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ES Parking/Gladstone court case - PCN Spinningfields Manchester


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Hi all,

 

I started this thread following a post on Ginger's thread located in this forum (unable to post links yet).

 

I have the same situation:

 

1) I sent a standard letter asking for the basis of the invoice and offering to go through POPLA as court is unnecessary.

 

2) Got an "appeal rejected" letter despite not actually appealing,

rather just requesting information and offering to resolve the matter.

 

3) Got further letters from ES Parking and then one from Gladstone.

I didn't bother wasting my money on postage sending a reply as I saw from every other person that they just ignore it anyway.

 

I have a couple of weeks to submit my defence.

I'm expecting to win, naturally as these guys are nothing more than low life cowboys.

 

Any advice on what my defence should consist of?

 

I was thinking of the following main points:

 

1) The driver was not identified and ES Parking refused to help in identifying the driver despite my request for information. I am only the registered keeper of the vehicle so why should I be liable?

 

2) The fee is not a genuine pre-estimate of loss (I have previously won a case through POPLA on that grounds)

 

3) I offered the claimant the option to resolve this through POPLA to avoid court and my offer was simply ignored.

 

4) My original letter (sent by recorded delivery) requesting information on the basis of the invoice was simply ignored with subsequent letters making unfounded demands for money

 

5) The invoice itself is baseless as ES Parking are just contractors, they don't own the land.

 

That's the crux of it, is there anybody willing to help me in terms of adding extra points and the wording which will go into the defence?

 

I'm also looking to make a claim for loss of earnings due to attending the court case should they go ahead with it

- any help with that would be much appreciated.

 

Many thanks all

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please don't hit Quote...just type we know what we said earlier..

DCA's view debtors as suckers, marks and mugs

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

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you send a cpr after the claim is issue can you fill that link out please

 

 

dx

please don't hit Quote...just type we know what we said earlier..

DCA's view debtors as suckers, marks and mugs

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

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ther is another thread on this same place so read that.

you need to rephrase your points though

submit the AOS and we will come up with a choice of words but read the other thread to see what else you may wish to consider. ES are not mambers of the BPA but the IPC, who are Gladstones in another frock.

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please don't hit Quote...just type we know what we said earlier..

DCA's view debtors as suckers, marks and mugs

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

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Share on other sites

Name of the Claimant - ES Parking Enforcement Limited

 

Date of issue – 24 August 2016

 

Date to submit defence = by 4pm 23 September

 

What is the claim for:

02/05/16 [REG] £150, Due 20/06/16

Total Due - £150

AND THE CLAIMANT CLAIMS:

 

1.The claimant claims the sum of £152.11 for parking charges and indemnity costs if applicable including £2.11 interest pursuant to S.69 of the County Courts Act 1984 Rate 8.00% pa from dates above to 23/08/16 Same rate to Judgement or (sooner) payment

Daily rate to Judgement £0.03

Total Debt and Interest £152.11

 

 

Has the claim been issued by the original creditor or was the account assigned and it is the Debt purchaser who has issued the claim ? Originally ES Parking, then assigned to Gladstones

 

Were you aware the account had been assigned – did you receive a Notice of Assignment?

 

ES "warned" me that it would be passed onto debt collectors if it was not "paid on time"

Additional Question:

 

Do I submit my claim on the day of court or can I send an invoice to Gladstone following the court case for lost earnings?

 

I'd love to take them to court should they fail to pay up.

 

 

Give them a bit of their own medicine.

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are you SURE the claimant IS Gladdys?

 

note revised date for defence filing!!

 

no you cant claim loss of earning in small claims.

 

you need to send the private parking CPR 31:14

please don't hit Quote...just type we know what we said earlier..

DCA's view debtors as suckers, marks and mugs

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

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it will be Gladdys acting tough on behalf of ES parking.

 

 

Gladstones CANNOT claim anything in their own name.

 

Read the other thread her about ES and this site they manage.

 

If you can show that you have lost money by having to attend court and the claimaint has misbehaved

then you can get a ful costs recovery oder under CPR 27.

 

 

You should write up what yous costs are and how they are arrived at and present it beforehand.

 

 

You can ask for these costs on the day but it will be harder to get the judge to agree them.

 

 

a true loss of earnings and 5 hours preparation time @£19ph plus travel costs are what you get.

if CPR 27 applies, other than that travel costs and a nominal loss of earnings order of generally £50

 

You cannot ask for anything after the event.

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are you SURE the claimant IS Gladdys?

 

note revised date for defence filing!!

 

no you cant claim loss of earning in small claims.

 

you need to send the private parking CPR 31:14

 

Sorry, you are right. Just checked and it is ES Parking Enforcement Limited that is the claimant. My bad.

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you have Ack'd the claim on MCOL?

please don't hit Quote...just type we know what we said earlier..

DCA's view debtors as suckers, marks and mugs

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

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why dont you concentrate on beating the claim first.

As a consultant you wont get a bean as you cannot show a loss as you determine your work routine. It is like me claiming for time off from my retirement.

 

I'm quite confident I will win. They have no basis to invoice somebody £150 + extras for stopping in a zone where there are no markings and no clear signs. So what I want to do is beat them and also charge them for being such low lifes.

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First Draft for my defence:

 

Please assist, much appreciated all. text marked with underline and bold need to be revised/removed.

 

It was taken from another forum.

 

Do I need to add any of the following points or are they pretty much covered off?

- I offered to resolve the penalty invoice via POPLA but the claimant completed ignored my request

- There are no road markings where the car was stopped (other areas to have double yellow lines)

- The driver of the vehicle has not been identified

- There is not sufficient signage to form a contract in any case

- The road appears to be a public one, what right do they have to penalise people for stopping on a public road?

 

 

 

1.

The Defendant denies any liability whatsoever to the Claimant for all of the following reasons, any one of which is fatal to the Claimant’s case :

 

i. The Claimant has no standing to bring a case

ii. The Claimant has no capacity to form a contract with the Defendant

iii. The signage does not offer a contract with the Defendant

iv. The Defendant has never had any obligation to comply with any sign placed by the Claimant

v. The Claimant provided no service to the Defendant

vi. The Claimant has not disclosed a Cause of Action

vii. Even if a contract could be formed, it would be void as in breach of the Unfair Terms in Consumer Contract Regulations

 

2.

The Claimant has failed to file enough information in the Particulars of Claim to establish a cause of action that enables the Defendant to prepare a specific defence.

The Defendant has written to the Claimant’s solicitor to ask if the claim is founded on Trespass, a Contractual Charge or a Breach of a Contract. The Defendant has received no reply and is therefore forced to cover all three possible grounds for the claim. The Defendant asserts that, in any case, the claim is without foundation.

 

3.

The Claimant states that the claim is for the provision of parking services. The Defendant has never agreed to the provision of any parking services by the Claimant. Neither has the Claimant provided any services to the Defendant. The Claimant was employed with no warning or consultation by the residents’ management agent. The Defendant asserts that the management agent had no authority to remove the residents’ parking facilities or impose on them the terms and conditions of the contractor that it had employed.

 

4.

The sign relied on by the Claimant states that the area is a No Stopping/Parking Zone. The only logical interpretation is that the Claimant alleges that a vehicle parked in the area is trespassing. The Claimant is a mere contractor and has no legal capacity to bring a claim for trespass.

 

5.

The Claimant has not explained what authority it has to bring the claim. ParkingEye v Sharma (3QT62646 Brentford County Court) examined the contract and dismissed the claim for the reason that the Claimant had no ownership of, or proprietary interest in, the land; it followed that the Claimant, acting as an agent, had no locus standi to bring court proceedings in its own name. ParkingEye v Gardam (3QT60598) similarly examined the contract and found the Sharma judgment persuasive. The Defendant also refers the court to ParkingEye v Somerfield (2012) (EWCA Civ 1338 case A3/2011/0909) that examined ParkingEye contracts. This stated that any debt was due to Somerfield and that ParkingEye did not have the authority to issue proceedings.

 

6. [Deleted]

 

7.

The Claimant had no capacity to offer parking. Neither did it provide any service to the Defendant that he did not already have. The Defendant certainly did not agree to pay a contractor that he did not know £150 to exercise his existing rights. No consideration passed from either party. Neither was there any meeting of minds. None of the fundamental elements of a contract was present and no contract could possibly exist.

 

8.

Even if the Claimant could offer a contract, the Defendant disputes that any sign constituted an offer and submits that it clearly threatened punitive sanctions – as the director of the management company freely stated. The Defendant refers the court to 3YK50188: Civil Enforcement Ltd v McCafferty (Luton County Court appeal) that was decided by Mr Recorder Gibson QC in almost identical words (21 February 2014).

 

The Defendant also refers the court to the tests suggested by the House of Lords in Dunlop Pneumatic Tyre v New Garage & Motor Co. Ltd (1915) and Lordsvale Finance plc v Bank of Zambia to determine if the sum is a penalty or a genuine pre-estimate of damages. The Defendant also refers the court to decisions involving similar facts to the present case:

O.B. Services v Thurlow (Worcester County Court 2011)

Excel Parking Services v Hetherington-Jakeman (2008)

 

The Defendant further asserts that the Claimant has ignored the Government’s clear intention as expressed in the Department for Transport Guidance on the Recovery of Parking Charges:

 

Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken.

For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver.

 

9.

The judgment in VCS v Ibbotson (2012) makes clear that only the costs that directly result from the parking may be included, not an arbitrary proportion of normal business costs. A Retailer v Ms. B & MS. K (1UC71244) citing R+V Versicherung AG v Risk Assurance and Reinsurance Solutions SA (2006 EWHC 42) and Aerospace Publishing Ltd v Thames Water Utilities Ltd (2007 EWCA Civ 3) dismissed a claim for the costs of security staff dealing with shoplifters who had deliberately attempted to cause a loss to the claimant, not a resident who merely used his own car park.

The court stated that the claimant had to establish that the conduct caused significant disruption to its business. Security people, far from being diverted from their usual activities, were in fact actively engaged in them and doing just what they were paid to do. Neither could any administrative or security costs be claimed. The amounts spent by the claimant would have been identical if the defendants had stayed at home or limited their shop-lifting to other establishments

 

10.

Even if a contract had been formed it would be void. The Claimant was not acting in good faith and was in breach of the Unfair Terms in Consumer Contract Regulations 1999. The Defendant refers the court to the concept of good faith as elucidated by the European Court of Justice in Aziz v Caixa d’Estalvis de Catalunya, Tarragona I Manresa [2013] 3 CMLR 5 (Para 69) regarding the Unfair Terms Directive :

With regard to the question of the circumstances in which such an imbalance

arises “contrary to the requirement of good faith”, having regard to the sixteenth recital in the preamble to the directive and as stated in essence by the A.G. in point AG74 of her Opinion, the national court must assess for those purposes whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to such a term in individual contract negotiations.

 

11.

The Defendant has the reasonable belief that the Claimant has attempted to Claim an expense that was not incurred. Specifically, the £100 charges displayed on the signs have each been inflated by £40. The Defendant recognises the amount from letters sent several months ago by a debt recovery agent. The agent advertises its charges as “no collection, no fee”. The Claimant did not therefore incur the additional charge.

12.

The Defendant also disputes that the Claimant has incurred £50 solicitor cost. The Particulars of Claim are incompetent in disclosing no cause of action. The Defendant has written to the solicitor to request further and better particulars of claim but has received no reply.

 

13.

The Defendant has the reasonable belief that the Claimant is a disreputable company that is operating the car park in its own interest by deliberately removing long-established areas of it to create a shortage of space that will enable it to penalise the residents. The Defendant notes that a former company operated by the Claimant’s director was expelled from the British Parking Association for serious non-compliance with its code of practice and outstanding county court judgments resulting from its aggressive clamping activities. That company’s activities were also reported in a number of local papers.

 

14.

The Defendant invites the court to strike out the claim as having no prospect of success. Alternatively, the Defendant requests the court to order the Claimant to provide Further and Better Particulars of Claim.

 

I believe the facts stated in this defence are true

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their poc is one line...

1.The claimant claims the sum of £152.11 for parking chargeslink3.gif and indemnity costs if applicable

how you can write a war and piece novel in response to that amazes me.

I would IMHO simply defend upon that fact

please don't hit Quote...just type we know what we said earlier..

DCA's view debtors as suckers, marks and mugs

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

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I guess I am kind of at war with these cowboys...

 

There is no peace between us though!

 

I want to make sure it covers off all eventualities and that my defence is water tight.

 

You are right that it is ridiculous to send a one liner for a claim.

 

But should I not put a full defence together to make it clear

 

I'm gonna fight them to the death for this.

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bin the lot and stick to

"no contract ever formed between ES and defendant so no monies due. In any case no liability as keeper as protocols of the POFA not followed to create one."

 

when you get a court date to exchange documents then you can add anything you want but at the moment it just shows the claimants you dont know what you are talking about and have lifted a load of stuff of the web and they will laugh and continue with their claim.

 

with the minimalist approach you have covered all possibilities and they will then have to take a punt on what points you are going to raise and it will cost them time and money to find out.

 

 

They may well drop the matter by then when it become clear what percentage of people just pay up and what doesnt.

If they make enough money without a fight they wil carry on issuing dodgy claims and play the percentages game.

If they lose a couple of court claims and it gets the attention of the local press (and council) then the game s up and they cannot continue to rook people so they may well not continue.

 

Use your energies in getting the info you need,

like onership of the land,

planning consents,

signage etc.

 

 

When they twig that people are going to use the rubbish signage to defend they will go out and put new signs up and claim that these were there all the time.

 

 

Same goes with assignment of authority,

they will often produe a redacted or standard form that is not signed and dated and no indication as to what land is covered by the agreement.

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did you send a cpr?

 

 

dx

please don't hit Quote...just type we know what we said earlier..

DCA's view debtors as suckers, marks and mugs

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

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Seems reasonable. Should I need to add to it then I have an encyclopedia of defence statements. NO

 

Should I do this now or wait another 10 days or so?

 

doesnt matter,

you arent giving anyuthing away at present as to you substance of your defence.

 

 

If you had sent a CPR 31.14 you could include their failure to respond to it (they wont hand over the documents) and ask that the claim be struck out for having no locus standi

 

 

but you need to give them 14 days to act and I suspect that you dony ahve enough time.

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sent cpr anyway

please don't hit Quote...just type we know what we said earlier..

DCA's view debtors as suckers, marks and mugs

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

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