Gemini/Gladstones - Small Claim

Hi All

Thanks for the fantastic resource.

After some advice on this PCN from Gemini, which has been taken to court by Gladstones. Current (6th Nov) state of play is that a defence has been submitted and accepted.

However, the defence might not be great – I’m not sure, please read on!

Background:

• I received a PCN for my wife’s car, which was deemed by Gemini parking to be parked (not by myself) at Gambado softplay in Beckenham in excess of 2 hours, during my son’s birthday party
• I foolishly binned the letters from Gemini and then the debt collector
• I then received a letter “from Gladstones”. On advice from the pepipoo forum, I checked it and it actually seemed to have come from the debt collectors, but made to look like a Gladstones letter
• I wrote to Gladstones to confirm if the letter was from them – and gave them a date by which to respond. They did not, but the debt collector did!
• Gladstones then actually did become involved, and I received a letter from the county court
• I acknowledged online. BUT – I made a stupid miscalculation on the dates and thought I had longer than I actually did to respond
• I realised my error at ~1am the night before going on holiday with the family! So had to throw together a defence (below), submit at 2am, and hope they court would still accept it although a couple of days late
• The court did accept the defence

Given the cobbled together nature of the defence, unsighted by you guys that would’ve been able to direct me, I wonder which parts to emphasise as the strongest arguments if/when proceeding to witness statements and a hearing?

The defence I sent in:



I am XXX, Defendant in this matter and I assert that the Claimant has no cause for action for the following reasons:

1.It is admitted that the Defendant was the authorised registered keeper of the vehicle in question at the time of the alleged alleged breach of the terms and conditions by the driver of the vehicle XXX when it was parked at Beckenham Gym – Former Natwest Playing Fields Coper Cape Road, Beckenham, London, BR3 1NZ.

3. Further based upon the scant and deficient details contained in the Particulars of Claim and correspondence, it appears to be the Claimant's case that:
a. There was a contract formed by the Defendant and the Claimant on 03/12/2016.
b. There was an agreement to pay a sum or parking charge
c. That there were Terms and Conditions prominently displayed around the site
d. That in addition to the parking charge there was an agreement to pay additional and unspecified additional sums.
e. The Claimant company fully complied with their obligations within the British Parking Association Code of Practice of which they were member at the time.

4. It is denied that:
a. A contract was formed
b. That the Defendant was driving the vehicle XXX at the time
c. There was an agreement to pay a parking charge.
d. That there were Terms and Conditions prominently displayed around the site.
e. That in addition to the parking charge there was an agreement to pay additional and unspecified additional sums.
f. The claimant company fully complied with their obligations within the International Parking Community Code of Practice of which they were member at the time.


5. It is further denied that the Defendant is liable for the purported debt.

Rebuttal of Claim

6. The Defendant was not the driver of XXX at the time of the incident, and is not liable for any parking charge

a. The Defendant was present at the time of the incident, to host a birthday party for his son at the Gambado soft play centre, but drove a different vehicle, which was parked outside the venue on a public road
b. Nevertheless, Gemini Parking have pursued the Defendant on the basis of Keeper Liability (under POFA 2012), but have not met the conditions to do so.
d. The Defendant was not issued with a notice within 14 days of the incident, violating a condition of Keeper Liability, POFA 2012.
e. The Notice to Keeper was deficient: it did not specify the time that the vehicle was parked. The time mentioned on the notice, was the total time the vehicle was onsite at the grounds shared by Gambado softplay, and several other businesses. The time mentioned on the notice does not account for the considerable time spent unloading and loading the vehicle with items related to the birthday party (with the permission of Gambado Management), during which time the vehicle was not parked. The photos supplied by Gemini Parking Solutions were of the vehicle in motion entering and leaving the site, not parked.


7. The Defendant did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.

8. The Defendant denies that they would have agreed to pay the original demand of £80, later raised to £160 and then to £169.23, to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.
a. The amount demanded is excessive and unconscionable and especially so when compared to the level of Penalty Charge Notice issued by the local Council which is set at £60 or £30 if paid within 14 days.
b. Within 1 month of the incident, Gemini Parking Solutions changed the terms of the parking to 3 hours free, and the cost of the parking charge was changed to £100. This illustrates how the parking charge and terms of parking are plucked from thin air, and not representative of any damages to the owner of the private land. Furthermore, the vehicle XXX was onsite for less than 3 hours and would not have been issued with a parking charge from January 2017.

9. The signage on this site was inadequate to form a contract with the motorist.
a. The signage on and around the site in question was unclear and not prominent and did not meet the British Parking Association (BPA) Code of Practice or the International Parking Community (IPC) Code of Practice. The Claimant was a member of the BPA at the time and committed to follow its requirements. Therefore no contract has been formed with driver to pay the amount demanded by the Claimant, or any additional fee charged if unpaid in 28 days.
b. The size of font of the “Free Parking” advised for parking is much larger than the font of the contract and the offer is not sufficiently brought to the attention of the motorist, nor are the onerous terms (the £160 parking charge) sufficiently prominent to satisfy Lord Dennings "red hand rule”.
c. In the absence of ‘adequate notice’ of the terms and the charge (which must be in large prominent letters such as the brief, clear and multiple signs in the Beavis case) this fails to meet the requirements of Schedule 4 of the POFA.
e. The signage specifically states that Gambado customers are entitled to 5 hours free parking. Therefore there was no breach of any ‘relevant obligation’ or ‘relevant contract’ as required under Schedule 4 of POFA, as the vehicle was parked for less than this time, but the driver had not entered the registration into Gemini Parking Solutions computer system
f. The Claimant is aware that the vehicle was one of several onsite as customers entitled to 5 hours free parking, as the Principal has emailed them twice stating this and asking them to waive the parking charge: Gemini Parking Solutions failed to respond on both instances


10. The Claimant’s representatives, Gladstones, have artificially inflated the value of the Claim from £160 to £169.23. The Defendant submits the added costs have not actually been incurred by the Claimant; that these are figures plucked out of thin air and applied regardless of facts.
a. If the “parking charge” listed in the particulars of claim is to be considered a written agreement between Defendant and Claimant then under 7.3, the particulars fail to include “a copy of the contract or documents constituting the agreement”.
b. The Claimant has at no time provided an explanation how the sum has been calculated, the conduct that gave rise to it or how the amount has climbed from £160 to £169.23. This appears to be an added cost with no apparently no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.
b. The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.

Non-disclosure of reasonable grounds or particulars for bringing a claim:
11. Gemini Parking Solutions Ltd are not the lawful occupier of the land. The Defendant has reasonable belief that they do not have the authority to issue charges on this land in
their own name and that they have no rights to bring action regarding this claim.
a. The Claimant is not the landowner and is merely an agent acting on behalf of the
landowner and has failed to demonstrate their legal standing to form a contract.
b. The Claimant is not the landowner and suffers no loss whatsoever as a result of a
vehicle parking at the location in question
c. The Claimant is put to 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
d. The Particulars of Claim are deficient in establishing whether the claim is brought in trespass. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landowner can pursue a case under the tort of trespass not this Claimant, and as the Supreme Court in the Beavis vs ParkingEye (2015) [2015] UKSC 67 case confirmed, such a matter would be limited to the landowner themselves claiming for a nominal sum.





12. The Defendant has reason to believe Gladstones are allowing Debt Recovery Plus ( a debt collection company) to impersonate them in order to intimidate. Having received a letter on headed paper from Gladstone Solicitors, which looked suspicious and had Debt Recovery Plus’s phone number on it, the defendant sent a letter to Gladstones to enquire if this was a genuine piece of correspondence, specifying a reasonable date by which a non-response reply from Gladstones would be taken to mean the letter was not genuine. No response to that letter from Gladstones was received within the specified time period, nor later.

13. The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking for a true cause of action. Her Majesty's Courts and Tribunals Service have identified over one thousand similar poorly produced claims and the solicitors conduct in many of these cases is believed to be currently the subject of an active investigation by the Solicitors Regulation Authority.


14. The Defendant believes the terms for such conduct is ‘robo claims’ which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. The Defendant has reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to their significant detriment as an unrepresented Defendant.

15. The Defendant respectfully suggests that parking companies using the small claims track as a form of aggressive, automated debt collection is not something the Courts should be seen to support.

16. The Defendant denies the claim in its entirety voiding any liability to the claimant for all amounts due to the aforementioned reasons. It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious.

17. The Defendant invites the court to dismiss this claim out as it is in breach of pre court protocols in relation to the particulars of claim under Practice Direction 16, set out by the Ministry of Justice and also Civil Procedure Rules (CPR) under 16.4 and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14.

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