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  • FIRST POST
    • Laura Higgs 76
    • By Laura Higgs 76 12th Sep 17, 10:16 AM
    • 17Posts
    • 1Thanks
    Laura Higgs 76
    Parking charge - permit on show but not in bay
    • #1
    • 12th Sep 17, 10:16 AM
    Parking charge - permit on show but not in bay 12th Sep 17 at 10:16 AM
    Firstly I know its stupid but I did not appeal or reply to letters. Everyone in our new block of flats gets a ticket a week! Somone has 20! Most have said PCM are only following up the ones they appealed and not all of them so I stupidly ignored every letter I got!

    I now have two official (stamped) claim letters and I have already extended both by 14 days. I wish I saw this forum sooner! Instead, in my extra 14 days I saw a solicitor who said because I didn't have the original PCNs, he could not do anything but make an offer. I bought the lease, the signage in parking area and the letters and he did not look at any of it!

    Background of my case - 4 visitor bays were blocked off for work carried out in a new builds garden. I had my visitor permit on show and parked not in a bay, but somewhere out of the way. I received 5 tickets in total and they are taking me to court for £1,000. Since then, the landowners have increased visitor parking bays by a further 15-20 - they must have realised there was a shortage!

    I have to send my defence by this friday and don't even know if I have anything to stand on!

    Also not good, my solictor told me to make offer of half so he sent an email on my behalf saying "without accepting liability" we offer you £525. They rejected and said minimum they would accept is £800!

    Please help!!!!
    --------------------------------------------------------------------------------------------------------------------------
    DEFENCE (after advice from Coupon-Mad - thank you!)

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

    2. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct. The Defendant further notes the Claimant's failure to engage in pre-action correspondence in accordance with the pre-action protocol and with the express aim of avoiding contested litigation. (RED SECTION - I have read up and this claim does try to include interest and legal costs and mentions "damages" so think this is relevant for me?)

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

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

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

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

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

    7. The Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial. (Again, signage included in pictures but don't think relevant. Or could this point link to the fact they took away spaces?)

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

    Alternative Claim - Failure to set out clearly parking terms
    8. The Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to impose a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.
    8.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate.
    8.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;
    8.1.2. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee’s ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and
    8.1.3. The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3
    8.2. The Defendant avers that the residential site that is the subject of these proceedings is not a site where there is a commercial value to be protected. The Claimant has not suffered loss or pecuniary disadvantage. The penalty charge is, accordingly, unconscionable in this context, with ParkingEye distinguished.
    (last point is definitely relevant, attached pictures of signage as no sure the rest is - signage may be sufficient?)

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

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

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

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

    ---------------------------------------------------------------------------------------------------------------------------
    Further relevant points;
    • As Coupon-Mad confirmed, Saeed v Plustrade are relevant here ;
      "But for the interference the claimant was able to park on 13 spaces in competition with a number of other persons. At that point she was restricted to parking on 9 spaces in competition with the same number of persons. This must constitute substantial interference with the enjoyment of her right.'".
      Also to note here, once work was completed, the spaces increased to 20-25 spaces in competition with the same number of persons showing they realised the lack of spacing meant people were not able to park in the confines of a marked bay.
      (Not sure how to word this - I have amended the parking space numbers. note, not every ticket I got was due to the V bays being blocked off as shown in attachment but it was due to the lack of numbers before they increased it).
    • Not sure if there is anything else that goes in my favor?
    • Also, in case of confusion, they have taken me to court in two separate claims?? One is for 3 of the dates, and the other is for the remaining two. Is this to get more money out of me so I have to pay more legal and court fees on top of the original charge?? Or was it the court who decided to do this in two separate claims?
    Any advice welcome please! Appreciate your help so far.


    Thank you


    ---------------------------------------------------------------------------------------------------------------
    PICTURES WITH HXXP NOT HTTP
    Court Case 1
    hxxp://i65.tinypic.com/21kb53k.jpg

    Court Case 2
    hxxp://i63.tinypic.com/kdpks7.jpg

    Car park signage
    hxxp://i64.tinypic.com/10ehl79.jpg

    Lease (only one page I could find mentioned visitor parking)
    hxxp://i67.tinypic.com/15jdas.jpg

    Visitor bays blocked off
    hxxp://i68.tinypic.com/24meqfa.jpg

    Solitor letter 1 (letter before claim)
    hxxp://i64.tinypic.com/xbjrzn.jpg

    Solicitor letter 2 (letter before claim - NOTE they called me MR on this one, I am Ms)
    hxxp://i65.tinypic.com/2yyefjb.jpg
    Last edited by Laura Higgs 76; 12-09-2017 at 1:33 PM. Reason: Nosferautu noticed I only mentioned singular at start :-)
Page 2
    • Laura Higgs 76
    • By Laura Higgs 76 11th Oct 17, 10:17 AM
    • 17 Posts
    • 1 Thanks
    Laura Higgs 76
    I would send separate letters to avoid the Court staff assuming that the documents were duplicates of one another (which at a glance they may appear to be).


    No. You may wish to think about making an application to Court to have the two claims consolidated and to request that proper particulars are prepared. That will cost £100, but if you win (and I suspect you would, given the provisions of the CPR) then you would likely get it back. The application would be done on the papers without a hearing, so there are no hearing costs. If you were successful (i) they would be put to the expense of preparing the case properly; (ii) you would be fighting 1 consolidated case not 2; (iii) you would have greater clarity much earlier, before witness statements and the opportunity to revise the Defence accordingly; (iv) the Claimant would probably be ordered to pay your application costs given that their pleading is defective.

    As I say above, it depends whether you can afford the risk in the context of the dispute and what you gain. Most forum users endeavour to ask the Court for something without lodging an application, because of the cost. Consolidation of the claims is a no-brainer. You may as well flag that they have under-paid court fees and that you are prejudiced in preparing the defence as there is scant information provided.
    Originally posted by Johnersh
    Yes I can't really afford the risk (I am worried I will lose). Can I therefore ask the judge to do this without completing an application? Would this be written along the lines of the below in the cover letter?

    I ask the Court to make order of itís own initiativ; **IS THIS CORRECT?**
    1. One claim is struck out
    2. OR in the alternative, Claim numbers XXXXXXX and YYYYY be consolidated and heard together.
    2. UNLESS the Claimant pays the balance of the appropriate Court fee, namely £10.00 within 14 days of this Order, both claims be struck out.
    3. UNLESS the Claimant do file and serve within 14 days of this Order a fully particularised Amended Particulars of Claim in respect of all matters giving rise to Parking Charges, to include details of the terms of any alleged contract between the Claimant and Defendant and any alleged contract entitling the Claimant to issue parking charges, the claim be struck out.
    4. The Defendant do have permission to file and serve an Amended Defence, such Defence to be filed within 14 days of the Amended Particulars of Claim.
    5. The Parties may apply to set aside or vary this Order within 7 days of service.
    • Johnersh
    • By Johnersh 11th Oct 17, 1:37 PM
    • 741 Posts
    • 1,377 Thanks
    Johnersh
    Ok, I think that this has become more complicated than it needs to be. Forget about a draft order - I propose simply the "am I missing something?" approach and see if the Court reaches a similar view....

    XXXX County Court
    [address]

    FAO: Claims and Case Management


    Dear Sirs

    [Case Name]
    [Claim Number XXXXX] and [Claim Number YYYY]

    I am the Defendant in both of these matters which appear to have been issued within days of one another by the Claimant.

    The Claimant's claim relates to multiple parking charges on the same land, insofar as I can ascertain from the scant Particulars of Claim. The contract terms concerned (if any) and location are common to both claims. It is unclear why two sets of proceedings have been commenced against me, unless this is to reduce the amount of court fees payable. The purpose of this letter is to request from the Court that the two claims can be consolidated into a single set of proceedings. At present I face dealing with two claims, with the need to prepare separate statements of case for each and, potentially two trials. I believe that this is unnecessarily time consuming for me and a poor use of the Court's resources.

    If the Court is so minded to consolidate the claims, I should be grateful if the Court could consider whether it is appropriate to ask the Claimant to prepare consolidated Amended Particulars of Claim in respect of both actions setting out clearly the nature of each of the claimed charges and the nature of the contract and any breach. At present, my defences have had to rather predict the nature of the Claimant's argument from the single sentence that appears on the claim form. This does not help to narrow the issues where each of the parking events (more than 4 tickets are claimed for) may involve separate facts/alleged breaches of contract.

    I look forward to hearing from you.

    Yours faithfully.
    • Laura Higgs 76
    • By Laura Higgs 76 11th Oct 17, 1:43 PM
    • 17 Posts
    • 1 Thanks
    Laura Higgs 76
    Ok, I think that this has become more complicated than it needs to be. Forget about a draft order - I propose simply the "am I missing something?" approach and see if the Court reaches a similar view....

    XXXX County Court
    [address]

    FAO: Claims and Case Management


    Dear Sirs

    [Case Name]
    [Claim Number XXXXX] and [Claim Number YYYY]

    I am the Defendant in both of these matters which appear to have been issued within days of one another by the Claimant.

    The Claimant's claim relates to multiple parking charges on the same land, insofar as I can ascertain from the scant Particulars of Claim. The contract terms concerned (if any) and location are common to both claims. It is unclear why two sets of proceedings have been commenced against me, unless this is to reduce the amount of court fees payable. The purpose of this letter is to request from the Court that the two claims can be consolidated into a single set of proceedings. At present I face dealing with two claims, with the need to prepare separate statements of case for each and, potentially two trials. I believe that this is unnecessarily time consuming for me and a poor use of the Court's resources.

    If the Court is so minded to consolidate the claims, I should be grateful if the Court could consider whether it is appropriate to ask the Claimant to prepare consolidated Amended Particulars of Claim in respect of both actions setting out clearly the nature of each of the claimed charges and the nature of the contract and any breach. At present, my defences have had to rather predict the nature of the Claimant's argument from the single sentence that appears on the claim form. This does not help to narrow the issues where each of the parking events (more than 4 tickets are claimed for) may involve separate facts/alleged breaches of contract.

    I look forward to hearing from you.

    Yours faithfully.
    Originally posted by Johnersh
    Thank you for taking the time to write this up for me. I think sometimes the terminology bogs me down so I apologise!

    I will use the above for both cover letters and send the DQs off separately.

    Thanks again!
    • Laura Higgs 76
    • By Laura Higgs 76 13th Oct 17, 2:27 PM
    • 17 Posts
    • 1 Thanks
    Laura Higgs 76
    Sorry another quick question - I received GS documents by email so I was goign to email them my documents.

    I have just read in their email signature that they don't accept service of documents by email. Does this mean I need to send them through the post? If so, how comes they can send me documents by email?
    • Loadsofchildren123
    • By Loadsofchildren123 13th Oct 17, 2:34 PM
    • 1,756 Posts
    • 2,870 Thanks
    Loadsofchildren123
    Part 18 doesn't actually apply in small claims.
    Part 18 is the procedure for formally requesting information and documents.


    Many people (myself included) send a part 18 request anyway. The PPC invariably ignores it.


    Part 27 of the CPR (the bit that applies exclusively to small claims) says that a judge may order a party to produce information (and this process is supposed to be a stand in for part 18) - see R27.2(3). However, like the PPC, the court is unlikely to pay any attention to it. I think this request is best made in a covering letter when you send back your DQ, which is when a judge will actually sit and look at the file.


    So either just send them a Pt 18 request, or write to the court and ask them to order the C to produce the information under 27.2(3) explaining why it's relevant and why it's necessary at this stage.
    • Johnersh
    • By Johnersh 13th Oct 17, 2:47 PM
    • 741 Posts
    • 1,377 Thanks
    Johnersh
    Technically no documents can be served by email without calling first to clarify you agree and confirm the size of attachments permitted. The practical reality is often different, but there is no presumption that email service is OK.

    If it's inconvenient for you to accept emails, tell them that they have not served you and await paper copies. If they have expressly refused emails (as they have) you MUST serve by post.
    • Loadsofchildren123
    • By Loadsofchildren123 13th Oct 17, 3:00 PM
    • 1,756 Posts
    • 2,870 Thanks
    Loadsofchildren123
    Gladstones always says it doesn't accept service by email. I can't remember where, maybe on their letterhead?
    Having said that, I emailed everything to them and they didn't object once, or claim that service hadn't been effected.
    • Laura Higgs 76
    • By Laura Higgs 76 13th Oct 17, 3:16 PM
    • 17 Posts
    • 1 Thanks
    Laura Higgs 76
    Thanks Johnersh! Ah that is interesting Loadsofchildren. In the email I got from them it stated it in their email signature. I will post to be on the safe side but might email if need be in the future and see if they object.
    • Laura Higgs 76
    • By Laura Higgs 76 13th Oct 17, 3:17 PM
    • 17 Posts
    • 1 Thanks
    Laura Higgs 76
    Part 18 doesn't actually apply in small claims.
    Part 18 is the procedure for formally requesting information and documents.


    Many people (myself included) send a part 18 request anyway. The PPC invariably ignores it.


    Part 27 of the CPR (the bit that applies exclusively to small claims) says that a judge may order a party to produce information (and this process is supposed to be a stand in for part 18) - see R27.2(3). However, like the PPC, the court is unlikely to pay any attention to it. I think this request is best made in a covering letter when you send back your DQ, which is when a judge will actually sit and look at the file.


    So either just send them a Pt 18 request, or write to the court and ask them to order the C to produce the information under 27.2(3) explaining why it's relevant and why it's necessary at this stage.
    Originally posted by Loadsofchildren123
    Thanks! I kept seeing part 18 appear on these sort of threads so good to know! As Johnersh helped, I requested the court request they amend their particulars of claim. I think I will do this in every covering letter moving forward.

    Thank for the advise!
    • safarmuk
    • By safarmuk 13th Oct 17, 4:20 PM
    • 613 Posts
    • 1,125 Thanks
    safarmuk
    Thanks Johnersh! Ah that is interesting Loadsofchildren. In the email I got from them it stated it in their email signature. I will post to be on the safe side but might email if need be in the future and see if they object.
    I would first post it to them and get a free "proof of posting" receipt from the post office.

    Then scan the "proof of posting" receipt and email it along with you pack to GS letting them know you have served via the post as well. CC your email and/or another of your email addresses when you do this so you can prove delivery.

    That way nobody at GS can claim they never had sight of your papers.
    • Laura Higgs 76
    • By Laura Higgs 76 13th Oct 17, 4:23 PM
    • 17 Posts
    • 1 Thanks
    Laura Higgs 76
    I would first post it to them and get a free "proof of posting" receipt from the post office.

    Then scan the "proof of posting" receipt and email it along with you pack to GS letting them know you have served via the post as well. CC your email and/or another of your email addresses when you do this so you can prove delivery.

    That way nobody at GS can claim they never had sight of your papers.
    Originally posted by safarmuk
    Thanks Safarmuk! I nearly just put it in the letterbox. Shall do this instead as I am sure they will try to get away with these things
    • safarmuk
    • By safarmuk 13th Oct 17, 4:30 PM
    • 613 Posts
    • 1,125 Thanks
    safarmuk
    Thanks Safarmuk! I nearly just put it in the letterbox. Shall do this instead as I am sure they will try to get away with these things
    No worries, I always get the free "proof of posting" when I post anything official or important and I often tell the recipient that I have it so they know they can't pretend it never arrived.

    Also when you get "proof of posting" the cashier takes the package off you right away so there is that surety that it has made the mail that day.
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