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  • FIRST POST
    • AOneVS
    • By AOneVS 6th Jan 17, 10:57 AM
    • 41Posts
    • 22Thanks
    AOneVS
    Gladstones CCC - UKCPM
    • #1
    • 6th Jan 17, 10:57 AM
    Gladstones CCC - UKCPM 6th Jan 17 at 10:57 AM
    Hi all, I've got a thread running on PePiPoo (same username), but thought a fresh set of eyes might help regarding my situation. Two heads are better than one, so to speak.

    I received a county court claim form from Gladstones last week. I've acknowledged the claim online and have created a draft defence. Here's some background:

    Car was parked in a visitors space on the estate I live and was ticketed by UK Car Park Management LTD at 9:43pm on 6th March.
    The reason for the ticket was given as Overstay.

    No sign was available in the visitors parking area. There are signs on the entrance and around the estate. Signs have since been updated to include wording about the visitors spaces:

    VEHICLES PARKED ARE ALLOWED TO STAY FOR A MAXIMUM 4 HOURS AND NOT RETURN FOR 4 HOURS. APPLIES 00:00 to 08:00

    The signs also have the BPA Approved Operator logo on, when the BPA have stated they're only corporate members'. Parking control started by UKCPM sometime in 2013, apparently to stop residents using the visitors spaces. I moved into the estate in 2015.

    The lease states: "Not to use the Visitors Parking Spaces other than for the temporary parking of vehicles belonging to visitors attending at the Property."

    Notice to Keeper was received, dated 7th April. Incorrectly ignored. I mistakenly thought there was little point in appealing to the IPC/IAS and their kangaroo court!

    Many DRP letters received and ignored.

    Letter Before Claim from Gladstones received on 14th November with scant detail and a request to pay £139.

    County court claim form received on 30th December. Acknowledged on MCOL. Part 18 request emailed yesterday.

    Particulars of Claim:
    The driver of vehicle registration ******* (the 'Vehicle') incurred the parking charge(s) on 06/03/2016 for breaching the terms of parking on the land at The Grange xxxx

    The Defendant was driving the Vehicle and/or is the Keeper of the Vehicle. AND THE CLAIMENT CLAIMS £139 for Parking Charges / Damages and indemnity costs if applicable, together with interest of £7.96 pursuant to s69 of the Count Courts Act 1984 at 8% pa, continuing to Judgement at 0p per day.

    Amount claimed: 146.96
    Court fee: 25.00
    Legal representative's costs: 50.00
    Total amount: 221.96

    Here's my draft defence:

    BETWEEN:

    UK CAR PARK MANAGEMENT LIMITED

    -and-

    XXX
    ________________________

    DEFENCE STATEMENT
    ________________________

    1) It is admitted that the Defendant is the registered keeper of the vehicle in question.

    2) The Particulars of the Claim submitted to the Defendant provide no statement to the nature of the claim and the Defendant does not believe these particulars to be compliant with Civil Procedure Rules 16.4 nor Practice Direction 16 7.3-7.5 inhibiting the ability of the Defendant to provide a comprehensive and conclusive defence.

    3) The Defendant has prepared the defence on the presumption that the alleged parking contravention is in reference to an occasion whereby the Defendant’s vehicle was parked in an allocated leasehold residential parking space at the home address of the Defendant.

    4) The Defendant denies that the Claimant has the authority to bring a claim. The Claimant does not own the land where the vehicle was parked, nor does he have any interest in the land. He therefore lacks the capacity to offer parking.

    a) The Claimant has failed to provide strict proof of a chain of contracts leading from the landowner to the Claimant which show that they have a right to unilaterally remove or interfere with the overriding rights conferred in the Lease.

    b) Alternatively, even if a contract could be established, the provision requiring payment of £139.00 is an unenforceable penalty clause and an unfair term contrary to the Consumer Rights Act 2015.

    5) The Defendant believes that his personal details have been obtained unlawfully by the Claimant and asks that the Court does not to assist the Claimant to benefit from a wrongdoing. (Ex turpi causa non oritur action).

    6) The Defendant has no liability as they are the keeper of the vehicle and the Claimant has failed to comply with the strict provisions of POFA 2012 to hold anyone other than the driver liable for the charges.

    a) The driver has not been evidenced on any occasion.

    b) There is no presumption in law that the keeper was the driver and nor is the 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 the barrister, Henry Gleenslade, when explaining the POFA 2012 principles of ‘keeper liability’ as set out in Schedule 4.

    7) The Particulars of Claim do not give any reasons why the Claimant requires a payment other than it results from the ‘Parking Rules’ on the signage. It is a forbidding sign that cannot create a contract. In the cases of B4GF26K6 PCM (UK) v Mr B, B4GF27K3 PCM (UK) v Mr W and B4GF26K2 PCM (UK) v Ms L it was demonstrated that forbidding signage at residential parking spaces did not create a contract.

    8) The presence of the Claimant on the land will have supposedly been to prevent parking by uninvited persons, for the benefit of the actual leaseholders and their invited guests. Instead a predatory operation has been carried out on those very people whose interests the Claimant was purportedly there to uphold.

    a) The vehicle was parked on land in accordance with the terms of the Lease.

    9) In the case of Saeed v Plustrade Limited [2001] EWCA Civ 2011 parking restrictions and a change which caused detriment to tenants and their visitors were held to be in breach of the well-known and well established principle that ‘a grantor shall not derogate from his grant’

    10) This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and interests of the landowner. Strict compliance with the BPA(CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. None of this applies in this material case.

    a) In Beavis it was held that the purpose of a parking charge must not be to penalise drivers. Justification must depend on some other ‘legitimate interest in performance extending beyond the prospect of pecuniary compensation flowing directly from the breach in question’. The true test was held to be ‘whether the impugned provision is a secondary obligation which imposes detriment on the contract-breaker out of all proportion to any legitimate interest […..] in enforcement of the primary obligation’

    b) There can be no ‘legitimate interest’ in penalising residents or their visitors for using parking spaces, under the excuse of a scheme where ostensibly and as far as the landowner is concerned, the parking firm is contracted for the benefit of the residents. It is unconscionable, contrary to the requirement of good faith and ‘out of all proportion to any legitimate interest’ to fine residents or their visitors for using allocated parking spaces.

    11) The exact question regarding terms in a lease was tested recently at Oxford County Court, JOPSON v HOME GUARD SERVICES, Appeal case number B9GF0A9E on 29/9/2016. I will include the transcript of that case at any hearing.

    a) The Jopson Appeal case is a persuasive Appeal decision, where Senior Circuit Judge Charles Harris QC found that Home Guard Services had acted unreasonably when issuing a penalty charge notice to Miss Jopson, a resident of a block of flats.

    12) The Defendant also relies upon the Croydon Court decision in Pace Recovery and Storage v Mr N C6GF14FO 16/9/2016, where District Judge Coonan dismissed the claim and refused leave to appeal, having found that a third party parking firm cannot unilaterally alter the terms of the tenancy agreement.

    13) The Defendant disputes that the Claimant has incurred solicitors costs of £50 to prepare the claim. The Defendant refers the Court to the incompetent Particulars of Claim that disclose neither the basis for the claim nor a definite cause of action.

    14) 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.

    15) 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.

    16) 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.

    17) It is denied that the Claimant has authority to bring this claim. The proper Claimant (if any debt exists, which is denied) would be the landowner.

    18) I request the court strike out this claim for the reasons stated above, and for similar 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''.

    I believe the facts stated in this Defence Statement are true.


    Could anything be added or taken out to make this as strong a defence as possible?

    Thanks in advance
Page 4
    • Loadsofchildren123
    • By Loadsofchildren123 13th Mar 17, 7:30 AM
    • 640 Posts
    • 969 Thanks
    Loadsofchildren123
    It's good to have it all ready to avoid the stress of a last minute rush, but serve it on the day you are supposed to. Are you against Gladstones? In my case they served theirs early and this seems to be the case for others as well. But that's up to them. Don't serve yours early. You can deal with any points they raise then as well.
    • AOneVS
    • By AOneVS 13th Mar 17, 7:35 AM
    • 41 Posts
    • 22 Thanks
    AOneVS
    Witness statement has to be in no later than middle of May. I don't really want to wait until then before seeing what they have.

    I'm still hoping this will be resolved before court
    • Loadsofchildren123
    • By Loadsofchildren123 13th Mar 17, 9:50 AM
    • 640 Posts
    • 969 Thanks
    Loadsofchildren123
    AOne, that's what I hoped for several weeks while all the experienced posters on here told me that however good my defence was, I could expect no sense from the PPC's solicitors.


    The point is this: the solicitors offer a really cheap service, they do no due diligence on the claim, they issue particulars of claim with no detail at all, neither do they bother to do what they should do before starting proceedings - all against the court rules.


    During the proceedings they do the same. Essentially, they just act as a post box receiving your stuff and churning out theirs. I don't actually think they read what they receive. Then a few days before the hearing they send the documents out to their chosen representative and the hearing goes ahead. Very rarely the PPC pulls out and I've never worked out why because there doesn't seem any rhyme or reason to it. It certainly doesn't seem to be because they have seen some killer point and think they will lose.




    Please don't think that serving your WS early is going to make a blind bit of difference. All it will do is give them a head start in rebutting your points.
    • AOneVS
    • By AOneVS 13th Mar 17, 10:20 AM
    • 41 Posts
    • 22 Thanks
    AOneVS
    I've seen a few cases where they discontinue last minute and others where the judge dismisses the case in less than 10 minutes I think they'll have a hard time rebutting the lack of signage and the woefully inadequate terms that have been changed no less than 3 times in the last year. Saying that, I look forward to seeing them try.

    I was chatting to a neighbor that had just been ticketed and they were lamenting the fact the only reason the management company brought in the PPC was to stop residents parking in the 3 visitors bays. The estate has around 100 houses and there is a distinct lack of available parking and no other solution provided.
    • Castle
    • By Castle 13th Mar 17, 12:23 PM
    • 1,180 Posts
    • 1,528 Thanks
    Castle
    Just to correct paragraph 6 of the Witness statement in posts 50 & 51; the IAS is not a subsidiary of the IPC, it's actually the same Company:-
    https://www.theias.org/about
    • beamerguy
    • By beamerguy 13th Mar 17, 12:40 PM
    • 4,928 Posts
    • 6,075 Thanks
    beamerguy
    Just to correct paragraph 6 of the Witness statement in posts 50 & 51; the IAS is not a subsidiary of the IPC, it's actually the same Company:-
    https://www.theias.org/about
    Originally posted by Castle
    And that page says ....

    The Independent Appeals Service (IAS) is a certified Alternative Dispute Resolution entity pursuant to the European Directive on Alternative Dispute Resolution (ADR) (2013/11/EU). It was created to provide a truly independent review on the lawfulness of parking charges that are imposed by private companies.

    CERTIFIED ??????

    More likely "certified" under the mental health act
    RBS - MNBA - CAPITAL ONE - LLOYDS

    DISGUSTING BEHAVIOUR
    • AOneVS
    • By AOneVS 13th Mar 17, 12:50 PM
    • 41 Posts
    • 22 Thanks
    AOneVS
    And that page says ....

    The Independent Appeals Service (IAS) is a certified Alternative Dispute Resolution entity pursuant to the European Directive on Alternative Dispute Resolution (ADR) (2013/11/EU). It was created to provide a truly independent review on the lawfulness of parking charges that are imposed by private companies.

    CERTIFIED ??????

    More likely "certified" under the mental health act
    Originally posted by beamerguy
    truly independant
    They're having one aren't they?
    • DoaM
    • By DoaM 13th Mar 17, 12:56 PM
    • 2,056 Posts
    • 1,977 Thanks
    DoaM
    I know the IAS had temporary/interim certification as an ADR ... did they get full certification? If yes, HOW?

    http://parking-prankster.blogspot.nl/2015/08/independent-parking-committee-fail-to.html
    Diary of a madman
    Walk the line again today
    Entries of confusion
    Dear diary, I'm here to stay
    • Loadsofchildren123
    • By Loadsofchildren123 13th Mar 17, 1:23 PM
    • 640 Posts
    • 969 Thanks
    Loadsofchildren123
    That makes jolly reading DoaM, 10 minutes of my life I'll never get back. Like the dozens of hours I've spent reading up and researching the murky world of PPCs.
    • AOneVS
    • By AOneVS 24th Mar 17, 10:46 AM
    • 41 Posts
    • 22 Thanks
    AOneVS
    Update
    Yesterday was the deadline for them to pay the court fee. So I ring the court this morning and was told they paid the fee on 9th March. The same day I got the court date letter lol

    Yesterday was also the deadline for them to reply to my SAR chaser. Nothing. Cheque still not cashed. Shows they've got their priorities in order.

    I'll be making a complaint to the ICO post haste.

    I've still got a while before I have to submit my WS. Is there any value\point in sending a strongly worded letter to Glad$tones urging them to discontinue or to the court requesting a strikeout?

    Thanks in advance.
    • Loadsofchildren123
    • By Loadsofchildren123 24th Mar 17, 12:10 PM
    • 640 Posts
    • 969 Thanks
    Loadsofchildren123
    Is there any value\point in sending a strongly worded letter to Glad$tones urging them to discontinue or to the court requesting a strikeout?
    Originally posted by AOneVS
    Not really. You would think so, but they'll ignore it.


    I tried both approaches to Gladstones and asking the court to strike out using its inherent case management powers (as opposed to the Defendant making a formal application). Both of them ignored me!
    • richy4
    • By richy4 24th Mar 17, 2:33 PM
    • 77 Posts
    • 10 Thanks
    richy4
    Hi, sorry to hijack the thread briefly, I'm in almost an identical situation to the original poster.

    (I'll shortly start my own thread separately).

    For now, I would just like to ask who/where you addressed your Subject Access Request to at UK CPM? I've tried calling them twice on their dodgy 0845 number but always get some voicemail. I don't want to end up wasting any more time or money(!) on this phone number, so did you simply use the address on their website, the Brighton one or the London one?

    Thanks
    • AOneVS
    • By AOneVS 24th Mar 17, 2:58 PM
    • 41 Posts
    • 22 Thanks
    AOneVS
    Hi richy4, try the address for their data controller here - https://ico.org.uk/ESDWebPages/Entry/Z3245704

    Good luck!
    • richy4
    • By richy4 24th Mar 17, 3:06 PM
    • 77 Posts
    • 10 Thanks
    richy4
    That's great, thank you. I had the Brighton address in mind as that was also what was on the court claim, but will readdress it to Lancing! Thanks again and good luck too, I'm rooting for you!
    • AOneVS
    • By AOneVS 25th Apr 17, 9:42 PM
    • 41 Posts
    • 22 Thanks
    AOneVS
    Witness Statement nearly final draft
    Wow, seems like a while since I posted here. It's been nice to not have to think about this for a while! I had to search for my thread and it seems UKCPM have been busy based on the search results. May is fast approaching which means I need to get my WS in shortly.

    I'm posting this almost final draft, but just need some feedback on some of the wording. Specifically points 7 and 8.

    Also, where would I reference the cases included in the defense statement?

    I've created a schedule of costs, can I include this when sending the witness statement?

    __________________________________________________ ________________________

    In the County Court at xxxxxx

    Claim No.: XXXXXXX
    Between

    UK CAR PARK MANAGEMENT LIMITED
    (Claimant)

    -v-

    Me
    (Defendant)

    WITNESS STATEMENT OF THE DEFENDANT

    The exhibits which the defendant intends to rely upon are as follows:

    Ex. 1. Defence statement
    Ex. 2. Notice to Driver
    Ex. 3a. Image of parking sign at entrance to xxxxx from car
    Ex. 3b. Image of parking sign at entrance to xxxxx version 1
    Ex. 3c. Image of parking sign at entrance to xxxxx version 2
    Ex. 3d. Image of parking sign at entrance to xxxxx version 3
    Ex. 4a. Image of parking area from Google Street View
    Ex. 4b. Image of parking area wooden fence version 1
    Ex. 4c. Image of parking area wooden fence version 2
    Ex. 4d. Image of parking area sign version 1
    Ex. 4e Image of parking area sign version 2
    Ex. 4f. Image of parking sign within the estate
    Ex. 5. Email from BPA
    Ex. 6. Parking sign by Private Eye in Beavis case to demonstrate clear signage
    Ex. 7. Notice to Keeper Letter from Claimant to registered keeper
    Ex. 8. Protection of Freedoms Act, 2014, schedule 4
    Ex. 9. Excerpt from Barrister Henry Greenslade on ‘Keeper Liability’ POLPA annual report, 2015
    Ex. 10. Letter before Claim letter from Gladstones solicitors
    Ex. 11. Particulars of Claim letter from Gladstones solicitors
    Ex. 12. IPC Code of Practice
    Ex. 13. Part 18 Request to Gladstones solicitors
    Ex. 14. Subject Access Request letter
    Ex. 15. Subject Access Request follow up letter

    1. My name is xxxxx I live at xxx xxxxxx. I am the defendant in this matter. I make this statement from my own knowledge and personal experience.

    2. The facts of the case are as set out in my Statement of Defence, filed in response to the original claim and verified by a statement of truth. They do not bear further repetition here, but by this statement I now adduce evidence in order to prove my case. A copy of the statement of defence can be seen in Exhibit 1.

    3. It is admitted that the defendant was the registered keeper of the vehicle at the time in question, but the defendant does not admit he was the driver.

    4. I received a Notice to Driver on 6th March 2016 (Exhibit 2). The vehicle was parked on a private estate within the terms of the lease.

    5. The parking area is shown by Google Street View (Exhibit 4a). The same wooden fence can be shown in Exhibits 4b and 4c, all showing no sign in place.

    6. The parking sign was added to the wooden fence sometime in September 2016 (Exhibit 4d) and updated in February 2017 (Exhibit 4e).

    7. There were no parking terms mentioning visitor parking on the sign at the entrance to xxxxx (Exhibit 3b) until the sign was changed in September 2016 (Exhibit 3c). The terms were changed again in February 2017 (Exhibit 3d). Exhibit. 12 - The Independent Parking Committee Code of Practice (Schedule 1 - Signage).

    8. Exhibit 3a shows the view of the sign from a car entering xxxxx. Please refer to (Exhibit. 6) for the parking sign in the Supreme Court case of ParkingEye Ltd v Beavis [2015] UKSC 67 to demonstrate clear signage.

    9. All signs around the estate showed the BPA Approved Operator logo. (Exhibits 3b, 4d, 4f) The BPA confirmed that the Claimant was not an Approved Operator (Exhibit 5). They have been an IPC Approved Operator since 1st October 2015.

    10. I received a Notice to Keeper dated xxth xxx 2016 (Exhibit 7) for PCN number 111111 (dated 6th March 2016).

    11. At the time I did not respond to any of the above as I had done some research into the IAS (Independent Appeals Service). My research 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 are John Davies, and William Hurley. This set-up is incapable of providing any fair means for motorists to challenge parking charges, as well as potentially breaching the SRA Code of Conduct. This claimant's Solicitors appear to pay little regard to the 'overriding objective' within pre-court protocols, issuing incoherent copy & paste claims with no due diligence.

    12. No evidence has been supplied by this Claimant as to who parked the vehicle. Under POFA 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 the driver.

    13. I wish to draw your attention to Barrister and POPLA (Parking on Private Land Appeals) Lead Adjudicator’s Henry Greenslade’s words in the 2015 POPLA Annual report. - “However keeper information is obtained, 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” (Exhibit 9)

    14. I received a Letter Before Claim dated the xxth xxx 2016 from Gladstones (Exhibit 10) regarding the outstanding PCN, number 111111

    15. I received a letter dated xxth xxx 2016 from Gladstones with Particulars of Claim enclosed. (Exhibit 11).

    16. On the xxth xxx 2017 I submitted a Part 18 request for further and better particulars to Gladstones via email (Exhibit 13). This has not been responded to.

    17. On the xxth xxx 2017 I submitted a Subject Access Request to the Claimant requesting any data held about me. (Exhibit 12)

    18. On the xxth xxx 2017 I submitted my initial defense so as to comply with the time constraints.

    20. I filed my directions questionnaire on the County Court business Centre (CCBC) and Gladstones on the **nd xxx 2017.

    21. On the xxth xxx 2017 I received a Notice of Allocation to the Small Claims Track.

    22. On the xxth xxx 2017 I sent a letter to the Claimant requesting a response to the Subject Access Request as the 40 day deadline had passed. (Exhibit 13). No response was received.

    23. On the xxth xxx 2017 I made a complaint to the ICO about the lack of response from the claimant to my Subject Access Request.

    I believe that the facts stated in this witness statement are true
    • Loadsofchildren123
    • By Loadsofchildren123 26th Apr 17, 12:55 PM
    • 640 Posts
    • 969 Thanks
    Loadsofchildren123
    Some preliminary general comments:


    1. In March you said "Yesterday was also the deadline for them to reply to my SAR chaser. Nothing. Cheque still not cashed. Shows they've got their priorities in order. I'll be making a complaint to the ICO post haste." - you should make more of this, it makes them look bad.


    2. The Defence is written in the 3rd person. this statement should be in the first person, so you need to tweak it a bit in that regard.


    3. I haven't gone back over the full thread, so am reading this like the judge would. The chronology and points about signage are not coming across clearly. I can see all the dates of different signs etc, but don't understand the relevance or the context of these. What issue do the different signs relate to? Are you saying they can't prove what signs were displayed at the time, or are they relying on the wrong signs? I think you are saying the sign they rely on was not there in March 2016 and you have evidence of this and that they put it up in September 16, in which case start para 6 by saying exactly that: "the Claimant relies on there having been a sign on the fence in March 2016. However, it is clear from Exhibit 4a that it was not. The sign on the fence was only put there in Sept 2016" [I know you've exhibited a picture, but expressly say how you know this is true].


    4. Again in 7, make it clear that at the time of the parking event, there was no entrance sign which stated anything about visitor parking and that the Claimant's evidence to the contrary is inaccurate. Perhaps you should put a simple para in before these points saying "The C relies on signage at the entrance to, and inside, the site which was not in fact there on the date of the parking (x March 2016) but was put there later. I know this because.......)


    5. I'd also add somewhere about their record-keeping obligations according to the BPA/IPC Code of Practice (whichever one they're a member of) so you can say that they are obliged to keep proper records and must therefore know that what they are saying about the signs is inaccurate and misleading.


    6. I don't understand the reference to "the lease" in para 4. What do you mean? is this a tenant case so you are saying you were parked according to the rights/obligations in your tenancy? If so, expand on this as it's a really important part of your defence.


    7. para 8 "the sign" - what sign? At this point it's become confusing because you are referring to so many signs. do you see what I mean about the chronology not being clear?


    8. Para 9 - signs around the estate WHEN?


    9. Para 12 - If they have mentioned Elliott v Loake, refute it here as containing no presumption that RK is the driver of a vehicle, and that in that case there was convincing forensic and other evidence that the RK had been driving. Neither does the case act as a precedent for claiming that it is up to a Defendant to rebut the presumption.


    10. Para 16. Make more of this. Say that the request was designed to obtain the sort of information that should have been provided at the pre-action phase under paragraphs 6(a) and 6(c) of the Practice Direction - Pre-Action Conduct, and which should have been contained in the Particulars of Claim - its purpose was so that you could understand the claim, try to narrow the issues, to take stock of your position and defend it appropriately. Instead, you have had to second guess how the claim is being pursued and what it is based on, whereas you should have known this and had sight of the core documents well before now.
    • AOneVS
    • By AOneVS 26th Apr 17, 2:58 PM
    • 41 Posts
    • 22 Thanks
    AOneVS
    Thanks for the comprehensive critique LoC. It's very helpful. It can be difficult to read it as a third party would, when you're so deeply involved in it.

    Regarding the signage, I think it's the main point that they will lose on, as it's such a fiasco. At the time of the PCN there was no sign on the wooden fence (where the cars park). The sign on the entrance to the parking area had no terms regarding visitors (I have a photo of this from 11th March 2016). This sign and all others on the estate, at the time of the PCN, had the BPA logo when they were IPC. They only rectified this in January, with an IPC sticker placed over the BPA logo

    Point 8 refers to this sign, but viewed from a car. The sign is on the RHS of the road and at a height which makes it barely legible. I wanted to draw comparison to the legible sign used in the Beavis case.

    I'm not sure whether to include reference to the lease in the WS or make more of it. There was some contention over one of the covenants of the lease starting at post 13 on this thread.

    Thanks again.
    • Loadsofchildren123
    • By Loadsofchildren123 27th Apr 17, 12:16 PM
    • 640 Posts
    • 969 Thanks
    Loadsofchildren123
    OK, have read the full thread now.
    There are some contradictions here and you need to think carefully about how to get around them. I'm coming to this with a fresh pair of eyes and these discrepancies may well trouble the judge.

    I can see you initially defended on the basis that the car was validly parked in your leaseholder space. But it turned out that it was parked in a visitor space. Is this right? And that the signage in the visitors area didn't say anything prohibiting parking there. Right so far?


    If the car was driven by you, which the judge might find it was, then if you produce your lease, they will say that you weren't parked according to the lease because this prohibits parking in a V space. On the other hand, as has already been discussed, the lease contains no penalties and it would be for the freeholder to pursue you for damages for a breach of the lease terms. but I don't think you can claim you were parked according to your lease.


    If the car was driven by someone else, then there is no breach of your lease terms because, while the car was theirs, they were a visitor. But isn't this stretching things a bit far? If you'd lent a non-resident your car, why would they have been parked at your address, in a visitor space? Unless of course you tend to lend out your car to relatives/friends who live elsewhere. I suppose if they were coming to return the car to you then they would at that point be a visitor, but at the point the car is handed back to you it's back in your control.


    Maybe I am overthinking this.


    I think you need to play down the lease, just say you are a leaseholder at the location and you have parking rights in your lease which do not contain any right for the freeholder to recover any set penalty if they are breached.


    You need to provide some sort of reasonable evidence that others drive your car, otherwise the judge is likely to make a finding that you were driving - the car was parked at your home!!!!


    Bringing the focus back to the signage, you need to simplify how you are putting it because the points about it being a fiasco aren't coming across. Set the scene, with something like:


    "Regarding the signage, I am afraid this is nothing short of a fiasco. Since the pcn was issued to my vehicle on x, the Claimant has changed its signage [several times?]. Chronologically, this is what has occurred:


    a. Firstly, to put matters in context, I should make it clear that on the site, there are distinct areas set aside for residents' parking and for visitors' parking [might it be a good idea to do a plan at this stage and refer to it?].


    b. at the time of the parking event: there was an entrance sign, but this contained no terms at all about parking for visitors and there was no sign at all in the visitors' area. The entrance sign referred to [what?] and there were signs in the residents' area about the need to have and display permits. Exhibited hereto at X are photographs of the entrance sign and the visitors' area at the relevant date.


    c. On x date, a sign was put up in the visitors' area, on the fence which is marked X on the plan referred to at a above.


    and so on.


    You'd then put in a section about your lease, what it says about parking and that you signed it and entered into it before you moved in, and you were told nothing about permits and neither does your lease mention them. Followed by the primacy of contract legal arguments and cases. Although of course you're in trouble if you were driving because you didnt' park according to your lease - BUT the lease doesn't contain any rights for a ppc to issue you with a charge and as a leaseholder the "contract" offered by the signage can't bind you.


    But I just want you to stop and think this through. Do you try to show you weren't driving? What happens if the judge finds you were - do you just say well it doesn't matter, because my lease had nothing in it that said if I parked incorrectly then I wouldn't have to pay a charge?
    • AOneVS
    • By AOneVS 27th Apr 17, 12:54 PM
    • 41 Posts
    • 22 Thanks
    AOneVS
    You are a legend LoC! Thank you for getting up to speed on this one. I appreciate there are some things to overcome with this one as it's not as cut and dry as some other cases.

    There are no permits required to park on the estate. There are 3 spaces for 'visitors' (woefully inadequate for an estate of 100 houses, but that's another story). My wife and I are both named on the insurance. I'll add something about that to point 3 of the WS.

    Thanks for the signage example. I agree that it is key to this case. I'll endeavor to expand upon that.

    I recall on that weekend that my car was being fixed by someone. I have a receipt for the parts being used from the day before. They would've had permission from me to move the car. Is it worth expanding on that?
    Last edited by AOneVS; 27-04-2017 at 12:58 PM. Reason: additional info
    • Loadsofchildren123
    • By Loadsofchildren123 27th Apr 17, 1:09 PM
    • 640 Posts
    • 969 Thanks
    Loadsofchildren123
    I recall on that weekend that my car was being fixed by someone. I have a receipt for the parts being used from the day before. They would've had permission from me to move the car. Is it worth expanding on that?
    Originally posted by AOneVS
    Definitely. You could say that your arrangement with the repair garage is that they collect and drop off the car, or it might have been a family member who is permitted to drive the car. Say that as non-residents, these people would have parked it in the V spot and you would have gone to move the car afterwards into your residents' parking spot, by which time the pcn had been put on the windscreen. You could also say that several people are allowed to drive your car, including your wife (who is a named driver) and other family members (whose own insurance policies permit this). Put in the normal gumph about not being obliged to name the driver and there being no presumption that the RK is the driver, and that they have produced no evidence at all of who was driving.


    I think this makes it better. You just need to sit back and think about what problems you might have and think through how to deal with them.
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