PCM Ticket whilst parked outside a friends house visiting, do i pay?

Coupon-mad

Is it worth pursuing this route of defence anymore?

Yes. How do you think Miss Jopson won her case, or Mr N won his case in Pace v Mr N?

However he also said he doesnt think i can use it as defence as im a guest and that authority from a lease holder to park doesnt bare any weight especially without permit.

He's giving legal advice now then? Dangerous, he knows nothing about such matters and his interest would be in not rocking the boat and he probably thinks the parking firm are a professional company. Take what he said with a huge pinch of salt.

infernouk

Coupon-mad wrote: »

Yes. How do you think Miss Jopson won her case, or Mr N won his case in Pace v Mr N?

He's giving legal advice now then? Dangerous, he knows nothing about such matters and his interest would be in not rocking the boat and he probably thinks the parking firm are a professional company. Take what he said with a huge pinch of salt.

Thanks so i should stick to the tenancy agreement being prime contract and making no mention of a parking scheme? It seems the sign being prohibitive is a lot stronger point to argue.

In terms of a statement is there anything i should request that would be particularly useful? Or just a general summary. I will then being to develop the defence further

Coupon-mad

Thanks so i should stick to the tenancy agreement being prime contract and making no mention of a parking scheme? It seems the sign being prohibitive is a lot stronger point to argue.

No you use one followed by the other, with 'even if' sentences, so something like:

A covenant for quiet enjoyment is a standard feature in modern leases and ASTs and is implied where not expressly provided, along with rights to pass and re-pass and park, as was offered by the landlord to this tenant and the tenant's legitimate visitors. This was an integral part of the rented property as offered to the tenant at the time of signing that agreement, which this parking firm are not a party to and nor were their terms or charges a feature of the tenancy agreement.

Even if there are signs put up, terms cannot be bolted onto a contract afterwards by a third party; a parking firm cannot disregard the rights of tenants and their visitors, delivery drivers etc. as was found by a Senior Circuit Judge, Charles Harris QC, in June 2016.

Authorities to support my defence include but are not limited to the (higher court level) Appeal case heard at Oxford County Court by Senior Circuit Judge Charles Harris QC, in Jopson v Homeguard [2016] B9GF0A9E. Similar Small Claim decisions in 2016 include Pace v Mr N C6GF14F0 and Link Parking v Ms P - C7GF50J7. All three cases were brought by Gladstones for parking operators (including the original Jopson claim which went to appeal and is persuasive on the lower Courts). In all cases, it was found that the parking company could not override residents’ existing rights by requiring a permit to park and that the signs were of no consequence, due to the primacy of contract enjoyed by the Defendants. His Honour Charles Harris QC remarked in the Jopson appeal case decision that life in a residents block would be unworkable if visitors, delivery drivers etc. were expected to park immediately obtaining a permit (which a visitor would not have).

Even if the Court is minded to consider that a visitor must display a permit there must be a reasonable 'grace period' time allowed for fetching it from the resident (which involves xx flights of stairs/or was 500 yards away through an alleyway - or whatever) and there is no evidence that this time was allowed. Immediate ticketing or lack of a fair grace period is contrary to the IPC code of practice, being a predatory and unfair business practice.

Even if the Court is satisfied that there is a potential cause of action, there are no road markings or bays etc.; this is not a car park, just an unmarked cul de sac street and any signs were unlit and it was impossible to read terms. It was pitch black and the driver cannot be bound by terms on an unlit sign never seen, parking on an unmarked residential road. It is trite law on-street (had this been Council highway, where the TMA2004 applies as well as the Highway Code) that no markings suggests no restrictions.

So, if a operator wishes to fairly and prominently alert drivers to a parking charge and other onerous terms, they must mark the road and ensure the signs are clear, lit and in large lettering. Lord Denning's 'Red Hand Rule' applies; a driver cannot be bound by terms not brought to his/her attention in the clearest way, such that the driver would be bound to have seen and read the terms and learnt of the 'parking charge'. This was certainly not the case.

Even if the court believes the signs were possible to see in the dark, the wording is prohibitive (etc., etc., citing PCM v Bull).

etc.

'even if' or 'in the alternative' is the way to move your arguments on from one argument to another, until you hit the one the Judge likes (hopefullly!).

infernouk

Coupon-mad wrote: »

No you use one followed by the other, with 'even if' sentences, so something like:

A covenant for quiet enjoyment is a standard feature in modern leases and ASTs and is implied where not expressly provided, along with rights to pass and re-pass and park, as was offered by the landlord to this tenant and the tenant's legitimate visitors. This was an integral part of the rented property as offered to the tenant at the time of signing that agreement, which this parking firm are not a party to and nor were their terms or charges a feature of the tenancy agreement.

Even if there are signs put up, terms cannot be bolted onto a contract afterwards by a third party; a parking firm cannot disregard the rights of tenants and their visitors, delivery drivers etc. as was found by a Senior Circuit Judge, Charles Harris QC, in June 2016.

Authorities to support my defence include but are not limited to the (higher court level) Appeal case heard at Oxford County Court by Senior Circuit Judge Charles Harris QC, in Jopson v Homeguard [2016] B9GF0A9E. Similar Small Claim decisions in 2016 include Pace v Mr N C6GF14F0 and Link Parking v Ms P - C7GF50J7. All three cases were brought by Gladstones for parking operators (including the original Jopson claim which went to appeal and is persuasive on the lower Courts). In all cases, it was found that the parking company could not override residents’ existing rights by requiring a permit to park and that the signs were of no consequence, due to the primacy of contract enjoyed by the Defendants. His Honour Charles Harris QC remarked in the Jopson appeal case decision that life in a residents block would be unworkable if visitors, delivery drivers etc. were expected to park immediately obtaining a permit (which a visitor would not have).

Even if the Court is minded to consider that a visitor must display a permit there must be a reasonable 'grace period' time allowed for fetching it from the resident (which involves xx flights of stairs/or was 500 yards away through an alleyway - or whatever) and there is no evidence that this time was allowed. Immediate ticketing or lack of a fair grace period is contrary to the IPC code of practice, being a predatory and unfair business practice.

Even if the Court is satisfied that there is a potential cause of action, there are no road markings or bays etc.; this is not a car park, just an unmarked cul de sac street and any signs were unlit and it was impossible to read terms. It was pitch black and the driver cannot be bound by terms on an unlit sign never seen, parking on an unmarked residential road. It is trite law on-street (had this been Council highway, where the TMA2004 applies as well as the Highway Code) that no markings suggests no restrictions.

So, if a operator wishes to fairly and prominently alert drivers to a parking charge and other onerous terms, they must mark the road and ensure the signs are clear, lit and in large lettering. Lord Denning's 'Red Hand Rule' applies; a driver cannot be bound by terms not brought to his/her attention in the clearest way, such that the driver would be bound to have seen and read the terms and learnt of the 'parking charge'. This was certainly not the case.

Even if the court believes the signs were possible to see in the dark, the wording is prohibitive (etc., etc., citing PCM v Bull).

etc.

'even if' or 'in the alternative' is the way to move your arguments on from one argument to another, until you hit the one the Judge likes (hopefullly!).

fantastic thanks for this, im going to spend some time forming the defence and then wil post it here for critique. Out of interest, i registered yesterday that i had received the papers and was defending in full. The claim form was issued 21st Feb, is it 30 days from 21st to submit the appeal?

Coupon-mad

The claim form was issued 21st Feb, is it 30 days from 21st to submit the appeal?

Yes, work from the claim form date.

infernouk

Coupon-mad wrote: »

Yes, work from the claim form date.

Hey there!

I am hoping for some feedback on my defence, I have constructed it around my primary points of contention as directed and feel this covers most of the bases sufficiently, I will obtain statements from my girlfriend (the resident) as well as the estate agent, and have all the documentation and photos of the sign available to submit as well. Here is my proposed defence for submission...first point left out for personal details


2) The vehicle was at all times when at the residence, properly parked and it is believed it is common ground that it was neither causing an obstruction nor was it unauthorised, being parked at the permission of a permitted resident.

3) It is denied that any 'parking charges or indemnity costs' (whatever they might be) are owed and any debt is denied in its entirety.

4) This is a completely unsubstantiated and inflated three-figure sum, vaguely and incoherently adduced by the claimant's solicitors. The Particulars are not clear and concise, so I have had to cover all eventualities in defending a 'cut & paste' claim.

5) This claim merely states: ''parking charges and indemnity costs if applicable'' which does not give any indication of on what basis the claim is brought. For example, whether this charge is founded upon an allegation of trespass or 'breach of contract' or contractual 'unpaid fees'. Nor are any clear times/dates or coherent grounds for any lawful claim particularised, nor were any details provided to evidence any contract created nor any copy of this contract, nor explanation for the vague description 'parking charges' and 'indemnity costs'.

6) The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking for a true cause of action. HMCS have identified over 1000 similar poorly produced claims and the solicitor's conduct in many of these cases is believed to be currently the subject of an active investigation by the SRA.

7) I believe the term for such conduct is ‘robo-claims’ which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. I have reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to my significant detriment as an unrepresented Defendant.

8) I suggest that parking companies using the small claims track as a form of aggressive, automated debt collection is not something the courts should be seen to support.

9) No evidence has been supplied by this claimant as to who parked the vehicle having actively ignored my prior requests for this information in written form. Under the Protection of Freedoms Act 2012 there is no presumption in law as to who parked a vehicle on private land nor does there exist any obligation for a keeper to name a driver. I choose to defend this claim as the registered keeper, as is my right.

10) A covenant for quiet enjoyment is a standard feature in modern leases and ASTs and is implied where not expressly provided, along with rights to pass and re-pass and park, as was offered by the landlord to this tenant and the tenant's legitimate visitors. This was an integral part of the rented property as offered to the tenant at the time of signing that agreement, which this parking firm are not a party to and nor were their terms or charges a feature of the tenancy agreement.

11) Even if there are signs put up, terms cannot be retrospectively added into a contract by a third party; a parking firm cannot disregard the rights of tenants and their visitors, delivery drivers etc. as was found by a Senior Circuit Judge, Charles Harris QC, in June 2016.

12) Authorities to support my defence include but are not limited to the (higher court level) Appeal case heard at Oxford County Court by Senior Circuit Judge Charles Harris QC, in Jopson v Homeguard [2016] B9GF0A9E. Similar Small Claim decisions in 2016 include Pace v Mr N C6GF14F0 and Link Parking v Ms P - C7GF50J7. All three cases were brought by Gladstones for parking operators (including the original Jopson claim which went to appeal and is persuasive on the lower Courts). In all cases, it was found that the parking company could not override residents’ existing rights by requiring a permit to park and that the signs were of no consequence, due to the primacy of contract enjoyed by the Defendants. His Honour Charles Harris QC remarked in the Jopson appeal case decision that life in a residents block would be unworkable if visitors, delivery drivers etc. were expected to park immediately obtaining a permit (which a visitor would not have).

13) Even if the Court is minded to consider that a visitor must display a permit there must be a reasonable 'grace period' time allowed for fetching it from the resident (which involves 4 flights of stairs and conversation) and there is no evidence that this time was allowed. Immediate ticketing or lack of a fair grace period is contrary to the IPC code of practice, being a predatory and unfair business practice.

14) Should the Court be satisfied that there is a potential cause of action, there are no road markings or bays etc.; this is not a car park, just an unmarked cul-de-sac street, signs were poorly lit and it was impossible to read terms. It was pitch black and the driver cannot be bound by terms on an unlit sign never seen, parking on an unmarked residential road. It is trite law on-street (had this been Council highway, where the TMA2004 applies as well as the Highway Code) that no markings suggests no restrictions.

15) So, if a operator wishes to fairly and prominently alert drivers to a parking charge and other onerous terms, they must mark the road and ensure the signs are clear, lit and in large lettering. Lord Denning's 'Red Hand Rule' applies; a driver cannot be bound by terms not brought to his/her attention in the clearest way, such that the driver would be bound to have seen and read the terms and learnt of the 'parking charge'. This was certainly not the case.

16) Even if the court believes the signs were possible to see in the dark, the wording is prohibitive, it states you must display a permit to park, forbidding parking otherwise. It is therefore unable to offer a legitimate contact allowing parking for £100 if the driver decides to park. As Seen in PCM vs Bull (2016) where PCM used similar signage and the verdict summarised that all the sign is essentially saying is “you must not trespass on the roadway. If you do we are giving ourselves, and we are dressing it up in the form of a contract, the right to charge you a sum of money which really would be damages for trespass”, assuming of course that the claimant had any interest in the land in order to proceed in trespass. This verdict has been reached in regard to PCM signage of this nature at numerous other claim hearings, IPC signage does not create a contract as the notice is forbidding.

17) This case can be easily distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes. Charges cannot exist merely to punish drivers. This claimant has failed to show any comparable 'legitimate interest' to save their charge from Lord Dunedin's four tests for a penalty, which the Supreme Court Judges found was still adequate in less complex cases, such as this allegation.

18) The alleged debt(s) as described in the claim are unenforceable penalties, being just the sort of unconscionable charges exposed as offending against the penalty rule, in ParkingEye Ltd v Beavis.

19) Under the Protection of Freedoms Act 2012, Schedule 4 (POFA), a registered keeper can only be held liable for the sum in any compliant 'Notice to Keeper' (a sum which is less than this claim). This depends upon the Claimant fully complying with the statute, including 'adequate notice' of the parking charge and prescribed documents served in time/with mandatory wording. It is submitted the claimant has failed on all counts.

20) It is not believed that the Claimant has incurred additional costs - be it legal or debt collector costs or even their unlawful, fixed sum card surcharge for payments - and they are put to strict proof that they have actually incurred and can lawfully add an extra sums and that those sums formed part of the permit/parking contract formed with the resident in the first instance.

21) The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons. It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious. As such, I am keeping a note of my wasted time/costs in dealing with this matter.

22) I request the court strike out the claim for reasons cited by District Judge Cross of St Albans County Court on 20/09/16 where a similar claim was struck out without a hearing, due to Gladstones' template particulars for a private parking firm being 'incoherent', failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''.

Statement of Truth: I confirm that the contents of this statement are true to the best of my knowledge and belief.

Coupon-mad

Looks just fine; I would just tweak this wording if not saying who was driving:

signs were poorly lit and it was impossible to read terms. It was pitch black and the driver cannot be bound...

the photos shown by this claimant merely show very poorly lit signs, which would have made it impossible for a driver to read terms or learn of the parking charge buried in unremarkable, unlit small print. It seems that it was pitch black, so unlike in the far more complex case of ParkingEye Ltd v Beavis [2015] UKSC 67, the driver cannot be bound...

infernouk

Coupon-mad wrote: »

Looks just fine; I would just tweak this wording if not saying who was driving:

thanks, out of interest does it actually matter at this point who was driving? if im asked do i give an answer?

So other than this the defence is good to submit?

Coupon-mad

Depends. You wrote the appeal from the keeper so I was making sure nothing went against that style in case you want to argue 'no keeper liability' at the hearing.

However, if a person was driving and wants to use lots of evidence & a witness statement from the resident, to argue primacy of contract regarding a residential car park, I have to say you will find it easier and the Judge will see you as a more honest witness if you drop the pretence of 'keeper' and stick with the main defence issues showing the charge to comprise a matter of 'derogation from grant'.

So it's up to you, decide now your stance and stick with it. Whatever would feel more comfortable to be saying at any hearing. And of course if the keeper was not driving then they should state as much, at the start.

I assume you didn't show us point #1 because it has your name as keeper? You do have a point #1 we assume!

infernouk

Coupon-mad wrote: »

Depends. You wrote the appeal from the keeper so I was making sure nothing went against that style in case you want to argue 'no keeper liability' at the hearing.

However, if a person was driving and wants to use lots of evidence & a witness statement from the resident, to argue primacy of contract regarding a residential car park, I have to say you will find it easier and the Judge will see you as a more honest witness if you drop the pretence of 'keeper' and stick with the main defence issues showing the charge to comprise a matter of 'derogation from grant'.

So it's up to you, decide now your stance and stick with it. Whatever would feel more comfortable to be saying at any hearing. And of course if the keeper was not driving then they should state as much, at the start.

I assume you didn't show us point #1 because it has your name as keeper? You do have a point #1 we assume!

Yes point one was just a declaration that I am the keeper of the car. Can i not say i was driving but they still didnt take the right steps to establish this and pursue me in this manner? Do i need to edit the defence from what i posted if i state i was driving if questioned?