County Court defence v Gladstones claim

Peabo

Hi,
As the keeper, I have set-out a response to a Gladstones robo claim as a result of the driver not displaying a ticket in a pay and display car park. I have prepared the following that needs to be returned next Monday 3rd September 2018.

The text in red relates to my mental health at the time where I was very unwell, and is the part I am struggling with where to place in the defence.

Additionally, I would be most grateful for any feedback on my defence, especially any irrelevant defences following caselaw I have not read.


IN THE COUNTY COURT CLAIM NO. XXXXXX

BETWEEN:


GEMINI PARKING SOLUTIONS LONDON LIMITED Claimant
and
XXXXXXXXXXXXXXX Defendant

__________
DEFENCE
__________


Introduction
1. I am XXXXXXX XXXXX, Defendant in this matter. My address for service is XX, XXXXX, XXXX, London XXXXX.
2. This is my statement of truth and my defence.

There are special circumstances around this case relating to my mental health, that as of February 2017 I was unable to work requiring crisis intervention born out of XXXXXX XXX from acute stress and anxiety characterised by panic disorder, leading to my resignation XXXXX months later.

I assert that the Claimant has no cause for action for the following reasons:

3. It is admitted that the Defendant was the authorised registered keeper of the vehicle on XX/0X/2017.

4. It is believed that it will be a matter of common ground that claim relates to a purported debt as the result of the issue of a Parking Charge Notice (PCN) in relation to an alleged breach of the terms and conditions by the driver of the vehicle XXXX XXX when it was parked at Mile end Leisure Centre, 190 Burdett Road, Mile End, London E3 4HL.

5. Further based upon the limited and lacking details contained in the Particulars of Claim and correspondence, it appears to be the Claimant's case that:

i. There was a contract formed by the Defendant and the Claimant on XX/0X/2017.
ii. There was an agreement to pay a sum or parking charge
iii. That there were Terms and Conditions prominently displayed around the site
iv. That in addition to the parking charge there was an agreement to pay additional and unspecified additional sums.
v. The Claimant company fully complied with their obligations within the International Parking Community Code of Practice of which they were member at the time.

6. It is denied that:

i. A contract was formed
ii. There was any agreement to pay a parking charge.
iii. That there were Terms and Conditions prominently displayed around the site which communicated any additional punitive parking charge (effectively a private 'fine') in large lettering, in a clear and concise way, on a par with the tariff signs where the fees were advertised in the largest font. By contrast, the 'parking charge' is positively buried in small print, contrary to Lord Denning's 'Red Hand Rule' and contrary to the requirements of the Consumer Rights Act 2015.

iv. That in addition to the parking charge there was any 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.

v. The claimant company fully complied with their obligations within the International Parking Community Code of Practice of which they were member at the time.

7. It is further denied that the Defendant is liable for the purported debt.

Rebuttal of Claim
8. The Defendant did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.

9. The Defendant denies that they would have agreed to pay the original demand of £60 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.

i. The amount demanded is disproportionate when compared to the level of Penalty Charge Notice issued for similar low-level parking incidents by the local authority which at the time was set at £50 or £25 if paid within 14 days.

10. The signage at Mile End Leisure Centre was inadequate to form a contract with the motorist

i. 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 has been formed with driver to pay the amount demanded by the Claimant, or any additional fee charged if unpaid in 28 days.

ii. 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 £60 parking charge) sufficiently prominent to satisfy Lord Dennings "red hand rule”.

iii. 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.

The signage is a fundamental term to the contract, and the Defendant invites the Court to find that they were not only unclear but also unfair.

If a fundamental term to the contract is deemed to be unfair, then the contract will cease to bind the parties. The Defence invites the Court to take these issues into account in determining the fairness of the term.

11. Should the claimant rely on the case of ParkingEye v Beavis, I wish to point out that there is a test of good faith. Para 205:

“The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.”

12. The Claimant’s representatives, Gladstones, have artificially inflated the value of the Claim from £60 to £160. The Defendant submits the added costs have not actually been incurred by the Claimant and that these figures are regardless of facts.

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

ii. The Claimant has at no time provided an explanation how the sum has been calculated, the conduct that gave rise to it or how the amount soared from £60 to £160. This appears to be an added cost with no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.

iii. 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.

Non-disclosure of reasonable grounds or particulars for bringing a claim:
13. Gemini Parking Solutions London Limited 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.

i. 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.

ii. 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.

14. 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 defence:

‘The driver of the vehicle registration
XXXX XXX incurred the parking
charge(s) on XX/03/2017 for breaching the
terms of parking on the land at Mile End
Leisure Centre – 190 Burdett Road Mile End
London E3 4HL.
The Defendant was driving the Vehicle and/or
is the Keeper of the Vehicle.
AND THE CLAIMANT CLAIMS
£160.00 for Parking Charges / Damages and
indemnity costs if applicable, together with
interest of £XX.XX pursuant to s69 of the
County Courts Act 1984 at 8% pa, continuing
to Judgement at £0.04 per day’

15. The claimant has not provided enough details in the particulars of claim to file a full defence, putting the defendant at an unfair disadvantage. In particular, the full details of the contract which it is alleged was broken have not been provided.

i) The Claimant has disclosed no cause of action to give rise to any debt.
ii) The Claimant has stated that a parking charge was incurred.
iii) 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.
iv) 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.

It just states “parking charge(s)” 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.

16. The Claimant’s solicitors Gladstones, 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.

17. 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.

18. The Defendant denies the claim, 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.

19. The Defendant invites the court to dismiss the claim out of its own motion, 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.

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’.

20 The claimant is put to strict proof of the assertions they have made or may make in a fuller claim.

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

nosferatu1001

I presume youve just copied the "standard" defence? We dont know any circumstances, so how can we comment on irrelvancies?

Before that we need to know
1) was any contact made AT ALL?
2) If so, was the drivers identity revealed? Note, this is a YES or NO question, NO elaboration!
3) What is the DATE OF ISSUE on the claim form?
4) Have you acknowledged the claim ONLINE?
5) Have you read the NEWBIES thread?

Peabo

Thank you for your post.

I used the standard defence and if I can use your list to provide the info you asked:

1) No contract was made (that I am aware of)
2) Driver not identified
3) Issue date on claim is 06 Aug 2018
4) I acknowledged the claim online 09 Aug 2018
5) I have been avidly reading the threads and other on-line info such as Parking Prankster blog's.

By irrelevances, I mean irrelevant defences, such as No loss to PPC, Not the Driver etc.. as posted by Bargepole.

nosferatu1001

1) contact. Not contract. Was any appeal / begging letter etc sent.

Not the driver x if you weren't the driver then this is a defence, as long as they haven't complied with POFA.

Coupon-mad

That's a rambling and old defence. I intend to update the NEWBIES thread to only show shorter ones (or at least less waffly) like the version in post #24 here, by bargepole:

https://forums.moneysavingexpert.com/discussion/5882434/gladstones-claim-form-received

...can you start again and adapt that one, and work out your own ''the facts are'' point (such as, was the driver authorised to park there by the leisure centre, or were the signs unlit in darkness, or what)?

Maybe there was a hidden keypad and no-one drew it to the driver's attention - if so there is an example ParkingEye/Odeon defence in the NEWBIES thread already that covers that situation.

Then show us your draft, and tell us more about the situation.

Peabo

No appeal or begging letter was sent

Cant use 'Not the driver' am afraid....

Peabo

many thanks

KeithP

With a Claim Issue Date of 6th August and the Acknowledgement of Service having been done in a timely manner, you have until 4pm on Monday 10th September 2018 to file your Defence.

Just over a week, but don't leave it to the last minute.


When you are happy with the content, your Defence should be filed via email as described here:

1) Print the Defence.
2) Sign it and date it.
3) Scan the signed document back in and save it as a pdf.
4) Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
5) Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
6) Log into MCOL after a few days to see if the Claim is marked "defended". If not, you should chase the CCBC until it is.
7) Wait for the Directions Questionnaire and come back here.

Peabo

The list is very helpful

Peabo

My story - Background
Although the car park is called the Mile end Leisure Centre, it is also available 24 hours a day, useful for accessing the Park and wooded area that surrounds the centre.

I must have parked where the claimant said as I assume they have pictures for which I have served an SAR to find out where I was parked and if there was a ticket displayed on the dashboard. A possibility as when using the carpark in the past, and since, have always purchased a ticket.

On the day of the event I don’t recall what happened, and in hindsight realise I shouldn’t have been driving due to my distressed state.

The notice to keeper / ticket was issued in March 2017 at the peak of my mental health difficulties. I was struggling with acute stress, anxiety with panic attacks, and signed off work a month earlier, so would not have had the capacity to enter into any kind of contract due to my vulnerability. I have 9 doctors’ certificates, records of crisis intervention, psychiatric assessment and support that is ongoing.

I was signed off work for a total of 11 months from February 2017, during which time I paid for a private company to handle the Gladstones letters when they arrived, regrettably the company took the money and provided no support, leaving me to get on with it.

In August this year I was able to come off my antidepressants and feel it important I now defend myself against what is an unjust system, where the PPC’s and their solicitors use the judicial system to rip uninformed folk off.


I have edited what Coupon-mad sent as follows:


________________________________________
DEFENCE
________________________________________

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The facts are that the vehicle, registration XXXX XXX, of which the Defendant is the registered keeper, was parked on the material date at Mile end Leisure Centre. Additionally, the defendant was mentally unwell, and had been signed off work since 10.02.18 with acute stress, anxiety and at the material time was suffering from panic disorder.

3. The Particulars of Claim state that the Defendant xxxxxxx xxxxxx was the registered keeper and/or the driver of the vehicle xxxx xxx. These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

4. 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.

5. Further and in the alternative, it is denied that the claimant Gemini Parking Solutions London Limited signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable, and well person reading them.

6. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would need to stand directly underneath, and having excellent eyesight. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

7. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

8. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £60. The claim includes an additional £100, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

9. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

I believe the facts contained in this Defence are true.

Name
Signature
Date

Coupon-mad

I was signed off work for a total of 11 months from February 2017, during which time I paid for a private company to handle the Gladstones letters when they arrived, regrettably the company took the money and provided no support, leaving me to get on with it.

Heard that before. Horrendous to hear it, and embarrassing.

Did you not look the company up on TrustPilot first? Look them up now...

DO NOT pay a company for what we do best, for free.

Do not reply if you now get a pm or email from them. Just tell us, be open.