Claim form- PCM & Gladstones

spaceman8

not too sure about the point 14. as i have admitted I'm the driver.

Coupon-mad

Well of course get rid of this sort of thing then!

to pursue me as registered keeper when the Claimant admits they have no such right, and

Basic stuff like that doesn't need you to ask us, it's common sense that an admitted driver must delete that bit.

I've still not managed to get my brothers lease so I've not been able to confirm if he has that clause in it about parking. also Gladstone still haven't sent me their witness statement so I can't really

Yes you can and you must state that you were relying upon the fact that your brother is a resident, which provides either a right to park without any caveats about permits or at the very least, an easement and implied right of way for invited/fully authorised visitors, otherwise the purpose of the car park is undermined and the arrangements for residents and their visitors unworkable.

Especially as this was so similar to the Jopson case and did only involve unloading, which is not parking. This was a finding of fact by Charles Harris qc in that appeal case, that a brief stop to unload was not 'parking'. Further, Lord Neuberger referred to the right to park as being a right to leave vehicles ‘on a relatively long-term basis’, in contrast to a right to stop and load and unload, in Moncrieff v Jamieson at 105 and 123:

https://www.publications.parliament.uk/pa/ld200607/ldjudgmt/jd071017/jamie.pdf

Lord Neuberger discussed 'a right to park vehicles (i.e. to station them on a longer term basis)' as being different from unloading, which flows from an implied easement in a lease, as part of an implied right of way.

Add the above and that linked document, as evidence to be filed with your WS and BRING everything in triplicate, printed out, on the day.

You can say all of the above and then, if you get hold of the lease in the meantime, file it with a skeleton argument prior to the hearing date.

If you can't get the lease, then go with the fact that modern leases include implied rights of way and that stopping tenants from being able to move in, and penalising them for it, offends against any ordinary man's expectations when buying or renting a flat (of course you can move your belongings in and entitled to peaceful enjoyment of the property! Be really clear on that - also a loading bay is a loading bay!).

spaceman8

Hi

I've got my brothers lease. it doesn't have anything about a right of way or easement in this situation. i think because, even though PCM are operating just outside his flat, the 'loading bay' is for a little sainsburys, embedded into the side of the flat building. i can't be sure about this but this is what i think.

the only statement in his lease that comes close to something that might be useful is this "The right subject to payment referred to in clause 3.3.1 for the leaseholder and all persons authorised by the leaseholder (in common with all other persons entitled to the like right) at all times to use the common parts (but save and excepting any visitors parking spaces or designated parking spaces intended by the landlord for the sole use by any other party) for all purposes incidental to the occupation and enjoyment of the premises (but not further or otherwise).

its quite confusing but i gather this means the PCM loading bay wouldn't be allowed in this.

Coupon-mad

(but save and excepting any visitors parking spaces or designated parking spaces intended by the landlord for the sole use by any other party)

I would still argue that a bay merely marked 'loading bay' can be used for exactly that purpose by a resident. It is common sense and reasonable to assume that a loading bay is for any residents' loading/unloading, if it doesn't say 'Sainsburys customers only'.

That bay is also neither a visitors parking space nor designated for the 'sole use' of another party. You are making an assumption if you believe this, don't go there, you are the defendant and this lease helps your case:

"The right subject to payment referred to in clause 3.3.1 for the leaseholder and all persons authorised by the leaseholder (in common with all other persons entitled to the like right) at all times to use the common parts (but save and excepting any visitors parking spaces or designated parking spaces intended by the landlord for the sole use by any other party) for all purposes incidental to the occupation and enjoyment of the premises (but not further or otherwise).

What does the sign say at that loading bay, specifically, or is there no sign at that bay itself?

And I would add here:

8. In addition, (exhibit PCM sign) shows that “if unsure please seek further advice”. As this was done, by my attempts to speak with the operators agent, due to the fact that I was ignored, clearly shows an attempt to aggressively fine and entrap drivers. It is not only vague (what further advice and from whom, and why would a resident need advice on moving in?) but this is also a situation covered by Charles Harris QC in the Jopson Appeal case, at 21 and 22:

''Whether a car is parked, or simply stopped, or left for a moment while
unloading, or (to take an example discussed in argument) accompanying a
frail person inside, must be a question of fact or degree. I think in the end this
was agreed. A milkman leaving his float to carry bottles to the flat would not
be “parked”. Nor would a postman delivering letters, a wine merchant
delivering a case of wine, and nor, I am satisfied, a retailer’s van, or indeed
the appellant, unloading an awkward piece of furniture.

Any other approach would leave life in the block of flats close to unworkable...

I am quite satisfied, and I find as a fact, that while the appellant’s car had been stationary
for more than a minute and without its driver for the same period (whatever
precisely it was), while she carried in her desk, it was not “parked”.
Accordingly, for that reason too, the appellant was not liable to the charge
stipulated in the respondent’s notice.

...the idea that a postman or a milkman would have to telephone for permission to pause
outside each set of premises on the estate was manifestly quite unrealistic.''

spaceman8

heres a pic of the sign they had up.
http://i1244.photobucket.com/albums/gg577/smilezilla/pcm%20sign_zpskxsrzmbh.jpg

so it says " this loading bay is only for authorised vehicles actively loading & unloading whilst delivering to the commercial tenants of heath parade"

Coupon-mad

Oh I remember it. That close-up stock photo is misleading, on site it is quite simply illegible. Your other library of photos is more useful to you:

http://s1244.photobucket.com/user/smilezilla/library/?sort=3&page=1

Your actual 'on the spot' photos prove the sign is far too high, hidden on a wall, impossible to read. You would never be able to read it like you can that 'stock image' even if you stood under it, you would never be able to make out the terms or any onerous issue (the £100 charge) which under Lord Denning's 'red hand rule' MUST be very prominent before parking. Look how small the £100 and £60 are, tiny writing. And the sign doesn't immediately suggest that it relates to the loading bay...it is set well back, really unremarkable and unnoticeable.

I would say you will have to say that due to the tiny font on the sign that was not seen and in any case, there was no consideration flowing between the parties (PCM offered nothing, it is a prohibitive sign, if you can read it, with a cross through the 'P'). No offer = no contract. The only possible claim would be under the tort of trespass but the Beavis case reiterated that a parking company not in possession of title in the land cannot claim under tort, only the landowner could (and it would be pinned at any loss or damages - a nominal sum). You can't twist a matter of trespass into a contractual charge, the two things are not the same.

Use this case transcript in your evidence, look how similar the sign was, with a cross through the 'P' (no offer):

http://parking-prankster.blogspot.co.uk/2016/04/pcm-uk-signage-does-not-create-contract.html

transcript:

http://nebula.wsimg.com/b84a6ffd1e3514097ca033a01c8db4b7?AccessKeyId=4CB8F2392A09CF228A46&disposition=0&alloworigin=1

And as the sign was not prominent but the legend on the road 'loading only' (or whatever) was making what looked like an offer for residents' unloading there, you had no idea this could be a 'parking space intended by the landlord for the sole use by any other party'. Let alone accepting £100 charge that was hidden in such tiny print that a magnifying glass and a ladder would have been needed on a sign that purported to profit from trespass (a right PCM do not have).

In the absence of 'agreement on the charge' by virtue of a contract, in the Beavis case the Supreme Court Judges held that ParkingEye would have had no right to the parking charge. So, here there is an absence of agreement on the charge and the signs are forbidding.

You will need to amend your defence to home in on the point of an unreadable but 'forbidding sign' (BTW I noticed a typo 'defense' I think).

spaceman8

hey people.

heres a amended version of my witness statement. tell me what you think. I'm going to post it off this monday. Do i need to send full transcripts and complete copies of all the documents I've cited or just print off the pages I've referenced?



Witness statement

The facts in this statement come from my personal knowledge. Where they are not within my own knowledge there are true to the best of my information and belief

A short summary of what took place:

I was helping my brother move into his new flat in London.
I followed and parked up behind the movie van outside his flat.
Just after I pulled in (it did say "loading only") the PCM operator started taking photos of my car. I came out, tried to ask if it was ok to park here. (Got no response), read the sign on the wall and promptly moved.

1. I am not liable to the Claimant for the sum claimed, or any amount at all and this is my Witness Statement in support of my defense as already filed.

2. I was relying on the fact that my brother is a resident, which provides either a right to park without caveats about permits or at the very least, an easement and implied right of invited/fully authorized visitors. As most modern leases include implied rights of way and that stopping tenants from being able to move in, and penalizing them for it, goes against any ordinary persons expectations when buying or renting a flat. A bay merely marked ‘loading only’ can be used for exactly that purpose by a resident. It is common sense and reasonable to assume that a loading bay is for any residents ‘loading/unloading’.

3. (Exhibit 1- Lease) The bay is neither a visitor’s parking space nor designated for the ‘sole use’ of another party. I was a person authorized by the leaseholder and therefore should have been exempt from any restrictions.

4. (Exhibit 2–PCM photos Exhibit 3 – PCM signage).The claimant has based it claim upon the following supporting evidence

5. (Exhibit 4- IPC code of conduct- positioning & sizing, Exhibit – off Rd photographs). The claim cannot be acceptable, as it does not comply with many of its own code of conduct. The signage is very small, 10 feet up, above a door and pavement, small font and not on the driver’s side. This cannot be read when driving in, let alone agreeing to a £100 charge. The sign does not comply with the IPC code of conduct on both positioning & sizing. The sign is not prominent but the legend on the road ‘loading only’. This makes it look like a offer for residents to unload there and had no idea that stopping in said bay would incur £100 charge, which is written in such small writing that it is practically unreadable even when standing underneath the sign.

6. (Exhibit 5- Beavis transcript points 94, 190) There is no consideration flowing between the parties, as PCM are offering nothing, it is a prohibitive sign, (if it can be read) with a cross through the ‘P’. As there is no offer, there can be no contract. The only possible claim would be under the tort of trespass, however the Beavis case reiterated that a parking company not in possession of title of the land can not claim under tort. Only the landowner could. The costs would be based upon any loss or damage. In the absence of ‘agreement of the charge’ by virtue of contract, in the Beavis case, the Supreme Court Judge held that ParkingEye would have had no right to the parking charge. There is an absence of agreement on the charge as the signs are forbidding.

7. (Exhibit 3- PCM sign and Exhibit 6- Beavis Sign).A clear marked sign is shown by the Beavis sign offering a contract.

8. (Exhibit 7 - Jopson v Home Guard 19, 20, 21)It was shown by the case Jopson v Home Guard- that in the instance of stopping for short temporary unloading, it cannot be claimed that this is parking but only stopping and therefore not subject to any of the supposed fines imposed. This was a finding of fact by the judge Charles Harris QC and clearly defined that a brief stop to unload is not parking

9. (Exhibit 8– Moncrieff v Jamieson- 105 & 123) Further, in the case Moncrieff v Jamieson, Lord Neuberger referred to the right to park as being a right to leave vehicles ‘on a relatively long-term basis’ in contrast to a right to stop and unload.

10. (Exhibit 3- PCM sign) (Exhibit 7- Jopson v Home Guard 21 & 22) In addition, the PCM sign shows that “if unsure please seek further advice”. As this was done, by my attempts to speak with the operator’s agent, due to the fact that I was ignored, clearly shows an attempt to aggressively fine and entrap drivers. It is not only vague (what further advice and from whom, and why would a resident need advice on moving in?) but this is also a situation covered by Charles Harris QC in the Jopson case at 21 & 22

11. (Exhibit 4- IPC code of conduct) As mentioned in my defense. Another failing and example of the aggressive issuing of fines by the operator is shown by the lack of grace period. This is another breach of IPC code of conduct.

12. I did not respond to the brightly colored alarmist Notices sent to me because I believed they were spam (this sort of scam had been exposed on Watchdog). Also, as these were not offences or fines from an Authority like a Council, there was no reason or obligation upon a registered keeper to ‘appeal’ to what appeared to be junk mail. I have since researched this, hence my knowledge that these are non-POFA PCNs, incapable of holding me liable anyway.

13. (Exhibit 9- The Adjudicator) The claimant may argue that due to the fact that IAS rejected my appeal, that at this point I should have paid a fee. The response was lacking in any knowledge of law and contradicts itself.

14. (Exhibit 10- C1GF00T3 PCM (UK) v Alan Johnson). There is a conflict of interest as it is the same controlling minds behind IPC, Gladstones and IAS and therefore any appeal rejection holds no weight as it is inherently meant to be rejected.

15. (Exhibit 11– particulars of claim)Particulars of claim inadequate and don’t show any explanation of claim of any sort. No explanation of how increased costs have been incurred. A similarly poorly pleaded and evidenced ‘private parking ticket’ claim was struck out by District Judge Cross of St Albans County Court on 20/09/16 without a hearing, due to a the law firm’s template particulars being held to be ‘incoherent’, failing to comply with CPR 16.4, and ''providing no facts that could give rise to any apparent claim in law''.

16. The Court is invited to dismiss this Claim, and to allow my wasted costs. I firmly believe that the incoherent particulars of claim, lack of evidence, and complete disregard to own code of conduct and continual harassment to myself is wholly unreasonable.


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

spaceman8

although I've quoted this. does anyone have the transcript for this:

C1GF00T3 PCM (UK) v Alan Johnson

thank you

Coupon-mad

I'm going to post it off this monday. Do i need to send full transcripts and complete copies of all the documents I've cited or just print off the pages I've referenced?

Pages referenced is fine - but take full copies to court in your bundle, in case the Judge wants to see a full copy.

spaceman8 wrote: »

although I've quoted this. does anyone have the transcript for this:

C1GF00T3 PCM (UK) v Alan Johnson

thank you

No it is too recent:

http://parking-prankster.blogspot.co.uk/2016/12/court-report-oxford-another-gladstones.html

Not every case gets a transcript, it costs money and takes a while to come through from the authorised transcript firm, and that one was only a month ago anyway. Maybe there won't be one.

spaceman8

have i understood and argued this point correctly:

"3. (Exhibit 1- Lease) The bay is neither a visitor’s parking space nor designated for the ‘sole use’ of another party. I was a person authorized by the leaseholder and therefore should have been exempt from any restrictions. "

i don't know if i can win on this point as it says on the parking sign "this loading bay is for authorised vehicles actively loading and unloading whilst delivering to the commercial tenants of heath parade"

should i take this point out?

thank you