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  • FIRST POST
    • DS90
    • By DS90 19th Nov 16, 10:41 PM
    • 18Posts
    • 18Thanks
    DS90
    UK CPM PCN received
    • #1
    • 19th Nov 16, 10:41 PM
    UK CPM PCN received 19th Nov 16 at 10:41 PM
    Hi,

    Driver received a PCN from UK Car Park Management (IPC firm) last week for ‘not displaying a valid permit’. This is the second time receiving one of these (won the previous thanks to the wonderful advice on this forum) so I'm largely comfortable with the process. I have gone through the Newbies thread again and read around the key current issues (such as appealing to IAS or not), so I’m fairly clear on what to do next. I’m hoping somebody could clarify a couple of things, though.

    The PCN states that appeals must be made within 21 days, rather than the usual 28, so is the template letter in the Newbies thread actually an appeal or is it a kind of pre-emptive defence against the unfair nature of the IPC’s process? Because the template doesn’t explicitly state that this an appeal. I appreciate it says to use the letter verbatim, but if it is acting as an appeal, is it worth including extra defences? I know it will be immediately rejected, but my thinking is that I want to deter them from ever pursuing this in court, which I know is unlikely but I’d rather reduce the risk. I ask because the driver had express permission from the owner of the space to use it. It is a small residential building with allocated parking, so presumably the space’s owner has a legal prerogative that overrides the PPC’s ‘contract’? I found this issue in another thread and wonder if the same applies in my case (can't provide the url as a newbie, but the thread title is 'CPM Parking Charge Notice - no parking outside of a designated area'). The template also, though it contends that no keeper liability has been established, doesn't explicitly state that this is on behalf of the keeper. Is this relevant in improving the chances that they forget the NTK?

    Also, like the example above, the driver is not the registered keeper, but is it okay to proceed with contact with the PPC acting as the keeper, as per the advice from Fruitcake in that thread? And should the driver use their name and address or the registered keeper’s?

    Lastly, the PPC in question is no longer a listed member of the BPA, but they continue to display the BPA’s logo on both the PCN and their website. Can I get them into trouble with the BPA/DVLA for this? They also have the IPC logo on the PCN, but it has the wrong name: it says ‘Independent Parking Committee’ as opposed to ‘International Parking Community’, which is the acronym used on the IPC’s website. They are listed as members on the website, though. Any action that can be taken on that?

    Apologies if I've got the wrong end of the stick regarding the template letter. Many thanks for any advice.
Page 1
    • pappa golf
    • By pappa golf 19th Nov 16, 10:56 PM
    • 7,648 Posts
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    pappa golf
    • #2
    • 19th Nov 16, 10:56 PM
    • #2
    • 19th Nov 16, 10:56 PM
    bpa is made up of 2 sections , corporate members and members of the ATA , signs for each are different , round logo for ATA strip logo for corporate

    so they are not telling lies , just not explaining thing properly ,, forget this aspect
    • Coupon-mad
    • By Coupon-mad 19th Nov 16, 11:11 PM
    • 51,537 Posts
    • 65,144 Thanks
    Coupon-mad
    • #3
    • 19th Nov 16, 11:11 PM
    • #3
    • 19th Nov 16, 11:11 PM
    Yes by all means go to town with your own version of a challenge hitting them with all sorts, including the Jopson case (definitely) telling them they have no cause of action and to 'bring it on' if they believe they have a case and not to incur any further costs as the keeper will not be liable for them, let alone the alleged 'parking charge'. Do this BEFORE day 21, soon as you like.

    You sound like someone who can stray from the template and still not say who was driving. I don't use my own templates either, not at first appeal stage; I tailor them for friends to try to see PPCs off. Go get them!

    Use ONLY the registered keeper's name and address.
    Lastly, the PPC in question is no longer a listed member of the BPA, but they continue to display the BPA’s logo on both the PCN and their website. Can I get them into trouble with the BPA/DVLA for this? They also have the IPC logo on the PCN, but it has the wrong name: it says ‘Independent Parking Committee’ as opposed to ‘International Parking Community’, which is the acronym used on the IPC’s website. They are listed as members on the website, though. Any action that can be taken on that?
    Yup, you can send a complaint to the IPC but they make it VERY difficult to do that, offering no email address and if you want to 'make a complaint' you have to complain to the operator first then complain to the IPC, giving your inside leg measurement and the shirt off your back!

    Not sure I would recommend it. I'd stick with a major attack appeal using the Jopson case:

    http://forums.moneysavingexpert.com/showthread.php?t=5553131

    HTH
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • DS90
    • By DS90 29th Nov 16, 5:35 PM
    • 18 Posts
    • 18 Thanks
    DS90
    • #4
    • 29th Nov 16, 5:35 PM
    • #4
    • 29th Nov 16, 5:35 PM
    Thank you both for your helpful and speedy replies. I'll forget about the logos, doesn't seem worth the hassle.

    I've drafted an appeal to send to the PPC that doesn't use the IPC template in the Newbies thread. It's very long so I understand if nobody has time to read it for any suggestions! But I'll post it here anyway, just in case somebody can offer any advice/observes any mistakes. The intention is to throw enough at them so as to deter them from any further action. If this doesn't seem like a good idea I can revert to just following the template model.

    Dear Sir/Madam,

    Please accept this letter as my formal challenge to this ‘PCN’ as keeper of the abovementioned vehicle. I fully deny liability for this charge based on the following:

    1. The driver was given express permission to use the parking bay in question by its current occupier, the tenant. An unfettered right to park in this bay is bestowed upon the tenant by their lease agreement, without the requirement to display a permit.
    a. The tenant’s contract cannot be unilaterally altered by one party – the operator – without their permission. This is a well-established legal principle. Therefore, the lease agreement constitutes primacy of contract over any signs that may have been erected by the operator.
    2. There is a large body of case law that evidences the primacy of the tenant’s lease agreement over an operator’s signs:
    a. Saeed v Plustrade Ltd (2001): the resident’s ‘easement to park’ was established at the Court of Appeal.
    b. Jopson v Homeguard (2016): Miss Jopson successfully appealed her liability for a parking charge issued by Homeguard Services, arguing on the basis that the charge was incompatible with the terms of the lease which gives residents (and their visitors, delivery drivers, etc.) easements and specific rights that supersede any signs erected by a parking management operator.
    i. It was also established in this case that the ruling of ParkingEye v Beavis (2015) does not apply to residential parking, and therefore the doctrine prohibiting an operator from imposing a penalty is still relevant.
    1.
    Therefore, the charge in question is likely to be such a penalty unless there is found to be commercial justification (which, in a residential car park, is impossible) or it is found to be a genuine pre-estimate of loss (which is similarly implausible in a residential car park where the right to park is bestowed upon residents).
    2. The Supreme Court found that £85 was not a genuine pre-estimate of loss in the Beavis case as there was no direct loss to the parking company. Therefore, commercial justification for charging residents and their visitors to park in their own spaces is untenable and unconscionable.
    3. There can be no legitimate interest in issuing charges to residents or their permitted visitors, and so the Beavis ‘test’ is not satisfied. Any such charge should be deemed a penalty.
    c.
    Pace Recovery and Storage v Mr N. (2016): it was found that the parking company could not override the tenant’s right to park by requiring a permit to do so.
    i.
    District Judge Coonan concluded that Mr N.’s tenancy agreement granted the right to park without the requirement to display a permit: ‘What Pace Recovery is seeking to do is, unilaterally outside the contract, restrict that right to only when a permit is displayed. Pace Recovery cannot do that.’
    ii. Mr N. also won a previous case, wherein the Judge ruled that his tenancy agreement gave him an unfettered right to use his allocated parking space and that the terms could not be varied by PPC signage. This demonstrated Mr N.’s right to park with no requirement to display a permit.
    d.
    Link Parking v Ms P. (2016): it was also found that the PPC could not override the tenant’s right to park by requiring a permit.
    i.
    As land occupier, Ms P. was granted the power to manage the space, which does not include the need to display a permit.
    ii. Justice Louise Metcalf, presiding, ruled that the land occupier could not be penalised for parking in her own space.
    3. If primacy of contract is disputed, then the signage on site needs to be plentiful and easily visible, or no contract can be entered into knowingly by the driver. In Link Parking v MR L (2016) it was found that the lack of entrance signage at a residential site and poor visibility of other signs was cause for dismissal.
    a.
    Furthermore, a PPC cannot simply refer to a clause in a lease agreement that allows the lease to be varied; they must prove that the lease was so varied and in collaboration with the lessor. The operator is not a party to the lease and cannot arbitrarily vary it.
    4. Paper permits are an outdated an inefficient way of managing a residential car park. They do not take into account the needs of residents, who may have to swap cars at short notice, or who may bestow permission on another to use their space.
    a.
    Responsible parking companies will either use a modern, electronic system that does not require paper permits, or will cancel charges accidentally issued to residents or their guests. Why should any reputable parking management company refuse to cancel a parking charge wrongly issued to a resident or their visitor?
    i.
    Therefore, I contend that the purported parking restrictions are not in place to deter trespassers but to extort money from residents and their legitimate visitors.
    5. No keeper liability has been established in line with the stipulations of Schedule 4 of the POFA 2012.
    a.
    The NTD is also non-compliant with the stipulations of paragraph 7(2)(a), which outlines that ‘the notice must specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.’ The ‘PCN’ in question fails to adhere to this.
    6. It is my understanding that you do not own the car park and you have provided no information about your policy with the landowner to issue such a charge on their behalf. No proof of your authority to operate on this land has been evidenced. You are required to supply this under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. Clear information about the process for complaints, including a geographical address of the landowner, has been omitted.
    a.
    Should this charge be proven invalid, you will have breached data protection laws by acquiring my personal information from the DVLA. If this is the case, I am within my right to complain to the DVLA that you are issuing tickets on land without the right to do so.
    i.
    In light of this, I would draw your attention to the cases of Vidal-Hall v Google Inc., which provides authority that the misuse of personal data is a tort, and Halliday v Creation Consumer Finance Ltd, which outlines that a reasonable sum for compensation in such an instance would be £750.
    7. The charge of £100 in addition to £1.50 for card payment exceeds the appropriate amount specified by law. The ‘PCN’ issued to the driver clearly states that card payments are subject to a £1.50 processing fee; such arbitrary extra charges are prohibited under the POFA 2012, the Consumer Contracts (Information, Cancellation & Additional Payments) Regulations 2013, and the Consumer Rights (Payment Surcharges) Regulations 2012.
    a.
    Schedule 4, paragraph 4(5) of the POFA 2012 states that ‘the maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper under paragraph 8(2)(c) or (d) or, as the case may be, 9(2)(d) (less any payments towards the unpaid parking charges which are received after the time so specified).’
    b. Regulation 40(1) of the CC(ICAP) 2013 states that ‘under a contract between a trader and a consumer, no payment is payable in addition to the remuneration agreed for the trader’s main obligation unless, before the consumer became bound by the contract, the trader obtained the consumer’s express consent.’ The driver did not give express consent and certainly not before they were bound by the inferred contract.
    c. Section 4 of The Consumer Rights (Payment Surcharges) Regulations 2012 prohibits excessive charges: ‘A trader must not charge consumers, in respect of the use of a given means of payment, fees that exceed the cost borne by the trader for the use of that means.’
    i.
    Such interchange fees vary significantly based upon card brand, region, the type and size of the accepting merchant, and the type of transaction. Therefore, £1.50 is not a true cost for accepting a payment by credit or debit card. The cost will differ based upon the amount paid (£60 or £100 should attract different card payment charges), as well as for debit cards versus credit cards.
    d.
    In addition, the 0845 number provided breaches Regulation 41(1) of the CC(ICAP) 2013, which states: ‘Where a trader operates a telephone line for the purpose of consumers contacting the trader by telephone in relation to contracts entered into with the trader, a consumer contacting the trader must not be bound to pay more than the basic rate.’ Such a breach can be reported to Trading Standards.
    i.
    Moreover, the omission of call costs breaches Ofcom regulations that took effect on 1st July 2015, which can be reported to the ASA.
    As the driver has not been identified – and will not be – I contend that you have failed to establish keeper liability. For the avoidance of any doubt, I do not consent to my data being shared or processed by you or your agents. Therefore, to continue to process my data now that you have exhausted your only DVLA-allowed purpose (i.e., to invite me to name the driver, which I decline outright) would be wholly unreasonable and contrary to the principles of Data Protection. To share, sell, store or process my data at all beyond this point, now that you are aware that you have no further excuse nor reasonable cause, will be data misuse and I will report you to the Information Commissioner.

    Therefore, do not send debt collector letters and do not add any costs that would amount to a thinly-veiled attempt at ‘double recovery’, which is specifically prohibited by the POFA 2012, Schedule 4. I shall not respond to debt collectors and to involve a third party would be a failure to mitigate your costs. Such action would also constitute deliberate and knowing misuse of my data, as outlined above.
    • Coupon-mad
    • By Coupon-mad 30th Nov 16, 10:04 PM
    • 51,537 Posts
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    Coupon-mad
    • #5
    • 30th Nov 16, 10:04 PM
    • #5
    • 30th Nov 16, 10:04 PM
    Yes, you can certainly strike back with that. Does no harm and shows yourself not to be a victim.

    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • DS90
    • By DS90 30th Jun 17, 2:11 PM
    • 18 Posts
    • 18 Thanks
    DS90
    • #6
    • 30th Jun 17, 2:11 PM
    • #6
    • 30th Jun 17, 2:11 PM
    Hello again,

    So the LBC from Gladstones (real Gladstones, the fake DRP acting as Gladstones has been and gone) has arrived this week. The format appears to be identical to the many others on similar threads, even the consistently arbitrary amount of £160 (the previous 'Gladstones' letter only requested £149, funny that...!). I'm assuming that the arrival of this particular letter means that a court claim is fairly inevitable?

    A very quick recap: PCN issued last November while driver visiting friend in residential flats; permit holders only; driver parked in friend's space with permission; all 3 occupants of flat happy to provide witness statements demonstrating this explicit permission; their lease agreement makes no mention of a permit requirement to park; so keeper sent a fairly robust appeal citing various residential 'own space' cases, etc. Naturally this was rejected and the usual postal drivel followed.

    So I've done the usual reading on the Newbies thread, read most of the links for Parking Prankster and the various other similar threads. My impression so far is that the response to the LBC at this stage should mostly be restricted to a defensive legally-oriented response - as per the examples of Gan and LoadsofChildren123 - rather than a reiteration of my particular circumstances and defence?

    Or, should I beef up their templates with my own specific arguments? In particular the permission to park there, therefore not trespassing, poor signage, primacy of contract, etc.?

    Also, I feel that I have a potential ace up the sleeve should they push this further... When I sent my initial appeal within the prescribed timeframe, I received a prompt response from CPM stating the following:

    Dear Sir/Madam,

    PCN xxx

    I am writing to inform you that we are unable to accept your appeal. Appeals should be made by the driver of the vehicle which received the PCN.

    If they wish to appeal, please ensure the information below is submitted within the appeal;
    Full name of the driver of the vehicle at the time of the
    contravention (Initials will not suffice)
    Serviceable address for the driver
    PCN number
    Vehicle Registration
    Grounds of appeal

    Usual rubbish about payment in 28 days and potential litigation, etc. etc...


    Surely this breaches some serious regulations for the parking appeals process? They received the perfectly legitimate appeal from the keeper of the vehicle, but they did not provide the IAS as a follow up to rejecting the appeal. This must be a violation of the legally prescribed appeals process?

    Anyway, just wanted to check whether I should stick to a fairly simple template at this stage or to reiterate my defences to them?

    Many thanks as ever.
    • Coupon-mad
    • By Coupon-mad 2nd Jul 17, 12:55 AM
    • 51,537 Posts
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    Coupon-mad
    • #7
    • 2nd Jul 17, 12:55 AM
    • #7
    • 2nd Jul 17, 12:55 AM
    Yes that was norty of them and can be mentioned in defence - a PPC cannot insist that the name of the driver is supplied in any appeal. The DVLA reminded PPCs of this more than once.

    Re the LBCCC, if Gladstones have not responded to your last humdinger, why not just reattach a copy of it with a covering letter reminding G's of the overriding objective and their duty to the court, to try to resolve issues and supply all information prior to what is supposed to be a 'last resort' of filing a claim.

    Give them, say, 14 days to provide evidence to show that their client can rode roughshod over residents' rights.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • DS90
    • By DS90 2nd Jul 17, 8:54 PM
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    • 18 Thanks
    DS90
    • #8
    • 2nd Jul 17, 8:54 PM
    • #8
    • 2nd Jul 17, 8:54 PM
    Fantastic, I will do just that. Thank you!
    • DS90
    • By DS90 14th Jul 17, 1:37 PM
    • 18 Posts
    • 18 Thanks
    DS90
    • #9
    • 14th Jul 17, 1:37 PM
    • #9
    • 14th Jul 17, 1:37 PM
    Hi again. Claim form arrived in the post today. I've got about twenty tabs open trying to go through the relevant information and examples. I've got the Dropbox open about filling out the MCOL, so assuming that is still the correct and first thing to do I'll do that today; I do not enter any defence at this point, is that correct?

    The one thing that concerns me is that throughout all of this my mother, who is the registered keeper of the vehicle, has been addressed as the defendant (the whole family is insured on the car, so no acknowledgement as to who the actual driver was!). Because I've dealt with one of these before, and because I'm 27 and doing a Ph.D., and so make evidence-based arguments as a living, while she is a part-time, 62-year-old pre-school teacher, I have been doing all of the responses. I've seen on another thread where Coupon-mad has said that a big 'no no' is the driver thinking they can defend the claim in the keeper's name. That makes sense, of course, but can I, in this instance, act in any way as my mother's legal representation? (Again, no acknowledgement as to who the driver was!). I honestly cannot see her defending this in front of the judge, whereas it doesn't bother me at all; plus, I'm the one who has done all of the reading on the subject.


    Secondly, as I might as well get ahead of the game, I'm putting below a copy of my response to the LBCCC, which I would imagine will act as the general template of my defence, amended and improved to include all of the general defences that are recommended on here. Gladstones responded to my letter only in reference to accusations of DPA 1998 breaches, trying to indemnify themselves of any guilt in this matter. I have sent them back another letter disagreeing with this, which I have also copied in down the bottom. It's obviously too late as they've already filed the claim, but figure I might as well include it!

    Sorry it's a very long letter, so anyone who has the time to read through it all and offer any advice, I'm enormously grateful.

    Created a Dropbox link instead to save space: https://www.dropbox.com/s/pyvq4qscj4i70qc/Letter%20to%20Gladstones%20Data%20Protection%20Act .docx?dl=0

    https://www.dropbox.com/s/u0mixq14apv1zmn/Parking%20LBC%20response.docx?dl=0
    Last edited by DS90; 14-07-2017 at 1:42 PM.
    • Coupon-mad
    • By Coupon-mad 14th Jul 17, 1:47 PM
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    Coupon-mad
    I've got the Dropbox open about filling out the MCOL, so assuming that is still the correct and first thing to do I'll do that today; I do not enter any defence at this point, is that correct?
    Yes, in Mum's name though.


    can I, in this instance, act in any way as my mother's legal representation?
    Yes, as her Lay Rep, but she MUST attend too. See other cases where posters have won like that.
    Last edited by Coupon-mad; 12-08-2017 at 12:09 PM.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • Umkomaas
    • By Umkomaas 14th Jul 17, 1:51 PM
    • 15,542 Posts
    • 24,257 Thanks
    Umkomaas
    I do not enter any defence at this point, is that correct?
    Correct. The defence is developed after your AOS. It is to be submitted by the deadline, usually 33 days after the 'Date of Issue' shown on the claim form (provided your AOS was sent within the first 14 days).

    but can I, in this instance, act in any way as my mother's legal representation? (Again, no acknowledgement as to who the driver was!). I honestly cannot see her defending this in front of the judge, whereas it doesn't bother me at all; plus, I'm the one who has done all of the reading on the subject.
    You can do all the work on this up to and including the day before any court appearance without seeking permission/authorisation from anyone provided it is done in your mother's name and with her signing the documents (those which require a signature) - use a squiggle for a signature, not her 'real' one.

    On the day of any court case you would represent her as her Lay Representative, she would have to be present, but you would be able to do most of the taliking for her. You would need to notify the judge before you start of your intention to act as a LR. Some judges can be crotchety about this, so you need to carry chapter and verse to show them of your right to perform the function. During the hearing the judge might address questions directly to your mother which she would likely need to answer.

    The other 'representative' role in court would be a Mckenzie Friend, but this would only be in the capacity of assisting your mother by passing relevant documents to her as she defends herself; you would not ordinarily be allowed to speak on her behalf, but sometimes small claims court judges allow some input.

    Do some Google searches on LR and MF to understand your rights and the official differences between each.
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • DS90
    • By DS90 14th Jul 17, 2:54 PM
    • 18 Posts
    • 18 Thanks
    DS90
    Thanks both for the prompt responses. It appears that LR is the only course of action, as an MF has to demonstrate no interest in the case, which in this instance I'd imagine isn't applicable. There doesn't seem to be anything preventing me from acting as an LR, provided the defendant attends the hearing, as you've said.

    Can you only issue counter-claims at this stage in your initial response, or can you do so later on? I've threatened them with a counter claim regarding DPA breach, as they've offered no proof that a contract existed between us, so they had no right to use my data?
    Last edited by DS90; 14-07-2017 at 2:58 PM.
    • Coupon-mad
    • By Coupon-mad 14th Jul 17, 3:39 PM
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    Coupon-mad
    You can only counter claim at this stage for £25 fee (later would be too much money to add it).
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • DS90
    • By DS90 14th Jul 17, 5:04 PM
    • 18 Posts
    • 18 Thanks
    DS90
    Thank you. I've now found the relevant post on the Newbies thread about counter-suing regarding the DPA, so won't worry about that now!
    • DS90
    • By DS90 8th Aug 17, 6:03 PM
    • 18 Posts
    • 18 Thanks
    DS90
    The first draft of my defence: https://www.dropbox.com/s/6xowd1w4eunoox6/Parking%20Defence.docx?dl=0

    Please let me know if the link doesn't work! It's huge, so I didn't want to put it on here because of formatting hassle. Also, because of its length I appreciate it might be impossible for anyone to fully go through it, so any and all criticism is appreciated.

    Hopefully I'm somewhere on the mark with it, I've amalgamated things from most of the recommended defences in the Newbies thread.
    • Umkomaas
    • By Umkomaas 8th Aug 17, 9:04 PM
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    • 24,257 Thanks
    Umkomaas
    It's huge, so I didn't want to put it on here because of formatting hassle.
    It certainly is. Over seven and a half thousand words. I'd be most concerned about how a judge might react to this mahoosive tome.

    Really, is this proportionate? Formatting hassle, in my view, should be the least of your concerns. You really need the judge, as best as possible, to be on your side.

    See what others think.
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • Johnersh
    • By Johnersh 8th Aug 17, 11:21 PM
    • 655 Posts
    • 1,243 Thanks
    Johnersh
    The link is to a document that is 14 pages long. That's fine for a High Court claim, but it is a response to a few lines of particulars.

    Umkomaas is right, they are prolix and may not be read as fully as you'd like.

    I leave you with the words of Lord Woolf who wrote the civil procedure rules. This was in McPhilemy v Times Newspapers soon after the CPR was brought in. Although it refers to particulars, the same must apply to defences as that too is a 'statement of case.'

    As well as their expense, excessive particulars can achieve directly the opposite result from that which is intended. They can obscure the issues rather than providing clarification.
    • Redx
    • By Redx 8th Aug 17, 11:25 PM
    • 16,567 Posts
    • 20,718 Thanks
    Redx
    I believe that bargepole recently wrote that a couple of pages is all that is required , setting out the basis to reject the claim and what the defence will be based on

    http://forums.moneysavingexpert.com/showthread.php?p=72412889#post72412889

    from http://forums.moneysavingexpert.com/showthread.php?p=72412889

    the evidential stage is after DQ , if they pay the next stage fee to MCOL

    you cannot seriously expect forum members to dissect several thousand words, never mind a judge in a small claims court
    Last edited by Redx; 08-08-2017 at 11:36 PM.
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
    • DS90
    • By DS90 9th Aug 17, 8:27 PM
    • 18 Posts
    • 18 Thanks
    DS90
    Thanks all for the feedback, which is much appreciated as ever.

    Here's round two, severely redacted (if it's still too long perhaps someone could just peruse the major numbered points and give advice on which can be cut, as I of course understand that people don't have time - and don't expect them - to read everything thoroughly):

    Statement of Defence:
    I am XXX, defendant in this matter. I wholly deny liability for the entirety of the claim for the following reasons:

    1. The driver was allowed the right to park by the current occupier and leaseholder, whose tenancy agreement forms primacy of contract.
    a. An unfettered right to park in this bay is bestowed upon the tenants by their lease agreement, with no requirement to display a permit.
    b. The operator’s signs cannot override the existing rights enjoyed by residents and their visitors, as was found in the Appeal case decided by His Honour Judge Harris QC at Oxford County Court, in case number B9GF0A9E: ‘JOPSON v HOME GUARD SERVICES’.
    i. In the Jopson appeal it was also held that signs added later by a third-party parking firm are of no
    consequence to authorised visitors to premises where other rights prevail and supersede any
    alleged new ‘parking contract’.
    ii. In the Jopson appeal it was held that ‘PARKINGEYE LTD v BEAVIS’ (2015) UKSC 67 had no
    application to a situation involving drivers with a right and expectation to be entitled to park under
    the grants flowing from a lease.
    c. ‘SAEED v PLUSTRADE LIMITED’ (2001) EWCA Civ 2011: On appeal it was held that easements enjoyed under the lease could not be restricted retroactively.
    d. Pace Recovery and Storage v Mr N. (2016): it was found that the parking company could not override the tenant’s right to park by requiring a permit to do so.
    i. District Judge Coonan concluded that Mr N.’s tenancy agreement granted the right to park without the requirement to display a permit.
    ii. Mr N. also won a previous case, wherein the Judge ruled that his tenancy agreement gave him an unfettered right to use his allocated parking space and that the terms could not be varied by PPC signage.
    e. Link Parking v Ms P. (2016): it was found that the PPC could not override the tenant’s right to park by imposing the requirement to display a permit.
    i. As land occupier, Ms P. was granted the power to manage the space, which does not include the need to display a permit.
    f. The claimant is not a party to the tenant’s lease and cannot arbitrarily vary it.

    2. If primacy of contract is disputed, then the signage on site needs to be plentiful and easily visible, or no contract can be entered into knowingly by the driver.
    a. In Link Parking v MR L (2016) it was found that the lack of entrance signage at a residential site and poor visibility of other signs was cause for dismissal.
    b. The signage on the site in question was demonstrably unfit for purpose at the time in question in the formation of a contract with a motorist.
    i. At the time of the alleged infraction signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation.
    ii. They do not comply with the requirements of the Code of Practice of the Independent Parking Committee’s Accredited Operators Scheme, an organisation to which the claimant’s client was a signatory at the time of the purported infraction.
    c. Such is the complexity and density of the text on the claimant’s signs that the most onerous term – the £100 parking charge notice – is buried amongst a mass of small print and does not even begin to comply with Denning MR’s “Red Hand Rule”.

    3. The defendant was the registered keeper of the relevant vehicle at the time of the alleged infraction; the defendant was not the driver on the date and time mentioned in the particulars and the claimant is put to strict proof in this respect.
    a. The claimant has offered no evidence as to the identity of the driver at the time of the purported infraction on any occasion.
    b. The defendant has no liability for the claim, as they are the keeper of the vehicle and the claimant must rely upon the strict provisions of the Protection of Freedoms Act 2012 (POFA) in order to hold the defendant responsible for the driver’s alleged breach.
    c. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the claimant must demonstrate that there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort.
    d. Further, the claimant must also demonstrate that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
    a. There is no presumption in law that the keeper was the driver and nor is a keeper obliged to name the driver to a private parking firm. This was confirmed in the POPLA Annual Report 2015 by the POPLA Lead Adjudicator and barrister, Henry Greenslade, when explaining the POFA 2012 principles of ‘keeper liability’ as set out in Schedule 4:
    i. ‘There is no “reasonable presumption” in law that the registered keeper of a vehicle is the driver […] Operators should never suggest anything of the sort.’
    b. The claimant may seek to rely on a questionable interpretation of the judgement in ELLIOTT v LOAKE and endeavour to persuade the court that the case created a precedent amounting to a presumption that the registered keeper is the driver where no other evidence or admission exists.
    i. No such precedent was created. Mr Loake was found guilty on evidence produced to a criminal standard, not simply on a balance of probabilities as is the case in the current claim.

    4. The claimant has not provided adequate detail in the particulars of claim for the defendant to file a full, relevant defence. In particular, the contract which has allegedly been breached has not been provided.
    a. A parking charge can be issued for trespass, breach of contract, or a contractual charge. All of these are treated differently in law and require a different defence. The wording of any contract will naturally be a key element in this matter, and a copy of the alleged contract has never been provided to the Defendant.
    b. The claimant has disclosed no cause of action to give rise to any debt.
    c. The claimant has given no indication of the nature of the alleged charge in the particulars of claim.
    d. The particulars of claim contain no details and fail to disclose a reasonable cause of action, which would enable the defendant to prepare a specific defence, in full.
    i. It is simply stated that the debt relates ‘to parking charges’, which offers no indication of the basis for which a claim is being brought. There is no reference to why the charge arose, what the original charge was, what the alleged contract denoted, nor anything which could be considered a fair exchange of information.
    e. Multiple private parking claims brought by Gladstones have been struck out due to deficient and incoherent particulars of claim, which are demonstrably a templated format produced and disseminated en masse.

    5. I charge the claimant with failure to make proper attempts to resolve the dispute outside of court. The claimant has repeatedly ignored reasonable requests and challenges, as well as a detailed appeal stating that the driver had explicit permission from the tenant and a tenancy agreement demonstrating the invalidity of the assertion that a permit is required to park on this land.
    a. UKCPM Ltd denied the defendant any means of ADR, which is a legal necessity. The defendant received a letter, dated 2nd December 2016, which showcases an undeniable attempt to manipulate the driver’s identity from the keeper. This letter ignores the previously submitted appeal and fails to offer the legally prescribed requirement of ADR, which, if UKCPM Ltd decided to reject the appeal, it should have offered at that stage.

    6. The claimant has not complied with pre-action protocol as outlined under the Practice Direction. The particulars of claim fail to comply with Civil Procedure Rule 16.4 and Practice Direction 16, paragraph 7.3 CPR 16.4 states that
    a. Particulars of claim must include –
    i. A concise statement of the facts on which the claimant relies
    ii. If the claimant is seeking interest, a statement to that effect and the details set out in paragraph (2)

    7. Practice Direction 16, paragraph 7.3 states that
    a. Where a claim is based upon a written argument:
    i. A copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing, and
    ii. Any general conditions of sale incorporated in the contract should also be attached (but where the contract is or the documents constituting the agreement are bulky this practice direction is complied with by attaching or serving only the relevant parts of the contract or documents).

    8. The particulars of claim fail to comply with Practice Direction 22, paragraphs 3.7-3.10
    a. 3.7 Where a party is legally represented, the legal representative may sign the statement of truth on his behalf. The statement signed by the legal representative will refer to the client’s belief, not his own. In signing he must state the capacity in which he signs and the name of his firm where appropriate.
    b. 3.8 Where a legal representative has signed a statement of truth, his signature will be taken by the court as his statement:
    i. That the client on whose behalf he has signed had authorised him to do so,
    ii. That before signing he had explained to the client in signing the statement of truth he would be confirming the client’s belief that the facts stated in the document were true, and
    iii. That before signing he had informed the client of the possible consequences to the client if it should subsequently appear that the client did not have an honest belief in the truth of those facts (see rule 32.14).
    c. 3.9 The individual who signs a statement of truth must print his full name clearly beneath his signature.
    d. 3.10 A legal representative who signs a statement of truth must sign in his own name and not that of his firm or employer.

    9. The defendant asks that the court orders further and better particulars of claim and asks leave to amend the defence. The Defendant asks that the claimant be required to file particulars which comply with the practice directions referenced above and which include at least the following information:
    a. Whether the matter is being brought for trespass, breach of contract, or a contractual charge, and an explanation as to the exact nature of the charge and a transparent breakdown of the constituent costs which form the alleged debt
    b. A copy of any contract it is alleged was in place (e.g., copies of signage).
    c. How any contract was concluded (if by performance, then copies of signage maps in place at the time).
    d. Whether keeper liability is being claimed, and if so copies of any notice to driver/notice to keeper.
    e. Whether the claimant is acting as agent or principal, together with a list of documents they will rely on in this matter.
    f. If charges over and above the initial charge are being claimed, the basis on which this is being claimed.
    g. If interest charges are being claimed, the basis on which this is being claimed.

    10. Absent a contract with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, I have the reasonable belief that the claimant does not have the authority to issue charges on this land in their own name and that they have no right to bring action regarding this claim.
    a. The claimant is put to strict proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf.
    b. In the absence of strict proof I submit that the claimant has no cause of action.

    11. The claimant has not sufficiently explained how the sum of debt has been calculated, the conduct that gave rise to it or how the amount has climbed arbitrarily to the amount currently claimed.
    a. Schedule 4, paragraph 4(5) of the POFA 2012 states that ‘the maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper under paragraph 8(2)(c) or (d) or, as the case may be, 9(2)(d) (less any payments towards the unpaid parking charges which are received after the time so specified).’
    b. The defendant holds the reasonable belief that the claimant has not incurred the stated additional costs and it is put to strict proof that this is the case.
    c. The charge of £100 in addition to £1.50 for card payment exceeds the appropriate amount specified by law. Such arbitrary extra charges are prohibited under the POFA 2012, the Consumer Contracts (Information, Cancellation & Additional Payments) Regulations 2013, and the Consumer Rights (Payment Surcharges) Regulations 2012.

    12. The driver did not enter into an ‘agreement on the charge’, no consideration flowed between the parties and no contract was established.

    13. The claimant, their client, and other ‘debt recovery’ agents, have sent numerous threatening, misleading, disingenuous and manipulative letters.
    a. The defendant has received multiple letters that attempt to undermine the protections offered a motorist through the provisions of POFA 2012. The claimant has repeatedly attempted to manipulate or extort the identity of the driver from the defendant through the use of deceptive tactics.
    i. This contravenes the legislation of POFA 2012, the guidelines of the BPA, the IPC, and the DVLA.

    14. The defendant would like to point out that this car park can be fully distinguished from the details, facts, and location in the ParkingEye vs Beavis case.
    a. This site is a residential parking zone, reserved for the exclusive use of residents and their visitors; it does not offer a free parking license, nor is there any comparable ‘legitimate interest’ nor complex contractual arrangement to disengage the penalty rule, as ParkingEye did in the unique case heard by the Supreme Court in 2015.
    b. The ultimate ruling in that case – despite what the claimant might aver – has no bearing on the current claim, other than in assisting the defendant’s allegation that the signage on the site currently in question was woefully inadequate when compared to that of the Beavis case, which were anomalously ‘clear and prominent’, creating a contract Mr Beavis was ‘bound to have seen’.
    c. Such an observation sets the precedent that in order for a contract to be formed with a motorist, the signs must be abundant, prominent, legible, and with the most pertinent information – i.e., the £100 charge – displayed in paramount position.

    15. The claimant has flagrantly violated several of the mandatory principles of the Solicitor Regulatory Association by which all solicitors must abide.

    16. I shall be representing myself in an effort to mitigate my (and the claimant’s, in the event of a ruling in my favour) costs. Therefore, please accept any ignorance on my behalf.

    I confirm that the contents of this statement are true to the best of my knowledge and belief.

    NAME, SIGNATURE, DATE, ETC.
    Last edited by DS90; 09-08-2017 at 9:06 PM.
    • DS90
    • By DS90 10th Aug 17, 6:07 PM
    • 18 Posts
    • 18 Thanks
    DS90
    Just a cheeky bump in case anyone gets a chance to have a quick look. I'll be posting it tomorrow, Saturday at the latest. Thanks!
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