Gemini, Gladstones, SCC, Hospital car parks

edited 26 July 2017 at 12:20PM in Parking Tickets, Fines & Parking
39 replies 2.9K views
AntrimMarkAntrimMark Forumite
43 Posts
edited 26 July 2017 at 12:20PM in Parking Tickets, Fines & Parking
This is seperate from my other thread which is at POPLA stage.
This case is at SCC stage.

I've left this late but any advice would be appreciated.
Fiance works for the landowner, has a paid for parking permit, doesn't always display it or park in the correct car park. There are multiple car parks, some for staff and some for visitors.
Parking company is Gemini, solicitor is Gladstone
First I knew about this is a Claim Form from Nottingham, she ignored everything else, !!!!!!!
After a root in the bin we found the LBC.
PoC state The driver of vehicle reg XXXX incurred the parking charges on date A, date B, date C for breaching the terms of parking on the land at XXXXX Hosptital. The defendant was driving the Vehicle and/or is the keeper of the Vehicle. and the claimant claims £XXX for Parking Charges/Damages and indemnity costs if applicable together with interest of £xx pursuant to S69 of the CC Act 1984 at 8% pa, continuinbg to Judgement at £0.11p per day.

Dated 28th March, I acknowledged and 33 days is 30th April so the defence is going off tomorrow morning. See below.
IN THE COUNTY COURT
Claim No.:

Between

(Claimant)

-and-


(Defendant)

___________________________________________________________________________

DEFENCE STATEMENT
___________________________________________________________________________


I assert that I am not liable to the Claimant for the sum claimed, or any amount at all, for the following reasons:

1. I am the registered keeper of the vehicle in question, no.. The Claim relates to an alleged debt arising from the driver of the vehicle in registration CP11 CVW incurring parking charges on date A,B,Cfor breaching the terms of parking on the land at XXXXXX.

2. The Particulars of Claim fail to comply with Civil Procedure Rules (CPR) 16.4 (a) in that they do not contain a concise statement of facts on which the Claimant intends to rely.

3. The Particulars of Claim fail to comply with Practice Direction (PD) 16 paragraphs 7.3-7.5 in that they fail to set out the details of the agreement which they assert was breached.

4. The Particulars of Claim fail to properly disclose a cause of action in which bring proceedings against the Defendant.

5. a) The Particulars of Claim are submitted on the Claimant’s behalf by a firm of solicitors who state on their website that they have “years of experience in Criminal & Regulatory Law” and “formed a niche practice dealing exclusively with road traffic and motoring matters. As such there can be no excuse for not complying in full with Civil Procedure Rules and Practice Direction.

b) The Claimant is known to be a serial issuer of claims similar to this one. HM Courts Service have identified over 1,000 similar claims and I submit that the Particulars of Claim are in fact a roboclaim template intended to deal with a variety of circumstances, failing to address the specifics of this Claim. I suggest that parking companies using the small claims track as a form of automated debt collection is not something the courts should be seen to support and not in the public interest.

c) On 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 roboclaims particulars being incoherent, failing to comply with CPR 16.4 and PD 16 paragraphs 7.3-7.5 And “providing no facts that could give rise to any apparent claim in law”.

d) On 19th August 2016 District Judge 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 5.3-7.5. 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.

e) The Claimant alleges parking charges on three separate occasions on the land at XXXXX Hospital, a large site consisting of a number of areas, each having specific parking rules set out in the XXXXX NHS Foundation Trust Car Parking Policy. In the absence of fully compliant Particulars of Claim the Defendants ability to put forward a full and robust defence in is diminished. I understand from research that the Claimants solicitors are known to be a serial issuer of similar generic claims and have reason to believe that this is to be a claim without any facts or evidence supplied until the last possible opportunity, to the Defendant’s significant detriment as an unrepresented individual. I submit that combining three allegations of charges in one Claim and failing to provide fully compliant Particulars is a tactic designed by the Claimant’s solicitors to intimidate and disadvantage the Defendant.

f) The Defendant asks the Court requires the Claimant to file Particulars which fully comply with Practice Directions and at least include (but not limited to) the following information for each of the three alleged charges:
i) A copy of the contract it alleges was in place. (e.g. Copies of signage)
ii) How any contract was concluded? If by performance then provide copies of the signage maps in place at the time.
iii) Whether keeper liability is being claimed, and if so copies of any Notice to Driver and/or Notice to Keeper.
iv) Whether the Claimant is acting as agent or principal, together with a list of documents they will rely on in this matter.
v) If charges over and above the initial charge are being claimed the basis on which the charges are claimed.
vi) If interest charges are being claimed, the basis on which this is claimed.

g) Once fully compliant Particulars have been filed the Defendant asks for reasonable time to file a defence.

6. While it is admitted that the Defendant was the registered keeper of the above vehicle at the time of the alleged event(s) it is averred that the Defendant was not the driver on the date(s) mentioned in the particulars and the Claimant is put to strict proof in this respect. 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 (POFA) 2012 in order to hold the defendant responsible for the driver’s alleged breach. The Defendant has not received any Notice to Keeper, and has reason to believe that Gemini Parking Solutions do not use compliant NTKs, failed to serve one and cannot hold a registered keeper liable.



7. It is denied that the Claimant is the lawful occupier of the land. In the absence the Claimant producing a contract with the lawful occupier of the land, on whose behalf they are acting as agent, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, I have the reasonable belief that the Claimant does not have the authority to issue charges or to pursue unpaid parking charges on this land in their own name and that they have no right to bring action regarding this claim.
The Claimant is therefore put to strict proof in the form of an un-redacted and contemporaneous contract, that at the time of the alleged event(s) they were in possession of sufficient authority to issue parking charges and institute proceedings in their own name and can demonstrate a clear chain of authority from the landowner to the Claimant.

8. If the Claimant seeks to rely on the keeper liability provisions of Schedule 4 Protection of Freedoms Act the Claimant must demonstrate that there was a “relevant obligation” either by way of a breach of contract, trespass or other tort. Further the Claimant must also demonstrate that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the Registered Keeper. The Claimant is put to strict proof that such a “relevant obligation” existed and that the Claimant has followed the correct procedure to transfer liability to the Registered Keeper.

9. The Claimant may seek to rely on a rather unique interpretation of the judgement in Elliott v Loake (1982) and endeavour to persuade the court that the case created a precedent amounting to a presumption that the registered keeper is the driver where no other evidence or admission exists and thereby prove his allegations. I submit that this interpretation actually represents a very considerable reworking of the case and does not fairly convey the findings. The reality is that Mr Loake was found guilty (it was a criminal matter) on a surfeit of evidence including forensic evidence of being the driver at the time of a road traffic accident and no such presumption was made.
From the internet I found this extract in relation to lead POPLA appeals officer Henry Greenslade (barrister, parking law expert and POPLA Lead Adjudicator in 2015)
“There is no ’reasonable presumption’ in law that the registered keeper of a vehicle is the driver” advises Mr Henry Greenslade QC. “Operators should never suggest anything of the sort,” he says. Further, a failure by the recipient of a notice issued under Schedule 4 of the POFA 2012 does not of itself mean that the recipient has accepted that they were the driver.

10. The signs on site at the date of the alleged events were insufficient in terms of their numbers, distribution, position, wording and lighting to reasonably convey a contractual obligation and did not in any event at the time comply with the requirements of the Code of Practice of the Independent Parking Committee’s Accredited Operators Scheme a signatory to which the Claimant was at the relevant time.
The Claimant’s signs at the site:
a) Fail to include a large prominent P for parking either completely or in contrasting colours for text and background (the IPC Code of Practice recommends black and white).
b) Fail to make it clear that the motorist is entering onto private land. The text so stating is buried among a mass of small print that a motorist cannot possibly be expected to read while driving.
c) The text is not of a size and in a font that can easily be read by a motorist having regard to the likely position of the motorist in relation to the sign.
d) Are not in a position such that a driver of a vehicle is able to see them clearly upon entering the site or parking a vehicle within the site.
e) The car park may have been in darkness on the date stated in the particulars, however in the absence of any information on the times the alleged charges occurred it is impossible to know. In any case the IPC Code of Practice states:
“If parking enforcement takes place outside of daylight hours you should ensure that signs are illuminated or there is sufficient other lighting. You will need to ensure all signs are readable during the hours of enforcement as they form the legal basis of any charge”. The Claimant’s site signs have no illumination, nor do they benefit from light columns or other secondary sources within the carpark so as to ensure they are readable during the hours of enforcement.
I will ask the court to consider the frequently overlooked test established by Lord Justice Roch in the matter of Vine v London Borough of Waltham Forest in so far as it relates to the display of signage in conveying an obligation. Although the above case turned on the application of the principle of volenti non fit injuria as opposed to the creation of a contract to park I will submit that the test created is nevertheless relevant and is entirely applicable to the instant matter.
I further submit that such is the complexity and density of the text on the Claimant’s signs that the most onerous term, the £60 parking charge notice, is buried amongst a mass of small print and fails to comply with Lord Denning MR’s “Red Hand Rule” in that reasonable steps have not been taken (at or before the time of contracting) by the Claimant to bring the motorist’s attention to the clause. The Defendant denies that the driver would have agreed to pay the original demand of £60 to enter into the alleged contract had the terms and conditions of the contract been properly displayed and visible. No consideration could have flowed between the parties and no contract was established.
In the absence of any signage that contractually bound the Defendant then there can have been no contract and the Claimant has no case.

11. In the absence of fully compliant Particulars of Claim it is impossible to know the terms of parking the Defendant is alleged to have breached. The XXXXX NHS Foundation Trust (the Landowner)’s Parking Policy states “Staff are not permitted to park in the Patient and Visitor car parks”. The same statement is repeated on the Car Parking Conditions and notes for Guidance issued by the Landowner along with a Parking Permit, paid for by and issued to The Defendant who is/was an employee of XXXXXX NHS Foundation Trust during the period when the charges are alleged to have occurred. If the Claimant is alleging that the vehicle was parked in a Patient and Visitor car park and that the Defendant was the Driver at the time, I submit that the landowner’s own parking policy has precedence and no offer was made therefore no contract could be entered into and the Claimant has no cause for action.
If the Claimant is alleging that the vehicle was parked in a Permit Only car park and that the Defendant was the Driver at the time, I submit that the landowner’s parking fee had been paid by the Defendant and vehicle was parked on the land with the landowner’s permission therefore the Claimant has no cause for action.

12. The Defendant believes the Claimant may seek to rely on the recent Supreme Court ruling in the case of ParkingEye -v- Beavis. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon 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 was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. None of this applies in this material case.

13. In addition to the original ‘parking charge’, believed to be £60 per Claim, £180 total, for which liability is denied, the Claimant’s legal representatives, Gladstone Solicitors, have artificially inflated the value of the Claim to £541.07 and adding various ‘Solicitor’s Costs’ of £70. I submit the added costs have not actually been incurred by the Claimant; these are figures plucked out of thin air and applied regardless of facts as part of their roboclaim litigation model in an attempt to circumvent the Small Claims costs rules using double recovery. The Court is invited to report Gladstones Solicitors to the Solicitors’ Regulation Authority for this deliberate attempt to mislead the Court, in contravention of their Code of Conduct.

14. The Court is invited to dismiss the Claim, and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14.


I believe the facts stated in this Defence Statement are true.





………………………………………………………. ………………………
(Defendant) (Date)
«134

Replies

  • Coupon-madCoupon-mad
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    Dated 28th March, I acknowledged and 33 days is 30th April so the defence is going off tomorrow morning.

    Court email is this:

    [email protected]

    Copy yourself in to ensure its sent OK. Ring the court on Tuesday to confirm receipt.

    It's a good defence IMHO. Two comments to change, remember this is Gemini, a BPA member:
    AntrimMark wrote: »
    the Code of Practice of the [STRIKE]Independent Parking Committee’s[/STRIKE] British Parking Association's Accredited Operators Scheme

    In the absence of any signage that contractually bound the [STRIKE]Defendant[/STRIKE] driver, then there can have been no contract and the Claimant has no case.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
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  • LamiladLamilad Forumite
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    10. The signs on site at the date of the alleged events were insufficient in terms of their numbers, distribution, position, wording and lighting to reasonably convey a contractual obligation and did not in any event at the time comply with the requirements of the Code of Practice of the Independent Parking Committee’s Accredited Operators Scheme a signatory to which the Claimant was at the relevant time.
    The Claimant’s signs at the site:

    Further to CMs comment above you'll need to amend this point as well to reflect the BPA CoP and list the relevant points from that on why the signage fails
  • If I'm submitting it by email will a typed signature suffice for the Defendant's signature or do I need to sign a hard copy and scan it?
  • Coupon-madCoupon-mad
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    AntrimMark wrote: »
    If I'm submitting it by email will a typed signature suffice for the Defendant's signature or do I need to sign a hard copy and scan it?

    I would scan a hard copy signed & dated if it were me.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
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  • edited 30 April 2017 at 4:31PM
    AntrimMarkAntrimMark Forumite
    43 Posts
    edited 30 April 2017 at 4:31PM
    Defense signed, scanned, emailed and receipt received from the court.
    Is there any point serving Gladstones with a Part 18 at this stage to try to get more information out of them, or indeed replying to the LBC which the OH had binned?

    And can one of the mods alter the thread title please, so the date doesn't put people off reading. Thanks.
  • RedxRedx Forumite
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    a part 18 is sent to obtain more info only, so yes if you need more info and to show they havent engaged with you when they fail to reply

    dont let this stop you sending in your defence though

    no point in dealing with the LBC after an MCOL is issued

    there are no MODS on this site, never have been !!

    pm crabman and ask him to alter your thread title, giving him your new thread title to paste in - he will sort it out for you (he is a board guide - look at the bottom of the forum to see the board guides)
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
  • edited 30 April 2017 at 4:32PM
    Coupon-madCoupon-mad
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    edited 30 April 2017 at 4:32PM
    The Defendant could send some brief question to Gladstones, such as these which should prove useful for later:

    To understand the alleged evidence and legal basis upon which your client is pursuing me in this case, please provide within 14 days:

    1. Copies of all photos taken of the car and the signs on the material day (not archive pictures or others taken since) and any evidence of the driver held by your client.

    2. Confirmation of whether your client is relying on Schedule 4 of the POFA 2012?

    3. A list of all date(s) upon which Gemini or their agent applied for, and received, my data from the DVLA, at any time in the past, and which applications under the KADOE relate to which charge notices.

    4. A copy of any check(s) made against the staff 'white list' (exempt/permitted vehicles list) and any request for authority to sue in the name of this Claimant (rather than the NHS Trust/Hospital who are the landowner - the only party with rights to sue for trespass) before pursuing the keeper of this vehicle in court.

    5. Confirmation of whether this charge is pursued under tort of trespass or are Gemini alleging a contract was formed?

    6. A copy of the information issued with permits and confirmation as to whether these were supplied by the Hospital, or your client?
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
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  • Gladstones didn't reply to my part 18 request.
    The claim has been allocated to the Small Claims Track and the instructions say I need to file a witness statement at Court and on the opponent (which I'm working on now) to be submitted next week. I've seen other WS's where the defendant tears into the claimant's WS, (Lamilad thread on PePiPoo referred to in the newbie section), however I've not seen the claimant's WS yet.
    So for now all I've got to argue against are
    1) the non compliant PoC
    2) inadequate/non existent signage
    3) no offer made by the landowner as the keeper is staff and landowner states "staff are not permitted to park in visitor car park"
    4) vehicles parked in staff parking areas can only access through access control barrier, no check made by the claimant .
    5) parking had been paid for by the keeper way of staff permit

    Is it usual to have the claimant's WS first?
    How do I argue non compliance with PoFA when I've not seen any of the three PCN's or the NTK's and am unsure whether or not they were issued? At this point it's not even clear where the vehicle was parked on each occasion.
    Do I need to wait for the claimant's WS then do that in my skeleton argument?
    Any advice appreciated.
  • Coupon-madCoupon-mad
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    Your WS should not be a legal argument. The WS is the facts of the case, and not a re-statement of your defence which bears no repetition (no need).

    Points 2 - 4 should be included in your WS but written as just that, you saying what the truth of the matter is, and you can throw in about any intimidating demands received and when, and if you appealed and they ignored it, etc.

    Show us first.

    You can always tear apart their WS at the hearing, and you should, especially as the person who wrote it won't turn up and has no personal knowledge!
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
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  • Thanks CM. Here's my first draft.

    ___________________________________________________________________________

    WITNESS STATEMENT
    ___________________________________________________________________________


    1. I am XXX of XXX and am the defendant in this case.

    2. The facts in this case come from my personal knowledge. Where they are not within my knowledge they are true to the best of my information and belief.

    3. I am not liable to the Claimant for the sum claimed, or any amount at all and this is my Witness Statement in support of my Defence Statement as already filed

    4. I am the registered keeper of the vehicle in question, no. XXX. I was not the driver.

    5. I have not received a Parking Control Notice either on the windscreen or in the post, nor a Notice to Keeper and the Claimant is put to strict proof of any letters they contend were served and the address used.

    6. I have received a claim form dated XXX with Particulars of Claim which are sufficiently vague so as not to comply with Practice Direction 16 and Civil Procedure Rules 16.4, attached.

    7. On XXX I asked the Claimant’s solicitor by email and in writing to provide details necessary to understand their claim. I attach a copy of the request along with proof of posting/sending. The Claimant’s solicitor did not respond.

    8. I understand that similar Gladstones roboclaims with insufficient Particulars of Claim have been struck out and submit as evidence a ruling by District Judge Cross of St Albans County Court on 16th September 2016.

    9. I understand that in order to pursue me as keeper of the vehicle the Claimant must fully comply with the Provision of Freedoms ACT (2012), a copy of which is attached.

    10. I understand there can be no reasonable presumption in law that the registered keeper of a vehicle is/was the driver and attach an extract from the POPLA Annual Report 2015 section “Understanding Keeper Liability” written by Henry Greenslade QC (barrister, parking law expert & POPLA Lead Adjudicator 2015)

    11. The land at XXX includes a number of parking areas. The parking areas are segregated into areas for Visitor and Patient parking and Staff parking. I submit a plan showing the various parking areas.

    12. At the time of the alleged breaches I was an employee of XXX NHS Foundation Trust (the Landowner). I submit as evidence wage slips for the relevant period showing payment for parking along with a copy of the parking permit issued for vehicle registration number XXX showing that I, the Defendant had a contract with the Landowner and had paid for parking at the time.

    13. Access to Staff parking areas is for “Permit Holders Only” and controlled by a barrier system operated by a fob control which is issued to permit holders. I submit as evidence photographs showing the Claimant’s forbidding signage at the entrance to the Staff parking area.

    14. I submit as evidence judgements by Deputy District Judge Ellington in the case of UK Parking Control Ltd v Sean Masterson and by Deputy District Judge Glen in the case of Parking Control Management (UK) v Christopher Bull where the judge finds that similar forbidding signage is not an open offer to contract. Staff parking in these areas have a contract with the Landowner, not the Claimant.

    15. I have asked the Claimant’s solicitor to provide evidence of checks made against the staff “exempt/permitted vehicles list”. The Claimant’s solicitor did not reply.

    16. Parking by staff in Patient and Visitor parking areas is prohibited in the parking conditions issued along with the parking permit and on the Landowner’s car parking policy which states “Staff” and “Staff Permit Holders are not permitted to park in Patient and Visitor Car Parks”. I submit as evidence the XXX NHS Foundation Trust Car Parking Policy Version X XXX. The Landowner makes no offer to Staff parking in these areas and no contract can be entered into.

    17. The signs on the site are either hidden behind obstructions, at high level, not present on entrances and exits to car parks, and/or too small to be read by motorists. On one car park there is no signage at all. I submit as evidence various photographs of signage where it exists, a plan showing the positions of signage, along with a video of the route from the site entrance to the parking spaces. In addition I submit a copy of the Beavis case sign along with a copy of the British Parking Association Code of Practice relating to signage, and the wording of Lord Denning MR’s “Red Hand Rule”.

    18. I submit as evidence the findings of Lord Justice Roch in the case of Vine v Waltham Forest London Borough Council 5th April 2000.

    I believe the facts stated in this Witness Statement are true.
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