty rule. The authority for this is 'Parkingeye Ltd v Somerfield Stores Ltd [2012] EWCA Civ 1338 (17 October 2012)'.


16) It is submitted that (apart from properly incurred court fees) any added legal fees/costs 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 the small claims court. The lack of diligence in this claim demonstrates admirably that at best a ‘copy and paste' is the closest a human, legally trained or not, came to the information transmitted from claimant to the Money Claims Online system.

17) It is denied that there was any 'relevant obligation' or 'relevant contract' relating to any single parking event.

18) The Claimant has shown complete disregard to the pre-court protocol;
a. No Letter before Claim was sent to the Defendant, only a poorly copy and pasted letter addressed to the wrong person, this is consistent with the “roboclaim” particulars of the claimants solicitors.
b. No initial information was sent to the Defendant, and requests for information by the defendant have been ignored.
c. No attempt at ADR has been considered by the claimant.
I'd refer the court to Para 4 on non-compliance and sanction, and I'd also point out that there could 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.

19) The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons. It is submitted that the conduct of the Claimant is wholly unreasonable; their lack of compliance with the BPA code of practice, lack of compliance with the pre- action protocol and their urgency to submit an application to the court without providing relevant information in the first instance.


20) It is requested by the defendant that the court strike out this claim for the reasons stated above, and 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 Gladstone’s' 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''.

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

Coupon-mad

TW2011 wrote: »

Also to confirm this was ANPR so no windscreen ticket

You need to state that the claimant did not issue any PCN whatsoever to the Defendant, contrary to the BPA Code of Practice and in utter disregard for the purpose for asking the registered keeper for the name and address of the driver, which is so that a PCN can then be served to that person.

No such PCN ever arrived, so the Defendant was denied any appeal and denied independent appeal, to POPLA. Since no windscreen PCNs were attached to the vehicle, the driver has never seen the allegations set out in a PCN, by post or otherwise.

In fact, the Supreme Court Judges observed that it would be unfair if drivers were to be penalised for parking slightly out of bay lines when causing no obstruction (this was specifically mentioned at the hearing and was clearly not something they would have allowed).

Were these all for parking outside of a bay? If not, what for, do you know?

If it's a Railway car park, you could allege as well that Railway Byelaws apply and this location is one that can only be enforced by the Train Operating Company (TOC) themselves laying a penalty before Magistrates Court, within 6 months. This did not occur, and a third party has no grounds to pursue such a matter under contract law instead. There are not two bites at the cherry, if a TOC has not raised a penalty then there is no penalty.