We’d like to remind Forumites to please avoid political debate on the Forum.
This is to keep it a safe and useful space for MoneySaving discussions. Threads that are – or become – political in nature may be removed in line with the Forum’s rules. Thank you for your understanding.
IMPORTANT: Please make sure your posts do not contain any personally identifiable information (both your own and that of others). When uploading images, please take care that you have redacted all personal information including number plates, reference numbers and QR codes (which may reveal vehicle information when scanned).
📨 Have you signed up to the Forum's new Email Digest yet? Get a selection of trending threads sent straight to your inbox daily, weekly or monthly!
Gladstones Defence
LaurenHeath123
Posts: 113 Forumite
I have had a few pointers in terms of defence but wanted to create a new thread for the Court stuff as my current thread is called 'Parking Charge Notice' so it isn't clear that I'm further down the line now.
My defence:
1) It is admitted that the defendant, Miss xxxxxx residing at xxxxxxxx is the registered keeper of the vehicle.
2) It is denied that any indemnity costs are owed, and any debt is denied in its entirety.
3) The identity of the driver of the vehicle on the date in question has not been ascertained, and no evidence has yet been supplied by the claimant as to who parked the vehicle. Under the Protection of Freedoms Act 2012 there is no presumption in law as to who parked a vehicle on private land nor does there exist any obligation for a keeper to name a driver. It is reiterated that:
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. I choose to defend this claim as the registered keeper, as is my right.
3) 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 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. The continuous threatening letters received by the debt collectors Zenith Collections, and Debt Recovery Plus Ltd and Gladstone’s Solicitors refer to the address as ‘Orchard Street, Swansea’ however, on looking at the Land Registry map search and Google maps, the area in question provides for little or no parking to which would be under the ownership of Swansea City Council in any event. A clearer indication of the alleged ‘car park’ would have allowed the defendant to produce a more accurate and fair defence. Furthermore, the defendant’s request for evidence was to ascertain the location of the said car park due to the claimant’s vague location, and unfortunately, the defendant produced the data of a different vehicle in a different location.
5. 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.’
f) 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.
6) 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'. As stated above, evidence that was produced by the claimant was the data of another registered keeper and therefore, a breach of the Data Protection Act 1998.
7) 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. The defendant requested a fully compliant Letter Before Claim from the claimant in order to asses the facts and produce a more detailed response to their correspondence.
8) 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.
9) 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.
10) 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.
11) 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.
12) 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.
13) 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)'.
14) Notwithstanding that the Claimant claims no right to pursue the Defendant as the registered keeper under The Protection of Freedoms Act 2012, the Claimant has failed to meet the conditions of the Act and has never acquired any right to pursue the Defendant in this capacity if it cannot identify the driver. This distinguishes the case from Elliott vs Loake(1982) in which there was irrefutable evidence of the drivers identity. The Protection of Freedom Act 2012 Schedule 4 has not being complied with and the claimant may not quote reasonable assumption. PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, "There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and operators should never suggest anything of the sort"(2015).
15) 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. There are no real costs and POFA prevents claims exceeding the sum on the original parking notice.
16) It is denied that there was any 'relevant obligation' or 'relevant contract' relating to any single parking event.
17) In the pre court stage the Claimant’s solicitor withheld necessary information when requested. The defendant requested a number of documents and also, requested photographic evidence. Some seven months following the defendant’s requests, the claimant’s solicitors provided a vague letter containing ‘evidence’ of another vehicle, which was not and has never been in the defendant’s ownership. Moreover, the evidence of the car park was clearly not in the area as suggested on correspondence from Gladstone’s Solicitors and I would therefore conclude that Gladstone’s Solicitors have breached the Data Protection Act 1998 and would question their professionalism.
18. 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; proof of this can be seen from the significant time lapse between receipt of my letters and their thinly produced responses, and their urgency to submit an application to the court without providing relevant information in the first instance. As such, I am keeping a note of my wasted time/costs in dealing with this matter.
19. The Claimant has not complied with the pre-court protocol.
1. No Letter of Claim was sent to the Defendant and no initial information was sent to the Defendant, the defendant requested this information however, it was not disclosed by the claimant.
2. 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.
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.
In terms of the PoC they have stated that:
"the driver of the vehicle registration xxxxx incurred the parking charge on 18/12/2015 for breaching the terms of parking on the land at Orchard House Swansea SA1. **the car park is around the back of orchard house and as far as I can see, its called trinity place but its not a car park, its just parking behind the shops for the shop owners***
Defendant was driving the vehicle and/or is the keeper of the vehicle. ** no evidence of this has been provided?**
And the claimant claims £150 for parking charges/damages and indemnity costs if applicable, together with interest of £15.33 pursuant to S69 of the CCA 1984 at 8% pa, continuing to judgement at £0.03 per day." ***
Also, should I mention the fact that 'debt recovery plus' stated the reason for issue was 'no permit displayed' yet in a recent letter from Gladstones they stated 'It is not disputed that you displayed a permit; however, as is required by the sign, the permit on display wasn't 'valid' as it was obscured and not fully displaying meaning our Client's warden was unable to ascertain the validity of the permit.' They then attached pictures of a completely different car, in a different car park with the signs from that car park. Since 2015, I'm pretty sure they have changed the signs which is a bummer because I didn't think to take pictures. I didn't get the notification of the parking fine for a few months.
I've just looked through my pictures and found one from 2016 (which I think is when the newer signs were brought out and it stated a charge of £100 for persons without a permit. Luckily I still have my old permit, and if it goes to court I'll take a new one. My in laws pay thousands of pounds to park there and they still give them parking fines, its crazy.
Any comments and/or advice would be greatly appreciated as my defence now needs to be emailed by tomorrow.
My defence:
1) It is admitted that the defendant, Miss xxxxxx residing at xxxxxxxx is the registered keeper of the vehicle.
2) It is denied that any indemnity costs are owed, and any debt is denied in its entirety.
3) The identity of the driver of the vehicle on the date in question has not been ascertained, and no evidence has yet been supplied by the claimant as to who parked the vehicle. Under the Protection of Freedoms Act 2012 there is no presumption in law as to who parked a vehicle on private land nor does there exist any obligation for a keeper to name a driver. It is reiterated that:
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. I choose to defend this claim as the registered keeper, as is my right.
3) 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 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. The continuous threatening letters received by the debt collectors Zenith Collections, and Debt Recovery Plus Ltd and Gladstone’s Solicitors refer to the address as ‘Orchard Street, Swansea’ however, on looking at the Land Registry map search and Google maps, the area in question provides for little or no parking to which would be under the ownership of Swansea City Council in any event. A clearer indication of the alleged ‘car park’ would have allowed the defendant to produce a more accurate and fair defence. Furthermore, the defendant’s request for evidence was to ascertain the location of the said car park due to the claimant’s vague location, and unfortunately, the defendant produced the data of a different vehicle in a different location.
5. 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.’
f) 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.
6) 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'. As stated above, evidence that was produced by the claimant was the data of another registered keeper and therefore, a breach of the Data Protection Act 1998.
7) 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. The defendant requested a fully compliant Letter Before Claim from the claimant in order to asses the facts and produce a more detailed response to their correspondence.
8) 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.
9) 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.
10) 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.
11) 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.
12) 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.
13) 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)'.
14) Notwithstanding that the Claimant claims no right to pursue the Defendant as the registered keeper under The Protection of Freedoms Act 2012, the Claimant has failed to meet the conditions of the Act and has never acquired any right to pursue the Defendant in this capacity if it cannot identify the driver. This distinguishes the case from Elliott vs Loake(1982) in which there was irrefutable evidence of the drivers identity. The Protection of Freedom Act 2012 Schedule 4 has not being complied with and the claimant may not quote reasonable assumption. PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, "There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and operators should never suggest anything of the sort"(2015).
15) 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. There are no real costs and POFA prevents claims exceeding the sum on the original parking notice.
16) It is denied that there was any 'relevant obligation' or 'relevant contract' relating to any single parking event.
17) In the pre court stage the Claimant’s solicitor withheld necessary information when requested. The defendant requested a number of documents and also, requested photographic evidence. Some seven months following the defendant’s requests, the claimant’s solicitors provided a vague letter containing ‘evidence’ of another vehicle, which was not and has never been in the defendant’s ownership. Moreover, the evidence of the car park was clearly not in the area as suggested on correspondence from Gladstone’s Solicitors and I would therefore conclude that Gladstone’s Solicitors have breached the Data Protection Act 1998 and would question their professionalism.
18. 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; proof of this can be seen from the significant time lapse between receipt of my letters and their thinly produced responses, and their urgency to submit an application to the court without providing relevant information in the first instance. As such, I am keeping a note of my wasted time/costs in dealing with this matter.
19. The Claimant has not complied with the pre-court protocol.
1. No Letter of Claim was sent to the Defendant and no initial information was sent to the Defendant, the defendant requested this information however, it was not disclosed by the claimant.
2. 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.
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.
In terms of the PoC they have stated that:
"the driver of the vehicle registration xxxxx incurred the parking charge on 18/12/2015 for breaching the terms of parking on the land at Orchard House Swansea SA1. **the car park is around the back of orchard house and as far as I can see, its called trinity place but its not a car park, its just parking behind the shops for the shop owners***
Defendant was driving the vehicle and/or is the keeper of the vehicle. ** no evidence of this has been provided?**
And the claimant claims £150 for parking charges/damages and indemnity costs if applicable, together with interest of £15.33 pursuant to S69 of the CCA 1984 at 8% pa, continuing to judgement at £0.03 per day." ***
Also, should I mention the fact that 'debt recovery plus' stated the reason for issue was 'no permit displayed' yet in a recent letter from Gladstones they stated 'It is not disputed that you displayed a permit; however, as is required by the sign, the permit on display wasn't 'valid' as it was obscured and not fully displaying meaning our Client's warden was unable to ascertain the validity of the permit.' They then attached pictures of a completely different car, in a different car park with the signs from that car park. Since 2015, I'm pretty sure they have changed the signs which is a bummer because I didn't think to take pictures. I didn't get the notification of the parking fine for a few months.
I've just looked through my pictures and found one from 2016 (which I think is when the newer signs were brought out and it stated a charge of £100 for persons without a permit. Luckily I still have my old permit, and if it goes to court I'll take a new one. My in laws pay thousands of pounds to park there and they still give them parking fines, its crazy.
Any comments and/or advice would be greatly appreciated as my defence now needs to be emailed by tomorrow.
0
Comments
-
Deficient? Inefficient? Insufficient? But surely not 'efficient'?f) 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.
Add in the E v L was a criminal case and has been dismissed previously by judges in cases brought by Gladstones.This distinguishes the case from Elliott vs Loake(1982) in which there was irrefutable evidence of the drivers identity.
http://parking-prankster.blogspot.co.uk/2017/01/skipton-judge-rubbishes-elliot-v-loake.html
http://parking-prankster.blogspot.co.uk/2016/12/excel-lose-at-sheffield-elliot-v-loake.html
http://parking-prankster.blogspot.co.uk/2016/12/excel-lose-at-sheffield-elliot-v-loake.html
That's it - for now (Mrs U shouting 'breakfast'!). Will look again later if I get a chance.Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.Private Parking Firms - Killing the High Street0 -
I would, shows just how lacking in due diligence G's have been in putting this together.Also, should I mention the fact that 'debt recovery plus' stated the reason for issue was 'no permit displayed' yet in a recent letter from Gladstones they stated 'It is not disputed that you displayed a permit; however, as is required by the sign, the permit on display wasn't 'valid' as it was obscured and not fully displaying meaning our Client's warden was unable to ascertain the validity of the permit.' They then attached pictures of a completely different car, in a different car park with the signs from that car park.
So they think that you should pay them £100 just because their warden couldn't quite read everything, despite recognising it as a legitimate permit? I rather hope a judge will disagree!the permit on display wasn't 'valid' as it was obscured and not fully displaying meaning our Client's warden was unable to ascertain the validity of the permit
It's crazy - and they are. Why on earth are they paying parking 'fines'. Tell them they are not 'fines'. And now given your experience, you can help them fight these in future.My in laws pay thousands of pounds to park there and they still give them parking fines, its crazy.Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.Private Parking Firms - Killing the High Street0 -
As Umk says, If Gladstones are quoting EvL , they have already been told they are wrong by the courts which proves yet again how incompetent Gladstones are
"Also, should I mention the fact that 'debt recovery plus' stated the reason for issue was 'no permit displayed' yet in a recent letter from Gladstones they stated 'It is not disputed that you displayed a permit; however, as is required by the sign, the permit on display wasn't 'valid' as it was obscured and not fully displaying meaning our Client's warden was unable to ascertain the validity of the permit.' They then attached pictures of a completely different car, in a different car park with the signs from that car park"
Again this is complete incompetence by DRP and Gladstones whereby they have no clue what the right hand is doing compared to the left.
Complete incompetence is normal for Gladstones nowadays and the courts already know this but it's worth bringing this to the attention of the judge again
You mention the SRA ? This is an ongoing saga with the SRA about dodgy solicitors and so far the SRA has shown itself to be blinkered and masters of brushing problems under the carpet.
The SRA ignore their very own Principles so how can we expect SRA members to act in a professional manner when their auhority is failing in the core and principles within
The one sure fact is that Gladstones are NOT professionals.
This forum is attacked by the parking industry and the leeches who attach themselves to it, as "armchair lawyers" but the raw truth is that we are dealing with back street lawyers0 -
I am making a couple more adjustments from your suggestions - thanks everyone!
I was wondering whether anyone knew how I can find out what car park the evidence was taken in? Site number 00094. Not sure if it is irrelevant but was going to mention that the car was parked in xxxx car park despite their reference to my car being parked in Orchard House. It was more for completeness as I have written about the fact the evidence shows a car that is not mine as confirmed by DVLA. I have stated that the DVLA confirmed verbally that it was not my car but I'm awaiting written confirmation.0 -
Sometimes one has to feel slightly sorry for Gladstones. just to read that, mine would probably bill me £100.You never know how far you can go until you go too far.0
-
Updated defence: Do you think its good to go?
1) It is admitted that the defendant, Miss xxxxx residing at xxxxxxxx is the registered keeper of the vehicle.
2) It is denied that any indemnity costs are owed, and any debt is denied in its entirety.
3) The identity of the driver of the vehicle on the date in question has not been ascertained, and no evidence has yet been supplied by the claimant as to who parked the vehicle. Under the Protection of Freedoms Act 2012 there is no presumption in law as to who parked a vehicle on private land nor does there exist any obligation for a keeper to name a driver. It is reiterated that:
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. It is the defendants right to choose to defend this claim as the registered keeper.
3) 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 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. The continuous threatening letters received by the debt collectors Zenith Collections, and Debt Recovery Plus Ltd and Gladstone’s Solicitors refer to the address as ‘Orchard Street, Swansea’ however, on looking at the Land Registry map search and Google maps, the area in question provides for little or no parking to which would be under the ownership of Swansea City Council in any event. A clearer indication of the alleged ‘car park’ would have allowed the defendant to produce a more accurate and fair defence. Furthermore, the defendant’s request for evidence was to ascertain the location of the said car park due to the claimant’s vague location, and unfortunately, the defendant produced the data of a different vehicle in a different location.
5. 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.’
f) On the 27thJuly 2016 DJ Anson sitting at Preston County Court ruled that the very similar parking charge particulars of claim were inefficient 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.
6) 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 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'. As stated above, evidence that was produced by the claimant was the data of another registered keeper and therefore, a breach of the Data Protection Act 1998.
7) 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. The defendant requested a fully compliant Letter Before Claim from the claimant in order to assess the facts and produce a more detailed response to their correspondence.
8) 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 and not 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.
9) 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.
10) 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.
11) 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.
12) 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.
13) 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)'.
14) Notwithstanding that the Claimant claims no right to pursue the Defendant as the registered keeper under The Protection of Freedoms Act 2012, the Claimant has failed to meet the conditions of the Act and has never acquired any right to pursue the Defendant in this capacity if it cannot identify the driver. This distinguishes the case from Elliott vs Loake (1982) in which there was irrefutable evidence of the drivers identity and moreover, this case was a criminal case and has since been dismissed previously by Judges in cases brought by Gladstones Solicitors. The Protection of Freedom Act 2012 Schedule 4 has not being complied with and the claimant may not quote reasonable assumption. PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, "There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and operators should never suggest anything of the sort"(2015).
15) 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. There are no real costs and POFA prevents claims exceeding the sum on the original parking notice.
16) It is denied that there was any 'relevant obligation' or 'relevant contract' relating to any single parking event.
17) In the pre court stage the Claimant’s solicitor withheld necessary information when requested. The defendant requested a number of documents and also, requested photographic evidence. Some seven months following the defendant’s requests, the claimant’s solicitors provided a vague letter dated 7th April 2017 with contradictory statements such as the contradiction between Recovery Plus Ltd whom stated that the reason for issue was ‘no permit displayed’ yet the letter from Gladstones Solicitors states “It is not disputed that you displayed a permit; however, as is required by the sign, the permit on display wasn't 'valid' as it was obscured and not fully displaying meaning our Client's warden was unable to ascertain the validity of the permit.” Furthermore, Gladstones Solicitor’s letter provided attached photos in response to the defendant’s requests for evidence. The photos attached were of another vehicle, which was not and has never been in the defendant’s ownership, as confirmed by the DVLA verbally. Written confirmation from the DVLA is awaited. Moreover, the evidence of the car park was clearly not in the area as suggested on correspondence from Gladstone’s Solicitors and I would therefore conclude that the claimant’s Solicitors have breached the Data Protection Act 1998 and would question their professionalism and due diligence.
18) 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; proof of this can be seen from the significant time lapse between receipt of the defendant’s letters and the claimant’s thinly produced responses, and their urgency to submit an application to the court without providing relevant information in the first instance. As such, the defendant reserves the right to keep a note of wasted time/costs in dealing with this matter. Furthermore, the defendant does not believe that costs should be incurred on the basis that a legitimate permit was recognised by the warden albeit that the warden was allegedly unable to read some of the information displayed on the permit.
19. 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.0 -
From a further skim, you seemed to have ditched Elliot v Loake completely. In my view it should be left in (including it being dismissed by judges in similar private parking cases) so that they know that you know what it's all about.
It may head them off building it into their claim, saving you having to defend it; not that it's a problem, but you can't forecast how a judge would receive it - head it off soonest.Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.Private Parking Firms - Killing the High Street0 -
Umkomaas - Its in point 14 with the addition of the judge dismissing the case based on cases brought by gladstones.
Do you think I should rephrase to make it clearer?0 -
=LaurenHeath123;72618332]Umkomaas - Its in point 14 with the addition of the judge dismissing the case based on cases brought by gladstones.
Do you think I should rephrase to make it clearer?
No, I think I need to make an appointment at SpecSavers. :rotfl:Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.Private Parking Firms - Killing the High Street0 -
I couldn't find it either at first!! haha0
This discussion has been closed.
Confirm your email address to Create Threads and Reply
Categories
- All Categories
- 352.2K Banking & Borrowing
- 253.6K Reduce Debt & Boost Income
- 454.3K Spending & Discounts
- 245.2K Work, Benefits & Business
- 600.9K Mortgages, Homes & Bills
- 177.5K Life & Family
- 259K Travel & Transport
- 1.5M Hobbies & Leisure
- 16K Discuss & Feedback
- 37.7K Read-Only Boards