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  • FIRST POST
    • Laura Higgs 76
    • By Laura Higgs 76 12th Sep 17, 10:16 AM
    • 59Posts
    • 21Thanks
    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 4
    • nosferatu1001
    • By nosferatu1001 2nd Jan 18, 5:43 PM
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    nosferatu1001
    When is their ws due? Keep an eye on dates. Given they’ve failed to disclose a case until now, their ws bundle is key otherwise you are FURTHER prejudiced.

    I’d send your costs schedule alongside your skeleton
    Include two sections - normal costs half day loss of earnings or leave and capped at £95.
    Second is the “unreasonable behaviour” costs. Tally up the mistakes by them, your time etc and lay it out. Should be a few examples round here.
    • Laura Higgs 76
    • By Laura Higgs 76 2nd Jan 18, 7:44 PM
    • 59 Posts
    • 21 Thanks
    Laura Higgs 76
    Their ws is due on Thursday! Do they leave it until the last minute too? I have left mine until tomorrow so they don't have chance to use mine.

    Perfect! I have created the cost case already using a template from the newbies thread :-)

    Last daft questions (for now) - I am assuming I send my ws to the court it has been transferred to?

    Secondly, if so, the court is literally in walking distance to me - could I hand it in myself to the court or does it have to be by post?

    Thanks you!
    • Laura Higgs 76
    • By Laura Higgs 76 3rd Jan 18, 12:58 PM
    • 59 Posts
    • 21 Thanks
    Laura Higgs 76
    Gladstones' WS didn't arrive in todays post. Maybe it will arrive tomorrow.

    They had to pay the £55 court chart by 29th otherwise it was the end of the case - I am guessing they always do this on time and I would have heard by now if they hadn't?
    • nosferatu1001
    • By nosferatu1001 3rd Jan 18, 2:04 PM
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    • 1,690 Thanks
    nosferatu1001
    They have missed it at least once. It should be essentially automatic.

    As the court order tells you you serve it in the court, CCBC isn’t a court. So it’s your local court. Hand deliver is fine! I think you have to post to gladstones. Not sure they accept via email.
    • Laura Higgs 76
    • By Laura Higgs 76 3rd Jan 18, 3:41 PM
    • 59 Posts
    • 21 Thanks
    Laura Higgs 76
    ooh interesting! I guess I would have been told if they didn't pay it.

    Perfect! I posted it to both of them so they would receive it by 1pm tomorrow.

    What happens if Gladstones don't send theirs on time?
    • nosferatu1001
    • By nosferatu1001 3rd Jan 18, 4:05 PM
    • 1,540 Posts
    • 1,690 Thanks
    nosferatu1001
    You call the court. See if they have a copy. State you don’t have one. Ask the court to not allow the claimants ws if it actually turns up, as this further disadvantages you. The claimant is likely to claim that late service is due to an administrative error, but this is not good reason to allow late service, especially as their solicitors carry insurance for just this eventuality
    • Laura Higgs 76
    • By Laura Higgs 76 4th Jan 18, 5:26 PM
    • 59 Posts
    • 21 Thanks
    Laura Higgs 76
    Thanks Nosferatu - It didn't arrive today so I shall ring the court tomorrow and ask just that. I tracked mine and the court received my WS at 10.34 and Gladstones received it at 9.20.
    • Laura Higgs 76
    • By Laura Higgs 76 9th Jan 18, 9:21 AM
    • 59 Posts
    • 21 Thanks
    Laura Higgs 76
    Still no Witness Statement! I have contacted the court everyday;
    Friday - hadn't dealt with Thursday's post yet
    Monday - The system was down
    Today - Finally received the answer that they still haven't received the claimant's WS either. However, they said they weren't able to advise on legal matters and that I would need to write to the court or process a formal order if I wanted the court to reject the claimant's WS.

    What do you think of me sending the following off to the court?

    FAO: Claims and Case Management **WOULD THIS BE THE JUDGE?**


    9th January 2018

    Dear Sirs and Madams,

    [Claim Number XXXXX], [Claim Number XXXXX] and [Claim Number XXXXX]

    I am the Defendant in all three of these matters. Claim Numbers XXXXX and XXXX have been consolidated.


    I am writing to discuss the Claimant’s Witness statement which had a deadline of Thursday 4th January, as stated in the Court Order. I still have not received this, and I have contacted the XXXX County court office who have advised they have not received this either. I would like to ask whether you would consider rejecting a late Witness Statement as this is a further disadvantage for myself as I have not received any documents or evidence to this date.

    I am also writing to follow up about my request to the court regarding the final claim XXXXX and whether it could be struck out, or in the alternative, consolidated with the other two cases, into a single set of proceedings. Dealing with two separate claims and potentially two trials is unnecessarily time consuming for me and a poor use of the Court's resources.

    I look forward to hearing from you.

    Yours faithfully.
    • nosferatu1001
    • By nosferatu1001 9th Jan 18, 10:23 AM
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    nosferatu1001
    If you have an allocated judge - which you do - you send it for their attention.

    Other two cases, yet you then say 2 sep claims - surely if there are two OTHER cases, you have THREE cases in total.
    • Laura Higgs 76
    • By Laura Higgs 76 9th Jan 18, 5:50 PM
    • 59 Posts
    • 21 Thanks
    Laura Higgs 76
    Typical - Just received their WS statement today. Can I still send a letter to ask for it to be rejected as its late?

    Will send their WS in due course
    • nosferatu1001
    • By nosferatu1001 9th Jan 18, 6:10 PM
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    nosferatu1001
    You can state how much it has disadvantaged you of course, and as that this breach of the court order is not allowed at the hearing.
    • Laura Higgs 76
    • By Laura Higgs 76 9th Jan 18, 7:14 PM
    • 59 Posts
    • 21 Thanks
    Laura Higgs 76
    Here is the claimant's witness statement;
    page 1 - http://i64.tinypic.com/if3ecw.jpg
    page 2 - http://i67.tinypic.com/24e841l.jpg
    page 3 - http://i63.tinypic.com/1icx01.jpg
    page 4 - http://i63.tinypic.com/258117l.jpg
    page 5 - http://i68.tinypic.com/10z64wi.jpg

    Evidence they can act on behalf of landowner - I thought "Bellway" who were the builders, or "Hyde" the housing association owned the car park? Barrats told me over the phone that Hyde owned the land? - hxxp://i65.tinypic.com/2hnbdhh.jpg

    Evidence of car park - this is not my car park! I do not live off a roundabout and I cannot work it out at all - hxxp://i68.tinypic.com/o8fjh3.jpg

    Here is my car park plan if anyone can work it out? I think they have it wrong - hxxp://i64.tinypic.com/dy8yme.jpg

    Can I ask Gladstones for a word copy or do I need to just retype it for my skeleton?
    Last edited by Laura Higgs 76; 09-01-2018 at 7:19 PM.
    • claxtome
    • By claxtome 9th Jan 18, 7:18 PM
    • 469 Posts
    • 504 Thanks
    claxtome
    You should be able to post http links yourself. Please Try re-editing your post to replace hxxp to http and save the post.
    • IamEmanresu
    • By IamEmanresu 10th Jan 18, 6:42 AM
    • 1,944 Posts
    • 3,429 Thanks
    IamEmanresu
    Have a go at the contract as this is a micky mouse one - self made.

    Firstly it appears to be a contract chain and does not identify who the parties are and if there is a contract between Gem and Phoenix. In addition as was pointed out this week, it is not a "contract" as it is not ostensibly signed by someone in authority.

    Section 44 of the Companies Act explains what is required

    A document is validly executed by a company if it is signed on behalf of the company—

    (a)by two authorised signatories, or

    (b)by a director of the company in the presence of a witness who attests the signature.";
    There is not even a signature never mind a witness to it.

    Add in the wrong car park and the attempt to mislead the court and your home and dry.
    Idiots please note: If you intend NOT to read the information on the Notice of Allocation and hand a simple win to the knuckle dragging ex-clampers, then don't waste people's time with questions on a claim you'll not defend.
    • Laura Higgs 76
    • By Laura Higgs 76 10th Jan 18, 8:42 AM
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    • 21 Thanks
    Laura Higgs 76
    Thank you IanEmanresu! I didn't know it was essentially a fake contract. Where can I find arguments against this - would it be in the Code of Practice?

    Would the judge definitely know it is self made too?

    As for the car park - is this usual for them to not even use the right image. It isn't even clear where the visitor bays vs resident bays are let alone me working out if im anywhere on the plan!

    Should I still write to the court as it was 3 working days, 5 normal days, late?

    All their evidence is, is the contract, parking plan, sign, letters to me and images of my car - they refer to previous cases but these aren't included?
    • IamEmanresu
    • By IamEmanresu 10th Jan 18, 9:18 AM
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    IamEmanresu
    would it be in the Code of Practice?
    You don't need the code. You just quote s44 from the 2006 Companies Act as above. Primary legislation such as the Companies Act is superior to any Code and any court transcript.

    Should I still write to the court as it was 3 working days, 5 normal days, late?
    If you do write to the court, you do it as a Skeleton Argument which what you intend to say on the legal from a legal viewpoint. Personally I wouldn't write as you have enough there to sink them but it would help to draft up your thoughts on each element so you don't get confused on the day.

    Just have a list of bullet points and the supporting legislation such as the Protection of Freedoms Act if you are usuing it plus the Companies Act here (https://www.legislation.gov.uk/ukpga/2006/46/section/44)
    Last edited by IamEmanresu; 10-01-2018 at 9:22 AM.
    Idiots please note: If you intend NOT to read the information on the Notice of Allocation and hand a simple win to the knuckle dragging ex-clampers, then don't waste people's time with questions on a claim you'll not defend.
    • Laura Higgs 76
    • By Laura Higgs 76 10th Jan 18, 9:31 AM
    • 59 Posts
    • 21 Thanks
    Laura Higgs 76
    Amazing thank you!

    I am going to start drafting my Skeleton argument this week to be prepared.

    Very nervous but this forum has been amazing.

    A lot of the transcripts of how the court day went that I have read, the defendant doesn't say much as the judge is prepared by the witness statements.

    Is there any set layout of the day? Would they ever ask me what my main defence points are?
    • Laura Higgs 76
    • By Laura Higgs 76 11th Jan 18, 5:58 PM
    • 59 Posts
    • 21 Thanks
    Laura Higgs 76
    Hi all, how can I find out who own the land? I really believe that Hyde own the land, as Barratt mentioned on one of my phone calls, but the contract here mentions "PHOENIX QUARTER ESTATE MANAGEMENT COMPANY LIMITED".

    I am trying to find out to put it in my skeleton argument.
    • KeithP
    • By KeithP 11th Jan 18, 6:11 PM
    • 5,138 Posts
    • 3,601 Thanks
    KeithP
    For £3.00 the Land Registry will tell you who owns the land.
    .
    • claxtome
    • By claxtome 11th Jan 18, 6:13 PM
    • 469 Posts
    • 504 Thanks
    claxtome
    Hi all, how can I find out who own the land?
    Land registry for £3 but will take a couple of weeks or longer.
    From the council - who pays the domestic rates (I think something like that).

    Is there any set layout of the day? Would they ever ask me what my main defence points are?
    Usually Claimant goes first, then defendant.
    Your skeleton argument should mean that you want need to say much as the judge should just ask you do you want to add anything on top of it. All you would probably end up saying is to refute what the Claimant has said on the day.

    HTH
    Last edited by claxtome; 11-01-2018 at 9:01 PM.
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