Defence Statement - claim brought by GLADSTONE SOLICITORS

flipperjones

First of all I would like to say a huge thank you to all who have spent time writing threads and helping others fight parking tickets. So much info and cases out there to read!

My story...

Received 3x notice to keepers from Minster Baywatch asking me to pay £60 for each alleged offence. I responded back to them confirming I actually hold a membership with them and pay them £38 per month to use the car park.

They responded - my appeal has been forwarded to appeal team and if I don't hear back from them within 35 days I should contact them. I did not contact them nor received an response on any appeal.

Letter before claim received - Gladstone solicitors. Contacted them advising I have not received a response back from Bransby Wilson. Received a very quick response back from Gladstone with 3 attachments on email claiming they have sent out letters confirming my appeal was lost and I owed them money.

Completed pre-action protocol and sent REQUEST FOR FURTHER AND BETTER PARTICULARS to Gladstone. As expected, I have still not received any response back from Gladstones,

Received claim form for county court - registered on MCOL and now need to prepare a defence statement. HELP NEEDED WITH THIS PLEASE.

Background to my membership with Bransby Wilson (Minster baywatch manage parking for them on the site and have brought claim ). Held a membership with them since July 2017. Had two vehicles registered with them to park at the site. Bought a new car and didn't tell them I had changed registrations as my membership card was clearly displayed in the window at all times. (In their appeal letter they say that photographs and patrol officers notes (where applicable) will be taken into consideration. Just after I changed cars they installed cameras and new signs and thats when I received the 3 notice to keeper letters demanding payment.

I have reviewed the car parking membership terms and conditions and under section 3. Licensee's undertaking it clearly states in 3.9 that I must inform Bransby Wilson immediately (should ANPR operate on this site) of any change of vehicles using this site to avoid receiving a parking ticket.

3.8 states I must display my membership card - I did and it can be vaguely seen on the photographs on their parking charge notice.

As mentioned above, at the time of me taking out the membership with them, the site was not ANPR operated! Bransby Wilson did not notify members that signs and cameras were being erected.

I have 7 days to completed my defence statement and need help to write one. Is there anybody out there that can please help me. Thanks for taking to the time to read, it is very much appreciated.

Redx

read post #2 of the NEWBIES FAQ sticky thread and choose one of the GLADRAGS templates (examples) to write your own defence (not statement) , then post the draft on here for critique (then it can be honed)

KeithP

Flipper, have you done the Acknowledgement of Service to give you extra time to file a Defence?

What is the date of issue on your Claim Form?

flipperjones

Hi KeithP, yes I have completed Acknowledgement of Service. The issue date on the claim form is 9th April 2018. thanks

KeithP

Then you have much more than seven days.
You have until 4pm on Monday 14 May to file a Defence.

But of course, you would be unwise to leave it to the last minute.

flipperjones

Thanks for the info. Have you dealt with any cases where defendants actually hold a membership and pay to park? Thank you

Umkomaas

Have you dealt with any cases where defendants actually hold a membership and pay to park?

Possibly, possibly not. Unless anyone has elephantine memory, there are no such records with random variables kept like this.

Just to explain some of the logistics on the forum, where there are just about 10 regular, volunteer posters:

Since the beginning of 2018 we have dealt with 2,360 new cases.

Since the 25th April 2017 (1 year anniversary) we have dealt with 6,540 new cases.

So you'll excuse the fuzzy memory, preventing a definitive answer to your question!

Coupon-mad

hold a membership with them and pay them £38 per month to use the car park. Have you dealt with any cases where defendants actually hold a membership and pay to park?

Yes but I can't recall which ones.

Search this forum for recent ANPR defences (don't look specifically for MB cases).

flipperjones

Good evening all, thanks for the direction on preparing a defence. Lots of info out there to read. If anyone would be good enough to review the below it would be appreciated. Is it worth quoting any clauses from my membership that I feel are unreasonable for example, must notify XXX immediately if I change vehicles?? thanks all!

In the County Court
Claim Number:
Between
X v X

Defence

1. It is acknowledged that the defendant, xxx, residing at xxx is the registered keeper of the vehicle.

2. It is acknowledged that the defendant does hold a membership with XXX to park at this site and did have a membership card clearly displayed in the windscreen at the time of the alleged parking charges.

3. It is denied that any "parking charges or indemnity costs" (whatever they might be) as stated on the Particulars of claim are owed and any debt is denied in it's entirety. The dates of the alleged incidents are XX/XX/2018, XX/XX/2018 and XX/XX/2018 as per the particulars of claim.

4. The claim form itself is vague and lacks pertinent information as to the grounds for the claimant XXX!!!8217;s case. The particulars of claim fail to meet CPR16.4 and PD16 7.3-7.5 and merely state !!!8220;for breaching the terms of parking on the land at XXX XXX XXX(xxx)!!!8221;, provide a date, due date, and an "amount" consisting of a completely unsubstantiated and inflated three-figure sum, vaguely and incoherently adduced by the claimant's solicitors.
Due to this, I have had to cover all eventualities in defending such a 'cut & paste' claim which has caused significant distress and has denied me a fair chance to defend this claim in an informed way.

5. The Claimants XXX, 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. HMCTS have identified over 1000 similar poorly produced claims and the solicitor's conduct in many of these cases is believed to be currently the subject of an active investigation by the SRA. I believe the term 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. I have reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to my significant detriment as an unrepresented Defendant.

6. In the pre court stage the Claimant XXXs solicitor refused to provide me with the necessary information I requested in order to defend myself against the alleged debt. The defendant wrote to the claimant!!!8217;s solicitor!!!8217;s on 6th March 2018 requesting:

a) Full particulars of the parking charges
b) Who the landowner or occupier was from which the claimant derives their authority to operate
c) The full legal identity of the landowner
d) A full copy of the contract with the landholder that demonstrated that XXX had their authority
e) The basis of the claimants claim, if an agreed contract, breach of contract or trespass
f) Confirmation that should the claimants case fail they will recompense for misuse of my personal data
The claimant has not responded with any of the above information.
As Gladstones are a firm of solicitors who!!!8217;s 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.
The Defendant asks that the court orders Further and Better Particulars of Claim and asks leave to amend the Defence.

7. The claimant XXX solicitor!!!8217;s did not send me a Letter before Claim that complied with the Practice direction on pre-action conduct. The Letter before Claim can be seen to miss the following information
a) A clear summary of facts on which the claim is based
b) A list of the relevant documents on which the claimant intends to rely
c) How the claimants charge amount of £XXX pounds has been calculated and justified
d) Any form of possible negotiation or ADR offered

8. I suggest that parking companies using the small claims method as a form of aggressive, automated debt collection is not something the courts should be seen to support.

9. The alleged debt as described in the claim are unenforceable penalties, being just the sort of unconscionable charges exposed as offending against the penalty rule, in ParkingEye Ltd v Beavis.

10. This case can be easily distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes.
Charges cannot exist merely to punish drivers. This claimant has failed to show any comparable 'legitimate interest' to save their charge from Lord Dunedin's four tests for a penalty, which the Supreme Court Judges found was still adequate in less complex cases, such as this allegation.

11. It is submitted that (apart from properly incurred court fees) any added legal fees/costs are simply numbers made up out of thin air, and are an attempt at double recovery by the Claimant, which would not be recoverable in the small claims court.

12. It is denied that the signs used by this claimant can have created a fair or transparent contract with a driver in any event. The signs were insufficient in terms of their distribution, wording and lighting hence incapable of binding the driver, which distinguishes this case from the Beavis case:
a) Sporadic and illegible (charge not prominent nor large lettering) site/entrance signage - breach of the BPA Code of Practice and no contract formed to pay any clearly stated sum.
b) The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.
c) The signage was not lit and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Unfair Terms in Consumer Contracts Regulations 1999.
d) 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.
e) Absent the elements of a contract, there can be no breach of contract.

13. At the time of joining membership, the site was not operated by ANPR. It is acknowledged at the time of the alleged parking charges the defendant and other members using this site were not made aware that the site would change operation to ANPR.

14. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons.
It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious.
As such, I am keeping a note of my wasted time/costs in dealing with this matter.

15. I request the court strike out this claim for the reasons stated above, and for similar reasons cited by District Judge Cross of St Albans County Court on 20/09/16 where a similar claim was struck out without a hearing, due to Gladstones' template particulars for a private parking firm being 'incoherent', failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''.

Statement of Truth: I confirm that the contents of this statement are true to the best of my knowledge and belief.

Coupon-mad

Is it worth quoting any clauses from my membership that I feel are unreasonable for example, must notify XXX immediately if I change vehicles?

I haven't quoted any clauses, see below, see if this works for you:



In the County Court

Claim Number:

Between
X v X

Defence

1. It is acknowledged that the Defendant [STRIKE]xxx, residing at xxx[/STRIKE] is the registered keeper of the vehicle and was the driver who parked with full permission and authorisation on the three material dates.

2. [STRIKE]It is acknowledged that the[/STRIKE]The Claimant is fully aware, and it must therefore be common ground, that the Defendant does hold a membership with XXX to park at this site and did have a membership card clearly displayed in the windscreen at the time of the alleged parking charges. The Claimant has no cause of action.

3. It is denied that any "parking charges or indemnity costs" (whatever they might be) as stated on the Particulars of claim are owed and any debt is denied in [STRIKE]it's[/STRIKE] its entirety. [STRIKE]The dates of the alleged incidents are XX/XX/2018, XX/XX/2018 and XX/XX/2018 as per the particulars of claim.[/STRIKE]

4. The claim form itself is vague and lacks pertinent information as to the grounds for the claimant's case. The particulars of claim fail to meet CPR16.4 and PD16 7.3-7.5 and merely state 'for breaching the terms of parking on the land at XXX XXX XXX(xxx)' provide a date, due date, and an "amount" consisting of a completely unsubstantiated and inflated three-figure sum, vaguely and incoherently adduced by the claimant's solicitors.

5. From the outset, the Defendant engaged with the claimant, and submitted a detailed appeal, but received no reply at all. Once Gladstones became involved, despite the Claimant's meritless basis for any claim, the Defendant completed their own side of the pre-action protocol and sent a request for further and better particulars, but again no reply was forthcoming. Due to what amounts to missing Particulars of Claim, [STRIKE] this, I have[/STRIKE] the Defendant had to cover all eventualities in defending such a 'cut & paste' claim which has caused significant distress and has denied [STRIKE]me[/STRIKE] the Defendant a fair chance to defend this claim in an informed way.

[STRIKE]5. The Claimants XXX, 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. HMCTS have identified over 1000 similar poorly produced claims and the solicitor's conduct in many of these cases is believed to be currently the subject of an active investigation by the SRA. I believe the term 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. I have reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to my significant detriment as an unrepresented Defendant.[/STRIKE]

[STRIKE]6. In the pre court stage the Claimant's solicitor refused to provide me with the necessary information I requested in order to defend myself against the alleged debt. The defendant wrote to the claimant's solicitors on 6th March 2018 requesting:

a) Full particulars of the parking charges
b) Who the landowner or occupier was from which the claimant derives their authority to operate
c) The full legal identity of the landowner
d) A full copy of the contract with the landholder that demonstrated that XXX had their authority
e) The basis of the claimants claim, if an agreed contract, breach of contract or trespass
f) Confirmation that should the claimants case fail they will recompense for misuse of my personal data
The claimant has not responded with any of the above information.
As Gladstones are a firm of solicitors who's 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. The Defendant asks that the court orders Further and Better Particulars of Claim and asks leave to amend the Defence.[/STRIKE]

6. The facts as the Defendant knows them, are that the Defendant held a membership with Bransby Wilson since July 2017, which allowed for the parking of vehicles at the location. The Defendant had two vehicles, always displayed the permit and experienced no issues all the time that this was a 'manned' car park. The Defendant bought a new car and continued to pay £38 monthly for membership/parking, displaying the membership card at all times, again with no issues.

6.1. Recently, the Claimant changed the enforcement system, installing ANPR cameras which effectively - but unbeknown to the Defendant - changed the basis upon which penalties were generated, unfairly moving the goalposts to the detriment of all members. This conduct contravenes the Consumer Rights Act 2015 and fails the tests of fairness and transparency in any consumer contract.

6.2. Bransby Wilson did not notify members that signs and cameras were being erected. Nor did they nor the Claimant inform the Defendant that, after years of the membership agreement relying upon a simple requirement to display a permit (regardless of vehicle used), now a previously innocuous, unused and unknown paragraph in the small print of the membership terms about 'registering vehicles' became an onerous additional obligation, subject to a penalty.

[STRIKE]7. The claimant XXX solicitors did not send me a Letter before Claim that complied with the Practice direction on pre-action conduct. The Letter before Claim can be seen to miss the following information
a) A clear summary of facts on which the claim is based
b) A list of the relevant documents on which the claimant intends to rely
c) How the claimants charge amount of £XXX pounds has been calculated and justified
d) Any form of possible negotiation or ADR offered[/STRIKE]


7. This claimant has failed to [STRIKE]show any comparable 'legitimate interest' to[/STRIKE] save their charge from Lord Dunedin's four tests for a penalty, which the Supreme Court Judges in ParkingEye Ltd v Beavis [2015] UKSC 67 found was still adequate in less 'complex' cases, such as this allegation. There can be no legitimate interest in pursuing an unconscionable and extortionate fine against a patron who already pays a significant sum per month for the grant and/or right to a parking space.

8. [STRIKE]I suggest[/STRIKE] The Defendant agrees with the view of MPs in the House of Commons during the second reading of the Private Parking (Code of Practice) Bill in February 2018, who unanimously condemned as an 'outrageous scam' (Hansard 2.2.18) the practices of [STRIKE]that[/STRIKE] parking companies. Rogue parking firms using the small claims method as a form of aggressive, automated debt collection is not something the courts should be seen to support.

9. The alleged debt as described in the claim are unenforceable penalties, being just the sort of unconscionable charges exposed as offending against the penalty rule, in ParkingEye Ltd v Beavis.

10. This case can be easily distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes. Charges cannot exist merely to punish drivers.

11. It is submitted that (apart from properly incurred court fees) any added legal fees/costs are simply numbers made up out of thin air, and are an attempt at double recovery by the Claimant, which would not be recoverable in the small claims court.

12. Even though the parking contract was in fact agreed with Bransby Wilson as part of the paid membership, and not by the new signs, the Defendant anticipates that the Claimant may try to rely upon its new signage. This would be painting a misleading picture, with the Claimant expecting the court to believe that a new contract existed with Minster Baywatch and that parking with the usual permit displayed (regardless of vehicle) was now suddenly not enough.

12.1. It is denied that the signs used by this claimant can have created a fair or transparent contract with a driver in any event. The signs were insufficient in terms of their distribution, wording and lighting and were [STRIKE]hence[/STRIKE] incapable of binding any previously authorised [STRIKE]the[/STRIKE] driver/member who was relying upon a previous agreement to park any car with a permit. This [STRIKE]which[/STRIKE] distinguishes this case from the Beavis case:
a) Sporadic and illegible (charge not prominent nor large lettering) site/entrance signage - breach of the BPA Code of Practice and no contract formed to pay any clearly stated sum.
b) The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.
c) The new signs cannot override the previous agreement which depended merely upon the display of a permit; it is argued that this would be a derogation from grant.
d) In any case, this Claimant is a stranger to the membership agreement.
e) In any case, this Claimant is not in possession of the land and has no locus standi.

[STRIKE]The signage was not lit and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Unfair Terms in Consumer Contracts Regulations 1999.
d) 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.
e) Absent the elements of a contract, there can be no breach of contract.[/STRIKE]

13. It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious. As such, [STRIKE]I am[/STRIKE] the Defendant is keeping a note of [STRIKE]my[/STRIKE] all wasted time/costs in dealing with this matter.
[STRIKE]At the time of joining membership, the site was not operated by ANPR. It is acknowledged at the time of the alleged parking charges the defendant and other members using this site were not made aware that the site would change operation to ANPR.[/STRIKE]

14. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons.

15. [STRIKE]I request[/STRIKE] The Defendant requests that the court - acting upon its own volition and using its case management powers - strikes out this claim for the reasons stated above, and for similar reasons cited by District Judge Cross of St Albans County Court on 20/09/16 where a similar claim was struck out without a hearing, due to Gladstones' template particulars for a private parking firm being 'incoherent', failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''.

[STRIKE]Statement of Truth:[/STRIKE]
I confirm that the contents of this statement are true to the best of my knowledge and belief.


Name/signature

Date

The_Deep

This is an entirely unregulated industry which is scamming the public with inflated claims for minor 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 lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

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 they will be out of business by Christmas.