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  • FIRST POST
    • Dubhaltach
    • By Dubhaltach 6th Sep 17, 11:43 PM
    • 3Posts
    • 1Thanks
    Dubhaltach
    Panic, Claim form due in 2 days and I've not taken
    • #1
    • 6th Sep 17, 11:43 PM
    Panic, Claim form due in 2 days and I've not taken 6th Sep 17 at 11:43 PM
    Hi all,

    First of all sorry for the last minute scrawl. I've been unwell recently and foolishly tried to shove everything on the long finger.

    I've landed myself in a bit of a pickle for receiving a claim form from Gladstones representing Horizon following multiple PCN's on a loading bay outside my place of work, a pub of which I was a manager for. I was parking there to unload stock into my loading door which leads onto the parking bay (Exchange St, Aylesbury, HP20 1UR)

    My main issues with the claim are as follows:
    -I was parkied in the *loading* bay to unload stock to my loading door which was there
    -As it was an ANPR ticket I never recieved windshield tickets, however living above a pub most of my post gets lost before it comes to me and I never received any tickets nor a NTK before it had gone to claim.
    -The signage, whilst relatively clear is positioned in such a way that it is not visible on driving into the bay, and is blocked if another van is loading there.

    While I recognise that I may be too late in this to sumbit a well thought out defence to win and have somewhat started to recognise that I will most realistically get a CCJ (not the worst outcome as I am leaving the country for 4 years so worst case scenario it's 2 years of no credit) I'm putting this up here on the off chance that anyone has a relevant defence for me to send in on the off chance that Gladstones will drop the case, as a collegue of mine received a claim form from the same location, did that, and the claim was dropped. Unfortunately she doesn't have the defence to hand.

    In this album is the claim form and photos of the loading bay (remove spaces etc): imgur dot com / a / 2grme


    I have acknowledged the form so I believe I have until the 8th of September. I take it I can submit a defence online up until 5pm on the 8th?
    I appreciate any advice on this.
Page 1
    • KeithP
    • By KeithP 7th Sep 17, 12:46 AM
    • 4,486 Posts
    • 2,806 Thanks
    KeithP
    • #2
    • 7th Sep 17, 12:46 AM
    • #2
    • 7th Sep 17, 12:46 AM
    http://imgur.com/a/2grme

    That sign looks very forbidding - certainly not an invitation to enter into a contract.
    .
    • Coupon-mad
    • By Coupon-mad 7th Sep 17, 2:05 AM
    • 51,534 Posts
    • 65,137 Thanks
    Coupon-mad
    • #3
    • 7th Sep 17, 2:05 AM
    • #3
    • 7th Sep 17, 2:05 AM
    While I recognise that I may be too late in this to sumbit a well thought out defence to win and have somewhat started to recognise that I will most realistically get a CCJ
    No you won't. People who defend don't get a CCJ even if they lose at a hearing, if they then pay (only VERY rarely do we see a loss). Well worth doing !

    Adapt a defence from the NEWBIES thread post #2 and submit it asap. Show us first. I reckon you have until Monday morning at the very latest (day 33).
    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.

    • Dubhaltach
    • By Dubhaltach 7th Sep 17, 3:12 AM
    • 3 Posts
    • 1 Thanks
    Dubhaltach
    • #4
    • 7th Sep 17, 3:12 AM
    • #4
    • 7th Sep 17, 3:12 AM
    True but if a settlement isn't paid off in full within 30 days even if you agree to pay it still results in a CCJ doesn't it? As I'm doubting that I'd be able to budget to pay £800 within 30 days in the event of losing. In any case I'm saving up from now but it may still be tight.

    I've started drafting a defence, primarily based on the bmpa robo-claim defence which they had advised, although they had referred me here for more in depth information based on the fact that the signs would indicate that I'm authorised to use that loading bay to deliver to my pub. Although with the unit being rented and me not having any access to the lease (chain company) I don't know how well I'd be able to prove that, other than proving that it's the only way to deliver stock as the only other route to the unit is across a pedestrian path which is blocked off by bollards!

    Whilst I finish typing the defence, I was wondering about the dates, is the 33rd definitely Monday then as I weren't sure whether weekends counted or not?
    • Johnersh
    • By Johnersh 7th Sep 17, 6:06 AM
    • 653 Posts
    • 1,238 Thanks
    Johnersh
    • #5
    • 7th Sep 17, 6:06 AM
    • #5
    • 7th Sep 17, 6:06 AM
    Take the date on the seal of the claim form. Add two days (service). From that date, begin your count of days. Include all weekends and Bank Hols.

    If you are ordered to pay and lack the funds it is usually possible to get a payment plan. As such CCJ not inevitable with a loss. The amounts claimed will also include miscellaneous charges that are unlikely to be recovered.
    • Lamilad
    • By Lamilad 7th Sep 17, 9:36 AM
    • 1,178 Posts
    • 2,339 Thanks
    Lamilad
    • #6
    • 7th Sep 17, 9:36 AM
    • #6
    • 7th Sep 17, 9:36 AM
    Take the date on the seal of the claim form. Add two days (service).
    Data of service is 5 days from the issue date on the claim form:
    https://www.moneyclaim.gov.uk/web/mcol/welcome/defendant-information

    ... So, (assuming you have completed AOS within 14 days) you have 33 days to submit your defence; which must be received by the court no later than 4pm on the final day.

    f you are ordered to pay and lack the funds it is usually possible to get a payment plan. As such CCJ not inevitable with a loss.!
    Not sure about this comment... MUI that a CCJ will be recorded on your credit file if the full amount is not paid within 30 days (or one month), regardless of any payment plan.

    OP, show us your draft defence and we will advise further. Your case is defendable and winnable!
    • Johnersh
    • By Johnersh 7th Sep 17, 12:22 PM
    • 653 Posts
    • 1,238 Thanks
    Johnersh
    • #7
    • 7th Sep 17, 12:22 PM
    • #7
    • 7th Sep 17, 12:22 PM
    @lamilad

    Ah yes, the perils of defaulting to standard service assumptions rather than MCOL service which is, erm, less efficient. 5 days it is. My bad.
    • Loadsofchildren123
    • By Loadsofchildren123 7th Sep 17, 12:36 PM
    • 1,603 Posts
    • 2,713 Thanks
    Loadsofchildren123
    • #8
    • 7th Sep 17, 12:36 PM
    • #8
    • 7th Sep 17, 12:36 PM
    Yes that sign looks forbidding to me.
    Also it doesn't define "authorised" so I'd argue you were authorised, provide evidence that you were the licensee/manager at the relevant time, and that you regularly purchased stock which you had to unload.
    Will your employer/former employer help? Can they speak to the landowner to say you were the pub manager and unloading at the time and therefore authorised and can they call the dogs off?
    • Coupon-mad
    • By Coupon-mad 7th Sep 17, 2:40 PM
    • 51,534 Posts
    • 65,137 Thanks
    Coupon-mad
    • #9
    • 7th Sep 17, 2:40 PM
    • #9
    • 7th Sep 17, 2:40 PM
    True but if a settlement isn't paid off in full within 30 days even if you agree to pay it still results in a CCJ doesn't it? As I'm doubting that I'd be able to budget to pay £800 within 30 days in the event of losing.
    Originally posted by Dubhaltach
    Why do you think they would be awarded the £800-odd? We win almost every defended case here (just one lost in a year) and even if you did lose, the Judge would go through them PCN by PCN and the sum that can be recovered should be - at most - the amount on the Notice to keeper.

    Not £800.

    And read what LOC123 has just said, you would be honestly arguing you were 'authorised' and using case law to support your right to unload. It would seem to be unconscionable for a Judge to allow a charge for this circumstance. Think how elated you will feel if you can win this fight!
    Last edited by Coupon-mad; 07-09-2017 at 2:43 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.

    • DoaM
    • By DoaM 7th Sep 17, 2:44 PM
    • 3,494 Posts
    • 3,553 Thanks
    DoaM
    the Judge would go through them PCN by PCN and the sum that can be recovered should be - at most - the amount on the Notice to keeper.
    Originally posted by Coupon-mad
    Plus the court filing and hearing fees, plus incidentals (e.g. parking costs - irony-alert) and, at a push, £50 solicitor fee.
    Diary of a madman
    Walk the line again today
    Entries of confusion
    Dear diary, I'm here to stay
    • Dubhaltach
    • By Dubhaltach 10th Sep 17, 8:55 PM
    • 3 Posts
    • 1 Thanks
    Dubhaltach
    Draft One
    Ok so here goes. It's a bit rough and mostly based on the template sent to me by the BMPA with a bit added in on the signage and how it's really high up so you can't see it at night. I'm just not sure what to say about use of the loading bay for the delivery door, I can prove that I'm the manager there however I wouldn't be able to get access to the lease easily as it's a managed site?

    [quote]Introduction
    1. I am xxxxx, the defendant in this matter. My address for service is xxxxxxxxx
    2. This is my statement of truth and my defence.
    3. As an unrepresented litigant-in-person I seek the Court's permission to amend and supplement this defence as may be required upon disclosure of the claimant's case.
    4. For the avoidance of doubt on the relevant date I was the driver of a Mazda 3, registered number HP4 3HH.
    5. It is believed that it will be a matter of common ground that the purported debt arose as the result of the issue of a parking charge notice in relation to an alleged breach of the terms and conditions by the driver of the above vehicle when it was parked at Aylesbury Leisure Complex on 08/09/2016, 30/09/2016, 08/11/2016, 10/11/2016, 13/11/2016.
    Purported Basis of Claim
    6. Further based upon the scant and deficient details contained in the Particulars of Claim and correspondence, it appears to be the claimant's case that:
    a. There was a contract formed by the defendant and the claimant on 08/09/2016, 30/09/2016, 08/11/2016, 10/11/2016, 13/11/2016.
    b. There was an agreement to pay a sum or parking charge
    c. That there were Terms and Conditions prominently displayed around the site that meet the test laid down in ParkingEye v Beavis
    d. That in addition to the Parking charge there was an agreement to pay additional but unspecified additional sums.
    e. The claimant company fully complied with their obligations within the British Parking Association Code of Practice of which they were member at the time.
    f. Further that the defendant has not paid the alleged debt.
    Rebuttal of Claim
    7. It is denied that:
    a. A contract was formed
    b. There was an agreement to pay a parking charge.
    c. That there were Terms and Conditions prominently displayed around the site.
    d. That in addition to the Parking charge there was an agreement to pay additional but unspecified additional sums.
    e. The claimant company fully complied with their obligations within the British Parking Association Code of Practice of which they were member at the time.
    f. That the defendant is liable for the purported debt.
    8. It is further denied that the defendant owes any debt to the claimant or that any debt is in fact owed or that any debt exists or could ever exist or has ever existed. That in any event the claimant has failed to comply with the requirements of the Civil Procedure Rules and that their claim is both unfounded and vexatious.
    9. The claimant is put to the strictest proof of their assertions.
    My Defence
    My defence will rely principally upon the following points:
    10. That the signs erected on site are incapable of forming the basis of a contract and indeed make it clear that that is not the case. Further it is trite law that a term that is forbidding cannot also constitute an offer. It is therefore denied that any contract was formed or was capable of being formed.
    11. Should the claimant rely on the case of ParkingEye v Beavis, I wish to point out that there is a test of good faith. Para 205: “The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.”
    12. Underlining that is Section 18.3 of the BPA Code of Practice which gives clear instructions as to the placing, visibility and clarity of any signs that are used to form contracts. It says: 18.3 You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.
    13. The defendant refutes that there were clear and visible signs, with Terms that formed the basis of a contact and which met the specifications above because of the following points:
    a. The signs are not visible on entry and exit, but rather on a wall, high up so as to make them not visible from the windscreen of a car.
    b. The signs are blocked by any other vehicle in the loading bay in question
    c. The signs are unlit and cannot be read at night, particularly as they are so high as to not be reached by the beam of a car’s headlights.
    14. Section 7 of the British Parking Association Code of Practice outlines to operators some of the common law principles of operating on someone else's land as a licensee. One such item is written authority - a written contract - to be there. It defines the elements of this written authority as follows:
    7.1 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) before you can start operating on the land in question. The authorisation must give you the authority to carry out all the aspects of the management and enforcement of the site that you are responsible for.
    In particular, it must say that the landowner requires you to keep to the Code of Practice and that either you have the authority to pursue outstanding parking charges, through the courts if necessary or that you have the authority to pursue outstanding parking charges and, with their permission, through the courts if necessary.
    7.2 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.
    7.3 The written authorisation must also set out:
    a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined.
    b) any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation.
    c) any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement d) who has the responsibility for putting up and maintaining signs.
    e) the definition of the services provided by each party to the agreement.
    15. If in the alternative it is the claimant's case that his claim is founded in trespass (which is in any event denied) then in a car park setting any damages in trespass can only be assessed based on a calculation of the proportion of income lost based on the time of the alleged occupation. Any sum sought could therefore only be minimal and de-minimis.
    16. That the amount demanded is therefore excessive and unconscionable and especially so when compared to the level of Penalty Charge Notice issued by the local Council which is set at £50 or £25 if paid within 14 days.
    17. In the alternative, the attention of the court is drawn to para. 4(5) Schedule 4 Protection of Freedoms Act 2012 which sets out that the maximum amount recoverable from the registered keeper (in lieu of the driver), where the keeper liability provisions have been properly invoked (which is expressly denied in this case) is that amount specified in the Notice to Keeper (whether issued in accordance with paras 8(2)c; 8(2)d, 9(2)c or 9(2)d of the Act).
    18. In view of all the foregoing the court is invited to strike the matter out of its own motion.
    19. The claimant is put to strict proof of the assertions they have made or may make in their fuller claim. This statement is true to the best of my knowledge and belief.
    [\quote]
    Last edited by Dubhaltach; 11-09-2017 at 3:28 PM. Reason: Privacy
    • beamerguy
    • By beamerguy 10th Sep 17, 9:03 PM
    • 6,348 Posts
    • 8,152 Thanks
    beamerguy
    Dubhaltach

    URGENT

    Edit your post and remove ALL personal info such as name
    and addresses

    DO IT NOW
    RBS - MNBA - CAPITAL ONE - LLOYDS

    DISGUSTING BEHAVIOUR
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