ES Parking Proceeding Issued - Seymour Grove, Help drafting a defence |
ES Parking Proceeding Issued - Seymour Grove, Help drafting a defence |
Tue, 21 May 2019 - 11:08
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#1
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New Member Group: Members Posts: 9 Joined: 20 May 2019 Member No.: 103,944 |
My Brother in Law received a Final Demand Letter from ES Parking for returning to The Seymour Grove car park within the 4 hour period. This was the first notice he had received from ES Parking. We managed to find a number for ES Parking and called to advise that he had returned to the car park or give his fiancé her bank card which he had left with and that the Final Demand letter was the first he had heard of the fine and therefore he should have the right to appeal. The lady he spoke to was not interested in what he had to say and advised to either pay the fine or be faced with a CCJ and ended the call. We then received correspondence from Gladstones demanding payment. We explained to them what had happen via correspondence but again they were uninterested. We submitted the Pre- Action Protocol form and requested the further information as advised on the forums. We also requested proof of postage which of course was not provided as they alleged it’s an unreasonable request. Gladstones also advised that unless they receive payment within 30 days they will proceed to issue Proceeding, which they did. We received a Claim Form dated the 7/5/19 from the Northampton County Court Business Center. I am going to return the Allocation Questionnaire today and the try and work on a defence. Any help with drafting a defence would be much appreciated. I know this will be tricky as he did return to the car park but there were mitigating circumstances and ES Parking’s behaviour has been so unreasonable this has become a matter of principle. Also is there any way to have the Proceeding moved to a local court or is it best to leave it at Northampton? |
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Tue, 21 May 2019 - 11:08
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Tue, 21 May 2019 - 11:56
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#2
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Member Group: Members Posts: 2,053 Joined: 20 May 2013 Member No.: 62,052 |
By "allocation questionnaire", do you mean Acknowledgement of Service?
Northampton is just the central clearing house for small court claims; when you later receive a Directions Questionnaire you will be able to nominate your local court. Did the return to the car park involve a second period of parking, or was it just briefly stopping to hand over the card? In his appeals, was the driver identified? (It sounds like it was). |
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Tue, 21 May 2019 - 13:33
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#3
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New Member Group: Members Posts: 9 Joined: 20 May 2019 Member No.: 103,944 |
Sorry yes it was Acknowledgement of Service. Getting my forms mixed up.
Second period was 12 minutes when he parked up to go into Iceland to return the card. By "allocation questionnaire", do you mean Acknowledgement of Service? Northampton is just the central clearing house for small court claims; when you later receive a Directions Questionnaire you will be able to nominate your local court. Did the return to the car park involve a second period of parking, or was it just briefly stopping to hand over the card? In his appeals, was the driver identified? (It sounds like it was). In the initial reply he was stated as the driver but in an email response he has stated I |
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Wed, 22 May 2019 - 09:44
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#4
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New Member Group: Members Posts: 9 Joined: 20 May 2019 Member No.: 103,944 |
Hi guys,
We were not given the opportunity to go through the appeals process as the initial letter was never received. The first we knew of the pan was the Final Demand Letter from ES Parking All correspondence has been with Gladstones direct. Acknowledgement of Service has been filed and I have until the Saturday 8 June to file a Defence. So in reality ideally want it filed by Wednesday 5 June 2019 or before if possible. Any help to draft a defence for returning to site within the 4 hour no return period would be appreciated. He only returned to give his fiancé her bank card so surely there is some kind of mitigating circumstances defence???. |
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Wed, 22 May 2019 - 10:08
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#5
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Member Group: Members Posts: 17,088 Joined: 8 Mar 2013 Member No.: 60,457 |
So if the first notice received was the final demand then if the driver has not been identified then the keeper has no liability as the notice was not received within the 14 days required.
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Wed, 22 May 2019 - 10:46
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#6
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Member Group: Members Posts: 4,126 Joined: 31 Jan 2018 Member No.: 96,238 |
He's told ES and Gladstones that he went back to return the bank card
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Wed, 22 May 2019 - 15:08
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#7
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New Member Group: Members Posts: 9 Joined: 20 May 2019 Member No.: 103,944 |
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Wed, 22 May 2019 - 15:19
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#8
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Member Group: Members Posts: 9,985 Joined: 20 Aug 2008 Member No.: 21,992 |
The experts can shoot me down if I've got this wrong, but is there any mileage in the argument that the second visit, which triggers the breach, is in fact Trespass? The second visit is 'No Parking' isn't it?
Discuss. -------------------- Sometimes I use big words I don't understand in an effort to make myself sound more photosynthesis.
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Wed, 22 May 2019 - 16:43
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#9
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Member Group: Members Posts: 4,126 Joined: 31 Jan 2018 Member No.: 96,238 |
All's fair because this brings in issues of legal capacity and limit to damages
Could go either way Can also argue that a condition of parking the first time is the promise not to return and it's no different from a time limit as per Beavis There are the usual defence points regarding Gladstones inadequate Particulars of Claim and the poor signage There would be a defence if the car had different drivers for the two visits Another possibility is whether the first visit was just a drop off without parking This might be a case to raise the purpose of the contract which was to maximise revenue for the retail park This is not fulfilled if potential customers are unable to make purchases when they discover that their bank cards have been left at home but cannot retrieve them and return This post has been edited by Redivi: Wed, 22 May 2019 - 16:45 |
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Wed, 22 May 2019 - 19:37
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#10
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Member Group: Members Posts: 34 Joined: 18 May 2019 Member No.: 103,930 |
The signage may have changed, but there are other posts on here about this car park, and the condition of 'no return within 4 hours' is in teeny, tiny print and (according to that poster) "all their signs are mounted 8 feet up and you have to get quite close and crane your neck to read them". The amount of the parking charge is (or was) in tiny print too.
It may help if the first entry was a drop-off only, especially if the signage is as bad as indicated, as you could argue no opportunity to become acquainted with the terms which were imposed at the first visit before being bound by them. Consumer Rights Act 2015, Schedule 2 (Consumer contract terms which may be regarded as unfair). Part 1 – List of Terms: 10: A term which has the object or effect of irrevocably binding the consumer to terms with which the consumer has had no real opportunity of becoming acquainted before the conclusion of the contract. A subject access request (SAR) to ES would reveal exactly how long the first visit was, and I think this could be pertinent. Unfortunately they have 30 days to respond to an SAR and the defence is due before that. Others may have differing opinions but as the contract was allegedly formed on the first visit, I’d say that’s where you need to firm up the facts. Mitigating circumstances for the 2nd visit are unlikely to be considered a valid defence. My advice would be to get photographs of the signage – entrance sign and signs within the site, showing how high it is and how small the print is – and think about whether the driver could reasonably have known about the ‘no return’ clause. The suggestion that ‘no return’ means there was no offer of parking on the second visit is also worth running with, I think. No offer = no contract, therefore trespass only. This post has been edited by motstot: Wed, 22 May 2019 - 19:37 |
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Thu, 6 Jun 2019 - 10:19
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#11
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New Member Group: Members Posts: 9 Joined: 20 May 2019 Member No.: 103,944 |
Hi Guys,
well I have sent the acknowledgement of service and have now drafted my defence. which by my calculation is due to be filed by tomorrow - issue date was the 7 May 2019. I hope this is correct? here is the defence that I have put together. apologies as it is a bit lengthy but I thought better to cover more than less. any feedback amendment suggestions would be much appreciated, especially as I wasn't to get this filed later today (to allow for any hiccups) …………… edited_defence.pdf ( 110.67K ) Number of downloads: 88 I think I have attached it properly any issues please message me. thank you |
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Thu, 6 Jun 2019 - 13:16
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#12
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Member Group: Members Posts: 17,088 Joined: 8 Mar 2013 Member No.: 60,457 |
You gave 33days from the date of issue to get your claim to court,
Defence due 28 days from date of service, assumed served 5 days after issue |
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Thu, 6 Jun 2019 - 13:33
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#13
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New Member Group: Members Posts: 9 Joined: 20 May 2019 Member No.: 103,944 |
You gave 33days from the date of issue to get your claim to court, Defence due 28 days from date of service, assumed served 5 days after issue Day 33 would be Sunday 9 2019. But in anticipation of any system glitches I want to file the defence today as that way I can contact the court tomorrow if I need to. Does anyone have any feedback on the defence I have cobbled together, as I’m new to all this but don’t want them to get away with it or at least have to work a bit for their extortionate fees for a change |
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Fri, 7 Jun 2019 - 07:52
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#14
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New Member Group: Members Posts: 9 Joined: 20 May 2019 Member No.: 103,944 |
Hi guys,
Any feedback on the defence as I really need to file today. Any comments would be much appreciated |
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Fri, 7 Jun 2019 - 13:25
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#15
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New Member Group: Members Posts: 9 Joined: 20 May 2019 Member No.: 103,944 |
Does anybody know the email address for the Northampton Business Center so I can email my defence today and then follow with a phone call.
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Fri, 7 Jun 2019 - 17:23
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#16
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Member Group: Members Posts: 4,126 Joined: 31 Jan 2018 Member No.: 96,238 |
That defence is much too long and has several major errors
Consumer Rights Act is a non-starter The Supreme Court kicked out the Aziz argument So is the CCICR As far as the courts are concerned, it's not a distance contract Not a genuine pre-estimate of loss and therefore a penalty is an open invitation to reject your defence It was the whole point of the Beavis case when the Supreme Court decided that penalties were enforceable The £50 Legal Representative fee to issue a claim is authorised by the Civil Procedure Rules How much ES was actually charged is irrelevant It lacks a logical order You want to write it as a series of Even if hurdles Even if the previous defence point fails.... Something along the lines: The Particulars of Claim don't disclose a cause of action ES doesn't have the legal capacity required by its Code of Practice to issue the claim Identity of driver Signs don't comply with Code of Practice The driver didn't park on at least one of the occasions Even if had parked, was trespass not contract and only land-owner can bring claim Even if had parked, was necessary for purpose of enabling passenger to make payments in shops Believe ES acting outside terms of its contract. Nonsense that it allows penalising of brief stops for purposes of eg drop-off and collecting of passengers Don't believe additional debt collection charges incurred The charge is a penalty that does meet conditions of Beavis to be disengaged - no public interest, breaches of Code of Practice This post has been edited by Redivi: Fri, 7 Jun 2019 - 17:23 |
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