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PCM Ticket whilst parked outside a friends house visiting, do i pay?

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  • Coupon-mad
    Coupon-mad Posts: 130,659
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    If defending as driver, you would have to remove all mention of the POFA Schedule 4 and 'no keeper liability' and stuff about Notice to Keeper deadlines etc. because none of those would come into play for anyone except a registered keeper appellant being held liable under that Act.
    Can i not say i was driving but they still didnt take the right steps to establish this and pursue me in this manner?
    There are no steps for them to follow to pursue a driver, except the Code of Practice, no laws or rules if not relying on the POFA.

    Maybe leave it as it is to hedge your bets because admitting a driver makes it easier for them.

    If asked at a hearing you must answer but could say something like: 'Under the POFA I have no responsibility to name the driver to a private firm and have decided not to, in the knowledge no undue inference can be drawn and knowing that they have failed to comply with the POFA 2012 to hold me liable as keeper.'

    But a Judge might not be impressed and it may be 'cleaner' and easier for you to approach the hearing with no agenda or worries about saying something wrong. Depends on how you feel as a hearing approaches, at the time of preparing your Witness Statement.
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  • infernouk
    infernouk Posts: 166 Forumite
    Coupon-mad wrote: »
    If defending as driver, you would have to remove all mention of the POFA Schedule 4 and 'no keeper liability' and stuff about Notice to Keeper deadlines etc. because none of those would come into play for anyone except a registered keeper appellant being held liable under that Act.

    There are no steps for them to follow to pursue a driver, except the Code of Practice, no laws or rules if not relying on the POFA.

    Maybe leave it as it is to hedge your bets because admitting a driver makes it easier for them.

    If asked at a hearing you must answer but could say something like: 'Under the POFA I have no responsibility to name the driver to a private firm and have decided not to, in the knowledge no undue inference can be drawn and knowing that they have failed to comply with the POFA 2012 to hold me liable as keeper.'

    But a Judge might not be impressed and it may be 'cleaner' and easier for you to approach the hearing with no agenda or worries about saying something wrong. Depends on how you feel as a hearing approaches, at the time of preparing your Witness Statement.

    Id probably rather defend it as the driver to prevent appearing misleading to be honest, i dont see the point in representing as the owner as they are for sure to ask who was driving! When do i do statements etc? I assumed at this stage i just submit that defence document?
  • Coupon-mad
    Coupon-mad Posts: 130,659
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    You need to read bargepole's post about what happens when, how to set out a defenece with ehadings and 1.5 line spaces etc., plus info about the next stages and which boxs to tick/who to send what to. It's linked in post #2 of the NEWBIES thread about knowing what to do when with a small claim case.
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  • infernouk
    infernouk Posts: 166 Forumite
    Coupon-mad wrote: »
    You need to read bargepole's post about what happens when, how to set out a defenece with ehadings and 1.5 line spaces etc., plus info about the next stages and which boxs to tick/who to send what to. It's linked in post #2 of the NEWBIES thread about knowing what to do when with a small claim case.

    Thanks i have removed the point relating to POFA as you suggested, i have copied the formatting of the bargepole defence so it looks the same layout wise. I was concerned that due to the spacing and margin, the document is now 5 pages long with 21 points, is this too much? I also want it to be accurate to myself as the driver, its going to be easier to converse with legitimacy that way,,,

    A final version can be seen below...

    I assert that I am not liable to the Claimant for the sum claimed, or any amount at all, for the following reasons:

    1. Redacted

    2. The vehicle was at all times when at the residence, properly parked and it is believed it is common ground that it was neither causing an obstruction nor was it unauthorised, being parked at the permission of a permitted resident.

    3. It is denied that any 'parking charges or indemnity costs' (whatever they might be) are owed and any debt is denied in its entirety.

    4. This is a completely unsubstantiated and inflated three-figure sum, vaguely and incoherently adduced by the claimant's solicitors. The Particulars are not clear and concise, so I have had to cover all eventualities in defending a 'cut & paste' claim.

    5. This claim merely states: ''parking charges and indemnity costs if applicable'' which does not give any indication of on what basis the claim is brought. For example, whether this charge is founded upon an allegation of trespass or 'breach of contract' or contractual 'unpaid fees'. Nor are any clear times or coherent grounds for any lawful claim particularised, nor were any details provided to evidence any contract created nor any copy of this contract, nor explanation for the vague description 'parking charges' and 'indemnity costs'.

    6. The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking for a true cause of action. HMCS have identified over 1000 similar poorly produced claims and the solicitor's conduct in many of these cases is believed to be currently the subject of an active investigation by the SRA.

    7. I believe the term for such conduct is ‘robo-claims’ which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. I have reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to my significant detriment as an unrepresented Defendant.

    8. I suggest that parking companies using the small claims track as a form of aggressive, automated debt collection is not something the courts should be seen to support.

    9. No evidence has been supplied by this claimant as to who parked the vehicle having actively ignored my prior requests for this information in written form. Under the Protection of Freedoms Act 2012 there is no presumption in law as to who parked a vehicle on private land nor does there exist any obligation for a keeper to name a driver. I choose to defend this claim as the registered keeper, as is my right.

    10. A covenant for quiet enjoyment is a standard feature in modern leases and ASTs and is implied where not expressly provided, along with rights to pass and re-pass and park, as was offered by the landlord to this tenant and the tenant's legitimate visitors. This was an integral part of the rented property as offered to the tenant at the time of signing that agreement, which this parking firm are not a party to and nor were their terms or charges a feature of the tenancy agreement.

    11. Even if there are signs put up, terms cannot be retrospectively added into a contract by a third party; a parking firm cannot disregard the rights of tenants and their visitors, delivery drivers etc. as was found by a Senior Circuit Judge, Charles Harris QC, in June 2016.

    12. Authorities to support my defence include but are not limited to the (higher court level) Appeal case heard at Oxford County Court by Senior Circuit Judge Charles Harris QC, in Jopson v Homeguard [2016] B9GF0A9E. Similar Small Claim decisions in 2016 include Pace v Mr N C6GF14F0 and Link Parking v Ms P - C7GF50J7. All three cases were brought by Gladstones for parking operators (including the original Jopson claim which went to appeal and is persuasive on the lower Courts). In all cases, it was found that the parking company could not override residents’ existing rights by requiring a permit to park and that the signs were of no consequence, due to the primacy of contract enjoyed by the Defendants. His Honour Charles Harris QC remarked in the Jopson appeal case decision that life in a resident’s block would be unworkable if visitors, delivery drivers etc. were expected to park immediately obtaining a permit (which a visitor would not have).

    13. Even if the Court is minded to consider that a visitor must display a permit there must be a reasonable 'grace period' time allowed for fetching it from the resident (which involves 4 flights of stairs and conversation) and there is no evidence that this time was allowed. Immediate ticketing or lack of a fair grace period is contrary to the IPC code of practice, being a predatory and unfair business practice.

    14. Should the Court be satisfied that there is a potential cause of action, there are no road markings or bays etc.; this is not a car park, just an unmarked cul-de-sac street, the photos shown by this claimant merely show very poorly lit signs, which would have made it impossible for a driver to read terms or learn of the parking charge buried in unremarkable small print. It seems that it was pitch black, so unlike in the far more complex case of!ParkingEye Ltd v Beavis![2015] UKSC 67, the driver cannot be bound by terms on a sign never seen, parking on an unmarked residential road. It is trite law on-street (had this been Council highway, where the TMA2004 applies as well as the Highway Code) that no markings suggest no restrictions.

    15. So, if an operator wishes to fairly and prominently alert drivers to a parking charge and other onerous terms, they must mark the road and ensure the signs are clear, lit and in large lettering. Lord Denning's 'Red Hand Rule' applies; a driver cannot be bound by terms not brought to his/her attention in the clearest way, such that the driver would be bound to have seen and read the terms and learnt of the 'parking charge'. This was certainly not the case.

    16. Even if the court believes the signs were possible to see in the dark, the wording is prohibitive, it states you must display a permit to park, forbidding parking otherwise. It is therefore unable to offer a legitimate contact allowing parking for £100 if the driver decides to park. As Seen in PCM vs Bull (2016) where PCM used similar signage and the verdict summarised that all the sign 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. This verdict has been reached in regard to PCM signage of this nature at numerous other claim hearings, IPC signage does not create a contract as the notice is forbidding.

    17. This case can be easily distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes. Charges cannot exist merely to punish drivers. This claimant has failed to show any comparable 'legitimate interest' to save their charge from Lord Dunedin's four tests for a penalty, which the Supreme Court Judges found was still adequate in less complex cases, such as this allegation.

    18. The alleged debt(s) as described in the claim are unenforceable penalties, being just the sort of unconscionable charges exposed as offending against the penalty rule, in ParkingEye Ltd v Beavis
    19. It is not believed that the Claimant has incurred additional costs - be it legal or debt collector costs or even their unlawful, fixed sum card surcharge for payments - and they are put to strict proof that they have actually incurred and can lawfully add an extra sums and that those sums formed part of the permit/parking contract formed with the resident in the first instance.

    20. 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.

    21. I request the court strike out the claim for reasons cited by District Judge Cross of St Albans County Court on 20/09/16 where a similar claim was struck out without a hearing, due to Gladstones' template particulars for a private parking firm being 'incoherent', failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''.
  • The_Deep
    The_Deep Posts: 16,830 Forumite
    Love it, I hope that you are counterclaiming for unreasonable behaviour.
    You never know how far you can go until you go too far.
  • infernouk
    infernouk Posts: 166 Forumite
    The_Deep wrote: »
    Love it, I hope that you are counterclaiming for unreasonable behaviour.

    i hadnt really thought that far ahead, didnt want to push my luck! is it possible to file retrospectively after the verdict?
  • DoaM
    DoaM Posts: 11,863
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    Is Jopson v Homeguard persuasive or binding on small claims in the county court?
  • DoaM
    DoaM Posts: 11,863
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    infernouk wrote: »
    i hadnt really thought that far ahead, didnt want to push my luck! is it possible to file retrospectively after the verdict?

    Yes it is. But you can also file a counterclaim as part of your defence. As minimum you should be seeking your costs, and try to push for enhanced costs (can't remember the proper term) for the claimant's unreasonable behaviour.
  • safarmuk
    safarmuk Posts: 648 Forumite
    Id probably rather defend it as the driver to prevent appearing misleading to be honest, i dont see the point in representing as the owner as they are for sure to ask who was driving! When do i do statements etc? I assumed at this stage i just submit that defence document?

    Then this seems a little out of place doesn't it? Did you mean to leave this in or have you changed your mind.
    9. No evidence has been supplied by this claimant as to who parked the vehicle having actively ignored my prior requests for this information in written form. Under the Protection of Freedoms Act 2012 there is no presumption in law as to who parked a vehicle on private land nor does there exist any obligation for a keeper to name a driver. I choose to defend this claim as the registered keeper, as is my right.

    Well written though. Hope it works, will be keeping my eye on this case.
  • Coupon-mad
    Coupon-mad Posts: 130,659
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    DoaM wrote: »
    Is Jopson v Homeguard persuasive or binding on small claims in the county court?

    Persuasive.
    i hadnt really thought that far ahead, didnt want to push my luck! is it possible to file retrospectively after the verdict?

    http://forums.moneysavingexpert.com/showthread.php?p=72221635#post72221635

    HTH
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