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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 5
    • Laura Higgs 76
    • By Laura Higgs 76 11th Jan 18, 6:19 PM
    • 59 Posts
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    Laura Higgs 76
    Thanks both - my court date is next week otherwise I would have paid the £3.00!

    So could I ring up the council and ask them who pays?
    • Coupon-mad
    • By Coupon-mad 11th Jan 18, 8:58 PM
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    Coupon-mad
    I think you can find out a landowner quicker than that from Land Registry - ring them and ask, in the morning.

    So could I ring up the council and ask them who pays?
    Yes and if they fob you off to 'put it in writing' explain that time is of the essence (and why!) and ask for an email address where you will get a quick response and answer, or tell them that you/a relative to to pop into the Council offices in person to get the answer in writing in person on Monday, so please can they get it ready, or email it.

    Ask, ask, ask, and tell the LR and Council how urgent it is and ask how they can help you.
    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.

    • Laura Higgs 76
    • By Laura Higgs 76 12th Jan 18, 8:58 PM
    • 59 Posts
    • 21 Thanks
    Laura Higgs 76
    Sorry another question - is the British Parking Assosiation nothing to do with PCM? Is that another version of the IPC or is it still relevant?
    • claxtome
    • By claxtome 12th Jan 18, 10:57 PM
    • 469 Posts
    • 506 Thanks
    claxtome
    There are 2 regulatory Approved Operator Schemes in the parking industry. British Parking Association (BPA) is one International Parking Community (IPC) is the other.

    A parking firm is only an "Approved" member of one. They each have a Code of Practice and are allowed to follow POFA 2012 Schedule 4 2012 guidelines to find out the registered keeper of a vehicle from DVLA.

    PCM is an IPC Approved member:
    https://theipc.info/aos-members/p

    To cloud this issue slightly - it is quite common for some of the IPC Approved members to be also "general" members of BPA (not "Approved" members).

    HTH
    Last edited by claxtome; 15-01-2018 at 12:17 PM.
    • Coupon-mad
    • By Coupon-mad 12th Jan 18, 10:59 PM
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    Coupon-mad
    Sorry another question - is the British Parking Assosiation nothing to do with PCM?
    Originally posted by Laura Higgs 76
    Correct. NOTHING to do with PCM since they jumped ship to the IPC years ago, from the BPA.
    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.

    • Laura Higgs 76
    • By Laura Higgs 76 15th Jan 18, 10:45 AM
    • 59 Posts
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    Laura Higgs 76
    I rang the council and they were no help at all - pointed me in the direction of Land Registry.

    However, on the land registry I could find the area myself and get the details. It says;
    "(29.12.2016) By a Deed dated 29 December 2016 made between (1) DV4
    Trustee No 1 UK Limited and DV4 Trustee No 2 UK Limited (2) Milton Park
    Homes Limited (3) BDW Trading Limited and (4) Phoenix Quarter Estate
    Management Company Limited the terms of the lease dated 27 March 2015
    of Garage 531, Phoenix Quarter referred to in the schedule of leases
    hereto were varied."

    Therefore I believe the car park does belong to Phoenix Quarter Estate Management Company, but as you have pointed out, the contract still isn't valid.
    • IamEmanresu
    • By IamEmanresu 16th Jan 18, 6:10 AM
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    IamEmanresu
    BDW Trading is Barretts and when they finish as scheme they set up a Management Company (for the common areas) on behalf of the residents i.e Phoenix Quarter Estate Management Company

    See #74. What is missing is the contract between Gem and Phoenix as you would expect Phoenix to have issued the contract rather than Gem. That is where the likely fraud mistake has been made in their paperwork.
    Last edited by IamEmanresu; 16-01-2018 at 6:15 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 17th Jan 18, 8:56 AM
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    Laura Higgs 76
    You can send a skeleton to the court a day or two before the day. You need to let the claimant have a copy but if necessary can wait until the day
    Just in case the court mislays it I would take a spare with you on the day.
    Originally posted by claxtome
    Hi Claxtome

    Can I just confirm that my skeleton argument doesn't need to go to the Claimant in advance? I sent it to the court yesterday by email (they advised on the phone).
    • Loadsofchildren123
    • By Loadsofchildren123 17th Jan 18, 9:38 AM
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    Loadsofchildren123
    send it to the Claimant as well
    Although a practising Solicitor, my posts here are NOT legal advice, but are personal opinion based on limited facts provided anonymously by forum users. I accept no liability for the accuracy of any such posts and users are advised that, if they wish to obtain formal legal advice specific to their case, they must seek instruct and pay a solicitor.
    • Laura Higgs 76
    • By Laura Higgs 76 17th Jan 18, 9:56 AM
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    • 21 Thanks
    Laura Higgs 76
    Thanks loadsofchildren - I am worried however that they will not receive it in time - it is tomorrow at 10am? They also noted that they don't accept files by email?
    • nosferatu1001
    • By nosferatu1001 17th Jan 18, 11:06 AM
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    nosferatu1001
    Well theres nothing you can do. You just send it. Its up to them to disagree at the hearing.
    • Johnersh
    • By Johnersh 17th Jan 18, 11:12 AM
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    Johnersh
    Go to a newsagent at lunchtime and use their fax machine...
    "The best advice I ever got was that knowledge is power and to keep reading."
    DISCLAIMER: I post thoughts as & when they occur. I'm unlikely to respond to DMs seeking personal advice. It's ill-advised & you lose the benefit of a group "take" on events.
    Your home is at risk if you don't meet mortgage payments or other loans secured on it
    • Laura Higgs 76
    • By Laura Higgs 76 17th Jan 18, 11:59 AM
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    Laura Higgs 76
    Thanks all! Emailed a contact at Gladstones and they said I can send it to their email.

    Don't think there is anything else I can do to prep is there?

    Have everything printed out ready to take with me - with hard copies of my skeleton argument to give to the judge and claimant.

    Should I read some transcripts to familiar myself with the day? Or is it best to just go in prepared for anything!
    • nosferatu1001
    • By nosferatu1001 17th Jan 18, 1:35 PM
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    nosferatu1001
    Costs schedule already sent in? THts the last one
    Ordinary costs PLUS a section on how theyve been unreasonable, and the time taken on this. £19 per hour.
    • Laura Higgs 76
    • By Laura Higgs 76 17th Jan 18, 1:46 PM
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    • 21 Thanks
    Laura Higgs 76
    Costs schedule already sent in? THts the last one
    Ordinary costs PLUS a section on how theyve been unreasonable, and the time taken on this. £19 per hour.
    Originally posted by nosferatu1001
    Thank you!!

    This was my costs schedule I sent in with my witness statement - 3 hours definitely is nowhere near but I got it from an example. Do you think it is ok?

    In the County Court at XXXXXXX Claim Number: XXXXXXXXXXX
    and XXXXX (Consolidated together)


    Between

    Parking Control Management Ltd (PCM)
    (Claimant)
    -AND-

    XXXXXXXXXXXXX
    (Defendant)



    DEFENDANTíS SCHEDULE OF COSTS

    Ordinary Costs

    Loss of earnings/leave, incurred through attendance at Court 18/01/2018 £88.00

    Return mileage from home address to Court (7 miles x £0.45) £3.15

    Parking near Court £5.00

    Sub-total £96.15 ======



    Further costs for Claimantís unreasonable behaviour, pursuant to Civil Procedure Rule 27.14(2)(g)

    Solicitor advice for 1 hour: £120

    Research, preparation and drafting of documents (3 hours at Litigant in Person rate of £19 per hour) £57.00

    Stationery, printing, photocopying and postage: £15.00

    Sub-total £192.00 ======



    £ 288.15 TOTAL COSTS CLAIMED
    • nosferatu1001
    • By nosferatu1001 17th Jan 18, 2:09 PM
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    nosferatu1001
    I doubt 3 hours is enough as well! Be realistic, you can give X hours for defence, Y for WS, gathering documents etc.
    I would also suggest you should detail the unreasonable behaviour
    • Laura Higgs 76
    • By Laura Higgs 76 17th Jan 18, 2:24 PM
    • 59 Posts
    • 21 Thanks
    Laura Higgs 76
    So am I ok to create an amended costs schedule?

    Would this be ok for unreasonable behaviour;
    - The Claimant breached the court order which clearly stated that Witness Statements had to be received by the Court and the other party 14 days before the hearing, the 4th January. Part of the Witness statement was received on the 9th January and the rest was received on the 11th January which was also a massive disadvantage to the Defendant.
    -
    The incoherent Particulars of Claim and lack of response to the Defendant's queries to help them create an accurate defence and Witness statement all disadvantaged the Defendant
    - The purpose of the Practice Direction is set out in paragraphs 3 and 12 - namely so that the parties can understand each other’s positions, make decisions about how to proceed, try to agree a settlement, support the “efficient management” of any ensuing proceedings and reduce costs – as per paragraph 8 “litigation should be a last resort”. The Claimant failed to respond or make contact with the Defendant.
    - The Claimant’s attempt to mislead the court by including incorrect details and evidence such as the contract with the landowner, which is not official, as well as referring to evidence which is incorrect, such as the site plan which is not of Phoenix Quarter Dartford.
    -
    The claimant has created three separate cases, one of which has not yet been consolidated with the two in question, as an attempt at not double, but triple recovery! This makes a mockery of the system and is another attempt to mislead the court that the charges are reasonable, when they are trying to recover them in three separate cases. Luckily, two of the cases have been merged
    -
    The Claimant can't take away spaces which were already given and this goes against the requirements for; fair dealing; prominence and; transparency as set out in the Consumer Rights Act 2015.


    Not sure I have anymore?
    • Laura Higgs 76
    • By Laura Higgs 76 17th Jan 18, 2:28 PM
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    Laura Higgs 76
    is this outrageous or ok? To be honest, being my first time and knowing nothing about the law it was way more.

    "Research, preparation and drafting of documents (3 hours for defence, 5 for WS and gathering documents and 3 hours for Skeleton argument at Litigant in Person rate of £19 per hour) £209.00 "

    • nosferatu1001
    • By nosferatu1001 17th Jan 18, 2:30 PM
    • 1,540 Posts
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    nosferatu1001
    Its worth a try
    Someone got £1500...!
    • Loadsofchildren123
    • By Loadsofchildren123 17th Jan 18, 3:12 PM
    • 1,879 Posts
    • 3,069 Thanks
    Loadsofchildren123
    don't forget x hours of attendance at court
    Although a practising Solicitor, my posts here are NOT legal advice, but are personal opinion based on limited facts provided anonymously by forum users. I accept no liability for the accuracy of any such posts and users are advised that, if they wish to obtain formal legal advice specific to their case, they must seek instruct and pay a solicitor.
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