Letter Before Claim - Own Bay PCN

steady.alone

To be honest there is nothing specific mentioned about car parking space in my renting lease. The only place where it mentioned is in Keys & Content List and states
1. CAR PARK SPACE - UNALLOCATED
2. REMOTE CAR PARK FOB - BLACK FOB

I have also obtained email confirmation from my estate agents for my Car park space "that the space is unallocated so you can park anywhere in the car park that doesn’t have a number on the floor."
The advert of my flat also confirms that the flat comes with the secure underground car park.

As a result, the management company threw PPC out and they confirmed to me in writing as well.

I have now read the cases and parking prankster blog as you pointed out, however, I am slightly confused about what to pick out of Schedule 4 of the POFA and Henry's wording from POPLA annual report?

Their argument on signage says clear and unambiguous - a map showing signs everywhere.
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Coupon-mad

To be honest there is nothing specific mentioned about car parking space in my renting lease. The only place where it mentioned is in Keys & Content List and states
1. CAR PARK SPACE - UNALLOCATED
2. REMOTE CAR PARK FOB - BLACK FOB

I have also obtained email confirmation from my estate agents for my Car park space "that the space is unallocated so you can park anywhere in the car park that doesn’t have a number on the floor."
The advert of my flat also confirms that the flat comes with the secure underground car park.

As a result, the management company threw PPC out and they confirmed to me in writing as well.

All of the above is brilliant evidence for your case, to be filed in good time with your WS.

I have now read the cases and parking prankster blog as you pointed out, however, I am slightly confused about what to pick out of Schedule 4 of the POFA and Henry's wording from POPLA annual report?

Lamilad may have time to explain what to include, or click on his username and read his thread (his own case transcript is also available from the Parking Prankster's case law list on page two 'Excel v Lamoureux' and his case relied upon the POFA and Henry Greenslade's wording).

steady.alone

You need to include evidence of that right and also a copy of Schedule 4 of the POFA and Henry Greenslade's wording from the POPLA Annual report , plus some of the residential cases from the Parking Prankster's case law page, e.g.:

Jopson v Homeguard (Appeal case, so it is persuasive on the lower courts)
PACE v Noor
Link v Parkinson

Do I need to give explanation of above in my witness statement or Skeleton Argument?

steady.alone

I have read Lamilad's case transcript and wonder how can I prove that I was not the driver on that day?

I don't think I will be able to send my WS tomorrow, do you think if I send it on 28th for delivery on 29th Mar, would I still be covered for 11th April hearing?

nigelbb

steady.alone wrote: »

I have read Lamilad's case transcript and wonder how can I prove that I was not the driver on that day?

The onus is on the PPC to prove you were the driver not for you to prove the contrary

nigelbb

steady.alone wrote: »

I don't think I will be able to send my WS tomorrow, do you think if I send it on 28th for delivery on 29th Mar, would I still be covered for 11th April hearing?

No. The 28th March is fourteen days before the 11th April. You risk having the court rule that your WS is inadmissible. The WS must be delivered to the court & the claimant tomorrow 28th March not sent a day later.

Coupon-mad

wonder how can I prove that I was not the driver on that day?

You don't have to prove the case, the claimant does. But if you can include a copy of the insurance showing more than one named person, that immediately shows that on the balance of probabilities the driver was not you.

Then you can assert that you were definitely not driving and offer to swear on oath, if it assists the court.

I don't think I will be able to send my WS tomorrow

Ring the court to ask for their email address so you can attach it as a PDF to an email. A WS doesn't have to be complicated nor re-state your defence. But it does give you the chance to attach evidence you intend to rely upon, so put that together and show us what you have, including:

- insurance dosucment for the material date if more than one driver is named (redact the full other name so the parking firm don't have it in full)
- the Keys & Content List you mentioned, which is great evidence
- the email from the Estate Agents
- the advert about the flat coming with parking
- the written confirmation that this parking firm has been kicked out for unfair ticketing and refusing to cancel

and printed out from the Parking Prankster's Case law pages:

- Jopson v Homeguard (Appeal case, so it is persuasive on the lower courts)
- PACE v Noor
- Link v Parkinson

and Schedule 4 of the POFA (this is linked in the NEWBIES thread post #1 where it says 'if you wish to dig deeper' when appealing)
and barrister/Lead Adjudicator Henry Greenslade's wording from the POPLA Annual Report 2015 about 'Understanding Keeper liability'.

steady.alone

I have just completed my Draft Witness Statement relying more on unfettered right and easement than others.

The car insurance was only under my name at the material time but others could drive my car on their on insurance.

WITNESS STATEMENT

1. I am an unrepresented consumer who has never attended the county court
before.

2. I refer to the Claimant’s witness statement as they have submitted a set of new legal arguments and not a witness statement that cannot be introduced at this late stage without paying a fee. I, therefore, request the court to strike out the Claimant’s witness statement.

3. I am not liable to the Claimant for the sum claimed, or any amount at all and this is my witness statement in support for my defence as already filed.

4. On the xxxx I received a parking charge notice no. xxx (Exhibit ) asking for payment of £100 (£60 if paid in 14 days) for not displaying a valid permit.

5. I refer to my first appeal (Exhibit) that was lodged on xxxx to let Claimant know that I have unfettered rights to park, as these rights were already granted within the lease agreement as a resident of the building. Giving signage the prominence, the Claimant then rejected my appeal.

6. Under any modern lease (Exhibit), residents would certainly have rights of way, at the very least, and their agreements cannot be varied unilaterally by anyone, let alone a third party not in possession of the land nor party to the rental agreement. The Claimant mentioned in their witness statement that we have not provided any evidence to support the right to park, the burden of this, remained with the Claimant to check the status of those residents in terms of unfettered rights and easements, before issuing a ticket.

7. In Jopsons v Homeguard 9GF0A9E [2016], Pace v Mr N [2016] C6GF14F0 [2016] and Link Parking v Ms P C7GF50J7 [2016] it was found that the parking company could not override the tenant's right to park by requiring a permit to park. If this gives the resident the unfettered right to park then this cannot be altered later, for instance by requiring a permit to park.

8. Refer to the advert and reservation form of the property, which confirms that tenancy, came with secure underground parking (Exhibit). This was further confirmed in the tenancy agreement (Exhibit) under Keys and Content List which says unallocated parking space and a private fob to access the parking gates. This has been further confirmed by the Estate Agent in their email to the Defendant (Exhibit)

9. It is also stated in the Tenancy Agreement Point 8.1 that the Landlord shall permit the Tenant to have quiet enjoyment of Property without interruption by himself or his Agent. (Exhibit)

10. As per the Claimant’s Witness Statement, they state that they are authorised to manage the Car Park, by their Principal Client ‘Mainstay Residential’ who also instructed the Claimant to cancel the charge they enforced to the Register Keeper, XXX date: (Exhibit) which they refused on the basis they incurred the costs.

11. Mainstay Residential has confirmed that the Claimant have received a number of complaints like targeting residents and leaseholders and remained non-compliant with the strict rules of car park maintenance. (Exhibit)

12. Mainstay Residential also confirmed that Claimant’s contract to operate the site was under review at the material date and later terminated in January 2017, and the Defendant would like to understand why this was the case when according to the Claimant they are operating under Schedule 4 of the Protection of Freedoms Act 2012. Exhibit

13. It is admitted that I was the authorised registered keeper of the vehicle in question at the time of the alleged incident. But I was not the driver of the vehicle so have no knowledge of the events, or signage terms on the date in question and the Claimant did not identify the driver

14. I have no liability, as I am the Keeper of the vehicle and the Claimant must rely upon the strict provisions of the Protection of Freedoms Act 2012, Schedule 4 in order to hold me responsible for the driver’s alleged breach.

15. The warning signs on the pillars are so high up and are difficult to read as shown in photgraphs (Exhibit) The car headlights are in the same line as the hoodline making it impossible to light up a space that is way above the line of sight (Exhibit, example of car headlights when on)

16. The signage was inadequate to form a contract with the motorist because it is barely legible, making it difficult to read. Part E, Schedule 1 of the Code of Practice of the Independent Parking Committee (of which Claimant is a member), clearly states that “Text should be of such a size and in a font that can be easily read by a motorist having regard to the likely position of the motorist in relation to the sign.”

Moreover, there is no prominent signage at the entrance of the parking area, which we had requested for and was not provided.

Signage was not lit, being located underground the car park is mostly dark at all times ( Exhibit: confirmation e-mail from Mainstay and photographs of notice boards confirming light issues in the underground parking) In addition, the amount of charge is non-prominent in the wording on the signage.


17. The driver did not enter into any agreement. No consideration flowed between the two parties and no contract was established.

18. I deny that the driver would have agreed to pay the original demand of £100 to agree to the alleged contract had the terms and conditions been properly displayed.

19. PRACTICE DIRECTION – PRE-ACTION CONDUCT AND PROTOCOL Steps before issuing a claim at court
6.Where there is a relevant pre-action protocol, the parties should comply with that protocol before commencing proceedings. Where there is no relevant pre-action protocol, the parties should exchange correspondence and information to comply with the objectives in paragraph 3, bearing in mind that compliance should be proportionate. The steps will usually include—
(a) the claimant writing to the defendant with concise details of the claim. The letter should include the basis on which the claim is made, a summary of the facts, what the claimant wants from the defendant, and if money, how the amount is calculated;
(b) the defendant responding within a reasonable time - 14 days in a straight forward case and no more than 3 months in a very complex one. The reply should include confirmation as to whether the claim is accepted and, if it is not accepted, the reasons why, together with an explanation as to which facts and parts of the claim are disputed and whether the defendant is making a counterclaim as well as providing details of any counterclaim; and
the parties disclosing key documents relevant to the issues in dispute.


20. The claimant has not provided enough details in the particulars of claim to file a full defence. In particular, the full details of the contract which it is alleged was broken have not been provided.
1. The Claimant has disclosed no cause of action to give rise to any debt.
2. The Claimant has stated that a parking charge was incurred.
3. The Claimant has given no indication of the nature of the alleged charge in the
Particulars of Claim.
The Claimant has therefore disclosed no cause of action.


21. The Particulars of Claim contains no details and fails to establish a cause of action which would enable me prepare a specific defence.
It just states “parking charges” which does not give any indication of on what basis the claim is brought. There is no information regarding why the charge arose, what the original charge was, what the alleged contract was nor anything which could be considered a fair exchange of information.

22. The Particulars of Claim are incompetent in disclosing no cause of action.

23. On the 20th September 2016 another relevant poorly pleaded private parking charge claim by Gladstones was struck out by District Judge Cross of St Albans County Court without a hearing due to their ‘roboclaim’ particulars being incoherent, failing to comply with CPR. 16.4 and ‘providing no facts that could give rise to any apparent claim in law.’


24. On the 27th July 2016 DJ Anson sitting at Preston County Court ruled that the very similar parking charge particulars of claim were deficient and failed to meet CPR 16.4 and PD 16 paragraphs 7.3 – 7.6. He ordered the Claimant in that case to file newparticulars which they failed to do and so the court confirmed that the claim be struck out.

25. The particulars of claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached. Indeed the particulars of claim are not clear and concise as is required by CPR 16.4 1(a).

26. The Claimants are known to be serial issuers of generic claims similar to this one. HM Courts Service have identified over 1000 similar sparse claims. I believe the term for such behaviour is roboclaims and as such is against the public interest.

Practice Direction 3A which references Civil Procedure Rule 3.4 illustrates this point:

7.5 Where a claim is based upon an agreement by conduct, the particulars of claim must specify the conduct relied on and state by whom, when and where the acts constituting the conduct were done.

27. I also dispute that the Claimant has incurred £50 solicitors costs to pursue an alleged £100 debt, the costs of which are in any case not recoverable

28. The claimant described the charge of £50 as ‘legal fees’ not ‘contractual costs’ CPR 31.14 does not permit these to be recoverable in the Small Claims Court. Also Claimant has mentioned that full details of charges are provided in the Parking Charge Notice, which is not the case. In the Letter before claim issued by Gladstones on xxx 2016 the Claimant referred to the amount mentioned in Notice to Keeper, which was issued on xxxx. However the amounts on these two communications don’t match and there are no details of costs breakdown in Notice to Keeper.

29. The amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable

30. I assert that the Claimant has also ignored the Government’s official position on parking charges as expressed clearly in the Department for Transport Guidance on the Recovery of Parking Charges:
“Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver.”

31. I submit that the amount demanded cannot possibly be a genuine pre-estimate of the Claimant’s loss.

32 The Claimant has at no time provided an explanation how the sum has been calculated, the conduct that gave rise to it or how the amount has climbed from £100 to £150.

33. The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.


34. PPC are not the lawful occupier of the land. I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no rights to bring this case.

35. The Claimant is not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract.

36. The Claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge. I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no right to bring action regarding this claim.

37. ParkingEye v Sharma (3QT62646 Brentford County Court) examined the contract and dismissed the claim for the reason that the Claimant had no ownership of, or proprietary interest in, the land; it followed that the Claimant, acting as an agent, had no locus standi to bring court proceedings in its own name.

38. ParkingEye v Gardam (3QT60598) similarly examined the contract and found the Sharma judgment persuasive.

39. I also refer the court to ParkingEye v Somerfield (2012) (EWCA Civ 1338 case A3/2011/0909) that examined ParkingEye contracts. This stated that any debt was due to Somerfield and that ParkingEye did not have the authority to issue proceedings. It follows therefore that if a debt exists, it is owed to the landowner, not the Claimant.

40. I would like to point out that as this car park does not offer a free parking period the ParkingEye v Beavis and Wardley case does not apply (ParkingEye v Cargius case)

STATEMENT OF TRUTH

steady.alone

Evidences I am going to rely on.

Email wording from Estate agents are

Hi xxxx,

Further to my below email I can confirm that the space is unallocated so you can park anywhere in the car park that doesn’t have a number on the floor.

Kind Regards, xxx

1. Advert -
2. Keys & Contents. -
3. Tenancy Wordings -

Coupon-mad

Remove #30, #31, #37 and #38, all of which went out with the ParkingEye v Beavis decision.

7. In Jopsons v Homeguard 9GF0A9E

should read (surname and claim number are wrong):

7. In Jopson v Homeguard B9GF0A9E

and all three cases (Jopson, Noor and Parkinson) need listing as exhibits and the transcripts filing with this WS; Google 'Parking Prankster case law' to grab them all from there.

Re #29, add this:

29. The amount claimed is [STRIKE]a charge and[/STRIKE] evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable when compared to the facts in the wholly different case of ParkingEye Ltd v Beavis, given the fact that this charge is an arbitrary and unilaterally-imposed penalty against residents, offending against the principle of non-derogation from grant.

and re #40, if citing Cargius you need to briefly say why it is relevant and also include it as an exhibit (again the transcript is hosted by the Parking Prankster in his Case Law pages).