Gladstones LBC received for residential parking spot (New World Facilities East Essex LTD)

BlueNine

So i've received another response from Gladstones, refreshing my 30 DAYS TO RESPOND OR ELSE and answering the questions in my most recent email response - I'll post my questions and the answer they gave under it as I feel they're really unsatisfactory:

1. An explanation of the cause of action

On 29 September 2017, vehicle with registration number XXXX XXX, registered to you was parked on (the site), and received a Parking Charge notice (PCN).



There are numerous contractual signs around the site (please see the site plan in the bundle). Upon entering private land, the driver enters into a unilateral contract which binds them to the Terms and Conditions (TC) of the site, and enters by performance.



One of the TC states;



"NO PARKING AT ANY TIME

FAILURE TO COMPLY WITH THE ABOVE T&Cs MAY RESULT IN YOUR VEHICLE RECEIVING A PARKING CHARGE NOTICE OF £100"





Based on the information before us, (please see the photographic evidence), which shows two of the contractual signs on the end wall, prohibiting parking on the relevant site.

Also worth noting that the Terms and Conditions signage they have up only mentions commercial vehicles and nothing about showing permits etc...and the "NO PARKING AT ANY TIME" sign is actually in front of the bin area, and also says "access required 24/7".

2. Whether I am being pursued as driver or keeper of the vehicle

You are being pursued as the keeper of the vehicle because a driver has not been named, you were provided the opportunity at this stage to provide the full name and serviceable address of the driver in the event you knew this information. (please refer to the bundle.) Under the protection of Freedom Act 2012 (POFA) Schedule 4, our Client is able to purse you for the outstanding debt.

3. Are you relying on the provisions of Schedule 4 of POFA 2012

Please see point 2

4. The details of the claim – where it is claimed the vehicle was parked, how long for and how the monies being claimed arose and have been calculated.

Please see the bundle, and the photographic evidence.

The bundle just contains the debt collectors letters, poor quality pictures of the signs, a mocked-up diagram of where they are in the car park and the photos of the car datestamped on the day/time in question.

5. Is the claim for a contractual breach? If so, what is the date of the agreements and the names of the parties to it? Please provide me a copy of such contract (PAP 5.2(a(iii)) & 5.2(a(iv)))

Yes the claim has arisen from a contractual breach, and the contractual sign (agreement) is within the bundle. The date of the agreement 29 September 2017, and the parties, new World Facilities East Essex LTD and yourself.

6. Is the claim of trespass? If so, provide details

No, see point 5

7. A copy of the contract with the landowner under which you assert authority to bring the claim as required by IPC code of practice Section B clause 1.1

Our Client does not need to show that it owns the land, only that it had the authority to manage the land in accordance with the wishes of the landowner. We confirm that our Client had such authority, but given that the contractual arrangement between our Client and their Client is commercially sensitive, it will only be disclosed should it be necessary for a Court to view it.

8. Details of the signs displayed (size of sign, size of font, height at which they are displayed)

The details of the signs are irrelevant. However all signs have been audited and approved by our Clients Accredited Trade Association, the International Parking Community (IPC).

I find this one particularly amusing as (as noticed earlier in the thread) the company number on the signage is incorrect.

9. Details of the original charge (PAP 3.1(a(i)))

Please see the letter dated 03 October 2017 in the bundle.

The letter is the original one from PCS, with the salient part being "r. A Parking Charge has been issued because the vehicle was parked in a manner where the driver attracted a parking charge as brought to the driver's attention via signage and agreed to by the driver when the vehicle was parked on land managed by our client New World Facilities East Essex."

10. Details of any interest (PAP 3.1(a(ii))) and administrative or other charges added. (PAP 5.2(b))

Please see point 4.

11. A copy of the information sheet and reply form (PAP 5.2(c)) and where it can be sent (PAP 5.2 (a(viii)))

Attached on this email

12. Proof that the timing of any camera or timer used was synchronised with all other cameras and/or systems & machines.

Irrelevant to this claim

I don't see how...they still only have evidence that the vehicle was there at one moment in time without an occupant - no proof that it was parked for any length of time

13. Any other evidence that constitutes part of the PCN.

See the bundle.

BlueNine

CLAIM RECEIVED

So looks like they finally went and filed the claim against me, they've upped the amount payable and slapped a nice extra on for court & solicitor fees!


I've done the AOS and am planning my defence around the following points:


1. Poor signage - incorrect company no on all signage around the premises, signage which states both "NO PARKING AT ANY TIME" and T&Cs about displaying a permit. (feel the second part is weak, but first part might be ok)



2. Landlords primacy of contract


3. Provided no proof that there is authorisation from the landlord to issue PCNs (again I feel this is weak)


4. Double recovery - POFA Schedule 4 s4(5) max sum recovered is £100 and they've added £60 "contractual costs". Signage also states Charge of £100



5. No Cause of Action - particulars of claim refer to the defendant as driver/keeper of the vehicle.


6. There is no commercial value to be protected - residents are allowed to park for free and permits are given to residents free of charge. There was no loss of potential income due to the vehicle being parked.



My questions are:


Is it normal for the particulars of claim to be so brief? It's literally 2 paragraphs and could just about fit on the back of a cigarette packet.


In an earlier correspondence Gladstones said

"Our Client does not need to show that it owns the land, only that it had the authority to manage the land in accordance with the wishes of the landowner. We confirm that our Client had such authority, but given that the contractual arrangement between our Client and their Client is commercially sensitive, it will only be disclosed should it be necessary for a Court to view it."
is this likely to shoot my Primacy of Contract defence out of the water? - especially as there's no mention of the parking space (either requiring a permit, or being allowed to park there) in my tenancy agreement?


I stupidly didn't send a SAR, but instead emailed back and forth to get the evidence/information - does that mean they could still be holding something back? is it too late to send a SAR now?




Thanks in advance!

Coupon-mad

Yes it is normal to have sparse POC from Gladstones in an MCOL claim, but you will see from bargepole's example residential defence in the NEWBIES thread, that he deals with that and all you other planned points are there too. Make sure no landowner authority is included (it only features in one out of the two example concise defences by bargepole, but IMHO you need it in).

NO PARKING AT ANY TIME

You probably realise but this prohibition means there was no licence to park offered = no contract then! Search the forum for these keywords:

defence PCM v Bull true

...and pick up on a few more defence points to add to your draft based on bargepole's. You have prohibitive signs with the £100 in TINY small print at the bottom of a sign, and no consideration actually offered ('no parking' is a ban, and offers nothing of value to a consumer).

And you have that the company number on the signs is a completely different firm.

Coupon-mad

BlueNine wrote: »

I stupidly didn't send a SAR, but instead emailed back and forth to get the evidence/information - does that mean they could still be holding something back? is it too late to send a SAR now?

Never too late to email or post (if you have to) a SAR to a PPC.

Your worries about the tenancy agreement are IMHO baseless, as we already pointed out that the lease has the parking space in the Demise, and the lessee has passed his rights to you, his tenant:

"Demise - the landlord demised the flat and the car parking space to the lessee with full title guarantee, together with the rights specified in schedule 2 but excepting and reserving to the landlord the rights specified in schedule 3, to hold to the lessee for the term subject to all rights, easements, privileges, restrictions, covenants and stipulations of whatever nature affecting the flat and the car parking space including any matters contained or referred to in schedule 9, yielding and laying to the landlord without deduction or set-off"

and this is good in the lease as well:

Schedule 6-1 Quiet enjoyment - "the landlord covenants with the lessee peaceably and quietly to hold and enjoy the flat and the car parking space without any interruption or disturbance from or by the landlord or any person claiming under or in trust for him"

6-2.3: "the landlord may add to, withhold or vary the services if, acting reasonably...so long as the lessees enjoyment of the flat and the car parking space is not materially impaired, or if he is required to do so by competent authority"

In your case, if you were the driver, I would NOT hide behind being the keeper.

KeithP

BlueNine wrote: »

CLAIM RECEIVED

So looks like they finally went and filed the claim against me...

What is the Issue Date on your Claim Form?

Did it come from the County Court Business Centre in Northampton, or from somewhere else?

BlueNine

Sorry for the late replies...this has all come between degree assignments being due and changing job so I'm just trying to juggle everything at the moment!


@KeithP - The issue date on the claim for is 08 May 2019 and it came from the County Court Business Centre in Northampton. Which I believe gives me until 10th June to submit a defence (not that I'm planning to leave it that long)

I've put together a draft defence - I'm definitely going to trim it down to make it more concise as I've mixed/matched from defences I've found around the site which I feel apply to my case. But here's the first draft at least:

IN THE COUNTY COURT

[FONT=&quot]
[/FONT]

CLAIM No: x

[FONT=&quot]
[/FONT] BETWEEN:

[FONT=&quot]
[/FONT]

NEW WORLD FACILITIES EAST ESSEX LTD (Claimant)

-and-

x (Defendant)

________________________________________
DEFENCE
________________________________________

[FONT=&quot]
[/FONT] 1. It is admitted that the defendant, [NAME&ADDRESS] is the registered keeper of the vehicle.

2. The facts are that the vehicle, registration [CAR REG], of which the Defendant is the registered keeper, was parked on the material date in a marked bay allocated to [ADDRESS].

3. The vehicle was at all times when at the residence, properly parked and it is believed it is common ground that it was neither causing an obstruction nor was it unauthorised, being owned by a permitted resident.

3. It is denied that any PCN, contractual costs or statutory interest is owed and any debt is denied in its entirety.

4. The Particulars of Claim state that the claim is being made from the Defendant as the driver/keeper of the vehicle. 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.

5. This is a completely unsubstantiated and inflated three-figure sum, vaguely and incoherently adduced by the claimant's solicitors.The particulars are not clear and concise, so I have had to cover all eventualities in defending a 'cut & paste' claim. This has caused significant distress and has denied me a fair chance to defend this claim in an informed way.

6. This claim merely states: ''parked in breach of the terms of parking stipulated on the signage'' which does not give any indication of on what basis the claim is brought. For example, whether this charge is founded upon one of the signs stating “No parking at any time” or any of the terms and conditions stated on other signage such as displaying “a valid permit” or not “parking fully within a marked bay”. Nor is there any clear time or coherent grounds for any lawful claim particularised, nor were any details provided to evidence any contract created nor any copy of this contract, nor explanation for the vague description 'parking charges' or ‘contractual costs'.

7. The Claimant’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.

8. 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.

9. It is denied that the Claimant has authority to bring this claim. The proper Claimant (if any debt exists, which is denied) would be the landowner.

10. The lease states “Demise – the landlord demised the flat and the car parking space to the lessee with full title guarantee” as well as the right to “Quiet enjoyment”, and that “the landlord may add to, withhold or vary the services…so long as the lessees enjoyment of the flat and the car parking space is not materially impaired”. As such, the claimant cannot overrule the rights of way and easements of the lease or introduce any new terms or charges subsequent to the lease which would impair the enjoyment of the car parking space which was demised to the Defendant on becoming a tenant.

11. In the event that the court finds a contract based on signage can supersede the terms already agreed in the lease, I put the claimant to strict proof of a chain of contracts leading from the landowner to this claimant which enable these charges to be pursued in court by this contractor, for these alleged contravention(s), whatever they may be.

12. 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 £100. The claim includes an additional £60, for which no calculation or explanation is given other than ‘contractual costs’, and which appears to be an attempt at double recovery.

13. The alleged debt as described in the claim is an unenforceable penalty, being just the sort of unconscionable charge exposed as offending against the penalty rule, in ParkingEye Ltd v Beavis.

14. It is denied that there was any 'relevant obligation' or 'relevant contract' relating to any single parking event.

15. 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 be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

16. It is denied that the signs used by the claimant can have created a fair or transparent contract with a driver in any event.

17. In the event that the court finds the signs used by the claimant have created a fair and transparent contract, I put it that any contract would be non-binding due to a mistake made on the signage, namely that the company number given for the claimant of ‘8307526’ is for a different company.

18. It is not believed that the Claimant has incurred additional costs - be it legal or debt collector costs - and they are put to strict proof that they have actually incurred and can lawfully add extra sums and that those sums formed part of the permit/parking contract formed with the defendant in the first instance.

19. 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.

20. 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. I request the court strike out this claim F8GF71Z9 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.

Name
Signature
Date

KeithP

BlueNine wrote: »

The issue date on the claim for is 08 May 2019 and it came from the County Court Business Centre in Northampton. Which I believe gives me until 10th June to submit a defence (not that I'm planning to leave it that long).

Your target date is right.

With a Claim Issue Date of 8th May, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Monday 10th June 2019 to file your Defence.

That's over two weeks away. Loads of time to produce a good Defence, but don't leave it to the last minute.


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

Print your Defence.
1. Sign it and date it.
   
2. Scan the signed document back in and save it as a pdf.
   
3. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
   
4. 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'.
   
5. Log into MCOL after a few days to see if the Claim is marked "defence received". If not chase the CCBC until it is.
   
6. Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire, they are just trying to keep you under pressure.
   
7. Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.

Coupon-mad

8, 11, 17 and 20 have ''I'' and/or ''me'' and this does too:

so I have had to cover all eventualities in defending a 'cut & paste' claim. This has caused significant distress and has denied me

Change those to 'The Defendant'.

Good defence, and the terms in that tenancy agreement sound key to your win!

BlueNine

Done! - all I's and me's are now "the Defendant"

Good defence, and the terms in that tenancy agreement sound key to your win!

Well all those terms are in the landlords lease, and I'm hoping it's all demised to me as a tenant - get a feeling they're going to pull out a contract saying they can do what they're doing with my landlords permission at some point though.


Also I just want to check that I'm just defending against the particulars of claim right? Because there has been some communication between me and Gladstones before this about why they're coming for me (no permit), but they didn't mention that in the claim, just a generic "breach of terms"

Coupon-mad

Also I just want to check that I'm just defending against the particulars of claim right? Because there has been some communication between me and Gladstones before this about why they're coming for me (no permit), but they didn't mention that in the claim, just a generic "breach of terms"

Yes, because the POC should be clear as to the breach/cause of action.