Too late to appeal ?

Constantgardener

Coupon-mad, thank you again for your excellent advice. I am most impressed, and very grateful, that you have taken the time to support me at this time of the year. I have spoken to the court and they say my defence is due in by 1st January. Here is the final version which I feel I must post/ fax today.


Defence of Court ClaimNo: ............. (Issue Date:...............)

I wish to defend the claim made by BSG CarParking Management Limited (BSG) for alleged parking and enforcement charges.These charges apparently relate to Parking Charge Notices (PCNs) issued on the30th January 2013 and on 2nd February 2013. The allegations which I deny arefor charges with a description of P647RSX/23540055 (dated 30/01/13 for £160)and P647RSX/23540057 (date 02/02/13 for £160).

The Defendantdenies he is indebted to the Claimant in any way:

BSG’s claimappears to be that there is a contract between myself and them under which Ihave agreed to pay their parking charge. I do not accept that BSG can establish that such a contract exists. As I understand the legal process it is forBSG to prove their case and they will need to show that such a contractexists. I do not believe that they willbe able to do so. The vehicle has neverbeen parked in the roadway by anydriver, as stated in the Notice to Keeper letters received from BSG, rather ithas been parked immediately in front of the door to the garage which my wifeand I own as lessees, along with an apartment in the adjacent block. It has been parked there whilst myself, mywife or tradesmen employed by us have been delivering tools and materials to beused in the refurbishment of the apartment, and whilst collecting the key tothe garage from the apartment. Theapartment is on the third floor, there is no lift, and so the car has beenparked as close to the block as is possible, without causing an obstruction(other than to our own garage door), so as to reduce the distance to carryheavy tools and materials. As the vehicle is always parked directly in front ofour garage and is not causing an obstruction to anyone, and with a sign in thewindscreen to the effect that the driver is working in the block and providinga mobile telephone number to contact the driver, I believe it unreasonable tosay a breach of contract occurred, assuming such contract exists.

BSG havebrought this claim in contract against me and so they will have to show that it was me thatparked the car on the relevant occasions. Therefore I request that BSG provides photographic evidence. Theseshould be clear and concise pictures of the driver of the vehicle so that Itcan be established whether I parked the car at the relevant time and enteredinto the contract alleged by BSG. Thephotographs should show the time and date of the incident and be accompanied bya copy of the latest calibration certificates from the independent contractorthat verifies the timings of the cameras that take these photographs.

Secondly, ifthey can show that it was me that parked the car at the relevant time, theywill need to show how the contract they allege supersedes the terms of thelease of the property that I own on the estate. The terms and conditions withinthe lease agreement between Barratt Homes Limited, the Lessor, and myself asthe Lessee, form a contract between said parties in relation to parking regulationsat the property. The terms of the lease state that I am not allowed to parkanywhere on the estate other than in such places as are providedtherefore. Consequently, parking in aplace other than is provided therefore is a breach of the lease and the correctremedy is an action by the landlord for breach of the lease. I do not see how BSG can say that I have acontract with them that supersedes the terms of the lease and imposes analternative remedy thereby usurping the power of the court. My car was parked immediately in front of mygarage in a place that prevents access to the garage, so it cannot be said thatmy car was parked in a place that could be reserved for general parking, as itwould prevent access to my garage. I amentitled to park the car in my garage and cannot avoid stopping the car infront of my garage to access it.

I do notbelieve that a legally binding contract exists between BSG and myself. As stated above, I do not believe thatcontract can be superseded and invite BSG to prove that a legally bindingcontract exists between us, and did at the time of the two alleged breaches ofcontract. I contend that, should a breach of contract have occurred, that is amatter between the Lessor and the Lessee.

BSG have also not provided me with any evidence that itis lawfully entitled to demand money from the driver or keeper. They do not ownnor have any proprietary or agency rights or assignment of title or share ofthe land in question. I do not believe that the Operator has the necessarylegal capacity to enter into a contract with a driver of a vehicle parking inthe car park they do not own, or indeed the lawful status to allege a breach ofcontract in their name.

BSG must provide documentary evidence in the form of a copy of the actualsite agreement/contract with the landowner/occupier (not just a signed slip ofpaper saying it exists). Specifically, to comply with the Code of Practice, thecontract needs to specifically grant BSG the right to pursue parking charges inthe courts in their own name, as creditor. The following cases are compelling recent small claims courtdecisions where a parking agent has been found not to have the standing topursue these charges in court as they are the wrong claimant:

ParkingEye v Sharma.
Case No. 3QT62646in the: Brentford County Court 23/10/2013
Before: District Judge Jenkins.
The judge said that contract was acommercial matter between PE and the landowner, and didn’t create anycontractual relationship with motorists who used the car park.


ParkingEye v Gardam
Case No: 3QT60598 High Wycombe County Court 14 November 2013
Claim dismissed. Costs of £90 awarded to Defendant. District Judge Jones wasshown the recent PE v Sharma judgment at Brentford Court re the same carpark. Judge Jones said that DJ Jenkins’ ruling looked persuasive. PE hadsupplied a copy of the landowner contract with EuroGarages, which the Judgescrutinised thoroughly, but said that there was no explicit granting of rightsby the landowner to the agent, and therefore she concurred with the view in ParkingEye v Sharma that PE had nostanding to bring the claim in their own name.

ParkingEye and Civil Enforcementcases are relevant evidence in a defence to a private parking charge allegationbecause they allege 'breach of terms/failure to comply' using a very similarbusiness model to that of a parking agent.







Thirdly, fora binding contract to exist it is my understanding that BSG will have to showthat the four essential requirements of a contract are present: Offer,Consideration, Acceptance and an intention by both parties to create legalrelations. If it was me that parked the car in front of my garage I wouldcertainly have had no intention to create legal relations. I challenge BSG to prove that all of theseelements were satisfied.

Should BSGbe able to prove that a legally binding contract exists between us, then Ifurther defend that claim on the basis that:

1 thatthe contract terms are unfair and therefore unenforceable. The Unfair ConsumerContracts Regulations 1999 section 5(1) states that:

A contractual term which has not been individuallynegotiated shall be regarded as unfair if, contrary to the requirement of goodfaith, it causes a significant imbalance in the parties' rights and obligationsarising under the contract, to the detriment of the consumer.

I contend that a parking charge of £100 for the allegedbreaches of contract is disproportionate and unfair and results in asignificant imbalance in the parties’ rights to the detriment of theconsumer. I have not been able to findany example of a parking charge for a car park that equates to anything likethe amount claimed by BSG. Car parkingcharges are at most a few pounds per hour. The amount that BSG is claiming is more akin to a car parking fine thana charge for using a car park. BSG haveno power to issue a fine and are merely attempting to structure the situationin an attempt to give themselves the power to issue a fine. Further significant imbalance in those rightsand obligations is created by the complete lack of visitor parking at the blockof apartments in which the driver of the vehicle would have been working onthose dates.

2 As Iunderstand the position in English law, the purposes of contractual damages areto put the innocent party into the position it would have been in if the breachhad not occurred. BSG are in effectclaiming a liquidated damage, which can in no circumstances be said to be agenuine pre estimate of the loss suffered by them as a result of a breach ofcontract.

Iquestion how the original charge of £100 can be a pre-estimate of loss if thisis then discounted to £60 for prompt payment. I suggest that this is used toentice the Defendant to pay up, making him/ her think he is getting a discountand at the same time avoiding more threats of increasing costs and eventualcourt action. If the charge is supposed tobe a penalty for “breach of contract” the penalty of £100 is an unenforceablepenalty clause. Following Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd[1915], clauses designed to punish a party for breach of contract may only beupheld if they represent a genuine pre-estimate of loss.The initial charge of£100 is a penalty, not a genuine pre-estimate of loss since the Claimant is notthe landowner and has suffered no consequential loss.



Private parking tickets unrelated to any genuine loss areunenforceable penalties as was
found in the Parking Eye v Smith case[2011]. Exel Parking Services vHetherington-
Jakeman[2008], OBServices v Thurlow (review decision by Circuit Judge, February
2011), and UKCPS v Murphy [April 2012].



Civil Enforcement Ltd. v McCafferty –the case was dismissed on two maingrounds-the onerous terms were not adequately brought to the Claimant’sattention and the case was analogous to the Thurlow case in that the £150 chargewas not a genuine pre-estimate of loss, especially since the Claimant wouldhave accepted £75.



Claim No: 3JD04791 ParkingEye Ltd -v- Paul D Heggie atBarnsley Court 13/12/2013
The Defendant had paid the initial charge but the Claimant claimed £50 incosts.

The Judge asked what loss the Claimant had suffered as they accepted the Defendant had paid. The Claimant’sSolicitor talked about ''the costs of maintaining the car park'' but the Judgeruled in the Defendants favour.



3 BSGwill have to show that the terms of the contract allow them to render each ofthe charges claimed. The charges werefor £100 each, reduced to £60 each if paid within 14 days. BSG then instructed debt collectors who thencontacted me and demanded £160 for each PCN. BSG will also need to show that the terms of the contract include theright to include the debt collectors charge.





In addition both of the Notice To Keeper letters received from BSG are

invalid since they were not delivered within the timelimits specified in the

Protection of Freedoms Act 2012, in paragraph 8, (4(b), 5& 6):

(4)The notice must be given by—

(a)handing it to the keeper, or leaving itat a current address for service for the keeper, within the relevant period; or

(b)sending it by post to a current addressfor service for the keeper so that it is delivered to that address within therelevant period.

(5)The relevant period for the purposes ofsub-paragraph (4) is the period of 28 days following the period of 28 days beginningwith the day after that on which the notice to driver was given.

(6)A notice sent by post is to be presumed,unless the contrary is proved, to have been delivered (and so “given” for thepurposes of sub-paragraph (4)) on the second working day after the day on whichit is posted; and for this purpose “working day” means any day other than aSaturday, Sunday or a public holiday in England and Wales.



Thetwo notices to driver were issued on 30th January 2013 1nd then on 2ndFebruary 2013. The two associated Notice to Keeper letters were not received,by post, until 8th April 2013, clearly after the defined “relevantperiod”. The both of the Notice to Keeper’s havetherefore been served out of time and are invalid. I request that the courtstrike the claim out as the claimant has no real prospect of succeeding on theclaim (CPR Part 24.2).

The two “ Letters Before Claim” sent on 2nd October 2013 by theClaimant’s Solicitor (GPB Solicitors llp) were defective and did not complywith Annex A Section 2 of the Practice Direction on Pre-Action Conduct in anumber of ways, as a “Letter Before Action” including:


• Failure to mention the Practice Directionitself and draw attention to para 4 concerning sanctions for failure to complywith the Practice Direction
• Failure to give the Claimant’s full name andaddress
• Failure to state clearly the basis on whichthe claim is made (i.e. why the claimant says the defendant is liable);
• Failure to explain how if financial loss isclaimed the amount claimed has been calculated
• Failure to list the essential documents onwhich the Claimant intends to rely
• Failure to set out the form of AlternativeDispute Resolution that the Claimant considers most suitable and invite me asdefendant to agree to.


These letters were obviously sent to intimidate me into paying a speculativecharge and not sent with a view to reaching an agreement.





I Believe that the facts stated in this document are true,















.............................................. (TheDefendant).

Coupon-mad

I have mentioned this on pepipoo as they may be able to help perfect the defence wording.

Constantgardener

I have now received a letter from the BSG's solicitors stating that their client has instructed them to file Notice of Intention to Proceed at the court.


They attached timed photographs of the car parked in front of my garage, but they do not show the driver, as I requested in my defence.


They seem to have totally misunderstood my defence in that they say I stated that I have a lease which affords me to park in a specific parking space and that their client has incorrectly ticketed me for parking in my designated space. You can see from my defence that this is not the case, I stated that the car was parked in front of my garage (as the photos show) and not on the roadway as they claimed on the PCN's.


They request a copy of the lease, together with a copy plan confirming that I was parked (they have yet to prove who parked it) in accordance of the lease. They quote rule 31.14 of the Civil Procedure Rules 1998 saying their client is entitled to have sight of a document which is referred to within a Statement of Case.


They have not, however, provided any of the documentation I requested in my defence (please see above). They just say that they make no comment as to my defence given that I have chosen not to instruct solicitors (I'm not sure why that is relevant).


How should I respond to this letter, if at all please ?

4consumerrights

They have not, however, provided any of the documentation I requested in my defence (please see above). They just say that they make no comment as to my defence given that I have chosen not to instruct solicitors (I'm not sure why that is relevant).

Both parties are entitled to see any documentation relating to the case and they are therefore withholding paperwork required. They are obviously trying to prevent any contract coming to light - regarding their management.

Have you found out who engaged this mis-management company?

Who are BSG's solicitors in this case as you could make a formal complaint to the SRA

Constantgardener

I would assume that the estate management company would have engaged them (assuming any party has). As yet they have not proven this, as requested.


The solicitors are Gladstones and I do intend to make a complaint,
thank you for your advice.

Coupon-mad

Write back, a short response and quote rule 31.14 of the Civil Procedure Rules 1998 saying you are entitled to have sight of a document which is referred to within a Statement of Case. And as such you require sight of the documentation requested in the defence, namely: xxxxxxxxxxxxx and xxxxxxxxxxxxxxx. On receipt of this long awaited evidence you will endeavour to get a copy of the lease but would suggest their clients can simply obtain it from their client, the management company, seeing as they appear to be acting on their behalf as agent.

You could also ask in your reply, what locus standi this Claimant has because you will also be relying upon recent Parking Charge Notice Claims which have failed including ParkingEye v Clarke from this week:
http://nebula.wsimg.com/71a4eb1b5de25e5c60b4d5cacfed6b40?AccessKeyId=4CB8F2392A09CF228A46&disposition=0&alloworigin=1

Print that out and have a couple of copies with you at the hearing among your well-organised file of evidence paperwork - and also make sure the Court gets a skeleton argument from you not later than 14 days before the hearing. Bullet points for the Judge plus this transcript, plus you could include the 'PE v Gardam' transcript too. Available from the parking Prankster's Guide and still relevant even for a different PPC because like PE, your lot do not own the land.


By the way - go back in this thread urgently and edit any admissions such as in the first few posts...

Constantgardener

Thanks again for your excellent advice Coupon-mad. I can't edit text where responders have quoted me, though, can I ?

Constantgardener

Would the following response be OK?




Dear Sir/ Madam,


I am writing in response to your letter (your reference:DB/BSG0012) dated 24th January 2014.


I am disappointed that you do not seem to have understood my defence and respectfully suggest that you read it again, paying closer attention to the content therein. In that document I requested that the claimant provide time stamped photographs showing the contravention and identifying the driver. The copy photographs do not show the driver and so I again request that these are provided so that I may identify who parked the vehicle at that location on the two occasions that the alleged breaches of a contract, which your client claims existed, occurred. I also requested that the claimant provide a copy of the calibration certificates from the independent contractor that verifies the timings of the cameras that take these photographs. I, again, request site of this certificate.


I also requested that the claimant provide a copy of an actual site agreement/ contract with the landowner/ occupier. Specifically, to comply with the code of practice, the contract needs to specifically grant BSG the right to pursue parking charges in the courts in their own name as creditor.
Rule 31.14 of the Civil Procedure Rules 1998 states that I am entitled to have sight of a document which is referred to within a Statement of Case. And as such I require sight of the documentation requested in the defence, as mentioned above. On receipt of this long awaited evidence I will endeavour to get a copy of the lease but would suggest that your client can simply obtain it from their client, the management company, since they claim to be acting on their behalf as agent.

Please can you also explain what locus standi your client has because I will also be relying upon recent Parking Charge Notice Claims which have failed including ParkingEye v Clarke from this week.

Yours Sincerely,

Coupon-mad

I am not sure why you are focussing on the driver? Have I missed/forgotten something? Defences now don't normally focus on that unless you are saying you were not driving AND the Notice does not establish keeper liability (if so then say so). And where you cite PE v Clarke you need the case number and all which is why I linked it (for you to read, learn from and quote from). They won't know what PE v Clarke is about unless you tell them or link it, and say the BSG charge is the same 'bizarre nonsense' as the Judge declared in that case.

Guys_Dad

On a point of layout, when you ask for a number of items, then number them . This makes it easier for the other side to see and for any judge to pick out quickly at court.

Summarise the information you need either at the beginning or the end.

Also there is a numbering convention called "legal numbering". It's called that for a reason.

Use it in any submissions to court so that you can refer the judge to 4.1.1 , 2.2 etc

Little things like that endear you to busy people and, of course, ypou can say in court that "in my letter of dd/mm/yy, you can see that I requested 4 items. I have had no response to items 1,3 and 4".

Much easier if you have a decent layout. Looks professional as well.