Not advising Change of Registered Keeper to PCM

Will do in the submitted document, rush cut and paste for this!

Good spot, many thanks, have rectified that now.

Here is the revised statement, with line breaks and hopefully more easily read. I need to find the claim reference number for the case cited in 2.12, which is the one Coupon-mad refers to in his last post: PCM(UK) vs Mr X. Thanks all.

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I am XXXX XXXX and I am the Defendant in this matter. This my supporting Statement in support of my application dated XX March 2017 to:
1. Set aside the Default Judgement dated XX December 2016 as it was not properly served at my current address and order for the Claimant to pay the Defendant £255 as reimbursement for the set aside fee;

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

1. Default Judgement

1.1. I understand that the Claimant obtained a Default Judgement against me as the Defendant on XX January 2017. I am aware that the Claimant is Parking Control Management (UK) Ltd, represented by Gladstones Solicitors and that the claim is in respect of an unpaid Parking Charge Notice from the XX January 2016 at 5 Heath Parade, Grahame Park Way, London NW9 5ZN. I further contest this charge for the reasons outlined in Part 2 of this defence.

1.2. The claim form was not served at my current address and I thus was not aware of the Default Judgement until XX March 2017. I understand that this Claim was served at, XXX. However, I moved to a new address at, XX on the XX April 2016. In support of this I can provide a scanned copy of the vehicle’s V5C log book which shows the details of the registered keeper, a solicitor’s completion statement showing the date of completion and confirmation from XXXX XXXX Borough Council showing my updated details for the purposes of paying Council tax. Both are attached at Exhibit X.

1.3. I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they held the Defendant’s correct contact details at the time of the claim. They have used information that was at the time nine months out of date.

1.4. According to publicly available information my circumstances are far from being 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. This is a topical issue: 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.”

1.5. 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.

1.6. Considering the above I was unable to defend this claim. I thus believe that the Default Judgement against me was issued incorrectly and thus should be set aside and I ask the Court to kindly consider the reimbursement of the fee of £255 from the claimant should this request be successful.

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

I am aware that the claim is for an unpaid Parking Charge Notice (PCN). 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:
• Unclear, ambiguous, inadequate and lack of International Parking Community (IPC) compliant signage
• No contractual agreement with the driver
• No grace period

Summary of Events

2.1. I was, at the relevant date, the registered keeper of the vehicle in question registration number XXXXXX. Below is a summary of my version of the events.

2.1.1. We needed to stop, so I pulled into the layby. Having seen some signs on the wall when I pulled in I then got out of the car to try and understand what the signs said and if they were related to parking and if I could park there.

2.1.2. The Loading Bay road marking signs were not visible approaching from the west along Grahame Park Way. It was raining and as Image 1 in Exhibit X shows they are not clearly visible from that angle.

2.1.3. Once I had pulled into the layby area I saw there were signs roughly 7.5ft up on the wall; the images Exhibit X show these. I estimate that the font size of the wording in the sign that states the contractual terms which we are agreed to by parking were less than 5mm high at the most and illegible from the car. I therefore got out of the car attempt to read the sign properly and have a look around to see if there was any further signage.

2.1.4. In the process of stopping to read the sign, an overzealous operator took a picture of my car in the loading bay and issued the PCN. I then refrained from parking there by driving off.

2.1.5. I subsequently received a Notice to Keeper from the Claimant, alleging that a charge of £100 was due to them. I did send an appeal to the Claimant and a further appeal to the Independent Appeals Service (IAS), the allegedly independent body appointed by the Claimant’s trade body, the Independent Parking Committee - now International Parking Community (IPC). Both appeals were rejected.

2.1.6. The appeal rejection was dated XX February 2016 and no further direct communication from the Claimant has been received since late February 2016. My research has revealed that the IAS, far from being independent, is a subsidiary of the IPC, which in turn is owned and run by the same two Directors who also run Gladstones Solicitors, the individuals in question being John Davies, and William Hurley.

2.1.7. I therefore have concerns over the impartiality of such an independent body and whether it is capable of providing any fair means for motorists to challenge parking charges. A potential conflict of interest therefore exists between the Claimant’s Solicitors and their client. In effect the Claimant’s solicitors have the potential, to exert influence via their formulation of the appeals process and appointment of adjudicators (whose identities are deliberately withheld), over the extent to which appeals are allowed. This in turn is likely to have the consequence of generating more litigation for them to undertake on the IPC’s members behalves.

Unclear, ambiguous, inadequate and lack of International Parking Community (IPC) compliant signage

2.2. The signage located at the site formed no contract with the driver, switched between ‘contractual fee’ and ‘unauthorised parking’ and does not meet the IPC Code of Practice (CoP) guideline requirements. Firstly terms are only imported into a contract if they are clear and prominent that the party ‘must’ have known about it and agreed. The signage present at the location of the alleged contravention does not identify The Claimant as a creditor for any charges that arise out of the contract or damages following a breach of the contract. Therefore, this cannot form a contract between the driver and landowner or The Claimant.

2.3. Consequently, should a contract be found to exist between the landowner and the driver, The Claimant not having been identified as a creditor are unable to pursue this claim as stated on page 10 [Part B: 1(2.1)] and page 27 [Other Signs: (1)] of the IPC CoP. To date, no authority has been provided that establishes that The Claimant are authorised to pursue this claim on behalf of the landowner, which also does not comply POFA, 2012. The Claimant have only stated in their correspondence that “This land is private land and is managed and operated by Parking Control Management” (ref: attachment Appeal Rejection in Exhibit X).

2.4. Upon entering the location where the contravention took place, due to the rain, no “Loading Bay” road markings signs were visible and the signs placed on the wall did not make it immediately clear they were for or what the specific parking conditions were. So no driver can have been expected to have entered into any contract with first being able to read it.

2.5. Due to the high positioning along with the overall minute size of text used, the signage is barely legible making it difficult to read and understand. On page 26 of IPC CoP it clearly states that “The signs must be readable from far enough away so that drivers can read all the of the Group A and Group B text without needing to look more than 10 degrees away from the road ahead” and on page 27 “The signs must be at a suitable height – is suggest that no part of the sign which contains relevant text should be over 6’’, or under 12’’, from the ground level. Such text must be of a size which is easily legible having regard to the location and in any event should not be less than 5mm in height” (see attached Signage copies).

2.6. However, the signage at the location was placed at 7.5 ft, making it very difficult to read. The font size of the body of text which states the contractual obligations was less than 5mm. I contend that the signs and any core parking terms The Claimant are relying upon, are too small for any driver to see, read and understand whilst driving or stationary, as the text containing the information is not easily legible as it is WRITTEN ALL IN CAPITAL LETTERS.


No contractual agreement with the driver

2.7. In addition the terms are misleading with wording that dresses up the charge as a ‘contractual’ fee, which it is not. The fact that the sign states “Retrospective evidence of authority to park will not be accepted”, confirming that the sign is setting out that one group of drivers are ‘authorised’ to park and the other group are not(those who are not “actively loading and unloading whilst delivering to the commercial tenants of Heath Parade”). Therefore, there is no consideration/acceptance flowing from The Claimant to the second group of drivers to form a contract. If a firm wanted to make an ‘offer to park’ by way of consideration to the second group they should word their signs along the lines of parking is allowed/authorised for everyone (not loading or unloading) at a daily tariff rate of £100. One cannot contract to be allowed to do something the sign states as not ‘allowed/unauthorised’.

2.8. The Claimant’s signage with the largest font at this site states “No Customer Parking At Any Time”. A further sign with much smaller writing and higher up states “The loading bay is only for authorised vehicles actively loading & unloading when delivering to the commercial tenants of Heath Parade”. It is submitted that if these notices are attempting to make a contractual offer, then as they are forbidding they do not fulfil the basic requirement of a contract, which is that each party to the contract must offer valuable consideration to the other party, on clear terms capable of acceptance. In this case neither the Claimant, nor their principal the landowner, is offering anything to motorists. The notices cannot, therefore, reasonably be construed as having created a contractual relationship between the Claimant and the Defendant.
The above point was recently tested in the County Court at High Wycombe, in the case of Parking Control Management (UK) Ltd v Bull & 2 Others (B4GF26K6, 21 April 2016), where District Judge Glen dismissed all three claims, stating in his judgment that:

“If the notice had said no more than if you park on this roadway you agree to pay a charge then it would have been implicit that PCM was saying we will allow you to park on this roadway if you pay £100 and I would agree with Mr Samuels’ first analysis that essentially the £100 was a part of the core consideration for the licence and was not a penalty for breach. The difficulty is that this notice does not say that at all. This notice is an absolute prohibition against parking at any time, for any period, on the roadway. It is impossible to construct out of this in any way, either actually or contingently or conditionally, any permission for anyone to park on the roadway. All this is essentially saying is you must not trespass on the roadway. If you do we are giving ourselves, and we are dressing it up in the form of a contract, the right to charge you a sum of money which really would be damages for trespass, assuming of course that the claimant had any interest in the land in order to proceed in trespass.”

While this is a County Court decision and therefore not binding, it is similar in nature to the present case and may be considered as persuasive.

2.9. In addition, the Consumer Rights Act 2015 rules that if signage has multiple interpretations the interpretation most favourable to the consumer applies. It is clear from this the signage with the largest font should apply.

2.10. In the alternative, if it was held that the signage was contractually valid, it would be impossible for a motorist to have read the terms and conditions contained therein from a moving or stopped vehicle, and if the vehicle is stopped, the ‘contravention’ according to the Claimant is already committed.

2.11. The above point was recently tested in several cases regarding Hayes and Harlington station. There a similar situation arises as the vehicles were charged for briefly stopping but the signs are far away from vehicles and high up. In all cases it was ruled that no contract was entered by performance as the signage could not be read from a vehicle. No transcripts are available but as PCM UK were the claimant in all cases they will be fully aware of the cases; C3GF46K8, C3GF44K8, C3GFY8K8.

2.12. 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 Heath Parade. The claim was dismissed A reason for dismissal was that the signs were inadequate and unreadable from the car; too far up on a wall and not legible. The Judge explained you cannot charge somebody who can't read the sign and know the terms on the site.

No grace period

2.13. The IPC code of conduct states that a grace period must be allowed in order that a driver might spot signage, go up to it, read it and then decide whether to accept the terms or not. A reasonable grace period in any car park would be from 5-15 minutes from the period of stopping. This grace period was not observed and therefore the operator is in breach of the industry code of practice. Additionally no contract can be in place by conduct until a reasonable period elapses.

2.14. The Claimant’s own notes (ref: IAS Appeal Rejection Letter in Exhibit X) state that my vehicle was present in the loading bay from 11.31.45 to 11.33.08 which is a total of 83 seconds. I have a video recording lasting 28 seconds on my phone of a remonstrative conversation I had with the operator during those 83 seconds which means I had just 55 seconds in which to read the terms and conditions of a contract on a sign that was physically placed in such a way that it was very difficult to do so. I contest that I was clearly given no opportunity to study and agree terms and have an honestly held belief that this company engages in the predatory practice of having signs at a height that cannot be read, with a density of text that is difficult for the average driver to see, and then give little or no notice before issuing a parking charge. I further honestly believe that there was not only no intent to create legal relations but indeed no legal relations were entered into.

2.15. Thus the signage is simply a device to entrap motorists into a situation whereby the Claimant sends them invoices for unwarranted and unjustified charges, for which motorists can have no contractual liability due to the terms and conditions not having been sufficiently brought to their attention.

2.16. The Court is invited to dismiss this Claim, and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14.

2.17. In summary, and to stress the point that there is growing anger at the dubious practices of private car parking companies of which I believe I the Defendant has fallen foul of, I would also like to draw the attention of the court to a debate in Parliament on 21st March 2017 that focussed on the relationship between the DVLA and private car parking companies, and the latter’s access and (mis)use of data. In the debate the Rt Hon Steve Double MP commented that “We need to look at the relationship the firms have with the DVLA. In my view, they are abusing their privileged relationship and their access to drivers’ information.”

The Rt Hon Kevin Foster MP surmised that “We got rid of the cowboy clampers in the last Parliament. The suspicion is that the cowboy clampers have now become the cowboy finers and cowboy invoicers. Although they may wish to leave their spur marks on car parks across the country, I hope the Minister will be clear what action will be taken to ensure that they have to ride off into the sunset for good.”

3. Counterclaim

It is not possible that a valid parking charge exists for the following reasons:

3.1. The signage cannot be safely read while driving. There can therefore be no meeting of minds and no contract by performance.

3.2. The signage is forbidding and makes no offer to the motorist. There can therefore be no contract.

3.3. Even if there was a contract the signage fails informational requirements for contracts established in the Consumer Contracts (Information, Cancellation And Additional Charges) Regulations 2013, enacted 13 June 2014, and so any contract would be non-bindng on the consumer.

3.4. Even if there were a binding contract the charge would be a penalty and unfair consumer term as it is not a genuine pre-estimate of loss and is not saved by the case law in ParkingEye v Beavis.

3.5. There was therefore no valid reason to apply for my keeper data from the DVLA.

3.6. Additionally the operator contract with the DVLA only allows them to obtain data for parking contraventions and not for briefly stopping.

3.7. My name and address information (together with other information) is classified as personal data within the meaning of s1(1) of the Data Protections Act (DPA). The Claimant has misused this data by attempting to claim a charge when there is no possibility that a lawful reason exists. Additionally, this data may only obtained and used from the DVLA for parking, and not for stopping.

3.8. This is therefore a breach of data principle 1 (data must be used lawfully) and 2 (data must only be used for the purpose provided).

3.9. The case of Vidal-Hall v Google Inc [2014] EWHC 13 (QB) provides authority that misuse of personal data is a tort and that damages may be non-pecuniary. The case of Halliday v Creation Consumer Finance Ltd [2013] All ER (D) 199 provides authority that a reasonable sum for compensation would be £750.

3.10. The case of VCS v Phillip, claim number C9DP2D6C Liverpool 07/12/2016, while not binding, concerns a motorist sent a parking charge for briefly stopping at Liverpool Business Park. The signage there has the equivalent forbidding wording to the signage in this case. The judge ruled that no contract could exist and therefore data had been wrongly obtained from the DVLA. This is therefore a persuasive case that a DPA breach occurs when a parking charge is not legitimately pursued, and that a sum of at least £250 is compensation for pursuing a purported parking charge when there is no reasonable prospect of success.

3.11. I therefore claim £250.

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N244 sent off last week so I'll keep this thread updated with the outcome.