Gladstones LBC - any help appreciated |
Gladstones LBC - any help appreciated |
Mon, 19 Dec 2016 - 20:39
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#1
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Member Group: Members Posts: 40 Joined: 19 Dec 2016 Member No.: 89,188 |
Hi All,
Have received a letter before claim from Gladstones. Dated 8th December, arrived over the weekend - surprise surprise. Background is that a residents' bay was used to unload a delivery to a charity shop in Barming, Maidstone. A PCN was issued by AM Parking Services http://www.amparking.co.uk/ The car was in a bay that is always empty during the day for no more than 5 minutes or thereabouts while some heavy bags were taken into the Barnardos shop to be donated. Of course, in those 5 minutes they pounced... The local signage says nothing about loading. http://i.imgur.com/dlpMwkY.jpg Did nothing with the PCN, and then in August 2014 we had a letter arrive from Parking Collection Services demanding payment. Conveniently it arrived just as we were going on holiday. so we had to quickly get a letter together, and had it posted for us by a parent (who sadly didn't get a proof of posting, more on that later). The letter sent was as per the attachment for September 2014. We got a further letter from Debt Recovery Plus (keeping up with the names?) dated 2/10/2014 stating we hadn't responded, so an email was sent as follows: QUOTE Dear sirs, Further to your letter dated 2/10/2014 with your reference 1056820, please be advised that this matter was the subject of a written appeal to your client AM Parking Services Ltd dated 2/9/2014. Any debt purpoted to be arising from the parking charge is denied, and we do not intend to enter into any further correspondence with you over this matter. Yours sincerley, Which started a little bit of to and fro by email: From them: QUOTE About your parking charge Thank you for your communication regarding the above Parking Charge Notice (PCN). As per the British Parking Association’s (BPA) Code of Practice, Point 22.7, the time to challenge the charge has now expired and therefore access to the Independent Appeals Service (if applicable) is no longer available. However, in order to resolve this matter, I will offer the following comments as to why this PCN was correctly issued and is still payable. My findings The site in question is subject to terms and conditions, which are stated on signs throughout the area. Those signs state that drivers must clearly display a valid parking permit for the site. They also warn that failure to do so may result in the issue of a PCN. On the date in question the vehicle was parked on the site but no valid permit was clearly displayed. This means that the terms and conditions were breached and a PCN was correctly and legitimately issued. Appeals Regarding an appeal, there is no record of one such being received. If this correspondence was sent via recorded/special delivery to ensure receipt, please provide the tracker number and I will investigate the matter further. Alternatively, if the appeal was sent via email/online, please provide a confirmation email/read receipt, as well as a copy of the aforementioned. What you need to do now Please ensure that £120.00 is paid by 4th November 2014. Payment can be made online or by phone. Go to www.debtrecoveryplus.co.uk/pay or phone 0844 561 0965. You can find full details of how to pay on the reverse of the letter(s) sent. What will happen if you do not pay what you owe If the amount is not paid by the date shown above, we will recommend to our client that court action be taken by them to recover the outstanding balance. If you do not intend to pay by the deadline, I draw your attention to the following important court ‘test’ case where judgment was entered for a parking company when the charge was disputed on multiple grounds. The senior judge found completely in the parking company’s favour: ParkingEye Ltd v Beavis & Wardley [2014]. A transcript of the case can be found at www.debtrecoveryplus.co.uk/debtor/judge.php. What if you do not agree Although any correspondence that does not provide further evidence will be noted and retained, I cannot guarantee that we will reply to it. Kind Regards Hannah Johnson Collections Manager From us: QUOTE Dear Sirs, Further to your previous email, we would make the following points: The written appeal was posted to Mssrs Parking Collection Services on the 2nd September 2014. This was within a period of 28 days following the receipt of the Notice To Owner, as stated on the notice and thus a valid appeal. It is highly convenient that you claim to have not received the letter, and sadly the sender has been unable to locate a proof of posting. I attach a copy of the text of that letter. I further enclose a screenshot from Google Documents to demonstrate when the letter was written. Yours sincerely, From them again: QUOTE Thank you for your email. Regarding an appeal, you have failed to provide a recorded delivery tracker number which would allow me to verify that such correspondence was dispatched and duly received. That was the last of the correspondence, until a letter from Gladstones a couple of weeks ago, followed now by their letter before claim http://i.imgur.com/hVJ2YBc.png. So my question to you good folks is - is it worth continuing to fight this (our local council allows a resident's bay to be used for loading, which is the primary argument), and would anyone be willing and able to offer some pointers. Appreciate it's all short notice, but when isn't it with these *****? Thanks in advance for any and all help
Attached File(s)
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Mon, 19 Dec 2016 - 20:39
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Mon, 19 Dec 2016 - 20:51
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#2
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Member Group: Members Posts: 6,898 Joined: 15 Dec 2007 From: South of John O'Groats, north of Cape Town. Member No.: 16,066 |
A bit of a shot in your own foot admitting that there is no proof of posting of the appeal! Don't do that again!!!! In future, everything by post goes first class with free proof of posting from the post office.
Plenty of Gladstones threads around to read. Find one that has a reply to a letter before claim and amend it to suit your circumstances. Then post it HERE for critique and fine tuning. -------------------- Cabbyman 11 PPCs 0
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Mon, 19 Dec 2016 - 20:54
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#3
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Member Group: Members Posts: 40 Joined: 19 Dec 2016 Member No.: 89,188 |
Yes, that's what you get for entrusting the postage to your parents
Will have a hunt around for a letter now to tweak, cheers |
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Mon, 19 Dec 2016 - 22:40
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#4
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Member Group: Members Posts: 40 Joined: 19 Dec 2016 Member No.: 89,188 |
OK, so after an evening of speed-reading, copy-pasting, editing and a crash course in Practice Direction I have some words. Would anybody be so kind as to run the rule over them please. Thank you all
QUOTE I note your Letter Before Claim dated 8 December 2016.
I deny any debt to your client. I request further information in writing as I consider your Letter Before Claim to be woefully inadequate. I note particularly that you choose to threateningly refer to paragraphs 13 -16 of the Practice Direction rather than focus on your obligation in paragraph 6 to provide adequate details of your claim. The driver is not identified in your letter and you have written to me as the registered keeper. I am not liable because I do not believe that your client invoked Schedule 4 of the POFA 2012 with fully compliant documents. You cannot presume that I am possession of all the documents referred to in your letter and I require a copy of the Notice to Driver and Notice to Keeper to inspect so that I can make an informed decision. Please send copies of these and any documents that will be produced in the event of your threatened action, including copies of all photographs taken and evidence of the contract itself (clear evidence of the terms on the signs at the time). I also require evidence of the contravention. I gave an account of the incident to Mssrs Parking Collection Services in September 2014. The circumstances as given in that account have never been addressed, or cause of action established. The burden remains with your client to produce evidence and I require that now (e.g. photographs of the driver and vehicle, observations, time allowed for unloading etc). In order to understand my legal position, I also require the following information : 1 Is your client's intended action funded on a contractual charge, a breach of a contract or trespass? 2 What is the basis of the additional £30 charge? 3 If it is for legal services, has your client already paid it? When I receive the documents and your answers I will be in a position to make a more detailed response and as such, it would be wholly unreasonable and vexatious to proceed in the small claims track at the present time. Yours Faithfully, |
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Tue, 20 Dec 2016 - 10:28
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#5
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Member Group: Members Posts: 17,088 Joined: 8 Mar 2013 Member No.: 60,457 |
You may want to intoduce Jopson v Homeguard when the appeal judge kindly defined that loading/unloading wasn't parking. And cost Homeguard £2000.
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Tue, 20 Dec 2016 - 22:04
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#6
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Member Group: Members Posts: 40 Joined: 19 Dec 2016 Member No.: 89,188 |
Ah, that looks perfect, thank you. I'll add that in.
Anybody have any more input before I have to hit 'send'? It's greatly appreciated. |
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Wed, 21 Dec 2016 - 13:48
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#7
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Member Group: Members Posts: 6,898 Joined: 15 Dec 2007 From: South of John O'Groats, north of Cape Town. Member No.: 16,066 |
Aside from that response, you could ask DVLA who accessed the RK information at beytween relevant dates. It may become useful in a DPA claim later, as outlined in quite a few other threads now.
I'm beginning to think obtaining this info should be standard advice at the moment. -------------------- Cabbyman 11 PPCs 0
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Wed, 21 Dec 2016 - 15:13
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#8
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Member Group: Members Posts: 8,582 Joined: 9 Feb 2006 Member No.: 4,813 |
Aside from that response, you could ask DVLA who accessed the RK information at beytween relevant dates. It may become useful in a DPA claim later, as outlined in quite a few other threads now. Corrected. Yeah, another trespass case at worst and another breach of the DPA. Just love it........ -------------------- The Asda shopping trolley parking ticket enthusiast
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Wed, 31 May 2017 - 22:01
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#9
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Member Group: Members Posts: 40 Joined: 19 Dec 2016 Member No.: 89,188 |
So, 5 months on and Gladstones finally got around to emptying their inbox...
QUOTE We write further to our Letter Before Claim dated 21 December 2016 and your correspondence. The Criminal Case of Elliott v Loake 1983 Crim LR 36 held that the Registered Keeper of a vehicle may be presumed to have been the driver unless they sufficiently rebut this presumption. You have been invited on numerous occasions to identify the driver, yet have failed to do so. Our client therefore concludes it more likely than not that you were the driver. Notwithstanding the above, you are also pursued as the Registered Keeper of the vehicle pursuant to Schedule 4 (4)(1) of the Protection of Freedoms Act 2012 (‘the Act’) which states: “The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle.” The relevant Notices were sent in accordance with the Act and you failed to nominate who was driving the vehicle prior to these proceedings (which is required under the Act (paragraph 5(2)). The Protection of Freedoms Act 2012, Sched 4 (para 2) states that; the “keeper” means the person by whom the vehicle is kept at the time the vehicle was parked, which in the case of a registered vehicle is to be presumed, unless the contrary is proved, to be the registered keeper. You have given no reasonable explanation as to why you wouldn’t have received correspondence regarding the charge. However, without concession, even if the post wasn’t received, this would not impact your liability to pay. The correspondence was sent after you became liable. Please find enclosed photographic evidence of the parking incident. You parked on the land without displaying a valid parking permit and as a result accepted our client’s charge. Our client relies on the case of ParkingEye v Beavis 2015. In that case it was accepted as an established principle that a valid contract can be made by an offer in the form of the terms and conditions set out on the sign, and accepted by the driver’s actions as prescribed therein. The signs on the Land are clear and unambiguous. By parking in the manner in which you did, the charge was properly incurred. Payment remains outstanding in the sum of £130 and can be made at www.gslcollections.com. In the event payment isn’t made in the next 7 days further legal action will be taken. This was accompanied by a pdf with 3 photos of the car, all timestamped at the same time. Obviously they still haven't actually produced any of the many items requested, beyond the lovely pictures, or addressed the argument that the driver was unloading goods into a charity shop. Does anyone advise on an action at this point, or is it simply a case of waiting for them to fire off some court papers now and defend in due course? Many thanks for all your wonderful advice, this poor harassed nurse appreciates it |
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Wed, 31 May 2017 - 22:40
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#10
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Member Group: Members Posts: 17,088 Joined: 8 Mar 2013 Member No.: 60,457 |
You could put them right on their interpretation of E v L where it wasn't a presumption it was evidence including forensic. Ask them what forensic evidence they have that you were the driver.
You could also correct them on their interpretation of POFA. There is not a requirement under the act to nominate a driver. Pure wishful thinking. |
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Sun, 18 Jun 2017 - 16:58
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#11
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Member Group: Members Posts: 40 Joined: 19 Dec 2016 Member No.: 89,188 |
Hi all,
So, county court claim form has now been received. I've filed an AOS online, so it's time for me to build a defence. As always any help that the good people of pepipoo can offer will be gratefully received First up, here's the very detailed claim form: Here a few things that spring to mind, if none of you lovely legal eagles don't instantly spot errors... 1. The signage at Sandalwood said (and still does) that a PCN of £100 would apply, reduced to £60 if paid within 14 days. In October 2014 when it was in the hands of Debt Recovery Plus Ltd, this had jumped to £120. Now in the hands of Gladstones it has become £130. No breakdowns or justifications for the extra have been given. 2. Would it help, hypothetically, if the employer of the registered keeper was able to confirm that they were in work all day on the day in question, and therefore was not the driver of the car? 3. The timeline feature in google maps would support this, is that something that can be entered as evidence? Because if, again hypothetically, somebody else could show on their timeline that they were in that area for just a couple of minutes would that indicate that the parking enforcement people were not acting reasonably also? 4. I guess I need to ask the charity shop for their gift aid records for the day in question as evidence to support the defence that the driver was unloading at the rear of the charity shop. 5. Will the defence then get made up to include those circumstances, and the fact that the defendant wasn't driving, and all the items that have been ignored previously in correspondence? Thanks once again to anybody who is able to offer any help or advice, I am furious at the thought that this might have to get paid |
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Mon, 19 Jun 2017 - 05:30
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#12
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Member Group: Members Posts: 11,094 Joined: 24 Aug 2007 From: Home alone Member No.: 13,324 |
I would concentrate on the timeline.
The location of the sign on the entrance does not appear to be clear as it is hidden by another later sign. The terms themselves are unclear and you should compare them with the ParkingEye sign from Beavis, challenging the clarity of the wording. Maidstone Court is the one they use most of the time so there may be a couple of cases before yours you can sit in on. The claim uses the either/or version of the wording, so go back in your defence and ask the judge to instruct AM Parking to replead as the particulars are deficient in that they lack the clarity of which party is being taken to court. This post has been edited by emanresu: Mon, 19 Jun 2017 - 05:32 |
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Sat, 24 Jun 2017 - 15:55
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#13
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Member Group: Members Posts: 40 Joined: 19 Dec 2016 Member No.: 89,188 |
Hi emanresu,
Thanks for replying. I'm continuing a speed-reading masterclass of other peoples' defences, so will probably look to put up something for people to critique/help with soon. Just to be clear, in the timeline do you mean across the whole of the case as in 'February 2014 - alleged transgression; August 2014 - letter to keeper etc', or on the day itself, or a bit of both? |
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Sun, 25 Jun 2017 - 17:27
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#14
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Member Group: Members Posts: 8,582 Joined: 9 Feb 2006 Member No.: 4,813 |
I'd go with a day timeline.
It shows where you were at any time. The fact that this could be someone else using your mobile phone is far fetched. It would need a bit of pre-event collusion and why would you do that? -------------------- The Asda shopping trolley parking ticket enthusiast
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Sat, 8 Jul 2017 - 22:10
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#15
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Member Group: Members Posts: 40 Joined: 19 Dec 2016 Member No.: 89,188 |
Hello you fine people.
I will very soon be offering up my version of a defence for you to hopefully critique/advise/polish ahead of submission this week. A couple of quick questions though if you all don't mind - as I have been advised to focus on the timeline should I be including details like my employer and working hours in this defence document, or is that for a subsequent witness statement? And is it still a case of chucking the kitchen sink at this, as I need to include all my future possible arguments here if my comprehensive study has been fruitful? So with contracts, signage etc. does that mean also bringing in the fact that the driver has claimed they were unloading to a charity shop, and that unloading is not parking etc... Thank you all, my fine Google document is awaiting its cut & paste moment of glory(?)! |
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Sun, 9 Jul 2017 - 08:24
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#16
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Member Group: Members Posts: 22,678 Joined: 23 Mar 2009 Member No.: 27,239 |
The first point of the defence will be to attack the particulars of claim that they disclose no cause of action
Then the legal capacity of AM Follow up with you weren't the driver and the failure to meet the conditions of the Protection of Freedoms Act to pursue the registered keeper for payment Throw in that, even if POFA had been met, the maximum that can be recovered is the original parking charge Gladstones has misrepresented a criminal case Elliott v Loake that has been dismissed by the court on many occasions The signs are not visible or legible Attack that AM employed Debt Recovery Plus (Parking Collection Services is a trading name) to handle the appeal You don't therefore believe that it's paid PCL/DRP the additional charges and put it to proof The signs do not amount to a contract to pay AM costs and the Indemnity Charges are a cynical attempt to evade CPR 27.14 regarding costs and are an attempt at double recovery Gladstones has in previous correspondence claimed that ParkingEye v Beavis states that a contract can be accepted after reading a sign It is well aware that the case has nothing to do with that issue but concerns the conditions to disengage a penalty charge, none of which has been met in the present case (The unloading to a charity shop addresses the issue in Beavis that the penalty charge was justified by the wider public interest to discourage parking overstays) Can't see anything in this thread that damages your case but be aware that it has more than enough information for Gladstones to easily identify it This post has been edited by Gan: Sun, 9 Jul 2017 - 08:27 |
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Sun, 9 Jul 2017 - 21:02
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#17
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Member Group: Members Posts: 40 Joined: 19 Dec 2016 Member No.: 89,188 |
Hi Gan. That's very comprehensive advice, thank you so much. Shall I go ahead and post up my defence before sending, or is that giving Gladstones too much to play with?
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Mon, 10 Jul 2017 - 09:57
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#18
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Member Group: Members Posts: 28,687 Joined: 27 Nov 2007 Member No.: 15,642 |
Yes, you post it here. Same advice as to everyone else.
Gladstones see it soon enough. |
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Mon, 10 Jul 2017 - 21:30
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#19
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Member Group: Members Posts: 40 Joined: 19 Dec 2016 Member No.: 89,188 |
Thanks all, here goes (minus the final formatting and headings which I will put in and post/email to court):
Hopefully the formatting works out. It's based on a few defences and obviously I've tried to follow Gan's advice. In the main it's borrowed one on MSE for the same site at Sandlewood - which lost(!), but on the balance of probabilities as to the driver. I'm supremely confident I can prove I was elsewhere...
Thank you This post has been edited by vanillapie: Mon, 10 Jul 2017 - 21:31 |
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Tue, 11 Jul 2017 - 20:34
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#20
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Member Group: Members Posts: 40 Joined: 19 Dec 2016 Member No.: 89,188 |
So, having re-read, obviously there is not much in there after all about the timeline. Would it be an idea at this point to add detail of where I actually was? (Clue - I was taking the piss. Old urology joke, sorry )
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