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Gladstones LBC - any help appreciated
vanillapie
post Mon, 19 Dec 2016 - 20:39
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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 smile.gif

Attached File(s)
Attached File  letter_to_amp_sep2014.pdf ( 32.4K ) Number of downloads: 80
 
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post Mon, 19 Dec 2016 - 20:39
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cabbyman
post Mon, 19 Dec 2016 - 20:51
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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.



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vanillapie
post Mon, 19 Dec 2016 - 20:54
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Yes, that's what you get for entrusting the postage to your parents BangHead.gif

Will have a hunt around for a letter now to tweak, cheers
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vanillapie
post Mon, 19 Dec 2016 - 22:40
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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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ostell
post Tue, 20 Dec 2016 - 10:28
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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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vanillapie
post Tue, 20 Dec 2016 - 22:04
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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. smile.gif
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cabbyman
post Wed, 21 Dec 2016 - 13:48
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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.


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Lynnzer
post Wed, 21 Dec 2016 - 15:13
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QUOTE (cabbyman @ Wed, 21 Dec 2016 - 13:48) *
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.

Corrected.
Yeah, another trespass case at worst and another breach of the DPA. Just love it........


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vanillapie
post Wed, 31 May 2017 - 22:01
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So, 5 months on and Gladstones finally got around to emptying their inbox... rolleyes.gif



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 smile.gif
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ostell
post Wed, 31 May 2017 - 22:40
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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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vanillapie
post Sun, 18 Jun 2017 - 16:58
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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 biggrin.gif

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 angry.gif

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emanresu
post Mon, 19 Jun 2017 - 05:30
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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


--------------------
Where there is a claim - there is a counterclaim.
Are Parking companies misusing your personal data or interfering with your lease? Counterclaims are only £25. Makes them sit up and take notice. For leaseholds, join in the Managing agents too. Since the purpose of these claims is to frighten you, give them something to be frightened of.
Subject Access Requests to the DVLA?Find out who accessed your data and when. Try SubjectAccess.Requests@dvla.gsi.gov.uk. [Apologies if it does not work]
Double Dip / ANPR FaultsThe BPA Report on ANPR Double Dips is here. Ideal case for a counterclaim (see above).
Daily Court List. See who is doing what and where here
Printing and posting Witness Statements. Easy and cheap way DoxDirect
What is court like. A District Judge's view
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vanillapie
post Sat, 24 Jun 2017 - 15:55
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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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Lynnzer
post Sun, 25 Jun 2017 - 17:27
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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?


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vanillapie
post Sat, 8 Jul 2017 - 22:10
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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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Gan
post Sun, 9 Jul 2017 - 08:24
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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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vanillapie
post Sun, 9 Jul 2017 - 21:02
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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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nosferatu1001
post Mon, 10 Jul 2017 - 09:57
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Yes, you post it here. Same advice as to everyone else.
Gladstones see it soon enough.
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vanillapie
post Mon, 10 Jul 2017 - 21:30
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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...

  1. The Defendant was the registered keeper of the vehicle at the time in question, no. XXXX XXX
  2. The Claim relates to an unwarranted penalty sum arising from the vehicle having been allegedly parked at Sandlewood Court, Maidstone on xx/xx/xxxx.
  3. The Defendant denies any liability to the Claimant for all of the following reasons, any one of which is fatal to the Claimant’s case :
    I. The Claimant has disclosed no cause of action
    II. The Claimant had no capacity to form a contract with the motorist
    III. The Claimant has not identified the driver
    IV. Even if a debt had ever been owed to the Claimant, it was assigned to a Third Party and the Claimant is now a stranger to the matter
  4. The Particulars of Claim contains no details and fails to establish a cause of action . It simply states that the Defendant “incurred the parking charges for breaching the terms of parking.” This does not give any indication of on what basis the claim is brought, for example whether founded upon an allegation of trespass, ‘breach of contract’ or contractual ‘unpaid fees.’
  5. The Claimant has given no indication of the nature of the alleged charge in the Particulars of Claim. The claim states only “Parking Charges / Damages and Indemnity costs if applicable.” There is no information regarding why the charge arose, clear times/dates, what the original charge was, what the alleged contract was or anything which could be considered a fair exchange of information.
  6. In correspondence with the Claimant via their debt collection agency and legal representatives, the Defendant has repeatedly asked for copies of documents which would substantiate the claim and/or support a cause of action. In turn they would allow the Defendant to defend the Claim. Such requests have been ignored.
  7. In order to issue parking charges, and to pursue unpaid charges via litigation, the Claimant is required to have the written authority of the landowner, on whose behalf they are acting as an agent. No evidence of such authority has been supplied by the Claimant or their legal representatives, and the Claimant is put to strict proof of same, in the form of an unredacted and contemporaneous contract, or chain of authority, from the landowner to the Claimant.
  8. The Defendant has informed the Claimant that at the time of the alleged breach they were not the driver.
  9. The driver has not been identified by the Claimant, who appear to be pursuing me as the registered keeper of the vehicle, yet without using the only applicable statute which would have enabled a parking firm to rely on 'keeper liability'.
  10. Contrary to assertions made by the Claimant’s legal representatives, Gladstone Solicitors, there is no lawful obligation upon a registered keeper to assist a parking company which has failed to either (a) evidence the driver or (b) in the alternative, utilise the statute available to hold keepers liable for the conduct of a driver. This is a willfull misrepresentation of the criminal case Elliott v Loake, which has been dismissed by the court on many occasions in similar claims. If the Claimant has evidence of the driver's identity, I put them to strict proof of same.
  11. Schedule 4 of the Protection of Freedoms Act 2012 (the POFA) states that a notice which is to be relied on as a notice to keeper must meet several requirements.
  12. This Claimant failed to issue a compliant Notice to Keeper (NTK) and cannot hold a registered keeper liable in law.
  13. Instead, a misleading letter impersonating a (Local Authority penalty document) 'Notice to Owner' was served by a debt collector third party, omitting the statutory wording from paragraph 8 of the POFA.
  14. The ‘Notice to Owner’ was dated 19th August 2014, 182 days after the alleged breach. This is beyond the window for service as stipulated in the POFA Paragraph 8 Sub-Paragraph 5 rendering it invalid.
  15. Regarding the car park in question, the sign when entering the car park has been altered (one broken tatty sign overlaid and obscuring the terms on another) but it appears to show that the car park is for permit holders and free parking is available for shoppers.
  16. The sign also states ‘See notices in car park for details’; however the signs within are a mix of instructions and one sign sets out tiny images of different bays that a driver would only see having already parked, if standing right next to a sign to try to interpret it.
  17. The site appears woefully marked in terms of differing signs and lines including one sign allowing 20 minutes free with no caveat, while another mentions 2 hours free (and £100 charge in small font). These conflicting terms are incapable of forming a clear contract and fail the test of transparency and fairness; a driver cannot learn before parking, about the onerous terms by which he/she will then be bound so cannot possibly be deemed to have agreed to any 'contract' before the act of parking.
  18. There is no evidence that any grace period was allowed for a driver to read the conflicting signs. The absence of allowing a grace period breaches his Claimant's ATA Code of Practice, a strict set of rules held to be 'effectively regulation' by the Supreme Court Judges in ParkingEye Ltd v Beavis [2015] UKSC 67.
  19. In addition to the original ‘parking charge’, believed to be £100, for which liability is denied, additional unsubstantiated charges have twice been added to the sum claimed. As the Claimant engaged Debt Recovery Plus Ltd (trading as Parking Collection Services) to issue the ‘Notice to Owner’ and deal with the subsequent appeal it is submitted that the additional charges have not been paid to DRP/PCS.
  20. Furthermore, the Claimant’s legal representatives, Gladstones Solicitors, have artificially inflated the value of the Claim by adding ‘Legal Representatives Costs’ of £50.00, which I submit have not actually been incurred by the Claimant, and which are artificially invented figures in an attempt to circumvent the Small Claims costs rules using double recovery.
  21. Likewise the parking signage do not amount to a contract to pay the Claimant’s costs, and the inclusion of ‘indemnity costs’ amounts to no more than a cynical ploy to evade CPR 27.14 regarding costs and again attempt double recovery.
  22. The Claimant’s legal representatives, Gladstones Solicitors, stated in correspondence that the Claimant relies upon the case of ParkingEye v Beavis. They state that “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.”
  23. I submit that they are fully aware the case in fact did not concern that issue, but in fact concerns the conditions to disengage a penalty charge, none of which has been met in the present case.
  24. In correspondence with the debt collection agency acting for the Claimant, the Defendant stated that at the time of the alleged breach the vehicle was being used by the Driver for the purposes of unloading, namely bulky materials forming a charitable donation at the Barnardos store adjacent.
  25. This is clearly distinct from the circumstances leading to the judgement in PE v B which found that a penalty charge was justified by the wider public interest of discouraging overstays in a busy car park.
  26. Furthermore, on 29th June 2016, Judge Harris QC sitting at Oxford County Court ruled on appeal in the case of Jopson v Homeguard Services Limited that a purported prohibition upon ‘parking’ is distinct from pausing for a few minutes to allow for awkward or heavy items to be unloaded.
  27. On the authority given in that case, the Driver would not be liable for the purported charge for ‘parking’ sought by the Claimant.
  28. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons. It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious. As such, I am keeping a note of my wasted time/costs in dealing with this matter.
  29. On the 19th August 2016 DJ Anson sitting at Preston County Court ruled that the very similar parking charge Particulars of Claim were deficient and failing to meet CPR 16.4 and PD 16 paragraphs 7.3 - 7.5. He ordered the Claimant in that case to file new Particulars, which they failed to do, and the court confirmed the claim was struck out.
  30. The Court is invited to dismiss the Claim, and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14.
  31. In the event that the Claim is not struck out and/or that the Claimant is required to serve more detailed Particulars, I seek the Court’s permission to amend and supplement this interim defence, as may be required upon disclosure of the Claimant’s case.
  32. This defence is based on the sparse information available from a template 'cut & paste' claim filed by Gladstones Solicitors on behalf of a parking company claimant, where I have been furnished with nothing about the alleged contract, contravention or other vital details that remain withheld from me as an unrepresented Defendant.
  33. I believe the facts stated in this Defence Statement are true.



Thank you biggrin.gif

This post has been edited by vanillapie: Mon, 10 Jul 2017 - 21:31
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vanillapie
post Tue, 11 Jul 2017 - 20:34
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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 blush.gif )
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