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  • FIRST POST
    • JimmyChan
    • By JimmyChan 27th Feb 17, 11:39 PM
    • 42Posts
    • 22Thanks
    JimmyChan
    County Court Claim AM Parking Services Ltd
    • #1
    • 27th Feb 17, 11:39 PM
    County Court Claim AM Parking Services Ltd 27th Feb 17 at 11:39 PM
    After batting away numerous PCNs over a number of years using this site for parking in my own space and surrounding roads I now have a County Court Claim sent to me. I have acknowledged the claim. I would be very grateful is some eyes could look over my defence.

    Preamble: I owned the registered leasehold of a property with both the flat & parking space demised to me. One day signs (“contracts to park”) went up around the estate and a permit to park was posted under my door (no other information given). I then kept getting PCNs in my own space & on the public highways around the estate (they are public I have checked). This PCN (which the claim is for) I received a “Notice to Owner” I then appealed to parking company (in time of course) but received nothing more. Fast forward to over year since I sold the leasehold and I received a LBC, which I responded to asking for more detail, then I received the claim. Due to their lack of information I don’t know if the PCN was for parking in my own space or for parking on the public highway.

    My defence:

    It is admitted that the defendant was the registered keeper of the vehicle noted at the date of alleged breach. However, the claimant has no cause of action against the defendant on the following grounds: -

    1. Notwithstanding that the claimant claims no right to pursue the defendant as the registered keeper under The Protection of Freedoms Act 2012 (PoFA 2012); the Claimant has failed to meet the conditions of the Act and has never acquired any right to pursue the Defendant in this capacity if they cannot identify the driver.
    2. The Claimant alleges the driver breached “the terms of parking” but no terms are given nor is any valid breach established.
    3. The place of the alleged breach is given as “land at Coriander Drive Maidstone Kent”, there are many registered parcels of land in and around Coriander Drive as well as registered leaseholds on parts of these parcels of land, therefore strict proof is required as to the exact site of the breach.
    4. AM Parking Services Ltd are not the lawful occupier of any land around Coriander Drive. 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, I have reasonable belief that they do not have authority to issue charges on this land in their own name and that they have no right to bring action regarding this claim.
    5. The Defendant owned at the time of the alleged breach the registered leasehold for one of the above-mentioned parcels of land. Which included a parking space as part of the property which had been demised to the Defendant.
    6. The leasehold held by the Defendant at the time of the alleged breach, with no amendments mentions no terms which must be followed in order to park on the leased section of land. Nor does it mention the Claimants authority to operate a parking scheme on the leased section of land.
    7. Coriander Drive has been adopted by Kent County Council and is marked as a “Publicly Maintainable Highway” in the Kent County Council Highways Gazetteer under the Unique Street Reference Number of 24202170. Signs have been placed alongside the public road stating it is a private road, this makes it impossible to identify where the public highway ends and where the private land starts (and therefore there is no way to know what land the “terms” apply).
    8. PoFA 2012 only allows the recovery of the parking charge stated on the Notice to Keeper and not court fees, damages, indemnity costs or legal representative’s costs.
    9. No contract, terms and conditions or sum payable were ever accepted by any driver.
    10. 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).

    Any help will be gratefully received.
Page 4
    • JimmyChan
    • By JimmyChan 27th Mar 17, 12:15 AM
    • 42 Posts
    • 22 Thanks
    JimmyChan
    Change Madame to 'Madam'
    Haha thanks!

    When it comes to the covering letter for Gladstones, can I just send the Directions Questionnaire with a covering letter which says "Please find enclosed my N180" or do I have to send them what I am sending to the court?
    • Coupon-mad
    • By Coupon-mad 27th Mar 17, 12:19 AM
    • 46,925 Posts
    • 60,258 Thanks
    Coupon-mad
    From now on, share everything with them that the court see. So, show them your letter too.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the trail, top of this page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    DON'T read old advice to ignore, unless in Scotland/NI.

    • JimmyChan
    • By JimmyChan 27th Mar 17, 12:23 AM
    • 42 Posts
    • 22 Thanks
    JimmyChan
    Ok will add the covering letter "Please find enclosed my N180 and my covering letter to the court"

    First class post and proof of postage to both the court and Gladstones is fine?
    • Coupon-mad
    • By Coupon-mad 27th Mar 17, 12:27 AM
    • 46,925 Posts
    • 60,258 Thanks
    Coupon-mad
    Yes that is fine. Then add the proof of posting receipts into your own file bundle, to keep them safe.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the trail, top of this page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    DON'T read old advice to ignore, unless in Scotland/NI.

    • JimmyChan
    • By JimmyChan 27th Mar 17, 12:30 AM
    • 42 Posts
    • 22 Thanks
    JimmyChan
    Thanks again, bed time for me.
    • JimmyChan
    • By JimmyChan 12th Apr 17, 8:18 PM
    • 42 Posts
    • 22 Thanks
    JimmyChan
    So the DDJ ordered that the PPC file "fully particulised particulars of claim," I was hoping that they would forget, but alas they have refiled. While there is more information, it still skips over the request to show they have a cause of action by not providing a contract with the land owner. They have however used the phrase "the contract" to mean the one put up on the wall (between them and the drivers) which they are trying to enforce. I fear a judge will look at this and fail to distinguish between the two contracts.

    I am currently re-ordering my defence and will ask the judge to allow this resubmission now detailed PoC have come to light.
    • JimmyChan
    • By JimmyChan 12th Apr 17, 9:05 PM
    • 42 Posts
    • 22 Thanks
    JimmyChan
    Can anyone point me to the law(s) which allows PPC to bring court claims in their own name? I am writting a covering letter to the judge to point out the PPC have again failed to provide a cause of action as they are merely acting as an agent to the landowner and have failed to include (or even allude to) a contract with the landowner. Basically the idea that they put a sign up on someone elses land does not mean they can bring action in the court.
    • DoaM
    • By DoaM 12th Apr 17, 9:15 PM
    • 2,433 Posts
    • 2,459 Thanks
    DoaM
    What you're looking for is the flow of authority from the landowner to the PPC allowing the PPC to bring claims in the PPC's own name. Their contract with their client should allow this authority. If their client is not the landowner (e.g. they're a management agent) then the client must also have authority flowing from THEIR contract with the landowner.

    You put the PPC to strict proof of this flow of authority from the landowner.
    Diary of a madman
    Walk the line again today
    Entries of confusion
    Dear diary, I'm here to stay
    • Coupon-mad
    • By Coupon-mad 12th Apr 17, 9:17 PM
    • 46,925 Posts
    • 60,258 Thanks
    Coupon-mad
    They will point to case law (ParkingEye Ltd v Beavis [2015] and VCS v HM Revenue & Customs [2013] EWCA Civ 186) and argue about being able to sell Buckingham Palace!

    Here you go, that daft reasoning is in this post, try to get your head around it:

    http://forums.moneysavingexpert.com/showthread.php?p=72306021#post72306021

    LoadsofChildren123 is legally qualified and she briefly touches upon how perverse this is, here:

    http://forums.moneysavingexpert.com/showthread.php?p=72157664#post72157664

    Bottom line is, the PPC needs the authority flowing from the landowner in the first instance, in order to give them the right to make contracts with drivers in their own name and to sue in their own name (which ParkingEye had, in the Beavis case).

    Your PPC still needs to show they are more than just contracted to put some signs up and send out letters. Any administrator/contractor could do that 'on behalf of' a landowner, as a mere agent - but it wouldn't automatically mean they had standing to sue/form contracts.
    Last edited by Coupon-mad; 12-04-2017 at 9:25 PM.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the trail, top of this page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    DON'T read old advice to ignore, unless in Scotland/NI.

    • JimmyChan
    • By JimmyChan 12th Apr 17, 9:24 PM
    • 42 Posts
    • 22 Thanks
    JimmyChan
    Cheers peeps I will read up on this and write up my covering letter and defence (again!) and post it up here for peer review (and to help anyone else). Thanks again you lot are amazing.
    • JimmyChan
    • By JimmyChan 18th Apr 17, 10:12 PM
    • 42 Posts
    • 22 Thanks
    JimmyChan
    They are claiming the driver accepted the contract through the act parking. I want to make the point that the vehicle was registered at this address long before signs went up. So therefore the appearance of performance to the contract is merely coincidental as no consideration for the signs took place.

    Also as this is the address of the registered keeper was there even a driver and is it really parking? Surely this is just where the vehicle is being kept.

    Sorry if you don’t think this is relevant (or that a judge will just think I am being pedantic) just trying to squeeze in every last defence point.
    • JimmyChan
    • By JimmyChan 19th Apr 17, 10:31 PM
    • 42 Posts
    • 22 Thanks
    JimmyChan
    Ok here is the sign they are claiming forms a contract hxxps://filetea.me/n3wOV6Q0nvlQV6YHxHerCSeoA and here are their refiled PoC:

    THE CONTRACT
    1. The Claimant is a Parking Operator managing the land at Coriander Drive, Maidstone, Kent, ME16 (“the Land”). Attached to these Particulars of Claim are photographs of the incidence marked ‘Document 1’.
    2. The Claimant installed signs (i.e. the “Contract”) on the Land that set out its terms of parking. A copy of the Contract is attached to these Particulars of Claim marked ‘Document 2’.
    3. The Claimant entered into a Contract with the driver of the vehicle with Registration Number XXXXXXX (“the Vehicle”). A schedule is set out below; Failure to display valid permit
    4. Through the act of parking as described above, pursuant to the Contract, the driver accepted the Claimant’s terms and was issued with a Parking Charge Notice for the sum set out in the Contract (‘the Relevant Charge’).
    5. The driver failed to pay the Relevant Charge within 28 days (‘the Relevant Period’) or indeed at all. The Relevant Charge now forms the substantive element of this claim.
    6. In addition to the Relevant Charge the Claimant claims £50.00 in general damages as a predetermined and nominal contribution to its actual losses suffered as a result of the Relevant Charge not being paid within the Relevant Period.

    REGISTERED KEEPER
    7. The Defendant is the Registered Keeper of the Vehicle.
    8. Pursuant to Schedule 4 of the Protection of Freedoms Act 2012, the Claimant has the right to recover any unpaid parking charges from the keeper of the Vehicle and the ‘keeper’ of the Vehicle is presumed to be the Registered Keeper, unless the contrary is proven.

    CLAIM FOR INTEREST
    9. The Claimant claims interest under S.69 of the County Courts Act 1984 at a rate of 8% from the date of 28 days after the charge until the date of issue of this claim (10 February 2017) and continuing at a rate of £0.03 per day until judgment or earlier payment or alternatively at such rate that the Court thinks fit.

    CLAIM FOR COSTS
    10. The Claimant claims costs on contractual (indemnity) basis, pursuant to CPR 44.5, as the contract contains an expressed indemnity clause permitting them to do so.

    AND THE CLAIMANT CLAIMS:
    (1) The Relevant Charge as a debt;
    (2) Damages for the Defendant’s breach of contract in the sum of £50.00, as set out above;
    (3) Statutory interest, as set out above; and
    (4) Costs on a contractual (indemnity) basis pursuant to CPR 44.5, together with the fixed fees and costs of issuing.
    • JimmyChan
    • By JimmyChan 19th Apr 17, 10:37 PM
    • 42 Posts
    • 22 Thanks
    JimmyChan
    So here is my ammended defence now I have more details, I have started with the most important points about them trespassing, through to not identifying the driver (if there even was a driver and a parking event even took place), through to discrediting the contract to finally mitagating their added on charges:

    PRELIMINARY MATTERS
    1. The Claimant failed to include a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the Claimants contractual authority to operate on the land, as required by the Claimants Trade Association's Code of Practice A7.1 which says that
    If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges.
    A7.2 Then goes on to say that
    If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.
    2. The Claimanthas not complied with the pre-court protocol:
    a. When requested for concise details of the claim (in line with Para 6(a) Para 6(c)), such as a specific location, a contract with the land owner and how the claimed amount had been arrived at, the Claimant either ignored the request or stated it would only be provided in their witness statement if the matter went to court.
    b. When requested that we consider using ADR, as Para 8 suggests, by using the Claimant’s own Trade Association’s recommended ADR (Parking on Private Land Appeals) it was dismissed with no satisfactory answer. Due to the above the Defendant would refer the court to Para 11 & 14(c) on the unreasonableness of dismissing ADR.
    c. The Defendant would refer the court to Para 4 on non-compliance and sanction, and also point out that there can be no reasonable excuse for the Claimant's failure to follow the Pre-action Conduct process.
    3. The Defendant has emails from the Managing Agent for the private land the parking charge was issued on which states “I can confirm that we were not in touch with them nor would we get involved with parking” which shows they have no standing in order to bring a claim.
    DEFENCE
    I am JimmyChan, defendant in this matter. It is admitted that the Defendant was the registered keeper of the vehicle noted at the date of alleged breach, and it was being kept on the Land shown in the images filed with the Claimant’s Particulars of Claim. However, the Claimant has no cause of action against the defendant on the following grounds: -
    1. The Claimant claims to be “a Parking Operator managing the land,” this is misleading as they do not have any authority to manage the Land the vehicle was being kept on.
    2. The Claimant claims to have “installed signs on the Land,” this is not true as the signs are not installed on the Land, but on a different area of land, with a different registered title.
    3. The Defendant owned the registered leasehold title which included the Land, which has been whole demised.
    4. The Defendant has never authorised the Claimant to charge for use of the Land, nor to operate in any way on the Land, or to carry out court proceedings in their own name in relation to the Land.
    5. The leasehold title held by the Defendant at the time of the alleged breach, with no amendments mentions no terms which must be followed in order to keep a vehicle on the Land.
    6. The Defendant believes that the Claimant has trespassed on the Land, and from this their 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 actio).
    7. The Claimant has not authority to operate on any of the other areas of land they have installed signs on.
    8. Authorities to support my defence include but are not limited to the (higher court level) Appeal case heard at Oxford County Court by Senior Circuit Judge Charles Harris QC, in Jopson v Homeguard [2016] B9GF0A9E. Similar Small Claim decisions in 2016 include Pace v Mr N C6GF14F0 and Link Parking v Ms P - C7GF50J7. All three cases were brought by the Claimants legal representatives for parking operators (including the original Jopson claim) and in these cases, it was found that the parking company could not override residents’ existing rights by requiring a permit to park and that the signs were of no consequence due to the primacy of contract enjoyed by the Defendants.
    9. The Claimant has not identified the driver who allegedly entered into a contract with them.
    10. The Claimant has failed to meet many of the conditions set out in The Protection of Freedoms Act 2012 (PoFA 2012) which would allow them to transfer the liability of any unpaid parking charges to the registered keeper. This includes but is not limited to:
    a. The right to enforce the requirement to pay
    b. The maximum charge recoverable
    c. The statutory wording required in documents
    d. The time frames for certain actions
    11. The vehicle’s registered keeper’s address has been at the Land long before the signs have been installed.
    12. The Claimant cannot identify if the vehicle was indeed parked as this is the land the vehicle was kept on.
    13. The signs are said to be a contract to park, which are an advertisement to park but there has been no planning or advertising consent. Regulation 30 of the Town and Country Planning (Control of Advertisement) (England) Regulations 2007 makes it a criminal offence to display advertisements without the relevant consent. Due to these signs being criminal in nature therefore they cannot form a contract with a driver.
    14. The signs do not form a contract.
    15. The signs and their terms are unclear.
    16. The Claimant’s signs attempt to make a forbidding offer, which isn’t an offer at all, therefore no contract exists.
    17. Coriander Drive has been adopted by Kent County Council and is marked as a “Publicly Maintainable Highway” in the Kent County Council Highways Gazetteer under the Unique Street Reference Number of 24202170. Signs have been placed alongside the public road stating it is a private road, this makes it impossible to identify where the public highway ends and where the private land starts (and therefore there is no way to know what land the “terms” apply).
    18. The Claimant was a member of the Approved Operator Scheme of the British Parking Association, the signs and their conduct on the Land does not meet their Code of Practise which goes at length to explain how they should operate on the Land in order to ensure fairness to all parties.
    19. No contract would have been accepted by any driver as any driver already knew there was a primary contract for the land and that many “terms” on the signs are untrue.
    20. The signs quiet clearly state that there is "No Unauthorised Parking," the Land hand been demised to the Defendant so the vehicle was being kept on the Land with authority.
    21. The Claimant has at no time provided an explanation how the damages have been calculated or the conduct that gave rise to it which appear to have been plucked from thin air and do not appear on the signage. This is an attempt at double recovery, which the POFA specifically disallows. In addition, CPR 27.14 does not permit these to be recovered in the Small Claims Court.
    22. The Claimant’s claim for interest is unwarranted, the Defendant at every stage tried to correspond with them, explaining the situation and requesting further information but they continued to court, which could have been avoided.
    23. The signs contain no indemnity clause.
    24. The Claimant’s claim for interest is unwarranted, the Defendant at every stage tried to correspond with them, explaining the situation and requesting further information but they continued to court, which could have been avoided.
    • JimmyChan
    • By JimmyChan 28th Apr 17, 12:24 PM
    • 42 Posts
    • 22 Thanks
    JimmyChan
    Can anyone with court listing access tell me when / if AM Parking is up in Maidstone next week? I have the week off and might go down to see what the lay of the land is like. Assuming I can just go and sit in the cheap seats and watch?
    • Umkomaas
    • By Umkomaas 28th Apr 17, 12:27 PM
    • 13,142 Posts
    • 20,525 Thanks
    Umkomaas
    Can anyone with court listing access tell me when / if AM Parking is up in Maidstone next week? I have the week off and might go down to see what the lay of the land is like. Assuming I can just go and sit in the cheap seats and watch?
    Originally posted by JimmyChan
    Contact the BMPA to see if they have info for next week. They publish daily lists here:

    http://www.bmpa.eu/court.html

    HTH
    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.
    • JimmyChan
    • By JimmyChan 28th Apr 17, 1:52 PM
    • 42 Posts
    • 22 Thanks
    JimmyChan
    Cheers, just what I was after.
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