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  • FIRST POST
    • raserfabi
    • By raserfabi 6th Nov 18, 9:28 PM
    • 6Posts
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    raserfabi
    Gladstones Letter Before Claim (New Generation Parking)
    • #1
    • 6th Nov 18, 9:28 PM
    Gladstones Letter Before Claim (New Generation Parking) 6th Nov 18 at 9:28 PM
    Hi Everyone,

    I've followed the usual recommendations of reading the *NEWBIES* thread and searching for similar cases. However, I can't seem to find any cases which appear similar to my current situation - therefore I've started my own thread in the hope of getting some more specific guidance.

    Background

    My girlfriend and I moved into a flat in June 2018. As part of our contract, we were allocated a garage to the rear of our apartment block which can fit one car. All was well and good until we went to collect our apartment keys and the estate agent told us that the previous occupants had failed to return the garage key. However, the estate agent told us that they should have a replacement key within the next few days, and we should just park in the car park (permit holders only) at the front of the apartment. Unsurprisingly, approximately 6 weeks went by before we got a replacement garage key. After this, we then ran into more problems as we found that there was a gate on the lane to the garages which was locked occasionally and, of course, we didn't have a key for that either ! Another couple of weeks went by until we got a key for the gate. Just to clarify, we were very proactive with the estate agents and called multiple times asking for the keys.

    During this 8-ish week period, we received numerous PCNs from New Generation Parking. After tearing up the tickets and ignoring the "invoices", my girlfriend and I then received numerous 'Notice to Owner/Keeper/Hirer' letters through the post. Again, we ignored them thinking that was the right thing to do (I have since learnt that the advice is to appeal via POPLA). For some but not all of the parking charges, we then received a 'FINAL REMINDER - Notice to Owner/Keeper/Hirer'. Again, these letters were ignored.

    Current Situation

    We have now received a 'Letter Before Claim' form Gladstones solicitors stating that they have been instructed to commence legal action against us to recover an amount of 160 as we have failed to provide a valid reason for non-payment. FYI - We were not sent a final warning for this PCN reference number, is this normal or have they broken a rule there?

    Although Gladstones state at the start of their letter that they have been instructed to commence legal proceedings, they then go on to say that legal proceedings will only commence if the outstanding debts are not repaid?? The letter also says that if we believe there is a valid reason for non-payment we are able to reply pursuant to Paragraph 4 of the Pre-Action Protocol for Debt Claims under the Civil Procedure Rules 1998.

    Next Steps...?

    I feel slightly out of my depth now that solicitors are involved and they are quoting protocols that I am completely unfamiliar with. However, I feel that although we were parking without a permit we were doing so as per the estate agent's advice. As a result, we have now had over 15 PCNs issued to us - at 160 each, this is an extortionate amount that we simply can't afford to pay.

    My first thought was to call up the estate agent tomorrow and explain the situation in the hope of them getting our PCNs cancelled. Is this the right thing to do?
    Also, what shall I do if the estate agent palms me off and says they can't help? Do I reply to the letter from Gladstones?

    I'd really appreciate any help you guys could give!

    Cheers
Page 1
    • Coupon-mad
    • By Coupon-mad 6th Nov 18, 9:37 PM
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    Coupon-mad
    • #2
    • 6th Nov 18, 9:37 PM
    • #2
    • 6th Nov 18, 9:37 PM
    We were not sent a final warning for this PCN reference number, is this normal or have they broken a rule there?
    Normal - forget it. you binned the letters which will have included all sorts of daft demands, and there are no such rules.

    Do you own the flat, as you talk about an estate agent? Or tenancy/letting agent?

    Was the place the car was parked each time, a secure area, or a designated parking area, or not?

    The Defendant (you, or your girlfriend?) needs to send (online*) a SAR to the parking firm (not Gladstones) asking their Data Protection Officer (DPO) for all letters sent, all photos taken and a summary of all PCNs that they consider outstanding and ask them why they have paid no regard to the residents' primacy of contract, and the rights and easements that allow residents to park in that area.

    Send a copy to Gladstones. Demand that they revert to thair client in view of your primacy of contract as a resident with lease rights.

    Attach (for both) a copy of anything from your lease/tenancy that grants you unfettered RIGHTS to park, or talks about a grant or easement, or peaceful enjoyment without interruption by the landlord, etc.

    Do not use the Royal Mail, both these contacts should be by email and you can easily find umpteen Gladstones emails by searching this forum!



    * find the DPO's email or address, from the parking firm's Privacy page.




    P.S. your case is like all the other residential cases! 99% won at court.

    DO NOT BE STEERED INTO A COUNTER CLAIM BY A NEWER POSTER.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
    • raserfabi
    • By raserfabi 6th Nov 18, 9:52 PM
    • 6 Posts
    • 2 Thanks
    raserfabi
    • #3
    • 6th Nov 18, 9:52 PM
    • #3
    • 6th Nov 18, 9:52 PM
    Thanks a lot for the reply Coupon_mad.

    - No we do not own the flat, the 'estate agent' I am referring to is the letting agent we rent from.

    - I don't think the car park is 'secure' as such because there are no gates or anything to get into the carpark, however there are signs saying that it is for permit-holders only. So I'm assuming that would be classed as a designated parking area?

    -
    ...they have paid no regard to the residents' primacy of contract, and the rights and easements that allow residents to park in that area.
    - sorry to sound dumb, but what do you mean by this? Is there something within the tenancy agreement I should be looking to quote? Or is this a 'known right' within the parking community?

    - Within our tenancy agreement, it definitely mentions we are allocated a garage space but I'm not even sure if they mention the front carpark - could this be an argument as they do not state we cannot park there? (seems like I'm clutching at straws because there are loads of signs saying permit holders only but hey ho!)

    - Do you advise against contacting our letting agents then and going straight to Gladstones/New Generation? Or shall I pursue both avenues?

    Thanks again for your quick reply, I'm already feeling less anxious about this whole process!
    • Coupon-mad
    • By Coupon-mad 6th Nov 18, 9:55 PM
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    Coupon-mad
    • #4
    • 6th Nov 18, 9:55 PM
    • #4
    • 6th Nov 18, 9:55 PM
    But you were told you could park there, by your letting agent, why? On what basis did he/she give you that instruction/permission? Yes have a go at the estate agent, but also:

    You cannot hang about, you will be sued anyway (and most people do win, no risk, no CCJ, nowt bad!) so do the SAR to both, online/by email now, like I said. Attach anything in your tenancy or the advert, etc that tells you that you can park or have rights of way by vehicle (which you clearly MUST have, to access the garage and it makes little sense to me that you only have a garage).
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
    • raserfabi
    • By raserfabi 6th Nov 18, 10:21 PM
    • 6 Posts
    • 2 Thanks
    raserfabi
    • #5
    • 6th Nov 18, 10:21 PM
    • #5
    • 6th Nov 18, 10:21 PM
    Thanks a lot for your help.

    Do you recommend a template I should use when contacting New Generation/Gladstones?

    Or shall I write it myself?

    Cheers
    • Coupon-mad
    • By Coupon-mad 6th Nov 18, 10:26 PM
    • 65,831 Posts
    • 78,336 Thanks
    Coupon-mad
    • #6
    • 6th Nov 18, 10:26 PM
    • #6
    • 6th Nov 18, 10:26 PM
    Write it based on my post #2.

    I DETEST TEMPLATES! No idea why people ever want them.

    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
    • NeilCr
    • By NeilCr 6th Nov 18, 10:37 PM
    • 2,557 Posts
    • 3,676 Thanks
    NeilCr
    • #7
    • 6th Nov 18, 10:37 PM
    • #7
    • 6th Nov 18, 10:37 PM
    But you were told you could park there, by your letting agent, why? On what basis did he/she give you that instruction/permission? Yes have a go at the estate agent,

    ).
    Originally posted by Coupon-mad
    This. Absolutely this.

    On our estate we often find that letting agents are cavalier with the facts. You might also want to see if they are prepared to put in writing that they said you could park in the car park.

    The letting agent won't be able to cancel the tickets (unless they are the freeholder/landlord of the block). At that end it will be whoever has the contract with New Generation. Do you/your landlord know who owns the freehold? Is there a Managing Agent for the development?

    C_M. I know what you mean about the garage. But, a while ago I viewed a house on a smallish development. Some had garages only - others (like the one I looked at) had designated spaces and there were a few visitors spaces. I hadn't seen it before. Best guess they stuck up some garages to add a few thousand to the price of the more expensive properties!
    • raserfabi
    • By raserfabi 16th Dec 18, 5:11 PM
    • 6 Posts
    • 2 Thanks
    raserfabi
    • #8
    • 16th Dec 18, 5:11 PM
    • #8
    • 16th Dec 18, 5:11 PM
    Hello again everyone,

    Thanks for your advice so far, it's been really helpful.

    I followed the instruction given by @Coupon_mad to send a SAR to New Generation parking LTD. I also managed to get hold of my letting agreement which states I am allocated a garage space. I emailed this to Gladstones stating primacy of contract etc.

    I am yet to get a reply back from either party and NGP have not completed the SAR.

    I also recieved two county court claim forms in the post on Monday. NGP are asking for a total of 800 for four counts of "breaching the terms of parking on the land".

    I'm now becoming quite concerned and anxious about the prospect of court cases, CCJs etc.
    I don't even know where to start in producing my defence in terms of formatting and using language that's suitable for the court. Also, the two claim forms only mention 4 instances of when they issued a PCN, however I probably received about 20 over the space of the 6 weeks we were forced to use the car park. Is it likely that I will have to fight every single PCN or are they unlikely to pursue them if I win these two cases? To add insult to injury, the court address on the letter is in Northampton which is 200miles from my home address. Would I have to physically attend that court or is the defence process just submitting the defence form and waiting for the court to make a judgement?

    I guess the main question that I'm asking is 'What do I do next?'.
    • Castle
    • By Castle 16th Dec 18, 5:27 PM
    • 2,173 Posts
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    Castle
    • #9
    • 16th Dec 18, 5:27 PM
    • #9
    • 16th Dec 18, 5:27 PM
    If you do go to court you get to choose which one, (so probably your local one); Northampton is just the processing centre for the paperwork.
    • KeithP
    • By KeithP 16th Dec 18, 9:22 PM
    • 12,119 Posts
    • 12,865 Thanks
    KeithP
    What is the Issue Date on each of your Claim Forms?
    .
    • raserfabi
    • By raserfabi 17th Dec 18, 8:09 PM
    • 6 Posts
    • 2 Thanks
    raserfabi
    The issue date is 10/12/18 on both
    • KeithP
    • By KeithP 17th Dec 18, 8:47 PM
    • 12,119 Posts
    • 12,865 Thanks
    KeithP
    The issue date is 10/12/18 on both
    Originally posted by raserfabi
    With a Claim Issue Date of 10th December, you have until Monday 31st December to do the Acknowledgement of Service, but there is nothing to be gained by delaying it. To do the AoS, follow the guidance offered in a Dropbox link from post #2 of the NEWBIES FAQ sticky thread.

    Having done the AoS, you then have until 4pm on Monday 14th January 2019 to file your Defence.

    That's four weeks away. Loads of time to produce a perfect Defence, but don't leave it to the very last minute.


    When you are happy with the content, your Defence should be filed via email as suggested here:
    1. Print your Defence.
    2. Sign it and date it.
    3. Scan the signed document back in and save it as a pdf.
    4. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
    5. 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'.
    6. Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
    7. Do not be surprised to receive a copy of the Claimant's Directions Questionnaire, they are just trying to put you under pressure.
    8. 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.
    .
    • raserfabi
    • By raserfabi 13th Jan 19, 2:55 PM
    • 6 Posts
    • 2 Thanks
    raserfabi
    Defence
    Hi Everyone,

    I know I'm playing it a bit close but please see my draft defence below. I used a template from the NEWBIES forum. Any suggestions for improvements are greatly welcomed.

    Thanks a lot.
    -----------------------------------------------------------------------------------------------------

    IN THE COUNTY COURT
    Claim No.: E5GF06RH
    Between

    NEW GENERATION PARKING MANAGEMENT LTD
    (Claimant)

    -and-


    XXXXXXXXXXXXXX
    (Defendant)



    DEFENCE

    1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

    2. The Particulars of Claim on the N1 Claim Form refer to 'Parking Charge(s)' incurred on 08/08/2018. However, they do not state the basis of any purported liability for these charges, in that they do not state what the terms of parking were, or in what way they are alleged to have been breached. In addition, the particulars state 'The Defendant was driving the vehicle and/or is the keeper of the vehicle' which indicates that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5.

    3. The Particulars refer to the material location as 'Richmond Square CF24 3BF'. The Defendant has, since 01/07/2018, held legal title under the terms of a lease, to Flat No. 43 at that location. At some point, the managing agents contracted with the Claimant company to enforce parking conditions at the estate.

    4. Under the terms of the Defendant's lease, no references are made to conditions of parking motor vehicles.

    4.1. There are no terms within the lease requiring lessees to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same.

    5. The Defendant, at all material times, parked in accordance with the terms granted by the lease. The erection of the Claimant's signage, and the purported contractual terms conveyed therein, are incapable of binding the Defendant in any way, and their existence does not constitute a legally valid variation of the terms of the lease. Accordingly, the Defendant denies having breached any contractual terms whether express, implied, or by conduct.

    6. The Claimant, or Managing Agent, in order to establish a right to impose unilateral terms which vary the terms of the lease, must have such variation approved by at least 75% of the leaseholders, pursuant to s37 of the Landlord & Tenant Act 1987, and the Defendant is unaware of any such vote having been passed by the residents.

    7. Further and in the alternative, the signs refer to 'Permit Parking Only', and suggest that by parking without permission, motorists are contractually agreeing to a parking charge of 100. This is clearly a nonsense, since if there is no permission, there is no offer, and therefore no contract.

    7.1. The Defendant's vehicle clearly was 'authorised' as per the lease and the Defendant relies on primacy of contract and avers that the Claimant's conduct in aggressive ticketing is in fact a matter of tortious interference, being a private nuisance to residents.

    7.2. In this case the Claimant has taken over the location and runs a business as if the site were a public car park, offering terms with 100 penalty on the same basis to residents, as is on offer to the general public and trespassers. However, residents are granted a right to park/rights of way and to peaceful enjoyment, and parking terms under a new and onerous 'permit/licence' cannot be re-offered as a contract by a third party. This interferes with the terms of leases and tenancy agreements, none of which is this parking firm a party to, and neither have they bothered to check for any rights or easements that their regime will interfere with (the Claimant is put to strict proof). This causes a substantial and unreasonable interference with the Defendant's land/property, or his/her use or enjoyment of that land/property.

    8. The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 as a binding precedent on the lower court. However, that only assists the Claimant if the facts of the case are the same, or broadly the same. In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas it is the Defendant's position that no such breach occurred in this case, because there was no valid contract, and also because the 'legitimate interest' in enforcing parking rules for retailers and shoppers in Beavis does not apply to these circumstances. Therefore, this case can be distinguished from Beavis on the facts and circumstances.

    9. The Claimant, or their legal representatives, has added an additional sum of 60 to the original 100 parking charge, for which no explanation or justification has been provided. Schedule 4 of the Protection Of Freedoms Act, at 4(5), states that the maximum sum which can be recovered is that specified in the Notice to Keeper, which is 100 in this instance. It is submitted that this is an attempt at double recovery by the Claimant, which the Court should not uphold, even in the event that Judgment for Claimant is awarded.

    10. For all or any of the reasons stated above, the Court is invited to dismiss the Claim in its entirety, and to award the Defendant such costs as are allowable on the small claims track, pursuant to Civil Procedure Rule 27.14. Given that the claim is based on an alleged contractual parking charge of 100 - already significantly inflated and mostly representing profit, as was found in Beavis - but the amount claimed on the claim form is inexplicably 162.32, the Defendant avers that this inflation of the considered amount is a gross abuse of process.

    11. Given that it appears that this Claimant's conduct provides for no cause of action, and this is intentional and contumelious, the Claimant's claim must fail and the court is invited to strike it out.

    11.1. In the alternative, the Court is invited, under the Judge's own discretionary case management powers, to set a preliminary hearing to examine the question of this Claimant's substantial interference with easements, rights and 'primacy of contract' of residents at this site, to put an end to not only this litigation but to send a clear message to the Claimant to case wasting the court's time by bringing beleaguered residents to court under excuse of a contractual breach that cannot lawfully exist.

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






    . (Defendant)

    (Date)
    • Le_Kirk
    • By Le_Kirk 13th Jan 19, 4:29 PM
    • 3,726 Posts
    • 2,779 Thanks
    Le_Kirk
    The Claimant, or Managing Agent, in order to establish a right to impose unilateral terms which vary the terms of the lease, must have such variation approved by at least 75% of the leaseholders with no more than 10% objecting, pursuant to s37 of the Landlord & Tenant Act 1987, and the Defendant is unaware of any such vote having been passed by the residents.
    All looks good to my non-lawyerly eyes (just based on having read lots of similar residence defences) but you might want to add for emphasis the bit I have highlighted.
    • Coupon-mad
    • By Coupon-mad 15th Jan 19, 12:41 AM
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    Coupon-mad
    Looks good for your circumstances, it's longer than some but I recognise the points and they are not an old defence and are suitable =for a residential defence IMHO.

    I agree with Le_Kirk's comments.

    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
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