Court Claim - Gladstones/Gemini

erinbrockovich

If you ignore the claim form then of course you will get a CCJ against you. That should be obvious!

i didn't say ignore

So if it is a permit system, the "rules" are those when the permit is purchased - unless they refer to the ones on the sign. Clearly as it is not your permit, you will have to ask about the terms agreed when the permit was received. You have to be able to separate the issues.

In addition, it may be better to reveal the driver as the driver clearly has some sort of rights to park there and is not a trespasser. It is those rights you have to bottom,

the staff 'pass' that lets you in and out is just a blank piece of plastic which is obtained in person from an on-site office (in return for the deposit) - no rules are communicated at that stage, I believe.

I will do some research about trespassing wrt parking defences. I'm thinking I can modify section (2) of my DEFENCE to mention the rights of staff to park there

erinbrockovich

Ok thanks Loadsofchildren I will read your Admiral post and get back with more details later. It initially sounds very relevant as the permit clearly says 'ISSUED BY *** NHS' and has only NHS contact numbers in case of queries - Gemini is not mentioned anywhere. It also says at the top that the permit is only valid in the staff permit parking area

Edit: to be clear, she paid a refundable deposit for a pass to allow her to enter/exit the staff car park freely. She then paid for a scratch card 'permit' each day to allow her to park in said car park each day she needed to. There is a space to fill in the VRM on each scratch card so it's possible she could have supplied the VRM but I'd have to check with her to see if she did fill that in.

Coupon-mad

You are getting bogged down in defence detail when you haven't got a claim yet - in case anyone didn't realise.

Priority is to email & demand they use your new address and send a fresh LBCCC and reply forms because they KNOW you didn't get them in time due to them using an old address. Remind them they know that due to the phone conversation on xx/xx/18.

And to demand that only one claim is filed, and that the PPC carry out due diligence and check for all/any PCN that need to be amalgamated into a single claim (wording as already advised...res judicata).

System

You are getting bogged down in defence detail when you haven't got a claim yet - in case anyone didn't realise.

The OP has been told to expect them

both been submitted to the county court business centre and I can expect two court claims to arrive shortly - at my parents' address.

Also if there are two separate ones, he would be best to get them combined - though they have to be dealt with from the court's point of view as separate issues. He may want to point out to the court - if there are two separate ones - about the abuse of process.

erinbrockovich

Priority is to email & demand they use your new address and send a fresh LBCCC and reply forms because they KNOW you didn't get them in time due to them using an old address. Remind them they know that due to the phone conversation on xx/xx/18.

I've already emailed them based on what you said but no reply as yet


Ok so I did some digging today: The 'pass' to get in and out of the car park, along with 'permit' are both obtained by the driver from inside the hospital. i.e. the transactions are all between the driver and the NHS. Gemini has nothing to do with it, they aren't mentioned on any documents or permits.

Additionally I visited the car park tonight - the signage is awful. The car park is enormous but there is only one small Gemini sign at the entrance with tiny writing and mounted over 3m high. I was stood right next to it but still couldn't read it because it's so high.

I will update the defence tomorrow to account for the awful signage and the fact that gemini are a third party (based on Loadofchildren's Admiral case)

Thank you all so much for your help so far

Coupon-mad

The OP has been told to expect them

Yep but they would say that, wouldn't they?! I bet these were not yet sent to the CCBC.

The OP told them on the phone that the address was wrong and they knew two similar claims were about to be filed, and they did NOTHING to allow the OP to review the LBCCC and respond.

Pathetic, steamroller litigation.

So he/she has tried to stop the steamroller in its slow tracks, call their bluff and force a single claim to the right address (or a LBCCC, ideally). So I think chewing over defence wording is useful but a bit previous.

Ok so I did some digging today: The 'pass' to get in and out of the car park, along with the scratch card 'permit' are both obtained by the driver from inside the hospital. i.e. the transactions are all between the driver and the NHS. Gemini has nothing to do with it, they aren't mentioned on any documents or permits. The rules for the car park and permits are explained on the back of the NHS scratch card.

Jolly good research, very relevant.

erinbrockovich

Hi guys


I received a letter via email from Gladstones acknowledging my email about a my old address.


However they will not 'update their system' until I provide proof of address (utility bill) which shouldnt be a problem



in the meantime, the claims have landed at my parents' house

nosferatu1001

Tell them to sod off. They have no need for proof of address, they are required to maintain their records and are required to use the address for service. They have no choice in the matter.

Failure to use the most current address for service puts them in contempt should they raise any new claims, and will result in an application to strike AND a complaint to the SRA.

Coupon-mad

Yes tell them to sod off, you can name ANY address for service, tell them so and point out they have deliberately served a claim (or claims) at the wrong address now and you will point this out to the court.

More than one claim, why? Search res judicata as your keywords as we've discussed what to do if more than one claim is filed by a PPC.

If they have filed two claims also tell Gs you object about that and will apply for one to be struck out, or to have them merged so that only one hearing takes place.

erinbrockovich

Just told them to sod off so see what they come back with on Monday. In the meantime I've worked on my Defence which I think is almost done but could I please ask that you guys read through it and give it some criticism?

I have some Q's:
- Section (1)d): Having not received any communication about these parking claims due to them having the wrong address, should I delete this paragraph?

- Could the Claimant sending everything to the wrong address count as non-compliance with pre-court protocol as I've stated in (3)a)?

- I have seen some defences that are enormous and filled with references to practice guides, POFA etc etc but am I right in thinking I should be keeping the DEFENCE readable whilst building up a list of cases and laws to refer to during the hearing?

- Should I name the driver in the Defence?


Once again, thank you!

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DEFENCE

I am XXXXX, defendant in this matter and deny liability for the entirety of the claim.

It is admitted that the Defendant was the registered keeper of the vehicle in question at the time of the alleged incident.


(1). CLAIMANT DID NOT IDENTIFY THE DRIVER

a) The identity of the driver of the vehicle on the date in question has not been ascertained

b) The location in question, a hospital staff car park, grants physical access exclusively to hospital staff in possession of an electronic key. Having never been a member of hospital staff, the Defendant has never had physical access to this car park nor any reason to park there.

c) The Defendant has no liability, as they are the Keeper of the vehicle and the Claimant must rely upon the strict provisions of the Protection of Freedoms Act 2012 in order to hold the defendant responsible for the driver!!!8217;s alleged breach.

d) !!!8216;Keeper liability!!!8217; under Schedule 4 of the Protection of Freedoms Act 2012 (!!!8220;the POFA!!!8221;) is dependent upon full compliance with that Act. It is submitted that the Claimant!!!8217;s Parking Charge Notice and Notice to Keeper failed to comply with the statutory wording and deadlines set by the POFA and, further, that the signs failed to provide !!!8216;adequate notice!!!8217; of any charge. Any non-compliance voids any right to !!!8216;keeper liability!!!8217;.


(2) INSUFFICIENT PARTICULARS OF CLAIM

a) The claimant has not provided enough details in the Particulars of Claim to allow the Defendant to file a full defence;

b) Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.


(3) NON-COMPLIANCE WITH PRE-COURT PROTOCOL

a) There has been no correspondence received by the Defendant prior to the Claim Form being issued on 14th August 2018, owing to the Claimant holding an incorrect address for the Defendant from the start.

b) Due to using a robo-claim automatic claim model this Claimant has, negligently and unreasonably, filed two separate claims about precisely the same matters, same facts, same vehicle, same car park, just different dates. If the court believes the claimant has set out a clear cause of action leading to a potential claim in law against this Defendant, in order to spare court resources and costs and under the doctrine of res judicata, the Defendant respectfully asks that there be only one hearing, to deal with both repeated claims. Thus, the Defendant requests the cases are combined under Civil Procedure Rules 3.1(2)(g) and 3.1(2)(h) either by the CCBC putting the matter before a Judge in Northampton before/at the point of Allocation to track, or once allocated, by Order of the Defendant's local court Judge when issuing Directions.


(3). INADEQUATE SIGNAGE

a) The signage on this site is inadequate to form a contract. There is one small sign with barely legible text mounted at height, making it too difficult to read from a passing vehicle. Anyone attempting to read the sign would need to stand directly in the entrance roadway, to which there is no pedestrian access

b) The sign does not display any terms and conditions for parking on this land but instead declares that !!!8216;the terms and conditions!!!8217; must be met to avoid a !!!8216;Parking Charge.!!!8217; The sign does not define such terms conditions and does not refer the reader to any document in which they are defined.

c) There are no other signs on this land or surrounding area indicating any terms and conditions for parking, including any obligation to display any form of permit, therefore there was no breach of any !!!8216;relevant obligation!!!8217; or !!!8216;relevant contract!!!8217; as required under Schedule 4 of POFA

d) It is therefore submitted that no contract to park existed between the driver and the Claimant, because the signage at **** Hospital carpark was insufficiently clear, judged by the standards laid out by the Supreme Court in ParkingEye Ltd v Beavis [2015].

e) Even if a contract is deemed to have existed between the Defendant and the Claimant, it is submitted that the terms and conditions have not been broken, due to the above lack of clarity of such terms.

f) In the absence of !!!8216;adequate notice!!!8217; 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.

g) The Defendant denies that the driver would have agreed to pay the original demand of £** to agree to the alleged contract, had the terms and conditions of the contract been properly displayed as mentioned above.


(4). NO COPY OF WRITTEN CONTRACT FOR CLAIMANTS TO OPERATE AT THE SITE.

a) The driver had already been granted access to the staff-only car park by obtaining a staff parking pass. The party in control and occupation of the land, namely ***NHS, is in exclusive control of access to the car park as well as granting any !!!8216;permits!!!8217;. Any terms of contract offered for parking on this land are offered exclusively by ***NHS to be accepted by staff. The Claimant, a third party with no relationship to the driver, had no legal locus to amend, alter, add to or limit that contract by imposing new or further contractual terms on the driver.

b) The Claimant is therefore 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. The Defendant has the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no right to bring action regarding this claim.

c) No contractual terms were ever !!!8220;offered!!!8221; to the driver by the Claimant, and any contractual terms that may have been !!!8220;offered!!!8221; were never accepted. No consideration flowed either from the Claimant to the driver, or from the driver to the Claimant. The three elements required for the formation of a contract (offer, acceptance, consideration) are therefore completely absent.


(5). NO EVIDENCE

a) The allegation appears to be that the !!!8220;driver breached the terms of parking on the land!!!8221;. The Claimant has provided no evidence, photographic or otherwise. The allegation of !!!8220;breaching the terms of parking on the land!!!8221; is open to abuse by Claimants as it can be used in all cases regardless of the actual situation, this displays how the claimants claim is generic and unspecific.

b) The Claimant has failed to follow the Code of Practice (CoP) of their Trade Body, regarding clear signage and acting in a professional manner to ensure 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.


(6). CLAIMANT INFLATED COSTS

a) The Claimant has at no time provided an explanation of how the sum has been calculated, nor how the amount has climbed from £** to £***. This appears to be an added cost with no qualification, and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.

b) No figure for additional charges was 'agreed' nor could it have formed part of the alleged 'contract' because no such indemnity costs were quantified on the sign. Terms cannot be bolted on later with figures plucked out of thin air, as if they were incorporated into the small print when they were not.

c) The Defendant has the reasonable belief that the Claimant has not incurred £*** costs to pursue an alleged £** debt

d) The Defendant also disputes that the Claimant has incurred £** solicitor costs.

e) Notwithstanding the Defendant's belief, the costs are in any case not recoverable.


(7). The Defendant would like to point out that this car park can be fully distinguished from the details, facts, and location in the Beavis case. This site does not offer a free parking licence, nor is there any comparable 'legitimate interest' nor complex contractual arrangement to disengage the penalty rule, as ParkingEye did in the unique case heard by the Supreme Court in 2015. The Defendant contends the single sign at *** NHS carpark is illegible with undefined terms hidden in small print, unlike the 'clear and prominent' signs which created a contract Mr Beavis was 'bound to have seen'.

The defendant therefore asks that the court orders the case to be struck out for want of a detailed course of action and/or for the claim as having no prospect of success.

I believe the facts stated in this defence are true.

(Name) (Signature) (Date)

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