Court Claim - Gladstones

Sean88661046

Hi all

(sorry for the long post, most of it is just my defence statement in response to the court claim)

It is my first post on this forum after spending a few months reading posts from other users and greatly benefiting from everyones kind responses helping them to appeal parking tickets. I have used the advise to appeal my own Notice to Keeper and a Letter before Claim.

I have now received a court letter (which I believe is the real deal as it comes with a court stamp and claim number) from Gladstones on behalf of Minster Baywatch.
I have written my defence although I am on here seeking help as my case appears to be slightly more complicated than others and I am unable to write a good defence as I have no idea as to what the parking charge is for.

We received a demand for payment of unpaid charge on 25th Nov 17, this was apparently our second letter requesting us to pay a charge. We had not received an earlier letter, this was the first we had seen. We actually picked up the second letter from our old address - we had just moved house.

We immediately responded (within days of receiving the second letter) explicitly stating we had moved address and this was the first letter we had received. In the response we also issued a formal challenge and requested all the typical info, our letter was a standard response in the format of:
1. Your parking charge amount claim.
(i) Damages for trespass
(ii) Damages for breach of contract
(iii) A contractual sum

2. Your loss.

3. Your status, the creditor.

4. Ownership of premises.

5. Contractual Authority (as required by BPA Ltd AOS CoP B.7)

6. Signage

7. Summary

Their response back was:
Good afternoon, Unfortunately, you are out of the timeframe for an appeal. You had until the 22.11.17 to appeal this charge.
The value therefore remains at £155.
Singed Minister Baywatch

I replied stating it was not an appeal but a request for information. I asked for a response to the questions as previously requested, and reiterated that we had moved address and that I could provide proof of this change of address.

Their response:

Good Morning. Could you please provide us with proof from the DVLA that you changed your address before the date of contravention stated on your parking charge.
Signed Minster Baywatch.

My response was that once they responded to the questions I would provide proof of my change of address.

To be clear, at this point we had no idea of what the charge was for. The letter we received shows a picture of our vehicle entering the site and then leaving again exactly 25 minutes later. We remember parking there and accept that our vehicle was on their site during the time stated. However, there are no further details, no particulars, no explanation provided as to the breach of contract made. We have no idea what we did wrong. The letter only shows pictures of our car leaving and entering, stating the time of entry and exit. There were other cars parked there, it was almost full.

We received no further correspondence until the letter before claim from Gladstones.
The LBC had no further detail, it just detailed lots of ways to pay them. It only stated we breached a contract and gave the time of breach and provided a small breakdown of the costs be charged. It was the typical template LBC from Gladstones. My response was simple, we were still awaiting information as to what the claim was for in the first place. I also stated in our response that their LBC did NOT comply with the Practice Direction for Pre-Action Protocol. Our response included:
Please therefore provide a Letter Before Claim which complies with the requirements of Annex A Para 2 of the Practice Direction on Pre-action Conduct.
I confirm that I shall then seek advice and submit a formal Response within 30 days of receipt, as required by the Practice Direction.
Please ensure that someone does actually read and respond to this letter, providing the specific information relating to the county court claim that your client intends to make against myself as the defendant to the proposed legal proceedings. Please DO NOT send a generic FAQ letter in reply as to do so does not meet the requirements of the Practice Direction and will take this matter no further forward.

Their response was that their LBC complied with the latest Practice Direction for Pre-Action Protocol and they attached an FAQ document. But that was it, no response to anything else. We responded again saying we would ignore all future letters until our questions as requested in our first letter to Minster Baywatch had been answered and a LBC was received that complied with the Practise direction.

The next correspondence was the court claim. Received 14th April, sent to OUR OLD ADDRESS. We already updated the DVLA of the new address and already told Minster Baywatch of the new address in every letter we sent them previously. The letter still provides no particulars and again is a typical template from Gladstones.

In response to the court claim, here is my defence:
(I took a template from this forum and amended it for my own use, many thanks to the creator)

DEFENCE STATEMENT

SUMMARY:
The Defendant denies any liability to the Claimant for the following reasons:

i. No contract was formed between the parties;
ii. In any event, even if a contract was formed (which is denied) the Defendant is unaware of any breach of contract being made and that the claimant has never provided particulars of the alleged breach even after multiple requests for this information have been made by the defendant
iii. The Claimant has no locus standi to bring the claim


1. NO BREACH OF CONTRACT

The Defendant admits that on 22/10/2017 she parked on land Oldham, Mecca Bingo (Lower), 0L8 1ES, Manchester, which is private land on which the Claimant operates. However, the Defendant denies that she breached the Claimant's terms and conditions for parking because no details have ever been provided as to what part of the terms and conditions have been breached otherwise. Furthermore, the details as to how the terms and conditions were breached were requested on numerous occasions but are yet to be provided by the claimant.

2. INADEQUATE PARTICULARS OF CLAIM:

The Particulars of Claim fail to fulfil CPR Part 16.4 because it does not include a statement of the facts on which the claimant relies, only referring to a Parking Charge Notice with no further description; it fails to establish a cause of action which would enable the Defendant to prepare a specific defense:

The Defendant invites the court to dismiss this claim out as it is in breach of pre court protocols in relation to the particulars of claim under Practice Direction 16, set out by the Ministry of Justice and also Civil Procedure Rules (CPR) under 16.4 and to allow such Defendant costs as are permissible under Civil Procedure Rule 27.14.

The claimant has not provided enough details in the Particulars of Claim for the Defendant to file a full defence. In particular, the full details of the contract which it is alleged was broken have not been provided and the Claimant has not specified whether the claim is brought for breach of contract or in trespass.
a. The Claimant has disclosed no cause of action to give rise to any debt.

b. The Claimant has simply 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.

e. 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.
f. The claimant has attempted to obtain the information above from the claimant on multiple occasions

3. INVALID AND EXCESSIVE CHARGES:

a. There was any no agreement to pay additional and unspecified additional sums, which are in any case unsupported by the Beavis case and unsupported for cases on the small claims track.

b. The Claimant failed to fully comply with its obligation to follow the Approved Operator Scheme's Code of Practice of the International Parking Community; such compliance is necessary for the "penalty rule" to be disengaged, as found in the Beavis case.

c. The demanded value of the Claim of £239.74 has been artificially inflated from £1 for a valid hour parking when in fact the claimant was parked for 25 minutes. These added costs are excessive and unconscionable and have not actually been incurred by the Claimant. This is especially so when compared to the level of Penalty Charge Notice issued by the local Council for parking after the expiry of paid for time at a Pay and Display bay, which is set at £50 or £25 if paid within 14 days.

d. If the parking charge listed in the particulars of claim is to be considered a written agreement between Defendant and Claimant then under 7.3, the particulars fail to include a copy of the contract or documents constituting the agreement

e. The Claimant has at no time provided an explanation how the initial sum has been calculated although requested on numerous occasions.

f. 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.

4. FAILURE TO PROVIDE ADEQUATE SIGNAGE:

The signage on this site was inadequate to form a contract with the motorist.

a. The signage on and around the site in question was unclear and not prominent and did not meet the British Parking Association (BPA) Code of Practice or the International Parking Community (IPC) Code of Practice. The Claimant was a member of the IPC at the time and committed to follow its requirements. Therefore no contract was OFFERED in respect of additional signage - the terms of any offer must be clear and certain in order to be capable of acceptance, and a vague reference to additional charges is not clear or certain and not capable of acceptance.

b. The size of font of the prices advised for parking is much larger than the font of the contract and the offer is not sufficiently brought to the attention of the motorist, nor are the onerous terms (the punitive parking charge - effectively a private 'fine') sufficiently prominent to satisfy Lo Lord Denning's 'Red Hand Rule' and contrary to the requirements of the Consumer Rights Act 2015.

c. In the absence of adequate notice of the terms and the charge (which must be in large prominent letters such as the brief, clear and multiple signs in the Beavis case) this fails to meet the requirements of Schedule 4 of the POFA.

d. Failure to provide adequate lighting around signage. The defendant parked on the site during dark hours during which adequate lighting would be required for the defendant to be able to locate and read any signage actually present.


5. FAILURE TO ESTABLISH REASONABLE GROUNDS:

The Claimant has failed to establish reasonable grounds or particulars for bringing a claim:

a. Minster Baywatch Ltd. are not the lawful occupier of the land. The Defendant has 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 action regarding this claim.

b. 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.

c. The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question.

d. 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.

e. The Particulars of Claim are deficient in establishing whether the claim is brought in trespass. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landowner can pursue a case under the tort of trespass, not this Claimant, and as the Supreme Court in the Beavis vs ParkingEye (2015) [2015] UKSC 67 case confirmed, such a matter would be limited to the landowner themselves claiming for a nominal sum.

6. STRIKE-OUT/DISMISSAL:

The Defendant invites the court to strike out or dismiss the claim under Rule 3.4(2)(a) of PRACTICE DIRECTION 3A as having not set out a concise statement of the nature of the claim or disclosed reasonable grounds or particulars for bringing a claim (Part 16.4(1)(a) and PRACTICE DIRECTION 16 paragraphs 3.1-3.8). In C3GF84Y (Mason, Plymouth County Court), the judge struck out the claim brought by KBT Cornwall Ltd as Gladstones Solicitors had not submitted proper Particulars of Claim, and similar reasons were cited by District Judge Cross of St Albans County Court on 20/09/16 where another relevant poorly pleaded private parking charge claim by Gladstones was struck out without a hearing due to their roboclaim; particulars being incoherent, failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''. The Practice Direction also sets out the following example which is analogous to this claim: those which set out no facts indicating what the claim is about, for example Money owed £5000

7. GLADSTONES/IPC CONFLICT:

The Defendant researched the matter online, and discovered that the Claimant is a member of the Independent Parking Committee (IPC), an organisation operated by Gladstones Solicitors. They also operate the Independent Appeals Service (IAS), the allegedly independent body appointed by the Claimants trade body, the IPC. This research revealed that the IAS, far from being independent, is a subsidiary of the IPC, which in turn is owned and run by the same two Directors who also run Gladstones Solicitors. The individuals in question are John Davies, and William Hurley. These findings indicate a conflict of interest. Such an incestuous relationship is incapable of providing any fair means for motorists to challenge parking charges, as well as potentially breaching the Solicitors Regulation Authority Code of Conduct.

8. ROBO CLAIMS:

The Defendant believes the terms for such conduct is robo claims which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. The Defendant has reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to their significant detriment as an unrepresented Defendant.
The Claimants solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking for a true cause of action. Her Majesty's Courts and Tribunals Service have identified over one thousand similar poorly produced claims and the solicitors conduct in many of these cases is believed to be currently the subject of an active investigation by the Solicitors Regulation Authority.

9. IMPROPER SMALL CLAIMS USE:

The Defendant respectfully suggests that 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.

10. CLAIMANT CONDUCT:

The Defendant denies the claim in its entirety voiding any liability to the claimant for all amounts due to the aforementioned reasons. It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious.

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

Signed: x

End of defense statement

Any assistance with my defence would be greatly appreciated. i am not sure if I have done the right thing so far in my responses ect. and obviously very worried / scared about going to court. Also very frustrated i have spent hours now researching, reading, writing letters ect responding to their charge. How can they get away with sending charges to people with absolutely no explanation as to what it is for??... I would very much like to counter claim against them, charging them for my time wasted (its probably somewhere between 10-15 hours, at least!!)

Any response at all will be greatly appreciated
Thank you

KeithP

I have not read all the detail, but is is wise to admit being the driver in your Defence?
Does the Claimant already know who was driving the vehicle?

Quentin

#2 in the Newbies FAQ thread near the top of the forum has advice on Court procedures as well as how to construct a defence.

Have you done the AOS?

Make sure that the court snd claimant now knows your correct address

Sean88661046

Thanks for the quick response

Does the Claimant already know who was driving the vehicle? No, i've never disclosed that to them

Is is wise to admit being the driver in your Defence? Good question,what benefit is there to not admitting it?

thanks again!

Sean88661046

Thanks Quentin

I have indeed done the AOS / acknowledgement of service.

The claimant has been sent my new address - not sure how to update the court with it though. I'm assuming they were provided the incorrect address from the claimant. Looking into it now

Quentin

Sean88661046 wrote: »

Thanks for the quick response

Does the Claimant already know who was driving the vehicle? No, i've never disclosed that to them

Is is wise to admit being the driver in your Defence? Good question,what benefit is there to not admitting it?

thanks again!

Read up in the Newbies FAQ thread on this.

If you haven't already done so then never reveal who was driving is the advice there - explained in #1

Coupon-mad

https://forums.moneysavingexpert.com/discussion/5559206/parking-charge-notice-calder-park-wakefield-help

The above thread has a decent defence draft and some suggested additional wording for what to put about the fact the Claimant knowingly used a wrong address when filing the claim.

bargepole

That Defence is just making the case for the Claimant.

The OP admits that she parked for 25 minutes in a car park where the tariff is £1 per hour.

She does not state that she made any payment, so it must be assumed that she didn't.

That was the breach of terms.

Unless it can be shown, with evidence, that the signage was insufficient to bring these terms to the attention of a motorist, it's game over.

All the stuff about what a dodgy outfit Gladstones are, and their robo-claim business model, is just a rant, and has no relevance to this specific case.

Coupon-mad

To be clear, at this point we had no idea of what the charge was for. The letter we received shows a picture of our vehicle entering the site and then leaving again exactly 25 minutes later. We remember parking there and accept that our vehicle was on their site during the time stated. However, there are no further details, no particulars, no explanation provided as to the breach of contract made. We have no idea what we did wrong. The letter only shows pictures of our car leaving and entering, stating the time of entry and exit. There were other cars parked there, it was almost full.

Was the charge for not paying in a P&D car park then, or have you copied a defence about PDT machines that's not relevant?

MB normally infest permit car parks, IMHO, not PDT machine sites. So, which was it?

And we are not telling you to give up, BTW! IMHO bargepole is just pointing out that you have said little in the way of defence, and I agree, but I wonder if you meant to say the bit about £1 per hour, did you?

If so, do you think the PDT machine is hidden deliberately in a corner, if so, say so in the defence.

Sean88661046

Hi Bargepole & Coupon

Thanks for your resonances.

Coup, I read up on the thread you posted, i've since updated my defence with the paragraph that you posted re. them knowingly / negligently using my old address. Thank you!!

Re. the £1 parking charge, until today I was certain the parking there was free, I actually parked there previously before the fine without paying and no charge was given. When writing my defence I thought i'd ring up the owner of the land and confirm what I thought I already new. That's when I found out there was indeed a charge, so I added it into the defense as there was already a section on parking cost in the template I used.
From what it sounds like you are suggesting I need to seriously look at my case and defend it from a position which is more towards poor / lack of clear signage or a hidden P&D machine. Also, it was 8:30pm, it was dark, poor lighting conditions made it harder to see (it was November). However, at this point i'd still be assuming the charge is because I didn't P&D, the Notice to Keeper and LBC never stated what the charge was for.

thanks both
Sean

Redx

depends if the driver has been named to MB or not

if not , then check if POFA2012 applies, did MB issue the correct paperwork and wordings in the correct timscale ?

is it better to have a KEEPER based defence ? or a DRIVER based defence ? (especially if MB met POFA2012)

get rid of the rants etc mentioned by BARGEPOLE and try to concentrate on legal arguments because a judge will look for those and wont care about any soapbox issues

some of the issues on signage and payment machines or whatever can be used when a keeper visits a site to obtain evidence for their defence , so a keeper could use some of the points a driver would use

dont just copy any old defence , look for one similar to these events and adapt it accordingly, providing its no more than say 6 to 12 months old, the more recent the better

there are dozens of gladrags court threads on this forum, so cannot be hard to find a suitable one , start with the NEWBIES FAQ sticky thread, post #2

also bear in mind that nearly all of them have poor POC , no idea what they are being taken to court for , etc, your case is almost the same as dozens of others, so certainly not "different"

and remember, this is a defence , not a witness statement, no evidence required at this stage, they come later