Letter Before Claim - Gladstones [Residential Parking]

otterpanda

Hi all,

So I've been working on a defence using a few I have seen on here relating to residential parking cases. This is later than I would have liked to be posting a first draft on here but life has unfortunately gotten in the way and prevented me from doing so earlier. I have a feeling I have repeated myself slightly in a couple of points (3 and 12) so may need to be a bit more concise. Any feedback would be greatly appreciated.

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 engage in pre-action correspondence in accordance with the pre-action protocol and with the express aim of avoiding contested litigation.

Background
1. It is admitted that the defendant, [NAME&ADDRESS] is the registered keeper of the vehicle registration mark xxxx xxx which is the subject of these proceedings.

2. It is admitted that on DATE, the defendant’s vehicle (registration [CAR REG]) 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.

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

5. It is denied that the driver of the vehicle in question agreed to pay the Parking Charge Notice within 28 days of issue as stated in the Particulars of Claim.

6. 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.

7. 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.

8. 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.

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.

Authority to Park and Primacy of Contract
10. It is denied that the Defendant or lawful users of his/her vehicle were in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the Defendant permitting the above mentioned vehicle to be parked by the current occupier and leaseholder of xxxx, whose tenancy agreement permits the parking of vehicle(s) on land. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms. The lease terms provide the right to park a vehicle in the relevant allocated bay, without the requirement to display a parking permit. A copy of the lease will be provided to the Court.

10. Under the terms of the Defendant's lease, a number of references are made to conditions of parking motor vehicles and the use of an allocated parking space.

10.1 Schedule 2 paragraph 8 “The right (subject to observance of the regulations set out in Schedule 5 as applicable) to use the Allocated Parking Space for the parking of one private motor vehicle only together with the right to pass and repass at all times with a vehicle or on foot (as appropriate) over and along the roads and footpaths on the Estate Maintained Property as shall provide access and egress in respect of the Allocated Parking Space”.

10.2 Schedule 5 paragraph 12 “The allocated Parking Space shall be used only for the parking of one private motor car or one motorcycle in a good and roadworthy condition with a current MOT certificate (where required) and bearing a valid vehicle excise license and shall not be used for the purpose of any trade manufacture or business of any description (other than a black cab) and for the avoidance of doubt no vans commercial vehicles boats caravans or any similar items may be parked in the parking spaces and motor vehicles shall not be parked elsewhere than on parking spaces so designated and no repair or mechanical work may be carried out to any motor vehicle parked on the Allocated Parking Space or elsewhere on the Estate”

10.3 Paragraph 6.3 – Quiet Enjoyment “That the Tenant paying the rent hereby reserved and performing and observing the several covenants conditions and agreements herein contained and on the Tenant’s part to be performed and observed shall and may peaceably and quietly hold and enjoy the Premises during the term hereby granted without any interruption or disturbance from or by the Landlord its successors in title or any person or persons lawfully claiming under or in trust for or through them.

10.4. There are no terms within the lease requiring lessees to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of the same.

11. The parking permit issued by PMS Managing Estates Ltd on xxx was not received by the owner of the property. The permit was identical in appearance to the previous permit and did not state an expiry date. As such, there was no way for the defendant to know that the permit being displayed was not considered valid by the Claimant.

12. The Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial.

13. The Defendant, at all material times, parked in accordance with the terms granted by the lease. The erection of the Claimant's signage, and the purported contractual terms conveyed therein, are incapable of binding the Defendant in any way, and their existence does not constitute a legally valid variation of the terms of the lease. Accordingly, the Defendant denies having breached any contractual terms whether express, implied, or by conduct.

14. 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.

15. 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 which the court should not uphold, even in the event that Judgement for the Claimant is awarded.

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 due to the use of forbidding language which means there was no offer to park and therefore no contract was entered into when the alleged contravention occurred.

17. 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.

18. The Parking Charge Notice issued for this claim was issued following a first Parking Charge Notice which stated the vehicle in question was parked at a different location. An appeal was pending for the first Parking Charge Notice when this was received on the material date.

19. 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 xxxxx 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''.

Coupon-mad

That's good.

You have ''I'' in point #7 which needs to be on the third person ''The Defendant''.

Remove #8 as it's waffle and there is no active SRA complaint.

Make sure the Claimant is shown in the headings at the top as New World Facilities East Essex, or whatever full company name is shown on the N1 form as the Claimant.

Can you explain this to us a bit more please?

18. The Parking Charge Notice issued for this claim was issued following a first Parking Charge Notice which stated the vehicle in question was parked at a different location. An appeal was pending for the first Parking Charge Notice when this was received on the material date.

otterpanda

I will make sure I add the headings and remove #8

Re: #18, three PCN's were issued within a month due to the alleged 'invalid permit'. The first PCN issued stated that the car was parked in the car park of another apartment building. I appealed as per their appeals process on their website/on the back of the PCN. While I was waiting for the response to that appeal, the second PCN was issued which is the one they have issued this claim for. They have since cancelled the first and third PCN following complaints to the property management company but refused to cancel the second one. I have a feeling they will want to say that I would have known the permit was 'expired' due to receiving the first PCN. Together with the almost identical permits and a PCN stating an incorrect location, I don't see how anybody would have been in a position to know that the permit had expired.

I have since moved from the complex where these PCNs were issued. I have emailed Gladstones with an updated address, but they have now come back requesting proof of address within 10 working days. The move has only just taken place so I'm not in a position to provide anything like that. I have used an email address that I've previously used to correspond with them about this and the AOS has this new address on. They've never stated in previous correspondence about 'keeping them updated of any moved' that they would require proof of new address...

Coupon-mad

You can prove the new address if you just moved and started a new tenancy/lease, because you will have letting agent confirmation, or a solicitor's letter you can send, which is OK to divulge as proof of the address and you may as well show that, to stop any 'lost' post.

I have a feeling they will want to say that I would have known the permit was 'expired' due to receiving the first PCN.

Maybe, so I wouldn't add point #18 at this stage at all. Save that for your later witness statement, if the Claimant brings up the previous PCN. Don't tip them off to look.

otterpanda

Coupon-mad wrote: »

You can prove the new address if you just moved and started a new tenancy/lease, because you will have letting agent confirmation, or a solicitor's letter you can send, which is OK to divulge as proof of the address and you may as well show that, to stop any 'lost' post.

I've actually moved in with my partners family as a short-term thing so I don't have anything like that. The address I've given isn't my current residence but is for one of my family members who I know has no intentions of moving.

I will remove point #18 completely. I will amend my draft and repost this evening. Just to confirm, at this point I just submit this written defence, I don't need to supply any photos or copies of the lease - that comes later in the process?

Coupon-mad

Your partner can do a WS saying that you have moved in on xx date and this is your address for service.

I know it's stupid but this is not helping and you need to put it to bed.

The court procedures are confirmed by bargepole in his thread linked in the NEWBIES under 'IMPORTANT - KNOW WHAT HAPPENS WHEN' and it's best you re-read that to content yourself what to do and expect at each time.

And please (my standard plea now, to save us time) no asking us:

(a) what to do about Gladstones letter pushing for the case to be heard on the papers

(b) how to fill out the DQ

(c) whether to tick yes to mediation (bargepole explains why the answer is NO).

But come back in good time once you get your hearing date at your local court, so that you can show us your Witness Statement and evidence and the rubbish version Gladstones fling out at you...

otterpanda

Thanks for pointing me in the direction of those posts. I should have thought to look there first.

I've emailed Gladstones further and they have said they will amend my address for correspondence without proof of ID. I have already provided the new address when doing the AOS so I'm hoping that is all OK moving forward.

I've made the updates to my defence and I'm happy that I haven't missed any of my arguments out. I do have one question before I submit by email - after reading bargepole's post about irrelevant defences is it worth removing the red text in point 2 below?

IN THE COUNTY COURT

CLAIM No: xxxxx

BETWEEN:

NEW WORLD FACILITIES EAST ESSEX LTD (Claimant)

-and-

x (Defendant)

________________________________________
DEFENCE
________________________________________
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 engage in pre-action correspondence in accordance with the pre-action protocol and with the express aim of avoiding contested litigation.

Background
1. It is admitted that the defendant, [NAME&ADDRESS] is the registered keeper of the vehicle registration mark xxxx xxx which is the subject of these proceedings.

2. It is admitted that on DATE, the defendant’s vehicle (registration [CAR REG]) 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.

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

5. It is denied that the driver of the vehicle in question agreed to pay the Parking Charge Notice within 28 days of issue as stated in the Particulars of Claim.

6. 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.

7. 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 the Defendant has had to cover all eventualities in defending a 'cut & paste' claim. This has caused significant distress and has denied them a fair chance to defend this claim in an informed way.

8. 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.

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.

Authority to Park and Primacy of Contract
10. It is denied that the Defendant or lawful users of his/her vehicle were in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the Defendant permitting the above mentioned vehicle to be parked by the current occupier and leaseholder of xxxx, whose tenancy agreement permits the parking of vehicle(s) on land. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms. The lease terms provide the right to park a vehicle in the relevant allocated bay, without the requirement to display a parking permit. A copy of the lease will be provided to the Court.

10. Under the terms of the Defendant's lease, a number of references are made to conditions of parking motor vehicles and the use of an allocated parking space.

10.1 Schedule 2 paragraph 8 “The right (subject to observance of the regulations set out in Schedule 5 as applicable) to use the Allocated Parking Space for the parking of one private motor vehicle only together with the right to pass and repass at all times with a vehicle or on foot (as appropriate) over and along the roads and footpaths on the Estate Maintained Property as shall provide access and egress in respect of the Allocated Parking Space”.

10.2 Schedule 5 paragraph 12 “The allocated Parking Space shall be used only for the parking of one private motor car or one motorcycle in a good and roadworthy condition with a current MOT certificate (where required) and bearing a valid vehicle excise license and shall not be used for the purpose of any trade manufacture or business of any description (other than a black cab) and for the avoidance of doubt no vans commercial vehicles boats caravans or any similar items may be parked in the parking spaces and motor vehicles shall not be parked elsewhere than on parking spaces so designated and no repair or mechanical work may be carried out to any motor vehicle parked on the Allocated Parking Space or elsewhere on the Estate”

10.3 Paragraph 6.3 – Quiet Enjoyment “That the Tenant paying the rent hereby reserved and performing and observing the several covenants conditions and agreements herein contained and on the Tenant’s part to be performed and observed shall and may peaceably and quietly hold and enjoy the Premises during the term hereby granted without any interruption or disturbance from or by the Landlord its successors in title or any person or persons lawfully claiming under or in trust for or through them.

10.4. There are no terms within the lease requiring lessees to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same.

11. The Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in!Jopson v Homeguard Services Ltd!(2016) and of Sir Christopher Slade in!K-Sultana Saeed v Plustrade Ltd![2001] EWCA Civ 2011. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial.

12. The Defendant, at all material times, parked in accordance with the terms granted by the lease. The erection of the Claimant's signage, and the purported contractual terms conveyed therein, are incapable of binding the Defendant in any way, and their existence does not constitute a legally valid variation of the terms of the lease. Accordingly, the Defendant denies having breached any contractual terms whether express, implied, or by conduct.

13. 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.

14. 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 which the court should not uphold, even in the event that Judgement for the Claimant is awarded.

15. It is denied that the signs used by the claimant can have created a fair or transparent contract with a driver in any event due to the use of forbidding language which means there was no offer to park and therefore no contract was entered into when the alleged contravention occurred.

16. 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.

17. 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 xxxxx 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''.

I believe that the facts in this statement are true

otterpanda

Coupon-mad

I do have one question before I submit by email - after reading bargepole's post about irrelevant defences is it worth removing the red text in point 2 below?

Yes, because Gs will have engaged by way of a LBC.

otterpanda

Perfect thank you. And one last question - do I need to establish in my defence that ParkingEye vs Beavis does not apply in this case due to being a residential parking matter?

Coupon-mad

Yes, I would. Search the forum to find defences that say that. Try these keywords:

defence residential Beavis distinguished true