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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 2
    • Coupon-mad
    • By Coupon-mad 10th Aug 17, 11:57 PM
    • 51,507 Posts
    • 65,123 Thanks
    Coupon-mad
    Bumping this again for us to see/comment on tomorrow...!
    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 12th Aug 17, 10:39 AM
    • 18 Posts
    • 18 Thanks
    DS90
    One last ditch bump! I'll be printing and posting this afternoon. Many thanks.
    • Coupon-mad
    • By Coupon-mad 12th Aug 17, 12:18 PM
    • 51,507 Posts
    • 65,123 Thanks
    Coupon-mad
    Looks good to me. Also email a copy to the CCBC, to be sure they don't lose it (has been known).
    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.

    • Johnersh
    • By Johnersh 12th Aug 17, 1:16 PM
    • 653 Posts
    • 1,231 Thanks
    Johnersh
    DEFENCE

    Preliminary
    1. The Particulars of Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.

    2. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct. The Defendant further notes the Claimant's failure to engage in pre-action correspondence in accordance with the pre-action protocol and with the express aim of avoiding contested litigation.

    Background
    3. It is admitted that at all material times the Defendant is the registered keeper of vehicle registration mark XXZZZ which is the subject of these proceedings. The vehicle is insured with [provider] with [number] of named drivers permitted to use it.

    4. It is admitted that on [date] the Defendant's vehicle was parked at [location]

    5. It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.
    5.1. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA")
    5.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
    5.2.1. there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
    5.2.2. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
    It is not admitted that the Claimant has complied with the relevant statutory requirements.

    5.3. To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.

    Authority to Park and Primacy of Contract
    6. It is denied that the Defendant or lawful users of his/her vehicle were in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the Defendant permitting the above mentioned vehicle to be parked by the current occupier and leaseholder of [address], whose tenancy agreement permits the parking of vehicle(s) on land. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms. The lease terms provide the right to park a vehicle in the relevant allocated bay, without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle or the requirement to display a parking permit. A copy of the lease will be provided to the Court, together with witness evidence that prior permission to park had been given.

    7. The Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial.

    7. Accordingly it is denied that:
    7.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant
    7.2. there was any obligation (at all) to display a permit; and
    7.3. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

    Alternative Defence - Failure to set out clearly parking terms
    8. In the alternative, the Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to consider the imposition of a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.
    8.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate.
    8.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;
    8.1.2. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee’s ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and
    8.1.3. The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3
    8.2. The Defendant avers that the residential site that is the subject of these proceedings is not a site where there is a commercial value to be protected. The Claimant has not suffered loss or pecuniary disadvantage. The penalty charge is, accordingly, unconscionable in this context, with ParkingEye distinguished.

    9. It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking parking management. The Claimant has provided no proof of any such entitlement.

    10. It is denied that the Claimant has any entitlement to the sums sought.

    11. It is admitted that interest may be applicable, subject to the discretion of the Court on any sum (if awarded), but it is denied that interest is applicable on the total sums claimed by the Claimant.

    STATEMENT OF TRUTH
    I confirm that the contents of this Defence are true.


    **NOTES FOR TEMPLATE USERS**
    (a) if you OWN your property you should refer to the freehold and replace references to the lease
    (b) Check the reference to the IPC - not all parking companies are members of that body
    (c) Check the reference to an allocated bay - does this apply in YOUR circumstances?
    Last edited by Johnersh; 18-09-2017 at 9:46 AM. Reason: Edits to typos
    • Coupon-mad
    • By Coupon-mad 12th Aug 17, 1:42 PM
    • 51,507 Posts
    • 65,123 Thanks
    Coupon-mad
    Love that defence with headings, Johnersh, very succinct. Must add it to the NEWBIES thread examples!

    Saw one typo:

    A copy of the lease will be provided to the Court, together with witness evidence that prior permission to park had been give.
    Can you suggest (do you feel it is needed?) that we also have defence wording pointing out that even if the court finds there can be a charge, the POFA prescribes a mandatory ceiling of the sum on any compliant NTK, disallowing any double recovery. And that the full charge of £100 already includes a significant sum in profit (so, since this business model includes significant profit, there can be no damages) as was found in the Beavis case where no added costs where pursued. And the Judges stated that PE would not have been able to recover damages in any case, and their £85 charge was not a matter of damages.
    Last edited by Coupon-mad; 12-08-2017 at 1:45 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.

    • Lamilad
    • By Lamilad 12th Aug 17, 2:21 PM
    • 1,175 Posts
    • 2,334 Thanks
    Lamilad
    Brilliant, Johnersh. I'm bookmarking that one for future reference.
    • Johnersh
    • By Johnersh 13th Aug 17, 11:42 PM
    • 653 Posts
    • 1,231 Thanks
    Johnersh
    @coupon - it can be added. The defence works, but I can see why you may want to expand/clarify.

    It is implicit in 5.1 insofar as the claimant is limited to Pofa, that they can only recover what Pofa allows. At 10 and 11 the sums then claimed are denied (usually £160 by then) and interest on that.

    Under the county court rules, the interest may well accrue on £100 if awarded, but not a greater sum than they are permitted to recover!
    • maria212
    • By maria212 6th Sep 17, 10:12 AM
    • 33 Posts
    • 4 Thanks
    maria212
    DEFENCE

    Preliminary
    1. The Particulars of Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.

    2. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct. The Defendant further notes the Claimant's failure to engage in pre-action correspondence in accordance with the pre-action protocol and with the express aim of avoiding contested litigation.

    Background
    3. It is admitted that at all material times the Defendant is the registered keeper of vehicle registration mark XXZZZ which is the subject of these proceedings. The vehicle is insured with [provider] with [number] of named drivers permitted to use it.

    4. It is admitted that on [date] the Defendant's vehicle was parked at [location]

    5. It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.
    5.1. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Claimant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA")
    5.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
    5.2.1. there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
    5.2.2. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
    It is not admitted that the Claimant has complied with the relevant statutory requirements.

    5.3. To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.

    Authority to Park and Primacy of Contract
    6. It is denied that the Defendant or lawful users of his/her vehicle were in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the Defendant permitting the above mentioned vehicle to be parked by the current occupier and leaseholder of [address], whose tenancy agreement permits the parking of vehicle(s) on land. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms. The lease terms provide the right to park a vehicle in the relevant allocated bay, without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle or the requirement to display a parking permit. A copy of the lease will be provided to the Court, together with witness evidence that prior permission to park had been given.

    7. The Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial.

    7. Accordingly it is denied that:
    7.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant
    7.2. there was any obligation (at all) to display a permit; and
    7.3. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

    Alternative Claim - Failure to set out clearly parking terms
    8. The Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to impose a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.
    8.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate.
    8.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;
    8.1.2. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee’s ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and
    8.1.3. The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3
    8.2. The Defendant avers that the residential site that is the subject of these proceedings is not a site where there is a commercial value to be protected. The Claimant has not suffered loss or pecuniary disadvantage. The penalty charge is, accordingly, unconscionable in this context, with ParkingEye distinguished.

    9. It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking parking management. The Claimant has provided no proof of any such entitlement.

    10. It is denied that the Claimant has any entitlement to the sums sought.

    11. It is admitted that interest may be applicable, subject to the discretion of the Court on any sum (if awarded), but it is denied that interest is applicable on the total sums claimed by the Claimant.

    STATEMENT OF TRUTH
    I confirm that the contents of the Defence are true.


    **NOTES FOR TEMPLATE USERS**
    (a) if you OWN your property you should refer to the freehold and replace references to the lease
    (b) Check the reference to the IPC - not all parking companies are members of that body
    (c) Check the reference to an allocated bay - does this apply in YOUR circumstances?
    Originally posted by Johnersh
    I know this is quite random but could I add the below to my defence, would it make sense?

    Preliminary
    1. The Particulars of Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.

    2. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct. The Defendant further notes the Claimant's failure to engage in pre-action correspondence in accordance with the pre-action protocol and with the express aim of avoiding contested litigation.

    Background
    3. It is admitted that at all material times the Defendant is the registered keeper of vehicle registration mark XXZZZ which is the subject of these proceedings. The vehicle is insured with [provider] with [number] of named drivers permitted to use it.
    • Lamilad
    • By Lamilad 6th Sep 17, 11:12 AM
    • 1,175 Posts
    • 2,334 Thanks
    Lamilad
    I know this is quite random but could I add the below to my defence, would it make sense?
    Yes, this is one of the defence formats recommended by the NEWBIES thread - which everyone is advised to read before preparing a defence.
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