Gladstones / Ace Security Services - 2 Separate Cases - Please Help!

DerrickDuval123

I'm hoping that someone can give me some advice specific to my current situation with the Cowboys Gladstone Solicitors and Ace Security Services.

Quick overview:

Received tickets from ACE before a few years back and ignored, problem went away as they didn't have access to DVLA records at the time.

Foolishly applied the same principal recently and received two tickets within 2 weeks of each other from parking in a Residential Car Park when visiting a friend.

Ignored the first letter on the first ticket, that has now progressed to a county court claim! Thought about paying but want to make a stand against these sharks! Any help with preparing a defence based on this situation would help me massively!

My initial thoughts from researching these threads is to claim against the poor signage and the excessive charge / lack of contract between driver and ACE / No physical presence or Car Park Management / No loss to ACE as they are not the landowner.

To make me even more certain of the scatter gun approach from GS / ACE - I received a Letter Before Claim for the 2nd ticket despite not receiving a Notice of Penalty or any correspondence through the post. Would they fail on a technicality here and would that be thrown out completely as they haven't followed the correct procedure?

Thank you so much in advance - I am not of legal background so finding this pretty confusing although seem top have my head around most of what I've read.

I appreciate any responses / advice.

P.S I'm yet to respond to the county court claim but have taken advice from he court and Citizens advice Bureau. And have just over a week left to provide Acknowledgment of Service.

Quentin

Get on with the AOS


Then tread up in the newbies faq thread near the top of the page on how to construct your defences


Put them up here for comment before sending them in


(CAB advice is likely to be poor - what did they tell you to do?)


If your forum name is real, then get MSE to change it to something anonymous!

System

And have just over a week left to provide Acknowledgment of Service.

You can do this in two minutes but nothing in the defence box. Gives you 14 more days to prepare a defence and then email it in.

It's in the Stickies.

DerrickDuval123

This is what I have drafted so far. Appreciate any feedback or pointers!


Claim Number: xxxxxxxxxxxx
BETWEEN:
Pace Recovery & Storage / Ace Security Services (Claimant)
vs
Mr xxxxxxxxxxx] (Defendant)

___________________________________________________________________________
Defence Skeleton Argument
I am Mr xxxxxxxxxxx of xxxxxxxxxxxxxxxx, defendant in this matter.

The claim is denied in its entirety except where explicitly admitted here. I assert that I am not liable to the Claimant for the sum claimed, or any amount at all, for the following reasons, any one of which is fatal to the Claimant's case.

i. The Unfair Terms in Consumer Contract Regulations 1999 applies
ii. The signage does not offer a contract with the motorist
iii. The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 applies
iv. The Claimant has no standing to bring a case
v. The charge is not a genuine pre-estimate of loss and is therefore an unenforceable penalty


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 never been provided. As the claimant has not provided this information, signage details have been inferred from stock photographs and the details may not be correct. Minor variants in text may occur. All references to signage therefore, are subject to change once the full particulars of claim have been provided.



i The Unfair Terms in Consumer Contract Regulations 1999 applies
1. It is asserted that the Claimant’s charges are unlawful, as they are in breach of the Unfair Terms in Consumer Contract Regulations 1999, specifically regulation 8(1) of the Regulations and article 6(1) of the Unfair Terms Directive (in providing that an unfair term is not to be binding on the consumer), which is to redress the imbalance between the contracting parties’ bargaining power, and to re-establish equality between them, so that the contract terms which bind the parties are such as the parties would have agreed if they had negotiated the contract on equal terms.

2. The European Court of Justice case of Aziz v Caixa d’Estalvis de Catalunya, Tarragona I Manresa [2013] 3 CMLR 5 provides authority for this, and it is submitted that European Court of Justice decisions must be taken judicial notice of by lower courts in England and Wales. The test for unfairness and imbalance in that case is as follows (para 77);

Article 3(1) of Directive 93/13 must be interpreted as meaning that:

– the concept of ‘significant imbalance’ to the detriment of the consumer must be assessed in the light of an analysis of the rules of national law applicable in the absence of any agreement between the parties, in order to determine whether, and if so to what extent, the contract places the consumer in a less favourable legal situation than that provided for by the national law in force. To that end, an assessment of the legal situation of that consumer having regard to the means at his disposal, under national law, to prevent continued use of unfair terms, should also be carried out;

– in order to assess whether the imbalance arises ‘contrary to the requirement of good faith’, it must be determined whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to the term concerned in individual contract negotiations.

3. It is asserted that no reasonable person, of whatever means, would willingly agree to pay a charge of £100 as a consequence of Parking in, if they had the opportunity to negotiate the contract on equal terms with the other contracting party.

4. It is asserted that any competent solicitor would have negotiated the charge to be equal to a genuine pre-estimate of loss, being the normal legal situation provided for by the national law in force. P

5. The Claimant relies on the Court of Appeal judgment in the case of ParkingEye v Beavis. However, in that case the court applied the wrong test for imbalance (para 34 and also para 37, 38)

The judge […] held that the term did not cause a significant imbalance in the parties' rights and obligations because the charge was no greater than that which a motorist could expect to pay for overstaying in a municipal car park.

6. It is submitted that the European Court of Justice definition of imbalance must take precedence.

7. However, in any case the instant case is not saved from being unfair by Beavis. In this particular location council charges for overstay are £50 discounted to £25, not £100 discounted to £85. As the charge is 100% greater than that which a motorist could expect to pay for overstaying in a municipal car park there is a clear imbalance.

8. Regulation 7 of UTCCR 1999 may also apply depending on the words of the signage.


ii The signage does not offer a contract with the motorist

9. The claim is for breach of contract. However, it is denied any contract existed.

10. The Claimant states, in their Particulars of Claim, that the signage is ‘clearly displayed’ but this is not agreed. Thus, the necessary elements of offer and acceptance to form a contract were not present. Although the Claimant has not provided a signage map in many of their car parks signs are positioned in such a way as to create ‘entrapment zones’ where signage is not clearly visible. The Claimant is put strictly to proof that this is not the case on this site.

11. The elements of offer, acceptance and consideration both ways have therefore not been satisfied and so no contract can exist.

iii The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 applies

12. Any alleged contract would be a distance contract for services as defined in The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.

13. The regulations define three types of contracts; distance contracts, on premises contract and off-premises contracts.

14. The definitions concern themselves with how a contract is concluded (and in particular if face to face contact occurs during this process) and not where the contract is eventually performed. Thus, if a consumer books a hair styling appointment over the web, that is a distance contract even though they go to the salon for the actual styling. If they re-book at the salon, that will be an on-premises contract. If they meet their stylist in Tesco, arrange for an appointment and immediately phone the salon to confirm, that will be an off-premises contract. All these contracts are performed on-premises, but concluded in different ways.

15. The regulations define an on-premises contract as:
“on-premises contract” means a contract between a trader and a consumer which is neither a distance contract nor an off-premises contract;

16. Thus a contract cannot be on-premises if it is a distance contract. The regulations define a distance contract as:
“distance contract” means a contract concluded between a trader and a consumer under an organised distance sales or service-provision scheme without the simultaneous physical presence of the trader and the consumer, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded;

17. This is clearly an organised service-provision scheme (for parking)
The contract is clearly concluded without the simultaneous physical presence of the trader and the consumer.
There is clearly the exclusive use of one means of distance communication (signage) up to and including the time at which the contract is concluded.

18. This is therefore a distance contract.

19. None of the exemptions in regulation (6) apply. No vending machine or automated premises was used to conclude the contract. Any contract would be concluded by parking and walking away.

20. Regulation 13 lists information to be provided before making a distance contract. The contract fails to provide the required information listed in Schedule 2 or a means to have a copy of the contract on a durable medium. Accordingly, 13.1 states the contract is not binding on the consumer.


iv The Claimant has no standing to bring a case

21. The claim form states that the land is ‘managed by Ace Security Services’. They are therefore acting as agents of the landowner.

22. The Claimant’s has not provided copies of the alleged contract in the letter before claim or particulars of claim. However it is believe the signage contains further clauses which show that the Claimant is acting as an agent of the landowner, not the principal, which are identical or similar to the following; ‘Ace Security Services’ is authorised by the landowner to operate this private car park for an on its behalf’ and ‘Parking is at the absolute discretion of the Landowner’.

23. Any consideration to the motorist of a grant of parking space flows from the landowner; the signage is believed to have a clause identical to or similar to, ‘Parking is at the absolute discretion of the Landowner’. There is no consideration from the motorist as parking is free.

24. Although each case turns on its own facts, in all cases where Pace Recovery & Storage Ltd. / Ace Security Services contract with the landowner has been fully disclosed, the charge for breach of contract is collected by Pace Recovery & Storage Ltd. / Ace Security Services on behalf of the landowner. This is usually disclosed in paragraph 3.11. This further confirms Pace Recovery & Storage Ltd. / Ace Security Services act as agent for the landowner.



25. Fairlie v Fenton establishes the situation regarding agency.

a. If the agent is acting on behalf of an undisclosed principal, they can sue and be sued
b. If the agent is acting on behalf of a named principal, they cannot sue
c. If the agent is acting on behalf of a principal whose name is not disclosed, then they can only sue if they assume the risk; in other words, if they can be sued if they fail to uphold their part of the bargain.

26. This case is clearly (c). The signage states Pace Recovery & Storage Ltd. / Ace Security Services are acting on behalf of the landowner, but does not state who the landowner is. The small print in the signage has a clause similar to ‘ParkingEye do not assume the risk if problems occur; in these cases it is the landowner who would be liable. We are not responsible for the car park surface, other motor vehicles, damage or loss to or from motor vehicles or general site safely.’

27. Pace Recovery & Storage Ltd. / Ace Security Services therefore have no standing to bring this case. Only the landowner has the right to do this.

28. In ParkingEye v Beavis, clauses 3.11 and 8 were redacted from the contract given to the judges. Therefore any judgment would not have been able to take these clauses into account.

v The charge is not a genuine pre-estimate of loss and is therefore an unenforceable penalty

29. The claim is for breach of contract. In such cases, it is trite law that any charge is intended to put the recipient back in the position they were had the breach not occurred. If the charge is larger, as in this case, then it is a penalty and the whole charge is unenforceable.

30. As previously explained, the parking charge amount is due to the landowner, not the claimant. The Claimant collects it on the landowner’s behalf. The Claimant has suffered no actual, or genuine pre-estimate of, loss as a result of any alleged overstay. There is no initial loss to the Claimant, and they have no standing to bring any case.

31. In any case, all costs are due to the cost of enforcement, which was established in ParkingEye v Beavis to be an average of around £18 per ticket issued. These can therefore be mitigated by taking no action. The charge of £100 is primarily intended as a deterrent. It is, therefore, an unenforceable penalty.

32. The charge for breach of contract is collected on behalf of the landowner, according to clause 3.11 of the landowner contract. However, all costs for issuing tickets are borne by Pace Recovery & Storage Ltd. / Ace Security Services. The landowner therefore suffers no loss at all. This bizarre business arrangement means that there is no cause of action.

33. The Claimant may rely on the ruling of ParkingEye v Beavis, held in the court of appeal in February 2015. This case has since been heard in the Supreme Court. Consideration should therefore be given to staying this case until the judgment is handed down.

34. Each case must turn on its own fact and the facts of that case are different to this.

35. The Court of Appeal ruled that is a charge was not a genuine pre-estimate of loss it could nevertheless be saved as a penalty if (i) there was social justification, and (ii) the charge was no more than needed to deter, which was established by comparison with council charges at that site.

36. In this case equivalent council fines are £25 rising to £50 after 14 days. In comparison to this the sum demanded is clearly far more than that needed to deter, far more than genuine losses, and is therefore disproportionate.

37. Additionally the sum is roughly equivalent to a week’s state pension or a day and a half take home pay at average earnings. It is therefore a huge sum, completely disproportionate to the costs involved in any overstay.


Solicitor Costs

38. The claim includes a sum of £50, described as ‘Solicitor’s costs’. The Claimant is known to be a serial litigant, issuing a number of similar claims on a weekly basis, using the bulk processing service, generating a very large amount of income. Given a standard working week, the claimant’s solicitor can spend no more than a few minutes per claim, hardly justifying the £50. Since these are fully automated, no intervention is required by a solicitor, and the Claimant is put to strict proof to show how this cost has been incurred. The Claimant maintains case notes for each person who has accessed the case, and it is suggested this would be sufficient. The Claimant cannot rely on Nossen’s Letter Patent (1969) to justify the charge, as this is part of their everyday routine, and no ‘expert services’ are involved.

39. 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.

40. To put this into context, if the work was done by an outside solicitor who charged Pace Recovery & Storage £10 (which is believed to be the going rate for this type of work) then Pace Recovery & Storage would only be able to claim £10, and not £50.

41. The defendant therefore puts the claimant strictly to proof, by way of timesheets or otherwise, that work was done by the litigant’s expert staff to the value of £50.

42. The £50 solicitor cost was disputed in the test case of ParkingEye v Beavis and Wardley. HHJ Moloney refused to award the £50. His award was; “JUDGMENT FOR CLAIMANT FOR £85 PLUS ISSUE COSTS”. These were presumably the £25 filing fee and £25 hearing fee.

43. The £50 was also struck out by DJ Sparrow on 19 August 2015 in ParkingEye v Mrs S, claim number B9FC508F.


Additionally


44. I have received an addition Letter before Claim from Gladtones Solictors on behalf of Pace Recovery & Storage Ltd. / Ace Security Services. This proves Gladstones scatter gun approach and lack of researching individual claims and further proves that they are handled in the masses based on a numbers game of people paying their extortionate fees because of bullying tactics.

45. I also did not receive any other correspondence and no Notice of Penalty from Pace Recovery & Storage / Ace Security Services before receiving a Letter Before Claim for the 2nd Claim.




The above points will be explained fully in the Witness Statement, and Skeleton Argument, which I shall serve not later than 14 days before the date of any hearing.



……………………………………………………………………………………………………………………………………………..

DerrickDuval123

Thanks Quentin! And yes this isn't my real name - Seen a few posts on here previously where people have used their real details!

Any advice on whether my argument should stand up?

I can't see how these companies can get away with winning cases when they are so ill equipped with following procedure and must have a terrible rep with courts!

nosferatu1001

WHy have you titled it "defence skeleton argument"?

Its a defence

Skeleton argument is MUCH MUCH MUCH later in the process
Have you acknowledged the case?

No, their rep is terrible with some judges. Not "the courts" who simply see the number of (default) wins and presume theyre filing adequate claims.

DerrickDuval123

Thanks for your feedback, will change to defence!

Any feedback on the 2nd claim proving how inadequate they are and will it bode in my favour?

Thanks!

madmidwife

I have also had problems with Gladstones acting on behalf of link parking, they have just sent me a letter to say that they do not wish to enter into mediation and have requested that the judge deals with a 'paper only' case. I have requested mediation and am now getting concerned that I am going to have to go through a horrendous legal process

Coupon-mad

madmidwife wrote: »

I have also had problems with Gladstones acting on behalf of link parking, they have just sent me a letter to say that they do not wish to enter into mediation and have requested that the judge deals with a 'paper only' case. I have requested mediation and am now getting concerned that I am going to have to go through a horrendous legal process

Seeing as this happens every time on every Gladstones claim thread, and has been discussed to death umpteen times, it constantly amazes me that posters are (seemingly) not ready for it. Pretty much every day of every week, we answer the same thing, when posters could have searched the forum, or just Googled a handful of words from the silly letter.

Why not just Google the most unusual words as keywords, the same way you would research anything in life:

'Gladstones parking letter relatively straightforward Special Directions'

And please post on your thread, not here as this is someone else's and they need advice.

We win 99% of defended cases here, so your chances are high, not horrendous.

beamerguy

madmidwife wrote: »

I have also had problems with Gladstones acting on behalf of link parking, they have just sent me a letter to say that they do not wish to enter into mediation and have requested that the judge deals with a 'paper only' case. I have requested mediation and am now getting concerned that I am going to have to go through a horrendous legal process

You must start your own thread for help please

Mediation is a waste of time as mediators don't have a clue
about the parking scam.

And on the subject of SCAM, Gladstones only want it heard
on papers as they are unsure if they will win so YOU do not
want this heard on papers.

Don't be concerned because Gladstones are highly
incompetent solicitors.

So, start your own thread for all the help you need

READ ALL ABOUT "LINK" and their incompetent legals here
http://parking-prankster.blogspot.co.uk/search?q=link+parking

DerrickDuval123

Thanks, sorry for the late reply!
I will be acknowledging ASAP as at first I was unsure on whether I have enough ground to fight it.

Any feedback on the content of my argument?

Thank you in advance!