Printable Version of Topic

Click here to view this topic in its original format

FightBack Forums _ Private Parking Tickets & Clamping _ CCJ - Gemini Parking

Posted by: Trixie2 Fri, 22 Sep 2017 - 15:09
Post #1317935

Hello all and thanks in advance for your help here.

I was recently turned down for a credit card, which really surprised me as I know I have a good credit rating. When I got home I looked at my credit file and to my horror someone had taken out a CCJ against me, at my old address.

After a lot of digging it turns out it's a PPC. The ticket was received in January 2016 by Gemini Parking. I remember the day - the machine would not accept the driver's coins and when the button for help was pressed no one answered. No choice but to leave the premises and a couple of weeks later a ticket arrived in the post to me as the registered keeper. I was so busy with an incredibly stressful house move that kept almost falling through at the last minute, that I thought I'd appeal later. I forgot.

We eventually completed and on March 1st 2016 we moved house. We had a redirection on our post for a few weeks - plus I updated my details with the DVLA.

Now fast forward to today and I find out indirectly that in January 2017 they went to court in Northampton and got a CCJ completely without my knowledge. The court said the mail was never sent back to them - not much I can do about that as I don't know the new owners.

They said I can either pay the debt and the CCJ will remain on file for 6 years, or I can pay £255 to apply to have it set aside. Problem with that is, the judge might not find in my favour and then I still have to pay £260 for the debt.

What on earth do I do?? Should they have attempted to double check my address when they went to court?

Any help will be greatly appreciated.

Thanks.

Posted by: kommando Fri, 22 Sep 2017 - 16:43
Post #1317947

You have 3 choices 1 of which will do you no good at all so do not follow it but I include it for completeness.

1. Pay Gemini the CCJ amount, this will get it marked as satisfied but will still effect your credit rating so a pointless exercise.

2. Contact Gemini, and get them to agree to an uncontested set aside with you paying them for the CCJ and an amount for the non contested set aside expenses. This will clear your credit record and restore it to the correct status.

3. Apply to the court for a contested set aside, cost will be £255. This resets the claim back to the start giving you the ability to defend, if your defence works you pay nothing and get the £255 back.

QUOTE
Should they have attempted to double check my address when they went to court?


Yes, this will be part of your submission to 3 contested set aside, plus moving and you arranged for postal forwarding and informed DVLA.

Posted by: Trixie2 Fri, 22 Sep 2017 - 17:44
Post #1317967

Hi Kommando - thanks for your reply and your advice.

QUOTE
2. Contact Gemini, and get them to agree to an uncontested set aside with you paying them for the CCJ and an amount for the non contested set aside expenses. This will clear your credit record and restore it to the correct status.


What do you mean by uncontested set aside? Will this cost me anything? Who would be responsible for clearing my credit record? Them?


QUOTE
Should they have attempted to double check my address when they went to court?

Yes, this will be part of your submission to 3 contested set aside, plus moving and you arranged for postal forwarding and informed DVLA.


Would I still be able to do this if the address they had was correct at the time of the PCN issuing? I moved a month and a half later, but the CCJ was issued over a year later.

Posted by: kommando Fri, 22 Sep 2017 - 18:32
Post #1317980

QUOTE
What do you mean by uncontested set aside? Will this cost me anything? Who would be responsible for clearing my credit record? Them?


Uncontested means with Gemini's agreement to the set aside, they will be responsible for clearing the record so you need it all in writing, cost is what you owe them plus whatever they demand for the uncontested set aside.

QUOTE
Would I still be able to do this if the address they had was correct at the time of the PCN issuing? I moved a month and a half later, but the CCJ was issued over a year later.


Yes, they had a responsibility to check using a tracing service before raising the claim in case you did exactly what you did and moved, you did all the right actions and you can hardly have been get mail transferred 1 year later.

For a contested set aside you also need a defence that would work, it was their fault the machine was not working and they also did not answer, it needs fleshing out and more legal points added.


Posted by: nosferatu1001 Sat, 23 Sep 2017 - 00:14
Post #1318045

Plus £100 to file the uncontested set aside.

For a contested set aside if you can show service was not effected, ie they sent to an invalid address, then the set aside is automatically granted. You need to show you were “there to bevfound” at your new address - electoral register, council tax etc all show a simple check would have shown your current address.

For security you also add a one page defence on the main points covered in every defence.

Posted by: Trixie2 Mon, 25 Sep 2017 - 21:28
Post #1318690

Thanks all. It seems the plot has thickened.

I went round to see the new owner of my old house. She said she returned all mail for me to sender. She also said she got a call in January this year from a debt collector. They told her I owed £80 and the debt would affect her as it was connected to that address. It scared her enough to pay up!

She's happy to put everything down in a statement and she's going to check who she paid the £80 to as she couldn't remember.

Fingers crossed it's the same thing and I'll be able to get it set aside quite easily on the basis the fine was paid! Obviously I'll be paying her back.

I went to the CAB today and they've asked me to get everything from the court/Gemini/Gladstones, and to make a longer appointment with them and they'll help me. They said they're pushing for more scrutiny for PPCs.

Will keep you posted on how everything goes.

Thanks again for all your help.

Posted by: Jlc Mon, 25 Sep 2017 - 21:35
Post #1318691

That's shocking if they claimed that!!! A blatant lie.

Posted by: nosferatu1001 Tue, 26 Sep 2017 - 07:59
Post #1318718

You only have a limited time to make the application, from when you knew about the CCJ
do NOT delay waiting on CAB.

They are mostly useless, so take their advice with a pinch of salt. For example, their standard line on parking charges was written FOR THEM by the parking companies association......

Posted by: Trixie2 Tue, 26 Sep 2017 - 13:19
Post #1318797

QUOTE (nosferatu1001 @ Tue, 26 Sep 2017 - 08:59) *
You only have a limited time to make the application, from when you knew about the CCJ
do NOT delay waiting on CAB.

Oh God I didn't know that! How long do I have??

Posted by: nosferatu1001 Tue, 26 Sep 2017 - 13:27
Post #1318799

As soon as reaosnable - within 2 or 3 weeks I would suggest.

Posted by: Trixie2 Tue, 26 Sep 2017 - 20:19
Post #1318900

OK thank you. I'm so worried about this!

I'm considering paying the £274 and then applying to get the CCJ set aside. If I'm successful do you know if I'll be able to claim back the £255?

Posted by: SchoolRunMum Tue, 26 Sep 2017 - 23:36
Post #1318930

You can't pay it off then pay £255 to set it aside. The 3 options kommando set out in post #2 are mutually exclusive.

Read the NEWBIES thread post #2 on MSE where set asides are explained, with examples and yes, people have got the £255 back:

http://forums.moneysavingexpert.com/showthread.php?t=4816822

Not the first post, that's how you should have appealed and won in 2016. Second post shows you set asides. You can also search both forums for those words and read other people's threads to see what happened in their case. I can recall one case on here and one recent case on MSE where an idiot Judge refused to even set the CCJ aside, but hundreds (yes hundreds) on both forums where set asides are granted in your circumstances.

I would not pay the scumbags, I would go for £255 set aside and prepare evidence as discussed here:

http://forums.pepipoo.com/index.php?showtopic=115890

That OP seems to have run away from his thread. Don't do that, we can help you get this sorted. You need form N244 from your local court - and don't let the CAB tell you to write about the excuses and the story of what happened/who parked, in your attached Witness Statement!

Posted by: nosferatu1001 Wed, 27 Sep 2017 - 07:04
Post #1318956

QUOTE (Trixie2 @ Tue, 26 Sep 2017 - 21:19) *
OK thank you. I'm so worried about this!

I'm considering paying the £274 and then applying to get the CCJ set aside. If I'm successful do you know if I'll be able to claim back the £255?

No, you cannot do it that way, and if you are outside of the one month then paying merely means it is on your credit file as satisfied. Your rating is still garbage.

Do the set aside, contested or uncontested, but the only way to repair your credit rating is to get a succesful set aside.

You can only "claim back" the £255 if the court grants it, hence why your draft set aside order you MUST INCLUDE with your set asside application includes an order that the PPC pay you your fee.

Posted by: Trixie2 Wed, 27 Sep 2017 - 16:01
Post #1319082

Hi. Thank you so much for your help so far. I came home today to find that Gemini have indeed sent what they have to me so I have uploaded it below.

I think I am going to do the set aside and risk losing £255. I'll just have to chalk it up to experience if I lose.

I am currently reading through the links SchoolRunMum posted - thanks for those - huge help! I will start to write up my defense asap and post here.

Some thoughts - hope you don't mind me putting them down here:

1- When the PCN and the reminder notice were issued, Gemini had the right address. I had not yet moved. What defense could I have for ignoring them?

2- Although I moved on 1st March 2016, it appears I did not update the DVLA until April 20th 2016, and this case was transferred to DRP on 2nd April 2016, so assuming they issued their letter immediately and they checked the DVLA too, they would also have got my old address. Can't see a defense here either.

3- We had a mail redirection but I can't remember how long we did it for. Probably a few months, but I can't be sure. I do not remember getting anything from DRP. I had an 8 month old baby at this point and my mind wasn't on the ball.

4- I called DRP and they told me they have closed the case on their system so cannot access anything unless I pay £10. Do I do this? Otherwise I have no idea what letters were sent out and when.

5- The person that bought our old house said she would sign a statement and find out who she paid the £80 back in January. She is no longer taking my calls or replying to my whatsapps so I cannot rely on her :-( I could write in my own statement though that I spoke to her and she said she sent everything back to sender. Only problem here is the court said they did not get anything back. I do believe the buyer of our old house, so it could be that the Royal Mail were not doing their job properly.

6- Assuming DRP got the mail returned and Gladstones (no idea if they did though) they should have looked for me elsewhere. I am not on the open register but they would have found a registered address for the company I am a director of, and they could have had papers served there.

7- So from reading online it seems that for a set aside I have to show that DRP/Gladstones/Gemini had reason to believe I moved and did not try to look for me elsewhere. I also need to prove I have a robust enough defense that will probably win. I'm assuming the defense is why I didn't pay for parking? Or why the CCJ shouldn't have been obtained - not sure. Do you really think I can prove either?

8- I did not take pictures of signage back in January 2016 so no idea if I can prove their signage was in order. Will current photos be OK?

Thanks so much for reading this far!






Posted by: cabbyman Wed, 27 Sep 2017 - 16:12
Post #1319086

The first point that leaps out is that they are confusing parking time with entry and exit times so is is non compliant with PoFA. The car could not possibly have been parked for the time alleged.

Posted by: Trixie2 Wed, 27 Sep 2017 - 16:39
Post #1319097

Thanks Cabbyman. Just reading POFA at the moment. This stands out to me too:

(4)The notice must be given—
(a)before the vehicle is removed from the relevant land after the end of the period of parking to which the notice relates, and
(b)while the vehicle is stationary,by affixing it to the vehicle or by handing it to a person appearing to be in charge of the vehicle.

Nothing was attached to my car - it was issued 12 days after the incident, and was sent by second class apparently, so I would have received it a minimum of 14 days after.

Posted by: cabbyman Wed, 27 Sep 2017 - 16:45
Post #1319099

That only applies to Notices to Driver. Further down, Para 9 I think it is, applies to Notices to Keepers which is the applicable paragraph here. Compare everything in that para with the NtK. A fair bit of it will be missing.

How can you prove it was sent second class?

Posted by: Trixie2 Wed, 27 Sep 2017 - 16:46
Post #1319100

QUOTE (cabbyman @ Wed, 27 Sep 2017 - 17:45) *
That only applies to Notices to Driver. Further down, Para 9 I think it is, applies to Notices to Keepers which is the applicable paragraph here. Compare everything in that para with the NtK. A fair bit of it will be missing.

How can you prove it was sent second class?

OK thank you. I cannot prove it but when I called Gemini yesterday they told me it was sent second class when I asked.

Posted by: Trixie2 Wed, 27 Sep 2017 - 20:12
Post #1319157

Hi all. Thanks for your help so far. I've read all the links you provided but am slightly concerned that none are like mine. At the time the original PCN was issued and reminder notice I was still at the address they wrote to but I didn't respond. I only moved a month or so later and didn't update the DVLA for another month. When the claim went to court I had been in my new address for 9 months but I'm not sure if they'd have to double check at the point of court applications if they had the right address.

Any advice on what my defense might be for ignoring would be hugely appreciated.

Posted by: kommando Wed, 27 Sep 2017 - 21:25
Post #1319171

They are only allowed to access the DVLA once, they cannot do it again for the same parking event. Later when they come to raise a claim they are supposed to use a tracing company, that you took 5 or 6 weeks to update the DVLA is of no consequence and had no effect, DRP could not go to the DVLA.

Posted by: Trixie2 Wed, 27 Sep 2017 - 21:34
Post #1319173

QUOTE (kommando @ Wed, 27 Sep 2017 - 22:25) *
Later when they come to raise a claim they are supposed to use a tracing company


Thanks Kommando. Do they HAVE to? Gemini told me this is no longer anything to do with them and it was taken over by DRP and Gladstones (despite Gemini being mentioned in the court papers). So would it have been Gladstones that had to use a tracing company?

Posted by: SchoolRunMum Thu, 28 Sep 2017 - 00:10
Post #1319188

QUOTE (Trixie2 @ Wed, 27 Sep 2017 - 21:12) *
Hi all. Thanks for your help so far. I've read all the links you provided but am slightly concerned that none are like mine. At the time the original PCN was issued and reminder notice I was still at the address they wrote to but I didn't respond. I only moved a month or so later and didn't update the DVLA for another month. When the claim went to court I had been in my new address for 9 months but I'm not sure if they'd have to double check at the point of court applications if they had the right address.

Any advice on what my defense might be for ignoring would be hugely appreciated.

Never mind the first letter that had all the hallmarks of a scam, fake parking 'ticket' as outed years ago by Watchdog. You were ALLOWED to ignore it.

The fact is, you didn't get the court claim, and your silence for months should have suggested that their letters might not be reaching you - instead they've misused the court system as a cheap form of debt collection/CCJs by default. The entire industry is rotten and parking firms were singled out by the Government here:

https://www.gov.uk/government/news/new-measures-to-protect-consumers-from-debt-claims

http://parking-prankster.blogspot.co.uk/2016/12/government-announce-ccj-review-due-to.html

Use that to convince the Judge the innocent party is you, and also write a defence in readiness, to show you have a high chance of successfully defending what was a vexatious and meritless claim from the outset. As per all the other threads about CCJ set asides.


Posted by: nosferatu1001 Thu, 28 Sep 2017 - 07:59
Post #1319207

As above, really
Oh, and defenCe. UK spell check please!

You need to show that GOOD SERVICE of the claim forms was not given. You can say for 5) that you presume letters were returned but you cannot be sure - and dont have to be.

At your new address were you

On the electoral register?
Driving licence?
Utility bills there?

ERtc. ANYTHING showing you lived at that address, and would take literally FIVE MINUTES for a tracing company to find, shows that you were "3there to be found". That they did not get any response from you at the original address should have told any responsible firm that you may have moved - especailly given the length of time - and so they should have used a tracing firm. You were not hiding, if they had bothered they could have found you

As such good service of the claim was not made, meaning the set asidew SHOULD BE automatically granted. Again, you missed that you MUST ask the court, as part of your draft set aside order that YOU WRITE, to get gemini to pay you the £255 back. They appointed GS, so GS failing to do their job is the fault of Gemini.

IN ADDITION you write a defence, JUST IN CASE the court decides the claim forms were served. This must be ONE PAGE and NO MORE of A4.

As long as the driver has NOT been identified, then you can talk about POFA compliance. If they know who the driver is, and the claim was against them, then you cannot talk about POFA. It is irrelevant.

If the driver was NOT identified to them, edit ALL your posts to ensure they only talk about "the driver" - no "i", "she", "he" etc. You defnd this as the KEEPER at all points.

You defence has multiple grounds
No keeper compliance (if true)
parking paid for (if true)
no standing
signage woeful and incpable of offering a contract
forbidding signs (if they are forbidding, i.e.. permit holders only forbids anyone else from parking there)
amount is a clear penalty with no commercial justification (this has to be CAREFULLY written. Absolutely NEVER mention GPEOL)

Get on with this now, you've gotten more than enoughj to get a defence wtritten. Show it us ASAP.

Posted by: Trixie2 Thu, 28 Sep 2017 - 12:42
Post #1319277

Thank you thank you thank you!

Parking was not paid as machine would not accept money. No one answered the help button that was pressed twice and the kiosk was not manned. The driver had no choice but leave the premises.

I was not on the open register but my company was connected to that address and they could have got my registered company address and served papers there, which would have been forwarded on to me by my accountant by registered post.

Will get the defence sorted asap. Court sending copy judgement, council sending council tax bill to show I lived at my current address for 9 months when the papers were served. I can also print out my notice of completion from the solicitor to show the house was sold on 1st March 2016, and a print out of 192.com that shows the house was sold on that date. There's no doubt I was not living there.

Will go later to get photos of the hospital carpark.

Posted by: Trixie2 Thu, 28 Sep 2017 - 12:52
Post #1319281

Ps I found this on another thread..... How can I find out the POPLA appeal number so I can quote it? It's the same hospital a few months after mine was issued:

DecisionSuccessful
Assessor NameAdele Brophy
Assessor summary of operator case
The operator advises that the Parking Charge Notice (PCN) was issued due to failure to pay for the duration of stay.

Assessor summary of your case
The appellant’s case is that the operator has not complied with the equality act 2010 and has issued a non-compliant Notice to Keeper. The appellant states that the terms and conditions are unfair and the operator has no standing authority to pursue charges or form contracts with drivers. The appellant further advised that the Parking Charge Notice (PCN) is not a genuine pre – estimate of loss, and the signage at the site was not clear.

Assessor supporting rational for decision
Whilst the appellant has raised a number of grounds for appeal, my report will focus on genuine pre-estimate of loss as this supersedes all other grounds for appeal. The legality of parking charges has been the subject of a high profile court case, ParkingEye-v-Beavis. Cambridge County Court heard the case initially, handing down a decision in May 2014 that a parking charge of £85 was allowable. It held that the parking charge had the characteristics of a penalty, in the sense in which that expression is conventionally used, but one that was commercially justifiable because it was neither improper in its purpose nor manifestly excessive in its amount. Mr Beavis took the case to the Court of Appeal, which refused the appeal in April 2015, stating that the charge was neither extravagant nor unconscionable. Mr Beavis further appealed to the Supreme Court, which on 4 November 2015, concluded: “…the £85 charge is not a penalty. Both ParkingEye and the landowners had a legitimate interest in charging overstaying motorists, which extended beyond the recovery of any loss. The interest of the landowners was the provision and efficient management of customer parking for the retail outlets. The interest of ParkingEye was in income from the charge, which met the running costs of a legitimate scheme plus a profit margin. Further, the charge was neither extravagant nor unconscionable, having regard to practice around the United Kingdom, and taking into account the use of this particular car park and the clear wording of the notices.” As such, it is evident that I must consider whether the signage at the location was sufficient to bring the parking charge to the attention of the appellant and other motorists who may wish to park. Within Section 18.1 of the BPA Code of Practice it states that “A driver who uses your private car park with your permission does so under a licence or contract with you. If they park without your permission this will usually be an act of trespass. In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start. You must use signs to make it easy for them to find out what your terms and conditions are.” Furthermore, Section 18.3 of the BPA Code of Practice states, “You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand”. Within its response, the operator has provided a number of photographs documenting the signage at the location.. Upon close inspection of these photographs, I note that the parking charge is noted on several of these. However, the Supreme Court stated that the parking charge must be “clear”. Based on the evidence provided, I can only conclude that the signage in place does not meet the standards outlined by the Supreme Court in that the “wording of the notices” are not sufficiently “clear” to bring the parking charge to the attention of the appellant and other motorists who use this car park. In light of this, I can only conclude that the operator has failed to demonstrate it issued the Parking Charge Notice (PCN) correctly and so while I note the other grounds of appeal raised by the appellant, these do not require any further consideration.

Posted by: nosferatu1001 Thu, 28 Sep 2017 - 13:38
Post #1319301

It wont help to have the number really, as you can just quote the decision. it isnt binding on the court at all

Rememebr defence is one page and one page only. Short sharp LEGAL arguments - for example attempted o comply with the supposed contract but was frustrated by the failure of THEIR machine.

Posted by: Trixie2 Thu, 28 Sep 2017 - 22:20
Post #1319394

OK this is my first bash at it. I have combined a few similar cases and added my own bits in etc. What are your initial thoughts?

I am XXX and I am the Defendant in this matter.

This my supporting Statement in support of my application dated 27/9/17 to:

• Set aside the Default Judgement dated XXXXX as it was not properly served at my current address;
• Order for the Claimant to pay the Defendant £255 as reimbursement for the set aside fee; £18 reimbursement for 192.com subscription, £59 daily childcare cost needed to formulate defence.

1. Default Judgement
1.1. I understand that the Claimant obtained a Default Judgement against me as the Defendant in XXX 2017. However, this claim form has not been served at my current address and I thus was not aware of the Default Judgement XXXX. I only became aware of it when I was doing a routine check on my credit file. I understand that this Claim was served at an OLD ADDRESS (XXXXX). However, I moved to a new address on March 1st 2016, 10 months before the application to court was made. In support of this I can provide confirmation from Hertsmere Council showing my updated details for the purposes of paying Council tax. I can also provide a summary of completion from my conveyancing solicitor.

1.2 On 25th September 2017 I contacted Gemini Parking and spoke with XXX. She advised me that on 2nd April 2016 the case had been transferred to a debt collection agency, DRP, and then onto Gladstones Solicitors. She advised me that the case was no longer connected to Gemini Parking Solutions but did agree to send copies of the parking notices relating to this case.

1.3 I have never received any documentation from DRP or Gladstones Solicitors in this matter and I thus was never able to properly challenge this claim.

1.4 On 25th September 2017 I contacted DRP about this case. I was told they could not access any information on their systems as it had been transferred to Gladstones Solicitors.

1.5 I have made numerous calls to Gladstones Solicitors, all of which have gone unanswered, and I was unable to leave a voice message. I have since e mailed the company and received a bounce back e mail stating my communication would be answered in 28 days’ time. This means I still do not have any details of correspondence they might have sent me.

1.6. On Saturday 23rd September, I visited my old address and spoke to the current owner, XXXX. She advised me that all mail that was received at her address, XXXX, during 2016, after our mail redirection ended, was returned to sender, and clearly marked ‘no longer at this address’.

1.7 I believe the Claimant knew I no longer lived at the address they gave to the court, and has behaved unreasonably in pursuing a claim against me without taking reasonable steps to find a current and correct address for me at the time of issuing the Claim. It is obvious from the 192.com website that the house was sold on March 1st 2016 (see print out of 192.com entry). A tracing company would have been able to find me at my new address.

1.8. On the basis provided above I would suggest that the Claimant did not fulfil their legal duty to use my current address when bringing the claim.

1.9. A simple Google search of my full name brings up the name of my Ltd company, which is connected to my old address. The Companies House website, lists my company’s registered address. The Defendant had the opportunity to serve papers there, which would have been re-directed onto me at my current address. (See print out from Companies House website)

1.10. Considering the above I was unable to defend this claim properly. I thus believe that the Default Judgement against me was issued incorrectly and thus should be set aside.

2. Order for the original claim to be heard a re-hearing.

I understand that the Claimant is a Parking Company which seeks to claim for “parking charges” which the Claimant believes are due as a result of an alleged breach of contract for parking by a motorist.

I contend that I am not liable for the parking charge and the grounds for this are laid out below in further detail, and in summary are:

• Non-compliant ‘Notice to Driver’, and ‘Notice to Keeper’, rendering it invalid with no keeper liability.
• no contractual agreement formed with the driver due to unclear, inadequate and non-compliant signage

Summary of Events
2.1. On the XXX 2016 the driver pulled into the car park at Chase Farm Hospital for an appointment. Upon leaving the hospital the driver attempted to pay with cash. The machine did not accept the pound coins the driver was attempting to pay with and having no other means to pay, went to look for an operative in the booth adjacent to the machine. Upon finding the booth empty, the driver pressed the help button next to the machine. The call went unanswered and eventually cut off. The driver pressed the button again and waited but again the call went unanswered and eventually cut off. With no other option left, the driver returned to the car and left the premises.

2.1.2 It appears from copies sent to me by the Claimant, that a ‘Notice to Driver’, and a ‘Notice to Keeper’ was the sent to me, the Registered Keeper, stating a ‘parking charge’ was due, due to a breach of contract.

Non-compliant ‘Notice to Driver’, and ‘Notice to Keeper’
2.2. I assert that the Parking Notices, issued by the Claimant, do not comply with strict stipulations set out under the Protection of Freedoms Act, 2012, herein after referred to as PoFA, and therefore the Keeper is not liable for the charges.

2.3. Schedule 4 paragraph 9 of PoFA stipulates that some mandatory information must be included in the Notice to Keeper. If all of this information is not present then the Notice to Keeper is invalid and a parking company can only potentially pursue the (unidentified) driver.

2.4 The NTK issued by the Claimant is non-compliant under the POFA 2012, Schedule 4 paragraph 9 for the following 5 reasons:

9(2)(a). The NTK fails to specify the relevant land on which the car was parked. It simply states ‘Chase Farm’. This could either mean the fire station or the hospital (which in itself covers a large area of land). There are over 500ft between the fire station and the hospital, and are mutually exclusive. The NTK also fails to note the period of parking.

9(2)(b). The NTK fails to inform the keeper that the driver is liable for the parking charge and the amount, and that it has not been paid in full.

9(2)(e) The NTK does not state that they don’t know the name of the driver or the current address for the service of the driver.

9(2)(h) The NTK does not identify the creditor.

9(2)(i) The NTK does not specify the date the Notice was sent.

2.5. A Notice to Keeper is a fundamental document in establishing keeper liability. The requirements of Schedule 4 of POFA 2012 and the mandatory detail and wording to ensure a Notice to Keeper is compliant are prescriptive, unequivocal and a matter of statute, not contract law. Any omission or failure to set out the mandatory Notice to Keeper wording renders it non-compliant, meaning the keeper is not liable for any charges.

No contract formed due to unclear, inadequate, and non-compliant signage
2.6. I understand the Claimant asserts that the ‘parking charge’ relates to a breach of contract. I contend that no such contract was formed when the driver entered the car park on XXX 2016, due to signage, which did not comply with the BPA Code of Practice, or Supreme Court rulings, both of which state that for a contract to be formed, the binding terms and conditions must be ‘clear’ and ‘intelligible’, and bring the parking charge to the attention of the motorists who use the car park.

2.3. The requirement to pay £100 is not clear on many of the signs at Chase Farm Hospital, and none of the signs that are directed to the disabled driver are prominent as the Supreme Court commented on in ParkingEye Vs Beavis. Such an onerous obligation should be the most prominent part of the sign, as is stated in Lord Denning's Red Hand Rule. (Please see attached photos of signage at the car park in question)

2.4. Furthermore, The BPA Code of Practice states under appendix B, entrance signage:
“The sign must be readable from far enough away so that drivers can take in all the essential text without needing to look more than 10 degrees away from the road ahead.”
I have included a photograph of the sign drivers pass as they enter the car park. ‘PAY ON EXIT’ is the only text which is prominently displayed and intelligible to drivers, but no other essential text is readable from the car as you drive into the car park.

2.5. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. Nothing about Claimant’s 'parking charges' was sufficiently prominent and it is clear that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance and fairness and transparency of terms offered in good faith) were not satisfied.

2.5.a. Furthermore, the BCP Code of Practice states that a mix of colours should not be used on signage as it could cause problems for people who have impaired colour vision. Many of the signs at Chase Farm Hospital are a mix of red and yellow, making them difficult to read, especially for me as I am almost totally colour blind.

2.6. I can also cite a recent case in which the Claimant pursued a claim for non-payment of a PCN at the same location of Chase Farm Hospital. The claim was dismissed at POPLA stage. A reason for dismissal was that the signage ‘does not meet the standards outlined by the Supreme Court, in that the ‘wording of the notices’ are not sufficiently clear to bring the parking charge to the attention of the appellant and other motorists who use this car park. The assessor concluded that ‘the operator has failed to demonstrate it issued the Parking Charge Notice (PCN) correctly’.

2.7 I contend that when the Claimant pursued this Claim in January 2017, they were fully aware their signage was non-compliant, due to the POPLA decision mentioned above, rendering any PCNs issued invalid.

2.8. I further submit that the Claimant’s claim is without merit due to substantial issues in law. This is for the following main reasons:

2.8.1. Lack of Standing by Claimant: The Claimant is unlikely to be the landowner of the car park in question, and will have no proprietary interest in it. This means that the Claimant, as a matter of law, will have no locus standi to litigate in their own name. Any consideration will have been provided by the landholder, and only they would have been able sue for any damages or trespass.

2.8.2. No Loss Suffered by Claimant: Their claim of £271 is presumably based on damages for the alleged breach of contract. It is a fundamental principle of English Law that a party who suffers damages through breach of contract can only seek through court action to be put back in the same position as they would have been if the breach had not occurred. In order to do so, they must demonstrate their actual, or genuine, pre-estimate of loss. I submit that had a contract been formed on XXX 2016, no loss was suffered by the Claimant as a result of any alleged breaches of contract on the part of any motorist of the vehicle of which I am the Registered Keeper. I further submit that any loss to the landholder (which would be the only party able to claim such losses) would be at most a few pounds.

2.9 On this basis I believe that the Claimant has not provided any reasonable cause of action and the claim should be dismissed in its entirety.

Posted by: nosferatu1001 Fri, 29 Sep 2017 - 07:02
Post #1319409

192.com subs - how on earth will they HAVE to pay for that? Nowhere do you even say it is a direct cost of you having to apply for the set aside, so why should they pay?
No hope on childcare costs
Literally we said the set aside fee. Assuming this goes to a hearing you can submit a schedule of costs a day before which would include half a day of work max, for loss of pay OR loss of leave (take along CPR27.14(e) I think which says loss of leave is claimable. easy enough to find)

No "i can provide" - you DO provide! Reference them into your WS.
we said give as much as possible. You've shown the house was sold, and ONE item to show your new address
How about - utility bills in your name, mobile phone, driving licence (NOT V5, driving licence), presence on electoral register, etc? I wouldnt really use the ltd company too much, and not as its own point. YOu want a single, concise point showing you were there to be found.

It was not "issued" incorrectly, it was never SERVED to you. Good service is the key phrase to use. Without good service the set aside should be automatically granted.

You want a witness statement signed by a statement of truth for this, I would say. I think the form even says so?

2 Order for hearing -why? You could say the claim has no merit as the claimant has not complied with the only legislative route open to them to pursue the Keeper of a vehicle, namely POFA2012, and as such you ask the court to strike the claim of its own volition. In the alternative, you ask the court to Order the claimant to produce Further and Better Particulars of Claim that fully specify the claim, as per the PDs and CPRs, and explain how a Keeper of a vehicle is liable in law when the requirements of POFA have not been met.

2.1.2 - if it was ANPR, then NO NtD is ever sent. The first communication MUST be the NtK, sent so it would be received within 14 days.

2.8.2 - no no no no no

Do NOT argue GPEOL. Its dead and buried. What you need to say is that the Beavis case supports your defence, as the penalty rule is clearly not disengaged in a case with unclear signage, where no contract was formed as the driver attempted to pay but left due to a failure by the claimant to maintain their machines in a fit and proper state, and where the terms have not been made abundantly clear enough to meet Lord Dennings "Red Hand Rule" (basically, and dont include this bit, onerous terms should be as obvious as if the sign had a huge red hand pointing at the terms in question)

For a new 2.8.2, You state the amount is instead unrecoverable, as POFA sets out that the only amount the keeper can be liable for is the amount in the Notice to Keeper, namely £X, and therefore...

How do you understand it is breach of contract? Have you had this confirmed somewhere? Usually GS particulars are woeful. In fact, that reminds me - youre missing the entire Preliminary Matters section found in all 2017 GS defences. Try here or MSE Forum - I believe Jonnersh or Loadsofchildren, both legally qualified, wrote them.

Wait on others feed back.

Posted by: Trixie2 Fri, 29 Sep 2017 - 08:56
Post #1319438

OK thank you. Will re-write later when toddler isn't needing me.

Posted by: Trixie2 Sat, 30 Sep 2017 - 08:52
Post #1319662

Hi. Here it is again. Apologies I've no legal training and have never had to write anything like this before, so please excuse any mistakes I make. What does PDs stand for? And what is a statement of truth? How do I lay it out?

I am XXX and I am the Defendant in this matter.

This my supporting Statement in support of my application dated 27/9/17 to:

• Set aside the Default Judgement dated XXXXX as it was not properly served at my current address;
• Order for the Claimant to pay the Defendant £255 as reimbursement for the set aside fee.

1. Default Judgement
1.1. I understand that the Claimant obtained a Default Judgement against me as the Defendant in XXX 2017. However, this claim form has not been served at my current address and I thus was not aware of the Default Judgement XXXX.

I only became aware of it when I was doing a routine check on my credit file. I understand that this Claim was served at an OLD ADDRESS (XXXXX). However, I moved to a new address on March 1st 2016, 10 months before the application to court was made.

In support of this I will provide confirmation from Hertsmere Council showing my updated details for the purposes of paying Council tax. I will also provide a summary of completion from my conveyancing solicitor, utility bills in my name at my current address, mobile phone bills, and my driver’s license. The Claimant also had the opportunity to serve the claim at my limited company’s registered address, which was easy to find. In support of this I will submit Company House details of my company showing the registered address.

1.2 On 25th September 2017 I contacted Gemini Parking and spoke with XXX. She advised me that on 2nd April 2016 the case had been transferred to a debt collection agency, DRP, and then onto Gladstones Solicitors. She advised me that the case was no longer connected to Gemini Parking Solutions but did agree to send copies of the parking notices relating to this case.

1.3 I have never received any documentation from DRP or Gladstones Solicitors in this matter and I thus was never able to properly challenge this claim.

1.4 On 25th September 2017 I contacted DRP about this case. I was told they could not access any information on their systems as it had been transferred to Gladstones Solicitors.

1.5 I have made numerous calls to Gladstones Solicitors, all of which have gone unanswered, and I was unable to leave a voice message. I have since e mailed the company and received a bounce back e mail stating my communication would be answered in 28 days’ time. This means I still do not have any details of correspondence they might have sent me, and no evidence appears to have been submitted to the County Court in support of their claim.

1.6. On Saturday 23rd September, I visited my old address and spoke to the current owner, XXXX. She advised me that all mail that was received at her address, XXXX, during 2016, after our mail redirection ended, was returned to sender, and clearly marked ‘no longer at this address’.

1.7 I believe the Claimant knew I no longer lived at the address they gave to the court, and has behaved unreasonably in pursuing a claim against me without taking reasonable steps to find a current and correct address for me at the time of serving the Claim. It is obvious from the 192.com website that the house was sold on March 1st 2016 (see print out of 192.com entry). A tracing company would have been able to find me at my new address, which would have been easy to do.

1.8. On the basis provided above I would suggest that the Claimant did not fulfil their legal duty to use my current address when bringing the claim.

1.9. Considering the above, I was unable to defend this claim properly. ‘Good service’ cannot be claimed as court papers were never served to me. Therefore the Default Judgement against me was issued incorrectly and should thus be set aside.

2. Order to strike out the Claim

Preliminary Matters
From the copy Judgement sent to me by the County Court, on 29th September 2017, it appears the Claimant is seeking “parking charges”, from me, the Registered Keeper of vehicle XXXXX, which the Claimant believes are due as a result of the driver ‘breaching the terms of parking’ at ‘Chase Farm’.

2.1. However, the Claimant has failed to include a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the Claimants contractual authority to operate at Chase Farm Hospital as required by the Claimants Trade Association's Code of Practice B1.1, which states:

“1.1 If you operate parking management activities on land which is not owned by you, you
must supply us with written authority from the land owner sufficient to establish you
as the ‘Creditor’ within the meaning of the Protection of Freedoms Act 2012 (where
applicable) and in any event to establish you as a person who is able to recover
parking charges.”

Without any evidence of this contract, as a matter of law, the Claimant will have no locus standi to litigate in their own name, and the claim is therefore invalid. Any consideration will have been provided by the landholder, and only they would have been able sue for any damages or trespass.

2.2 I further contend that I am not liable for any parking charges, as the Claimant has not complied with the only legislative route open to them to pursue the Keeper of the vehicle, namely the Protection of Freedom’s Act 2012 (PoFA). As such I request the Court either strikes out the claim or requests from the Claimant Further and Better Particulars of Claim that fully specify the claim, as per the PDs and car park regulations, and explain how the Keeper of the vehicle is liable in law when the requirements of PoFA have not been met.

Summary of Events
2.3. On the XXX 2016 the driver pulled into the car park at Chase Farm Hospital for an appointment. Upon leaving the hospital the driver attempted to pay with cash. The machine did not accept the pound coins the driver was attempting to pay with and having no other means to pay, went to look for an operative in the booth adjacent to the help point. Upon finding the booth empty, the driver pressed the help button. The call went unanswered and eventually cut off. The driver pressed the button again and waited but again the call went unanswered and eventually cut off. With no other option left, the driver returned to the car and left the premises.

2.3.1 It appears from copies sent to me by the Claimant, that a ‘Notice to Keeper’ (NtK), and a ‘Reminder Notice’ (RN) was the sent to me, the Registered Keeper, stating a ‘parking charge’ was due, due to a breach of the terms and conditions of the car park.

Requirements of PoFA that have not been fulfilled, rendering the charge invalid:

• Non-compliant ‘Notice to Keeper’, rendering it invalid and therefore no keeper liability.
• no terms and conditions set out for the driver, due to missing, unclear, inadequate and non-compliant signage


Non-compliant ‘NtK’.
2.4. I assert that the NtK, issued by the Claimant, did not comply with strict stipulations set out under PoFA, and therefore the Keeper is not liable for the charges.

2.5. Schedule 4 paragraph 9 of PoFA stipulates that some mandatory information must be included in the Notice to Keeper. If all of this information is not present then the Notice to Keeper is invalid and a parking company can only potentially pursue the (unidentified) driver, NOT the Keeper.

2.6. The NTK issued by the Claimant is non-compliant under the POFA 2012, Schedule 4 paragraph 9 for the following 5 reasons:

9(2)(a). The NTK fails to specify the relevant land on which the car was parked. It simply states ‘Chase Farm’. This could either mean the fire station or the hospital (which in itself covers a large area of land containing many car parks). There are over 500ft between the fire station and the hospital, and are mutually exclusive. The NtK also fails to note the period of parking.

9(2)(b). The NtK fails to inform the keeper that the driver is liable for the parking charge and the amount, and that it has not been paid in full.

9(2)(e) The NtK does not state that they don’t know the name of the driver or the current address for the service of the driver.

9(2)(h) The NtK does not identify the creditor.

9(2)(i) The NtK does not specify the date the Notice was sent.

2.7. A Notice to Keeper is a fundamental document in establishing keeper liability. The requirements of Schedule 4 of POFA 2012 and the mandatory detail and wording to ensure a Notice to Keeper is compliant are prescriptive, unequivocal and a matter of statute, not contract law. Any omission or failure to set out the mandatory Notice to Keeper wording renders it non-compliant, meaning the keeper is not liable for any charges.

No terms and conditions set out to the driver, due to missing, unclear, inadequate, and non-compliant signage
2.8. The Claimant asserts that the ‘parking charge’ is due, due to a breach of terms of parking at the car park. I contend that no breach occurred when the driver entered the car park on XXX 2016, due to signage, which did not comply with the BPA Code of Practice, or Supreme Court rulings, both of which state that for a contract to be formed, the binding terms and conditions must be ‘clear’ and ‘intelligible’, and bring the parking charge to the attention of the motorists who use the car park.

2.9. The BPA Code of Practise states under appendix B, entrance signage:
“The sign must be readable from far enough away so that drivers can take in all the essential text without needing to look more than 10 degrees away from the road ahead.”

I have included a photograph of the sign drivers pass as they enter the car park. The ‘Pay on Exit’ sign is the only sign which is prominently displayed and intelligible to drivers, but the terms and conditions are not readable from the car as you drive into the car park. The requirement to pay £100 cannot be read from the entrance sign. Furthermore, the sign is still cordoned off, as it was in January 2016, so drivers cannot even approach the sign once they’ve left their car. Please see photos.

2.10. I further contend that the Claimant has not complied with the BPA Code of Practise, on signage, which states under appendix B, 18.3, that signage must be placed ‘throughout the site so that drivers have the chance to read them at the time of parking or leaving their vehicle’. As you will see from my photos of the car park, there are no terms and conditions within the car park, apart from terms and conditions for disabled drivers, which you would only pass by if you’d parked on that side of the car park. Even those signs are not prominent as the Supreme Court commented on in ParkingEye Vs Beavis. In this instance the driver did not pass a single sign containing any terms and conditions.

2.11. A Notice is not imported into the terms and conditions unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. Nothing about the Claimant’s 'parking charges' was sufficiently prominent and do not pass Lord Denning’s ‘Red Hand Rule’.

2.12. This is supported by a recent case in which the Claimant pursued a claim for non-payment of a ‘Parking Charge’ at the same location of Chase Farm Hospital. The claim was dismissed at POPLA stage. A reason for dismissal was that the signage ‘does not meet the standards outlined by the Supreme Court, in that the ‘wording of the notices’ are not sufficiently clear to bring the parking charge to the attention of the appellant and other motorists who use this car park. The assessor concluded that ‘the operator has failed to demonstrate it issued the Parking Charge Notice (PCN) correctly’.

2.13. Furthermore, the BCP Code of Practice states that a mix of colours should not be used on signage as it could cause problems for people who have impaired colour vision. The signs that are available at Chase Farm Hospital are a mix of yellow, blue, white, and black, making them difficult to read, especially for me as I am almost totally colour blind.

2.14. I contend that when the Claimant pursued this Claim in January 2017, they were fully aware their signage was non-compliant, due to the POPLA decision mentioned above, rendering any ‘Parking Charge’ notices invalid.

2.15. I further submit that the Claimant’s claim is without merit due to substantial issues in law. This is for the following main reasons:

2.16. The Claimant is claiming £271.67, which from the Judgement, appears to be made up of an inflated penalty, and costs. Had the Claimant complied with ALL the stipulations incumbent upon them set out in PoFA, the only amount the Keeper would be liable for is the amount clearly stated in the NK, which is £100, not the £160 stated in the Judgement (before costs).

2.17. However, in this case the £100 is a penalty, which is unrecoverable. Parking Eye Ltd Vs Beavis supports my case, in that the penalty rule cannot be disengaged where no rules and regulations are set out. As explained above, no terms and conditions were available for the driver on 7th January 2016, that would have met Lord Denning’s ‘Red Hand Rule’. Despite this, the driver did attempt to pay for the use of the car park, but was unable to due to a failure by the Claimant to maintain their machines in a fit and proper state.

2.18. On this basis I believe that the Claimant has not provided any reasonable cause of action and thus the claim should be dismissed in its entirety.

Posted by: Trixie Sun, 1 Oct 2017 - 11:28
Post #1319952

Hi sorry to bump. Im hoping to get this in the post tomorrow so wondered if I could get another steer on my post above please?

I forgot to mention, I'm not on the open register so they couldn't have found me quite so easily. That's why I put in my limited company bit because that is how they could have served me for sure.

re breach of contract, their paperwork says breach of terms and conditions. I've edited my WS to reflect that phrase.

Posted by: SchoolRunMum Sun, 1 Oct 2017 - 21:55
Post #1320086

QUOTE
'm not on the open register so they couldn't have found me quite so easily. That's why I put in my limited company bit because that is how they could have served me for sure.
Good, throw in any valid fact that shows you were there to be found.

QUOTE
BPA Code of Practise

2.13. Furthermore, the BCP Code of Practice


Both are wrong - this must say BPA Code of Practice each time.

Don't be surprised if the judge asks if you were driving seeing as you gave such a detailed account of what happened. You need to decide how to answer, if asked, because you can't lie at a hearing, and no-one here suggests it.

Just noticed that your WS actually admits it was you - if you do this, you CAN'T use the POFA at all:

QUOTE
The signs that are available at Chase Farm Hospital are a mix of yellow, blue, white, and black, making them difficult to read, especially for me as I am almost totally colour blind.


I would add in the Government policy on NHS Car Parks which says a business model of fines for a third party private firm, is unacceptable:

http://www.independent.co.uk/news/uk/home-news/hospitals-still-allowing-private-parking-firms-to-prey-on-visitors-with-penalty-fines-10047797.html

Here's the policy, which all NHS Trusts have received and has been the case since 2014:

https://www.gov.uk/government/publications/nhs-car-parking-management-htm-07-03

I would also include the fact the Government singled out parking firms for the sharp practice of stealth CCJs to address they knew or should have known were not the correct address for service of their victims:

https://www.gov.uk/government/news/new-measures-to-protect-consumers-from-debt-claims

Posted by: Trixie2 Mon, 2 Oct 2017 - 12:47
Post #1320264

Hi SchoolRunMum - thanks for the advice.

I have added your final point, re the Government singling out PPCs.

I am unsure how to add the NHS policy on third party fines. I went through the policy but couldn't find anywhere it said that. Are you able to point me in the right direction please?

Re colour of signs - I probably didn't explain that well. I saw their signs don't comply due to the colours so just fitted that one in - and added that I am almost totally colour blind. I didn't mean I was driving but I have re-worded that.

I have to be honest, I don't actually remember who was driving. The appointment was mine but that doesn't mean it was me who was driving - 3 of us were there that day. It was so long ago that I don't remember. It could have been any one of us that was driving. It was me that tried to pay though, which is why I remember it. I have edited the summary of events to say I don't remember who was driving - do you think that's OK? What would you advise?

Also what does PD stand for - Nosferatu mentioned it so I added it but don't know what it stands for.

Do you think this is ready to go?

I am XXX and I am the Defendant in this matter.

This my supporting Statement in support of my application dated 27/9/17 to:

• Set aside the Default Judgement dated XXXXX as it was not properly served at my current address;
• Order for the Claimant to pay the Defendant £255 as reimbursement for the set aside fee; £18 reimbursement for 192.com subscription, £59 daily childcare cost needed to formulate defence.

1. Default Judgement
1.1. I understand that the Claimant obtained a Default Judgement against me as the Defendant in XXX 2017. However, this claim form has not been served at my current address and I thus was not aware of the Default Judgement XXXX. I only became aware of it when I was doing a routine check on my credit file. I understand that this Claim was served at an OLD ADDRESS (XXXXX). However, I moved to a new address on March 1st 2016, 10 months before the application to court was made. In support of this I can provide confirmation from Hertsmere Council showing my updated details for the purposes of paying Council tax. I can also provide a summary of completion from my conveyancing solicitor, as well as a 192.com entry showing the house was sold. I will also provide evidence that the address of my registered company was readily available to the Claimant, where they could have served papers.

1.2 On 25th September 2017 I contacted Gemini Parking and spoke with XXX. She advised me that on 2nd April 2016 the case had been transferred to a debt collection agency, DRP, and then onto Gladstones Solicitors. She advised me that the case was no longer connected to Gemini Parking Solutions but did agree to send copies of the parking notices relating to this case.

1.3 I have never received any documentation from DRP or Gladstones Solicitors in this matter and I thus was never able to properly challenge this claim.

1.4 On 25th September 2017 I contacted DRP about this case. I was told they could not access any information on their systems as it had been transferred to Gladstones Solicitors.

1.5 I have made numerous calls to Gladstones Solicitors, all of which have gone unanswered, and I was unable to leave a voice message. I have since e mailed the company and received a bounce back e mail stating my communication would be answered in 28 days’ time. This means I still do not have any details of correspondence they might have sent me.

1.6. On Saturday 23rd September, I visited my old address and spoke to the current owner, XXXX. She advised me that all mail that was received at her address, XXXX, during 2016, after our mail redirection ended, was returned to sender, and clearly marked ‘no longer at this address’.

1.7 I believe the Claimant knew I no longer lived at the address they gave to the court, and has behaved unreasonably in pursuing a claim against me without taking reasonable steps to find a current and correct address for me at the time of issuing the Claim. A tracing company would have been able to find me at my new address.

1.8. According to publicly available information my circumstances are far from unique. The industry’s persistent failure to use correct and current addresses results is an unnecessary burden for individuals and the justice system across the country. I note that the Justice Minister The Rt Hon Sir Oliver Heald QC MP announced on the 23rd December 2016 a consultation and information campaign to help protect consumers from debt claims. The consultation will look at ways to; “better protect consumers who are sent mail to inaccurate addresses and verify addresses again before a claim is sent.” The Minister added that “In the digital age, we must ensure companies pursuing unpaid debts make every reasonable effort to contact individuals, rather than simply relying on a letter to an old address.” He singled out ‘poor practice by private parking companies’ and the issue is being tackled by the Department of Communities and Local Government.

1.9. On the basis provided above I would suggest that the Claimant did not fulfil their duty to use the Defendant’s current address when bringing the claim.

1.10. Considering the above, I was unable to defend this claim properly. I thus believe that the Default Judgement against me was issued incorrectly and thus should be set aside.

2. Order to strike out the Claim

Preliminary Matters
From the copy Judgement sent to me by the County Court, on 29th September 2017, it appears the Claimant is seeking “parking charges”, from me, the Registered Keeper of vehicle XXXXX, which the Claimant believes are due as a result of the driver ‘breaching the terms of parking’ at ‘Chase Farm’.

2.1. However, the Claimant has failed to include a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the Claimants contractual authority to operate at Chase Farm Hospital as required by the Claimants Trade Association's Code of Practice B1.1, which states:

“1.1 If you operate parking management activities on land which is not owned by you, you
must supply us with written authority from the land owner sufficient to establish you
as the ‘Creditor’ within the meaning of the Protection of Freedoms Act 2012 (where
applicable) and in any event to establish you as a person who is able to recover
parking charges.”

Without any evidence of this contract, as a matter of law, the Claimant will have no locus standi to litigate in their own name, and the claim is therefore invalid. Any consideration will have been provided by the landholder, and only they would have been able sue for any damages or trespass.

2.2 I further contend that I am not liable for any parking charges, as the Claimant has not complied with the only legislative route open to them to pursue the Keeper of the vehicle, namely the Protection of Freedom’s Act 2012 (PoFA). As such I request the Court either strikes out the claim or requests from the Claimant Further and Better Particulars of Claim that fully specify the claim, as per the PDs and car park regulations, and explain how the Keeper of the vehicle is liable in law when the requirements of PoFA have not been met.

Summary of Events
2.3. On the XXX 2016, I the registered keeper had an appointment at Chase Farm Hospital. I do not remember who was driving as it could have been 1 of 3 people. Upon leaving the hospital I attempted to pay with cash. The machine did not accept the pound coins I was attempting to pay with and having no other means to pay, went to look for an operative in the booth adjacent to the help point. Upon finding the booth empty, I pressed the help button. The call went unanswered and eventually cut off. I pressed the button again and waited but again the call went unanswered and eventually cut off. Ultimately I was not able to pay for the parking.

2.3.1 It appears from copies sent to me by the Claimant, that a ‘Notice to Keeper’ (NtK), and a ‘Reminder Notice’ (RN) was the sent to me, the Registered Keeper, stating a ‘parking charge’ was due, due to a breach of the terms and conditions of the car park.

Requirements of PoFA that have not been fulfilled, rendering the charge invalid:

• Non-compliant ‘Notice to Keeper’, rendering it invalid and therefore no keeper liability.
• no terms and conditions set out for the driver, due to missing, unclear, inadequate and non-compliant signage


Non-compliant ‘NtK’.
2.4. I assert that the NtK, issued by the Claimant, did not comply with strict stipulations set out under PoFA, and therefore the Keeper is not liable for the charges.

2.5. Schedule 4 paragraph 9 of PoFA stipulates that some mandatory information must be included in the Notice to Keeper. If all of this information is not present then the Notice to Keeper is invalid and a parking company can only potentially pursue the (unidentified) driver, NOT the Keeper.

2.6. The NTK issued by the Claimant is non-compliant under the POFA 2012, Schedule 4 paragraph 9 for the following 5 reasons:

9(2)(a). The NTK fails to specify the relevant land on which the car was parked. It simply states ‘Chase Farm’. This could either mean the fire station or the hospital (which in itself covers a large area of land containing many car parks). There are over 500ft between the fire station and the hospital, and are mutually exclusive. The NtK also fails to note the period of parking.

9(2)(b). The NtK fails to inform the keeper that the driver is liable for the parking charge and the amount, and that it has not been paid in full.

9(2)(e) The NtK does not state that they don’t know the name of the driver or the current address for the service of the driver.

9(2)(h) The NtK does not identify the creditor.

9(2)(i) The NtK does not specify the date the Notice was sent.

2.7. A Notice to Keeper is a fundamental document in establishing keeper liability. The requirements of Schedule 4 of POFA 2012 and the mandatory detail and wording to ensure a Notice to Keeper is compliant are prescriptive, unequivocal and a matter of statute, not contract law. Any omission or failure to set out the mandatory Notice to Keeper wording renders it non-compliant, meaning the keeper is not liable for any charges.

No terms and conditions set out to the driver, due to missing, unclear, inadequate, and non-compliant signage
2.8. The Claimant asserts that the ‘parking charge’ is due, due to a breach of terms of parking at the car park. I contend that no breach occurred when the driver entered the car park on XXX 2016, due to signage, which did not comply with the BPA Code of Practice, or Supreme Court rulings, both of which state that for a contract to be formed, the binding terms and conditions must be ‘clear’ and ‘intelligible’, and bring the parking charge to the attention of the motorists who use the car park.

2.9. The BPA Code of Practice states under appendix B, entrance signage:
“The sign must be readable from far enough away so that drivers can take in all the essential text without needing to look more than 10 degrees away from the road ahead.”

I have included a photograph of the sign drivers pass as they enter the car park. The ‘Pay on Exit’ sign is the only sign which is prominently displayed and intelligible to drivers, but the terms and conditions are not readable from the car as you drive into the car park. The requirement to pay £100 cannot be read from the entrance sign. Furthermore, the sign is still cordoned off, as it was in January 2016, so drivers cannot even approach the sign once they’ve left their car. Please see photos.

2.10. I further contend that the Claimant has not complied with the BPA Code of Practice, on signage, which states under appendix B, 18.3, that signage must be placed ‘throughout the site so that drivers have the chance to read them at the time of parking or leaving their vehicle’. As you will see from my photos of the car park, there are no terms and conditions within the car park, apart from terms and conditions for disabled drivers, which you would only pass by if you’d parked on that side of the car park. Even those signs are not prominent as the Supreme Court commented on in ParkingEye Vs Beavis. In this instance the driver did not pass a single sign containing any terms and conditions.

2.11. A Notice is not imported into the terms and conditions unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. Nothing about the Claimant’s 'parking charges' was sufficiently prominent and do not pass Lord Denning’s ‘Red Hand Rule’.

2.12. This is supported by a recent case in which the Claimant pursued a claim for non-payment of a ‘Parking Charge’ at the same location of Chase Farm Hospital. The claim was dismissed at POPLA stage. A reason for dismissal was that the signage ‘does not meet the standards outlined by the Supreme Court, in that the ‘wording of the notices’ are not sufficiently clear to bring the parking charge to the attention of the appellant and other motorists who use this car park. The assessor concluded that ‘the operator has failed to demonstrate it issued the Parking Charge Notice (PCN) correctly’.

2.13. Furthermore, the BPA Code of Practice states that a mix of colours should not be used on signage as it could cause problems for people who have impaired colour vision. The signs that are available at Chase Farm Hospital are a mix of yellow, blue, white, and black, making them difficult to read.

2.14. I contend that when the Claimant pursued this Claim in January 2017, they were fully aware their signage was non-compliant, due to the POPLA decision mentioned above, rendering any ‘Parking Charge’ notices invalid.

2.15. I further submit that the Claimant’s claim is without merit due to substantial issues in law. This is for the following main reasons:

2.16. The Claimant is claiming £271.67, which from the Judgement, appears to be made up of an inflated penalty, and costs. Had the Claimant complied with ALL the stipulations incumbent upon them set out in PoFA, the only amount the Keeper would be liable for is the amount clearly stated in the NK, which is £100, not the £160 stated in the Judgement (before costs).

2.17. However, in this case the £100 is a penalty, which is unrecoverable. Parking Eye Ltd Vs Beavis supports my case, in that the penalty rule cannot be disengaged where no rules and regulations are set out. As explained above, no terms and conditions were available for the driver on 7th January 2016, that would have met Lord Denning’s ‘Red Hand Rule’. Despite this, the driver did attempt to pay for the use of the car park, but was unable to due to a failure by the Claimant to maintain their machines in a fit and proper state.

2.18. On this basis I believe that the Claimant has not provided any reasonable cause of action and thus the claim should be dismissed in its entirety.

Posted by: Trixie2 Mon, 2 Oct 2017 - 13:21
Post #1320272

Just thinking - shall I take out the 'summary of events' and then that takes away any doubt on who was driving, cos I really don't remember. I just take out all reference that payment was attempted.

Posted by: kommando Mon, 2 Oct 2017 - 15:14
Post #1320292

I would leave it in but just reword to enforce the fact the driver could have been any 1 from 3 people of which the keeper was only 1, you need to show that it was their systems that were at fault not an attempt to not pay.

Posted by: Trixie2 Mon, 2 Oct 2017 - 16:28
Post #1320312

Ok thank you. I'll get this in the post tomorrow. Need to sort out format etc. Will keep you posted.

Posted by: SchoolRunMum Mon, 2 Oct 2017 - 18:00
Post #1320332

QUOTE (Trixie2 @ Mon, 2 Oct 2017 - 13:47) *
I am unsure how to add the NHS policy on third party fines. I went through the policy but couldn't find anywhere it said that. Are you able to point me in the right direction please?


https://www.gov.uk/government/publications/nhs-patient-visitor-and-staff-car-parking-principles/nhs-patient-visitor-and-staff-car-parking-principles

Contracted-out car parking
NHS organisations are responsible for the actions of private contractors who run car parks on their behalf.

NHS organisations should act against rogue contractors in line with the relevant codes of practice, where applicable.

Contracts should not be let on any basis that incentivises additional charges, eg ‘income from parking charge notices only’.

That is EXACTLY what happens in most paying NHS car parks at the moment - the machine tariffs go to the hospital (usually) and the scammers make their dirty money only from fines. Not allowed, but they ignore that. Point it out to the Judge.

Posted by: Trixie2 Mon, 2 Oct 2017 - 18:17
Post #1320335

So how would they enforce car park regulations without fines?

Posted by: Trixie2 Mon, 2 Oct 2017 - 19:56
Post #1320351

Thanks so much for your help so far. Does this read OK to stick on the end?

2.23. I’d further like to point out that this claim breaches the Department of Health guidance, which states there should be no incentive for private firms to fine people who stay in hospital car parks. Health Secretary, Jeremy Hunt, announced that hospitals should waive fines if visitors or patients overstay through no fault of their own. Despite the Guidance being issued in August 2014, the Claimant has continued to issue penalty notices and pursue them to the point of ruining people’s credit rating.

Also, I'm just filling out the N244 form and I wondered what I write for question 3, which is what am I asking the court to do. I've written 'seeking to set aside judgement' as suggested in their guidance. But it also asks me to write why. Should I write because the papers were not served at the correct address? Or should I write an old address? Not sure what to do. Thanks so much.

Also, am I right in presuming I don't need to include all my photos etc? I can just write on the form what I'm going to rely on and bring it to the hearing?

Posted by: SchoolRunMum Mon, 2 Oct 2017 - 21:02
Post #1320378

QUOTE (Trixie2 @ Mon, 2 Oct 2017 - 19:17) *
So how would they enforce car park regulations without fines?

LOL! You sound like them!

Barriers or gates that open with a ticket at the exit - that's what a Hospital I know does.

Polite signs help, not threatening ones with fines.

Loads of workable alternatives that don't fleece people. It's a Hospital for Gawd's sake, people don't go there as a destination of choice!


Posted by: Trixie2 Mon, 2 Oct 2017 - 22:09
Post #1320409

Thanks SchoolRunMum.

I'm beginning to worry that my WS is far too long. Should I take out all the detail and leave that for the hearing? Take out quotes of relative legislation etc?

Posted by: SchoolRunMum Mon, 2 Oct 2017 - 23:44
Post #1320436

I would remove these (too much detail or repetition) and in fact here in 2.1, you are talking about two different meanings of 'contract' because the 'copy of the written contract' means the sign that they reckon the driver saw, not the 'landowner contract':

QUOTE
2.1. However, the Claimant has failed to include a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the Claimants contractual authority to operate at Chase Farm Hospital as required by the Claimants Trade Association's Code of Practice B1.1, which states:

“1.1 If you operate parking management activities on land which is not owned by you, you
must supply us with written authority from the land owner sufficient to establish you
as the ‘Creditor’ within the meaning of the Protection of Freedoms Act 2012 (where
applicable) and in any event to establish you as a person who is able to recover
parking charges.”

Without any evidence of this contract, as a matter of law, the Claimant will have no locus standi to litigate in their own name, and the claim is therefore invalid. Any consideration will have been provided by the landholder, and only they would have been able sue for any damages or trespass.


You don't need this detail at this stage, it is enough to say the NTK is non-POFA:
QUOTE
2.6. The NTK issued by the Claimant is non-compliant under the POFA 2012, Schedule 4 paragraph 9 for the following 5 reasons:

9(2)(a). The NTK fails to specify the relevant land on which the car was parked. It simply states ‘Chase Farm’. This could either mean the fire station or the hospital (which in itself covers a large area of land containing many car parks). There are over 500ft between the fire station and the hospital, and are mutually exclusive. The NtK also fails to note the period of parking.

9(2)(b). The NtK fails to inform the keeper that the driver is liable for the parking charge and the amount, and that it has not been paid in full.

9(2)(e) The NtK does not state that they don’t know the name of the driver or the current address for the service of the driver.

9(2)(h) The NtK does not identify the creditor.

9(2)(i) The NtK does not specify the date the Notice was sent.



Unless you can evidence this POPLA appeal with a copy of it/POPLA code, etc., then it's hearsay from a forum(!):

QUOTE
2.12. This is supported by a recent case in which the Claimant pursued a claim for non-payment of a ‘Parking Charge’ at the same location of Chase Farm Hospital. The claim was dismissed at POPLA stage. A reason for dismissal was that the signage ‘does not meet the standards outlined by the Supreme Court, in that the ‘wording of the notices’ are not sufficiently clear to bring the parking charge to the attention of the appellant and other motorists who use this car park. The assessor concluded that ‘the operator has failed to demonstrate it issued the Parking Charge Notice (PCN) correctly’.




One POPLA decision doesn't render the entire signage invalid, so I wouldn't have this:

QUOTE
2.14. I contend that when the Claimant pursued this Claim in January 2017, they were fully aware their signage was non-compliant, due to the POPLA decision mentioned above, rendering any ‘Parking Charge’ notices invalid.



Posted by: Trixie2 Tue, 3 Oct 2017 - 07:09
Post #1320457

QUOTE (SchoolRunMum @ Tue, 3 Oct 2017 - 00:44) *
I would remove these (too much detail or repetition) and in fact here in 2.1, you are talking about two different meanings of 'contract' because the 'copy of the written contract' means the sign that they reckon the driver saw, not the 'landowner contract':

QUOTE
2.1. However, the Claimant has failed to include a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the Claimants contractual authority to operate at Chase Farm Hospital as required by the Claimants Trade Association's Code of Practice B1.1, which states:

“1.1 If you operate parking management activities on land which is not owned by you, you
must supply us with written authority from the land owner sufficient to establish you
as the ‘Creditor’ within the meaning of the Protection of Freedoms Act 2012 (where
applicable) and in any event to establish you as a person who is able to recover
parking charges.”

Without any evidence of this contract, as a matter of law, the Claimant will have no locus standi to litigate in their own name, and the claim is therefore invalid. Any consideration will have been provided by the landholder, and only they would have been able sue for any damages or trespass.




Oh OK.... Nosferatu said to look up 'preliminary matters' and include them and that's what I found. Do you know what preliminary matters I need please?

And one more question - shall I take out all the photos from my WS and just say in the box on the N244 form that I will provide them at the hearing?

Posted by: nosferatu1001 Tue, 3 Oct 2017 - 09:48
Post #1320507

The preliminary matters are how terrible their particulars of claim were when they filed the claim.

For question 3:
You are asking the court to set aside the judgement because the claim was never served on you; in the alternative you ask the court to set aside the judgement because the claim was never properly served on you AND you have a reasonable prospect of success defending the claim (i.e. your defence), AND you are asking the court to reimburse you for your set aside fee

You will not be able to claim for anything else, I reckon. Despite telling you that you hadn't justified the 192 sub nor the childcare costs, you STILL have not done so. Any court will wonder why you started a sub to 192 purely to show you were there to be found - as that is the only way you can claim it as a cost, if you already have the sub you cant claim it as its a cost you decided to bear independently of the case. For childcare, they'll simply state you could do that in the evening, after bed, why did you have to pay someone to write your defence - its small claims, THOSE COSTS CANNOT BE CLAIMED!

PD = Practice Direction. If you dont know an acronym search for it, or just look through your doc, see you had already written Practice Direction, and work it out from there wink.gif

QUOTE
1.9. On the basis provided above the Claimant did not fulfil their duty to use the Defendant’s current address when bringing the claim and therefore the claim was never served on the defendant. As such the defendant asks that the set aside is automatically granted.

1.10. In the alternative, and considering the facts above, the Defendant can show a reasonable prospect of success with any subsequent hearing, and the defendant asks that the set aside order is granted on that basis


Some suggested changes. remember I told you there are TWO routes to set aside; if you can show the claim was never *served*, the set aside should be automatically granted. If the court doesnt agree - i..e the papers were served - then you need to show a reaosn why you were unable to respond, AND also a reasonable prospect of success. That is the defence.
I would have a defence - 1 page of A4 - and a SEPARATE WS. This keeps it neat.

Photos - I would include them in the bundle, referenced. Yo uwill ALSO show them at the hearing. Seriously, you want as complete an application as possible.

Posted by: Trixie2 Tue, 3 Oct 2017 - 14:41
Post #1320597

Sorry this is late to the party I'm an idiot! I have just zoomed in to the picture of their 'terms and conditions' and nowhere does it say that failure to pay the tariff will result in a parking charge. It states that not parking within a bay or causing an obstruction will result in a charge, but it doesn't mention not paying the tariff. Does this make my defence much much simpler?? Other than causing an obstruction and parking within a bay, there are no terms and conditions stated on here.


Posted by: Trixie2 Tue, 3 Oct 2017 - 16:18
Post #1320629

I have completely re-written my WS based on this sign and will post a little later.

Posted by: nosferatu1001 Wed, 4 Oct 2017 - 06:51
Post #1320756

You include that as an ADDITIONAL point. You add that not paying that tariff does not mean the drivfer is liable for a charge.

Posted by: Trixie2 Wed, 4 Oct 2017 - 14:44
Post #1320865

Done and everything e mailed in, with an acknowledgement received back. Will keep you posted!

Posted by: nosferatu1001 Thu, 5 Oct 2017 - 07:09
Post #1320979

Printed signed and scanned? Ws has to be signed under a statement of truth. All evidence included in your submission?

Posted by: Trixie2 Thu, 5 Oct 2017 - 08:16
Post #1320992

Yes. Printed the last page and signed statement of truth. All photos sent as PDF doc as well. Signed the statement of truth on the N244 form as well and scanned that back.

Ps I didn't include all the proof of moving. The court said i can bring that to the hearing. Is that right?

Posted by: Trixie2 Thu, 5 Oct 2017 - 08:36
Post #1320995

Oh God just called the court again and spoke to someone else who said I should have sent it all! She said I shouldn't e mail it to them as they're working on a backlog, but wait until the case gets moved to my local court and then take it all there before the hearing.

Do you think that sounds right?

Posted by: Trixie2 Thu, 5 Oct 2017 - 10:06
Post #1321010

Apps I did write on the n244 form that is be supplying it won't be news to them.

Posted by: nosferatu1001 Fri, 6 Oct 2017 - 10:07
Post #1321307

OK that last sentence didnt make sense

Id post it in. Better safe than sorry.

Posted by: Trixie2 Fri, 6 Oct 2017 - 11:39
Post #1321336

Sorry my phone changed words and I didn't notice. It said, I wrote on the N244 form that I would supply the bills etc, so they do know. I'll take them in once allocated locally.

One other question.... I notice the court changed my address on the CCJ. Will that look to the judge as though it WAS sent to the right address? What proof do I now have that it went to an old one?

Thanks again for your help.

Posted by: nosferatu1001 Fri, 6 Oct 2017 - 13:05
Post #1321358

The poriginal claim forms will have this on it.
Again, YOUR WS IS EVIDENCE, you just tell the ocurt the address was changed. Youre over worrying, and not working this through.

Posted by: Trixie2 Fri, 6 Oct 2017 - 13:37
Post #1321376

I do worry yes. Sorry! Will keep you posted.

Posted by: Trixie2 Mon, 13 Nov 2017 - 22:52
Post #1331456

Hearing scheduled for mid-January. Will keep you posted. Fingers crossed!

Posted by: Trixie Sat, 6 Jan 2018 - 13:30
Post #1344525

Hello. Thanks for your help on this matter so far.

I'm just writing everything out for my hearing, which is in a couple of weeks, and wanted to double check something with you about PoFA, if that's OK. 9(2)(b) - does this mean the parking charge that arose from failing to pay, or the charge that the driver should have paid to use the car park? The paragraph states?

(b)
inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;

ALSO - these were the original Particulars of Claim. I've stated that they were inadequate for failing to state how the terms and conditions were breached, and for failing to include a copy of their contract with Chase Farm Hospital. Is there anything else I can add to it?

PARTICULARS OF CLAIM
THE DRIVER OF THE VEHICLE REGISTRATION xxxx (THE 'VEHICLE') INCURRED THE PARKING CHARGE(S) ON 07/01/2016 FOR BREACHING THE TERMS OF PARKING ON THE LAND AT CHASE FARM -CHASE FARM HOSPITAL THE RIDGEWAY ENFIELD MIDDLESEX . EN2 8JL. THE DEFENDANT WAS DRIVING THE VEHICLE AND/OR IS THE KEEPER OF THE VEHICLE. AND THE CLAIMANT CLAIMS £160 FOR PARKING CHARGES / DAMAGES AND INDEMNITY COSTS IF APPLICABLE, TOGETHER WITH INTEREST OF £13.65 PURSUANT TO S69 OF THE COUNTY COURTS ACT 1984 AT 8% PA, CONTINUING TO JUDGMENT AT £0.04 PER DAY.

Posted by: nosferatu1001 Sat, 6 Jan 2018 - 17:20
Post #1344586

It’s the amount of money that should have been paid on the day, if any, to avoid a pcn.

I assume you’re writing your ws? When does it have to be in? The usual period is 14 days before.

Posted by: Trixie Sat, 6 Jan 2018 - 17:44
Post #1344601

QUOTE (nosferatu1001 @ Sat, 6 Jan 2018 - 17:20) *
I assume you’re writing your ws? When does it have to be in? The usual period is 14 days before.


Thanks Nosferatu1001. The WS went in a while ago - around October/November time. It was just one or two pages. This is just my own prep to remind myself of everything and help me explain everything on the day. Just getting together a pack for myself on the day, of all my evidence, legal docs, etc. Unless you mean there is something else I should have sent in?

Posted by: ostell Sat, 6 Jan 2018 - 18:03
Post #1344609

The POC don't tell you if they are taking action against you as the driver or as the keeper. It makes it difficult for you as there are different defences for each.

Posted by: Trixie Sat, 6 Jan 2018 - 18:16
Post #1344618

QUOTE (ostell @ Sat, 6 Jan 2018 - 18:03) *
The POC don't tell you if they are taking action against you as the driver or as the keeper. It makes it difficult for you as there are different defences for each.

Do they need to specify that? I presume they took action against me as the Keeper. They can't possibly know who was driving that day.

Posted by: ostell Sat, 6 Jan 2018 - 18:39
Post #1344635

Yes, if it's as keeper then POFA applies and they have to comply, if it's driver then they have to prove you were the driver

Posted by: nosferatu1001 Sun, 7 Jan 2018 - 22:29
Post #1344964

Or they “sssume” you were the driver and hope the court lets the: get away with it

Don’t assume keeper - defend against both pointing out you are merely being prudent.

Posted by: Trixie Mon, 8 Jan 2018 - 22:49
Post #1345341

QUOTE (nosferatu1001 @ Sun, 7 Jan 2018 - 22:29) *
Or they “sssume” you were the driver and hope the court lets the: get away with it

Don’t assume keeper - defend against both pointing out you are merely being prudent.

OK thank you, and thanks everyone. I think I've defended pretty well as Keeper with PoFA, and the defence for the driver is poor and missing signage, and no such term and condition whereby the driver could agree to paying £100 if they failed to pay for duration of stay. That term and condition just doesn't exist on their signage.

Feeling confident - I just hope I get a good judge and I argue it well.

Posted by: ostell Mon, 8 Jan 2018 - 23:44
Post #1345363

And can they show who was driving at the time?

Posted by: Trixie2 Tue, 9 Jan 2018 - 00:39
Post #1345377

QUOTE (ostell @ Mon, 8 Jan 2018 - 23:44) *
And can they show who was driving at the time?

I don't know what evidence they have. I'm pretty certain it wasn't me driving, although it was me that attempted to pay. But I could be getting confused with another visit to the hospital. Bearing in mind this was Jan 2016 and I had 3 appointments.

They had photos of my car driving into the car park - they were close ups of my reg. No idea if you can see the driver on the original.

Posted by: ostell Tue, 9 Jan 2018 - 08:45
Post #1345394

It war a rhetorical question ! Thsi was ANPR and ANPR is only for reasing number plates.

Posted by: Trixie Tue, 9 Jan 2018 - 16:19
Post #1345577

QUOTE (ostell @ Tue, 9 Jan 2018 - 08:45) *
It war a rhetorical question ! Thsi was ANPR and ANPR is only for reasing number plates.

Ah! Ok thank you! Well I have a pretty robust defence for both the driver and me the keeper. Will keep you posted. Thanks again for all your help.

Posted by: Trixie2 Sat, 20 Jan 2018 - 20:08
Post #1348931

Hello. Just wondered where I might be able to find an example of compliant signage please? Entry and Ts&Cs signage. Want to take it with me to court. Tia.

Posted by: cabbyman Sat, 20 Jan 2018 - 20:17
Post #1348933

There is no hard and fast design in PPC world. Whether or not a sign is compliant would be a finding of fact in each case that the wording was sufficiently large, clear and well lit to convey the t&Cs intended, including any contractual charge being unmissable from a moving vehicle.

In the sign earlier in the thread the charge for 'contravention' looks to be in the second smallest font used on the sign. I had to look hard to find it sat at a static PC; in a moving vehicle it would be next to impossible.

Posted by: SchoolRunMum Sat, 20 Jan 2018 - 20:55
Post #1348939

QUOTE
I'm just writing everything out for my hearing, which is in a couple of weeks...

... these were the original Particulars of Claim. I've stated that they were inadequate for failing to state how the terms and conditions were breached, and for failing to include a copy of their contract with Chase Farm Hospital.

PARTICULARS OF CLAIM
THE DRIVER OF THE VEHICLE REGISTRATION xxxx (THE 'VEHICLE') INCURRED THE PARKING CHARGE(S) ON 07/01/2016 FOR BREACHING THE TERMS OF PARKING ON THE LAND AT CHASE FARM -CHASE FARM HOSPITAL THE RIDGEWAY ENFIELD MIDDLESEX . EN2 8JL. THE DEFENDANT WAS DRIVING THE VEHICLE AND/OR IS THE KEEPER OF THE VEHICLE. AND THE CLAIMANT CLAIMS £160 FOR PARKING CHARGES / DAMAGES AND INDEMNITY COSTS IF APPLICABLE, TOGETHER WITH INTEREST OF £13.65 PURSUANT TO S69 OF THE COUNTY COURTS ACT 1984 AT 8% PA, CONTINUING TO JUDGMENT AT £0.04 PER DAY.


So if your hearing is in a couple of weeks.

Is this the first hearing to actually set aside the CCJ? Not the full hearing about the claim? If it's the former, the Judge will probably want to hear mostly about how come you didn't know about the claim, and that you were 'there to be found' yet Gemini didn't bother to make any effort to locate you and used old DVLA data.

If you can show that the claim was not received then you should be able to get the CCJ set aside, but expect to be questioned.

Take a printout of the Government's view on parking firms abusing the Courts this way, and getting default CCJs which is unfair on consumers:

http://parking-prankster.blogspot.co.uk/2016/12/government-announce-ccj-review-due-to.html

You should also expect to be asked about your defence, just so the Judge can be satisfied that you have reasonable prospects of successfully defending the claim, if the CCJ is removed/set aside and the claimant then proceeds and a hearing then occurs to hear the case.

Also ask for the £255 to be ordered to be refunded to you (assuming you paid the full fee) although most defendants here report that Judges reserve a decision on costs until the actual case hearing. You could point out that after a CCJ is set aside, you believe Gladstones often discontinue/do not proceed, leaving defendants £255 (and travel, and 'loss of salary/loss of leave' hearing costs) out of pocket. So if the Judge is minded to reserve costs to the actual hearing, try asking that they consider adding to the Order for the set aside, the fact that the Claimant will be liable for the Defendants costs if they discontinue, or fail to pay the hearing fee.


QUOTE (Trixie2 @ Sat, 20 Jan 2018 - 21:08) *
Hello. Just wondered where I might be able to find an example of compliant signage please? Entry and Ts&Cs signage. Want to take it with me to court. Tia.


In the BPA Code Practice, read the section about the entrance signs needed.

And the Beavis case sign is an example of what the Supreme Court deemed a clear sign, because it's not wordy and the charge was in large letters:

http://2.bp.blogspot.com/-eYdphoIIDgE/VpbCpfSTaiI/AAAAAAAAE10/5uFjL528DgU/s1600/Parking%2Bsign_001.jpg



Posted by: Trixie2 Sat, 20 Jan 2018 - 21:48
Post #1348958

Thank you for those links Schoolrunmum and for explaining how it will work. Very helpful. Yes this will be the first hearing for the CCJ to be set aside.

I can prove that I sold that house and had been living at a new address for 10 months when the papers were served. My only worry is that I then decided to come off the open register so they wouldn't have known my new address. I'm hoping that I have enough of an argument with my business address being readily available to them. The PD does state that a business address is an acceptable alternative address that can be used so fingers crossed.

I thought I was going to have to argue the whole case at this hearing so I'm relieved I won't. I will ask re costs. Thanks for the tip.

The hearing is on Wednesday. Wish me luck!

Posted by: nosferatu1001 Sun, 21 Jan 2018 - 01:57
Post #1349012

You could have been found in five min flat, assuming you were on any utility bills, had a credit card or mortgage, etc. It’s not jus5 the electoral roll that is searched.

Posted by: Trixie2 Sun, 21 Jan 2018 - 12:35
Post #1349063

QUOTE (nosferatu1001 @ Sun, 21 Jan 2018 - 01:57) *
You could have been found in five min flat, assuming you were on any utility bills, had a credit card or mortgage, etc. It’s not jus5 the electoral roll that is searched.

OK thank you. How would they find me? What is the search they do? I want to be able to talk about it with confidence to the judge at the hearing. Thank you.

Posted by: Jlc Sun, 21 Jan 2018 - 12:52
Post #1349069

QUOTE (Trixie2 @ Sun, 21 Jan 2018 - 12:35) *
QUOTE (nosferatu1001 @ Sun, 21 Jan 2018 - 01:57) *
You could have been found in five min flat, assuming you were on any utility bills, had a credit card or mortgage, etc. It’s not jus5 the electoral roll that is searched.

OK thank you. How would they find me? What is the search they do? I want to be able to talk about it with confidence to the judge at the hearing. Thank you.

There are a number of 'trace' services out there that piece together the information. It's surprising how many people seem to forget to update their v5's. (Often assuming that updating one's licence is sufficient)

Posted by: Trixie2 Mon, 22 Jan 2018 - 18:29
Post #1349484

Can I ask where specifically it states that they have to use tracing companies to find the right address please? Or that they have a duty at all to ensure they have the most up to date address?

I can't seem to find it anywhere in the CPRs. Thanks.

Also, if I'm quoting the Beavis case, do I need to take a copy of the judgement with me? It's bloody long so I'm hoping not!

Posted by: nosferatu1001 Mon, 22 Jan 2018 - 19:35
Post #1349499

Nothing states they must use a tracing service. Just that they have to have a reasonable belief that the address is good. If they’ve sent post and had no reply, or it’s been a few months years etc, then that belief is undermined.

Posted by: Trixie2 Mon, 22 Jan 2018 - 19:48
Post #1349504

OK thank you.

Posted by: Jlc Mon, 22 Jan 2018 - 19:58
Post #1349512

The latest CoP says:

QUOTE
23.1c Before serving a Letter Before Claim and prior to the
issue of proceedings, Operators must, if no responses
have been received to the NTD/NTK/reminder letters,
take reasonable endeavours to ensure that the person
being written to is the correct party.


Although this was effective January 2018 it's a totally reasonable expectation.

Posted by: emanresu Tue, 23 Jan 2018 - 13:10
Post #1349716

Have you ever seen a contract from this lot? AFAIK there is another entity between Gemini and the Trust - a sort of PFI - so challenging the contract/Gemini's authority should be up there on the list.

Believe it to be Medirest which is part of the Compass Group. They do Facilities Management there. So question the chain of authority.

Posted by: Trixie2 Tue, 23 Jan 2018 - 15:37
Post #1349779

No I have not. They did not submit one with the original claim. I called the court today and they informed me that evidence has been received from them but it only arrived today and isn't on their systems yet. As such I can't see it until tomorrow along with the judge so no idea what it is. I have in my WS about them not providing a contract.

Re CoP - I will mention that. My only worry is that in 2016 they weren't duty bound. Also, that just refers to a person, not an address.

Posted by: Trixie2 Tue, 23 Jan 2018 - 21:44
Post #1349946

Should I take a costs breakdown with me just in case the judge rules in my favour? If so what can I invoice for apart from costs of having the CCJ set aside?

Re work, all I seem to find online is that you can only claim £50 for loss of earnings. Is this correct? Tia.

Posted by: ostell Tue, 23 Jan 2018 - 22:27
Post #1349975

You can claim up to £95 for loss of wages plus tranport (45p per mile for car) and parking. If your can persuade the judge that they have been unreasonable, and it's a high target to reach, then you can claim for your time at £19 per hour and the costs of postage and paper and printing.

Posted by: Trixie2 Wed, 24 Jan 2018 - 17:09
Post #1350221

Thanks Ostell.

Good news! The judge set the CCJ aside. I now have to submit my WS by Feb 14th and send it to the Claimant.

He has reserved costs for the next hearing.

Thank you everyone for your help so far!

Posted by: nosferatu1001 Thu, 25 Jan 2018 - 08:47
Post #1350402

Was anything said about the lack of docs from the claimant?

Shame costs were reserved - if they choose NOT to go to a hearing, and discontinue, you will find it tricky to get the application costs back.

Posted by: Trixie2 Thu, 25 Jan 2018 - 11:51
Post #1350477

No nothing. His opening line to me was 'what's this all about then?' He asked me about moving and what my defence would be and then said he was setting it aside. I mentioned about them often discontinuing and asked if I'd get costs back if they do and he said yes. So I didn't want to ask anymore after that.

Posted by: nosferatu1001 Thu, 25 Jan 2018 - 14:06
Post #1350533

That really needed to be part of the order, however - that if they disctoninue costs are payable.

Posted by: Trixie2 Thu, 25 Jan 2018 - 19:06
Post #1350634

Oh bollocks. Any way at all I can get the £255 back if they discontinue?

Posted by: nosferatu1001 Thu, 25 Jan 2018 - 20:39
Post #1350667

All you can do is try
Best bet would be to go to the set aside judge

Posted by: Trixie2 Thu, 25 Jan 2018 - 22:04
Post #1350711

Ok thanks. Will do. He asked me to send in my WS within 21 days and to send it to the Claimant. Who organises the next hearing? The Claimant or the court?

Posted by: nosferatu1001 Fri, 26 Jan 2018 - 07:50
Post #1350748

Court will set a date, the claimant will have a hearing fee to pay (which they might not do, they dont get that back if they discontinue) and you will get notified of the date by the court

Your WS also needs to have any other evidence referenced within it, e.g. INITIALS/001 - a photo showing the sign at...

Posted by: Trixie2 Fri, 26 Jan 2018 - 19:28
Post #1350953

Ok thank you for the tip re evidence. I'll get working on that this week. Can I just use the WS I already sent in? Also, does the hearing get scheduled before or only after payment is made?

I ask because the judge said I would still get costs even if they discontinue, this was not written into the order though.

Posted by: nosferatu1001 Sat, 27 Jan 2018 - 12:17
Post #1351127

Scheduled before because that means they can set a deadline formpayemtn and onkynsend one letter out.

That’s my concern - it wasn’t written into the order.

Posted by: Trixie2 Sat, 27 Jan 2018 - 21:23
Post #1351285

Ok. If they don't make payment is the hearing cancelled? If not can I ask the judge then for costs? I wonder why my judge this week said I'd still be able to get costs even if they discontinue.

Posted by: nosferatu1001 Sun, 28 Jan 2018 - 00:29
Post #1351336

Failure to pay means the case is struck out
There is therefore no hearing

As I’ve said, a few times, you’ll, have to write and hope the judge remembers what was said. Having it in the order would have helped.

Posted by: Trixie2 Sun, 28 Jan 2018 - 22:35
Post #1351590

OK thank you. Is this OK to send to the judge?

Dear Sir,


I am in receipt of the N24 form, in relation to my set aside hearing, which took place at Watford County Court, on Wednesday 24th January 2018. I am the Defendant, XXXX, and the Claimant was Gemini Parking Solutions Limited.


As discussed in the hearing you have included in the order that costs should be reserved until the next hearing. I wondered whether I could please make a request that this part of the order be amended slightly, as I have now come across several very similar cases where the Claimant failed to pay the new hearing costs and discontinued with the case, meaning the case was struck out without a hearing.

I am happy for costs to be reserved for the next hearing should one take place, but just in case there isn't one due to the Claimant discontinuing, please could it be written into the order that costs will still be recoverable from the Claimant in this instance?

Many thanks for your time.

Yours sincerely,

Posted by: nosferatu1001 Mon, 29 Jan 2018 - 23:08
Post #1351927

You could try that, I don’t see how it could cause harm

See what others think.

Posted by: Trixie2 Tue, 30 Jan 2018 - 12:02
Post #1352033

Thanks Nosferatu. I sent an edited copy of the above. I also couldn't see how it could do any harm. I have noticed though that there's been a chance recently to the CPRs and costs can still be awarded if the Claimant fails to pay the new hearing fee.

I've knocked this up for my defense. Would you say this is OK please? Sorry it's so long!

IN THE COUNTY COURT AT WATFORD CLAIM NO. XXXXXX

BETWEEN:


GEMINI PARKING SOLUTIONS LONDON LIMITED
Claimant
And

XXXXXX
Defendant

____________________________________________________________

WITNESS STATEMENT OF XXXXXXXX
____________________________________________________________


1. I am XXXXX, the defendant in this matter. My address for service is XXXXXXXX.

2. This is my statement of truth and my defence.

3. As an unrepresented litigant-in-person I seek the Court's permission to amend and supplement this
defence as may be required upon disclosure of the claimant's case.

4. For the avoidance of doubt, on the relevant date, I was the registered keeper of a xxxxxx, however I do not remember who was driving that day.

5. It is believed that it will be a matter of common ground that the purported debt arose as the result of
the issue of a parking charge notice in relation to an alleged breach of the terms and conditions by the
driver of the above vehicle when it was parked at Chase Farm Hospital on 7th January 2016.

Purported Basis of Claim
6. 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 7th January 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 including the
boundaries of the parking space to be controlled.
d. That in addition to the Parking charge there was an agreement to pay additional but unspecified
additional sums.
e. The Claimant fully complied with their obligations within the terms of Schedule 4 of the
Protection of Freedoms Act 2012.
f. The Claimant fully complied with their obligations within the British Parking Association, of which they were member at the time.
g. Further that the defendant has not paid the alleged debt.

Rebuttal of Claim
7. It is denied that:
a. A contract was formed
b. There was an agreement to pay a parking charge.
c. That there were Terms and Conditions prominently displayed around the site and that the area
allegedly under the control of the Claimant was unequivocal.
d. That in addition to the Parking charge there was an agreement to pay additional and unspecified
additional sums.
e. The Claimant fully complied with their obligations within the terms of Schedule 4 of the
Protection of Freedoms Act 2012.
f. The claimant company fully complied with their obligations within the British Parking Association
Code of Practice of which they were member at the time.
g. That I am liable for the purported debt.
8. It is further denied that I owe any debt to the claimant or that any debt is in fact owed or that any debt
exists or could ever exist or has ever existed. That in any event the claimant has failed to comply with
the requirements of the Civil Procedure Rules and that their claim is both unfounded and vexatious.
9. The claimant is put to the strictest proof of their assertions.

Summary of Events
On the 7th January 2016, I, the Defendant, had an appointment at Chase Farm Hospital in the Oral and Maxillofacial Surgery Unit. I was accompanied by two people but cannot recall who drove that day. It is unlikely to have been me, the Defendant, as I was in a lot of pain and had taken strong pain relief medication.

The car park operates a pay on exit system monitored by ANPR cameras. I was the only one with cash on me that day so upon leaving the hospital, I attempted to pay for parking. The machine did not accept the pound coins I was inserting and having no other means to pay, I went to look for an operative in the booth adjacent to the help point. Upon finding the booth empty, I pressed the help button. The call went unanswered and eventually cut off. I pressed the button again and waited but again the call went unanswered and eventually cut off. Despite trying my hardest to pay for parking I was unable to.

It appears from paperwork sent to me by the Claimant on 26th September 2017, in relation to this claim, that a Notice to Keeper (NtK) was issued to the Keeper, approximately two weeks later, stating a ‘parking charge’ was due because of a breach in the terms and conditions, more specifically, a ‘failure to pay for duration of stay’.

My Defence
My defence will rely principally upon the following points:

10. That the signs erected on site are incapable of forming the basis of a contract due to missing, unclear, inadequate, and non-compliant signage. It is therefore denied that any contract was formed or was capable of being formed.

11. Should the claimant rely on the case of ParkingEye v Beavis, the defendant wishes to point out that
there is a test of good faith.

Para 205: “The requirement of good faith in this context is one of fair and open dealing. Openness
requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or
traps. Appropriate prominence should be given to terms which might operate disadvantageously to the
customer.”

12. Underlining that is section 18 of the BPA Code of Practise, which states:

“18.1 A driver who uses your private car park with your permission does so under a licence or contract with you. If they park without your permission this will usually be an act of trespass. In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start. You must use signs to make it easy for them to find out what your terms and conditions are.”

“18.2 Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of. Entrance signs must follow some minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and it is recommended that you follow Department for Transport guidance on this. See Appendix B for an example of an entrance sign and more information about their use.”

13. Please see appendix RL001 for the BPA’s example of what an entrance sign must look like. Please also see appendix RL002 as evidence of the entry sign available at the entrance of the car park at Chase Farm Hospital. It does not warn approaching drivers that there are terms and conditions governing the car park.

14. Appendix B of the BPA Code of Practise goes on to state that;

“The sign must be readable from far enough away so that drivers can take in all the essential text without needing to look more than 10 degrees away from the road ahead.”

15. Please see appendix RL003. This is a photograph of what the driver sees as they enter the car park at Chase Farm Hospital. The driver would have been unable to take in all the ‘essential text’ as the font of the ‘essential text’, telling the driver there are terms and conditions, and too small to be seen from the driver’s seat. Please also see appendix RL004, which shows the entry sign cordoned off, as it was in 2016, so drivers cannot even approach the sign to read any terms and conditions once parked.

16. Furthermore, the BPA Code of Practice states in Appendix B, section 18.3;

18.3 “Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand. Signs showing your detailed terms and conditions must be at least 450mm x 450mm.”

17. The defendant refutes that there were clear and visible signs throughout the site, contravening the BPA Code of Practice set out above, and asserts that the driver was unaware of any binding terms and conditions due to the missing signage. Please see appendix RL005, RL006, RL007, RL008, and RL009. These are various photographs from around the ground floor of the car park, which is where the driver was parked on 7th January 2016. The only signs available are signs alerting drivers that they need to make a note of their vehicle registration plate, and pay by phone signs, (which were not available in January 2016.) The only terms and conditions available on that floor relate to parking within disabled bays, and even those signs contravene the BPA Code of Practice and the Supreme Court, in that they are not able to be viewed without leaving the car and not prominent as commented on in ParkingEye Vs Beavis. Please see appendage RL010.

18. There does appear to be a sign at the back of the car park, outside by the vehicle exit, and inside the pay booth, but a motorist would not see these signs when they park and leave their car. They would only see them once they’re ready to leave the car park after their stay. Furthermore, the exit sign is far too high and unclear for a motorist to read – please see appendage RL011.

19. The defendant also refutes that the available signage contained any such term or condition whereby the driver would agree to pay a parking charge for ‘failing to pay for the duration of the stay’.

20. Section 18 of the BPA Code of Practise goes on to state:

18.4 “If you intend to use the keeper liability provisions in Schedule 4 of POFA 2012, your signs must give ’adequate notice’. This includes: • specifying the sum payable for unauthorised parking • adequately bringing the charges to the attention of drivers, and • following any applicable government signage regulations. See paragraphs 2(2), 2(3) and 12 of the Schedule.”

21. Please see appendage RL012 which is a photograph of their signage at the pay booth. There is no such term and condition that states the driver agrees to pay a parking charge of £100 for failing to pay for the duration of the stay. The sign makes it clear that causing an obstruction and not parking within a bay will result in a parking charge, but the contract makes no provision for failing to pay.

22. By not expressing this particular term and condition, I contend that the Claimant did not act fairly and openly. This term was not expressed ‘clearly and legibly, containing no concealed pitfalls or traps’, and appropriate prominence was not given to terms ‘which might operate disadvantageously to the customer’, as discussed by Lord Bingham in paragraph 17 of his speech in Director General of Fair Trading v First National Bank Plc [2002] 1 A.C. 481.

23. A Notice is not imported into the terms and conditions unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. Nothing about the Claimant’s 'parking charges' for failing to pay for the duration of the stay was sufficiently prominent and do not pass Lord Denning’s ‘Red Hand Rule’.

24. The Beavis v Parking Eye case sign is an example of what the Supreme Court deemed a clear sign, because it's not wordy and the charge was in large letters, making it clear for the driver to understand a charge applies for failing to comply with the stated terms and conditions. Please see appendix RL013.

25. The defendant further contends that the Claimant has contravened the Unfair Terms in Consumer Contracts Regulations 1999, and the Terms and Conditions at Chase Farm Hospital are therefore not binding on the consumer. It states:

Unfair Terms
5.—(1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

Written contracts
7.—(1) A seller or supplier shall ensure that any written term of a contract is expressed in plain, intelligible language.

Effect of unfair term
8.—(1) An unfair term in a contract concluded with a consumer by a seller or supplier shall not be binding on the consumer.
(2) The contract shall continue to bind the parties if it is capable of continuing in existence withoutthe unfair term.

26. Based on the evidence provided, I contend that the signage in place does not meet the standards outlined by the BPA Code of Practice, the Supreme Court, or the Unfair Terms in Consumer Contracts Regulations 1999, in that the wording of the notices are not sufficiently “clear” to bring the ‘parking charge’ for ‘failure to pay for duration of stay’, to the attention of the motorists who use this car park. As such no contract was formed with the driver on 7th January 2016.

27. I further contend that the defendant, who is the Registered Keeper of the vehicle, would not be liable for a parking charge, had one been issued correctly, as the Claimant has not complied with the Protection of Freedom’s Act 2012 (PoFA), which is the only legislation which allows them to pursue the Keeper of the vehicle, when a driver has not been identified.

28. Schedule 4 paragraph 9 of PoFA stipulates some mandatory information that MUST be included in the Notice to Keeper (NtK) for the Keeper to be held liable. This is a matter of statute, and not contract law.

29. The NtK issued by the Claimant is non-compliant under PoFA 2012, Schedule 4 paragraph 9, for omitting five key pieces of information. PoFA 2012 states:

ON MY WORD DOC I HAVE PASTED A JPEG OF THE RELEVANT SCHEDULE - RATHER THAN TRY TO COPY AND PASTE AND REFORMAT. IT DIDN'T PASTE HERE.

30. The Defendant refutes that the Claimant has complied with its duties outlined within PoFA 2012 as set out above, namely; 9(2)(a), 9(2)(b), 9(2)(e), 9(2)(h), and 9(2)(i). Please see appendix RL014, which is a copy of the Claimant’s Parking Charge Notice, which was sent to the Defendant/Registered Keeper.

31. The Parking Charge Notice does not state the relevant land it applies to. It simply states ‘Chase Farm’, and does not distinguish between the Chase Farm in Setchey, Norfolk, or the Chase Farm in Milton Keynes. Furthermore, Chase Farm Hospital covers 37 acres with numerous car parks – the NtK does not state precisely, which land it is referring to. It also fails to make reference of the time of parking, instead confusing the time of parking, with the time of entry and exit.

32. The NtK does not state that charges had to be paid f or the period of parking.

33. The NtK does not specify who the creditor is.

34. The NtK does not specify the date on which it was sent.

35. PoFA 2012 is the only legislation that allows private parking companies to pursue the Keeper, but ONLY if all requirements have been met. As the Claimant has failed to meet all the requirements as set out above, there is no Keeper liability, and as such, they can only pursue the driver, and not the Defendant/Registered Keeper. The Defendant does not remember who was driving and is under no obligation to find out who it was, as there is no offence under the Road Traffic Act. As such no equivalent of section 172 exists.

36. Section 7 of the BPA Code of Practise states:

7.1 If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent) before you can start operating on the land in question. The authorisation must give you the authority to carry out all the aspects of the management and enforcement of the site that you are responsible for. In particular, it must say that the landowner requires you to keep to the Code of Practice and that either you have the authority to pursue outstanding parking charges, through the courts if necessary or that you have the authority to pursue outstanding parking charges and, with their permission, through the courts if necessary.

7.2. The written authorisation must also set out: a the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined b any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation c any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement
d who has the responsibility for putting up and maintaining signs e the definition of the services provided by each party to the agreement f whether or not the landowner authorises you to take legal action to recover charges due from drivers charged for unauthorised parking.

The Claimant is put to strict proof they have such authority to operate on site and to take action in their
own name. The same is a requirement of any contract based on conduct. If the Claimant’s contract is with a third party, the Claimant is put to strict proof that a chain of authority exists connecting them to the landowner. The Claimant failed to supply this contract along with their Particulars of Claim. Without any evidence of this contract, as a matter of law, the Claimant will have no locus standi to litigate in their own name, and the claim should therefore be struck out.

37. If in the alternative it is the claimant's case that his claim is founded in trespass (which is in any
event denied) then in a car park setting any damages in trespass can only be assessed based on a
calculation of the proportion of income lost based on the time of the alleged occupation. Any sum
sought could therefore only be minimal and de-minimis.

38. The Claimant is claiming £271.67, which from the Judgement, appears to be made up of an inflated penalty, and costs. I draw the attention of the court to paragraph 4(5) Schedule 4 Protection of
Freedoms Act 2012 which sets out that the maximum amount recoverable from the registered keeper,
where the keeper liability provisions have been properly invoked (which is expressly denied in this
case) is that amount specified in the Notice to Keeper (whether issued in accordance with paras 8(2)c;
8(2)d, 9(2)c or 9(2)d of the Act). However, in this case the £100 is a penalty, which is unrecoverable. Parking Eye Ltd Vs Beavis supports my case, in that the penalty rule cannot be disengaged where no rules and regulations are set out.

39. I would also like to draw the Court’s attention to some other preliminary issues in the Particulars of Claim put forward by the Claimant. They do not meet the requirements of Practice Direction 16, 7.5, in that there is nothing which specifies how the terms were breached, and no evidence at all has been submitted. Furthermore, when the Defendant contacted the Claimant for more information on the purported debt, the Claimant told the Defendant it was no longer anything to do with them as it had been passed on to a debt collection agency. When the Defendant contacted the debt collection agency, they told her the same story, that it was no longer anything to do with them and that she’d have to contact the solicitors, Gladstones. The debt collection agency also advised the Defendant that she’d have to pay before they could issue any copies of correspondence. The Claimant finally contacted Gladstones Solicitors but all calls went unanswered, and to date there has been no response to the e mail sent on 26th September 2017.

40. I’d further like to point out that this claim breaches the Department of Health guidance, which states there should be no incentive for private firms to fine people who stay in hospital car parks. Health Secretary, Jeremy Hunt, announced that hospitals should waive fines if visitors or patients overstay through no fault of their own. Despite the Guidance being issued in August 2014, the Claimant has continued to issue penalty notices and pursue them through the courts via CCJs.

41. On the evidence provided above I believe that the Claimant has not provided any reasonable cause of action and thus the claim should be dismissed in its entirety.

42. In view of all the foregoing the court is invited to strike the matter out of its own motion.

43. The claimant is put to strict proof of the assertions they have made or may make in their fuller claim.


STATEMENT OF TRUTH

I believe that the facts stated in this witness statement are true.



SIGNED:…………………………………



DATED:………………………………...

Posted by: Trixie2 Wed, 31 Jan 2018 - 23:09
Post #1352792

Hello. Sorry to bump but I've made some changes to my defence above and I'd really appreciate hearing your thoughts. There will be a statement of truth etc.

1. I am xxxxx the defendant in this matter. My address for service is xxxxxx.

2. This is my statement of truth and my defence.

3. As an unrepresented litigant-in-person I seek the Court's permission to amend and supplement this defence as may be required upon disclosure of the claimant's case.

4. For the avoidance of doubt, on the relevant date, I was the registered keeper of a xxxxx registered number xxxxxx but I do not remember who was driving.  

 5. It is believed that it will be a matter of common ground that the purported debt arose as the result of the issue of a parking charge notice in relation to an alleged breach of the terms and conditions by the driver of the above vehicle when it was parked at Chase Farm Hospital on 7th January 2016.

Purported Basis of Claim

6. 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 7th January 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 including the boundaries of the parking space to be controlled.

d. That in addition to the Parking charge there was an agreement to pay additional but unspecified additional sums.

e. The Claimant fully complied with their obligations within the terms of Schedule 4 of the Protection of Freedoms Act 2012.

f. The Claimant fully complied with their obligations within the British Parking Association, of which they were member at the time.

g. Further that the defendant has not paid the alleged debt.

Rebuttal of Claim

7. It is denied that:

a. A contract was formed

b. There was an agreement to pay a parking charge.

c. That there were Terms and Conditions prominently displayed around the site and that the area

allegedly under the control of the Claimant was unequivocal.

d. That in addition to the Parking charge there was an agreement to pay additional and unspecified additional sums.

e. The Claimant fully complied with their obligations within the terms of Schedule 4 of the Protection of Freedoms Act 2012.

f. The claimant company fully complied with their obligations within the British Parking Association Code of Practice of which they were member at the time.

g. That I am liable for the purported debt.

8. It is further denied that I owe any debt to the claimant or that any debt is in fact owed or that any debt exists or could ever exist or has ever existed. That in any event the claimant has failed to comply with

the requirements of the Civil Procedure Rules and that their claim is both unfounded and vexatious.

9. The claimant is put to the strictest proof of their assertions.

Summary of Events

On the 7th January 2016, the Defendant had an appointment at Chase Farm Hospital in the Oral and Maxillofacial Surgery Unit.  The Defendant was accompanied by two people but cannot recall who drove that day.  It is unlikely to have been the Defendant, as she was  in a lot of pain and had taken strong pain relief medication.

 

The car park operates a pay on exit system monitored by ANPR cameras.  The Defendant was the only one with cash that day so upon leaving the hospital, the Defendant attempted to pay for parking. The machine did not accept the pound coins the Defendant was inserting and having no other means to pay, she went to look for an operative in the booth adjacent to the help point. Upon finding the booth empty, the Defendant pressed the help button. The call went unanswered and eventually cut off. The Defendant pressed the button again and waited but again the call went unanswered and eventually cut off. Despite trying her hardest to pay for parking the Defendant was unable to.

It appears from paperwork sent to the Defendant by the Claimant on 26th September 2017, in relation to this claim, that a Notice to Keeper (NtK) was issued to the Defendant, who is the Registered Keeper of the vehicle in question, approximately two weeks later, stating a ‘parking charge’ was due because of a breach in the terms and conditions, more specifically, a ‘failure to pay for duration of stay’.    

My Defence

My defence will rely principally upon the following points:

No Contract Formed Due to Missing Signage

10. That the signs erected on site are incapable of forming the basis of a contract due to missing, unclear, inadequate, and non-compliant signage.  It is therefore denied that any contract was formed or was capable of being formed.

11. Should the claimant rely on the case of ParkingEye v Beavis, the defendant wishes to point out that there is a test of good faith.

Para 205: “The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.”

12. Underlining that is section 18 of the BPA Code of Practise, which states:

“18.1 A driver who uses your private car park with your permission does so under a licence or contract with you.  If they park without your permission this will usually be an act of trespass. In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start. You must use signs to make it easy for them to find out what your terms and conditions are.”

“18.2 Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of. Entrance signs must follow some minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and it is recommended that you follow Department for Transport guidance on this. See Appendix B for an example of an entrance sign and more information about their use.”

13. Please see appendix RL001 for the BPA’s example of what an entrance sign must look like. Please also see appendix RL002 as evidence of the entry sign available at the entrance of the car park at Chase Farm Hospital.  It does not warn approaching drivers that there are terms and conditions governing the car park that they need to be aware of before parking. 

14. Appendix B of the BPA Code of Practise goes on to state that;

“The sign must be readable from far enough away so that drivers can take in all the essential text without needing to look more than 10 degrees away from the road ahead.”

15. Please see appendix RL003.  This is a photograph of what the driver sees as they enter the car park at Chase Farm Hospital.  The driver would have been unable to take in all the ‘essential text’ as the font of the ‘essential text’, telling the driver there are terms and conditions, and too small to be seen from the driver’s seat. Please also see appendix RL004, which shows the entry sign cordoned off, as it was in 2016, so drivers cannot even approach the sign to read any terms and conditions once parked.

16. Furthermore, the BPA Code of Practice states in Appendix B, section 18.3;

18.3 “Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand. Signs showing your detailed terms and conditions must be at least 450mm x 450mm.”

17. The defendant refutes that there were clear and visible signs throughout the site, contravening the BPA Code of Practice set out above, and asserts that the driver was unaware of any binding terms and conditions due to the missing signage.  Please see appendix RL005, RL006, RL007, RL008, and RL009.   These are various photographs from around the ground floor of the car park, which is where the driver was parked on 7th January 2016.  The only signs available are signs alerting drivers that they need to make a note of their vehicle registration plate, and pay by phone signs. The only terms and conditions available on that floor relate to parking within disabled bays, and even those signs contravene the BPA Code of Practice and the Supreme Court, in that they are not able to be viewed without leaving the car and not prominent as commented on in ParkingEye Vs Beavis.  Please see appendage RL010. 

18. There does appear to be a sign at the back of the car park, outside by the vehicle exit, and inside the pay booth, but a motorist would not see these signs when they park and leave their car.  They would only see them once they’re ready to leave the car park after their stay.   Furthermore, the exit sign is far too high and unclear for a motorist to read – please see appendage RL011.

19.  Furthermore,  the signage that is available at the pay machine and exit from the car park, contains no such term and condition whereby a driver agrees to pay a charge of £100 for failing to pay for the duration of their stay. 

20. Section 18 of the BPA Code of Practise goes on to state:

18.4 “If you intend to use the keeper liability provisions in Schedule 4 of POFA 2012, your signs must give ’adequate notice’. This includes: • specifying the sum payable for unauthorised parking • adequately bringing the charges to the attention of drivers, and • following any applicable government signage regulations. See paragraphs 2(2), 2(3) and 12 of the Schedule.”

21. Please see appendage RL012 which is a photograph of their signage at the pay booth.  As there is no such term and condition stating that the driver agrees to pay £100 parking charge for failing to pay for the duration of their stay, the driver could not have agreed to this term before parking.  The sign makes it clear that causing an obstruction and not parking within a bay will result in a parking charge, but the contract makes no provision for failing to pay.

22. By excluding this particular term and condition, I contend that the Claimant did not act fairly and openly.  This term was not expressed ‘clearly and legibly, containing no concealed pitfalls or traps’, and appropriate prominence was not given to terms ‘which might operate disadvantageously to the customer’, as discussed by Lord Bingham in  paragraph 17 of his speech in Director General of Fair Trading v First National Bank Plc [2002] 1 A.C. 481.  It was held in Munkenbeck & Marshall v Harold [2005] EWHC 356 (TCC), [2005] All ER (D) 227 (Apr) that where a term is one-sided and its terms have not been sufficiently drawn to the attention of the consumer, the term is more likely to be held to be an unfair term.

23. Section 62(1) of the Consumer Rights Act 2015 establishes that an unfair term of a consumer contract is not binding on the consumer. In the event that the Court decides this is a consumer notice rather than a contract, Section 62(2) applies. The Defendant invites the Court to rule accordingly.

24. The Beavis v Parking Eye case sign is an example of what the Supreme Court deemed a clear sign, because it's not wordy and the charge was in large letters, making it clear for the driver to understand a charge applies for failing to comply with the stated terms and conditions.  Please see appendix RL013.

25. Based on the evidence provided, I contend that the signage in place does not meet the standards outlined by the BPA Code of Practice, the Supreme Court, or the Consumer Rights Act 2015, in that the wording of the notices are not sufficiently “clear” to bring the ‘parking charge’ to the attention of the motorists who use this car park.  As such no contract was formed with the driver on 7th January 2016, and therefore no terms could be breached.

No Keeper Liability

26. I further contend that the Keeper is not liable for this parking charge, as the Claimant has not complied with PoFA 2012, which is the only legislation which allows the Claimant to pursue the Keeper of the vehicle, when a driver has not been identified.   This is a matter of statue and not contract law. 

27. The NtK issued by the Claimant is non-compliant under PoFA 2012, Schedule 4 paragraph 9, for omitting five key pieces of information.  Please see appendix RL014, which is a copy of PoFA 2012, Schedule 4. 

28. The Defendant has not complied with parts 9(2)(a),  9(2)(b), 9(2)(e), 9(2)(h), and 9(2)(i).  Please see appendix RL015, which is a copy of the Claimant’s Parking Charge Notice, which was sent to the Defendant/Registered Keeper. 

29. The Parking Charge Notice does not state the relevant land it applies to.  It simply states ‘Chase Farm’, and does not distinguish between the Chase Farm in Setchey, Norfolk, or the Chase Farm in Milton Keynes.  Furthermore, Chase Farm Hospital covers 37 acres with numerous car parks – the NtK does not state precisely, which land it is referring to.  It also fails to make reference of the time of parking, instead confusing the time of parking, with the time of entry and exit. 

30. The NtK does not state that charges had to be paid f or the period of parking.

31. The NtK does not specify who the creditor is.

32. The NtK does not specify the date on which it was sent.  

33. PoFA 2012 is the only legislation that allows private parking companies to pursue the Keeper, but ONLY if all requirements have been met.  As the Claimant has failed to meet all the requirements as set out above, there is no Keeper liability, and as such, they can only pursue the (unidentified) driver, and not the Registered Keeper.  This distinguishes the case from Elliott v Loake [1982] in which there was irrefutable evidence of the driver’s identity. PoFA 2012 Schedule 4 has not been complied with and the claimant may not quote reasonable assumption. In the case of Excel v Mr L. (17/11/2016, Skipton), the judge dismissed the claim, summing up that: ether the claimant could prove the defendant was the driver, which they could not; or the claimant could comply with PoFA to pursue the defendant as the keeper, which it was proved they did not.

34. In this instance the Defendant does not remember who was driving and is under no obligation to find out who it was, as there is no offence under the Road Traffic Act.  As such no equivalent of section 172 exists.

No Locus Standi

35. Section 7 of the BPA Code of Practise states:

7.1 If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent) before you can start operating on the land in question. The authorisation must give you the authority to carry out all the aspects of the management and enforcement of the site that you are responsible for.  In particular, it must say that the landowner requires you to keep to the Code of Practice and that either you have the authority to pursue outstanding parking charges, through the courts if necessary or that you have the authority to pursue outstanding parking charges and, with their permission, through the courts if necessary.

7.2. The written authorisation must also set out: a the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined b any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation c any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement

d who has the responsibility for putting up and maintaining signs e the definition of the services provided by each party to the agreement f whether or not the landowner authorises you to take legal action to recover charges due from drivers charged for unauthorised parking.      

36. The Claimant has not submitted any evidence that they have the authority to operate on the land at Chase Farm Hospital with their Particulars of Claim, and are put to strict proof that such authority exists. If the Claimant’s contract is with a third party, the Claimant is put to strict proof that a chain of authority exists connecting them to the landowner.  Without any evidence of this contract, as a matter of law, the Claimant will have no locus standi to litigate in their own name, and the claim should therefore be struck out.

37. If in the alternative it is the claimant's case that his claim is founded in trespass (which is in any event denied) then in a car park setting any damages in trespass can only be assessed based on a

calculation of the proportion of income lost based on the time of the alleged occupation. Any sum sought could therefore only be minimal and de-minimis.

Non-disclosure of reasonable grounds or particulars for bringing a claim

38. I would also like to draw the Court’s attention to the Claimant’s Particulars of Claim, which fail to fulfil CPR Part 16.4, because it does not include a statement of facts on which the Claimant relies.  It refers only to a parking charge for breaching terms of parking, and makes no reference to which terms have been breached.  Furthermore, no copy of the contract alleged to have been breached has been supplied with the Particulars of Claim.  Please see appendix RL015, which is a copy of the Particulars of Claim that the Claimant submitted.

39. The Particulars of Claim fail to state whether they are pursuing the Defendant as the driver of the vehicle or the Registered Keeper. They also fail to state what the original charge was, and what the alleged contract was, or in fact anything which could be considered a fair exchange of information.  The Defendant called the Claimant’s solicitors on 26th September 2017 but several calls went unanswered.  The Defendant then wrote to the Claimant’s solicitors for further information, but so far they have not responded.    The Defendant has therefore had to cover all possible defences, causing significant distress and denying a fair chance to defend the claim. The Claimant's solicitor is known to be a serial issuer of particulars of claim which arise from an automated template, with no due diligence, and is believed to be the subject of an active investigation by the Solicitors Regulation Authority.

40. The Defendant invites the court to strike out or dismiss the claim under Rule 3.4(2)(a) of PRACTICE DIRECTION 3A as having not set out a concise statement of the nature of the claim or disclosed reasonable grounds or particulars for bringing a claim (Part 16.4(1)(a) and PRACTICE DIRECTION 16 paragraphs 3.1-3.8). In C3GF84Y (Mason, Plymouth County Court), the judge struck out the claim brought by KBT Cornwall Ltd as Gladstones Solicitors had not submitted proper Particulars of Claim, and similar reasons were cited by District Judge Cross of St Albans County Court on 20/09/16 where a claim was struck out without a hearing, due to Gladstones' template particulars being incoherent, failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''.

41. The Claimant is claiming £271.67, which from the Judgement, appears to be made up of £160 penalty, damages and indemnity costs, and interest.   I draw the attention of the court to paragraph 4(5) Schedule 4 Protection of Freedoms Act 2012 which sets out that the maximum amount recoverable from the registered keeper, where the keeper liability provisions have been properly invoked (which is expressly denied in this case) is that amount specified in the Notice to Keeper (whether issued in accordance with paras 8(2)c; 8(2)d, 9(2)c or 9(2)d of the Act).  The NtK sent by the Claimant states a penalty charge of £100, not £160, however, in this case the £100 is a penalty, which is unrecoverable. Parking Eye Ltd Vs Beavis supports my case, in that the penalty rule cannot be disengaged where no rules and regulations are set out.  It appears the Claimant has tried to more than double the charge specified, as a way to inflate the value of the claim. 

42. I’d further like to point out that this claim breaches the Department of Health guidance, which states there should be no incentive for private firms to fine people who stay in hospital car parks.  Health Secretary, Jeremy Hunt, announced that hospitals should waive fines if visitors or patients overstay through no fault of their own.    Despite the Guidance being issued in August 2014, the Claimant has continued to issue penalty notices and pursue them through the courts via CCJs.    

43. On the evidence provided above I believe that the Claimant has not provided any reasonable cause of action and thus the claim should be dismissed in its entirety.

42. In view of all the foregoing the court is invited to strike the matter out of its own motion.

43. The claimant is put to strict proof of the assertions they have made or may make in their fuller claim.


Posted by: nosferatu1001 Thu, 1 Feb 2018 - 00:41
Post #1352821

It’s about twice the length of a concise defence, but I wouldn’t panic too much.

Posted by: Trixie2 Fri, 2 Feb 2018 - 00:03
Post #1353146

Ok thanks. Ok try to cut it down a bit. As long as there's nothing glaringly wrong with it.

How do I serve? Do I just send this to the Claimant with a cover letter? Do I need to send anything else at all?

Posted by: nosferatu1001 Fri, 2 Feb 2018 - 08:42
Post #1353191

You serve how the claim form / court order tells you to

For exampe, the claim form from the CCBC make it absolutely explicit that you send the defence to them - print, sign, scan and email is best - and they serve on the C.

Posted by: Trixie2 Fri, 2 Feb 2018 - 13:41
Post #1353301

It doesn't specify. The judge at the hearing said 'can you send the defence to the Claimant', and I said yes.

The order just says 'defence to be submitted by Feb 14th'.

I didn't know if there's any forms I need to fill out and send, or literally just send it to them.

Posted by: nosferatu1001 Fri, 2 Feb 2018 - 13:48
Post #1353307

So you serve it on them - by post or email, if they accept email.

No forms, this isnt a forms thing. Send to the court as well, if they dont already have a copy. BY default send to claimant and court at the same time.

Posted by: Redivi Fri, 2 Feb 2018 - 15:00
Post #1353337

If you're sending by email, copy another email at the same time

If you're sending by post, ask the Post Office for a free certificate of sending

In this case, I would enclose a covering note with the Court's copy that confirms you've sent it to Gemini AND a copy of the relevant certificate

Posted by: Trixie2 Fri, 2 Feb 2018 - 15:40
Post #1353355

Great thank you both! Will keep you updated.

Redivi what certificate do you mean?

Posted by: nosferatu1001 Fri, 2 Feb 2018 - 16:00
Post #1353362

Proof of posting

Note, NOT signed for.

Posted by: Trixie2 Fri, 2 Feb 2018 - 20:43
Post #1353425

Ok will do thank you for the advice. May I ask why not signed for?

Posted by: Redivi Fri, 2 Feb 2018 - 20:54
Post #1353426

1 It's a waste of money
2 Parking companies know that signed-for mail is likely to contain something unwelcome and may refuse to accept it

The Interpretation Act says that First Class mail is delivered two business days after posting unless there's proof that it wasn't

Posted by: Trixie2 Fri, 2 Feb 2018 - 21:02
Post #1353429

Ok good to know. Thank you!

Posted by: Trixie2 Sat, 3 Feb 2018 - 17:34
Post #1353727

Hello sorry me again - one more question. So I've got my WS and evidence all sorted and ready to go, but I'm just about to start on my costs. What can I claim for? I read somewhere on this sight something to do with the Denton case and unreasonable behaviour but I really didn't understand it. Is there a list I can search for of what I can claim? And how I set it out? Thanks.

EDIT: These are the costs I was thinking of:

set aside hearing - £255
lost pay - £90
Petrol – 36 miles round trip to Hertford County Court - £16.20
Printing - need to calculate this

Second hearing
Lost pay - £90
Petrol - need to know which court it's at first
Printing - need to calculate

Does this seem reasonable?

Posted by: ostell Sat, 3 Feb 2018 - 18:05
Post #1353751

Lost pay £95. You may be asked to produce pay slips
Travel and not petrol. Show it as 36 x .45p
What about parking? rolleyes.gif
Printing I don't think you will get that unless you can show unreasonable.

Posted by: nosferatu1001 Sun, 4 Feb 2018 - 01:00
Post #1353849

Lost pay OR loss of leave - half day at £95 max.

Posted by: Trixie2 Sun, 4 Feb 2018 - 11:27
Post #1353906

Ok thank you. Is there a particular way to set it out? Can I just do it on a word doc? Do I have to send to the court/claimant with my evidence?

Posted by: nosferatu1001 Sun, 4 Feb 2018 - 20:35
Post #1354081

Send it the day before t9,both court and claimant. Email is fine. Have a look at MSE forum with example costs claims.

Posted by: ostell Sun, 4 Feb 2018 - 21:52
Post #1354112

Send it as a PDF document so that it is not easily modifiable. Latest version of word will save as PDF, Windows 10 has a built in PDF printer ie print to the PDF printer and it produces a PDF document.

Posted by: Trixie2 Mon, 5 Feb 2018 - 19:48
Post #1354447

OK thank you. Have found examples on MSE.

Do I need to send EVERYTHING to the Claimant? So all the test cases I cite, and case law? Or can I just send the WS only?

Parking Eye v Beavis seems to be 125 pages long. Do I really need to send all this?

Also what is the difference between a defence and a WS in terms of what they contain and layout? I just looked at the Order again and it says 'defence' to be submitted by Feb 14th. I think what I've written is more of a WS. Does this matter?

Posted by: nosferatu1001 Tue, 6 Feb 2018 - 12:18
Post #1354649

Anything you are exhiboiting you send
You dont exhibit cae law, it goes in your byundle for the day
No you do not send all of the judgement. Just excerpts.

Yes, of course it matters. yes, of course they are different documents

Defence - series of legal arguments why you are not liable "I am not liable because the C failed to comply wiyth POFA2012" is an argument
WS - set of FACTs about the case that you know or could reasonably know."I was the RK of vehicle reg XYZ123 on DATE" is a fact.

Posted by: Trixie2 Tue, 6 Feb 2018 - 16:21
Post #1354764

OK thank you Nosferatu. I have edited my defence above and taken out the words WS.

I asked the court if I have to fill out an N11 form and they said no - they told me to fill out a N9B form. But that can't be right as I'm not making a counterclaim. Are you able to enlighten me please what form I send if any? Or can I just e mail it in to the court with a cover note in the body of the e mail?

I have printed everything out to send to Gladstones (they're listed as place of service). Is there anything I need to put in my cover letter to them? I want to see their evidence - do I request that? If so, how? TIA.

Posted by: nosferatu1001 Tue, 6 Feb 2018 - 18:26
Post #1354813

I’ve no idea why you would fill out any form. Serving s defence sdoes not need any form alongside it to my knowledge.

Your defence MUST BE SIGNED. This is critical. So print, sign, scan and email as. A pdf attachment. Claim ref in the subject.

Normal course would be
Defence submitted
Hearing date set
Order within this notice for documents to be exchanged, usually 14 days before. If you’ve had your ccj set aside, I don’t see why this process would not occur

Documents would be ws and evidence.

Posted by: Trixie2 Wed, 7 Feb 2018 - 23:55
Post #1355334

Defence filled and served!

Posted by: Justice2016 Thu, 8 Feb 2018 - 11:17
Post #1355445

https://www.gov.uk/data-requests-dvla

Posted by: Trixie2 Thu, 8 Feb 2018 - 12:01
Post #1355459

Thank you. What reason did you give for needing the information?

Posted by: ostell Thu, 8 Feb 2018 - 12:15
Post #1355468

There is a better email address than that for requested who requested your data. I can't find it at the moment.

Edit: Found it:- SubjectAccess.Requests@dvla.gsi.gov.uk

Remember to put in all your details so that they can positively identify you.

Posted by: Trixie2 Thu, 8 Feb 2018 - 12:36
Post #1355476

Thank you Ostell. I'm assuming the question I'm asking is who accessed my details around that time? Rather than asking if Gemini did?

Posted by: ostell Thu, 8 Feb 2018 - 12:46
Post #1355482

QUOTE (Trixie2 @ Thu, 8 Feb 2018 - 12:36) *
Thank you Ostell. I'm assuming the question I'm asking is who accessed my details around that time? Rather than asking if Gemini did?


Yes, ask who accessed and give a first and last dates. The first is the alleged date of parking and the last date is the date of the PCN

Posted by: nosferatu1001 Thu, 8 Feb 2018 - 13:26
Post #1355514

Also ask what reason was given, and how the data was accessed.

Posted by: Trixie2 Thu, 8 Feb 2018 - 13:37
Post #1355520

OK thank you. Done. If it turns out Gemini is not one of the companies that requested my details, what does this mean? And what impact does it have on proceedings?

Posted by: ostell Thu, 8 Feb 2018 - 13:38
Post #1355522

If Gemini didn't request your details then they cannot pursue you, as the keeper, for any debts run up by the driver.

Posted by: nosferatu1001 Thu, 8 Feb 2018 - 13:53
Post #1355527

You must, by now, be clued up on POFA2012 Schedule 4
It is the ONLY legislation able to make a Keeper liable for the Drivers parking event

ONE of the requirements is that they must, for each and EVERY parking event, request data from the DVLA.

Posted by: Trixie2 Thu, 8 Feb 2018 - 17:37
Post #1355637

It appears I missed that bit! If PPCs don't use the DVLA what else do they do?

Posted by: ostell Thu, 8 Feb 2018 - 17:47
Post #1355640

They can use the DVLA once and keep the keeper details on record for future parking events but that's a fail. They could also get other companies to get your details but that is also a fail.

Posted by: Trixie2 Sat, 10 Feb 2018 - 08:26
Post #1356150

Hello again. I received this yesterday. I presume it's just a copy of what's been sent to the Claimant, and I don't actually have to fill out and serve an N180 form as well?


Posted by: emanresu Sat, 10 Feb 2018 - 08:58
Post #1356155

This is the Directions Questionnaire stage so the N180 gets completed, sent to the court and the other side. It's used for scheduling dates and if you don't tell the court when you are available / not available, they'll just throw your defence out and award it to the other side.

How to complete

QUOTE
A1 = Say NO to mediation. Mediation is run by a commercial company on behalf of the courts and their success is measured by how many cases are kept out of court. They are not interested in the merits of the case, only whether you will pay or not. So say No.

B = fill in all the details, your name, your address, etc. This is the address that all the paperwork will be sent to. If you are moving home within 6 months make sure you have mail redirection in place. You will get a default CCJ if the paperwork doesn't get to you as the Courts see it as your responsibility to give a correct address.

C1 = YES to small claims track

D1 = name of your local County Court – unless you are a Limited company, the case files will be transferred there. They will ask for theirs but protocol dictates it is your court.

D2 = NO to expert evidence

D3 = 1 witness (or more if you are going to get another person to provide a statement)

D4 = Put down the dates of any pre-booked holidays, NO to interpreter (unless you need one)

You send a copy to the courts and another copy to the Claimant company. Keep a copy for yourself. There is a long delay (20+ weeks) between this form and an actual day in court.

Posted by: Trixie2 Sat, 10 Feb 2018 - 09:15
Post #1356159

Ok thank you. I was unsure because the form posted above is obviously written to the Claimant.

I'll get that done today. Thanks.

Posted by: Trixie2 Tue, 13 Feb 2018 - 14:16
Post #1357315

Hello. I've just checked my credit file and the CCJ still appears on it, despite that judge setting it aside. What do I do to get it removed from my file please?
EDIT - Sorted now.

Posted by: Trixie2 Wed, 21 Feb 2018 - 15:59
Post #1360315

Hello. I received this today via e mail:

Dear XXXX,


Gemini Parking Solutions London Limited

-v-

XXXX

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.

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.


Yours sincerely

Andrew
Litigation Assistant

***

Then on form they've attached it says:

REQUEST FOR SPECIAL DIRECTION PURSUANT TO PD27 (2.4)

We kindly request that the Court send the N159 form (a redacted example of which is attached) to the Defendant for their consideration and, upon the Defendant consenting to the case being heard on the papers alone, the Judge makes the following direction;

“The matter will be considered on paperwork without a hearing. The parties attendance is not required and the Judge will determine the matter based upon the documents and evidence supplied and any written representations received.”

**

Any advice on how to respond would be much appreciated. Thank you.

Posted by: Redivi Wed, 21 Feb 2018 - 16:04
Post #1360318

Enter the phrase "relatively straightforward" in the search box at the top right hand corner of the Forum pages

Several threads will include examples of a suitable response to include with your DQ

Posted by: Trixie2 Wed, 21 Feb 2018 - 16:44
Post #1360345

Thanks Redivi. I've already served my DQ, so this would be a response to this only. Have looked at the response and will send this:

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 Claimant's 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 whether a contract was formed and wording of said contract, and signage that was displayed at the time.

As a litigant in person, the defendant is 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 signage that was originally erected, or has been erected since.

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.

Do I just e mail this to the court and copy in Gladstones?

Posted by: Redivi Wed, 21 Feb 2018 - 16:50
Post #1360349

Send the response to the court with a copy to Gladstones

You've received the letter and, in the event that Gladstones applies for such an order, you will not consent to it for the following reasons

Posted by: Trixie2 Wed, 21 Feb 2018 - 16:53
Post #1360352

QUOTE (Redivi @ Wed, 21 Feb 2018 - 16:50) *
Send the response to the court with a copy to Gladstones

You've received the letter and, in the event that Gladstones applies for such an order, you will not consent to it for the following reasons


Thanks. Edited my post above with my response. Is that good to go do you think?

Posted by: Redivi Wed, 21 Feb 2018 - 17:17
Post #1360362

You need to change the reasons to the ones that apply to your particular case :

You want to question why the Claimant failed to verify that the Defendant's address was correct
Why it asserts that a contract was formed when its payment machine was not working and no contract was possible
Why it asserts that a contract was formed when the driver left as soon as it was evident that no contract was possible
Maybe another but its a long thread to check the defence for a particularly contentious issue

Posted by: Trixie2 Wed, 21 Feb 2018 - 19:35
Post #1360404

Thanks Redivi. Is this OK do you think? Not too wordy?

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 Claimant's 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 whether a contract was formed and wording of said contract, and signage that was displayed at the time.

As a litigant in person, the defendant is 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 about why they failed to verify they were serving proceedings at the correct address, why they failed to maintain their machines in a fit and proper state so payment could be made, why they did not have any compliant signage in the car park, why they issued a parking charge knowing their signage could not offer a contract, why they issued a parking charge for 'failure to pay for duration of stay' when there was no such clause in the 'contract'.

The Defendant also wishes 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 signage that was originally erected, or has been erected since.

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.

Posted by: Trixie2 Thu, 22 Feb 2018 - 18:59
Post #1360778

Hello. I have e mailed the court a slightly edited version of what I wrote above, and copied in 'Andrew', that e mailed me.

Is e mail OK? Or should I have put a hard copy in the post to Gladstones?

Posted by: Trixie2 Wed, 11 Apr 2018 - 15:14
Post #1373626

Hello. So last week I got a letter from the court stating the hearing would be at my local court on a date in June.

The letter started by saying that if the Claimant hasn't paid the hearing fee, or applied for help with it, by another date in June then the case will be struck out and they'll be ordered to pay my costs.

Now the thing is, my WS and evidence has to be served 2 weeks AFTER the deadline for them paying. Should I wait to see if they pay before bothering to write the WS? Or get it in early?

What are the odds they'll pay the fee?

Thanks.

Posted by: kommando Thu, 12 Apr 2018 - 08:06
Post #1373776

A lot more people fold than carry on defending, they will see the fee as an expense that will be more than offset from the payments it gets plus Gladstones just pass all the charges on to the PPC for them to pay anyway.

Posted by: nosferatu1001 Thu, 12 Apr 2018 - 09:57
Post #1373805

Write your WS as soon as you can. As it is a listing of facts known to you, the sooner you write it the easier it is to write.

Posted by: Trixie2 Thu, 26 Apr 2018 - 15:06
Post #1377630

Hello. I've knocked up this witness statement - would appreciate some feedback. My defense was pretty robust and legally well argued so I assume I don't need any of that in this statement? Is this OK please? Is there anything more I need to add or take out?

By the way I know each paragraph needs to be numbered but I'll do that once I've got it finished. Thanks!

IN THE COUNTY COURT AT WATFORD CLAIM NO.

BETWEEN:


GEMINI PARKING SOLUTIONS LONDON LIMITED
Claimant
And


Defendant

____________________________________________________________

WITNESS STATEMENT OF
____________________________________________________________


I am , the defendant in this matter. My address for service is

This is my statement of truth.

As an unrepresented litigant-in-person I seek the Court's permission to amend and supplement this
defence as may be required upon disclosure of the claimant's case.

On 7th January 2016 I was the registered keeper of vehicle xxx, and attended an appointment at Chase Farm Hospital. I attended with two other people that day but do not recall who drove.

The car park operates a pay on exit system monitored by ANPR cameras.

After attending the appointment we left the hospital and as the appointment was for me and I was the only one with cash on me, I was the one who went to pay for parking. The machines did not accept the coins I was attempting to pay with and each time one was inserted the machine rejected it.

Having no other means to pay I went to look for an operative in the booth adjacent to the help point. Upon finding the booth empty I pressed the help button located nearby. The call went unanswered and eventually cut off. I pressed it once more and again the call went unanswered and cut off.

I looked around the car park but could not find anyone to help me. Despite trying my hardest to pay I was unable to and I had no option but to leave.

It appears from paperwork sent to me by the Claimant on 26th September 2017, in relation to this claim, that a NtK was issued to me approximately two weeks later, stating a ‘parking charge’ was due because of a breach in the terms and conditions, more specifically, a ‘failure to pay for duration of stay’.

During this time I was dealing with two very stressful matters. Firstly I was writing my witness statement for a legal case in relation to the death of my eldest daughter. The statements and evidence had to be filed and served and I was under a lot of pressure to finish writing it. It was also during this time that I was dealing with a very pressurised house sale and purchase. I was therefore not capable of responding to Gemini immediately but I was aware they would write to me again and intended to respond to their next letter, once my witness statement had been written.

On 1st March 2016 we moved house and my partner organised a mail redirection. There was a two day overlap before the redirection began, so we visited our old address to collect any mail that had not made the redirection and there was nothing more from Gemini Parking.

After moving I did not receive any more correspondence about the Parking Charge from Gemini Parking, or anyone else that they subsequently hired to deal with it and did not think about it anymore.

In September 2017 I discovered by chance, that Gemini Parking had won a default CCJ against me at my old address. I was very distressed and shocked by this discovery, especially as I had received no communications about it at all. I was on the electoral roll and my name was on numerous utility bills, where both DRP and Gladstones could easily have found me to serve papers.

I contacted Gemini Parking, Debt Recovery Plus, and Gladstones Solicitors, numerous times for more information. Gemini Parking initially said it was no longer anything to do with them and refused to send me any information. DRP would not assist me unless I paid an access request charge and despite calling and e mailing Gladstones numerous times I have never had a response from them. Gemini Parking eventually agreed to send a copy NtK and Reminder Notice, which was received at the end of September.

With Gladstones not responding to any of my requests for more information I was forced to return to Chase Farm Hospital to check the terms and conditions the driver was alleged to have breached.

It was during this visit that I discovered a contract could not have been formed on 7th January 2016 between the driver and Gemini Parking, due to missing, unclear, inadequate, and non-compliant signage. I also discovered that no terms or conditions existed at all in relation to failure to pay for the duration of stay. I took numerous photos of their signage and the car park and returned home.

With still no response from Gladstones Solicitors, and very worried about what would happen next, I applied for a set aside and on 24th January 2018 I explained my defence in detail to Deputy District Judge Duchenne. Upon hearing all the details of the case he decided that the CCJ should be set aside and my defence filed and served within two weeks, which was duly done.

Since then I have still not received any paper work from Gladstones Solicitors or Gemini Parking, and have no idea what the basis of their claim is considering their non-compliant and unclear signage.



STATEMENT OF TRUTH

I believe that the facts stated in this witness statement are true.

SIGNED: …………………………………


DATED: ………………………………...

Posted by: nosferatu1001 Fri, 27 Apr 2018 - 08:08
Post #1377773

The idea of a WS is it recounts the facts surruinding the event, and also is the ONLY place you can reference your evidence - letters, photos, etc. This needs to tie to your defence arguments - so if you say the signs are rubbish, then photos of signs would be good.

No need to really explain the set aside and CCJ process - thats been settled. A brief account is all I can suggest.

Posted by: Trixie2 Fri, 27 Apr 2018 - 08:22
Post #1377775

Ok thanks. I'll re-write. I referenced all my evidence in my defence. Do I need to do that again then?

Also, where can I find examples of witness statements? The only ones I'm coming up with are long legally argued defences. Thanks.

Posted by: nosferatu1001 Fri, 27 Apr 2018 - 08:27
Post #1377778

Your defence was not the place to reference evidence - not a single defence youve seen here will have shown that. A defence is jsut a set of arguments, not the evidence.

MSE Forum, newbies thread, post 2.

Posted by: Trixie2 Fri, 27 Apr 2018 - 08:35
Post #1377780

Oh ok. I wish someone would have mentioned that when I posted my defence. I've not done this before so had no idea. No matter. The courts still seem happy.

I'm confused with what the differences are between a defence and a witness statement.

Posted by: nosferatu1001 Fri, 27 Apr 2018 - 09:08
Post #1377787

The court hasnt even read your defence yet.

Youve been told that arleady

WS - facts, plus referecens to the evidence that supports your defence
Defence - series of legal arguments why youre not liable.

One argues, the other states facts you know. A fact is "I am the keeper of vehcile with VRM ....". AN arguemtn is "I am not liable because...."

Posted by: Trixie2 Wed, 2 May 2018 - 21:24
Post #1379266

OK so what should I do now? Should I take out all references to evidence in my defence and re-serve it? It might get confusing if I have references in my WS too.

Posted by: nosferatu1001 Thu, 3 May 2018 - 07:53
Post #1379307

You cannot reserve your defence without paying £255 to ask for permission to do so.
Thats why I didnt say to do that.
Whats done is done. It isnt fatal to your case.

What you do now, relatively obviously, is have your references in your WS match those in the defence/. of course, you can add new documents to your bundle now - youre not limited to what you thought of at the time you wrote your defence.

As youve been told, get on with your WS. Hopefully by now you can tell the difference, as examlpel WS are found here and on MSE forum so you can read the difference.

Posted by: Trixie2 Thu, 10 May 2018 - 14:06
Post #1381060

Here is an updated version of my witness statement. Would appreciate some feedback on whether I've written too much. Do I need to add in no keeper liability with regard to non compliant documents?
Or is it enough that I put that in my defence? Thanks in advance.

I am XXXX, the defendant in this matter. My address for service is XXXXX

This is my statement of truth.

As an unrepresented litigant-in-person I seek the Court's permission to amend and supplement this
defence as may be required upon disclosure of the claimant's case.

It is believed that it will be a matter of common ground that the purported debt arose as the result of
the issue of a parking charge notice in relation to an alleged breach of the terms and conditions by the
driver of the above vehicle when it was parked at Chase Farm Hospital on 7th January 2016.

On 7th January 2016 I was the registered keeper of vehicle XXXX, and attended an appointment at Chase Farm Hospital. I attended with two other people that day but do not recall who drove; it would not necessarily have been me.

The car park operates a pay on exit system monitored by ANPR cameras. After attending the appointment we left the hospital and as the appointment was for me and I was the only one with cash on me, I was the one who went to pay for parking. The machines did not accept the coins I was attempting to pay with and each time one was inserted the machine rejected it. I believe the machine had either not been emptied and could not accept any more money, or had an internal fault.

Having no other means to pay I went to look for an operative in the booth adjacent to the help point. Upon finding the booth empty I pressed the help button located nearby. The call went unanswered and eventually cut off. I pressed it once more and again the call went unanswered and cut off.

I looked around the car park but could not find anyone to help me. Despite trying my hardest to pay I was unable to and I had no option but to leave. I was completely unaware that any terms and conditions existed at this car park that the driver would have been bound by upon entry.

It appears from paperwork sent to me in September 2017, by the Claimant that a NtK was issued to me approximately two weeks after the visit, stating a ‘parking charge’ was due because of a breach in the terms and conditions, more specifically, a ‘failure to pay for duration of stay’.

I intended to respond to the letter with my defence but at that time I was dealing with two very stressful matters, including writing a witness statement regarding the death of my eldest daughter, and a very stressful house sale and purchase. (Please see appendix LC001, which is an e mail exchange between me and my solicitor regarding the witness statement, and expert reports that I had to go through. Please also see appendix SALE001, which is a sales memorandum regarding our house sale and purchase, with the strict stipulation about very tight exchange and completion dates)

I knew that Gemini Parking would write to me again so due to the immense pressure I was under I decided to concentrate on my witness statement and the house move, and reply to Gemini Parking when they next wrote to me, jogging my memory.

On 1st March 2016, after a delay in completion, my partner and I moved house, and my partner organised a mail redirection. There was a two day overlap before the redirection began, so we visited our old address to collect any mail that had not made the redirection and there was nothing more from Gemini Parking. (Please see appendix SALE 002, which is a completion statement, appendix SALE003, which is a copy of the register title, and appendix SALE 004, which is a bank statement copy showing a payment to the Post Office. I cannot find the original receipt, but this payment is for mail redirection for two people.)

After moving I did not receive any more correspondence about the parking charge and did not think anything more of it.

The first I knew that Gemini Parking had taken things further and gone to court was when I discovered the default judgement in September 2017, after checking my credit file. I had not received any paperwork leading up to or after the judgement was entered and was completely shocked to see the judgment.

As I was completely unaware that any terms and conditions existed in the car park, I returned to investigate what signage would have been available to the driver that day.

Upon entering the car park I immediately noticed that one of the entry signs was missing some mandatory information. (Please see appendix RL001, which is a copy of the BPA’s Code of Practise example of what an entrance sign must look like. Please also see appendix RL002, which is a copy of the sign available at the car park entrance. Please note the sign does not contain any warning that terms and conditions apply, nor does it state where the terms and conditions can be found.)

The main entry sign is too far away from the driver with very small font, meaning it is impossible for drivers to read, or take in any essential text regarding any terms or conditions. As such it’s impossible to know any of the terms and conditions you’re agreeing to be bound by when you enter the car park. (Please see appendix RL003, which is what the driver sees as they pull into the car park.)

Drivers are also prohibited from getting closer to the sign on foot, after they’ve parked, due to it being cordoned off with bollards so again, drivers have no way of knowing that terms and condition exist. (Please see appendix RL004, which is a photograph of the cordoned off sign.)

There were also no signs at all anywhere inside the car park that drivers would drive or walk past after leaving the car, stating that terms and conditions existed. (Please see appendix RL005-RL009, which are various photos from around the car park showing a lack of signage.)

There are signs at the back of the car park, outside by the vehicle exit, and inside the pay booth, but a motorist would not be aware of these signs when they park and leave their car. They would only see them once they’re ready to leave the car park after their stay. (Please see appendix RL010, which is a photograph of the sign as the driver leaves the car park.)

Upon further inspection of the sign at the pay booth, it appears there is no such term or condition that states the driver agrees to pay a parking charge for ‘failing to pay for the duration of the stay’. (Please see appendix RL011, which is a close up of the signage available at the pay booth.) The sign makes it clear that causing an obstruction and not parking within a bay will result in a parking charge, but the terms and conditions make no reference to a parking charge arising for failing to pay for the duration of the stay, and as such is very confusing for a motorist. (Please see appendix RL012, which is a copy of the Beavis V Parking Eye case sign that the Supreme Court deemed to be a clear sign).
There is not a single sign that gives ‘adequate notice’ of this parking charge and it is not brought to the attention of drivers. I therefore contend that the signage in place does not meet the standards outlined by the BPA Code of Practice, the Supreme Court, or the Consumer Rights Act 2015, in that the wording of the notices are not sufficiently “clear” to bring the ‘parking charge’ to the attention of the motorists who use this car park. As such the signs were incapable of forming a contract with the driver on 7th January 2016.

If the Claimant wanted to ensure drivers abided by their terms and conditions they would have ensured their signed was compliant and obvious, according to Lord Denning’s Red Hand Rule. They would also have their machines regularly serviced and in a fit and proper working order, as well as have their car parks manned should any problems with their machines arise.

Having gone back to the car park, I am confident that whoever drove on 7th January 2016 was unaware of any such terms and conditions and as such a contract was not formed.

As such I dispute that as the registered keeper, I am liable for this ‘debt’.

Since discovering the CCJ I have tried to contact Gladstones Solicitors on numerous occasions by phone and e-mail to discuss the purported debt with them. I asked various questions about the claim and requested all documents relating to it. Those invitations were ignored completely and to date I have had
no response from the Claimant’s solicitors, Gladstones or the Claimant themselves.

Posted by: nosferatu1001 Fri, 11 May 2018 - 13:30
Post #1381358

You dont appear to understand the purpose of your WS

IT relates facts, and provides the evidence to back up your defence. SO yes, it must state the evidence that supports your assertion that they have failed to make you, the keeepr, liable.

Posted by: Trixie2 Fri, 11 May 2018 - 14:36
Post #1381390

You're right - I don't understand. I feel like I'm just writing mostly the same thing all over again.

I will add in about keeper liability but in the meantime in the rest ok?

Posted by: ManxRed Fri, 11 May 2018 - 14:42
Post #1381392

Witness Statement - a list of facts about what happened with evidence to support. I am the Registered Keeper of vehicle AB12 ABC. On this date/time the vehicle was left at XXXXXX. On date XXX I received a Notice to Keeper (Appendix 1), I wrote back on this date stating this (Appendix 2), they failed to answer my questions, etc....

Skeleton Argument - Legal arguments as to why you don't owe them anything. E.g. the signs are hidden / badly worded / incapable of forming a contract, and an outline of why this is. You have the reasonable belief they do not have legal standing to pursue you in court for any alleged charge. You've asked for a copy of contract, not seen one. They failed to comply with PoFA 2012 - detail on why they failed. Etc... You don't need to go into lots of detail on the arguments, just a brief outline which you can elaborate on when you're in court. You don't need supporting docs at this point, that will be in the court bundle later.

Posted by: Trixie2 Fri, 11 May 2018 - 15:33
Post #1381416

So how is this different in any way from the defence I submitted a couple of months ago? It's exactly the same.

The last letter from the court said I now have to serve and file my WS and all supporting evidence I wish to rely on, so I don't think there is a 'later'. They've got a deadline of mid June to pay the court costs - as of yesterday it was still unpaid. Then my deadline is 2 weeks later for the WS then the final hearing is in July.


Posted by: nosferatu1001 Sun, 13 May 2018 - 18:14
Post #1381848

A defence is a series of legal arguments

A witness statement is a series of facts, plus evidence to back up those facts.

Night and day between them

"I am not liable because the charge was paid" is an argument
"Here is the proof that I paid the full fee of 1p, see reference initials/001" is a fact and evidence

The first is your defence
The second is what your witness statement MUST have

A skeleton argument is a THIRD document you CAN produce. You write it AFTER you get their bundle (witness statement) and you submit this to court and claimant about three days before the hearing. It summarises the flaws with their claim - evidence that proves you're right, especially their evidence, is great - and summarises your defence. Think of it as mostly an aide memoire

Hopefully this makes more sense now.

Posted by: Trixie2 Wed, 16 May 2018 - 09:43
Post #1382531

Thank you it does. I think the confusion for me is I mistakenly put the evidence in my defence, so I feel like I'm just copying and pasting so much.

I'm recovering from an op currently so I'll have another bash this week.

Thanks.

Posted by: nosferatu1001 Wed, 16 May 2018 - 11:35
Post #1382596

Dont panic too much, just met the deadline smile.gif

If you dont, then theoretically the C could complain, however they should not be disadvantaged by it being late - after all, its their claim, they should already be confident in it smile.gif

Posted by: Trixie2 Wed, 16 May 2018 - 15:05
Post #1382672

Thanks. My deadline is 28 June so I've got bags of time. They've got until the 14th June to pay the court fees. The letter says that if it's not paid by then then the claim will be struck out with immediate effect and they have to pay me costs. As of Friday just gone it remains unpaid. Fingers crossed! I'm very confident in my case - my defence and evidence might have scared them off - especially with there being no clause in the T&Cs covering non payment.

Posted by: nosferatu1001 Thu, 17 May 2018 - 10:45
Post #1382844

I doubt it says they HAVe ot pay you costs, more they may be liable for costs - but not on small claims track.

Posted by: Trixie2 Thu, 14 Jun 2018 - 16:39
Post #1390549

Hello. I would really appreciate a little bit more guidance on my WS please. I've read many links on the mse website now and I think I'm just not following. Some of the links I've read have legal arguments in, which I was under the impression was not right in a WS. None seem to have facts about events from the day in question.

So I just don't get what I'm meant to be writing. Sorry!

So for example, should the facts be about the day? I arrived, tried to pay, left car, got ticket etc etc etc?

Or other facts that I've not thought of?

Posted by: nosferatu1001 Fri, 15 Jun 2018 - 09:25
Post #1390706

In the last month can you show us your WS draft?

They all have facts about the day IF theyre written from the perspective of someone who was there at the time
MSE Forum NEWBIES Thread has some example WS.

Posted by: Trixie2 Fri, 15 Jun 2018 - 10:15
Post #1390729

Thanks Nosferatu. I've written this, this morning but it's unfinished. The last few lines are just thoughts so not constructed into proper sentences... I fear it does not flow well. I want to add in that I did not receive a letter before claim or any court documents contravening practice directions but I don't know how to write this.

What are your thoughts so far?

I, xxx xxxxxx, live at 1xxxxxxxx, xxxxxxxx and am the Defendent in this case. I make this statement in support of my defence and refute Gemini Parking Ltd’s claim that I should pay a Parking Charge Notice (and ensuing costs) for parking in a Chase Farm Hospital car park on 7th January 2016. This statement is true to the best of my knowledge and belief.

On the above date I attended the hospital for an appointment with two other people, my partner and sister. I do not remember who drove the car that day and cannot be expected to two and a half years on. My partner and I both drive the car equally (please see appendix XX, my insurance policy from the time, which shows both of us on the policy). My sister has also been known to drive my car.

Upon leaving the hospital I attempted to pay for parking as I was the only one with cash on me but the machine kept rejecting my coins and I was becoming very frustrated. As explained in my defence I looked around the car park for an operative but no one was around so I pressed the help button located nearby. The call went unanswered and cut off so I pressed it again only for the same thing to happen. Despite trying my hardest to pay I was unable to and as a result I had no option but to leave.

A Notice to Keeper was issued to me approximately two weeks later, stating a ‘parking charge’ was due because of a breach in the terms and conditions, more specifically, a ‘failure to pay for duration of stay’. I did not respond as at that precise point in time I was in the middle of dealing with a very stressful clinical negligence case and writing a very difficult witness statement connected to the death of my eldest daughter. I was also dealing with a very stressful house move.

I did not hear anything more from Gemini Parking and on March 1st 2016 my partner and I moved house and organised a mail redirection please see appendix xxx. No mail was ever received from Gemini Parking at my new address, or anyone connected to them.

The next time I heard anything about this Parking Charge was in September 2017 when by chance I discovered the Claimant had won a default judgement against me in January of that year. Upon calling Northampton County Court it appears all relating correspondence had been sent to my old address.

I was sent a copy of the Particulars of Claim but was unable to preen much information as the particulars were incredibly sparse without any sufficient detail, please see appendix XXX. I had no idea what terms and conditions had been breached and no idea if the Claimant was pursuing me as the driver or keeper. The claim form particulars did not contain any evidence of the contravention, no photographs were enclosed, no copy of the contract the driver was alleged to have breached, and no copy of the contract between the Claimant and the landowner. In fact there is nothing in the particulars that could be considered a fair exchange of information.

I called the Claimant who advised me by letter that they were unable to help me as the debt was now in the hands of DRP, but they did send a copy of the Penalty Charge and Reminder Notice – see appendix xxx. DRP were also unable to help me unless I paid an ‘access request’ fee but advised me it was now in the hands of Gladstones Solicitors. Since then I’ve made numerous calls to Gladstones, all have gone unanswered, as well as my e mail sent on xxx.

As no copy of the contract alleged to have been breached had been sent to me I drove back to Chase Farm Hospital in September 2017 in order to read the contract the driver is alleged to have breached. Upon entering I encountered missing signage and signage non-compliant with the BPA Code of Practise. Please see appendix XXX


…..Driver cannot have been bound by these terms and conditions – not able to read them upon entry, not able to approach them after left car. Cannot form a contract. No terms or condition that covers non payment of fee, therefore no such term or condition was breached.

Claimant did not comply with PoFA when issuing the Parking Charge and NtK and have missed kep pieces of information that must be

Posted by: nosferatu1001 Fri, 15 Jun 2018 - 10:44
Post #1390742

I cant review just yet - hopefully other regulasr can. Im busy all weekend as well

AS for saying you did not receive a LBA or antyhing else, just state that! ITs not legal language - just state you never were served with a LBA and the C refused to supply documents such as ... that you asked for on ... and this has hampered your ability to form a proper defence.

Same as a defence, and EVERY finalised WS you have seen, this MUST be numbered

Referencing - REFERNCE using INITIALS / 001.

Posted by: Trixie2 Fri, 15 Jun 2018 - 20:47
Post #1390978

Thanks Nosferatu. My deadline for service is not until the 28th so I have time. I know it all needs to be numbered and I will do this once I know I'm not adding in any more paragraphs. I think I've finished it now - here it is. I would really appreciate your thoughts on anything that can come out or anything that needs to go in. Thank you so much.

I am xxxxx, the defendant in this matter. My address for service is xxxxx.

This is my statement of truth.

As an unrepresented litigant-in-person I seek the Court's permission to amend and supplement this Witness statement as may be required upon disclosure of the claimant's case.

It is believed that it will be a matter of common ground that the purported debt arose as the result of the issue of a parking charge notice in relation to an alleged breach of the terms and conditions by the driver of the above vehicle when it was parked at Chase Farm Hospital on 7th January 2016.

On 7th January 2016 I was the registered keeper of vehicle xxxx, and attended an appointment at Chase Farm Hospital. I attended with two other people that day, but do not recall who drove; it would not necessarily have been me. Please see appendage xxx, which is a copy of my insurance certificate from 2016, showing my partner as also being insured to drive.

Upon leaving the hospital I attempted to pay for parking as I was the only one with cash on me but the machine kept rejecting my coins and I was becoming very frustrated. I looked around the car park for an operative but no one was around so I pressed the help button located nearby. The call went unanswered and cut off so I pressed it again only for the same thing to happen. Despite trying my hardest to pay I was unable to and as a result I had no option but to leave. At that point I was completely unaware that any terms and conditions existed at this car park that the driver would have been bound by upon entry.

A Notice to Keeper was issued to me approximately two weeks later, stating a ‘parking charge’ was due because of a breach in the terms and conditions, more specifically, a ‘failure to pay for duration of stay’. I did not respond as at that precise point in time I was in the middle of dealing with a very stressful clinical negligence case and writing a very difficult witness statement connected to the death of my eldest daughter. I was also dealing with a very stressful house move. Please see appendix xxx, which is an e mail exchange between me and my solicitor regarding the witness statement, and expert reports that I had to go through. Please also see appendix xxx, which is a sales memorandum regarding our house sale and purchase, with the strict stipulation about very tight exchange and completion dates.

I knew that the Claimant would write to me again so due to the immense pressure I was under I decided to concentrate on my witness statement and the house move, and reply to the Claimant when they next wrote to me.
On 1st March 2016, after a delay in completion, my partner and I moved house, and we organised a mail redirection. There was a two day overlap before the redirection began, so we visited our old address to collect any mail that had not made the redirection and there was nothing more from the Claimant or anyone connected with this 'debt'. Please see appendage xxx, which is a completion statement, appendage xxx, which is a copy of the register title, and appendage xxx, which is a bank statement copy showing a payment to the Post Office. I cannot find the original receipt for the mail redirection, but this payment is for mail redirection for two people.

I did not hear anything more from the Claimant after that, or anyone they handed the debt over to. I also did not receive a Letter Before Action from the Claimant or any correspondence relating to this claim whatsoever.

The next time I heard anything about this Parking Charge was in September 2017 when by chance I discovered the Claimant had won a default judgement against me in January of that year (set aside in February 2018). Upon calling Northampton County Court I discovered Claimant’s solicitors, Gladstones, had given the court my old address for service, despite me not having lived there for several months.

My new address would have been readily available to Gladstones as I appeared on several utility bills, including council tax, please see appendage xxxx, so I do not know why Gladstones would have used an address I did not live at.

The court sent me a copy of the Particulars of Claim but I was unable to preen much information as the particulars were incredibly sparse without any sufficient detail, please see appendix XXX. I had no idea the terms and conditions that the Claimant referred to, and no idea if the Claimant was pursuing me as the driver or keeper.

The claim form particulars did not contain any evidence of the contravention, no photographs were enclosed, and no copy of the contract between the Claimant and the landowner. The Claimant also failed to provide any information relating to the contract alleged to have been breached. In fact there was nothing in the particulars that could be considered a fair exchange of information.

From the 25th to the 26th September 2017 I called Gladstones Solicitors numerous times but none of my calls were answered.

On 26th September I called the Claimant directly but they refused to send me any documents and instead told me to call DRPL, the debt collection agency they instructed to collect the 'debt'. When I called DRPL for documentation relating to the case they refused to send anything. They did however tell me the debt was for £150 when it was passed onto them.

I called the Claimant back and they eventually agreed to send me copies of the Parking Charge and Reminder Notice, but they directed me to Gladstones for anything more. Please see appendage xxxx

When numerous calls to Gladstones went unanswered I e mailed them and received a bounce back stating they would consider my e mail and respond within 28 days. Please see appendage xx To date I have heard nothing from them and have received no documentation in relation to this claim. As a result this has severely hampered my ability to form a proper defence.

As all I had to go on were the scant Particular of Claim I made a visit to Chase Farm Hospital car park to try and figure out what terms and conditions would have been available to the driver on 7th January 2016.

NON-COMPLIANT SIGNAGE
Entrance sign:
Upon approaching the car park I encountered missing signage and the signage that was available was non-compliant with the BPA Code of Practise. Please see appendix xxx for the BPA’s example of what an entrance sign must look like. Note that signs must always mention that there are terms and conditions that apply, and the sign must state where the driver can find more details. Please also see appendix xxx as evidence of the entry sign available at the entrance of the car park at Chase Farm Hospital. It does not warn approaching drivers that there are terms and conditions governing the car park, and is therefore non-compliant with the BPA’s Code of Practise. Please see appendage xxx, which is a copy of the BPA Code of Practice.

BPA state that signs should be simple and easy to read yet the larger entrance sign is packed with wording in tiny font, which is not readable to drivers as they approach the car park. The only readable words are Pay on Exit and Parking Tariffs Apply. Please see appendage xxx I was also unable to approach the sign to read it once I’d parked as it was cordoned off with barriers as it was in January 2016. Please see appendage xxx Any mention of the £100 charge is hidden away in the small print at the bottom of the sign and is not prominent or obvious and easy to read by a motorist driving, even very slowly, past the sign. It certainly would not pass Lord Denning’s ‘red hand rule’, which states that the charge should be very clear and prominent with the terms in large lettering as was found to be the case in the car park in ‘Beavis’.

A reasonable interpretation of the 'red hand rule' and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently and in far larger lettering, with fewer words and more 'white space' as background contrast suited to an outdoor sign.

Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.

(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

In support of this is the case 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106'. In this case the driver did not see the terms and consequently was not deemed bound by them as no contract had been established.

No signage throughout the site:
The BPA Code of Practice states that signage should be placed throughout the site so that drivers have a chance to read the terms and conditions after leaving their car.

I noted that there was no signage containing terms and conditions anywhere within the car park, again contravening the BPA Code of Practice and the driver would therefore not have been aware of them when they left their car and walked into the hospital. Please see appendix xxx-xxx, which are various photos from around the car park showing a lack of signage. The only signs are placed at the entrance, at the pay station, and at the exit. The pay station and exit signage would not be seen until the driver is ready to leave. Please see appendage xxxx. The only terms and conditions available on that floor relate to parking within disabled bays, and even those signs contravene the BPA Code of Practice and the Supreme Court, in that they are not able to be viewed without leaving the car and not prominent as commented on in ParkingEye Vs Beavis. Please see appendage xxx

On closer inspection of the signage by the pay station it appears that no such term exists within the terms and conditions that states the driver agrees to pay a £100 parking notice for failure to pay for duration of stay. Please see appendage xxxx which is a photograph of their signage at the pay booth.

The sign makes it clear that causing an obstruction and not parking within a bay will result in a parking charge, neither of which I had contravened. The terms and conditions make no reference to a parking charge arising for failing to pay for the duration of the stay. It is therefore a very unclear sign.

The Beavis v Parking Eye case sign is an example of what the Supreme Court deemed a clear sign, because it's not wordy and the charge was in large letters, making it clear for the driver to understand a charge applies for failing to comply with the stated terms and conditions. Please see appendix xxx.

As this term was not expressed clearly I contend that the Claimant was in breach of the Consumer Rights Act, which states that if a term has not been sufficiently drawn to the attention of the consumer, then the terms is held to be unfair and is not binding on the consumer.

I therefore contend that the signage in place does not meet the standards outlined by the BPA Code of Practice, the Supreme Court, or the Consumer Rights Act 2015, in that the wording of the notices are not sufficiently “clear” to bring the ‘parking charge’ to the attention of the motorists who use this car park. As such the signs were incapable of forming a contract with the driver on 7th January 2016.

NON COMPIANT DOCUMENTS – KEEPER LIABILITY NOT ESTABLISHED
Around the 30th September I received a copy of the Parking Charge and the Reminder Notice (please see appendage xxx) from the Claimant; both are non-compliant with Schedule 4 paragraph 9 of the Protection of Freedom Act 2012, which stipulates some mandatory information that MUST be included in the Notice to Keeper (NtK) for the Keeper to be held liable. This is a matter of statute, and not contract law.

The Parking Charge issued by the Claimant does not state precisely which land it refers to, simply stating ‘Chase Farm’. It does not distinguish between the Chase Farm in Setchey, Norfolk, or the Chase Farm in Milton Keynes. Furthermore, Chase Farm Hospital covers 37 acres with numerous car parks – the NtK does not state precisely, which land it is referring to. It also fails to make reference of the time of parking, instead confusing the time of entry and exit with the time of parking, which are two distinctly different things.

The NtK does not state that charges had to be paid f or the period of parking, nor does it specify who the creditor is. The NtK also fails to specify the date on which it was sent. Please refer back to appendage xxx. Please also refer to appendage xxx, which is a copy of Schedule 4 paragraph 9 of the Protection of Freedom Act 2012

As the Claimant has not complied with PoFA they cannot hold the Registered Keeper liable, only the driver. I do not remember who was driving and in any case I’m under no obligation to find out who was, as there is no offence under the RTA and no equivalent of Section 172 exists. If the Claimant is pursuing me as the driver they are put to strict proof as to who was driving that day.

The Claimant has no right to assert that the Defendant is liable based on ‘reasonable assumption’. Parking and Traffic Appeals Service (PATAS) and Parking On Private Land Appeals (POPLA) Lead Adjudicator and Barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, 'there is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and operators should never suggest anything of the sort' (p.12 POPLA Annual Report 2015).

As such I dispute that the Claimant has reasonable cause to pursue me as the driver or keeper and I am therefore not liable for this ‘debt’.


STATEMENT OF TRUTH

I believe that the facts stated in this witness statement are true.

SIGNED: …………………………………


DATED: ………………………………...



Posted by: nosferatu1001 Sat, 16 Jun 2018 - 20:08
Post #1391200

Not that intro. It's not your statement of truth it is signed, at the bottom, under such a statement. Don't include your address, th court and claimant has this. 3rd para isn't needed.

Posted by: Trixie2 Sat, 16 Jun 2018 - 22:01
Post #1391227

Ok thank you for the advice. I will amend. Is there anything else I should add? Does it read ok?

Posted by: southpaw82 Sat, 16 Jun 2018 - 22:14
Post #1391228

There should be no argument, legal or otherwise, in a witness statement. You can only (properly) put in a witness statement what you could say from the witness box in court. You cannot make legal argument (or any other type of argument) or tell the court what you think the law is from the witness box, therefore you cannot (should not) do it in a witness statement.

You also need to set it out in accordance with the rules and practice directions - such as numbering your paragraphs.

Posted by: Trixie2 Mon, 18 Jun 2018 - 09:21
Post #1391516

Oh I'm really confused. In post #158 I was told to put in keeper liability. Shall I just say on such and such a date I was sent a NtK that was non-compliant - please see appendix xxx...? Or not mention non-compliance at all and just state I was sent the NtK?

Re numbering paragraphs - I absolutely intend to do that as soon as I know I'm not adding in anymore paragraphs etc and it's a finished product.

Posted by: nosferatu1001 Mon, 18 Jun 2018 - 12:27
Post #1391604

You could say there was an NtK that did not meet the requierments of POFA because x, y, z facts
That isnt an argument, it is a statement of facts.

Posted by: southpaw82 Mon, 18 Jun 2018 - 17:16
Post #1391760

QUOTE (Trixie2 @ Mon, 18 Jun 2018 - 10:21) *
Oh I'm really confused. In post #158 I was told to put in keeper liability. Shall I just say on such and such a date I was sent a NtK that was non-compliant - please see appendix xxx...? Or not mention non-compliance at all and just state I was sent the NtK?

Re numbering paragraphs - I absolutely intend to do that as soon as I know I'm not adding in anymore paragraphs etc and it's a finished product.



QUOTE (nosferatu1001 @ Mon, 18 Jun 2018 - 13:27) *
You could say there was an NtK that did not meet the requierments of POFA because x, y, z facts
That isnt an argument, it is a statement of facts.

It's a statement of opinion, not facts, and it's normally unwise to give the court conclusions on something that is wholly within its remit to decide. One way of wording it would be "I am advised by persons who have assisted me, and believe, that the notice to keeper does not comply with the provisions of the Protection of Freedoms Act 2012".

Arguments are not made in witness statements - they are made orally in court, set out in brief (and I mean brief) form if necessary in a skeleton argument. We do not do American style "briefs/pleadings" setting out written arguments in the UK, unless the court specifically asks for them in lieu of an oral hearing.

Posted by: Trixie2 Tue, 19 Jun 2018 - 15:09
Post #1392052

OK thank you both for your help. Is there anything else you suggest I add/delete? If not I will format accordingly and get it sent off.

Also, if the Claimant have not put their e mail address as their address for service on the relevant forms, do I have to send them a hard copy in the post? Or can I still send it on e mail to them?

Posted by: nosferatu1001 Wed, 20 Jun 2018 - 11:39
Post #1392264

If yuove already been communicating over email id serve it that way, unless they expressly state they do NOT accept service that way. SPlit into multiple emails as servers often only accept a certain size of attachment.

Posted by: Trixie2 Thu, 21 Jun 2018 - 10:58
Post #1392582

I've only had one communication from Gladstones over e mail and that was from an 'Andy' (no surname) telling me they won't mediate, will be asking for the hearing to be in a local court and that they're open to my offer to settle. I ignored that e mail and wrote to the court telling them it should be in MY local court. Does that constitute communicating with them over e mail? They have NOT expressly stated they do not accept service this way. Could I send it to him?

Posted by: nosferatu1001 Thu, 21 Jun 2018 - 11:14
Post #1392591

I think their webstie says they dont accept service via eamil. Check it out.

Posted by: Trixie2 Thu, 21 Jun 2018 - 11:47
Post #1392619

Ah OK will do thanks. I'll just stick it in the post to be on the safe side.

Posted by: Trixie2 Sun, 24 Jun 2018 - 18:06
Post #1393347

Hi I have amended my WS and got all my evidence together. I have also numbered the paragraphs. Thanks for your help on that. One thing I've noticed is that the Court papers all refer to 'Gemini Parking Solutions London Limited', yet the Notice to Keeper refers to 'Gemini Parking Solutions'. Is this something to make a point of? Or meaningless?

Posted by: ostell Mon, 25 Jun 2018 - 13:40
Post #1393634

Check on Companies House to see if both names are registered as separate companies. If so then if you had a contract with one company then the other can't make claim.

But could be one trading as the other. Check it out, it could prove important

Edit: even better! Gemini Parking Solutions Limited was dissolved in 2015 and therefore can not be trading. Check all the details very carefully

Posted by: emanresu Mon, 25 Jun 2018 - 14:04
Post #1393640

All the paperwork (#14) and all the signs (#45) give the correct company number (8214352). The only issue will be whether their authority was before 2015 (the old company) or with the new post-2015 company.

You'll only be able to check this once the WS are exchanged but you do not need to challenge this now. Only when you see their WS.

Posted by: ostell Mon, 25 Jun 2018 - 16:05
Post #1393677

So it looks as though they were using a name that they were not entitled to, a good cause for complaint to the court.

Posted by: Trixie2 Tue, 26 Jun 2018 - 15:15
Post #1393929

Hi. The photos and signs in my post were taken in September 2017 when I found out about the CCJ. So they may not be the original signs on display at the time of the parking charge in January 2016. We shall see what they send as their evidence.

I sent my WS and evidence off today. Deadline for service is Thursday. I've not had anything from them yet.

By the way, I think it's Gemini Parking Solutions that was dissolved - not Gemini Parking Solutions London. It is the latter that is taking me to court.

Posted by: Jlc Tue, 26 Jun 2018 - 15:21
Post #1393933

QUOTE (Trixie2 @ Tue, 26 Jun 2018 - 16:15) *
I think it's Gemini Parking Solutions that was dissolved - not Gemini Parking Solutions London. It is the latter that is taking me to court.

Don't think - get the facts and challenge their contract is with the correct entity.

Posted by: Redivi Tue, 26 Jun 2018 - 16:44
Post #1393955

Gemini Parking Solutions (06468933) stopped trading in early 2012 even though it wasn't dissolved until three years later

Gemini Parking Solutions London Ltd (08214352) was incorporated in September 2012 shortly after GPS submitted the accounts for its last year of trading
The VAT number is valid for GPSL

No surprise they have the same director

Posted by: Jlc Tue, 26 Jun 2018 - 17:52
Post #1393982

I'd be interested in the contract with the landholder.

Posted by: Trixie2 Wed, 27 Jun 2018 - 08:10
Post #1394081

Thanks everyone. I'm waiting on tenterhooks for their evidence. Will keep you posted. They have until tomorrow to serve.

Posted by: Trixie2 Wed, 27 Jun 2018 - 13:39
Post #1394170

Sorry one more quick question... Do I need to have sent in judgments for all the cases I mentioned in my defence? And print outs of the Acts etc I mention? Or can I just take that along with me on the day?

Posted by: Redivi Wed, 27 Jun 2018 - 13:59
Post #1394180

For the evidence packs, I would just include relevant pages with the text highlighted

Bring the full documents to the hearing so the judge can check the comments in context

Posted by: Redivi Wed, 27 Jun 2018 - 14:18
Post #1394185

.

Posted by: Trixie2 Wed, 27 Jun 2018 - 14:20
Post #1394186

OK. Thanks. Wish I'd have thought of asking that sooner as my deadline for evidence is tomorrow! Eek!

Posted by: Trixie2 Thu, 28 Jun 2018 - 15:49
Post #1394541

So today was the deadline to file and serve WSs and evidence for both sides, and I've heard absolutely nothing from Gemini. Nothing came in the post today. So they've missed the deadline.

The court hasn't received anything from them either, but they did say it takes up to 4 days to process so if they sent it yesterday it won't be on the system yet. They did however pay the court fee last week.

What do I do from here? I've actually never received anything from them - no evidence was sent to me before the set aside hearing either but was submitted to the court, and the court refused to send it on to me for some reason.

Posted by: nosferatu1001 Fri, 29 Jun 2018 - 03:44
Post #1394630

It isn't the courts job to send you the c evidence is why. You of course require it from the, directly.

If it isn't there Monday, at yours, this gets added to the unreasonable behaviour pile, and you ask that they get no relief from sanction. Sanction here would usually be the striking of their bundle.

Posted by: Trixie2 Mon, 2 Jul 2018 - 09:14
Post #1395318

Thanks Nosferatu. So far nothing has arrived.

I'm just reading about skeleton defenses and seperately read something about someone ordering a copy of the title register to see who the land belongs to, and then doing a part 18 request to the Claimant/solicitors for information about the landowner contract.

I have already asked for this in my defense but do I need to do a part 18 request for this information as well?

EDIT - I just called the court and they've not been sent any evidence of WSs from the Claimant either. The court order states that all evidence should be filed and served by 28th June. Failure to comply with the order may result in the case being adjourned and the party at fault having to pay costs. Do I ask for an adjournment? Or just turn up on the day? It means taking an day off work and I'm freelance so I won't get paid.

Posted by: emanresu Mon, 2 Jul 2018 - 11:02
Post #1395360

QUOTE
I just called the court and they've not been sent any evidence of WSs from the Claimant either. The court order states that all evidence should be filed and served by 28th June. Failure to comply with the order may result in the case being adjourned and the party at fault having to pay costs. Do I ask for an adjournment? Or just turn up on the day? It means taking an day off work and I'm freelance so I won't get paid.


Contact the other side, and ask them where it is. Have proof you did so. If they still don't send it then you bring it to the attention of the judge. If they send it late, you bring it to the attention of the judge. Both are a breach of the court rules which means they would need to apply for relief from sanction. That sanction can be an adjournment, or their case struck out, or their late WS disregarded. But again, it is not for the court to chase but for you to engage and show you have engaged.

Posted by: Trixie2 Wed, 4 Jul 2018 - 08:24
Post #1395904

So still nothing from them. I e mailed them on Monday giving them until today but didn't even get a response to my e mail and nothing in the post. The court hasn't received anything either. Does this sound like they might discontinue?

I'm considering not doing a skeleton defense because if you remember I stupidly put all my evidence in my defense so everything correlates. There's nothing floating around in the evidence that isn't referenced.

But I do want to do a costs schedule. What is the limit I can claim for various things?

Posted by: ostell Wed, 4 Jul 2018 - 08:52
Post #1395909

You claim for lost income but take proof of what you would have been earning. This is normally limited at £96. Plus travel and parking costs. If you can persuade the judge that they have been unreasonable by discontinuing so late (if they do) then you can try and claim for all the time you've spent working on this at £19 per hour. Have it all ready to submit to the judge.

Posted by: Trixie2 Wed, 4 Jul 2018 - 08:57
Post #1395910

Okay thank you Ostell. I'm self employed and freelance so I don't have payslips - I have invoices that I've sent to companies with my day rate. I will have a few of those ready with me if need be.

When I called the court they suggested I e mail in and ask a judge to either strike out the claim or adjourn it. Would you agree? Time off work is unpaid for me so I don't want to take the time off if they don't show.

Posted by: kommando Wed, 4 Jul 2018 - 09:07
Post #1395917

Yes do the email, also if Gemini/Solicitors do send a discontinue form to you do not assume it has been discontinued without confirmation from the court. They are supposed to send the form to both you and the court but it has been used in the past to trick defendants into not turning up by only sending the form to the defendant, they then claim a default judgement as the defendant did not attend. Not seen this trick played for some time but it is worth checking.

Posted by: Trixie2 Wed, 4 Jul 2018 - 09:13
Post #1395919

Wow what low lives! Thanks for the tip. I will send the e mail today. Thanks again.

Posted by: Trixie2 Wed, 4 Jul 2018 - 14:32
Post #1396028

Is this OK to send to the court?

To whom it may concern:

On 13th March 2018, Her Honour Judge Wood ordered that each party must deliver to the other party and to the court, copies of all documents on which that party intends to rely on at the July hearing, no later than Thursday 28th June 2018.

I, the defendant, filed and served all my evidence and witness statements before the deadline of 28th June, but to date I have received no evidence at all from the Claimant in relation to this claim. I contacted the Claimant's representation, Gladstones Solicitors, on Monday 2nd July asking them for a copy of their client's documents by Wednesday 4th July, but my e mail and request went ignored. After calling Watford County Court this morning, it appears that the Claimant has also failed to file any documents with the court.

In point 5 of the Notice of Allocation Her Honour Judge Wood states that failure to comply with the directions may result in the case having to be adjourned and the party at fault having to pay costs.

As the Claimant have failed to comply with the Judge's orders and my request for the documents, and I am now at a serious disadvantage when it comes to forming a full defence for the hearing next week, and as such I request the case is struck out or adjourned, and the Claimant pay full costs.

Yours sincerely,

xxx

Posted by: SchoolRunMum Wed, 4 Jul 2018 - 15:04
Post #1396055

With a copy of your costs Schedule, yes.

And why not argue that the Claimant's conduct has been undoubtedly unreasonable and vexatious from start to finish (remind the Judge by listing the Claimant's failures throughout as a prompt), thus you seek costs on the indemnity basis. Given you are a freelance self-employed professional and you don't have payslips - only invoices to companies with a day rate of £xxx - and you have had to take valuable time out of your busy schedule to fight a meritless claim that has amounted to nothing more than a vexatious scam, it seems more than reasonable to ask the Judge to use his/her discretion regarding the matter of costs. Indeed, to send a clear message from the Court to the Claimant, you ask that the xx hours you are claiming for your research and work on this harassing claim is assessed as fair recompense for the hours the Defendant has wasted on this at a rate of £60 ph (being approximately 50% of costs of a grade D fee earner) which I consider to be eminently reasonable, given the circumstances described.

Posted by: Trixie2 Wed, 4 Jul 2018 - 15:29
Post #1396073

OK thank you very much SchoolRunMum.

I have knocked this up - I just have questions below...

In the County Court at vvvvvvvvvvv

Claim No.: vvvvvvvvv
Between

parking company's name
(Claimant)

-v-

(Defendant)



DEFENDANT'S SCHEDULE OF COSTS


Ordinary Costs

Cost of set aside hearing - £255

Loss of earnings/leave incurred through attendance at Court for the set aside hearing in January 2018 £xx.00 - what is the cap here?

Time spent preparing documents – what rate is this set at?

Printing/paper – how do I work that out?

Return mileage from home address to Court (£0.45 per mile) £x.xx

Parking near Court

Sub-total £xxx.xx ======


Further costs for Claimant's unreasonable behaviour, pursuant to Civil Procedure Rule 27.14(2)(g)

Research, preparation and drafting of documents (x hours at a rate of £60 per hour) – I’ve put in in excess of about 50 hours but there must be a cap? What is it if so? My day rate is £230. Can I claim most of that?

Stationery, printing, photocopying and postage: I’ve printed off a lot of paper – what do I charge for this? And photocopying?

Sub-total £xxx.xx ======



£ ______ TOTAL COSTS CLAIMED

Is there anything else I've missed? Thanks for your help so far.

Posted by: SchoolRunMum Wed, 4 Jul 2018 - 15:35
Post #1396075

QUOTE
Time spent preparing documents – what rate is this set at?

The LIP rate is normally £19 per hour but you need to clearly add in the same breath (and in the covering letter, very clearly) that you are seeking a rate that reflects the waste of your time and their meritless claim and vexatious conduct - hence the £60 per hour.

If you don't ask, you don't get!

Posted by: Trixie2 Thu, 5 Jul 2018 - 08:48
Post #1396189

Hi - I just wanted to check something re costs.... I must have spent at least 20 hours researching and writing everything, bearing in mind I have no legal training or background.

If I'm claiming £60 per hour on the indemnity basis that is going to blow my costs out all proportion in relation to what the Claimant is seeking. Even just ten hours will be £600. I'm already at £481 with my normal costs (including set aside fee and days off work at £95 each). Is the judge really going to take me seriously if I ask for over a grand?

Posted by: Trixie2 Fri, 6 Jul 2018 - 09:14
Post #1396493

Any advice re costs would be greatly appreciated.... I want to send off my costs today.

I think SchoolRunMum has given me great advice - but just worried the judge will not look favourably on me.

Posted by: ostell Fri, 6 Jul 2018 - 09:30
Post #1396496

Ask for it, the judge can oly amend downwards if he is not happy.

Posted by: Trixie2 Fri, 6 Jul 2018 - 11:08
Post #1396513

Thanks Ostell. What do you all think of this:

To whom it may concern:

RE: REQUEST TO HAVE CASE XXXX STRUCK OUT FOR FAILURE ON THE CLAIMAT’S PART TO COMPLY WITH PRE-ACTION PROTOCOL AND COURT ORDERS.

On 13th March 2018, Her Honour Judge Wood ordered that each party must deliver to the other party and to the court, copies of all documents on which that party intends to rely on at the July 12th hearing, no later than Thursday 28th June 2018.

To date the Claimant, Gemini Parking Solutions, have neither filed nor served any evidence or witness statements in support of their claim against me. With the hearing being less than a week away, scheduled for July 12th 2018, I will be unable to defend myself properly against this claim and have to consider whether the Claimant will even turn up to the hearing. They did not attend the set-aside hearing and also provided no evidence at that hearing in support of their claim.

In point 5 of the Notice of Allocation Her Honour Judge Wood states that failure to comply with the directions may result in the case having to be adjourned and the party at fault having to pay costs.

I believe that the Claimant have behaved in an unreasonable manner by harassing me with this baseless and vexatious claim from start to finish, and request that case be struck out with immediate effect and costs awarded.

The Claimant originally pursued this case knowing it would be an easy win for them, because they provided the court with an address I had not lived at for several months and was therefore unaware of the case and unable to defend it. I am on the electoral roll so the Claimant would have had easy access to my current address but they chose not to use it.

Once the Judgement was set aside and the case became defended the Claimant failed to supply any evidence whatsoever, or any witness statements in support of their case, with blatant disregard for Her Honour Judge Wood’s court order.

I am a lay person with no previous experience of court or law, and have wasted a considerable amount of time researching and preparing documents. I have also had to book two days off work (for both the set-aside hearing and the final hearing) to attend to court to fight this meritless claim, and as I’m self-employed and freelance, I have had to take these days as unpaid leave, losing out on almost £500, for what has turned out to be nothing more than a vexatious scam.

I am by far not the first person they have done this to. My research has revealed that this Claimant is a serial issuer or such claims and regularly discontinue at the last minute, or fail to turn up to court. With this in mind I do not want to waste any more of my valuable time and money on this case.

Due to their wholly unreasonable and vexatious behaviour in bringing this baseless claim I request that the case be struck out with immediate effect and a clear message is sent to the Claimant by costs being awarded on the indemnity basis.

I have added a costs schedule and ask that the Judge apply his/her discretion regarding the matter of costs.

Yours sincerely,

xxxx






In the County Court at vvvvvvvvvvv

Claim No.: vvvvvvvvv
Between

parking company's name
(Claimant)

-v-


(my name)
(Defendant)



DEFENDANT'S SCHEDULE OF COSTS


Ordinary Costs

Cost of set aside hearing - £255

Loss of earnings/leave incurred through attendance at Court for the set aside hearing in January 2018 - £230

Return mileage from home address to Court for set aside hearing (36 miles x 45p per mile) £16.20

Parking near Court - £5


Sub-total - £506.20

Should the judge decide the final hearing, scheduled to take place on Thursday 12th July at 1000, should still take place, I request the following costs be added to the costs schedule:

Loss of earnings/leave incurred through attendance at Court for the set aside hearing in January 2018 - £230

Return mileage from home address to court for final hearing – (21 miles x 45p per mile) - £9.45

Parking near court - £5

Sub-total - £244.45

As the Claimant has behaved unreasonably by bringing this baseless and vexatious claim against me, I request further costs are awarded pursuant to Civil Procedure Rule 27.14(2)(g), on the indemnity basis.

The Claimant has behaved in a vexatious and unreasonable manner by:

-Issuing a parking notice knowing their signage was non-compliant with the relevant guidance.
-Providing the court with an address for service I did not live at, despite the Claimant having easy access to my actual address.

-Once the case was set-aside and became defended the Claimant failed to comply with pre-action protocol and failed to comply with Her Honour Judge Wood’s court order, by failing to file and serve any evidence whatsoever or witness statements in support of their claim.

-The Claimant ignored my e-mail asking for their evidence meaning I am still unable to properly defend myself against their claim.

As the Claimant have behaved wholly unreasonably I ask the Judge to use his/her discretion regarding the matter of costs, and I ask that the hours I am claiming for in research and work for this harassing claim is assessed as fair recompense for the hours I have wasted on this. In total I have put in approximately twenty hours of research but I am willing to claim only ten, at a rate of £60 per hour, being approximately 50% of costs of a grade D fee earner, which I consider to be eminently reasonable, given the circumstances described.

FURTHER COSTS FOR CLAIMANT’S UNREASONABLE BEHAVIOUR PURSUANT TO CIVIL PROCEDURE RULE 27.14(2)(g):

Research, preparation and drafting of documents (10 hours at a rate of £60 per hour) – £600

Stationery, printing, photocopying and postage for both hearings - £50

Sub-total £650.00

TOTAL - £1400.65

Posted by: Trixie2 Mon, 9 Jul 2018 - 08:29
Post #1396980

Good morning. In the absence of any criticism, I presumed my costs e mail and schedule was fine and sent it to the court. But could someone please advise if I need to send a copy to the Claimant?

Thanks.

Posted by: ostell Mon, 9 Jul 2018 - 08:31
Post #1396981

Yes, send it to the claimant as well as the court.

Posted by: Trixie2 Mon, 9 Jul 2018 - 09:25
Post #1396998

Thank you Ostell. I just got this from the Court:

Good morning

Thank you for your email dated the 6 July 2018.

This has been placed on the court file in readiness for the hearing on the 12 July 2018. If you wish for the judge to make a decision prior to the hearing a formal application and fee is required.

Kind regards

**

I've asked how much that would cost. Do you think it's worth it? Or should I just show up?

Posted by: nosferatu1001 Mon, 9 Jul 2018 - 14:09
Post #1397099

£100. Fees are all on the gov website smile.gif

Currently youre showing up UNTIL and UNLESS you get a notice of disctoninuance that you confirm is real with the court.

Posted by: Trixie2 Mon, 9 Jul 2018 - 14:52
Post #1397119

Ah OK. I'm not gonna throw anymore money at this so I guess I'm at court on Thursday. I will send over my schedule of costs to the Claimant today.

Thanks for your help.

Posted by: Trixie2 Tue, 10 Jul 2018 - 16:42
Post #1397581

I'm guessing they got my costs schedule today. I just got this via email: (no phone call received from them)
Without prejudice

Dear xxx,

Following instruction from our client we have been trying to contact you via telephone.

We have been contacting to see if you would be willing to settle this matter outside of court to save both parties time and costs.

If you would like to put forward a settlement offer for our client to consider and once looked at we will get back in touch.

If a settlement is agreed it would have to be paid in full by 11.07.2018 in order for the hearing on 12.07.2018 to be vacated.

We look forward to hearing from you.

Kind Regards
Amber

**
How to respond?

Posted by: Redivi Tue, 10 Jul 2018 - 16:46
Post #1397587

It's £1156 isn't it ?

Posted by: Trixie2 Tue, 10 Jul 2018 - 16:49
Post #1397592

Approx £1400

Posted by: Jlc Tue, 10 Jul 2018 - 16:50
Post #1397594

I read that they are expecting the OP to make an offer to them?!

Posted by: emanresu Tue, 10 Jul 2018 - 16:55
Post #1397598

I forecast a no-show

Posted by: Jlc Tue, 10 Jul 2018 - 17:01
Post #1397604

Well tell them what you’ll accept and why. But I don’t think they are expecting it that way around... I.e. the reference that it must be paid to vacate.

Posted by: Redivi Tue, 10 Jul 2018 - 17:05
Post #1397607

QUOTE (Trixie2 @ Tue, 10 Jul 2018 - 17:49) *
Approx £1400

I was reading £230 as costs that will be incurred if the hearing goes ahead

I read that they are expecting the OP to make an offer to them?!

That's how I'm reading it if they say it must be paid by 11th


Posted by: Redivi Tue, 10 Jul 2018 - 17:16
Post #1397615

QUOTE (Trixie2 @ Tue, 10 Jul 2018 - 17:49) *
Approx £1400

I was reading £230 as costs that will be incurred if the hearing goes ahead

I read that they are expecting the OP to make an offer to them?!

That's how I'm reading it if they say it must be paid by 11th

A reasonable settlement figure to suggest Without Prejudice Save to Costs is £700 :

Set aside fee £255
Loss of earnings £200
Other costs £ 10
10 hrs at £19/hr for litigant in person £190
Stationery £ 50

They're numbers that you can justify to the court and don't require arguments about unreasonable behaviour



Posted by: Jlc Tue, 10 Jul 2018 - 17:41
Post #1397634

QUOTE (emanresu @ Tue, 10 Jul 2018 - 17:55) *
I forecast a no-show

Probably prompting the 'cheeky' request for a settlement.

Posted by: Trixie2 Tue, 10 Jul 2018 - 18:58
Post #1397676

Hi all. Well at a guess I would say they're expecting ME to pay THEM something. But actually they haven't specified. So I could go back to them with what I expect them to pay me.

I like Redivi's response:

A reasonable settlement figure to suggest Without Prejudice Save to Costs is £700 :

Set aside fee £255
Loss of earnings £200
Other costs £ 10
10 hrs at £19/hr for litigant in person £190
Stationery £ 50

Shall I go back with this?

Posted by: cabbyman Tue, 10 Jul 2018 - 19:17
Post #1397687

Yes. Make sure you make it clear that you expect their remittance in cleared funds by xx/xx/18. Leave them in no doubt that they will be doing the paying, not you.

Posted by: Jlc Tue, 10 Jul 2018 - 19:44
Post #1397709

QUOTE (Trixie2 @ Tue, 10 Jul 2018 - 19:58) *
Hi all. Well at a guess I would say they're expecting ME to pay THEM something. But actually they haven't specified. So I could go back to them with what I expect them to pay me.

I like Redivi's response:

A reasonable settlement figure to suggest Without Prejudice Save to Costs is £700 :

Set aside fee £255
Loss of earnings £200
Other costs £ 10
10 hrs at £19/hr for litigant in person £190
Stationery £ 50

Shall I go back with this?

Yes. They haven't specified but that might be deliberate - imagine their joy if you did offer them something!!! It's ambiguous but the phrase about 'payment in full' leans towards paying them imho.

Posted by: Trixie2 Tue, 10 Jul 2018 - 19:58
Post #1397716

Yes I tend to agree but without being explicit I can use a bit of poetic license. I'll knock up a response shortly and post here.

Posted by: cabbyman Tue, 10 Jul 2018 - 20:09
Post #1397720

I won't be around before Thursday so good luck in court. biggrin.gif

Posted by: Trixie2 Tue, 10 Jul 2018 - 20:17
Post #1397722

QUOTE (cabbyman @ Tue, 10 Jul 2018 - 21:09) *
I won't be around before Thursday so good luck in court. biggrin.gif

I'm guessing you think they won't accept? lol

Posted by: Redivi Tue, 10 Jul 2018 - 20:25
Post #1397728

Wouldn't be surprised if their response is to offer "Drop Hands"

Posted by: Trixie2 Tue, 10 Jul 2018 - 22:05
Post #1397765

I have no idea what to write so would really appreciate some help - if that's OK. What do you think about this?

Without Prejudice Save as to Costs

Dear Amber,

Thank you for your e mail dated 10/7/18, the contents of which are duly noted.

I have not received any phone-calls from you, nor received any voice messages, and my phone is in full working order.

As you are aware your client pursued me with this baseless and vexatious claim, without giving me the opportunity to defend myself, due to them providing the court with an address I no longer lived at. I am on the electoral roll so your client would have been well aware of this. I am sure a judge would not look favourably upon them for having done so.

As such I was forced to pay £255 to have the judgement set aside, and since then have incurred numerous costs in defending this claim, including unpaid leave from work.

No contract was formed with your client on 7th January 2016 due to unclear and missing signage, and your client would have been well aware of this when they began proceedings, as well as the duties incumbent on them when providing a contractual offer. I’m confident a judge will agree and rule in my favour once all the evidence has been viewed.

Furthermore, your client has behaved unreasonably by pursuing me when the claim could not be defended, and withdrawing once it was.

I have wasted numerous hours and lost a lot of money defending this vexatious claim, which your client had no intention of pursuing, and as such my costs have escalated. Please refer to my costs schedule, which currently stands at £1400.65.

However, to save further waste of court time and money, I am willing to accept your without prejudice offer, and am also willing to reduce my costs to £705, as follows:

Set aside fee £255
Loss of earnings £200
Other costs £ 10
10 hrs at £19/hr for litigant in person £190
Stationery £ 50

If your client accepts my offer of paying my costs, it will need to be paid in full by tomorrow – 11/7/18. Once I have received your remittance in cleared funds I agree to the hearing being vacated.

I look forward to hearing from you.

Regards,

xxx

Posted by: nosferatu1001 Wed, 11 Jul 2018 - 08:07
Post #1397824

...accept your WP offer *to settle before court*

Posted by: emanresu Wed, 11 Jul 2018 - 08:22
Post #1397826

QUOTE
in my favour once


in my favour on an indemnity basis, once .... After all, having made a claim for your costs which could have been avoided at a much earlier stage, it is reasonable to assume you should now pay mine for your change of heart.

Posted by: Trixie2 Wed, 11 Jul 2018 - 08:26
Post #1397829

Thank you both. I woke up this morning and saw things a little more clearly so re-wrote it (incorporating your advice). Is this a bit better? If so I'll send now:

Without Prejudice Save as to Costs

Dear Amber,

Thank you for your e mail dated 10/7/18, the contents of which are duly noted.

I have not received any phone-calls from you, nor received any voice messages, and my phone is in full working order.

To date your client has provided no evidence to either me or the court that a valid contract was formed with the driver on 7th January 2016, whereby a valid debt of £271.67 arose.

I have spent numerous hours and lost a lot of money defending this baseless and vexatious claim, and your client has behaved unreasonably by pursuing me knowing this claim had no basis.

I am prepared to accept your without prejudice offer of settling out of court to save any further waste of mine and the Court’s time, and request that your client pay a proportion of my costs before the hearing is vacated. My costs schedule currently stands at £1400.65, but I am willing to reduce this by half to £705, which would include the following:

Set aside fee £255
Loss of earnings £200
Other costs £ 10
10 hrs at £19/hr for litigant in person £190
Stationery £ 50

Should your client agree to this I would require a remittance of cleared funds. I would then agree to the hearing being vacated.

I am confident a judge will agree and rule in my favour on an indemnity basis, once all the evidence has been viewed, so I believe my offer of your client paying my costs of £705 is reasonable given the circumstances.

I look forward to hearing from you.

Regards,

Posted by: nosferatu1001 Wed, 11 Jul 2018 - 08:30
Post #1397833

Youve ommittedd the "by" on the cleared funds.

Posted by: Trixie2 Wed, 11 Jul 2018 - 08:31
Post #1397835

QUOTE (nosferatu1001 @ Wed, 11 Jul 2018 - 09:30) *
Youve ommittedd the "by" on the cleared funds.

OK thanks. D. Other than that do you think it's OK to send?

Posted by: nosferatu1001 Wed, 11 Jul 2018 - 08:32
Post #1397836

Yes, do that ASAP as to clear funds today they would need to CHAPS you the payment to be sure.

Posted by: Trixie2 Wed, 11 Jul 2018 - 08:38
Post #1397842

OK sent! Will let you know how they respond.

Posted by: Trixie2 Wed, 11 Jul 2018 - 09:11
Post #1397849

So I just got this e mail:

Dear xxx

We act for the Claimant.

Please find attached our Client’s Notice of Discontinuance that has been filed at the Court.

This matter is now concluded.

Yours Faithfully
Amber
Litigation Assistant

This was attached.



How to respond what to do? No mention of costs.

Posted by: Jlc Wed, 11 Jul 2018 - 09:18
Post #1397854

Save me going back through the thread - did you counterclaim?

Posted by: Trixie2 Wed, 11 Jul 2018 - 09:19
Post #1397855

QUOTE (Jlc @ Wed, 11 Jul 2018 - 10:18) *
Save me going back through the thread - did you counterclaim?

No. That was never mentioned in the thread so didn't know to do that.

Posted by: Jlc Wed, 11 Jul 2018 - 09:22
Post #1397858

Ok, the reason to counterclaim is to prevent them discontinuing.

I think we have the answer on whether they were going to attend and they were being cheeky in asking for you to make them an offer... (Now they've seen you haven't taken their bait they've simply walked away)

I believe you will have to contact the court and ask for wasted costs order to be considered.

Posted by: Trixie2 Wed, 11 Jul 2018 - 09:25
Post #1397861

QUOTE (Jlc @ Wed, 11 Jul 2018 - 10:22) *
Ok, the reason to counterclaim is to prevent them discontinuing.

I think we have the answer on whether they were going to attend and they were being cheeky in asking for you to make them an offer... (Now they've seen you haven't taken their bait they've simply walked away)

I believe you will have to contact the court and ask for wasted costs order to be considered.

OK thanks I'll call them now.

Posted by: Trixie2 Wed, 11 Jul 2018 - 09:37
Post #1397866

So the court have got nothing from them yet. They said if the hearing is imminent then they should have put that in the subject line and it would go straight on the system. If not there's a 4 day turn around. I was advised to call back at 3ish and if they've still got nothing from them I have to assume the hearing is still going ahead. FFS!

Posted by: Jlc Wed, 11 Jul 2018 - 09:38
Post #1397868

No, you want the hearing to go ahead - then you can easily argue your costs. If they're not there (unreasonable behaviour) then you never know... wink.gif

Posted by: Trixie2 Wed, 11 Jul 2018 - 09:41
Post #1397870

QUOTE (Jlc @ Wed, 11 Jul 2018 - 10:38) *
No, you want the hearing to go ahead - then you can easily argue your costs. If they're not there (unreasonable behaviour) then you never know... wink.gif

True. It just means more time off work and I'm so busy. But I will attend if I have to and argue my costs.

Posted by: Jlc Wed, 11 Jul 2018 - 09:46
Post #1397872

Until you get confirmation from the court, attend. I don't believe this is the case here but we have seen some tactics where the claimant then attends for the defendant to be a no show...

Posted by: Trixie2 Wed, 11 Jul 2018 - 09:48
Post #1397874

QUOTE (Jlc @ Wed, 11 Jul 2018 - 10:46) *
Until you get confirmation from the court, attend. I don't believe this is the case here but we have seen some tactics where the claimant then attends for the defendant to be a no show...

Yes I remember someone saying that has happened. I will get onto them later on and see what they say. What a roller coaster of a journey!

Posted by: henrik777 Wed, 11 Jul 2018 - 11:14
Post #1397900

QUOTE
Ok, the reason to counterclaim is to prevent them discontinuing.


I wouldn't want a judge reading that. huh.gif Aside from that a counterclaim is, in reality, just a separate claim which is heard at the same time as another claim, that being the claimant against you.

QUOTE
Until you get confirmation from the court, attend. I don't believe this is the case here but we have seen some tactics where the claimant then attends for the defendant to be a no show...


Making sure you take evidence, where possible, but minimum times of calls to the court, to assist in your unreasonable behaviour argument. I would take the settlement offer with you too as it shows how you've had to deal with it and prepare practically to the doorstep of the court.

Posted by: nosferatu1001 Wed, 11 Jul 2018 - 11:59
Post #1397914

Indeed, discontinuing so soon is unreaosnable - its within 7 days, in fact its within one day.

I would strongly suggest you ask the court to at minimum turn it into a costs hearing, as you have costs OTHER than those on the dayt that ought to be considered - the set aside, for example - that you wish discussed. Its up to them if they turn up ot the hearing, but you have already booked time off work to do this.

Posted by: Trixie2 Wed, 11 Jul 2018 - 12:03
Post #1397919

Yes - thank you. Fingers crossed then that the Court don't get the e mail in time and the hearing still goes ahead. If they do I will request a costs hearing instead.



QUOTE (nosferatu1001 @ Wed, 11 Jul 2018 - 12:59) *
Indeed, discontinuing so soon is unreaosnable - its within 7 days, in fact its within one day.

Less than 24 hours!

Posted by: Jlc Wed, 11 Jul 2018 - 12:32
Post #1397936

QUOTE (henrik777 @ Wed, 11 Jul 2018 - 12:14) *
QUOTE
Ok, the reason to counterclaim is to prevent them discontinuing.

I wouldn't want a judge reading that. huh.gif

Well, indeed - could have been phrased better.

Posted by: Trixie2 Wed, 11 Jul 2018 - 14:15
Post #1397973

So I just called the court and they still do not have anything on the system from Gladstones suggesting the hearing has been vacated. No notice of discontinuance. They said I have to just wait and see if I get a phone-call from the court. Otherwise the hearing is still listed for 10am tomorrow. Should I e mail in now and ask for the hearing to be listed as a costs hearing? Or just assume it's going ahead?

Posted by: Jlc Wed, 11 Jul 2018 - 14:28
Post #1397978

Turn up as planned.

Read up on CPR 27.14(g) - https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part27

Have a costs schedule to hand.

Posted by: emanresu Wed, 11 Jul 2018 - 15:21
Post #1397992

QUOTE
Turn up as planned.

Read up on CPR 27.14(g) - here.

Have a costs schedule to hand.


Some sandwiches and a flask too. A couple of novels and a crossword book.

There is usually a long wait for these odd cases.

And ... nearly forgot, the dated Notice of Discontinuance.

The usher may tell you to home as the paperwork may have caught up with him/her but politely ask for 5 minutes with the judge to discuss the unreasonable behaviour (copy of NoD to usher for the judge)

If there is a rep from Gladstones at the last minute (as they read these threads) then copy of NoD to them and ask if they want to be embarrassed by the judge or go home. Then politely ask for 5 minutes with the judge to discuss the unreasonable behaviour (copy of NoD to usher for the judge).

Enjoy


Posted by: Jlc Wed, 11 Jul 2018 - 15:29
Post #1397995

Oh, and be careful where you park near the court... (And keep the receipt to claim that too)

Posted by: Trixie2 Wed, 11 Jul 2018 - 15:44
Post #1398000

Thank you! I'm almost looking forward to it lolz.

Posted by: Trixie2 Thu, 12 Jul 2018 - 07:19
Post #1398102

Morning. Quick question - if the hearing goes ahead and the judge rules in my favour, do I mention the notice of discontinuance?

Posted by: ostell Thu, 12 Jul 2018 - 07:43
Post #1398112

I would say no as that would excuse the non appearance. The non appearance on it's own should be sufficient for the unreasonableness. If it has been received by the court and acted on by the court and the hearing vacated you must ask for a costs hearing, as already suggested, and then show the discontinuance notice the day before.

On the other hand they could be playing dirty and not sent it to the court. In that case if they do turn up then show the judge that they have attempted to pervert the action by trying to persuade you not to appear.

Posted by: Trixie2 Thu, 12 Jul 2018 - 08:32
Post #1398125

As I walked in they said 'it's been settled'. I've asked to see the judge anyway and they said they'll let him know I'm here.

Posted by: emanresu Thu, 12 Jul 2018 - 08:39
Post #1398126

You'll need to direct the judge to the Civil Procedure Rules - Part 38

QUOTE
When discontinuance takes effect where permission of the court is not needed
38.5

(1) Discontinuance against any defendant takes effect on the date when notice of discontinuance is served on him under rule 38.3(1).

(2) Subject to rule 38.4, the proceedings are brought to an end as against him on that date.

(3) However, this does not affect proceedings to deal with any question of costs.

Back to top

Liability for costs
38.6

(1) Unless the court orders otherwise, a claimant who discontinues is liable for the costs which a defendant against whom the claimant discontinues incurred on or before the date on which notice of discontinuance was served on the defendant.

(2) If proceedings are only partly discontinued –

(a) the claimant is liable under paragraph (1) for costs relating only to the part of the proceedings which he is discontinuing; and

(b) unless the court orders otherwise, the costs which the claimant is liable to pay must not be assessed until the conclusion of the rest of the proceedings.

(3) This rule does not apply to claims allocated to the small claims track.

(Rule 44.9 provides for the basis of assessment where the right to costs arises on discontinuance and contains provisions about when a costs order is deemed to have been made and applying for an order under section 194(3) of the Legal Services Act 2007)



Though 38.6 (3) is key here, you should suggest that taking people up to wire is an abuse of process and is unreasonable in itself. The court has had £50 out of this (£25 hearing and £25 filing) but you've been left with the cost of taking time off work / holiday as you could not be certain the case HAD been discontinued against you.

Posted by: Trixie2 Thu, 12 Jul 2018 - 09:33
Post #1398152

£659 costs!!!!! Will update later. Just on my way back now.

Thank you thank you thank you everyone! How do I donate?

Posted by: Redivi Thu, 12 Jul 2018 - 09:36
Post #1398154

Brilliant result

Posted by: emanresu Thu, 12 Jul 2018 - 09:45
Post #1398158

QUOTE
£659 costs!!!!! Will update later. Just on my way back now.

Thank you thank you thank you everyone! How do I donate?


You'll need to wait 21 days in case they decide to appeal the decision. So put the champers in a large bucket of ice - 22 days worth

Posted by: nosferatu1001 Thu, 12 Jul 2018 - 10:30
Post #1398179

Congrats!

When you get the chance PLEASE give us a full report including claim number and judges name

I imagine they will not be happy, but an appeal will be a struggle for them. You might actually get an increased award as it would have a chance of pi**ing off the judge!

Posted by: Jlc Thu, 12 Jul 2018 - 10:51
Post #1398194

QUOTE (Trixie2 @ Thu, 12 Jul 2018 - 10:33) *
How do I donate?

http://www.pepipoo.com/Site_info.htm#Members

QUOTE (Trixie2 @ Wed, 11 Jul 2018 - 10:11) *
So I just got this e mail:

Dear xxx

We act for the Claimant.

Please find attached our Client’s Notice of Discontinuance that has been filed at the Court.

This matter is now concluded.

Yours Faithfully
Amber

...it is now wink.gif

I would be tempted to update them.

Posted by: ManxRed Thu, 12 Jul 2018 - 10:53
Post #1398195

This almost makes up for last night! *








* Not really. sad.gif

Well done though!!

Posted by: kommando Thu, 12 Jul 2018 - 11:20
Post #1398203

Well done, good result and persistence in the face of adversity pays off

Posted by: Trixie2 Thu, 12 Jul 2018 - 12:08
Post #1398226

Post removed.

Posted by: emanresu Thu, 12 Jul 2018 - 12:12
Post #1398233

You might want to edit your comments as there may be an appeal. Especially since you have identified your case.

In fact you might want to remove them for 21 days

Posted by: Trixie2 Thu, 12 Jul 2018 - 12:15
Post #1398237

QUOTE (emanresu @ Thu, 12 Jul 2018 - 13:12) *
You might want to edit your comments as there may be an appeal. Especially since you have identified your case.

In fact you might want to remove them for 21 days

Removed post. A PP asked for the case number, which is why I posted it. Fingers crossed there's no appeal.

Posted by: nosferatu1001 Thu, 12 Jul 2018 - 12:35
Post #1398251

SOrry, forgot the appeal! My bad!

A report saying how the costs hearing went could not hurt, surely? PLus a breakdown of the calcualtion.

Im pretty sure the earlier posts would identify in any case. The letter sent to them and the discontinuance straight after, for example. I wouldnt panic too much. I would suggest they are fools if they appeal.

Posted by: SchoolRunMum Thu, 12 Jul 2018 - 14:03
Post #1398305

Well done!!

If we have to wait till August to read the costs hearing court report (claim Number, court location and Judge's name) sobeit, we can be on tenterhooks!

Posted by: Trixie2 Thu, 12 Jul 2018 - 21:17
Post #1398476

Donation made. Thank you all again. I'll update on costs once it's paid.

Posted by: Trixie2 Thu, 2 Aug 2018 - 11:12
Post #1404424

So rather annoyingly I've only just received the Order. It is dated 31 July and states the Claimant must pay the Defendant by 26th July. I called the court twice to find out what was going on since the hearing, and they kept telling me there was a 4 week turnaround for Orders to be typed up and sent out. I assumed they'd adjust the deadline - clearly not! Waiting for the court to call me back. Any advice? TIA.

Posted by: Redivi Thu, 2 Aug 2018 - 11:37
Post #1404430

It's Gemini that has the problem

I would wait until 28 days has passed since the 26 July deadline

If Gemini still hasn't paid, check with the court that there isn't an appeal
If not, send them a Statutory Demand for payment

You then have some options

A soft approach is to report Gemini to the British Parking Association
Members are not allowed to have unpaid judgments
Suspension would remove their access to the DVLA database

A hard approach, as it's more than £600 is to transfer the case to the High Court for enforcement
High Court bailiffs have a lot of power and will add costs

Posted by: Trixie2 Thu, 2 Aug 2018 - 11:58
Post #1404440

Great advice thank you! Will bide my time.

Posted by: nosferatu1001 Thu, 2 Aug 2018 - 12:05
Post #1404442

HCEO would be a lot of fun
They can force entry and remove goods to be auctioned
THey also add a fairly large chunk of money.

Posted by: Redivi Thu, 2 Aug 2018 - 12:23
Post #1404443

Not very expensive to set in motion and the charge is added to Gemini's bill

Posted by: cabbyman Thu, 2 Aug 2018 - 18:03
Post #1404499

QUOTE (Redivi @ Thu, 2 Aug 2018 - 12:37) *
A soft approach is to report Gemini to the British Parking Association
Members are not allowed to have unpaid judgments
Suspension would remove their access to the DVLA database

A hard approach, as it's more than £600 is to transfer the case to the High Court for enforcement
High Court bailiffs have a lot of power and will add costs


...Or both??????

Posted by: Trixie2 Tue, 21 Aug 2018 - 19:43
Post #1409942

Hi all. So no cheque has arrived and no appeal. Time is up. What to do first?

Posted by: cabbyman Tue, 21 Aug 2018 - 19:56
Post #1409947

It would be nice to see HC enforcement! Thereafter, you could drop a line to BPA to let them know of the antics of one of their members. But, see what others say first.




Posted by: I am Weasel Wed, 22 Aug 2018 - 04:43
Post #1410016

+1 for High Court enforcement. These vultures show no mercy to their prey so why give them any

Posted by: Trixie2 Wed, 22 Aug 2018 - 07:35
Post #1410026

Okey doke. I might even give the heads up to the production company that makes the HCE doc! I'm looking forward to watching it lol.

Posted by: Trixie2 Wed, 22 Aug 2018 - 08:29
Post #1410046

How do I go about organising a warrant of control? I'm presuming that's preferable over a third party debt order?

Posted by: nosferatu1001 Wed, 22 Aug 2018 - 08:49
Post #1410053

Writ of Control is the High COurt version you need
A warrant is for county court.

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part-83-writs-and-warrants-general-provisions


Posted by: cabbyman Wed, 22 Aug 2018 - 10:18
Post #1410076

Please note the order I suggested. The HC enforcement will screw them for a very long time. Do that first. If you go to BPA too early, they may tip off Gemini into paying too early!!!!

Posted by: Trixie2 Wed, 22 Aug 2018 - 10:57
Post #1410095

QUOTE (cabbyman @ Wed, 22 Aug 2018 - 11:18) *
Please note the order I suggested. The HC enforcement will screw them for a very long time. Do that first. If you go to BPA too early, they may tip off Gemini into paying too early!!!!

Yes don't worry I will go to HC first.
Does this mean Gemini currently have a CCJ against their name?

Posted by: nosferatu1001 Wed, 22 Aug 2018 - 11:11
Post #1410100

I believe so. Judgement was for defendant, yes?

Posted by: Trixie2 Wed, 22 Aug 2018 - 11:22
Post #1410104

QUOTE (nosferatu1001 @ Wed, 22 Aug 2018 - 12:11) *
I believe so. Judgement was for defendant, yes?

Yes, if I have understood you correctly. I was the defendant and the judge awarded me the costs in his judgment, which has not been paid.

Posted by: nosferatu1001 Wed, 22 Aug 2018 - 11:32
Post #1410106

So they have a judgement for the amount of X against them. Thats a CCJ I believe.

It doesnt really matter, as youre doing the writ of control today, yes?

Rememebr ALL FEES for the writ get added to THEIR bill.

Posted by: Trixie2 Wed, 22 Aug 2018 - 12:15
Post #1410123

Yes I am. Was just looking at the form to fill out and was a bit unsure about it. Will look again a bit later.

Posted by: nosferatu1001 Wed, 22 Aug 2018 - 13:02
Post #1410137

Just read whatever the court order you have tells you
It will be specific.

Posted by: Trixie2 Wed, 22 Aug 2018 - 13:34
Post #1410151

QUOTE (nosferatu1001 @ Wed, 22 Aug 2018 - 14:02) *
Just read whatever the court order you have tells you
It will be specific.

The court order doesn't specify anything other than the claimant shall pay me £659 by end of July.

Posted by: nosferatu1001 Wed, 22 Aug 2018 - 13:42
Post #1410153

SHow a screenshot?
Usually there is more to a Judgement than that. Fr example, the title of the document.

Posted by: Trixie2 Wed, 22 Aug 2018 - 13:52
Post #1410158

Will post one when I get home. Currently at work.

Posted by: ostell Wed, 22 Aug 2018 - 16:01
Post #1410205

In case it gets nasty then I believe a final request to them pointing out the judgement and requesting payment within 7 days. paints you as the good guy. Then HCE

Posted by: Trixie2 Wed, 22 Aug 2018 - 22:06
Post #1410319

So here is the judgment -

The top that I've cut off just has their name and my name and who the judge was etc.

What sort of wording would you suggest I use Ostell? And who would I send it to? Gemini or Gladstones?

Posted by: Redivi Wed, 22 Aug 2018 - 23:26
Post #1410346

When a Claimant has employed a solicitor, that's who you always deal with

It has a couple of advantages in this case :

The extra stage as Gladstones contacts Gemini increases the possibility of delay and mistakes
Gladstones will not be popular with its client, even less so if its delay results in the High Court action

Posted by: ostell Thu, 23 Aug 2018 - 06:33
Post #1410357

It is just a simpler letter reminding them of the judgement and the payment that was ordered by the judge has not been received. If it is not received within 7 days then further action will be taken, with additional costs to them, to recover the sums due.

Posted by: nosferatu1001 Thu, 23 Aug 2018 - 09:34
Post #1410409

Ostell - why are they getting more time?

I would go straight for the WRit.

Why does the OP have to be "nice"? The Claimant has missed the deadline to pay. If the D had missed teh defence deadline theyd have, without being nice, moved straight to a default.

The OP shioudl file for a writ today. Screw the bastards.

Posted by: Trixie2 Thu, 23 Aug 2018 - 09:43
Post #1410416

QUOTE (nosferatu1001 @ Thu, 23 Aug 2018 - 10:34) *
Ostell - why are they getting more time?

I would go straight for the WRit.

Why does the OP have to be "nice"? The Claimant has missed the deadline to pay. If the D had missed teh defence deadline theyd have, without being nice, moved straight to a default.

The OP shioudl file for a writ today. Screw the bastards.

Oh I've already sent them an e mail giving them 7 days. Can I change my mind and go straight for the writ or do I need to honour what I've said?

Posted by: Redivi Thu, 23 Aug 2018 - 09:52
Post #1410420

Honour what you've said

Otherwise you could be stuck with the bailiff costs if Gemini makes the payment

Posted by: Trixie2 Thu, 23 Aug 2018 - 10:02
Post #1410425

OK will do. I imagine payment won't be made so I'll get the writ ready in the meantime just in case.


Posted by: nosferatu1001 Thu, 23 Aug 2018 - 10:11
Post #1410432

Indeed, you cannot give them 7 days then renege on it. youre not a PPC.

Posted by: Trixie2 Fri, 24 Aug 2018 - 09:15
Post #1410755

How many times do you hear this excuse on Can't Pay We'll Take It Away?? Just got this from Gladstones - how to respond? Do I keep to my word and enforce the write after 7 days? They could go on for a month saying they've still not got it.

Dear xxx,

We act for the Claimant.

Please be advised that we have not received the order from the Court which states that costs were awarded to you.

We have today paid the cost for a copy of this document to be sent to us, as without it we do not have confirmation that costs are owing to you.

We will endeavour to return to you upon being in receipt of this document and we therefore request no action be taken on this matter until we receive it.

Kind Regards

Posted by: ostell Fri, 24 Aug 2018 - 09:28
Post #1410759

Send them a copy as an email attachment.

Posted by: Redivi Fri, 24 Aug 2018 - 09:37
Post #1410764

Dear Sir

Ref ****

Thank You for your prompt reply

Here is a copy of the Order dated 12 July 2018 following your client's discontinuance on 11th July

As there is no further reason for your client to delay payment, the deadline stands

Yours Faithfully

Posted by: Trixie2 Wed, 29 Aug 2018 - 12:51
Post #1412030

So that e mail was sent on Thursday and today is Wednesday. If nothing has arrived in the post when I get home today, I guess the sheriffs are coming!

Posted by: ManxRed Wed, 29 Aug 2018 - 13:51
Post #1412061

I hope its the lot off of the telly!

Posted by: Trixie2 Wed, 29 Aug 2018 - 13:52
Post #1412063

I have a few questions.... on the N293 form do I put Gemini Parking's address? Or the address for service, which is Gladstones?

Also can I claim interest on the late payment? No mention of interest on the Order.

And am I looking for a writ of control or writ of possession?

Thanks.

Posted by: Redivi Wed, 29 Aug 2018 - 14:20
Post #1412070

It's a Writ of Control

The address is the one that you want the bailiff to visit

This needs a bit of thought

Gemini's registered address 13-17 High Beech Road Loughton is a mail-drop so there will be nothing to find

Its director, Ryan Jackson, also looks like he uses a correspondence address

Others may have a view whether a bailiff can seize proceeds of a claim for example that Gladstones is holding on behalf of Gemini

A couple of options to consider :

If anyone has information about Gemini's bank account, apply for it to be frozen
If not, apply for an order to force a Gemini official into court to answer questions about the company's bank account - this could be issued through Gladstones

Have you checked the names on the claim and the court order ?
Gemini Parking Solutions Ltd was dissolved several years ago.

You're probably dealing with Gemini Parking Solutions London Ltd




Posted by: Trixie2 Wed, 29 Aug 2018 - 14:29
Post #1412077

Thanks for that - not great to hear that they don't have an office! Thanks for checking and letting me know.

I suppose I could get their bank account frozen - I read about that last week.

Would be interested to hear other people's opinions on that.

In the meantime what sort of wording can I use to report Gemini and their unpaid CCJ to the BPA to get them suspended?

Posted by: nosferatu1001 Thu, 30 Aug 2018 - 07:47
Post #1412233

DO this first!

You cannot force the BPA to suspend them. Just tell them the facts as tehy are, and ask that, in accordance with their own rules, they take action agains tthe company.

Posted by: Trixie2 Thu, 30 Aug 2018 - 12:07
Post #1412317

I've just done so. But what next?

Posted by: nosferatu1001 Thu, 30 Aug 2018 - 12:47
Post #1412337

What do you mean "just done so" - have you completed the writ? Complained? both?

Posted by: Trixie2 Thu, 30 Aug 2018 - 12:51
Post #1412338

By do this first I thought you meant complain to BPA. I have done that.

I have not completed the writ yet because what address do I put down?? They seem to only have addresses for post - not an actual office. Unless you know otherwise?

Posted by: nosferatu1001 Thu, 30 Aug 2018 - 13:00
Post #1412349

FOr payments - have you seen any account details? Might be on payment slips
You could ring up and pretend to be paying a PCN, see what they say. Say you want to pay via bank transfer.

A search found Woodford green but no details.

Redivi - woud the maildrop be forced to proide the forwarding address if bailiffs turned up?

Posted by: whjohnson Thu, 30 Aug 2018 - 14:55
Post #1412401

Would it not be up to the bailiff company to use a tracing service, then add the cost of that onto the monies Trixie is trying to recover?

Would it work if she just send the bailiff the business address in her possession and then leave the rest up to them?

Posted by: Fluffykins Thu, 30 Aug 2018 - 15:46
Post #1412428

For amusement:
http://www.theexecutivemagazine.com/7704/being-disruptive-in-a-notorious-industry/


Posted by: ManxRed Thu, 30 Aug 2018 - 15:51
Post #1412430

Without wanting to digress too much, what in holy f***'s name is "the UK’s only “values-based” Car Park Management Company"

Posted by: whjohnson Thu, 30 Aug 2018 - 16:19
Post #1412444

"The public would naturally benefit from knowing who is being the fairest and most responsive. If you want to better understand the values and culture of a company you also must judge the person leading that organisation........."



Ok, so in the interests of transparency for the customer, how about a physical contact address for the 'Organisation Leader' then?


Words fail me...........!

Posted by: Jlc Thu, 30 Aug 2018 - 16:28
Post #1412448

Whatever we may think about DCBL enforcing writs, perhaps it’s worth giving them a call to assist? (They will trace etc.)

Posted by: ostell Thu, 30 Aug 2018 - 16:32
Post #1412453

How about the registered address? Probably an accountant who will not be best pleased.

https://www.google.co.uk/maps/@51.6463665,0.0518044,3a,90y,81.92h,90.53t/data=!3m6!1e1!3m4!1suY-IHzJsULI6XDKorKepLw!2e0!7i13312!8i6656

Posted by: Trixie2 Thu, 30 Aug 2018 - 16:38
Post #1412458

I'm tempted to pay the address a visit to see who or what is there.

In they meantime I got this from the BPA - I guess they're saying there's been no breach:

Thank you for your email in connection to Gemini Parking Solutions, who as members of the BPA’s Approved Operator Scheme are required to abide by our Code of Practice. Our remit is to investigate breaches of our Code of Practice and to bring about rectification. We do this when we receive evidence of a breach. If you wish to review our Code it can be found on our website: www.britishparking.co.uk/write/Documents/AOS/AOS_Code_of_Practice_January_2018.pdf

Further to the below, I can advise that parking charge notices are issued in a number of ways, but if sent by post, the address details the parking operator will use will be those which have been supplied by the DVLA, and so it is important to ensure that the address details are accurate at all times. Unpaid charges will be escalated to debt recovery and can potentially result in a CCJ. However, if the matter has been contested in court, and if a court has ruled that a private company has to pay outstanding money then I trust that they will be paid in due course. This is not a scenaro we have the authority to instruct our members in.

Our Code is dedicated to parking enforcement and sets out advisory guidelines, which you will see if you review the link above. With that in mind, if you have evidence of a breach of a point raised within our Code (and legal action is not covered within our Code) the please supply this along with any supporting evidence by return.

I trust this is of use.

Kind regards


Posted by: cabbyman Thu, 30 Aug 2018 - 16:39
Post #1412459

I wonder if Bailliff Advice Online may be worth a call. I seem to recall that in order to get effective recovery, it was necessary for the bailliffs to be given a single address where they could obtain payment or distrain for goods. If that address produced nothing, a further application was necessary.

This needs researching very carefully before you commit yourself. The debt won't go away but it could be a rigmarole if you need 2-3 attempts at it.

Posted by: henrik777 Thu, 30 Aug 2018 - 16:39
Post #1412460

Ask Royal Mail.

Posted by: Trixie2 Thu, 30 Aug 2018 - 17:04
Post #1412473

I have just come home to a cheque from Gladstones for £659.65!!

Posted by: ostell Thu, 30 Aug 2018 - 17:13
Post #1412480

Oh what a shame, I was so looking forward to seeing you on "Can't Pay we'll take it away"

Next test is will it be a rubber cheque.

Posted by: Trixie2 Thu, 30 Aug 2018 - 17:28
Post #1412486

Yeah I'm kind'a discounted too ha! I was thinking the same thing re whether it's rubber. I'll keep you posted.

Posted by: whjohnson Thu, 30 Aug 2018 - 21:25
Post #1412555

Bang on! That'll hopefully cool their ardour for a while.

Posted by: SchoolRunMum Thu, 30 Aug 2018 - 22:55
Post #1412574

QUOTE (Trixie2 @ Thu, 30 Aug 2018 - 18:04) *
I have just come home to a cheque from Gladstones for £659.65!!

Yay, take a photocopy and frame it, before you pay it in! biggrin.gif

Posted by: Trixie2 Fri, 31 Aug 2018 - 08:59
Post #1412610

Haha Schoolrunmum! I'm intrigued by the fact the cheque came from Gladstones and not Gemini. Same company I wonder?!

Posted by: Redivi Fri, 31 Aug 2018 - 09:13
Post #1412613

IIRC it's perfectly normal that the cheque comes from the solicitor, not its client

There is the other possibility that the costs are entirely the result of Gladstones messing up and they don't want to tell Gemini

Posted by: Quicksilver Fri, 31 Aug 2018 - 09:17
Post #1412616

I am sure that Gladstones will bill their client for everything possible.

Powered by Invision Power Board (http://www.invisionboard.com)
© Invision Power Services (http://www.invisionpower.com)