Letter before claim from Gladstones Solicitors

Umkomaas

Johnersh said:

Ahem. Not marginally different, the same: (You just spelt Johnersh wrong)! 

Yep - I had a slight issue with the new forum and the fact that they'd only issue new passwords to an email account I had to close once it was hacked. A policy they said was to ensure the protection of my personal data. 

I did begin arguing the breach of GDPR, but frankly ran out of time/patience with my other work commitments. A shame really, given the goodwill built up. 

 I was moved to come back to the site today after legal twitter began circulating *that* county court judgment....So, relaunched, same username, same user icon.

Happy to take it offline if you wanted to liaise further (this isn't my thread, after all)! 

Thank you, welcome back, it will be great to have you posting again. It was just the new low post count against your username that set hares running in my mind. 

The new forum can be a bit of a nightmare. I got myself 'banned' because I logged in from a South Africa overnight accommodation stay IP address, then had the devil's own job to prove I wasn't a spammer - seemingly my past record and number of posts didn't cut any immediate ice. Anyway, I'm back, you're back - onwards and upwards. 🤝

Castle

Johnersh said:

Apologies if this has been covered before, but I just don't get this part of the claimant's witness evidence:

On the day vehicle registration number QQ was observed to be parked and unattended at the Site. The photographic evidence shows that the vehicle was parked  and unattended when the Defendant exited the Site and therefore no parking allowed. The vehicle is therefore parked in clear contravention of the terms and conditions applicable at the Site.

I)  As this is not a warden controlled site a PCN was not affixed to the screen at the time.

Maybe it was a resident/"nosey neighbour" who wanted to earn a few quid for taking a photograph?

Johnersh

Castle said

Maybe it was a resident/"nosey neighbour" who wanted to earn a few quid for taking a photograph?

Perhaps but it's that individual who is witness to the op leaving, not the generic corporate statement. How can a geezer in an office somewhere actually give evidence that contractual terms were breached if no-one saw or is prepared to say that they were?

If there was a ticket and parking attendant, then that only serves to evidence the unreliable generic nature of the statement. 

Also do note that from April the new format to the statement of truth must be complied with. See link below. 
hxxps://parissmith.co.uk/blog/guidance-signing-statement-of-truth/

raddoc

Johnersh said:

Apologies if this has been covered before, but I just don't get this part of the claimant's witness evidence:

On the day vehicle registration number QQ was observed to be parked and unattended at the Site. The photographic evidence shows that the vehicle was parked  and unattended when the Defendant exited the Site and therefore no parking allowed. The vehicle is therefore parked in clear contravention of the terms and conditions applicable at the Site.

I)  As this is not a warden controlled site a PCN was not affixed to the screen at the time.

1. How can a photo of a car show where the driver is?

2. If the driver was observed to leave, who observed it? The claimant gives no positive evidence from that individual - an issue which appears central to their case. 

3. They do say there is no parking attendant, so arguably no-one was there to observe it. (there may be an issue with this point if you have conceded it) 

Gladstones emailed me the claimant witness statement bundle back in December which contains a series decent quality still colour photos showing the driver step out of the car and walk out of the car park to the shops which ES Parking do not regard as part of the retail park. It does not look like CCTV footage to me but I am not an expert in this. However in their bundle, there is a page saying "ic4 female wearing green top white pants and red scarf left site at 12.40" and the entry is time and dated 3 mins 55 seconds later and has a name of an individual (presumably the warden) next to it. 
1 hour later Gladstones re-emailed me the same bundle and this page had "warden report" at the top of it but the name of the individual blacked out with felt tip. I intend to argue in the hearing that they have tampered with their own evidence and that this is a warden controlled car park and that VC v Ibbotson (my exhibit SR018) is applicable here and ES Enforcement behaviour was unreasonable.

nosferatu1001

Absolutely - they've claimed a warden was there, then there isn't one. At bet it makes their evidence unreliable. At worst they're misleading the court 

Johnersh

That is extraordinary. A parking attendant checks tickets and where cars have parked.

What C seeks to do is to introduce photographic surveillance evidence of the driver. On what basis were they even undertaking that? Do the signs indicate that such monitoring is taking place?

The photos may show someone appear to walk out, but they won't show whether the driver actually did, whether she turned around etc. The photos presumably also show there are no signs at the perimeter to show any boundary. 

I would suggest the op looks at the Association of British Insurers guidelines for the use of surveillance operatives. There are useful requirements like the need to maintain a contemporaneous log and to disclose it prior to court proceedings. This is their evidence, not that of the person who has prepared the statement that has been served. 

If they are stills from cctv, the position is of course different. 

beamerguy

However in their bundle, there is a page saying "ic4 female wearing green top white pants and red scarf left site at 12.40" and the entry is time and dated 3 mins 55 seconds later and has a name of an individual (presumably the warden) next to it.

Am I missing something here ?   Do they have an actual picture of this lady actually leaving the car and then leaving the site ???? Do they have proof of this  and if it was a warden, is he a predator taking pictures of women in white pants ????
Could this warden actually be Patrick Troy EX BPA CEO who was caught taking upskirt pictures at a London train station

D_P_Dance

Was his camera not confiscated?

raddoc

beamerguy said:

Am I missing something here ?   Do they have an actual picture of this lady actually leaving the car and then leaving the site ???? Do they have proof of this  and if it was a warden, is he a predator taking pictures of women in white pants ????

Yes a set of stills of her getting out of car and walking out of the car park to the shops.
Their WS has a bullet point starting "as this is not a warden controlled site a PCN was not affixed to the screen at the time" but there is separately in their bundle is a "Warden's report" containing the statement about IC4 female leaving site. Re-reading their WS, there is no reference in any para to their exhibits.

raddoc

Coupon-mad said:

I am very relieved to hear you already filed & served the WS and evidence and the Southampton Approved Judgment but as the Telephone Hearings thread tells you, some courts are not going to have ANY access to the case file wcih means the whole lot, and the defence, has to be re-sent electronically to some courts. 
Bargepole posted a list of courts (and what they are each able to access) in post #10 of that thread, and I posted a draft email and Draft Order for people in your position to use.
Examples of where this tactic has worked already to get discontinuances, are threads by @gbbe and @Staatsgrenze so read what they used at this very stage to avoid any hearing at all and how to explain why a hearing on the papers is not acceptable.
If you are a NHS keyworker or have young children at home who need constant supervision then read the thread by @Littlewadie where I wrote a response for her to send about why she doesn't want a remote hearing or for the case to proceed without her voice being heard.  

Be proactive and robust.  All of this can be adapted just by reading the Telephone Hearings thread then read the examples shown in the 3 I flagged up.  Show us your drafts and tell us whether yours court is one that already has the defence/previously filed papers 'case file' (as per bargepole's list he posted) because you may have to append a shedload of stuff, if not.

And some courts are ordering Gladstones to collate the bundles and to arrange conference calls.  Read it all, as that scenario would mean you have to send the lot to Gladstones, who (we are pleased to report) are not coping with that burden very well.

I have only received form N159 today by email from Gladstones indicating the hearing won't be going ahead. Haven't actually had any communication from the court yet - may be delayed in the post I guess.

Doesn't matter, but are you SURE Gs are not just trying to 'suggest' this 'might' be the case, and in fact the court has NOT ordered it? 

Either way, your response is the same:

- covering email
- draft order (Word doc so the Judge can use/edit it and strike the case out!)
- summary costs assessment (signed) PDF
- WS and defence if the court is one where the Judge won't have the case file
- your entire bundle you already submitted, but all by email now. 
Compressed PDF.

How is this for covering email and draft order (attached below) ?
Am I allowed to include exhibit transcript of the Approved Judgment in Britannia Parking Ltd v Crosby and Anor (11/11/2019) which was not in my WS and so is it new evidence not permissible without judge approval ?

Dear District Judge xxxxxxx, 

Re: Claim number xxxxxxxx
Important Preliminary matter and Witness statement and evidence from the Defendant
(served by email due to COVID_19 measures)

I am the Defendant.  The appended witness statement and evidence bundle, as well as this covering email, has also been sent to the Claimant's litigation team.  In the event of directions for a future hearing in person at this court, hard copies will be provided when I have access to a printer.

Preliminary matter
I am aware that there is more than sufficient information available in this case to activate the court's duty, as set out in s71 of the Consumer Rights Act 2015 ('the CRA').  

The CRA imposes a duty upon courts in all consumer contract cases, to apply the test of fairness in s71 of the CRA and I draw specific attention to more than one breach of CRA Schedule 2, as explained in my witness statement.   Due to this, and to remove an unnecessary burden on the court, I invite the Judge who may at this stage be considering an Order for a Telephone Hearing or adjournment, to instead exercise the court's case management powers pursuant to CPR 3.4, to strike this claim out without a hearing in any format.   

This has already occurred in multiple parking claims in recent months, with duplicate reasons used by Judges sitting at courts as widely spread as Southampton, Warwick, IOW, Caernarfon, Luton and Skipton.  Failed applications with hearings attended by two barristers acting on behalf of parking firms have taken place at Skipton (February 2020, before District Judge Faye Wright) as well as at Southampton, before District Judge Grand.  I refer to my exhibit transcript of the Approved Judgment in Britannia Parking Ltd v Crosby and Anor (11/11/2019) which pays regard to the Supreme Court binding case law and the duty on the courts to invoke s71 of the CRA.

This parking charge claim has been deliberately exaggerated to reach a global sum of £160 despite the Claimant and their legal advisers being well aware by now, that such a sum is unrecoverable in parking charge cases because it is an attempt to go behind case law and statute law, and taints the entire claim.  As such, the Defendant draws attention to the Claimant's continued 'forum shopping' and their clear intention of finding victims who will pay in full without defending, or a less than competent court to allow them to claim a sum far higher than they can lawfully recover. 

Further, there has been no serious attempt to comply with the CPRs and the Claimant's incoherent, stylised particulars do not constitute compliance.  These cases unnecessarily delay and clutter court listings and represent a contemptuous and significant abuse of process.

To assist with the efficient disposal of the case, I attach an editable Draft Order.

For the avoidance of doubt, should the court decide against striking the claim out, I am not in agreement with the case being heard 'on the papers' because:

(a)  this claim is following the usual oppressive parking robo-claim path, with a very sparse statement of case, later followed by a case made by way of ambush, with a tendency to produce prolix witness statements, right at the death.  This places Defendants at a huge disadvantage, given the first time they see any 'evidence' is at completion of the bundle, and their only chance to point out that large parts of the evidence are completely irrelevant, is at trial.  

(b) the case of JD Wetherspoon Plc v Harris and others [2013] EWHC 1088 (Ch.) is an example of the Court using its power to limit the evidence by striking out large parts of a witness statement for abuse, because it was written by a person with no personal knowledge who recited facts based on the documents he had read.  Similarly, parking charge witness statements contain template legal argument, misleading reliance upon ParkingEye v Beavis and even more irrelevant case law, and are more designed to stand in terrorem of defendants  than to assist the Court in determining the substantive issues.  

(c) Such third party 'witness statements' lack probative value and are very often created by freelance legal writers and 'signed' (or facsimile 'signed') by a third party who is not a witness in the true sense, and who relies upon misleading and irrelevant extracts of case law and undated, old or 'stock' images of signs, some of which are often not even present at the location in question.  

(d) In my case, I strongly believe that I must be afforded a fair opportunity to rebut the inaccuracies in the 'evidence' re the car park location/event and highlight the  failure to demonstrate a prominent/legible contract, or liability, or legitimate interest.  I am the only local witness, in the true sense, and I believe that, if the claim is to be heard, a decision cannot be fairly made without a hearing in my presence.  

 

If the claim is not struck out, I would prefer a hearing in person once the pandemic lockdown is lifted.  However, I understand that to formally ask for an adjournment would be at a disproportionate cost which is not an option for me, so I await the court's Order and Directions.

I agree it must be stayed until a face to face hearing can take place, but only if the claim is not discontinued first, by the Claimant due to the facts (my costs on the claim being awarded against the claimant) or alternatively, struck out by the court, when they firstly consider the court's duty in s71 of the CRA 2015. The Claimant and I cannot reach agreement.  The claim has no legal merit. 

I do not agree to a hearing 'on the papers' because I need a fair opportunity to be heard if this case continues. My husband, acting as lay representative for me in this case, is an NHS medical personnel (a copy of his NHS ID card is attached) and key worker involved in the fight against the COVID-19 pandemic and not readily available during court hours to participate in this case. Furthermore, I have 2 young children at home who, given the current lockdown and prolonged school closure, are difficult to keep entertained at this time and cannot be left unsupervised.  There is no space or chance to apply full concentration for a telephone hearing for an hour where both my husband and I would be needed (husband as a witness) until the pandemic is over.

Due to this, and to remove an unnecessary burden on the court, instead I invite the Judge to strike this claim out now, due to the Claimant's abuse of process, and to grant my reserved full costs, as filed and served in my costs assessment prior to the May abandoned hearing.  In the alternative, the Claimant is invited to immediately discontinue this meritless claim. I hope to hear Directions that the claim is struck out for abuse of process and unfair terms, or that the Claimant has filed a Notice of Discontinuance. 

Yours sincerely,