Gladstone Solicitors Letter Before Claim (please help)

Zippy7

Bump

Anyone? Really don't know how to proceed now

KeithP

So you've had a Letter of Claim and responded to it.

You have now come to the easy bit...

Wait patiently for a Claim Form to drop through your letter-box.


While waiting you might want to re-read post #2 of the NEWBIES thread to find out what to do with it when it arrives.

Zippy7

Ok guys so claim form is here. Along with the evidence provided in the response to my SAR, I'm feeling a bit bang to rights. Obviously they are now demanding more and I'm feeling really stressed by the whole thing.
Having read the second message on newbies and being prepared to draft up a defence, it's dawned on me I may have no valid defence, especially having read through all 3 pages of the invalid defences link.
I am kicking myself at missing the signage but I still had no idea about this PCN as it's an area where kids like to mess about with cars and some scrote must have taken it off my windscreen (in the past I've seen McDonalds boxes and all kinds left on bonnets). That is what I intend to write as my grounds for appeal on the claim form, along with the fact I never knew about the PCN until a year after due to changing address...
Correct me if I'm misunderstanding but is the PCN only valid if I am aware of it within x amount of days?

Any help at all on how best to proceed?

KeithP

Zippy7 wrote: »

...it's dawned on me I may have no valid defence...
I am kicking myself at missing the signage...

But surely that fact that you missed the signs, clearly meaning they weren't prominent, is one very strong Defence point.

You need to be reading winning Defences.


What is the Issue Date on your Claim Form?

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

Zippy7

Having rechecked, the ONE sign is located behind my car which is facing the other way. I would have got out and walked away with my back to it if that helps.

Anyway, 12th March and yes, CC in Northampton

KeithP

Zippy7 wrote: »

Having rechecked, the ONE sign is located behind my car which is facing the other way. I would have got out and walked away with my back to it if that helps.

Of course it does. That is a very significant point.

Zippy7 wrote: »

Anyway, 12th March and yes, CC in Northampton

With a Claim Issue Date of 12th March, you have until Monday 1st April to do the Acknowledgement of Service, but there is nothing to be gained by delaying it. To do the AoS, follow the guidance offered in a Dropbox link from post #2 of the NEWBIES FAQ sticky thread. About ten minutes work - no thinking required.

Having done the AoS, you have until 4pm on Monday 15th April 2019 to file your Defence.

That's four weeks away. Loads of time to produce a perfect Defence, but don't leave it to the very 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 "defended". If not chase the CCBC until it is.
   
6. Do not be surprised to receive a copy of the Claimant's Directions Questionnaire, they are just trying to put 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.

Zippy7

Ok Keith, here's a first draft. I'm not the best writer so any help gratefully received

In The County Court
Claim No: XXXXXXX
Between
Gemini Parking Solutions (Claimant)

-and-

XXXXXXX (Defendant)

____________
DEFENCE
____________

1. The Defendant was the registered keeper and driver of vehicle registration number XXXXXXX on the material date. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. Photos obtained following a subject access request to the claimant show an insufficient amount of signage pertaining to the restrictions and regulations of parking in the area of XXXXXXX. The evidence clearly shows a small sign relating to parking terms located high up behind the location of the vehicle and was therefore not visible to the Defendant.

3. The area in question is a residential street where such restrictions would not usually be expected - the Defendant was, at the time of the alleged offence, a resident of the area and a permit holder and as such would have expected any parking to have been covered by his residents permit.

4. The defendant was not in receipt of the original PCN. No such notice was apparent on the vehicle at the time of the alleged offence, however the Defendant recognises the photographic evidence of such and can only suggest it was removed. Subsequently to this the Claimant was directing letters to the Defendant's previous address in XXXXXX and as such were not accessible to the Defendant. The first notice the Defendant received with regards this PCN was a letter to his residence in XXXXX, on 24 November 2018.

4. Accordingly, it is denied that the Defendant breached any of the Claimant's purported contractual terms, whether express, implied, or by conduct. Furthermore is it disputed that the claim that the defendant agreed to and subsequently failed to pay the PCN as claimed.

5. The Claimant is put to strict 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, unless specifically authorised by the principal. The Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name, and that they have no right to bring any action regarding this claim.

6. The Defendant has the reasonable belief that the Claimant has not incurred £60 costs to pursue an alleged £100 debt. The Protection of Freedoms Act 2012, in Schedule 4, Para 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.

7. In summary, the Claimant's particulars disclose no legal basis for the sum claimed, and the Court is invited to dismiss the claim in its entirety.

Statement of Truth:

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

Name
Signature
Date


I had a chat with my partner who thinks she recalls the day in question and she wasn't aware of any such signage too - is it worth getting her to write a witness statement to include with it?

Coupon-mad

Now, I had NO idea about this. The letter shows the place and time of the alleged contravention and it's entirely possible I may have parked there for some reason but I have no recollection of it or what I'm supposed to have done.

Then why admit you were the driver, removing the protection you have from the POFA Schedule 4? Better to defend this one as keeper and put them to proof of liability in law.

I seem to recall Gemini NTKs (even if it had been served to you) don't use POFA wording so they can't hold you liable as registered keeper and would need to bring a case against the driver.

If neither you nor they know who was driving, and more than one person could have driven your car at the time, then you can say the Claimant has not tipped the balance of probabilities to show that you were that driver.

Other defences cover this - search for defence understanding keeper liability presumption

Zippy7

Hi,

Thanks, yes, you're right, i don't need to admit being the driver. Would the below suffice (wording changed in point 1)

In The County Court
Claim No: XXXXXXX
Between
Gemini Parking Solutions (Claimant)

-and-

XXXXXXX (Defendant)

____________
DEFENCE
____________

1. The Defendant was the registered keeper of vehicle registration number XXXXXXX on the material date. I decline to name the driver, which is not required of me as the keeper of the vehicle. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. Photos obtained following a subject access request to the claimant show an insufficient amount of signage pertaining to the restrictions and regulations of parking in the area of XXXXXXX. The evidence clearly shows a small sign relating to parking terms located high up behind the location of the vehicle and was therefore not visible to the Driver.

3. The area in question is a residential street where such restrictions would not usually be expected - the Defendant was, at the time of the alleged offence, a resident of the area and a permit holder and as such would have expected any parking to have been covered by his residents permit.

4. The defendant was not in receipt of the original PCN. No such notice was apparent on the vehicle at the time of the alleged offence, however the Defendant recognises the photographic evidence of such and can only suggest it was removed. Subsequently to this the Claimant was directing letters to the Defendant's previous address in XXXXXX and as such were not accessible to the Defendant. The first notice the Defendant received with regards this PCN was a letter to his residence in XXXXX, on 24 November 2018.

4. Accordingly, it is denied that the Defendant breached any of the Claimant's purported contractual terms, whether express, implied, or by conduct. Furthermore is it disputed that the claim that the defendant agreed to and subsequently failed to pay the PCN as claimed.

5. The Claimant is put to strict 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, unless specifically authorised by the principal. The Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name, and that they have no right to bring any action regarding this claim.

6. The Defendant has the reasonable belief that the Claimant has not incurred £60 costs to pursue an alleged £100 debt. The Protection of Freedoms Act 2012, in Schedule 4, Para 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.

7. In summary, the Claimant's particulars disclose no legal basis for the sum claimed, and the Court is invited to dismiss the claim in its entirety.

Statement of Truth:

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

Name
Signature
Date

Coupon-mad

I decline to name the driver, which is not required of me as the keeper of the vehicle.

No, you should say you don't know who was driving but do not believe it was you because blah blah...

You don't appear to have done the search I suggested:

Other defences cover this - search for defence understanding keeper liability presumption

I can tell because you have failed to add anything about the keeper liability presumption and Henry Greenslade/ POPLA Annual Report 2015, which you WOULD have found in stronger defences, had you searched...