Response from Gladstone after sending my defence Options

[S1one]

Hello All,

Using information from http://forums.pepipoo.com/index.php?showtopic=105175 I prepared defence against claim from Gladstone.
I received by post with similar response to what marky123 got and with N180 and N159 and REQUEST FOR SPECIAL DIRECTION attached:

We act for the Claimant and have notified the Court of our Client’s intention to proceed with the claim.

Please find attached a copy of our Client’s completed Directions Questionnaire, which will be filed with the court upon their request. You will note we intend to request a special direction that the case be dealt with on the papers and without the need for an oral hearing.

This request is sought simply because the matter is in our Client’s opinion relatively straightforward and the costs incurred by both parties for attending an oral hearing would be disproportionate. We trust you agree.

You will note our Client has elected not to mediate. Its decision is not meant to be in any way obstructive and is based purely on experience, as mediation has rarely proven beneficial in these types of cases. Notwithstanding this, our Client would be happy to listen to any genuine payment proposals that you wish to put forward

I prepared response to it using Gan post:

The Defendant has been informed that the Claimant has proposed a hearing on the papers because it considers the matter to be relatively straightforward.
The Claimant also requests to transfer the hearing to the claimants local court if the Defendant does not consent.

The Defendant objects strongly to these proposals.

The Defendant denies that the matter is relatively straightforward.

The issues in dispute include uncertainty about the boundaries of the parking area and the signage that was in place at the time
As a litigant in person, the defendant would be seriously disadvantaged against the claimant, a parking company that has employed its trade association's solicitor to prepare its documents.
The defendant will probably also wish to question the claimant regarding its witness statement and other documents.
The defendant will in particular wish to verify that any photographs submitted by the claimant show the signage in place at the time of the event and not the new clearer signs that have since been painted or erected.

The defendant therefore requests that the matter is transferred to his local court in accordance with the Civil Procedure Rules when the defendant is a consumer.

Question is should I send it to court or Gladstone?
If to court should I wait for documents from court ?

Thank you for your help.

S1one

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[ostell]

You should get your own Directions Questionnaire from the court. Check with the court that it has been sent to you and include that letter with your returned DQ. You have to copy Gladstones as well.

[S1one]

You should get your own Directions Questionnaire from the court. Check with the court that it has been sent to you and include that letter with your returned DQ. You have to copy Gladstones as well.

I got Directions Questionnaire mine already, I wrote defence in it.
Should I expect another one?


Thank you

[Eljayjay]

I suggest you google "directions questionnaire". You will find that it is a form N180 and that it has no space for you to enter your defence.

[S1one]

I have hearing on Monday.

But I received following document today.
Should I be worrying? Is this some trick?

Thank you

Attached thumbnail(s)

 

[cabbyman]

Call the court. It's not unknown for the hearing to proceed after that letter.

#In any event, prepare your costs schedule. It is wholly vexatious to purport to vacate at this late stage.

[kommando]

No discontinuance only non attendance, so hearing is still on and you attend and the judge but no Gladstone's,, they will be disadvantaged so prepare costs.

[Redivi]

Yes

It means that the hearing will go ahead without their attendance

I suggest that you come prepared with a list of questions that you wanted to ask the Claimant if it had turned up
In particular have questions that pick holes and uncover the untruths in their witness statement

As we have no idea what the case is about and your defence, we can't suggest them

This post has been edited by Redivi: Wed, 25 Jul 2018 - 20:46

[S1one]

Thank you very much for replies, I got same letter before on June 28th, but previous one wasn't signed.

What do you mean by prepare cost, my costs associated with this case like day off from work, cost of travel?

I'll prepare questions.

Should I call court to check if hearing is still on?

Thank you

[ostell]

The hearing is still on, prepare your costs because of unreasonable behaviour. As suggested you wanted to ask questions about their witness statment.

Costs because of their unreasonable behavioour are your time at £19 per hour, postage and paper costs.

[nosferatu1001]

Your costs are: Loss of pay or leave, for half a day, capped at £95. Take proof. Mileage and parking

Those you get regardless

Then you have a seperate section wherre, pursuant to CPR27.14(2)(g) you claim the following costs due to the claimants unreasonable behaviour, such as... and you include the fact you were unable to question the witness on the holes in their witness statement.

WE are stating this because we expect you to have found the holes. ITs gladstones, there are ALWAYS holes. State their non-attendance, when all their evidence is witness led, is unacceptable as it has denied you your right to question them.

Also, the more holes you pick in court, the more you can get the statement dismissed as being unrelaible.

[S1one]

Hello

This is actually my 2nd hearing.
During 1st one I requested translator (not a native speaker, not sure if it judge agreed on my request).
Also Gladstones didn't provided witness statement and I've prepared my proofs and questions without witness statement.
We were asked to provide witness statements, after hearing, first GS then me.

Should I expect barrister?

I have some proofes of parking costs, postage. Do I understand this correctly that I can request 2x lost pay/leave per 2 hearings.


Can you have a look at following witness statements:
GS WS
http://44112d66ecae1c1ff3eb-bcb5cc599f865d...ss-statment.pdf

My WS:
http://44112d66ecae1c1ff3eb-bcb5cc599f865d...om/out-0001.png


What kind of holes can you see?



Thank you

This post has been edited by S1one: Thu, 26 Jul 2018 - 19:28

[nosferatu1001]

They will likely have a representative, but nothing to worry about.

You should therefore ask for wasted costs of first hearing, where Gladstones did not provide a witness statement, so same as the ordinary costs above - another half day capped at £95, etc.

If you are picking holes you should write down a BULLET POINT list of them. Have you had a look through yourself?

Firstly - the person writing this wasnt there on the day, has never met the driver, and will be using a preprepared WS from Gladstones. If you look into OTHER threads than thsi, you will see the format is very familiar! Secondly, the person who wrote this will not be there. So you need to send to the court AND to Gladstones a requirement that the witness attends, so you can cross examine them. THey will still not attend, but it puts them on the back foot straight away

4) The criminal case of Elliot V Loake did NOT make that presumption. This is a bald faced LIE by the "witness". It is also a new argument that they did NOT make in their particulars, and has no place in the Witness Statement. But the court will let that slide.

If you do a search on Elliot v Loake, you will see there was adequate forensic evidence tying the keepers car to the location, and the keeper stated they had the keys on them. This meant there was proof beyond reasonable doubt that it was Loakes car AND that Loake was driving. No presumption - evidemce. Parliament could have chosen, when enacting POFA2012, to make such an assumption. They did not. THey could also have made it a requirement - like S172 of the RTA1988 - that the Keeper of a vehicle MUST identify the driver in this situation. They did not. So you put the Claimant to strict proof of the drivers identity, noting the burden of proof is on the clamiant to prove their case - not the defendants to disprove it.

5) I dont believe UKCPM manage to obtain Keeper liability - you should know this by now? Did their notice comply with POFA2012?
THey havent proven this - they havent even adduced into evidence the Notice to Keeper, at this point, nor demonstrated how it complies. They have just made an assertion that it does. So, if you can show it does NOT comply, then they have again lied.

8) Just because £85 wasnt excessive does not mean £100 isnt as well. There is no fact here, just conjecture.

9) Here you can attack the sparse particulars with facts. State they only used X characters of the allowed 1080 (not words, the individual letters are limited to 1080 - they usually use around 400) AND you state that the claimant is entitled, if they feel the claim is brief, to append "Further Particulars" which are sent directly to you, the defendant. So this is not an excuse! The claim failed to specificy a Cause of Action and was therefore flawed. The Claimant and their Solicitors have been ordered to provide Further and Better Particulars and had their claim struck for dislosing no cause of action, on previous occasions. They are aware that their particualrs are insufficient.

10) DId you ask the CLaimant to send you more documents? If YES and they DID NOT send more, then here you can point out that you asked, they didnt send. This is also not a fact, and they cannot presume the D has sight of documents initially sent more than 2 years previously. THis is just yet another template sentence!

12) This does not prove anything. THey have not referenced the size, location, number of signs etc. Nothing. Here is where you can point out the lack of signage, using YOUR evidence.

14) This isnt a fact, just a denial. It is fact, however, that this is a tempalte WS.

15) Here they are again assuming the D (you) is the driver, whcih they are not entitled to do. They are assuming a contract exists. They are dismissing that they do not have authority to issue charges, and that this is a REQUIREMENT of their Trade Body. Breach of the Code of Practice means they MAY NOT use Beavis to support their charge - because the Supreme Court made it one of the requirements to "lfit" the normal rule that such charges are penalties, that the Claimant abides by its code of practice

AS the claimant has not provided its contract, and proven it has authority, it is in breach of its Code of Practice, and the Penalty Rule must remain in place - and Penalties CANNOT be charged by companies, only the government can issue penalties!

17) POFA makes it clear that the D is only liable fo rthe charges on the original Notice to Keeper, and as the C is claoming to pursue the Defendant under that law, they are bound. Additionally, staff are hired t perform precisely those functions - it is a normal part of their job, and so cannot constitute damages.

18) By relying on Beavis, the Claimant must rely on ALL of Beavis; namely, authority to operate, compliance with Code of Practice which you have demonstrated they do NOT comply with, conspicuous signs - which you again prove are not - with the AMOUNT OF THE CHARGE being PROMINENT - whcih again, you can prove is not the case. There must also be an overwhelming COMMERCIAL INTEREST. HEre there cannot be any commercial interest, except for the parking company - and that alone is insufficient.

Additionally, by not displaying a permit, the driver was not bound by the signs. The signs make no offer of parking to those without a permit - it actually forbids. There cannot be a contract with out an offer. Here, not only is the Claimant unable to offer parking as they lack the authority to do so, and thus can offer no consideration, the signage purporting to offer the contract makes no such offer.

20) is a complete fabrication. There is no commercial site requiring a high turnover - in fact, a driver with a permit r other authority to park may park entirely witout charge for as long as they wish. Plsu the issues I gave you at 18)

21) The claimant offers no parking service, has no authority to offer consideration in the form of parking spaces, and makes no offer to someone parking without a permit at all. THe claimant could have adopted the sings used in Beavis, but chose deliberately not to.

22) Parking Eye vs somerfield confirmed that only the original amount may not be considerd a penalty, and disallowed - as does POFA - any further charges being added

23) That is not a quote given from the sign - where does that quote come from?

The court is invited to conclude the "Witness" was no such person - they have probably never visited the site, and have simply signeed a preprepared statement that contains remarkably few facts, and a lot of assumption.

The court is also invited to conclude that the CLaimant is a stragner to the Defendants Primary contract, authorising them to use the land for the ordinary purpose of Loading and unloading heavy items, for a short period. Life in a shared block would be intolerable if this could not be performed. The Ds lease does not restrict them from this use. At no point was the vehicle "parked" - it was engaged in continuous loading and unloading, a seperate and distinct activity which is perfectly permitted under normal road rules, and in the absence of clear, inconspicuous signage to the contrary, woudl be expected here.

YOUR JOB NOW is to go through their WS again, summarise my commeents into BULLET POINTS for you to work with on the day.



Your WS - 6 is not realy helpful.

[S1one]

Hello All

Thank you very much for your help, especially nosferatu1001 .

I got my 2nd hearing today. No one from claimant show up, not even barrister.

Because GS informed court on July 24th that client won't be attending 2nd hearing, Judge struck out case.
He said it was late notification.

GS also failed to send WS to court (or it's lost) and mine WS is not in court either(I have postal confirmation from post).

I got around £107 wasted costs ruled for today's half day, parking and travel costs.

I asked same for a 1st hearing, but Judge told me that I should ask then.

Now GS has 14 days to accept ruling or they can respond, which I what I understood will bring case again.

Thank you

[ostell]

I got around £107 wasted costs ruled for today's half day, parking and travel costs.

Popcorn time ?

[S1one]

I got around £107 wasted costs ruled for today's half day, parking and travel costs.

Popcorn time ?

I rather prefer to receive no answer from GS and cheque first

Cheers

[S1one]

I got my cheque today from Gladstones Solicitors, to be fair I am quite surprised.
I hope it case closed.

Thank you all for your help.