Gladstone LBC

AntrimMark

This is a new thread, not connected to the other 2 I have on the go currently.

---

I received the LBC from Gladstones in the link below.
https://www.dropbox.com/s/25bsmos3wm25mky/LBC%20redacted.pdf?dl=0

I don't have a PCN , an NTK or any debt collectors letters.

I replied as follows:

Dear Sir/Madam.

RE: Your letter ref: xxxxxxxxxx

I have received your Letter Before Claim dated xxxxxxx

I deny any debt to Gemini Parking Solutions London Ltd.

The driver is not identified in your letter and your client has failed to meet the requirements of The Protection of Freedoms Act to pursue me as keeper.

You also cannot presume that I possess all the documents referred to in your letter.
Please send me copies of all the documents sent by the client including the windscreen notice if one was attached to the vehicle.

When these are supplied, please also confirm whether the intended action is founded on a contractual charge, a breach of a contract or trespass
Please confirm that your client's contract with the land-holder includes specific authority to take legal action and that this will be produced for the court.
I also require an explanation for any additional charge over and above the original parking charge including confirmation that it has already been invoiced and paid.

When I receive the documents and your explanations I will be in a position to make a more detailed response
It would be unreasonable to proceed with litigation before you have clarified your client's cause of action.

I look forward to your response

---

They responded as follows. There was nothing else provided, certainly not the evidence they refer to in the last line. Can I please have advice as to how best to respond to their letter.
Most of this is a direct copy of a WS I have seen recently.

---

Thankyou for your correspondence.

The Criminal Case of Elliott v Loake 1983 Crim LR 36 held that the Registered Keeper of a vehicle may be presumed to have been the driver unless they sufficiently rebut this presumption. To date you have been invited on numerous occasions to identify the driver, yet has failed to do so. Our client therefore concludes it more likely than not you were the driver.

Notwithstanding the above, you are also pursued as the Registered Keeper of the vehicle pursuant to Schedule 4 (4)(1) of the Protection of Freedoms Act 2012 ('the Act') which states:

'The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle."

The relevant Notices were sent in accordance with the Act and you failed to nominate who was driving the vehicle prior to these proceedings (which is required under the Act (paragraph 5(2)).

The Protection of Freedoms Act 2012, Sched 4 (para 2) states that; the keeper "means the person by whom the vehicle is kept at the time the vehicle was parked, which in the case of a registered vehicle Is to be presumed, unless the contrary is proved, to be the registered keeper.

You have given no reasonable explanation as to why you wouldn't have received the post. However, without concession, even if the post wasn't received, this would not impact your liability to pay. The correspondence was sent after you became liable.

The photographs clearly show the notice affixed to the Vehicle. Terms of the agreement are evident from the sign.
No photographs, no sign attached

In any event, the contract was formed at the time of parking; wheter there was a notice on the windscreen does not impact your liability to pay.

Our client relies on the case of ParkingEye v Beavis 2015. In that case it was accepted as an established principle that a valid contract can be made by an offer in the form of the terms and conditions set out on the sign, and accepted by the drivers actions as prescribed therein.

The signs on the Land are clear and unambiguous. By parking in the manner in which they did, the charges were properly incurred.

As the contract is between you and our client, our client does have the authority to enforce parking charges. Both VCS v HM Revenue & Customs (2013) and Parking Eye v Beavis {CA 2015) made it clear that a contracting party need not show they have a right to do what they have promised in the performance of a contract, nor is (in the case of a parking operator) the agreement between Operator and Landowner of any relevance. In any event, and without concession, our client did have authority from the landowner to operate on the land.

Please see attached the relevant evidence.
None attached.

In the event payment isn't made in the next 14 days from the date of this letter further legal action will be taken, Payment can be made online at....

---

waamo

Is this connected to any of your other threads?

AntrimMark

No, it's a new one

The_Deep

The Criminal Case of Elliott v Loake 1983 Crim LR 36 held that the Registered Keeper of a vehicle may be presumed to have been the driver unless they sufficiently rebut this presumption. To date you have been invited on numerous occasions to identify the driver, yet has failed to do so. Our client therefore concludes it more likely than not you were the driver.

Not that old chestnut again the Courts have rejected E v L in parking claims several times recently, E v L is a dead parrot. It is time the SRA put a stop to this nonsence.

Read here:

https://www.google.co.uk/search?site=&source=hp&q=Eliot+v+Loake+prenkster&oq=Eliot+v+Loake+prenkster&gs_l=psy-ab.3..33i160k1.1767.30708.0.34572.31.31.0.0.0.0.114.2520.28j3.31.0....0...1.1.64.psy-ab..0.11.1024...0j0i131k1j0i10k1j0i22i10i30k1.w8NIN-4IMHU

the mere mention of E v L should be grounds for awarding 27.14(2)(g) costs imo.

AntrimMark

Thanks, I know that EvL shouldn't hold.
My question really is should I robustly respond to them (in effect giving them my defence if it gets to court) or is a more subtle response required.
I've followed the newbies thread with regard to LBC's and used Gan's initial response from Pepipoo, however that thread becomes specific to it's subject as the thread progresses.
I can write a robust response, if that's the correct thing to do at this stage?

beamerguy

It is so difficult to understand how stupid Gladstones are.

Don't they understand what the courts are saying about
Elliot v Loake ????

IT'S NOT RELEVANT GLADSTONES ---- WAKE UP ???

The Beavis case was about if the charge was unfair ... WAKE UP

I will let others comment on the contents of this letter

The_Deep

It is all grist to the mill, if you ask lots of questions which they ignore you have ammunition to ask the judge to award CPR 27.14(2)(g) costs when you win. Gladstones are a joke and becoming very well known for incompetence in court circles read this

http://parking-prankster.blogspot.co.uk/2017/07/judge-fed-up-with-gladstones-behaviour.htmlE

beamerguy

YES .... in the link above the judge said

"that their business model seemed to to scare people into paying up before the case went to court and claiming additional money that they knew they would not have any right to in a court."

Just on that basis it is time you complained to your MP about
Gladstones assuming you are guilty before you go to court.

Copy in your local Trading Standards to show them the antics
Gladstones get up to in an attempt to extort money from you

AntrimMark

So, here's my draft letter responding to their letter from #1
I've gone for the "you're not complying with Practice Direction and by the way if you claim against me wiht no basis I'll counter claim" approach, as opposed to directly arguing with their (incorrect statements)
If that's the wrong approach, please let me know.
Also, any input on my letter is appreciated.
I'd like to get it in the post by Thursday.

---

Thank you for your letter of xxxxxx, in which you indicated that “the relevant evidence is attached”. Unfortunately, there were no attachments. In order to narrow the issues I now require the documents and other information requested in my letter of xxxxxx. They are necessary to ascertain whether your client has any right to bring the claim at all and an attempt to withhold information on which your client intends to rely is perverse.

Your Letter Before Claim contains insufficient detail of the claim and further refusal to provide the requested information is a clear breach of your client’s pre-action obligations set out in the Practice Direction. You will know that Practice Direction binds all potential litigants, whatever the size or type of the claim and it’s express purpose is to assist parties in understanding the claim and their respective positions in relation to it, to enable parties to take stock of their positions and to negotiate a settlement, or at least narrow the issues, without incurring the costs of court proceedings or using up valuable court time.

Nobody, including your client, is immune from the requirements and obligations of the Practice Direction and your client cannot ignore their obligations under paragraphs 6(a) and 6(c). I put you on notice if the required information is not forthcoming I will be relying on the cases of Webb Resolutions Ltd v Waller Needham & Green [2012] EWHC 3529 (Ch), Daejan Investments Limited v The Park West Club Limited (Part 20) – Buxton Associates [2003] EWHC 2872, Charles Church Developments Ltd v Stent Foundations

Limited & Peter Dann Limited [2007] EWHC 855 in asking the court to impose sanctions on your client and to order a stay of the proceedings, pursuant to paragraphs 13 ,15(b) and (c) and 16. I will draw to the court’s attention the fact that I have expressly requested this information.
Your claim to have enclosed some of the documents I had requested indicates that you found the request proportionate, reasonable and proper. However, whilst claiming to have sent me the documents, in fact you failed to enclose them. Please send them to me by return together with “the Parking Charge Notices and/or Notices to Driver/Keeper” you refer to in your Letter Before Claim.

Until your client has complied with its obligations and provided this information, I am unable to respond properly to the alleged claim and to consider my position in relation to it, and it is entirely premature (and a waste of costs and court time) for your client to issue proceedings. Should your client do so, then I will seek an immediate stay pursuant to paragraph 15(b) of the Practice Direction and an order that this information is provided.

Furthermore, should your client proceed with a claim with no cause of action against me as registered keeper I will file a counter-claim for not less than £500 in compensation for distress caused by your unwarranted demands arising from misuse of the data your client obtained from the DVLA for one purpose, yet are now processing it for another purpose not covered by the KADOE regulations.

I am aware that when a counter-claim was heard in D6GM2199 Civil Enforcement Ltd v Mr B, at Bury County Court in May 2017, DJ Osborne found that the £500 sum claimed by the data subject defendant was not unreasonable. He accepted the argument regarding data misuse under the Data Protection Act 1998 (DPA); he accepted the tort of damages and stated that he was disappointed in the claimant bringing an unfounded case. Punitive costs of £405 were granted for unreasonable behaviour, and were paid by the claimant in addition to the £500 claim.

Further, I would like to draw your attention to a judgment at the Leeds County Court, 3SP00071 - Blamires v LGO. This was a claim for damages including a matter of a breach of the DPA, for which an award of £2,500 was granted as compensation for distress. As is now relatively well known, the DPA’s original drafting appeared to preclude compensation for distress alone, but the Court of Appeal, in Vidal Hall & ors v Google [2015] EWCA Civ 311, it was held that this was contrary to the provisions of the Charter of Fundamental Rights of the European Union and that, accordingly, there was a right under the DPA to claim compensation for “pure” distress.

The award in Blamires was of “Vidal Hall” compensation, with the judge saying there was ''no doubt in my mind that the data breaches have caused distress to the claimant in their own rights as well as as a result of the consequences that flowed.'' The judge awarded a further £2,500 aggravated damages because of the manner in which the Defendant conducted its case, including the fact that, notwithstanding being told by the Claimant that its conduct/data was wrong, it took nearly two years for the Defendant to admit the mistake.

As you will be aware, the general costs rule in Small Claims is that there is no costs order. However, in support of my own counter-claim, I must remind you that under CPR Rule 27.14(2)(g):
''costs can be awarded where a party behaves unreasonably''.
I refer your client to paragraph 16 of the Practice Direction – Pre-Action Conduct:
''a party who has not complied with its pre-action obligations can be ordered to pay costs (even if the party has succeeded in its claim/defence) and there is also a power to remit/increase interest.''

I expect to hear from you within 14 days to confirm that the Letter Before Claim is withdrawn. Should you fail to withdraw the LBC and/or pursue a baseless claim without supplying any evidence of any breach of a relevant contract or relevant obligation, or photographs, or the contract, or your basis for pursuing a registered keeper outwith the POFA 2012, you may consider this adequate notice of my intention to sue (Parking Company, for the significant distress caused by their actions.

All letters exchanged will be used in evidence in court.

Yours faithfully,

AntrimMark

Bump. Any advice before I send this? (Other than typos)

Loadsofchildren123

As much of it is based on a draft by me, I'd say it's fine !


I like to quote those cases - puts them to the trouble of looking them up and adds weight to the argument that the PD should be complied with.


Perhaps at the end of the para starting "Nobody, including your client" you should add: "Your letter of x claimed to have enclosed [some of?] the documents I had requested, which indicates that you found the request proportionate, reasonable and proper. However, whilst claiming to have sent me the documents, in fact you failed to enclose them. Please send them to me by return [together with.... then list the docs you had asked which they didn't say they'd enclosed - eg the NtD and NtK)