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  • FIRST POST
    • Sparky350
    • By Sparky350 21st Aug 17, 1:46 PM
    • 12Posts
    • 3Thanks
    Sparky350
    County Court Help Pls - Newbie
    • #1
    • 21st Aug 17, 1:46 PM
    County Court Help Pls - Newbie 21st Aug 17 at 1:46 PM
    Hello Everyone,

    Firstly, i would like to thank anyone in advance who can assist me with the Claim Form that I have received.

    I have read the NEWBIE thread post 2 and I have been on the money claim website and followed the first steps of responding so that I get the full amount of time to put my case together.

    I now need assistance putting a case together - I have read through some of the other posts that have where help has been given but I am a little lost so i apologise if you have given this information before.

    History:

    I work for a company and one of our drivers has parked in a place where there is private parking restrictions. All communication from the private parking company has been ignored (I know that this should not have happened as the new rule is do not ignore but my predecessor was not aware of the change of stance in these matters).

    Parking Control Management (UK) Ltd
    Passed to Trace Debt Recovery UK Ltd
    Passed to Gladstones Solicitors

    I believe that there is an error on the postal notification as they have only provided a date on the ticket and not a time but I am unsure of this it is for parking in a restricted area and I wasn't sure whether a period of time was required.

    I also believe that there is an error on the keeper liability letter as this was posted over 14 days after the notice to driver was issued by post.(I noticed that there is a time period on this letter which is missing on the postal notification)

    Is there a way for me to share the letters so that you can help me prepare my defence?

    Thank you in advance for any help you can provide.

    Many thanks

    Katie
Page 1
    • Coupon-mad
    • By Coupon-mad 22nd Aug 17, 1:19 AM
    • 51,537 Posts
    • 65,144 Thanks
    Coupon-mad
    • #2
    • 22nd Aug 17, 1:19 AM
    • #2
    • 22nd Aug 17, 1:19 AM
    Glad you have done the AOS.


    http://forums.moneysavingexpert.com/showthread.php?t=5578657

    Just adding a link to your initial thread from 2016, for context. Is it PCN #4?

    ''PCN 4 - Last letter received from TRACE Debt Recovery Limited advising that they have been asked to collect the outstanding debt. We have replied to advise we will not be paying the money demanded and that we will only deal with the client (template taken from this website) we have also sent a letter to the client advising that we would not be dealing with the debt recovery company and that there is no reason as to why they cannot accept an appeal at a later date (template taken from this website)''



    Is there a way for me to share the letters so that you can help me prepare my defence?
    Yes, you can show us a broken Dropbox link (change http to hxxp).

    Is this a case of a driver parking in their ''own space'' in a residential car park?

    Has the claim form been addressed to the company?
    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.

    • Sparky350
    • By Sparky350 23rd Aug 17, 4:53 PM
    • 12 Posts
    • 3 Thanks
    Sparky350
    • #3
    • 23rd Aug 17, 4:53 PM
    • #3
    • 23rd Aug 17, 4:53 PM
    Hi Coupon-mad,

    Thank you for your help so far. Yes you have copied the right one over! I was looking for that post so I could do the very same but I am not very familiar with the forum layout! It took me a while to figure out how to post a thread! Not very reassuring is it :/

    hZZps://
    Worldwideweb dot dropbox dot com /s/adq02wa91fahmqe/4530_001.pdf?dl=0[/url]

    The Claim Form has been addressed to the company.
    The vehicle was not parked at their 'own space'.

    I look forward to receiving any help you can give me
    • Fruitcake
    • By Fruitcake 23rd Aug 17, 4:59 PM
    • 40,477 Posts
    • 80,859 Thanks
    Fruitcake
    • #4
    • 23rd Aug 17, 4:59 PM
    • #4
    • 23rd Aug 17, 4:59 PM
    Hi Coupon-mad,

    Thank you for your help so far. Yes you have copied the right one over! I was looking for that post so I could do the very same but I am not very familiar with the forum layout! It took me a while to figure out how to post a thread! Not very reassuring is it :/

    hZZps://
    Worldwideweb dot dropbox dot com /s/adq02wa91fahmqe/4530_001.pdf?dl=0[/url]

    The Claim Form has been addressed to the company.
    The vehicle was not parked at their 'own space'.

    I look forward to receiving any help you can give me
    Originally posted by Sparky350
    https://www.dropbox.com/s/adq02wa91fahmqe/4530_001.pdf?dl=0
    I married my cousin. I had to...
    I don't have a sister.

    All my screwdrivers are cordless.
    "You're Safety Is My Primary Concern Dear" - Laks
    • Sparky350
    • By Sparky350 31st Aug 17, 11:18 AM
    • 12 Posts
    • 3 Thanks
    Sparky350
    • #5
    • 31st Aug 17, 11:18 AM
    • #5
    • 31st Aug 17, 11:18 AM
    Thank you Fruitcake for sorting out the link. I appreciate any help given to me
    • Sparky350
    • By Sparky350 5th Sep 17, 1:31 PM
    • 12 Posts
    • 3 Thanks
    Sparky350
    • #6
    • 5th Sep 17, 1:31 PM
    • #6
    • 5th Sep 17, 1:31 PM
    Hi, I just wondered if anyone was able to assist me with this?

    Many thanks

    Katie
    • Coupon-mad
    • By Coupon-mad 5th Sep 17, 6:16 PM
    • 51,537 Posts
    • 65,144 Thanks
    Coupon-mad
    • #7
    • 5th Sep 17, 6:16 PM
    • #7
    • 5th Sep 17, 6:16 PM
    The documents look standard, so you need to show us a draft defence based in the example defences in the NEWBIES thread.

    I'm sure there is a PCM or Gladstones example and I recall writing a very recent one about a restricted space (denied), which is set out with headings. Could be easily adapted, all linked in post #2.
    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.

    • Sparky350
    • By Sparky350 6th Sep 17, 9:05 AM
    • 12 Posts
    • 3 Thanks
    Sparky350
    • #8
    • 6th Sep 17, 9:05 AM
    • #8
    • 6th Sep 17, 9:05 AM
    Thanks Coupon-mad. Not really sure what I am suppose to be doing. I will have a look today.
    • Johnersh
    • By Johnersh 6th Sep 17, 9:23 AM
    • 655 Posts
    • 1,244 Thanks
    Johnersh
    • #9
    • 6th Sep 17, 9:23 AM
    • #9
    • 6th Sep 17, 9:23 AM
    As a matter of principle, is not the time essential in the context of a claim against a company managing multiple vehicles? A named driver cannot be identified if there is a chance that more than one driver used the vehicle on that day.

    Assuming the particulars are spectacularly rubbish, all the usual qualifications about poor details prejudice in defence of the claim etc apply, but with the potential of an addition that the failure to comply with POFA prevents the company transferring keeper let ability (assuming that argument is feasible in the context of the vehicle fleet).
    • Sparky350
    • By Sparky350 13th Sep 17, 1:44 PM
    • 12 Posts
    • 3 Thanks
    Sparky350
    Here goes, first draft. I really have no idea what I am doing Thank you in advance for any help.

    Defence
    Preliminary

    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 there as required by the Claimants Trade Association's Code of Practice B1.1 which says;
    “If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the ‘Creditor’ within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges. There is no prescribed form for such agreement and it need not necessarily be as part of a contract but it must include the express ability for an operator to recover parking charges on the landowner’s behalf or provide sufficient right to occupy the land in question so that charges can be recovered by the operator directly. This applies whether or not you intend to use the keeper liability provisions.”

    2. The particulars of claim do not meet the requirements of schedule 4 paragraph 7 of the POFA.

    Background
    3. It is admitted that at the time of the alleged infringement the Defendant was the registered keeper of vehicle registration mark ******* which is the subject of these proceedings. The vehicle was insured with any driver working for the company permitted to use it.

    4 It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.

    4.1. 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 keeper 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.

    The Defendant asks that the court orders Further and Better Particulars of Claim and asks leave to amend the Defence.

    6. Parking Control Manament (UK) Ltd are not the lawful occupier of the land. I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no rights to bring action regarding this claim.
    6.1. The Claimant is not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract.
    6.2. The claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question
    6.3 The Claimant is put to 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. As a third party agent, the Claimant may not pursue any charge

    7. The Claimant has at no time provided an explanation how the ‘parking charge’ has been calculated, the conduct that gave rise to it or how the amount has escalated from £100 to £160. This appears to be an added cost with apparently no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.
    7.1. The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.
    7.2. The driver did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.
    7.2.1. The Defendant denies that the driver would have agreed to pay the original demand of £100 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.

    Failure to set out clear 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, woefully 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;
    10.1.2. 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. There is contradicting signage within the same car park which is placed in a more prominent and readable format. This signage mentions time restraints and contradicting fines.
    8.3. Parking Control Management (UK) Ltd had only recently placed their signage on the wall creating new terms and conditions for motorists. The IPC Code of Practice states that;

    “Where there is any change to any pre-existing terms and conditions that would not be immediately apparent to a person visiting the site and which materially affects the motorist you should place additional (temporary) signage at the entrance making it clear that new terms and conditions/charges apply, such that regular visitors who may be familiar with the old terms do not inadvertently incur parking charges. This signage should be in addition to the signage ordinarily required and left in place for an appropriate period.”

    There are no signs at the entrance at all and no additional signs or notices to alert drivers.

    9. The Claimant has sent threatening and misleading demands which stated that further debt recovery action would be taken to recover what is owed by passing the debt to a recovery agent (which suggested to the Defendant they would be calling round like bailiffs) adding further unexplained charges with no evidence of how these extra charges have been calculated.
    No figure for additional charges was 'agreed' nor could it have formed part of the alleged 'contract' because no such indemnity costs were quantified on the signs. Terms cannot be bolted on later with figures plucked out of thin air, as if they were incorporated into the small print when they were not.
    9.1. The Defendant also disputes that the Claimant has incurred £50 solicitor costs.
    9.2. The Defendant has the reasonable belief that the Claimant has not incurred £50 costs to pursue an alleged £100 debt.
    9.3. Not withstanding the Defendant's belief, the costs are in any case not recoverable.
    9.4. The Claimant described the charge of £50.00 "legal representative’s costs" not "contractual costs". CPR 27.14 does not permit these to be recovered in the Small Claims Court.

    Wholly unreasonable and vexatious claim
    10. It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, the Defendant is keeping careful note of all wasted time/costs in dealing with this matter and should the case continue to trial (or in the event of the Claimant filing a Notice of Discontinuance) the Defendant will seek further costs, pursuant to Civil Procedure Rule 27.14(2)(g).

    11. The Defendant respectfully suggests that parking companies using the small claims track as a form of aggressive, automated monetary demands against motorists, alleging 'debts' for parking on free customer parking areas is not something the Courts should be seen to support.

    12. The Court is invited to take Judicial Notice of the fact that the Claimant's solicitors, Gladstones, is engaged in a course of conduct which involves issuing tens of thousands of totally meritless Claims, which are routinely dismissed by District Judges sitting in this Court, and other County Court hearing centres in all parts of England & Wales. The Court is therefore invited to refer the matter to the Designated Civil Judge, for consideration of the issuing an Extended Civil Restraint Order against the Claimant, pursuant to CPR Practice Direction 3.1(3).

    13. The Defendant denies the claim in its entirety, voiding any liability to the Claimant for all amounts due to the aforementioned reasons. The Defendant asks that the court gives consideration to exercise its discretion to order the case to be struck out under CPR Rule 3.4, for want of a detailed cause of action and/or for the claim having no realistic prospects of success.

    14. If the court is not minded to make such an order, then when Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because it is expected that the Claimant will use its witness statement to provide the sort of detail which should have been disclosed much earlier, and the Defendant should have the opportunity to consider it, prior to serving evidence and witness statements in support of this defence.

    I confirm that the above facts and statements are true to the best of my knowledge and recollection.

    Name - Signed - Date
    • Sparky350
    • By Sparky350 21st Sep 17, 2:56 PM
    • 12 Posts
    • 3 Thanks
    Sparky350
    Disappointed
    I was a little disappointed that I did not get any further help on my claim. It has been submitted as it was so I will have to keep my fingers crossed
    • Umkomaas
    • By Umkomaas 21st Sep 17, 3:19 PM
    • 15,548 Posts
    • 24,259 Thanks
    Umkomaas
    I was a little disappointed that I did not get any further help on my claim. It has been submitted as it was so I will have to keep my fingers crossed
    Originally posted by Sparky350
    To be fair, there are a couple of main issues here:

    1. The forum is always very busy and if there is no comment made on any thread it slides rapidly down the list, beyond page one and into virtual oblivion. If you'd just added the odd comment to it if it wasn't getting noticed, it would have remained on page one. For example, in just the past 24 hours, 85 separate cases, at various stages of progress, have been dealt with by just a handful of regulars. And this hasn't been a particularly busy day.

    2. The forum has very few regular advisers, and of those there's literally only three or four people with the experience to provide thorough appraisals of court defences (I am not one of these).

    The forum's original intention was to fight unfair private parking tickets at base level. It has morphed into an almost quasi-legal forum, where experience is extremely short in supply and at times it seems in danger of imploding with some very unrealistic demands placed on it on the court front.

    Hope your case progresses satisfactorily. Don't let the above dissuade you from asking anything further when it comes to the Witness Statement point.
    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.
    • Sparky350
    • By Sparky350 21st Sep 17, 3:26 PM
    • 12 Posts
    • 3 Thanks
    Sparky350
    Thanks for your advice. I will remember that for my next step
    Last edited by Sparky350; 21-09-2017 at 3:27 PM. Reason: spelling
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