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GLASTONES - COURT CLAIM and DEFENCE - inadequate signage and non-contract
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abab1212
Posts: 4 Newbie
Hello,
Can I kindly get some help as I have just received a Claim Form for a parking charge !!!8211; Gladstones are the solicitors? I have been following threads and posts on this forum for the last few months as I navigate the claim. Firstly, thanks for all the great resources and the time spent by those posting and replying. It!!!8217;s been very helpful.
I made an appeal, which was rejected. As part of the appeal they asked who the driver was. Unknowingly, I answered this at the time.
I made a submission for further particulars, which was never answered.
I have now received the claim form and acknowledged the form online (which now gives me 14 or 28 days?)
I have put together the following defence and would love your feedback.
Questions:
A. Does having divulged the driver make points 5.2 and 5.3 irrelevant. Gladstones still has not identified the driver in the claim as its just a roboclaim.
B. With the property being behind locked gates , does that change or enhance the argument over !!!8216;entering a contract!!!8217; in anyway?
THANKS!
___________________
[FONT="]
Preliminary
1. The Particulars of Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.
2. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct. The Defendant further notes the Claimant's failure to fully engage in pre-action correspondence in accordance with the pre-action protocol and with the express aim of avoiding contested litigation. The Claimant failed to respond to the Defendant's letter dated XXXX, 2018, asking for more evidence, and merely proceeded to issue a claim.
Background
3) It is admitted that at all material times the Defendant is the registered keeper of the vehicle which is the subject of these proceedings.
4) It is admitted that on the material date, the Defendant's vehicle was parked at the location stated.
5) The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver.
5.1. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 (the 'POFA').
5.2. Before seeking to rely on the keeper liability provisions of Schedule 4 of the POFA, a private parking operator must demonstrate that:
5.2.1. there was a 'relevant obligation' and/or 'relevant contract' formed with the driver, and
5.2.2. there was 'adequate notice' of the terms and the parking charge itself, on prominent signs in large lettering displayed clearly at the place where the car was parked, and at the entrance, and
5.2.3. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper. It is not admitted that the Claimant has complied with the relevant statutory requirements.
5.3. To the extent that the Claimant may seek to allege that any such presumption exists, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.
6) It is denied that any "parking charges, damages or indemnity costs" (whatever they might be) as stated on the Particulars of Claim are owed. The alleged debt is denied in its entirety.
7) It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely putting up parking signs and issuing letters on behalf of the true landowner. The Claimant is put to strict proof.
7.1. It is not admitted that the Claimant has contractual or other lawful authority to make contracts, specifically by offering parking to non-permit holders at this location, and/or to bring proceedings against the Defendant. The Claimant is put to strict proof.
Failure to set out clearly, or offer parking terms to non-permit holders
8) The Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to consider the imposition of a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.
9) The Defendant avers that the parking signage in this matter was inadequate and no consideration flowed between the driver and the Claimant.
9.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;
9.1.2. The signage contained particularly onerous terms not sufficiently drawn to the attention of the driver, as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ
[FONT="]The notices cannot, therefore, reasonably be construed as having created a contractual relationship between the Claimant and the Driver.
9.2.1. The above point was tested in the County Court at High Wycombe, in the case of Parking Control Management (UK) Ltd v Bull & 2 Others (B4GF26K6, 21 April 2016), where District Judge Glen dismissed all three claims, stating in his judgment that: ''All this is essentially saying is you must not trespass on the roadway. If you do we are giving ourselves, and we are dressing it up in the form of a contract, the right to charge you a sum of money which really would be damages for trespass, assuming of course that the claimant had any interest in the land in order to proceed in trespass.''
9.3. Even if the Court finds that a non-permit holder should have seen a sign and was a trespasser, this is a matter of tort whereby (as confirmed in the Beavis case and also by the 2012 Guidance Notes relating to Section 56/Schedule 4 of the POFA) only the landowner themselves would be potentially able to pursue damages. In Beavis, this was because ParkingEye Ltd were not in possession and thus unable to pursue damages, one of the same difficulties this Claimant faces, yet they lack the 'legitimate interest/commercial justification'reasoning that disengaged the penalty rule for ParkingEye, given the unusual and case-specific facts in the Beavis case.
10) This operation at this location is predatory, with inadequate signage designed not to be seen and with !!!8220;parking notices!!!8221; issued after the hours of midnight, in order to penalise unsuspecting drivers rather than offer a clear contract to park at a price. The charge is unconscionable and unfair in this context, with ParkingEye v Beavis fully distinguished.
11) The concept of the fairness of a contract must be considered in every case (Consumer Rights Act 2015) and was considered by District Judge Iyer in Pace Recovery v Lengyel, case C7GF6E3R, on 24 May 2017. The Judge held that 'the concept of fairness requires the parking firm to comply with the requirements of the relevant code of practice' which the parking operator had not; the same difficulty this Claimant faces.
11.1. The transcript of the decision in Pace v Lengyel will be provided to the Court, since it is on all fours with this case in several other respects too, including:
i. the Judge's findings that the Claimant could not make contracts with drivers, and
ii. that there was no contract possible with a non-permit holder in any case, so any purported contract was invalid under the doctrine of impossibility of performance, and
iii. the signage was inadequate, and
iv. such a claim against a non-permit holder might have been more properly phrased in trespass, but that was not the Claimant's case and they were not the party in possession of the land.
12) It is denied that the Claimant has any entitlement to the sums sought and it is denied that interest is applicable on the total sums claimed by the Claimant, which bear no relation to the maximum sum potentially able to be recovered from a registered keeper, as set out in the POFA, namely the sum stated in the Notice to Keeper.[/FONT]
[FONT="]13) The Claimant!!!8217;s 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. HMCS 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.[/FONT]
[FONT="]13.1. I believe the term for such conduct is !!!8216;robo-claims!!!8217; 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.[/FONT]
[FONT="]13.2 I suggest 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.[/FONT]
[FONT="]13.3. 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. The lack of diligence in this claim demonstrates admirably that at best a !!!8216;copy and paste' is the closest a human, legally trained or not, came to the information transmitted from claimant to the Money Claims Online system. There are no real costs and POFA prevents claims exceeding the sum on the original parking notice.[/FONT]
[FONT="]
14) The Defendant denies the claim in its entirety, voiding any liability to the Claimant for all amounts due to the aforementioned reasons. The Defendant asks that the court gives consideration to exercise its discretion to order the case to be struck out under CPR Rule 3.4, for want of a detailed cause of action and/or for the claim having no realistic prospects of success 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''.[/FONT]
[FONT="]
15) If the court is not minded to make such an order, then when Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because it is expected that the Claimant will use its witness statement to provide the sort of detail which should have been disclosed much earlier, and the Defendant should have the opportunity to consider it, prior to serving evidence and witness statements in support of this defence.
I confirm that the above facts and statements are true to the best of my knowledge and recollection.
[/FONT]
Can I kindly get some help as I have just received a Claim Form for a parking charge !!!8211; Gladstones are the solicitors? I have been following threads and posts on this forum for the last few months as I navigate the claim. Firstly, thanks for all the great resources and the time spent by those posting and replying. It!!!8217;s been very helpful.
I made an appeal, which was rejected. As part of the appeal they asked who the driver was. Unknowingly, I answered this at the time.
I made a submission for further particulars, which was never answered.
I have now received the claim form and acknowledged the form online (which now gives me 14 or 28 days?)
I have put together the following defence and would love your feedback.
Questions:
A. Does having divulged the driver make points 5.2 and 5.3 irrelevant. Gladstones still has not identified the driver in the claim as its just a roboclaim.
B. With the property being behind locked gates , does that change or enhance the argument over !!!8216;entering a contract!!!8217; in anyway?
THANKS!
___________________
[FONT="]
Preliminary
1. The Particulars of Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.
2. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct. The Defendant further notes the Claimant's failure to fully engage in pre-action correspondence in accordance with the pre-action protocol and with the express aim of avoiding contested litigation. The Claimant failed to respond to the Defendant's letter dated XXXX, 2018, asking for more evidence, and merely proceeded to issue a claim.
Background
3) It is admitted that at all material times the Defendant is the registered keeper of the vehicle which is the subject of these proceedings.
4) It is admitted that on the material date, the Defendant's vehicle was parked at the location stated.
5) The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver.
5.1. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 (the 'POFA').
5.2. Before seeking to rely on the keeper liability provisions of Schedule 4 of the POFA, a private parking operator must demonstrate that:
5.2.1. there was a 'relevant obligation' and/or 'relevant contract' formed with the driver, and
5.2.2. there was 'adequate notice' of the terms and the parking charge itself, on prominent signs in large lettering displayed clearly at the place where the car was parked, and at the entrance, and
5.2.3. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper. It is not admitted that the Claimant has complied with the relevant statutory requirements.
5.3. To the extent that the Claimant may seek to allege that any such presumption exists, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.
6) It is denied that any "parking charges, damages or indemnity costs" (whatever they might be) as stated on the Particulars of Claim are owed. The alleged debt is denied in its entirety.
7) It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely putting up parking signs and issuing letters on behalf of the true landowner. The Claimant is put to strict proof.
7.1. It is not admitted that the Claimant has contractual or other lawful authority to make contracts, specifically by offering parking to non-permit holders at this location, and/or to bring proceedings against the Defendant. The Claimant is put to strict proof.
Failure to set out clearly, or offer parking terms to non-permit holders
8) The Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to consider the imposition of a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.
9) The Defendant avers that the parking signage in this matter was inadequate and no consideration flowed between the driver and the Claimant.
9.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;
9.1.2. The signage contained particularly onerous terms not sufficiently drawn to the attention of the driver, as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ
[FONT="]The notices cannot, therefore, reasonably be construed as having created a contractual relationship between the Claimant and the Driver.
9.2.1. The above point was tested in the County Court at High Wycombe, in the case of Parking Control Management (UK) Ltd v Bull & 2 Others (B4GF26K6, 21 April 2016), where District Judge Glen dismissed all three claims, stating in his judgment that: ''All this is essentially saying is you must not trespass on the roadway. If you do we are giving ourselves, and we are dressing it up in the form of a contract, the right to charge you a sum of money which really would be damages for trespass, assuming of course that the claimant had any interest in the land in order to proceed in trespass.''
9.3. Even if the Court finds that a non-permit holder should have seen a sign and was a trespasser, this is a matter of tort whereby (as confirmed in the Beavis case and also by the 2012 Guidance Notes relating to Section 56/Schedule 4 of the POFA) only the landowner themselves would be potentially able to pursue damages. In Beavis, this was because ParkingEye Ltd were not in possession and thus unable to pursue damages, one of the same difficulties this Claimant faces, yet they lack the 'legitimate interest/commercial justification'reasoning that disengaged the penalty rule for ParkingEye, given the unusual and case-specific facts in the Beavis case.
10) This operation at this location is predatory, with inadequate signage designed not to be seen and with !!!8220;parking notices!!!8221; issued after the hours of midnight, in order to penalise unsuspecting drivers rather than offer a clear contract to park at a price. The charge is unconscionable and unfair in this context, with ParkingEye v Beavis fully distinguished.
11) The concept of the fairness of a contract must be considered in every case (Consumer Rights Act 2015) and was considered by District Judge Iyer in Pace Recovery v Lengyel, case C7GF6E3R, on 24 May 2017. The Judge held that 'the concept of fairness requires the parking firm to comply with the requirements of the relevant code of practice' which the parking operator had not; the same difficulty this Claimant faces.
11.1. The transcript of the decision in Pace v Lengyel will be provided to the Court, since it is on all fours with this case in several other respects too, including:
i. the Judge's findings that the Claimant could not make contracts with drivers, and
ii. that there was no contract possible with a non-permit holder in any case, so any purported contract was invalid under the doctrine of impossibility of performance, and
iii. the signage was inadequate, and
iv. such a claim against a non-permit holder might have been more properly phrased in trespass, but that was not the Claimant's case and they were not the party in possession of the land.
12) It is denied that the Claimant has any entitlement to the sums sought and it is denied that interest is applicable on the total sums claimed by the Claimant, which bear no relation to the maximum sum potentially able to be recovered from a registered keeper, as set out in the POFA, namely the sum stated in the Notice to Keeper.[/FONT]
[FONT="]13) The Claimant!!!8217;s 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. HMCS 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.[/FONT]
[FONT="]13.1. I believe the term for such conduct is !!!8216;robo-claims!!!8217; 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.[/FONT]
[FONT="]13.2 I suggest 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.[/FONT]
[FONT="]13.3. 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. The lack of diligence in this claim demonstrates admirably that at best a !!!8216;copy and paste' is the closest a human, legally trained or not, came to the information transmitted from claimant to the Money Claims Online system. There are no real costs and POFA prevents claims exceeding the sum on the original parking notice.[/FONT]
[FONT="]
14) The Defendant denies the claim in its entirety, voiding any liability to the Claimant for all amounts due to the aforementioned reasons. The Defendant asks that the court gives consideration to exercise its discretion to order the case to be struck out under CPR Rule 3.4, for want of a detailed cause of action and/or for the claim having no realistic prospects of success 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''.[/FONT]
[FONT="]
15) If the court is not minded to make such an order, then when Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because it is expected that the Claimant will use its witness statement to provide the sort of detail which should have been disclosed much earlier, and the Defendant should have the opportunity to consider it, prior to serving evidence and witness statements in support of this defence.
I confirm that the above facts and statements are true to the best of my knowledge and recollection.
[/FONT]
0
Comments
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Everyone is politely asked to read up on this in the Newbies FAQ thread near the top of the forum before starting a new thread
Had you done so then #2 explains court clay right through from lbcca to the hearing invlia walk through for AOS.
That or the claim form you vote explains what happens if you do AOS!
Not something to be asking about!
Now you revealed the driver there's obviously no point using Pofa defence points0 -
Presumably, there are rules for parking there which your friend knows? Were you parking in their space, a designated visitors space or something else?
It may not have been an employee (does seem a bit unlikely at that time!). Could be they have self ticketing.0 -
What is the Date of Issue on your Claim Form?0
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Quick update:
This case was heard in court today and was dismissed in less than 5 minutes. Defendant was awarded approx 100gbp in costs which were for mileage and one day off of work.
After submitting my defense, Gladstone's tried to get special directions for the hearing to be heard on paper. I submitted a request for it to be heard at my local court, which was accepted.
The case was then moved to my local court and given a date and time for the hearing.
I received the defense from the Claimant according to the deadline given in the court papers, which was quite poorly put together. I am happy to repost here if it is of use to people to see (please ask and I can post). Their main failing was the submission of a false and erroneous diagram of where supposed signage existed on the premises, which was in theory approved by the ICP. My witness statement showed clearly that there were no signs where they claimed them to be and the ones which are there (2 out of the 12 they claim are there) are not illuminated at night.
One week before the hearing, Gladstone's informed both myself and the court that they were not going to attend and for the case to go ahead based on the paperwork they submitted.
I showed up to court and met the judge on my own. The first thing the judge asked was whether the main premise of my defense was that they failed to sign post clearly that there were parking restrictions and therefore argued that there was no way I could have entered into a contract with them. I agreed and then asked the judge if I could present a video of the parking area to further corroborate what my witness statement presented. He agreed. Based on these factors, he dismissed the case.
Happy to post more of the legal paperwork if its of help to anyone.
And thanks for all of the info on this forum - couldn't have done it without all this information, though would say that the arguement I needed to present was pretty simple and didn't go into any of the 'legal case studies.' Hope others get their cases dismissed to.1 -
Well done, now complain to your MP.
The whole industry is a scam, relying on threats of court, and the public's ignorance of the Law, A bill is currently before parliament which will regulate the scammers, many of whom are ex-clampers.
This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of alleged contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors. Is has been suggested by an MP that some of these companies may have connections to organised crime.
Parking Eye, CPM, Smart, (especially Smart}, and others have already been named and shamed in the House of Commons as have Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each week), hospital car parks and residential complex tickets have been especially mentioned. They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct
The problem has become so widespread that MPs have agreed to enact a Bill to regulate these scammers.
Sir Greg Knight's Private Members Bill to curb the excesses, and perhaps close down, some of these companies passed its Second Reading in the Lords this month, and, with a fair wind, will l become Law later this year..
All three readings are available to watch on the internet, (some 6-7 hours), and published in Hansard. MPs have an extremely low opinion of the industry. Many are complaining that they are becoming overwhelmed by complaints from members of the public. Add to their burden, complain in the most robust terms about the scammers.You never know how far you can go until you go too far.0
This discussion has been closed.
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