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  • FIRST POST
    • Dollshouse
    • By Dollshouse 14th Sep 17, 11:57 AM
    • 20Posts
    • 7Thanks
    Dollshouse
    County court advice needed
    • #1
    • 14th Sep 17, 11:57 AM
    County court advice needed 14th Sep 17 at 11:57 AM
    I have a few days before the deadline for sending an Acknowledgement of service and I need to decide whether or not to defend.


    I don’t want to give out identifying details because I am gathering evidence and don’t want to alert the claimant about my defence until I have to. So I will explain the basic facts without giving away too much.


    The driver was visiting a friend in a town some distance away and they went into town in the evening. She told the driver to park in a private car park which she was convinced was a free car park in the evening. When the driver returned to the car a Notice of Parking Charge was stuck to the windscreen. Working on out-of-date information it was thrown away. When paperwork arrived at my home address I threw it all away (I know, I know, you don’t need to say it). Now I have a County Court claim against me.


    Because I have none of the paperwork I think my defence will have to rely entirely on the signs at the car park. I think I have a very strong case but and I want advice on whether or not I can win.


    There is a prominent notice at the entrance to the car park that indicates it is a free customer car park. The car park is unlit but there are street lights on the street at the front. There are the fairly standard private car park notices further back in the car park. The trump card seems to me to be the sign saying it’s a free car park. The lettering of the word ‘free’ is about 95mm high, the sign is at the entrance is at eye level and positioned where headlights hit it at night. The car was parked just inside the entrance after dark and no other signs were looked at before parking.


    There are private car park notices around the car park but these are all further back and all in positions where headlights would not hit them. They all have lettering much smaller than the big ‘free’ sign at the entrance.


    I have been and had a close look at all the signs and there are other contradictions in the signs. I have been told that it used to be a free car park and they have put up new signs but left the old signs in place.


    The new signs say: Terms and conditions ... Pay and Display ... breach of any term or condition will result in ... charge of £***... By entering or remaining on this land you agree to abide by all of the terms and conditions. In the middle of all the small print in letters 6mm high it says. Terms and conditions apply 24hrs a day... that is the only indication that they expect payment 24hrs a day.
    I don’t know if it matters but there are two sets of terms and condition on display. One set is in small print on the new signs and another set is more prominent and in much bigger lettering which I assume is from an earlier time and which make no mention of payment. Is that relevant? It does say on the new small sign that you have to abide by all terms and conditions.


    The friend knew it was a paying car park during the day but assumed it was free when the payment kiosk was not manned. I have spoken to another local who told me he also assumed it was free when the kiosk was closed and that he often parks there on Sundays without paying.


    I am still gathering evidence and now have, including me, four witnesses who are willing to make written statements.


    It seems to me that I have a very strong argument but I have doubts. I can’t believe they would be so stupid to try and take me to court if their case was so weak. Is their case weak or am I being niave?


    I have trawled through stuff on this forum and it all looks very complicated. My case seems very simple and straightforward to me but other defences on here have a large number of points. If I decide to defend would I really need to write such a long and complicated defence in such a short time?
    Last edited by Dollshouse; 15-09-2017 at 9:02 AM.
Page 2
    • nosferatu1001
    • By nosferatu1001 20th Sep 17, 10:40 AM
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    nosferatu1001
    http://www.flickr.com/photos/152306484@N06/36482088444/in/dateposted-public
    http://www.flickr.com/photos/152306484@N06/36482087104/in/dateposted-public/
    http://www.flickr.com/photos/152306484@N06/37319927065/in/dateposted-public/
    http://www.flickr.com/photos/152306484@N06/37129536896/in/dateposted-public/
    • Dollshouse
    • By Dollshouse 20th Sep 17, 11:37 AM
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    Dollshouse
    Here is a link to a photo of the entrance sign from Pepipoo

    aich tee tee pee ess //tinypic.com/r/2gtya35/9

    The sign has been partly covered but the main thing is that the word FREE is still easily read and very prominent.

    I have witnesses for the sign. Do witnesses have to appear in court in person?
    Last edited by Dollshouse; 20-09-2017 at 11:44 AM.
    • nosferatu1001
    • By nosferatu1001 20th Sep 17, 11:57 AM
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    nosferatu1001
    Seriously, just use hxxp. No silly phonetics



    Yes, ideally they will also appear in person. Without appearing in court the court may reduce the weight given to their emphasis.
    • Dollshouse
    • By Dollshouse 20th Sep 17, 7:13 PM
    • 20 Posts
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    Dollshouse
    Can somebody point out which legislation covers contracts for car parks. More precisely which legislation would they have to comply with in order for a contract to have been formed?
    • Lamilad
    • By Lamilad 20th Sep 17, 7:44 PM
    • 1,201 Posts
    • 2,384 Thanks
    Lamilad
    Can somebody point out which legislation covers contracts for car parks.
    There isn't a specific piece of legislation that applies to car park contracts.

    You have the consumer rights act which (among many other things) regulates unfair terms in consumer contracts in English contract law.

    And the Protection of Freedoms Act, schedule 4, which makes it possible for PPCs to claim unpaid parking charges from the registered keeper of a vehicle in cases where it is not known who was driving... But only if all conditions within the act are followed strictly, and to the letter.
    Last edited by Lamilad; 20-09-2017 at 7:46 PM.
    • Dollshouse
    • By Dollshouse 22nd Sep 17, 10:40 AM
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    • 7 Thanks
    Dollshouse
    That's interesting - and important. Whose name is on the signs then?
    Originally posted by Coupon-mad
    The car park is operated during the day by Parking Places LTD but ES Enforcement have put up parking charge signs. There are two different sets of terms and conditions displayed.

    I guess this is important because Parking Places would need to have a contract with the landowner and ES would need to have a contract with either Parking Places and/or the landowner. Right?

    Surely they are well aware of that and will have it in place. They make a lot of County Court claims and surely they aren't going to lose cases on such a simple point.

    In this defence http://forums.moneysavingexpert.com/showthread.php?t=5698354#11 the defendant says,
    "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;"

    I'm not sure that the claimant would have to include a copy of their contract with the landowner in the Particulars of Claim. I appears to me that the written contract referred to in the Practice Direction is a written contract between the claimant and the defendent when one exists.

    Can somebody clarify this?
    Last edited by Dollshouse; 22-09-2017 at 10:46 AM.
    • Coupon-mad
    • By Coupon-mad 22nd Sep 17, 2:19 PM
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    Coupon-mad
    There are two different sets of terms and conditions displayed.

    I guess this is important because Parking Places would need to have a contract with the landowner and ES would need to have a contract with either Parking Places and/or the landowner. Right?
    Yes, right.

    And even more usefully, it helps you because two sets of signs make the terms ambiguous, and under the famous Consumer Rights Act 2015, any ambiguity MUST be interpreted by a court, in the way which most favours the consumer. Look how this one played out in court:

    http://parking-prankster.blogspot.co.uk/2015/11/link-parking-v-cowles-another-big-win.html

    I doubt the 'Parking Places' signs mention a contract to pay £100, therefore if the driver only saw that sign from the day-today operator, he/she can't be bound to pay £100 they never even knew about, or agreed to pay.

    I'm not sure that the claimant would have to include a copy of their contract with the landowner in the Particulars of Claim. I appears to me that the written contract referred to in the Practice Direction is a written contract between the claimant and the defendent when one exists.

    Can somebody clarify this?
    I agree, that example conflates two different issues of ''contract''.
    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.

    • Dollshouse
    • By Dollshouse 3rd Oct 17, 10:41 PM
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    • 7 Thanks
    Dollshouse
    I have a couple of days before this has to be in and Iíve written a short and concise defence statement. I have read around the keeper liability issue and can see no point mentioning it. Even though they havenít complied with PoFA, I think they might have covered that by claiming against both the driver and/or the keeper. I can also see little point in challenging the standing although it might be useful to find out what contracts they have. I have decided to keep it simple and stick to my one point of defence that the signs are totally inadequate and misleading. However I am worried that I might have missed something and they could surprise me in court. Advice needed.


    Here is what I have so far:
    In the County Court - Claim No. ****

    Between

    ****** LTD (Claimant)

    and
    *******(Defendant)
    DEFENCE STATEMENT

    I deny that I am liable to the Claimant for the sum claimed, or any amount at all, because no contract was established between the claimant ******* LTD and the driver. No contract was established because the signs were inadequate.

    When the vehicle was parked there was a large and prominent sign at the entrance to the car park indicating that the car park was free of charge. This was the only sign at the entrance.

    Other signs in the car park were contradictory and misleading.

    Signs placed by the claimant are considerably smaller than the other signs, they have the smallest lettering, are the highest above eye level, are the most remote from the entrance and are unlit.

    There is a sign stating terms and conditions which reinforces that the car park is free of charge. This sign is larger and contradicts the terms and conditions on the sign showing the claimantís terms and conditions.

    The Consumer Rights Act 2015 (c.15) PART 2 Para 69 states: ď(1) If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail.Ē

    I believe the facts stated in this Defence Statement are true.

    (name) (Date)
    • Coupon-mad
    • By Coupon-mad 3rd Oct 17, 10:53 PM
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    Coupon-mad
    You are being very brave if you only give yourself the matter of signage to hang your hat on. I wouldn't recommend it; you've not even challenged the pointless added 'costs', and you should.

    I have read around the keeper liability issue and can see no point mentioning it. Even though they haven’t complied with PoFA, I think they might have covered that by claiming against both the driver and/or the keeper.
    No they haven't, not at all. In fact, the POFA assists a keeper in that respect, pinning the sum potentially recoverable, to the sum on the NTK. The POFA also assists because it states that adequate notice' in signs, of the parking charge. So the statute assists you.

    I think you could make more of this, the ''movable'' signs being changed:
    The car park is operated during the day by Parking Places LTD but ES Enforcement have put up parking charge signs. There are two different sets of terms and conditions displayed.
    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.

    • Dollshouse
    • By Dollshouse 3rd Oct 17, 11:41 PM
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    • 7 Thanks
    Dollshouse
    What you're saying doesn't seem logical to me. The whole thing about keeper liability depends on the signs being inadequate and if the signs are inadequate then there can't be a contract. I'm not liable for a penny because there is no contract so whether they are claiming against the driver or the keeper is irrelevant.
    Also, somebody said higher up this thread that the judge can ask who the driver was in court which also seems to make the driver/keeper argument pointless.
    • Coupon-mad
    • By Coupon-mad 4th Oct 17, 1:05 AM
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    Coupon-mad
    I'm not liable for a penny because there is no contract
    I don't disagree. BUT if the Judge disagrees then you have no safety net.

    I wish you well and hope you do win, but can't recommend a one-point defence and certainly not missing out even an objection to the sparse particulars of claim and added costs 'out of thin air'. If the Judge isn't with you on your defence point, you lose and you lose for the whole extortionate amount because you didn't raise the issue of random added costs.

    What if the Claimants file a series of photos of these new signs in close-up, and the Judge swallows it?
    The new signs say: Terms and conditions ... Pay and Display ... breach of any term or condition will result in ... charge of £***... By entering or remaining on this land you agree to abide by all of the terms and conditions. In the middle of all the small print in letters 6mm high it says. Terms and conditions apply 24hrs a day... that is the only indication that they expect payment 24hrs a day.
    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.

    • nosferatu1001
    • By nosferatu1001 4th Oct 17, 2:24 PM
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    nosferatu1001
    "The whole thing about keeper liability depends on the signs being inadequate "

    No it doesnt. It relies on the claimant failing to follow the strict reuqirements of POFA

    I would advise againstr ignoring the advice of one of the most experienced players in this pribvate parking game, who wrote the excellent newbies thread and who is far more active on this and pepipoo than anyone shoul dhave time for

    A single point defence is brave but foolish.
    • Lamilad
    • By Lamilad 4th Oct 17, 2:35 PM
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    • 2,384 Thanks
    Lamilad
    A single point defence is brave but foolish.
    +1 especially when that point is signage which, we know, can go either way depending on the judge.

    We also know that PoFA can be a slam dunk defence when argued correctly... It's black and white - they've either complied or they haven't!
    • Dollshouse
    • By Dollshouse 5th Oct 17, 10:09 AM
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    • 7 Thanks
    Dollshouse
    I'm sorry. I appreciate that you want to help but I really can't understand how PoFA can be a "slam dunk defence" in my case.

    I'm struggling now and don't know what to do.

    Why is the sparse Particulars of Claim a problem for the claimant? It is very concise but it seems to say all the basics that they need to say. How can I use that in defence?
    • Quentin
    • By Quentin 5th Oct 17, 10:41 AM
    • 33,580 Posts
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    Quentin
    Why are you coming back if you are determined to plough your own furrow??

    Your short defence has been commented on by authorities on the topic.

    You ignore the advice at your own risk.
    • Coupon-mad
    • By Coupon-mad 5th Oct 17, 12:19 PM
    • 51,817 Posts
    • 65,445 Thanks
    Coupon-mad
    Why is the sparse Particulars of Claim a problem for the claimant? It is very concise but it seems to say all the basics that they need to say. How can I use that in defence?
    Because Gladstones cases are regularly struck out or highly criticised by Judges, who find in favour of the Defendant. Some Judges rightly take the view that it's up to a firm of Solicitors to play things by the book in terms of fair and full particulars, whereas they would cut some slack for you.

    I really can't understand how PoFA can be a "slam dunk defence" in my case.
    It can be if your local court understands that a keeper can't be held liable unless the NTK meets the POFA wording (e.g. Manchester and Skipton Courts absolutely GET that fact). Which court is yours?
    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.

    • Lamilad
    • By Lamilad 5th Oct 17, 12:44 PM
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    Lamilad
    I really can't understand how PoFA can be a "slam dunk defence"
    There are loads of cases like these that can researched on the forums. the pranksters blog or just google:

    http://parking-prankster.blogspot.co.uk/2017/07/new-transcript-keeper-not-liable-if.html

    http://parking-prankster.blogspot.co.uk/2017/02/excel-ignore-judge-case-struck-out-by.html
    • Dollshouse
    • By Dollshouse 5th Oct 17, 2:29 PM
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    Dollshouse
    I don't have the NTK so I don't know whether or not it was worded correctly or served correctly.

    I can't see what might be missing from the Particulars of Claim and why it might not be 'fair and full'.

    It says, "The driver of the vehicle registration number ****** (the Vehicle) incurred the parking charge(s) on **/**/2017 for breaching the terms of parking on the land at **** car park **** The Defendant was driving the Vehicle and/or is the Keeper of the Vehicle. AND THE CLAIMANT CLAIMS £160 for Parking Charges / Damages and indemnity costs if applicable, together with interest of £4.63 pursuant to s69 of the County Courts Act 1984 at 8% pa, continuing to Judgment at £0.04 per day."

    [Their capitalisation]
    Last edited by Dollshouse; 05-10-2017 at 2:33 PM.
    • Dollshouse
    • By Dollshouse 5th Oct 17, 2:32 PM
    • 20 Posts
    • 7 Thanks
    Dollshouse
    Originally posted by Lamilad
    Thanks, but neither of those are like my case. There are important differences.
    • Lamilad
    • By Lamilad 5th Oct 17, 5:01 PM
    • 1,201 Posts
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    Lamilad
    Thanks, but neither of those are like my case. There are important differences.
    Doesn't matter. The point is if they haven't complied with PoFA then they can't hold the keeper liable and they would have no case.
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