ES Parking / Gladstones claim

therugbyfan

Hello,
I have received a claim form from CCBC Northampton dated 7th November and have acknowledged service using the MCOL online portal. I believe this now gives me until no later than 9th December to formulate & submit my defence. I have read the newbies info and lots of other threads relating to PCNs issued by ES Parking and will start to produce my defence to post on here for further help over the next day or so.

I have requested a SAR via ESP form on their website. Should I also send the letter to Gladstones as suggested or is that only for pre-action stage?

The process I followed since receiving the PCN by post was, appealed to ESP, rejected, appealed to IAS, rejected (sorry I hadn't read this forum before that stage or wouldn't have taken that step as suggested). Took no action following the IAS rejection and heard nothing else until now receiving the claim form. I did not receive any letter before action.

The alleged parking incident was actually a very short time of pulling over on double yellow lines to check a map whilst trying to locate the best place to drop off an occupant of the vehicle. I have not identified the driver and only acknowledged the PCN as the registered keeper. An occupant of the vehicle is also a blue badge holder. Apparantly the land is private & has signage for no stopping at all. The road itself is an access road from a main highway to an NCP car park, with nothing to suggest that you are now entering private property. The road is u shaped and returns back to the highway at the other end. The photographic evidence supplied by ESP covers a period of just 21 seconds using time stamped data. They also supplied an enlarged photo with a time stamp in a different format to the original photos, if this is admissible it would make the total time from first photo to last photo of car actually moving as 5 minutes & 9 seconds. They claimed £100 for this offence.

On the court claim they have also added £60 for contractual costs, £25 court fee & £50 legal cost + they state interest will be added on a daily basis .... which I believe is not possible for a small claim is it?

Is this enough information to get some help at this stage? My main question being, which line of defence would form the strongest case?

The_Deep

On the court claim they have also added £60 for contractual costs, …

Read this

https://forums.moneysavingexpert.com/discussion/6014081/abuse-of-process-district-judge-tells-bwlegal

[FONT=Times New Roman, serif]Nine times out of ten these tickets are scams, so consider complaining to your MP after the election, it can cause the scammer extra costs and work.

Parliament is well aware of the MO of these private parking companies, many of whom are former clampers, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. 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, persistent offenders denied access to the DVLA database and unable to operate.

Hopefully life will become impossible for the worst of these scammers, but until this is done you should still complain to your MP, citing the new legislation.

[/FONT][FONT=Times New Roman, serif]http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted[/FONT][FONT=Times New Roman, serif]

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

KeithP

therugbyfan wrote: »

I have received a claim form from CCBC Northampton dated 7th November and have acknowledged service using the MCOL online portal. I believe this now gives me until no later than 9th December to formulate & submit my defence.

With a Claim Issue Date of 7th November, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Tuesday 10th December 2019 to file your Defence.

That's over three weeks away. Plenty of time to produce a Defence, but please don't leave it to the last minute.


When you are happy with the content, your Defence could 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. No need to do anything on MCOL, but do check it 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 trying to keep you under pressure. Just file it.
   
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

I have requested a SAR via ESP form on their website. Should I also send the letter to Gladstones as suggested or is that only for pre-action stage?

Only for ESP and how about sending one to the IAS as well, for the LOLS? It might show you something useful by way of internal notes or contact between the IAS and the parking firm - ask for all data including any file notes and emails/phone conversation notes about you/your car/your PCN.

You know that the IPC was run by the same Directors as Gladstones have, until they did a sneaky switcheroo? The conflict of interests is a scandal that Parliament are aware of:

http://parking-prankster.blogspot.com/2017/06/all-change-at-gladstones-and-ipc.html

The alleged parking incident was actually a very short time of pulling over on double yellow lines to check a map whilst trying to locate the best place to drop off an occupant of the vehicle. I have not identified the driver and only acknowledged the PCN as the registered keeper. An occupant of the vehicle is also a blue badge holder.

Apparently the land is private & has signage for no stopping at all. The road itself is an access road from a main highway to an NCP car park, with nothing to suggest that you are now entering private property. The road is u shaped and returns back to the highway at the other end.

The photographic evidence supplied by ESP covers a period of just 21 seconds using time stamped data. They also supplied an enlarged photo with a time stamp in a different format to the original photos, if this is admissible it would make the total time from first photo to last photo of car actually moving as 5 minutes & 9 seconds. They claimed £100 for this offence.

Put all the above in your defence in the 2nd paragraph about the facts (look at the concise examples by bargepole and use one as your base).

Also search the forum for POSTS (not threads) these words:

defence IPC grace period true

and copy and adapt parts of one like that as well.

And read the abuse of process thread linked by The Deep, where I've written some wording in post #14 for the end of any defence (or you can save it till WS stage if you prefer, which keeps your defence more on point).

On the court claim they have also added £60 for contractual costs, £25 court fee & £50 legal cost + they state interest will be added on a daily basis .... which I believe is not possible for a small claim is it?

The £60 is not recoverable as long as you argue it well and/or the Judge isn't stupid!

The rest is recoverable but they'd have to win first!

beamerguy

On the court claim they have also added £60 for contractual costs, £25 court fee & £50 legal cost + they state interest will be added on a daily basis .... which I believe is not possible for a small claim is it?

Gladstones are so thick that they don't understand that courts are striking out cases that add a fake £60

The Gladstones boys known as pinky and perky, set up the IPC scam and they are well overdue a holiday in Her Majesty's hotel for rogue traders and reprobates. Henry Vlll would have beheaded them by now

The power is in your hands now, it's called abuse of process

READ THIS
https://forums.moneysavingexpert.com/discussion/6014081/abuse-of-process-district-judge-tells-bwlegal

therugbyfan

Hello, many thanks for the help and responses given above.

I have prepared a draft defence and would be grateful if an of you could provide some feedback & further guidance . . . . .

In The County Court
Claim No: XXXXXXX
Between
ES Parking Enforcement Ltd (Claimant)

-and-

XXXXXXX (Defendant)

____________
DEFENCE
____________

1. I am XXXX the Defendant in this matter and registered keeper of vehicle reg XXXX on the material date. I deny that the Claimant is entitled to relief in the sum claimed, or at all, for each and every one of the following reasons:

2. The Particulars of the 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 and 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.

3. The facts are that the driver of vehicle registration XXXX was in the area on the material date to drop off an occupant of the vehicle to meet someone close to XXXX. As that occupant is disabled, and a holder of a blue badge, the driver was trying to get as close to the meeting point as possible. Being unfamiliar with the area, but seeing a sign for XXXX Car Park, the driver turned into XXXX Street hoping this would be the closest point. The driver pulled over for a very short time on double yellow lines (as allowed within the blue badge scheme) to check a map. Once the driver realised the location was incorrect, they immediately left the area with all occupants still on-board. At that time it was not known the road in question was classed as private land. XXXX Street, which is accessed directly from XXXX Street, is an access road to XXXX NCP car park, there is no signage to suggest that you are now entering private property. The road is u shaped and returns back to the highway at the other end. A PCN was received through the post and the defendant acknowledged receipt as the registered keeper. The photographic evidence supplied by ES Parking Enforcement Ltd (ESP) covers a period of just 21 seconds using time stamped data. ESP also supplied an enlarged photo with a time stamp in a different format to the original photos; if this is deemed admissible, it would make the total time from first photo to last photo (where the vehicle can be clearly seen moving away) as 5 minutes & 9 seconds.

4. The Notice to Keeper from ESP does not comply with the mandatory terms of Schedule 4 of the Protection of Freedoms Act (PoFA) 2012. As such they cannot invoke keeper liability and should pursue the driver. The driver has not been identified.

5. The Particulars of Claim state that the driver of the vehicle parked in breach of the terms of parking stipulated on the signage at XXXX on XXXX, thus incurring the parking charge.

6. Para 9(2)(a) of the PoFA states the Claimant must provide a period of parking. Their Notice states only that a contravention occurred in the time that immediately preceded XX:XX. As a period of parking was not provided there is no evidence of a contravention and I consider none occurred.

7. ESP’s Notice states that the reason for issue is “Parked in a ‘No Stopping at all’ area”. However, their Notice provides no evidence that the driver stopped or parked. This could have been a manoeuvre by the driver during the 21 seconds shown, there is certainly no evidence of parking or stopping.

8. I am aware that the KADOE contract under which ESP operate only covers parking, not stopping, when accessing keeper details from the DVLA. This is therefore a breach of the Data Protection Act as stopping is not covered.

9. The IPC Code of Practice states they should allow a grace period at Part B Paragraph 15. This is to allow the driver a sufficient amount of time to spot signage, go up to it, read it and then make an informed decision whether or not to remain on site. A reasonable grace period would be 10-15 minutes from the period of stopping. By not providing a period of parking there is no evidence ESP have allowed the driver a grace period of any length. Without a grace period, a driver cannot be deemed to accept terms and conditions of a ‘contract’ that is displayed on any signage.

10. The copies of signage provided by ES Parking at appeal stage are generic and they do not include a close up photograph of the actual sign they contend was at the specific location on the material date.

11. The signage, which is now known to be positioned on the edge of footpaths, is misleading. They are not positioned at the entrance of the road. ESP also state they are positioned ‘where bound to be seen’, however, the text is small and cannot be ‘read’ without stopping and alighting from a vehicle, so a driver cannot be bound by its terms without closer inspection. ESP’s Notice stating the reason for issue as being “Parked in a ‘No Stopping at all’ area” is forbidding.

12. It is therefore denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

13. In the case between ES Parking v Mrs Q [C0GF4C5K], where a similar no stopping signage case lost in court. In this case the main point that they were trying to establish was that a contract existed, but the judge said this was not possible. I suggest the same can be found here.

14. The Claimant is put to strict proof that it has sufficient proprietary 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 Landowner. 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.

15. 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.

16. 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. Accordingly, the Court is invited to dismiss the claim in its entirety, using its case management powers pursuant to CPR 3.4.

Statement of Truth:

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

Name
Signature
Date

Coupon-mad

ESP = change to 'The Claimant' every time.

Change ''I'' to 'The Defendant' every time.

Apart from that the defence is good & covers all the usual bases, but I would add 2 points:

(a) about the Claimant attempting to dress up what can at the very most be a matter that could fall under the tort of trespass (an issue that is in the gift of the landowner in possession only) and engineering the facts to pass it off as if it was a contractually agreed charge on offer under an agreed parking licence. This is absurd and the signage has no legal effect.

(b) about the signs, the parking charge and the artificially inflated total claim breaching the Consumer Rights Act 2015, Schedule 2 , paras 6, 10 and 14 (terms that are likely to be unfair) and breaching the Consumer Protection from Unfair Trading Regulations 2008 (Misleading Omissions section).

You can expand on the ABUSE OF PROCESS (added £60) at WS and evidence stage.

therugbyfan

Thanks Coupon-mad, I will amend as suggested and re-post for final comment. I definitely have more to add at WS and evidence stage. Some of it concerns falsifying photos that they supplied at appeal stage. I have returned to the site since to take my own photos and was quite shocked to find the signage is different to what they claim!

In the meantime, can I just ask at what point is it best to disclose the driver? If, for example, the driver was not the registered keeper (i.e. Defendant) on the date in question, should it not be the actual driver who stands in court to give evidence?

nosferatu1001

NO, do not disclose the drivers identity. They potentially can cancel this claim and start again against the driver
The DEFENCE should state the defendant was not the driver.

therugbyfan

I have updated the Defence below to include the comments made above. Is this ok? Is there any benefit in waiting to nearer the deadline or should I go ahead and submit right away?

In The County Court
Claim No: XXXXXXX
Between
ES Parking Enforcement Ltd (Claimant)

-and-

XXXXXXX (Defendant)

____________
DEFENCE
____________


I am XXXX The Defendant in this matter and registered keeper of vehicle reg XXXX on the material date. I deny that The Claimant is entitled to relief in the sum claimed, or at all, for each and every one of the following reasons:

1) The Particulars of the 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 and 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 facts are that the driver of vehicle registration XXXX was in the area on the material date to drop off an occupant of the vehicle to meet someone close to XXXX. As that occupant is disabled, and a holder of a blue badge, the driver was trying to get as close to the meeting point as possible. Being unfamiliar with the area, but seeing a sign for XXXX Car Park, the driver turned into XXXX Street hoping this would be the closest point. The driver pulled over for a very short time on double yellow lines (as allowed within the blue badge scheme) to check a map. Once the driver realised the location was incorrect, they immediately left the area with all occupants still on-board. At that time it was not known the road in question was classed as private land. XXXX Street, which is accessed directly from XXXX Street, is an access road to XXXX NCP car park, there is no signage to suggest that you are now entering private property. The road is u shaped and returns back to the highway at the other end. A PCN was received through the post and The Defendant acknowledged receipt as the registered keeper. The photographic evidence supplied by The Claimant covers a period of just 21 seconds using time stamped data. The Claimant also supplied an enlarged photo with a time stamp in a different format to the original photos; if this is deemed admissible, it would make the total time from first photo to last photo (where the vehicle can be clearly seen moving away) as 5 minutes & 9 seconds.

3) The Notice to Keeper from The Claimant does not comply with the mandatory terms of Schedule 4 of the Protection of Freedoms Act (PoFA) 2012. As such they cannot invoke keeper liability and should pursue the driver. The driver has not been identified.

4) The Particulars of Claim state that the driver of the vehicle parked in breach of the terms of parking stipulated on the signage at XXXX on XXXX, thus incurring the parking charge.

5) Para 9(2)(a) of the PoFA states The Claimant must provide a period of parking. Their Notice states only that a contravention occurred in the time that immediately preceded XX:XX. As a period of parking was not provided there is no evidence of a contravention and The Defendant considers none occurred.

6) The Claimant’s Notice states that the reason for issue is “Parked in a ‘No Stopping at all’ area”. However, their Notice provides no evidence that the driver stopped or parked. This could have been a manoeuvre by the driver during the 21 seconds shown, there is certainly no evidence of parking or stopping.

7) The Defendant is aware that the KADOE contract under which The Claimant operate only covers parking, not stopping, when accessing keeper details from the DVLA. This is therefore a breach of the Data Protection Act as stopping is not covered.

8) The IPC Code of Practice states The Claimant should allow a grace period at Part B Paragraph 15. This is to allow the driver a sufficient amount of time to spot signage, go up to it, read it and then make an informed decision whether or not to remain on site. A reasonable grace period would be 10-15 minutes from the period of stopping. By not providing a period of parking there is no evidence The Claimant has allowed the driver a grace period of any length. Without a grace period, a driver cannot be deemed to accept terms and conditions of a ‘contract’ that is displayed on any signage.

9) The copies of signage provided by The Claimant at appeal stage are generic and they do not include a close-up photograph of the actual sign they contend was at the specific location on the material date.

10) The signage, which is now known to be positioned on the edge of footpaths, is misleading. They are not positioned at the entrance of the road. The Claimant also states they are positioned ‘where bound to be seen’, however, the text is small and cannot be ‘read’ without stopping and alighting from a vehicle, so a driver cannot be bound by its terms without closer inspection. The Claimant’s Notice stating the reason for issue as being “Parked in a ‘No Stopping at all’ area” is forbidding.

11) It is therefore denied that The Defendant, or any driver of the vehicle, entered into any contractual agreement with The Claimant, whether express, implied, or by conduct.

12) The parking charge, and the artificially inflated total claim, is in breach of the Consumer Rights Act 2015, Schedule 2, paras 6, 10 and 14 (terms that are likely to be unfair).

13) The parking charge is also breach the Consumer Protection from Unfair Trading Regulations 2008, Part 2, Prohibitions, Misleading omissions section.


14) In the case between ES Parking v Mrs Q [C0GF4C5K], where a similar no stopping signage case lost in court. In this case the main point that they were trying to establish was that a contract existed, but the judge said this was not possible. The Defendant suggests the same can be found here.

15) The Claimant is put to strict proof that it has sufficient proprietary 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 Landowner. 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.

16) The Claimant is attempting to dress up what can, at the very most, be a matter that could fall under the tort of trespass (an issue that is in the gift of the landowner in possession only) and engineering the facts to pass it off as if it was a contractually agreed charge on offer under an agreed parking licence. This is absurd and the signage has no legal effect.

17) 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.


18) 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. Accordingly, the Court is invited to dismiss the claim in its entirety, using its case management powers pursuant to CPR 3.4.

Statement of Truth:

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

Name
Signature
Date

Le_Kirk

The Defendant reserves the right to seek from the Court permission to serve and Amended Defence

Better as: -

The Defendant reserves the right to seek from the Court permission to serve an Amended Defence .

(where the vehicle can be clearly seen moving away) as 5 minutes & 9 seconds.

Is it a video or a still? If a still, then you need to reword this to make clear what you mean.

Your point 2 states that the driver stopped to check a map but in your point 6, you state that the claimant provides no evidence that the driver stopped. They don't need to, you've done their job for them