New person in need of help, baffled, gladstones

BellaLouis

Apologies before I begin if I am making an error by posting in the wrong place. I am popping my forum cherry! I have read lots of threads, including the newbies thread, but I am still struggling to understand all of the information. I am concerned I will not be capable to go to court with the use of all the legal language and knowing what I should and should not admit to. With that in mind here is a scenario below:

"A person went to a restaurant (used loosely) that they had not been to before. They entered the car park in the evening of a winter month when it was dark. There was a hut with two men in florescent jackets that the driver approached to ask how to pay for the car park. The fluorescent jacket worker pointed over to the parking machine. The driver paid for two hours and went into the restaurant. The restaurant is on a commercial centre of around 8 shops, all other shops were closed. The meal service was slow and during the main meal the driver noticed the parking ticket had expired. The friend noticed that the hut had close and the fluorescent jacket men had gone. The driver genuinely thought the car parking had now become free parking. No signs were paid attention to at the time of buying the ticket due to the interaction with the "parking attendant". 20minustes past the expired ticket the driver and friend vacated the car park. The registered keeper received letter from Smart Parking with an invoice for £60. These were ignored and then binned after a prolonged time of no communication. Then a letter was received from Gladstone solicitors and then another one was received of a Letter before claim. The registered keeper responded to this letter with the copied letter below and the response from Gladstones solicitors is also pasted below."


Sorry I do not know how to attach files and it has just refused my link to the google maps page. The address for the place is 160 Belgrave Rd, Leicester LE4 5AU. if this is needed to view the parking place, thanks again I really appreciate all help received.



LETTER TO GLADSTONES FOLLOWING LETTER BEFORE CLAIM RECEIVED:


Gladstones Solicitors
The Terrace
High Leigh Park Golf Club
Warrington
Cheshire
WA16 6AA

27th March 2019

To whom it may concern,

I am in receipt of your “Letter Before Claim“ on 21st March 2019.

Your letter contains insufficient detail of the claim and fails to provide copies of evidence your client places reliance upon.

Your client must know that on 01 October 2017 a new protocol is applicable to debt claims. Since proceedings have not yet been issued, the new protocol clearly applies and must be complied with.

Your letter lacks specificity and breaches both the requirements of the previously applicable Practice Direction - Pre-Action Conduct (paragraphs 6(a) and 6(c)) and the new Pre-Action Protocol for Debt Claims (paragraphs 3.1(a)-(d), 5.1 and 5.2). Please treat this letter as a formal request for all of the documents/information that the protocol now requires your client to provide.

Your client must not issue proceedings without complying with that protocol. I reserve the right to draw any failure of the Claimant to comply with the protocol to the attention of the court and to ask the court to stay the claim and order your client to comply with its pre-action obligations, and when costs come to be considered.

As solicitors you must surely be familiar with the requirements of both the Practice Direction applicable pre-1 October and the Protocol which applies thereafter (and your client, as a serial litigator of small claims, should likewise be aware of them). As you (and your client) must know, the Practice Direction and Protocol bind all potential litigants, whatever the size or type of the claim. Its express purpose is to assist parties in understanding the claim and their respective positions in relation to it, to enable parties to take stock of their positions and to negotiate a settlement, or at least narrow the issues, without incurring the costs of court proceedings or using up valuable court time. It is astounding that a firm of Solicitors are sending a consumer a vague and unevidenced 'Letter before Claim' in complete ignorance of the pre-existing Practice Direction and the new Protocol.

Nobody, including your client, is immune from the requirements and obligations of the Practice Direction and now the Protocol.

I require your client to comply with its obligations by sending me the following information/documents:

1. an explanation of the cause of action
2. whether they are pursuing me as driver or keeper
3. whether they are relying on the provisions of Schedule 4 of POFA 2012
4. what the details of the claim are; where it is claimed the vehicle was parked, for how long, how the monies being claimed arose and have been calculated
5. Is the claim for a contractual breach? If so, provide a copy of that contract bearing my signature. Or is the claim for trespass? If so, provide details.
6. a copy of the contract with the landowner under which they assert authority to bring the claim, as required by the IPC code of practice section B, clause 1.1
7. a plan showing where any signs were displayed
8. details of the signs displayed (size of sign, size of font, height at which displayed)
9. Details of the additions to the original charge, what that represents and how it has been calculated.


If your client does not provide me with this information then I put you on notice that I will be relying on the cases of Webb Resolutions Ltd v Waller Needham & Green [2012] EWHC 3529 (Ch), Daejan Investments Limited v The Park West Club Limited (Part 20) – Buxton Associates [2003] EWHC 2872, Charles Church Developments Ltd v Stent Foundations Limited & Peter Dann Limited [2007] EWHC 855 in asking the court to impose sanctions on your client and to order a stay of the proceedings, pursuant to paragraphs 13 ,15(b) and (c) and 16 of the Practice Direction, as referred to in paragraph 7.2 of the Protocol.

Until your client has complied with its obligations and provided this information, I am unable to respond properly to the alleged claim and to consider my position in relation to it, and it is entirely premature (and a waste of costs and court time) for your client to issue proceedings. Should your client do so, then I will seek an immediate stay pursuant to paragraph 15(b) of the Practice Direction and an order that this information is provided.


Yours faithfully


LETTER REPLY FROM GLADSTONES OF ABOVE LETTER:


Our Reference:


12 April 2019


Re: Our Client: Smart Parking LTD


Amount Due: £170.00



Dear Miss


Thank you for your correspondence, our reply to which is set out below.


We believe our Letter Before Complaint is compliant with the most up to date version of the Pre-Action Protocol (‘the Protocol’) however and without concession, we would be grateful for clarification as to your position with respect to non-compliance with the same.


It is noted that you have not provided an account of your version of events as is required by the Protocol.


Please find below our responses to your numbered questions below;

• The motorist entered into a contract to park on the land pursuant to the signs with our Client, this contract allowed the motorist to park in accordance with the signs or, for a charge of £100, allowed the motorist the privilege to park outside of the conditions as stated on the signs. As the driver on the day of the charge parked otherwise than in accordance with the signs, they accepted a charge of £100. Payment of the charge has not been forthcoming within the relevant timeframe and as such, the contract has now been breached and further costs incurred as a result of the breach in having to facilitate the recovery of the debt. Our Client’s Accredited Trade Association also states that an additional fee may be applied upon the matter being referred for enforcement.
• Your details were provided as the registered keeper of VRN concerned when a request was made to the DVLA. On the enclosed Notice to Keeper you were provided with the opportunity to nominate a driver. As we are yet to receive any nomination; our Client therefore avers, given your lack of response, that you as the registered keeper of the vehicle were also the driver on the date of the incident.
• Our Client is not relying on the provisions under POFA 2012.
• Please see enclosed evidence.
  

• This is addressed above.
• Our client’s position is that the contract entered into is between itself and the motorist to which it acts as the Principal. Any other contract is therefore superfluous when considering liability. In the event a Court order specifies that a document to this effect must be provided, the Claimant will comply.
• Please see enclosed evidence, a sign can be found in the photographs.
• This is not relevant to the charge at this stage. Our Client’s signs are audited and approved by their Accredited Trade Association.
  
  

• Please refer back to our Letter Before Claim

You can pay by one of the following methods;


Phone 0333 0230 049.


Cheque Payable to ‘Gladstones Solicitors Ltd’

Bank Transfer Name – Gladstones Solicitors Ltd
Sort Code – 20-24-09
Account Number – 33028712
Reference -

You must include your reference when making payment. If you fail to do so, we may be unable to allocate your payment. This may result in further costs being incurred, for which you will be liable.

In the event payment isn’t made in the next 30 days further legal action may be taken.

Yours sincerely,

Gladstones Solicitors

waamo

They are not relying on POFA which is good. If the registered keeper wasn't the driver then their case falls at the first hurdle.

You could ask them what evidence do they have that the registered keeper was the driver?

The_Deep

You do not need to be a Rumpole to defend yourself in the small claims court, tell the judge the truth in your own words. He/she will be well aware of the nature and reputation of the ex clamper who is trying to extract money from you.

Also involve your MP, the glory days of these scammers are numbered.

On 15th March 2019 a Bill was enacted to curb the excesses of these private parking companies. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, and persistent offenders denied access. Hopefully life will become impossible for the worst of these scammers.

Until this is done you should still complain to your MP, citing the new legislation.

http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted

Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.

BellaLouis

They were but if it cannot be proved by the photo evidence of the car entering and exiting then should this be admitted to?


Also, would it help to say someone took ill in the restaurant which delayed getting back into the car? Genuinely it was thought the car park had finished because the men in the hut had closed the hut and gone otherwise the car parking ticket would have been extended.

BellaLouis

Thank you for the MP recommendation and the reassurance of not needing to be worried about going to the court if it progresses that far. Although I really hope they let it go.

waamo

Never, ever name the driver. Illness is a valid defence. Gladstones will tell you it isn't but Gladstones have a vested interest in saying that.

Coupon-mad

Why not read the other Gladstones Smart threads, if you haven't already searched the forum and found them? All the same, all beatable.

As we KNOW Smart Parking have never used the POFA, DO NOT ADMIT TO DRIVING. In law, without the POFA, the registered keeper cannot be held liable.

BellaLouis

Ok. I won't admit it as it stands. Should I deny in my correspondence to Galdstones? Will I need to admit at the court who the driver was?

I will try doing more reading online to understand what I need to do next as they have said I haven't put in any form of reason for questioning the parking fine.

BellaLouis

Thanks for the recommendation on looking for Gladstone threads. I will have a go at searching and reading through them. I am struggling to understand process of what I am meant to be doing and admitting to. Thank you

Fruitcake

BellaLouis wrote: »

Ok. I won't admit it as it stands. Should I deny in my correspondence to Galdstones? Will I need to admit at the court who the driver was?

I will try doing more reading online to understand what I need to do next as they have said I haven't put in any form of reason for questioning the parking fine.

Only deny something if it is a true statement. I can safely deny that I was the driver of your car, so it is OK for me to say it. If I was the driver, then I would be committing perjury if I said I wasn't.

However, there is no law in the UK that can compel a keeper to name the driver. You state that keeper liability does not apply, so the scammers must pursue the driver who they have failed to identify.

It is not a fine.

Coupon-mad

Thanks for the recommendation on looking for Gladstone threads.

No, search terms must be exact, not 'Gladstone':

Gladstones Smart

HOW TO USE THE FORUM SEARCH FUNCTION:

Hit your 'Back' button to get back to the forum thread list.

On the bar just above the threads you'll see the 'Search' function. Click on the 'Advanced Search' button and on the following page place your keyword(s) in the 'Search By Keyword(s)' and make sure the 'Show Results As' button (at the foot of the window) is changed from 'Threads' to 'Posts'.