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

infernouk

Coupon-mad wrote: »

Yes, everything goes to Gladstones & the court.

did you see the download link? ive got my statement in there if theres any chance you or anyone can spare a look over to make sure its the right sort of thing it would be greatly appreciated!

infernouk

Sorry to bump the post, but can anyone spare a moment to look at the docs i prepared for my witness statement before i submit to make sure im on the right lines? Here is the link again:

https://www.dropbox.com/sh/me8kyef9w43msk6/AAD3cYJ2CjRrdYdVbpS-QP7Ua?dl=0

It would be much appreciated!

[Deleted User]

Sorry i've been away. Hope this is still in time.

If they fancy some arguments, try incorporating some of the below (and if i'm still in time). Your version is not a bad first draft, but it reads as though you are angry... best take some of the heat/emotion out (if possible). This is not a pleading - it includes my comments to you, so read and use the bits you need only.

PARTICULARS OF CLAIM
There is no evidence that the Claimant wanted to include more detailed particulars of claim and was unable to do so by the constraints of the system. The character limitation should not be deployed as a basis for failure to plead his case properly. In any event the MCOL system guidance specifically states:

If you do not have enough space to explain your claim online and you need to serve extra, more
detailed particulars on the defendant, please tick the box that appears after the statement ‘you may
also send detailed particulars direct to the defendant’

If the Particulars fail to refer to NOTICE (i.e. that you were on notice of the permit scheme and had agreed to it by not rejecting it) then they should be debarred from alleging that you were aware of the terms of the scheme or agreed to them - this must be specifically pleaded (CPR Part 16 PD 16 para 8.2). If the pre-action correspondence does not refer to CONDUCT (that your continued use of the permit scheme constituted agreement to the scheme) then you can and should argue that this is a wholly new point, that should have been pleaded and that they should be debarred from running the claim on this basis also. Those are novel arguments made in the statement. It is an abuse of process.

Until re-pleaded with the signage, the Claimant failed to set out clearly the precise terms of the contract breached or, for example, the hours of operation of the contract. If the pre-action correspondence has not set out the full terms of the wording of any signage and nor does the Particulars, I believe that you should argue that it is unclear what, if any, contractual term has been breached. Merely setting out the registration of your car, the date and a fee sought, is nothing more than a request for payment not detail of why the debt is said to be owed – it is not for nothing that the document is described as Particulars. This is in the context of a professional claimant.

CHARGE
If £50 is automatically levied as a result of a failure to pay within 28 days, that would appear not to have any basis in actual costs incurred, but to be a penalty that is not referred to on any signage and which is, by common consent, a sum which takes the total sum sought in excess of industry recommended maximum. Indeed the signage refers to additional (unspecified) charges MAY be charged, not MUST or WILL. Arguably you did not agree to them.

Parking Eye v Beavis is not authority that £85 is reasonable, but that it was an appropriate penalty within a commercial scheme, which fulfilled a legitimate business interest (to increase circulation of free spaces on a trading estate). A sum in an amount equal to or excess of £85 may be an unconscionable penalty in a different context such as this one, where the aim of the scheme is discourage unlawful visitors and not penalise or restrict the lawful user of the property.

CONTRACTUAL ENTITLEMENT
It is not for the Defendant to prove that the Claimant is not permitted to issue tickets. The Claimant must prove his case. If the Claimant fails to make out his case, the presumption is that the charge shall not apply. The Defendant does not need to prove pre-action that he has a tenancy agreement, although such will be made available to the Court. Conversely, the Claimant does need to prove that he is entitled to ticket before he can reasonably expect a Defendant to pay.

The Claimant has not pleaded nor previously advanced any argument based on conduct accepting a permit scheme to which the Defendant was never a signatory. The Defendant avers that the Claimant should be debarred from pursuing this argument at this late stage in the proceedings.

The Defendant does not contend that there was no signage. The Defendant will rely upon Jopson v Homeguard in support of the contention that temporary loading and unloading by his front door is legitimate use of his residence. The Defendant may well have repositioned his vehicle and displayed a permit once he had unloaded heavy supermarket shopping and had he been afforded opportunity to do so.

It is noted that the Claimant does not contend that the Defendant was not a lawful user or that the Defendant's household was not in possession of a permit to display. It is therefore unlikely to be disputed that the intention of the scheme (namely to prevent third party motorists obstructing the land and use by lawful residents) is not met by enforcement against the Defendant.

SIGNAGE
The signage is determinative of the contract between driver and parking company, if one is held to exist. Alder v Moore is an authority which, by and large, has been superseded by the Supreme Court judgment in Parking Eye v Beavis on penalty charges. Even were that not to be the case, it is averred that the Alder matter can be distinguished, relating as it did to a commercial policy of insurance where to allow the Defendant to receive his insurance payment and pay no liquidated damages would have resulted in unjust enrichment.

The Claimant has failed to demonstrate in his witness evidence how his his company derives any entitlement to grant licenses over the land which exclude the lawful user. Any permitted parking management contract cannot extend to the granting of licences to third parties to use the land as this would operate to the exclusion of the lease, which expressly excludes subletting of any kind. Since the Claimant’s parking scheme is said to operate on this basis alone, it is averred that there is no parking scheme that can be offered.

To the extent that the Claimant avers that he is entitled to damages in any event (i.e.the “Buckingham Palace example”, notwithstanding that there is no parking facility that can have been provided, the Defendant respectfully requests that the Court record as much in their Judgment, such that a claim may be brought against (parking company) for breach of contract and unreasonable conduct in pursuing damages in connection with a contract for which no services have been provided.

COSTS
The wrapping up of additional charges with the claim by the Claimant appears to be an attempt to recover legal professional costs which are not permitted or recoverable on the small claims track. TO the extent that the costs are based otherwise the Claimant has provided no evidence as to how these costs are derived and no schedule in support of the same. The Defendant avers that they should be disallowed.

Coupon-mad

I like that Jonersh, and very handy to see a debunking of Alder v Moore:

The signage is determinative of the contract between driver and parking company, if one is held to exist. Alder v Moore is an authority which, by and large, has been superseded by the Supreme Court judgment in Parking Eye v Beavis on penalty charges. Even were that not to be the case, it is averred that the Alder matter can be distinguished, relating as it did to a commercial policy of insurance where to allow the Defendant to receive his insurance payment and pay no liquidated damages would have resulted in unjust enrichment.

infernouk

hey guys, not too late i have another week! i will be working on this on saturday so this info is fantastic! thanks for your time, i will come back tomorrow with any queries related to it if needs be.

Really appreciate the help

Umkomaas

Parking Eye v Beavis is not authority that £85 is reasonable, but that it was an appropriate penalty within a commercial scheme, which fulfilled a legitimate business interest (to increase circulation of free spaces on a trading estate). A sum in an amount equal to or excess of £85 may be an unconscionable penalty in a different context such as this one, where the aim of the scheme is discourage unlawful visitors and not penalise or restrict the lawful user of the property.

This could be bolstered by adding the official tweet from the Supreme Court immediately after the conclusion of the case. ......

https://mobile.twitter.com/UKSupremeCourt/status/661846322417397760

.... which makes it clear that it relates to 'this particular car park'.

infernouk

Umkomaas wrote: »

This could be bolstered by adding the official tweet from the Supreme Court immediately after the conclusion of the case. ......

https://mobile.twitter.com/UKSupremeCourt/status/661846322417397760

.... which makes it clear that it relates to 'this particular car park'.

oh very useful thanks! can i submit this as an exhibit in my statement?

[Deleted User]

I wouldn't as the actual reasoning in a little more nuanced than that, referring to the practice in the UK, rather than confining it to a single car park.

The fact remains, however, that parking eye neither applies to all ticketing cases nor does it guarantee that £85 or any other sun for that matter will not constitute a penalty.

If it helps read the press summary which is a more accessible document than the full judgment.

https://www.supremecourt.uk/cases/uksc-2015-0116.html

infernouk

Hey guys,

I have updated the statement based on the feedback and additional info and removed some of the angry statements, added the new defence stuff.

I feel its quite lengthy? But that my part is needed to paint the picture and then the defence points required to defend the situation, should I be chopping anything in there out?

Here is a link to the dropbox file, the other exhibits are still on the previous link if needed.

https://www.dropbox.com/s/n04ov8as70xyvbm/My%20Statement%20Redacted%20UPDATE.docx?dl=0

Really appreciate the help, id be pretty lost without all you guys help! just need to confirm its right before i send it and proceed to the day!

Coupon-mad

It needs some tidying and to remove repetition (i.e. you talked about students aged 18/21 having permits withheld, twice - cut one out).

Change this in (b) to 'Defendant' (you!):

...and who will be legally represented in this case; against an unrepresented Litigant in Person with no legal knowledge or experience of court process.
b)This is clearly an attempt to put the claimant at a disadvantage,

This para doesn't make much sense to me:

a)The Particulars fail to refer to NOTICE (i.e. that I was on notice of the permit scheme and had agreed to it by not rejecting it) and so the claimant should be debarred from alleging that I was aware of the terms of the scheme or agreed to them (CPR Part 16 PD 16 para 8.2). The pre-action correspondence does not refer to CONDUCT (that continued use of the permit scheme constituted agreement to the scheme), that should have been pleaded and the claimant should be debarred from running the claim on this basis also.

Remove 'arguably' below, and add the part I've added at the end:

Indeed, the signage refers to additional (unspecified) charges MAY be charged, not MUST or WILL. Arguably I did not agree to any added 'costs' and the disproportionate parking charge already includes a significant (majority) sum as pure profit for the parking firm, as was recognised by the Supreme Court Judges in ParkingEye Ltd v Beavis [2015] UKSC 67.

Finally, where you talk about the signs, state in a separate para, that the signs do not relate to nor set out any terms about loading/unloading restrictions, and as such, it is reasonable to conclude that there are no restrictions on reasonable, temporary loading/unloading activity at this multi-occupant accommodation. Your case is very like Jopson v Homeguard - make sure the Judge realises that case was 'on Appeal' (not just another County court first instance decision) and thus, persuasive on the lower courts where the facts are comparable.