County Court Claim - Gladstones / ES Parking

Bluestone1

Good afternoon all.


I would appreciate any guidance and advice following receipt of County Court Claim Form this week for alleged parking infringement.


Background:-


ES parking enforcement issued a PCN to the registered keeper in Sept 16 for allegedly ‘parking and not displaying a current and valid permit in or on the windscreen…liability for the same having been brought to the attention of the driver by clear signage in and around the site : Tustin Court, Port Way, Preston’. The evidence provided for this is a passport sized photo, which is barely legible and only depicts the registration plate. You cannot identify the vehicle in the photo although it’s dated and timed late one Saturday evening of the same month. I understand the area highlighted is adjacent a cinema and restaurant and is associated with offices that would be closed at this time. No ticket machine is in operation in this area.


Following receipt of the PCN from ES and as the registered keeper of the vehicle, I issued a response to ES using suggested templates from this forum highlighting driver not identified and requesting contracting party details, legal entity, landholder authority, damage or breach, invoice, evidence of signs, further photos, POFA 2012 etc.


A response from ES was provided which failed to address each and every point that was raised. Instead, they decided to acknowledge this as an appeal although the letter dates to which they refer are wrong and they maintain the charge of £100 is due. An offer of the IAS is made if I believe the decision to be incorrect. I responded highlighting a further request to provide the information again and requested and suggested until this was provided I wish to preserve my right to take this matter to an independent ADR service such as POPLA.


No response received, just demands for payment initially from ES and then from ZZPS in Nov and Dec 16. These were ignored.


In Jan and Feb 17, Wright Hassall got involved following instruction by ZZPS who were acting on behalf of ES. Holding response issued suggesting a response is still awaited from ES and until such time as a satisfactory response is issued, the matter remains disputed.


Things then went quiet until Oct 17 when Gladstones arrived on the scene with its ‘Letter before Claim’. Again, robust response suggesting no response to request for further information, that the change in solicitors is quite telling and the claim is entirely disputed.


Interestingly, I did move property between the above periods and also adjusted my V5. I didn’t advise them of this, but have access to the mail from that address. Gladstones again wrote to me in Jan 18, though this time at my new address suggesting that I make payment or proceedings will be issued at the address in the ‘Letter Before Claim’ which is my old address ??? I acknowledged in response I had changed address, yet they have continued to issue the claim form to my old address. I appreciate this also creates options; I think I would sooner hit this head on rather than have a CCJ set aside. It smacks to me of a deliberate tactic on their behalf !


I am starting to develop my defence. I have read the newbies bit so understand the basics and timescales and will hopefully be capturing some elements of well-rehearsed defences. Any early pointers or suggestions though would be much appreciated.


Thanks in advance.

The_Deep

This is an entirely unregulated industry which is scamming the public with inflated claims for alleged breaches of contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors.

Parking Eye, CPM, Smart, and another company have already been named and shamed, as has Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each year). They nearly always lose, and have been reported to the regulatory authority by an M.P.

Hospital car parks and residential complex tickets have been especially mentioned.

The problem has become so rampant that MPs have agreed to enact a Bill to regulate these scammers. Watch the video of the Second Reading in the HofC recently.

http://parliamentlive.tv/event/index/2f0384f2-eba5-4fff-ab07-cf24b6a22918?in=12:49:41

and complain in the most robust terms to your MP. With a fair wind most of these companies may well be put out of business by Christmas.

Lamilad

Gladstones again wrote to me in Jan 18, though this time at my new address suggesting that I make payment or proceedings will be issued at the address in the !!!8216;Letter Before Claim!!!8217; which is my old address ??? I acknowledged in response I had changed address, yet they have continued to issue the claim form to my old address. I appreciate this also creates options; I think I would sooner hit this head on rather than have a CCJ set aside. It smacks to me of a deliberate tactic on their behalf !

Wow, a brazen attempt by them to obtain a default CCJ. You must report this to the SRA, the DVLA and your MP.

You should make a big deal of it in your defence, referring to it as unreasonable conduct for which costs will be sought under CPR 27.14(2)(g). Also mention their clear and blatant refusal to comply with pre action protocols by failing to engage with you, despite your efforts in this regard, inorder to understand the claim and narrow the issues.

There could well be a DPA breach here, too, which could give rise to a counterclaim.

Bluestone1

All - Thanks for your advice so far.


Your continued guidance and support will be much appreciated.


First draft of my Defence.




IN THE COUNTY COURT BUSINESS CENTRE

CLAIM No: EXXXXXX

BETWEEN:

ES PARKING ENFORCEMENT LIMITED (Claimant)

-and-

XXXXXXXX (Defendant)

________________________________________
DEFENCE STATEMENT
________________________________________




I, XXXXXXXXXXXXX, deny I am liable to the Claimant for the entirety of the claim for each of the following reasons:

• The Claimant has not complied with pre-court protocol, as outlined in the Pre Action Protocol for Debt Claims, which came into force on the 1 October 2017:-
  
  1. The aim of the protocol at 2.1(a) and (b) is to encourage early engagement and communication between the parties including early exchange of sufficient information to help clarify if any issues are in dispute and enable the parties to resolve the matter without the need to start court proceedings or consider Alternative Dispute Resolution (ADR). Both the Claimant and their advisors have failed to respond to any formal requests for information in support of this purported claim or engage on an independent ADR procedure.
  2. Despite the Claimant failing to engage with the Defendant, the Claimant has chosen to engage with several solicitors and generate purported charges and costs which have increased from £100 to £251.81. This is in contravention of 2.1(c) of the Protocol.
  3. The Claimant has an obligation to disclose documents or exchange information that help clarify or resolve any issues in dispute. Despite numerous formal requests, the Claimant has provided insufficient information to justify the basis of this claim which contravenes Clause 5.1 of the Protocol.
  4. The Claimant is required under Clause 5.2 of the Protocol to provide documents requested by the Defendant or explain why the document or information is unavailable within 30 days. The Claimant has failed in responding to any of the Defendants letters regarding the provision of further information.
  5. As set out in paragraph 7.1 of the Protocol, I would respectfully request the court takes into account these failings and non-compliance with the Protocol when considering these proceedings. Unfortunately, due to the lack of any willingness from the Claimant to provide further information, it has been impossible to understand or provide a full defence to this claim or even take stock and narrow these differences and issues before the court as outlined in the Protocol !!!8211; Section 8.
     
• The Defendant therefore contends that there is no compliant !!!8216;Letter before Claim!!!8217;, under the Practice Direction in place.
  
• It should also be acknowledged this is a speculative serial litigant, issuing a large number of identical claims which contain very little information. This is apparent from the simplest of research and POPLA decisions that are available.
  
• It is also worth noting the tactics deployed by this serial litigant / Claimant, who has openly admitted and deliberately issued County Court proceedings to the Defendants previous address despite knowing and corresponding with the Defendant at his new address. This is nothing short of scandalous and a deliberate attempt to seek a default CCJ without the Defendant being aware. This conduct will also be raised with the Solicitors Regulation Authority (SRA) as well as the Information Commissioners Office (ICO) regarding a breach of the Data Protection Act.
  
• The information provided in respect of this claim by the Claimant is sparse of detailed information.
  
• The Claim Form Particulars are also sparse making reference to a vehicle registration, the date and approximate location of an alleged breach of parking terms without specifying what the alleged breach is, the times of any alleged breach, an allegation that the Defendant was driving the vehicle which is denied and/or is the Keeper of the vehicle which is accepted. Further the Claim Form Particulars did not contain any evidence of contravention or photographs. The defendant is left guessing what this claim is about, why the charge arose, what the alleged contract was; nothing that could be considered a fair exchange of information upon which to respond with a Defence.
  
• The Defendant therefore asks the Court to strike out the claim as disclosing no cause of action andhaving no reasonable prospect of success as currently drafted.
  
• Alternatively, the Defendant asks that the Claimant is required to file Particulars which comply with Practice Directions and include at least the following information;
  
  1. Whether the matter is being brought for trespass, breach of contract or a contractual charge, and an explanation as to the exact nature of the charge as the legal arguments will be different for each;
  2. A copy of any contract it is alleged was in place (e.g. copies of signage at the time of the alleged incident);
  3. How any contract was concluded (if by performance, then copies of signage maps in place at the time);
  4. Whether keeper liability is being claimed, and if so copies of any Notice to Driver / Notice to Keeper;
  5. Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter;
  6. If charges over and above the initial charge are being claimed, the basis on which this is being claimed;
  7. If Interest charges are being claimed, the basis on which this is being claimed.
     
• Once these Particulars have been filed, the Defendant asks for reasonable time to file a further Defence.
  
• The Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012. Absent such a notice served within 14 days of the parking event and with fully compliant statutory wording, this Claimant is unable to hold the Defendant liable under the strict !!!8216;keeper liability!!!8217; provisions.
  
• Schedule 4 also states that the only sum a keeper can be pursued for (if Schedule 4 is fully complied with, which it was not, and if there was a 'relevant obligation' and relevant contract' fairly and adequately communicated, which there was not) is the sum on the Notice to Keeper. This cannot be inflated when it is believed that neither the signs, nor any Notice to Keeper mentioned additional sums for outstanding debt and damages.
  
• The Claimant has added unrecoverable sums to the original parking charge. It is believed that the employee who drew up the paperwork is remunerated and the particulars of claim are templates sent to many unassuming motorists, so it is simply not credible that £50 'legal representative!!!8217;s (or even admin) costs!!!8217; were incurred.
  
• This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. As far as I can ascertain, based upon the very vague particulars of claim and complete lack of evidence and photographs, and without having been furnished with the alleged signage 'contract', none of this applies in this material case.
  
• In the absence of any proof of adequate signage that contractually bound the Defendant then there can have been no contract and the Claimant has no case.
  
• The Claimant is put to strict proof that at the time of the alleged event they had both advertisement consent and the permission from the site owner to display any signs.
  
• In the absence of strict proof I submit that the Claimant was committing an offence by displaying their signs and therefore no contract could have been entered into between the driver and the Claimant.
  
• Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case:
  
  1. Sporadic and illegible (charge not prominent nor large lettering) of site/entrance signage - breach of the POFA 2012 Schedule 4 and the BPA Code of Practice and no contract formed to pay any clearly stated sum;
  2. It is believed the signage was not adequately lit and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Consumer Rights Act 2015 in requiring a huge inflated sum as 'compensation' from by an authorised party using the premises as intended;
  3. No promise was made by the driver that could constitute consideration because there was no offer known nor accepted. No consideration flowed from the Claimant;
  4. The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.
     
• The action brought by the Claimant also breaches the BPA Approved Operator Scheme CoP and which distinguishes this case from the Beavis case:
  
  1. Any signage was not compliant in terms of the font size, lighting or positioning;
  2. the sum pursued exceeds £100;
  3. there is / was no apparent compliant landowner contract in place with the Claimant.
     
• This case has no standing and this distinguishes this case from the Beavis case.
  
• It is believed the Claimant does not hold a legitimate contract at this car park. As an agent, the Claimant has therefore no legal right to bring such a claim in their name which should be in the name of the landowner. The Beavis case confirmed the fact that, if it is a matter of trespass (not breach of any contract), a parking firm has no standing as a non-landowner to pursue even nominal damages. The charge is an unenforceable penalty based upon a lack of commercial justification. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim.
  
• The Defendant has found the actions of the Claimant and his solicitors underhand throughout this ordeal. The Defendant believes that the behavior of the Claimant amounts to unreasonable conduct for which costs will be sought under CPR 27.14(2)(g).
  

I believe the facts contained in this Defence Statement are true.

Signature


XXXX XXXXXX


XXth March 2018

Bluestone1

Would really appreciate one of our resident experts here casting an eye over the first draft of my defence ?

Thanks in advance.

Coupon-mad

Change this:

DEFENCE STATEMENT

to DEFENCE

You need all paragraphs to be numbered, which will mean changing the existing 1 - 5 near the start of the defence, to i - v or a - e.

This (below) is very hidden and needs to be higher, more punchy (remove the waffle) and have they admitted to 'deliberately' using the wrong address? Who admitted that, claimant or Solicitor?

[STRIKE]It is also worth noting the tactics deployed by this serial litigant / Claimant, who[/STRIKE] This Claimant has openly admitted and deliberately issued County Court proceedings to the Defendants previous address despite knowing and corresponding with the Defendant at his new address. This is nothing short of scandalous and a deliberate attempt to seek a default CCJ without the Defendant being aware. This conduct will also be raised with the Solicitors Regulation Authority (SRA) as well as the Information Commissioners Office (ICO) regarding a breach of the Data Protection Act.

Also I only skim read this but I couldn't see near the start, anything that says something like: ''the facts of the matter are...'' or 'it will be common ground that a PCN was issued because... blah blah'. Think of the Judge wanting you to cut to the chase and say near the start, effectively: 'this is what happened and this is why the charge should not be recovered'.

Bluestone1

Thanks Coupon-mad, much appreciated.

I will sort out the numbering, it got lost in the format of this site when copied across.

It was Gladstones who wrote to me at my new address stating in the same letter they would serve proceedings at the address detailed in the attached Letter Before Claim, at my old address.

I will also improve the opening as suggested.

Coupon-mad

It was Gladstones who wrote to me at my new address stating in the same letter they would serve proceedings at the address detailed in the attached Letter Before Claim, at my old address.

OK so make that clear. Say it like that!

Bluestone1

Just a quick update on progress made here :-

Gladstone!!!8217;s wanted case heard on papers which was overturned and was allocated to Preston County Court for oral hearing at some point in the future, date not determined.

However District Judge Anson has ordered that the particulars of claim be struck out as they do not disclose any reasonable grounds for bringing claim, they are an abuse of courts process, fail to comply with CPR 16.4 and PD 16 para 7.3 - 7.5.

He has granted claimant a couple of weeks to issue a further statement of case, verified by a statement of truth that must set out a coherent statement of facts, disclose a legally recognisable claim, attach a copy of the contract or documents evidencing any agreement upon which the claim is based and contains a detailed breakdown of the sums being claimed.

Hopefully issue now nearing closure.

System

Hopefully issue now nearing closure.

Nope.

DJ Anson has done this before so he is clearly not enamoured with a Gladstone's Roboclaim.

Gladstones will likely respond by flooding the court with claims.

You'll get a template WS from Gladstones in a week or so, so come back when it arrives. It won't say much more than you already know but if you haven't done so already send a Subject Access Request to both ES Parking and to their "debt collectors" to get anything that is missing.

Get pics of the signs at the location and their layout too.

Check with the local council who pays the Non-domestic rates as that may be different from the Letter of Authority they may put in their pack.

There will be lies in the ES pack - you just have to check how many.

nosferatu1001

IAm - I think this is a decent step, as a full PoC should at least cost them some time, making their fee model loss making for Gladstones.