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  • FIRST POST
    • FJ1000
    • By FJ1000 6th Nov 17, 3:06 PM
    • 33Posts
    • 28Thanks
    FJ1000
    Gemini/Gladstones - Small Claim
    • #1
    • 6th Nov 17, 3:06 PM
    Gemini/Gladstones - Small Claim 6th Nov 17 at 3:06 PM
    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.
Page 3
    • FJ1000
    • By FJ1000 8th Jun 18, 12:38 PM
    • 33 Posts
    • 28 Thanks
    FJ1000
    One other quick update - the previous manager at Gambado Beckenham (who I tracked down on Facebook) replied to me last night and says he's willing to help with an email to me stating the parking restrictions as of Dec 2016 (5hrs free for Gambado customers)

    If anyone has any thoughts on my witness statement so far (posted above), any feedback woud be gratefully received
    • Coupon-mad
    • By Coupon-mad 9th Jun 18, 6:27 PM
    • 61,573 Posts
    • 74,439 Thanks
    Coupon-mad
    Looks good, on a skim-read.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • FJ1000
    • By FJ1000 12th Jun 18, 9:56 AM
    • 33 Posts
    • 28 Thanks
    FJ1000
    Email from (the very nice) ex-manager at Gambado. This is ace!


    Yes I can confirm that I was the GM at Gambado Beckenham in December of 2016.
    The parking that was available free to our customers at the time was 5 hours. You had 2 hours free initially and then could top it up for an additional 3 hours using a tablet in the centre.

    Its worth noting that this tablet was temperamental and on several occasions the system issued hundreds of tickets erroneously causing a lot of grief and panic to staff and customers alike. Because we had a 2.5 hour play session and our parties were 2 hours we asked them to change the restrictions. I believe this was amended in 2017 at some point.

    The whole reason they were brought in to manage the car park was to combat the commuters that were parking there all day and getting the train up town. It was in no way meant to affect the customers of the facilities there. They had the set up completely wrong and was wholly immoral in my opinion. A dreadful company and set up from the landlord.

    I would go as far to say it was set up this way to catch people out.
    Regards,
    Stu
    • Coupon-mad
    • By Coupon-mad 12th Jun 18, 12:29 PM
    • 61,573 Posts
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    Coupon-mad
    Brilliant evidence!

    You would also need to show evidence that removes any doubt as to who 'Stu' is, e.g. the trail of how you tracked him down on Facebook/how you could see it was the previous Manager of Gambado (and not your mate called Stu! Remembering this is for court and you need to bring evidence the other side can't debunk).
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • FJ1000
    • By FJ1000 12th Jun 18, 3:32 PM
    • 33 Posts
    • 28 Thanks
    FJ1000
    Have included a previous email from him from a gambado email address (where he signs off using full name), and also a screenshot of a FB message I sent him to make contact, also showing that "GM Gambado Beckenham" is listed in his FB bio

    I think I'm done with the WS now.

    I'm a bit concerned about the practicalities of sending it by email!

    1. Any idea what the size limit is that the county court will be able to receive?
    2.Is it acceptable to scan a signature and insert digitally?
    • Coupon-mad
    • By Coupon-mad 12th Jun 18, 3:46 PM
    • 61,573 Posts
    • 74,439 Thanks
    Coupon-mad
    Don't submit a WS and evidence to the local court by email. The limit is LOW. You will regret it if you get to the hearing and the Judge has none of it.

    People here create a contents page, number all evidence and every page, and put it in a ring binder and take it in person to the court.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • FJ1000
    • By FJ1000 13th Jun 18, 11:10 AM
    • 33 Posts
    • 28 Thanks
    FJ1000
    OK - physical copy it is!
    • FJ1000
    • By FJ1000 22nd Jun 18, 9:51 AM
    • 33 Posts
    • 28 Thanks
    FJ1000
    I dropped in the witness statement to the court house yesterday morning, and emailed a PDF to Gladstone!!!8217;s (7MB). Do I need Gladstone!!!8217;s to confirm receipt? Hearing is 2 weeks today
    • Coupon-mad
    • By Coupon-mad 22nd Jun 18, 4:05 PM
    • 61,573 Posts
    • 74,439 Thanks
    Coupon-mad
    No, just print off a copy of your 'sent item' email showing that it included attachments, and add that into your file in case G's rep later tries to say they never had it.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • FJ1000
    • By FJ1000 5th Jul 18, 12:24 PM
    • 33 Posts
    • 28 Thanks
    FJ1000
    Right. So I'm due in court tomorrow at 10am. I called into the County Court phone line to confirm that the case is still on (feared Gladstone might drop it), and to check they received my WS (they did).

    Any last minute tips?

    I'll be taking the following with me:

    - Two copies of my WS. One for me, one for whoever is hearing the case - just in case
    - A printoff of my sent email and delivery receipt of my WS to Gladstone
    - Printoff of Gambado's response to my SAR, which arrived after I had to submit the WS. They confirmed that our family group were preregistered

    I need to remind myself to challenge the Gladstone representative's right of audience. That could be an easy win.

    I think a couple of episodes of Suits tonight are in order...
    • KeithP
    • By KeithP 5th Jul 18, 1:12 PM
    • 9,238 Posts
    • 9,446 Thanks
    KeithP
    You may find this useful:

    .
    • IamEmanresu
    • By IamEmanresu 5th Jul 18, 1:32 PM
    • 3,268 Posts
    • 5,486 Thanks
    IamEmanresu
    And this one https://www.youtube.com/watch?v=ZZyb4HYC5A8

    Saves you having to pretend to like Suits
    If you want to win - avoid losing first. Here are a few examples
    1. Failing to Acknowledge or Defend https://forums.moneysavingexpert.com/showthread.php?t=5760415
    2. Template defences that say nothing https://forums.moneysavingexpert.com/showthread.php?t=5818671&page=5#86
    3. Forgetting about the Witness Statement
    • FJ1000
    • By FJ1000 5th Jul 18, 2:33 PM
    • 33 Posts
    • 28 Thanks
    FJ1000
    Useful vids!

    Not as entertaining as Suits though...
    • IamEmanresu
    • By IamEmanresu 6th Jul 18, 4:46 AM
    • 3,268 Posts
    • 5,486 Thanks
    IamEmanresu
    Are you sure they are sending someone for their side? If no-one turns up, you should point out there is no one on the other side you can challenge about their Statement of Truth and whether there was a genuine belief on the other side.

    Add that there was the option to discontinue but the C has continued on the weakest of cases, to waste your time but more importantly the court's time.

    You could ask for wasted costs [as detailed] but in the alternative you wish to ask that the court takes note of the burden these poorly presented cases has on other court users and ask if there might be an Order against the Claimant to cease taking action against defendants at this site until they can prove their case to the required standard to prevent the further waste of precious resources.
    Last edited by IamEmanresu; 06-07-2018 at 5:45 AM.
    If you want to win - avoid losing first. Here are a few examples
    1. Failing to Acknowledge or Defend https://forums.moneysavingexpert.com/showthread.php?t=5760415
    2. Template defences that say nothing https://forums.moneysavingexpert.com/showthread.php?t=5818671&page=5#86
    3. Forgetting about the Witness Statement
    • FJ1000
    • By FJ1000 6th Jul 18, 9:39 AM
    • 33 Posts
    • 28 Thanks
    FJ1000
    We!!!8217;ll soon find out if there!!!8217;s anyone representing the claimant...I!!!8217;m in the waiting area in the court room!

    Thanks for the tip Ian - will use that if nobody shows up. It!!!8217;s a busy waiting area (around 25 people) so hard to tell at the moment!
    • FJ1000
    • By FJ1000 6th Jul 18, 1:13 PM
    • 33 Posts
    • 28 Thanks
    FJ1000
    I won!!

    Thanks very much for all the help - wouldn't have been able to do this without this forum and it's very helpful members!

    Before the hearing - the Gladstone representative came to find me to ask two questions. He asked if I agreed that it was 2 hours free parking (I said I didn't agree), and whether I received Gladstones updated WS (I did not - only an image of the 2 hour parking sign they sent as a follow on to their initial WS that had referred to 3 hrs free parking throughout).

    I then asked him if he had right of audience in the court - he stated he was a "solicitor's agent". To which I asked if that meant he was a qualified solicitor? He dodged the question, before eventually saying he was not - and then shuffled off to make a phone call.

    In the Judges room then, I challenged the Gladstone rep's right of audience - but the judge seemed to know him (made a comment of having seen him in the court a number of times) and that he was happy to hear from him.

    Oh well.

    It then all fell apart for the claimant anyway - the judge pointed out several inconsistencies in Gladstone's WS; that the free parking period in the images didn't match the statement (3hrs vs 2hrs), that there were pages missing in the resubmitted WS etc

    The thing the judge honed in on though, was that my defence and WS mentioned that the signage was not adequate - but the claimant had not supplied any evidence showing that the signage in Dec 16 (before it was changed to 3hrs free) was prominent/visible, and therefore adequate for a contract to have been formed. All the images in the evidence pack were of the current signage, and the site plan referred to locations of the current signage too. There was a bit of discussion - but he dismissed the case on that basis.

    So I'd won without saying much at all.

    I then raised the issue of Gladstones acting, in my opinion, unreasonably - with a view to receiving additional costs. The judge heard me out, but dismissed most of the issues as admin errors (he seemed to have sympathy for them dealing with lots of claims - which I thought was odd), and on the point about Gladstones allowing Debt Recovery Plus to pose as them (which I argued was an intimidation tactic) - he said it didn't constitute unreasonable behaviour, but that there may be some data protection issues there and I may want to take that up with the Solicitors Regulation Authority

    I ended up being awarded my ordinary costs.
    • Coupon-mad
    • By Coupon-mad 6th Jul 18, 2:06 PM
    • 61,573 Posts
    • 74,439 Thanks
    Coupon-mad
    Yay well done to you! Another one bites the dust!

    Amazing to hear all the successes continuing!

    Which Judge and court?
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • FJ1000
    • By FJ1000 9th Jul 18, 8:52 AM
    • 33 Posts
    • 28 Thanks
    FJ1000
    Thanks!

    Croydon County Court - didn't get the name of the judge
    • Coupon-mad
    • By Coupon-mad 10th Jul 18, 1:17 AM
    • 61,573 Posts
    • 74,439 Thanks
    Coupon-mad
    Glad to see you got your ordinary costs, at least. What a scam the industry is.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

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