Another Gladstone court case

stetheo

Hello all,

First off just wanted to say thanks in advance to everyone who offers help on this forum it has helped me greatly in forming my defence up to this point.

I am now at the point where I have filed my defence, had my case referred to my local court and need to submit my WS/evidence.

I have spent hours reading and trawling through all the on-going and completed cases this year.

Yet again I have had the wonderful experience of dealing with Gladstone...

I have tried to include a link to all of my docs but I am not allowed as a new user - not really sure what to do as if I include my defence/WS/letters this post will be very long so I may try adding in a second post on the thread.

Background:
Earlier this year I received a letter from ES Parking Enforcement for 'Exceeding maximum allocated or pre-paid time'.

I thought that's interesting as I have always purchased parking tickets, so chose to ignore it.

Anyway I went about my life and time went on. After only receiving this one letter I really didn't think anything of it, however one day I came home and to a LBC from Gladstone Solicitors, which gave me very little detail and was rather vague. At this point I thought OK, action is required. Jumped online and basically read through the entire NEWBIES thread and various other cases. I rummaged through the car and actually found the parking ticket from the date they had specified I had broken contract so took pictures of said ticket.

I responded back to them acknowledging allowing me to have a further 14 days to construct a with a full response requesting further information around their claim. I heard nothing.

Less than a week later I received a CC Claim form, so I went online acknowledged and got the additional 14 days to write my defence. I used this forum quite heavily to help form a response but at this point was confident so didn't want to start a new thread.

I had the ticket for the date and included the picture of this in my defence. I thought this would be fairly straight forward.

I have then heard back and refused mediation and got the case transferred to my local court, knowing full well all along this would more than likely be the outcome.

The here and now

I will be honest I had actually forgotten about it as I have been away for most of September.

However I am back and have pulled together my WS and looking for it to be critiqued, again which can be accessed in the link above.

Now, the reason for posting is I am currently going through a move and have cleared out EVERYTHING, so you guessed it. Accidentally in my haste I have binned the parking ticket from that day, so all I actually have is a picture of it.

I haven't currently included it in my WS as I can no longer refer to it as evidence, which in turn has made me a little nervous for court as that was the back bone of my argument. Putting aside the lack of ability to follow procedure by Gladstones.

So whilst I would really appreciate any feedback on my WS, I would also like advice on where I stand with the use of a picture - I imagine I don't, hence the exclusion?

I have read some people have used skeleton arguments and others haven't, would this be something I should compile as part of the pack I will send/take to the court?

The only issue I haven't even considered yet is the claimant representation on the day, should that be done now or can that be included in the preliminary matters handed over on the day?

Again, thanks in advance - I hope I have read enough and constructed thorough enough defences. Worst case I'll have to pay but at least I've tired to fight them!

Cheers
Stephen

stetheo

I can't post links still so here is my WS:

WITNESS STATEMENT

I, XXXX of XXXXX, am the Defendant in this matter, I am unrepresented, with no experience of Court procedures. If I do not set out documents in the way that the Claimant may do, I trust the Court will excuse my inexperience.

In this Witness statement, the facts and matters stated are true and within my own knowledge, except where indicated otherwise.

1. Whilst I was the Registered Keeper of the vehicle concerned, there is no evidence of the driver and as this is a shared vehicle it is impossible to recall who might have been driving.

2. The Defendant denies being the driver at the time of the supposed event, and therefore puts ES Parking to strict proof that any contract can exist between the Claimant and themselves.

3. At the time of the alleged incident, the insurance covered more than one family member, who I have no obligation to name to a private parking firm. It remains the burden of the Claimant to prove their case. (Exhibit A – insurance doc proving multiple people)
4. I rely upon the words of barrister and parking expert Lead Adjudicator for PATAS and
POPLA, Henry Michael Greenslade, where he clarified in the POPLA Annual Report
2015 in a heading: 'Understanding Keeper Liability' (of which I have included a copy in
my document bundle) that a private parking operator must never presume that a
keeper is the driver. (Exhibit B - popla 2015 report)

5. The Claimant has not complied with the pre-court protocol. There have been no Particulars of Claim or initial information sent to the defendant.

6. I'd refer the court to Para 4 on non-compliance and sanction, and I'd also point out
that there can be no reasonable excuse for the Claimant's failure to follow the Pre-
action Conduct process, especially bearing in mind that the Claim in being handled by Gladstones who are a firm of solicitors.

7. As Gladstones are a firm of solicitors whose Directors also run the IPC Trade
Body and deal with private parking issues every single day of the week there can
be no excuse for these omissions.

8. The defendant wrote to the claimant on 05/05/2017 (exhibit B – letter asking for details).

The claimant did not respond.

9. Withholding any relevant photos of the car, particularly the full view of the
windscreen and the signage terms, despite being asked for by the defendant at the
outset, is against the SRA code as well as contrary to the ‘overriding objective’ in the
pre action protocol.

10. I also point out to the presiding judge that the claimant has not supplied any
evidence at all that the alleged contravention ever occurred. Despite a request for more
detailed evidence. There is no evidence to prove that the defendant had exceeded the maximum allocated or pre-paid time.

11. The signage was inadequate to form a contract with the motorist (Exhibit C – photograph of signage).

12. The warning signs above the ticket machine are so high up that only a person of above average height would be able to read and they also face away from the ticket machine so cannot clearly be seen. (Exhibit D – photograph of machine and signage)

13. The signage was inadequate to form a contract with the motorist because it is barely
legible, making it difficult to read. Part E, Schedule 1 of the Code of Practice of the
Independent Parking Committee (of which ES is a member), clearly states that “Text
should be of such a size and in a font that can be easily read by a motorist having
regard to the likely position of the motorist in relation to the sign.” As can be seen from
the attached photographic evidence (Exhibit E) this is not the case.

14. The driver did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.


15. The Defendant denies that the driver would have agreed to pay the original demand of £100 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.

15. The ticket machine only specifies that a ticket should be displayed in the windscreen.
(Exhibit F) As this machine does not issue adhesive tickets it is usual to secure the
ticket on a visor in full view behind a thin elastic band.

16. The claimant failed to send a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the Claimants contractual authority to operate there as required by the Claimants Trade Association's Code of Practice B1.1 which says

1.1 If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the ‘Creditor’ within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges. There is no prescribed form for such agreement and it need not necessarily be as part of a contract but it must include the express ability for an operator to recover parking charges on the landowner’s behalf or provide sufficient right to occupy the land in question so that charges can be recovered by the operator directly. This applies whether or not you intend to use the keeper liability provisions.


17. Where there is a relevant pre-action protocol, the parties should comply with that
protocol before commencing proceedings. Where there is no relevant pre-action
protocol, the parties should exchange correspondence and information to comply with
the objectives in paragraph 3, bearing in mind that compliance should be
proportionate. The steps will usually include—
(a) the claimant writing to the defendant with concise details of the claim. The letter
should include the basis on which the claim is made, a summary of the facts, what the
claimant wants from the defendant, and if money, how the amount is calculated;
(b) the defendant responding within a reasonable time - 14 days in a straight forward
case and no more than 3 months in a very complex one. The reply should include
confirmation as to whether the claim is accepted and, if it is not accepted, the reasons
why, together with an explanation as to which facts and parts of the claim are disputed
and whether the defendant is making a counterclaim as well as providing details of
any counterclaim; and
(c) the parties disclosing key documents relevant to the issues in dispute.

Step a was not completed by Gladstone solicitors.

18. The claimant has not provided Particulars of Claim to file a full
defence. In particular, the full details of the contract that 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.


The Claimant has therefore disclosed no cause of action.

19. There is no information regarding why the charge arose, what the original charge
was, what the alleged contract was nor anything that could be considered a fair
exchange of information.

20. 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.’

21. On the 27th July 2016 DJ Anson sitting at Preston County Court ruled that the very
similar parking charge particulars of claim were deficient and failed 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.

22. The Claimants are known to be serial issuers of generic claims similar to this one. HM Courts Service have identified over 1000 similar sparse claims. I believe the term for such behaviour is roboclaims and as such is against the public interest.

Practice Direction 3A which references Civil Procedure Rule 3.4 illustrates this point:

7.5 Where a claim is based upon an agreement by conduct, the particulars of claim must specify the conduct relied on and state by whom, when and where the acts constituting the conduct were done.

23. I also dispute that the Claimant has incurred £50 solicitors costs to pursue an alleged
£100 debt, the costs of which are in any case not recoverable

24. The claimant described the charge of £50 as ‘legal fees’ not ‘contractual costs’ CPR
.14 does not permit these to be recoverable in the Small Claims Court

25. The Protection of Freedom Act Para 4(5) states that the maximum sum that may be
recovered from the keeper is the charge stated on the Notice to Keeper.

26. ES Parking Enforcements are not the lawful occupier of the land. I have the
reasonable belief that they do not have the authority to issue charges on this land in
their own name and that they have no rights to bring this case.


27. The Claimant is not the landowner and is merely an agent acting on behalf of the
landowner and has failed to demonstrate their legal standing to form a contract.

28. The Claimant is put to proof that it has sufficient interest in the land or that there are
specific terms in its contract to bring an action on its own behalf. As a third party agent,
the Claimant may not pursue any charge. I have the reasonable belief that they do not
have the authority to issue charges on this land in their own name and that they have
no right to bring action regarding this claim.

29. I would like to point out that as this car park does not offer a free parking period the ParkingEye v Beavis and Wardley case does not apply (ParkingEye v Cargius case)

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



Signed


Dated

System

'Exceeding maximum allocated or pre-paid time'.

Where have you or the driver via you, denied the principle accusation of not paying for enough time.

Its a simple accusation and a simple rebuttal.

There is a great transcript floating about where a judge just hones in on the key issue (as they do) and wonders !!!!!! (in legal jargon) why the defendant doesn't just answer the question "...was there a breach?"

IMHO this technical stuff doesn't cut it in front of most judges.

stetheo

It was in my defence along with a photograph of the parking ticket that covered the stated date and time of the alleged breach.

But as I also mentioned, I've since binned the ticket so that's why it's no longer in my WS as I can't prove I did pay for enough time (other than the existing photograph I have).

System

Put it in your WS then and say that the claimant's own evidence will show this.

Redx

you can still add the photograph as an evidence exhibit , parking companies use photos all the time for various reasons , nothing wrong with a photo of the ticket being referenced in a WS and submitted in evidence

stetheo

Ok thanks! For some reason I thought that I wouldn't be able to use the photograph I have.

Will add that in as one of the opening statements

Cheers

Coupon-mad

I rummaged through the car and actually found the parking ticket...so took pictures of said ticket.

So what is their case? Are they saying you were 5 minutes after expiry, or 25 mins, or what?

stetheo

I'm not actually sure as the only letters I have received were; one demanding £125 and on that it states reason of issue: exceeding maximum allocated or pre-paid time and a letter from Gladstone just demanding money or they are taking me to court.

So I've never actually received anything stating the amount of time that was exceed over the maximum allocated or pre-paid time

Coupon-mad

stetheo wrote: »

I'm not actually sure as the only letters I have received were; one demanding £125 and on that it states reason of issue: exceeding maximum allocated or pre-paid time and a letter from Gladstone just demanding money or they are taking me to court.

So I've never actually received anything to give me further details.

Right, so where in your WS do you say that (I couldn't see it)? Really important you say how little evidence and facts have been shown to you, such that you have no idea what you are meant to be defending.

Spell it out and use your evidence photo of the parking ticket you paid for, honestly you must say what this is about and use your evidence. You could lose half that WS, it's very wordy!

The only issue I haven't even considered yet is the claimant representation on the day, should that be done now or can that be included in the preliminary matters handed over on the day?

You mean Rights of Audience?

Bring the paperwork and Law Gazette Article (referenced by the Parking Prankster in his blog about this) with you, and get there early and hand over to the Court Usher your Preliminary Matters document saying you firstly wish to challenge the RoA of the other side's representative, so could the Preliminary Matters document please be passed to the Judge for the initial point to be raised at the hearing.

I think Lamilad has a link to a RoA 'Prelim' argument; it's not something I keep up my sleeve.

stetheo

Thanks for your speedy response, reading back I haven't directly said it but I thought it was covered in the following points:

5. The Claimant has not complied with the pre-court protocol. There have been no Particulars of Claim or initial information sent to the defendant.

8. The defendant wrote to the claimant on 05/05/2017 (exhibit B – letter asking for details).

The claimant did not respond.

10. I also point out to the presiding judge that the claimant has not supplied any
evidence at all that the alleged contravention ever occurred. Despite a request for more
detailed evidence. There is no evidence to prove that the defendant had exceeded the maximum allocated or pre-paid time.

18. The claimant has not provided Particulars of Claim to file a full
defence. In particular, the full details of the contract that 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.

Reading back through I haven't been as straight forward in saying how little evidence and facts have been shown to me and that you have no idea what I am meant to be defending.