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

infernouk

Coupon-mad wrote: »

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:



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


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.

I have revised as suggested, for the confusing para, should i cut it? i suppose what its saying is that the particulars never said i was under the scheme by simply not rejecting it, and that before the claim they didnt highlight continued use of the scheme was an agreement. The particualrs pre claim had literally nothing, the revised particulars when ordered by the court stated i accepted the contract by parking in the space...perhaps it needs some rewording or is it not critical to the case? Ill upload a new version of the document once this point is clarified

Coupon-mad

I think I would replace the confusing part by saying this (or split this into two points, as it's long!):

(a)The letter that came with the permit was innocuous and failed to alert residents to any 'contract' which was never explained or identified as a contract, nor that by not rejecting the permits, they and their legitimate visitors would be bound by a penalty not specified in the letter.

(b) Residents and their authorised visitors cannot be deemed to be fairly bound by the onerous an unexpected repercussions of a 'scheme' by simply not rejecting the permits foisted upon them in unsolicited, unsigned-for mail which was simply not capable of unilaterally varying their rights under their tenancy agreement.

(c) The letter did not state that binding terms on a sign were incorporated into the permit scheme, nor did it mention loading/unloading which is a normal part of daily life in a site of shared residences. Nor were parking charges/permits mentioned in the tenancy agreement.

(d) It is trite law that a term of a contract is only incorporated if parties are aware of it before the contract is formed, otherwise the terms come too late. The authority for this is Olley v Marlborough Court Ltd [1949] 1 KB 532 (CA)*

(e) The letter did not say that residents had any choice to 'opt in' or 'opt out' and what the repercussions might be of either action. This smacks of the type of 'automatic rollover' annual contract disallowed in consumer contracts. It has been identified that such a contract is likely to be most harmful where there are additional problems associated with it, for example where the commercial intent for it, and/or the financial risk, is not disclosed to consumers at the outset.

(f)** The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 apply to contracts made both on and away from business premises, as well as contracts such as this one, made 'at a distance' for example by mail. The Regulations require detailed information to be supplied, which the 'permit letter' letter failed to include. It also holds that: Consumers should always be asked to expressly consent to additional charges. Consumers will not be liable for any additional payments that they have not actively consented to and they have the right to request that they are refunded for these payments.

(g) The guidance on the European Law Directive 2011/83/EU, which resulted in the CCR Regulations states: 'For example, renting a parking space...is subject to the Directive.' There is no exemption for a private parking firm/parking spaces, and traders dealing with consumers and 'offering contracts' cannot exempt themselves from Consumer law.

(h) Only two permits were provided and were shared as best the students could, on the basis of need as a car arrived, but purely with the expectation that they were complying with a mere request to assist the landlord, to show they were not trespassers. We had no idea we might be bound by unknown and onerous terms, which cannot in any event, disregard the normal rights of way enjoyed under a tenancy or lease.

(i) The information provided with the permits, coupled with the sparse signage of small print, failed to meet Lord Denning's well-known 'red hand rule'*** as held in Spurling v Bradshaw [1956], "the more unreasonable a clause is, the greater the notice which must be given of it". In the case of Spurling it was decided that some clauses would need to be printed in red ink with a red hand pointing to it (to adequately draw the other parties attention) before the notice could be held to be sufficient. In this case, neither the unsolicited letter attaching the permits, nor the signs, drew any terms fairly or transparently to the attention of residents or their visitors who had no idea there was a 'contract' let alone agreed to it.



* http://www.e-lawresources.co.uk/Olley-v-Marlborough-Court.php

** http://www.legislation.gov.uk/uksi/2013/3134/made

https://www.businesscompanion.info/en/quick-guides/distance-sales/consumer-contracts-distance-sales

*** https://en.wikipedia.org/wiki/J_Spurling_Ltd_v_Bradshaw

infernouk

Coupon-mad wrote: »

I think I would replace the confusing part by saying this (or split this into two points, as it's long!):

(a)The letter that came with the permit was innocuous and failed to alert residents to any 'contract' which was never explained or identified as a contract, nor that by not rejecting the permits, they and their legitimate visitors would be bound by a penalty not specified in the letter.

(b) Residents and their authorised visitors cannot be deemed to be fairly bound by the onerous an unexpected repercussions of a 'scheme' by simply not rejecting the permits foisted upon them in unsolicited, unsigned-for mail which was simply not capable of unilaterally varying their rights under their tenancy agreement.

(c) The letter did not state that binding terms on a sign were incorporated into the permit scheme, nor did it mention loading/unloading which is a normal part of daily life in a site of shared residences. Nor were parking charges/permits mentioned in the tenancy agreement.

(d) It is trite law that a term of a contract is only incorporated if parties are aware of it before the contract is formed, otherwise the terms come too late. The authority for this is Olley v Marlborough Court Ltd [1949] 1 KB 532 (CA)*

(e) The letter did not say that residents had any choice to 'opt in' or 'opt out' and what the repercussions might be of either action. This smacks of the type of 'automatic rollover' annual contract disallowed in consumer contracts. It has been identified that such a contract is likely to be most harmful where there are additional problems associated with it, for example where the commercial intent for it, and/or the financial risk, is not disclosed to consumers at the outset.

(f)** The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 apply to contracts made both on and away from business premises, as well as contracts such as this one, made 'at a distance' for example by mail. The Regulations require detailed information to be supplied, which the 'permit letter' letter failed to include. It also holds that: Consumers should always be asked to expressly consent to additional charges. Consumers will not be liable for any additional payments that they have not actively consented to and they have the right to request that they are refunded for these payments.

(g) The guidance on the European Law Directive 2011/83/EU, which resulted in the CCR Regulations states: 'For example, renting a parking space...is subject to the Directive.' There is no exemption for a private parking firm/parking spaces, and traders dealing with consumers and 'offering contracts' cannot exempt themselves from Consumer law.

(h) Only two permits were provided and were shared as best the students could, on the basis of need as a car arrived, but purely with the expectation that they were complying with a mere request to assist the landlord, to show they were not trespassers. We had no idea we might be bound by unknown and onerous terms, which cannot in any event, disregard the normal rights of way enjoyed under a tenancy or lease.

(i) The information provided with the permits, coupled with the sparse signage of small print, failed to meet Lord Denning's well-known 'red hand rule'*** as held in Spurling v Bradshaw [1956], "the more unreasonable a clause is, the greater the notice which must be given of it". In the case of Spurling it was decided that some clauses would need to be printed in red ink with a red hand pointing to it (to adequately draw the other parties attention) before the notice could be held to be sufficient. In this case, neither the unsolicited letter attaching the permits, nor the signs, drew any terms fairly or transparently to the attention of residents or their visitors who had no idea there was a 'contract' let alone agreed to it.



* http://www.e-lawresources.co.uk/Olley-v-Marlborough-Court.php

** http://www.legislation.gov.uk/uksi/2013/3134/made

https://www.businesscompanion.info/en/quick-guides/distance-sales/consumer-contracts-distance-sales

*** https://en.wikipedia.org/wiki/J_Spurling_Ltd_v_Bradshaw

Thanks here is my revision, i split it off as a permit letter response section, my only point to make is that, they are arguing the signage was the contract not this letter? so does spending this much time countering the permit letter miss the point they are arguing or not?

revised version of the document with all changes is here:

https://www.dropbox.com/s/khwp7t0wyrnsia3/My%20Statement%20Redacted%20Updated.docx?dl=0

Coupon-mad

In my view, the ''contract'' issue should be argued in 3 tiers, never mind the signs, they come last:

1 - the tenancy agreement gives primacy of contract, and grants rights of way, rights to enjoyment of property, and a right to pass and re-pass, to residents and their visitors. No third party can unilaterally vary or remove those rights (Jopson case supports this).

2 - the letter enclosing the permit attempted to foist a contractual term upon the residents in its own right but it was unsolicited, not explained and not agreed, never explained to be a legally binding obligation.

3 - this is where signs come in, third in the pecking order. The PPC will say their contract is formed by signs alone but it CANNOT be the case, because the permits they speak of formed part of step 2, the letter. And in any case, the signs are silent about loading/unloading, which is a right already enjoyed by residents in modern leases where common areas exist (again the Jopson case shoots their argument down).



P.S. You need to remove the *** here, which was a guide from me, to show you where to find the cases to add to your exhibits:

Lord Denning's well-known 'red hand rule'***

infernouk

Coupon-mad wrote: »

In my view, the ''contract'' issue should be argued in 3 tiers, never mind the signs, they come last:

1 - the tenancy agreement gives primacy of contract, and grants rights of way, rights to enjoyment of property, and a right to pass and re-pass, to residents and their visitors. No third party can unilaterally vary or remove those rights (Jopson case supports this).

2 - the letter enclosing the permit attempted to foist a contractual term upon the residents in its own right but it was unsolicited, not explained and not agreed, never explained to be a legally binding obligation.

3 - this is where signs come in, third in the pecking order. The PPC will say their contract is formed by signs alone but it CANNOT be the case, because the permits they speak of formed part of step 2, the letter. And in any case, the signs are silent about loading/unloading, which is a right already enjoyed by residents in modern leases where common areas exist (again the Jopson case shoots their argument down).



P.S. You need to remove the *** here, which was a guide from me, to show you where to find the cases to add to your exhibits:

Thanks i get what you mean, also i have removed the ***, question, do i add those cases in full as exhibits or something? seems an overwhelming amount of info to get through, this statement is getting to be longer and more comprehensive than my defence, is that bad?

So is this final version ok to submit and send along with the exhibits, cover letter request to merge claims, and that letter you mentioned about the lack of their witness attendance which I was also going to use.

link: https://www.dropbox.com/s/kbfqrclxwe66o1c/My%20Statement%20Redacted%20Final.docx?dl=0

Coupon-mad

do i add those cases in full as exhibits or something?

Yes - if you can't find the actual case law ask the BMPA on their website (e.g. I couldn't find Olley v Marlborough court hosted as a transcript anywhere publicly available on first look, so maybe the BMPA have got it or can host it).

It's OK to be detailed, IMHO, and I am not alone in that.

infernouk

Coupon-mad wrote: »

Yes - if you can't find the actual case law ask the BMPA on their website (e.g. I couldn't find Olley v Marlborough court hosted as a transcript anywhere publicly available on first look, so maybe the BMPA have got it or can host it).

It's OK to be detailed, IMHO, and I am not alone in that.

ok thanks I will try to get hold of them for the exhibits.

So is that document ok now? no more tweaks required and accurately reflect the situation?

Coupon-mad

Coupon-mad wrote: »

Yes - if you can't find the actual case law ask the BMPA on their website (e.g. I couldn't find Olley v Marlborough court hosted as a transcript anywhere publicly available on first look, so maybe the BMPA have got it or can host it).

No sooner said than done - with thanks to the BMPA:

https://bmpa.zendesk.com/hc/en-us/articles/115004299665-Olley-v-Marlborough-Court-Ltd

Downloadable transcript there.

infernouk

Coupon-mad wrote: »

No sooner said than done - with thanks to the BMPA:

https://bmpa.zendesk.com/hc/en-us/articles/115004299665-Olley-v-Marlborough-Court-Ltd

Downloadable transcript there.

thanks for all this, im going to give it one more going over on saturday before sending. Do you know where i can find the notes or something for Spurling v Bradshaw![1956] as i cant find anything to include in my exhibits around it.

So i understand, i print my statement and all my exhibits and then post them to the court and too Gladstone? Can I email them as gladstone did to me? as its so much printing to print the whole tenancy agreement twice as well as everything else!

Do i include my preliminary matters regarding their witness attendance also? or wait until the day? also where do include my claim for expenses as ive completed that, i assume perhaps both of these two i just present on the dat? or does it all go together to both.

Coupon-mad

Spurling v Bradshaw![1956]

Google!

Plenty of resources from Wikipedia to Law resources summarise it, and Lord Denning's 'red hand rule'.

Costs schedule needs to be filed a couple of days before, to the court and the other side, along with your skeleton.