SIP Gladstones Court Order

mikrussell

Received this letter from Gladstone today. Should I mediate?

imgur.com/a/Ci3mq

Umkomaas

mikrussell wrote: »

Received this letter from Gladstone today. Should I mediate?

imgur.com/a/Ci3mq

What exactly does the NEWBIES FAQ sticky, post # 2 tell you about how to deal with this letter?

(Clue - it tells you exactly how to deal with it, we just can't keep re-typing the same old stuff day after day!).

That part of the sticky needs to be your Bible to see you through all stages of the court claim against you. Please read it thoroughly so you know what is likely to come next, and how you deal with it.

Coupon-mad

Or just read any other Gladstones Court thread. Everyone gets that letter - search this board for Gladstones N159 and you will find several threads talking about it, and the next stages.

mikrussell

Thanks I have sent the form

mikrussell

Here is my second defence for overstaying a car park by 10 mins were I had paid.
I hope this one is appropriate.

1. I am the Defendant, Mr Michael Russell, .....6, and reside at ........ and it is admitted that I was the driver of the vehicle on the day of 26/03/2017

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

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

4. The Defendant therefore disputes the amount claimed, as it comprises excessive and non-contractual elements, and additional costs must be proved.
The Claimant has claimed a £50 legal representative’s cost on the claim form, despite being well aware that CPR 27.14 does not permit such charges to be recovered in the Small Claims Court.
The Defendant also has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have actually been incurred.

The Defendant also has a good faith belief that due to the sparse particulars the £50 claimed for filing the claim has not been incurred. This appears to be an attempt at double recovery as a way to inflate the value of the claim. The solicitor has been incompetent and is not due £50. In the alternative, the Claimant is put to strict proof to show how this cost has been incurred.

Even if they have been incurred, the Claimant has described them as "legal expenses". These cannot be recovered in the Small Claims Court

a) Additionally, as this is already included as part of the costs of the claimant, factored into the £100 parking charge, this is essentially double charging.
b) The £50 solicitor cost was disputed in the test case of ParkingEye v Beavis and Wardley. HHJ Moloney refused to award the £50.
c) The £50 was also struck out by DJ Sparrow on 19 August 2015 in ParkingEye v Mrs S, claim number B9FC508F.

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

6. The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no diligence, no scrutiny of details nor even checking for a true cause of action. HMCS have identified over 1000 similar sparse claims. I believe the term for such conduct is ‘roboclaims’ which is against the public interest, unfair on unrepresented consumers and parking companies using the small claims track as a form of aggressive, automated debt collection is not something the courts should be seen to support. On the basis of the above, I request the court strike out the claim.

7. The Claimant did not comply with the Part B, section 15.2 of the IPC Code of Practice regarding 'grace periods'. No Penalty Charge Notice was issued and the claimant strongly denies overstaying a period of 10 minutes.

8. The Claimant may try to rely upon ParkingEye Ltd v Beavis [2015] UKSC 67, ('the Beavis case') yet such an assertion is not supported by any similarity in the location, circumstances nor signage. Absent any offer or agreement on a charge, the Beavis case does not assist the claimant and in fact, supports this defence. Further, there is no ‘legitimate interest’ served by immediate ticketing of a car on arrival, with no attempt to mitigate loss or draw terms to the attention of drivers, or allow any period of grace.
The claimant has not provided enough details in the particulars of claim to file a full defence. In particular, the full details of the contract which it is alleged was broken have not been provided.
a) The Claimant has disclosed no cause of action to give rise to any debt.
b) The Claimant has stated that a parking charge was incurred.
c) The Claimant has given no indication of the nature of the alleged charge in the Particulars of Claim.
The Claimant has therefore disclosed no cause of action.
d) The Particulars of Claim contains no details and fails to establish a cause of action which would enable
the Defendant to prepare a specific defence.
It just states “parking charges” which does not give any indication of on what basis the claim is brought.
There is no information regarding why the charge arose, what the original charge was, what the alleged contract was nor anything which could be considered a fair exchange of information.
The Particulars of Claim are incompetent in disclosing no cause of action.

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

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

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

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


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

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

b) This case is not supported by any similarity in the circumstances or signage. Mr Beavis refused to pay a charge of £85 for overstaying a permitted period of free parking in a car park at a retail park. The signs displaying this information were accepted to be large, prominent and legible. The notice stated ‘2 hour max stay… Failure to comply … will result in a Parking Charge of £85.’ Mr Beavis exceeded the time limit by one hour but declined to pay the charge and maintained the term which sought to impose the charge was an unfair term. The Beavis case does not assist the claimant and in fact, supports my defence.
c) In ParkingEye Ltd v Beavis the Supreme Court recast the test to be applied when seeking to distinguish a liquidated damages clause from a penalty clause. To engage a penalty the question was whether the relevant provision was “unconscionable” or “extravagant” (Lord Hodge at [221]). The full test was expounded by Lord Hodge (at [255]).
d) The Supreme Court was only prepared to accept a charge (£85) that was sufficient to act as a disincentive and that was worth collecting. The Supreme Court had previously stated that £135 would be unacceptable (ParkingEye v Somerfield). The charge to the Defendant of £150 is evidently extravagant and unconscionable in that it is disproportionate to the Claimant’s interest, and disproportionate to the highest level of damages that could possibly arise from the Defendant’s alleged breach of contract.

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

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