Gladstone Claim - delivery to block of flats

hendale

Hi,

I have been following this forum for a while. Amazing to see the knowledge and help offered on this topic.Congratulations on helping ordinary people fight back against all these abusive practices.

I would very much like some guidance on my particular case.

I have received a claim from Gladstone on behalf of UK Car Park Management Ltd regarding a parking charge from 18/04/2017.

Summary of facts:
- Our driver on entering the estate, asked staff where to place the vehicle for unloading a furniture delivery (large, heavy items).
- Site staff indicated a parking space to the driver.
- On returning to the vehicle after delivery (15-20 min), a parking charge had been put on the windscreen
- Usual letters received. Will post details on dates later on.
- All letters ignored. We did not engage in any correspondence
- Claim form against keeper received on 12/06/18

I have had a good look at the forum and will be basing our defence mainly on Jopson v Home Guard, which seems very relevant.
Before posting our defence for your comments, I would really appreciate some guidance on these points, as I think they will determine which way we should go:

- The claim has been made against our trading name (we are a Ltd company), not against our legal name. Can the claim be rejected purely on this basis?

- If we go down the route of denying liability as the keeper, and asking for proof that the claimant was fully compliant with POFA, would that be incompatible with mentioning the fact that the driver was merely following instructions from the people on site?

- Would the driver be required to provide a witness statement? In that case, since this would identify him, perhaps they might make a claim against him?

- Is it even worth arguing that the driver was told to put the vehicle in a particular place? We cannot provide evidence of this other than his word.

- I understand that individuals can request a claim to be dealt with by their local court. As we are a Ltd company, this does not seem to apply. Does it mean that we will have to accept their choice of court? It is about 300 miles from us, so not sure if it would be worth the effort to defend this to the end or perhaps we should try to concentrate to get them to drop it?

We have a dated and signed delivery note for the date in question, so I would guess that the case is strong enough, but you never know, so I would really appreciate your comments and advice on the above.

Thanks in advance.

Coupon-mad

Same as here and on every UKCPM claim thread:

https://forums.moneysavingexpert.com/discussion/5856428/county-court-claim

Read that advice as if it was here on your thread, all are almost the same, all winnable.

I understand that individuals can request a claim to be dealt with by their local court. As we are a Ltd company, this does not seem to apply. Does it mean that we will have to accept their choice of court? It is about 300 miles from us, so not sure if it would be worth the effort to defend this to the end or perhaps we should try to concentrate to get them to drop it?

You could ask that a court between the two companies is used, not sure if you'd have that agreed but could write a covering letter with your DQ form, a bit later (see the NEWBIES thread for what happens when).

The claim has been made against our trading name (we are a Ltd company), not against our legal name. Can the claim be rejected purely on this basis?

I believe so...but am not a legally trained poster. See what Johnersh or LOC123 say. Thing is, they would just reissue the claim to the Ltd company.

DW190

Coupon-mad wrote: »

You could ask that a court between the two companies is used, not sure if you'd have that agreed but could write a covering letter with your DQ form, a bit later (see the NEWBIES thread for what happens when).

I seem to remember seeing or being told you can ask for the Court nearest to where the alleged breach occurred. (If its nearer of course)

Umkomaas

DW190 wrote: »

I seem to remember seeing or being told you can ask for the Court nearest to where the alleged breach occurred. (If its nearer of course)

But it's different for an individual (court nearest to them) than for a company being the Defendant (court nearest to the Claimant).

Or are you saying that even in the case of a company they can avoid having to defend at the Claimant's nearest court?

Coupon-mad

I think they can certainly put a good case forward.

The company can certainly ask the court, explaining that it would minimise costs and that the parking firm are a serial litigant operating a robo-claims system, and are perfectly able and willing every day to send a rep to various courts across England & Wales ... because they do not actually send any employee or director to attend, not even a Gladstones rep, they use 'rent a rep' Elms Legal or similar, who are independent, nationwide and will attend any court when instructed by Gladstones.

Therefore the cost in travel to the Claimant would be no different, and to your Company Director it would save £xxx plus xx hours taken away from the business, at your usual hourly rate of ... plus an overnight stay at a hotel.

hendale

Thanks for the reply. Yes. I thought they might change the claim details to the Ltd company or make a new one, so we would probably have to defend regardless.

Regarding court location, I guess we will have to point out the costs involved at some point, which hopefully might be a deterrent.

Umkomaas

hendale wrote: »

Regarding court location, I guess we will have to point out the costs involved at some point, which hopefully might be a deterrent.

But they will no doubt argue that it's exactly the same distance for you to attend their local court as it is for them to attend your local court. The cost to you would be the same cost to them.

Coupon-mad

''At some point'' - I told you when...

hendale

Yes CM. Thanks for the comment regarding costs. If you look at timings, our posts crossed, so I had not read yours.

Anyway, I have spent a good few hours going through threads and get the impression that in our case it might be best to keep it simple.

This is my first draft. I would really appreciate comments and suggestions.

The Defendant is Company name and it is admitted that the company is the registered keeper of the vehicle. There is no clear cause of action shown in the Particulars of Claim and liability for this charge, or any sum at all claimed by this Claimant, is denied for the following reasons:

1) The vehicle was carrying out a delivery for Mrs X at Flat x on 18/04/2017 and the Defendant has a signed and dated delivery note to prove it.

2) The vehicle was there at the request of a resident, who is assumed by Company name to be entitled to receive deliveries as part of their right of quiet enjoyment of their property ( see Jopson v Homeguard 2016)

3) The flat is located in a large estate with security staff. The vehicle crew informed estate staff that they were there to carry out a delivery and were instructed where to park for the purpose of unloading.

4) There is no liability by Company name to the Claimant, since there was no omission, contravention nor breach of contract, as the presence of the vehicle and where it was parked, was approved by site staff. The Defendant presumes that security staff act on behalf of the landlord and have the authority to direct commercial vehicles within the estate.

5) Company name assumes that any parking restrictions enforced by the Claimant are complied with by the management company, and that the instructions issued by site staff are not in contravention of any such restrictions.

6). The Claimant has failed to follow the Code of Practice (CoP) of their Trade Body, in relation to ensuring that action is not taken without any cause. The Supreme Court Judges in the Beavis case held that such a CoP is effectively 'regulation' full compliance with which is both expected and binding upon any parking operator.

7). It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, Company name will monitor the time and cost incurred in dealing with this matter, with a view to claiming the loss to the company of at least half a day's work for a director, and travel/parking costs and any other expenses for attending any hearing as witness for the Defendant.

8). The court is invited to strike out the claim, due to no cause of action nor prospects of success.

9). The facts and information in this defence are true and the Defendant is not liable for the sum claimed, nor any sum at all. The person submitting is a director and authorised to submit this defence by Company name.

Coupon-mad

Good!

The only words I didn't like were:

who is assumed by Company name

and

The Defendant presumes that

and

5) Company name assumes that

I would change the first one to a more definite: 'reasonably believed' and the other two to 'avers'.


You could also add, to stop them saying 'he should have seen the signs/is bound by those terms':

- Given the fact that the driver was acting under instruction and with full agreement of the security staff, he/she had no reason to seek out any sparse signage and certainly did not read nor agree by performance, to any terms that would cause the Company to be penalised by a three figure sum.

- The elements of a contract with this Claimant are absent not least because nothing of value was offered by them. Parking had already been offered and accepted and the fact that this Claimant was not a party to, or aware of, that pre-existing verbal agreement is due wholly to their own failure to communicate effectively with onsite security staff.

- Being already verbally authorised to park where he did, the driver cannot be bound by another more onerous contract to park, from an unknown third party with a predatory, lurking ticketer who chose to take no account of the security staff's agreed parking exemptions and allowances for delivery vehicles.

hendale

Thank you very much CM!

This is the amended defence. Changed in red. Apart from your suggestions, I have added another point, trying to limit the claim to the original charge, as per POFA.

Your comments and suggestions are very appreciated.

[FONT=&quot]The Defendant is Company name and it is admitted that the company is the registered keeper of the vehicle. There is no clear cause of action shown in the Particulars of Claim and liability for this charge, or any sum at all claimed by this Claimant, is denied for the following reasons:[/FONT]
[FONT=&quot][/FONT][FONT=&quot]
1) The vehicle was carrying out a delivery for Mrs X at Flat x on 18/04/2017 and the Defendant has a signed and dated delivery note to prove it. [/FONT]
[FONT=&quot]2) The vehicle was there at the request of a resident, who is reasonably believed by Company name to be entitled to receive deliveries as part of their right of quiet enjoyment of their property ( see Jopson v Homeguard 2016)[/FONT]
[FONT=&quot]
[/FONT]
[FONT=&quot]3) The flat is located in a large estate with security staff. The vehicle crew informed estate staff that they were there to carry out a delivery and were instructed where to park for the purpose of unloading.[/FONT]
[FONT=&quot]
[/FONT]
[FONT=&quot]4) There is no liability by Company name to the Claimant, since there was no omission, contravention nor breach of contract, as the presence of the vehicle and where it was parked, was approved by site staff. The Defendant avers that security staff act on behalf of the landlord and have the authority to direct commercial vehicles within the estate.[/FONT]
[FONT=&quot]
[/FONT]
[FONT=&quot]5) Company name avers that any parking restrictions enforced by the Claimant are complied with by the management company, and that the instructions issued by site staff are not in contravention of any such restrictions.
[/FONT]
[FONT=&quot]
[/FONT]
[FONT=&quot]6)[/FONT] [FONT=&quot]Given the fact that the driver was acting under instruction and with full agreement of the security staff, he/she had no reason to seek out any sparse signage and certainly did not read nor agree by performance, to any terms that would cause the Company to be penalised by a three figure sum.
[/FONT]
[FONT=&quot]
[/FONT]
[FONT=&quot]7) The elements of a contract with this Claimant are absent not least because nothing of value was offered by them. Parking had already been offered and accepted and the fact that this Claimant was not a party to, or aware of, that pre-existing verbal agreement is due wholly to their own failure to communicate effectively with onsite security staff.[/FONT]
[FONT=&quot]
[/FONT]
[FONT=&quot]8) Being already verbally authorised to park where he did, the driver cannot be bound by another more onerous contract to park, from an unknown third party with a predatory, lurking ticketer who chose to take no account of the security staff's agreed parking exemptions and allowances for delivery vehicles.[/FONT]
[FONT=&quot]
[/FONT]
[FONT=&quot]9) The Claimant has failed to follow the Code of Practice (CoP) of their Trade Body, in relation to ensuring that action is not taken without any cause. The Supreme Court Judges in the Beavis case held that such a CoP is effectively 'regulation' full compliance with which is both expected and binding upon any parking operator.[/FONT]
[FONT=&quot]
[/FONT]
[FONT=&quot]10) Even if the Defendant company is found to be liable under the POFA 2012, that law only permits a claimant to recover no more than the sum stated on the PCN. It is submitted that any added fees are not justified, and constitute an attempt at double recovery by the Claimant, which would not be recoverable in any event.

11) It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, Company name will monitor the time and cost incurred in dealing with this matter, with a view to claiming the loss to the company of at least half a day's work for a director, and travel/parking costs and any other expenses for attending any hearing as witness for the Defendant.[/FONT]
[FONT=&quot]
[/FONT]
[FONT=&quot]12) The court is invited to strike out the claim, due to no cause of action nor prospects of success.[/FONT]
[FONT=&quot]
[/FONT]
[FONT=&quot]13) The facts and information in this defence are true and the Defendant is not liable for the sum claimed, nor any sum at all. The person submitting is a director and authorised to submit this defence by Company name.[/FONT]