Court Hearing at Birmingham County Court Next Week - Do Gladstones Actually Turn Up?

LDast

@Snowty, please start your own thread if you are seeking advice or wish to convey the outline of your story. It gets confusing when someone else's thread has distracting posts about other cases.

Snowty

indeed i started my own exact 9 min before heads up as i did realised i was hijacking this. Apology

Le_Kirk

You could send a message to the forum team and ask them to extract your posts from here and post on your new thread.  Give them both thread URLs.

hh2000

Hi everyone, 

This case went to final trial today. I won, and Euro Parking's case was dismissed. However, the judge ruled solely based on the fact I had provided evidence the car park was dark, and made a related point about the Consumer Rights Act. I gave Example 10 in Schedule 2 of the CRA, which notes that an example of an unfair term includes ‘binding the consumer to terms with which the consumer has had no real opportunity of becoming acquainted before the conclusion of the contract’. Given the lack of lighting, the judge was convinced by my argument that this was the case.

However, the judge did not accept the following:

• The judge did not accept that the Particulars of Claim was faulty.                                                                            It was a standard Gladstones PoC, which read: "The driver of the vehicle with registration XXXXX (the 'Vehicle’ parked in breach of the terms of parking stipulated on the signage (the ‘Contract’) at XXXX, on XXXX thus incurring the parking charge (the PCN’). The PCN was not paid within 28 days of issue. The Claimant claims the unpaid PCN from the Defendant as the driver/keeper of the Vehicle. Despite demands being made, the Defendant has failed to settle their outstanding liability. THE CLAIMANT CLAIMS. £100 for the PCN, £60.00 contractual costs pursuant to the Contract and PCN terms and conditions, together with statutory interest of £8.32 pursuant to s69 of the County Courts Act 1984 at 8.00% per annum, continuing at £0.04 per day. 
• We made the point that Practice Direction 16.7.5 states that if a ‘claim is based upon an agreement by conduct, the particulars of claim must specify the conduct relied on’. The Claimant’s POC did not specify exactly what conduct is relied on to establish a breach of the supposed Contract. Nor do they state which contractual terms are actually relevant. We pointed to previous judgements where the court struck out the claim on this basis, including Gladstones cases, as well as Civil Enforcement Limited v Chan. The judge decided that the PoC was fine, and that Euro Parking were entitled to issue deficient PoCs through MCOL, since they could be later rectified. However, the fact remains that the PoC were not rectified, and were not particularised within 14 days, as is required by Practice Direction Rule 7.4. The judge held that since the PoC referred to a specific PCN (date and plate number), it was specific enough. I was frankly astonished by this line of reasoning. The mediation judge was clear that their PoCs were insufficient, and cited this as one of the main reasons he advised the Claimant not to proceed to trial. 
• The judge did not believe that the Claimant was abusing the court's process by adding 'contractual costs', and refused to rule along the lines of Excel v Wilkinson.  

I am of course, happy that I won, but it seems that if this incident had occured during daytime, the judge would have ruled in favour of the parking company. I sought the £95 per day standard witness costs, and pointed to CPR 27.14, given that the judge was unaware of this allowance! He declined this, instead offering transport costs only. Given that he believed the PoC was perfectly reasonable, and that there was no abuse of process, he of course refused to award unreasonable behaviour costs under 27.14(2)(g). He also refused to accept the argument that rejecting my offer at mediation of £100 was unreasonable, or that it was unreasonable to proceed with the case despite the mediation judge saying it would not succeed at trial. However, I will detail my grounds here in case they help someone:

• I pointed to cases where Gladstones had cases struck out for insufficient PoCs, and said that continuing to file cases with PoCs they knew were faulty were unreasonable. I pointed to the fact that the mediation judge had told them that their PoCs were not adequate, but despite that, they failed to withdraw the case. 
• I referred to the fact the Claimant displays a significant amount of exaggeration and dishonesty, by claiming £60 in ‘contractual costs’, and claiming that this is pursuant to the Contract. The supposed Contract that the Claimant relied on does not mention this charge anywhere, suggesting at the very least exaggeration, i.e. unreasonable behaviour. I cited the fact that District Judge Harvey of Worthing County Court ruled that Gladstones was abusing the court’s process by claiming this £60 charge, and as such, was acting unreasonably. Judge Harvey then awarded costs of £293.02 (Case Number: F0GF1K4A).

I hope this is all helpful to others, and thank you all for your help. 

Zbubuman

Name of the Judge?  Will help others if they come across him or her in the future. 

LDast

Well done. Thankfully, you only needed to win on one of your defence points and did so. The judges reasoning for refusing to accept that the PoC were in breach of CPR 16.4 show either ignorance or wilful neglect of the rules.

As I am now advocating for the use of a simple "short" defence which has been drafted by a long serving district judge which includes a draft order for the allocating judge to force these roboclaimers who use the MCOL excuse not to provide proper particulars of case, to resubmit a full statement of case, which in the judges experience, not one single claimant has managed to comply with and all cases have been struck out at this stage.

There is understandable resistance to the alternative "short" defence from regulars but I have been in discussion with the judge over the last week and the defence and the draft order have been refined. There are already a couple of cases (not on MSE) that have already submitted the short defence and on eon here which was done through MCOL as a last minute "Hail Mary" to avoid a default CCJ.

The resistance to the short defence appears to be based on the fact that the defence offers no other defence other than the fact that the defendant is unable to plead any defence based on the failure of the PoC to follow CPR 16.4(1)(a). The draft order gives the allocating judge a tool to force the claimant to submit full PoC that must comply with all the points in the order, and would have covered your point about CPR 16.7.5 among other things.

One of the arguments against the sort defence is what if the allocating judge disagrees that the PoC are not fully compliant with CPR 16.4, then the defence would have no content applicable. The judge who has drafted this believes that it is extremely unlikely that any allocating judge would ignore the simple defence and let it go to a hearing as is. He maintains that most judges in England and Wales are already very familiar with the template (boilerplate) defence used here and most never read it and simply let it go to a hearing.

If the claimant fully complies with the order (which is highly unlikely) then the judge can make a consequential order for filing of an amended defence.

For information, this is the draft order that goes with the short defence that would hopefully stop these poorly pleaded claims ever getting to hearing stage:

https://www.dropbox.com/scl/fi/gkv600e5h7bgsuswkan0l/short-defence-order.pdf?rlkey=cce8wmu56zwhtikoo9eq3ciyu&st=cdz7u98d&dl=0

1505grandad

AND the court being of the view that there is a lack of precise detail in the particulars of claim in respect of the factual and legal allegations made against the defendants) such that the particulars of claim do not comply with CPR 16.4(1)(a)

Pedantic observation  -  is there a bracket missing or is the bracket after "defendants)" not required?

hh2000

Zbubuman said:

Name of the Judge?  Will help others if they come across him or her in the future. 

Employment Judge Hodgson - I suspect the 'Employment' part is the problem...

Grizebeck

hh2000 said:

Zbubuman said:

Name of the Judge?  Will help others if they come across him or her in the future. 

Employment Judge Hodgson - I suspect the 'Employment' part is the problem...

Not at all.

Coupon-mad

Well done! You argued it all really well before what sounds like a rookie or maybe an opinionated/unmovable Judge.

ANOTHER ONE BITES THE DUST!

The Judge is clearly wrong about the POC and as well as CEL v Chan, we now have a second Circuit Judge appeal decision confirming that parking firm boilerplate POC fails to meet the requirements in Part 16.

You can read the Akande case from Manchester, in @Le_Kirk's 'judgments' thread (replied on today).