UKPC Court claim question

Coupon-mad

sicone wrote: »

Hopefully last 2 questions before I post a preview defence.
I've noticed mention of Part 18 in other threads. Is this on the Court Claim or is it sent to you after you return the AoS? Looking through the Newbies thread I get the impression it's sent to you once the case is allocated to court but, as I haven't seen the physical copy of the form, I want to be sure.

I think you are getting muddled up with the DQ, which is sent to you after you file your defence. You might need to re-read bargepole's thread about what happens when (linked in the NEWBIES thread under 'Small claim?').

'Part 18 request' is merely describing a letter you might send to the claimant's solicitors, asking for (reasonable) information like a copy of the PCN, NTK and signage terms. You don't have to, but you can.

And/or the defendant can send a SAR (Google it) to UKPC direct, to get all data they hold on the keeper/the car. Can be useful.

AND the defendant should email the DVLA and ask how many times and on what dates, did any party request the data of this vehicle between the dates of the parking events, adding a couple of months either side. Important to know if they applied to the DVLA each and every time, as they have to.

But your defence comes first! Concentrate on that first. This will be part of it, the fact it is unclear what terms apply to what:

The 2 pictures they have of the car are in completely different bays. Do the no return cover the parking space, the bay or the whole car park?

And as it's a residential car park you will be using the Jopson appeal case of course (persuasive on the lower courts!). Read what's on the forum for you to use and don't stay in isolation on your own thread:

https://forums.moneysavingexpert.com/discussion/5553131

Search the forum for 'Jopson' to see how it can be brought into a defence. Here is an example from pepipoo forum doing exactly that (I posted some suggested defence wording at #20 as 'SchoolRunMum'):

http://forums.pepipoo.com/index.php?showtopic=109329&st=0

How do you find out who the landowner of the car park is?

Land Registry enquiry for about £3 would be a worthwhile investment if the Resident hasn't got those details.

sicone

OK, let's see how the first draft of the defence measures up.

1. It is admitted that Defendant was the registered keeper of the vehicle.
2. The Defendant has no liability as they are the Keeper of the vehicle, and the Private Parking Company has failed to comply with the strict provisions of PoFA 2012 to hold anyone other than the driver liable for the charge.
3. It is denied that the Claimant has authority to bring this claim. The proper Claimant is the landowner. UKPC cannot overrule the elements of the lease or introduce them subsequently. Strict proof is required that there is a chain of contracts leading from the landowner to UKPC.
4. UK Parking Control are not the lawful occupier of the land.
(i) UKPC is not the lawful occupier of the land.
(ii) absent contract with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from 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 locus standi to bring this case.
5. The signage on the site have been amended at some point in time. Proof is required that these changes have been approved by the landowner.
6. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. None of this applies in this material case.
7. The Protection of Freedom Act 2012 Schedule 4 has not been complied with. The registered keeper is unaware of 5 PCN's and was not the driver, as such the keeper can only be held liable if the Claimant has fully complied with the strict requirements including 'adequate notice' of £100 charge and prescribed Notice to Keeper letters in with mandatory wording.
8. It is believed that this Claimant has not adhered to the BPA Code of Practice and is put to strict proof of full compliance. This Claimant has been exposed in the national press - and was recently investigated by the BPA - for falsifying photo evidence, which was admitted by the Claimant. It is submitted that this is not a parking company which complies with the strict rules of their Trade Body, which were held as a vital regulatory feature in ParkingEye v Beavis.
9. This case can be easily distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes and UKPC have not shown any valid 'legitimate interest' allowing them the unusual right to pursue anything more than a genuine pre-estimate of loss.
10. No legitimate interest - the charge is incompatible with the rights under the lease - this distinguishes this case from the Beavis case
10.1 This exact question in a similar case was tested recently at Oxford County Court, JOPSON V HOME GUARD SERVICES, Appeal case number: B9GF0A9E on 29.6.16. I will include the transcript of that case at any hearing.

10.2 The Jopson Appeal case is a persuasive Appeal decision, where Senior Circuit Judge Charles Harris QC, found that the parking firm had acted unreasonably when issuing a parking charge notice to Miss Jopson, a resident of a block of flats who parked in front of the communal entrance to unload furniture, as this was the only accessible place to do so. Home Guard Services had sued Miss Jopson in the small claims court and won. Miss Jopson successfully appealed the case, her solicitor arguing that the charge was incompatible with the terms of the lease which gives residents (and their visitors and delivery drivers etc.) easements and specific rights which supersede any parking firm signs. The Judge found that Home Guard Services’ regulations - set out on wordy, unclear, badly-drafted signs like in this case - disregarded these rights and the Claimant was ordered to pay costs of some £2,000. The Judge was also at pains to point out that loading/unloading is not parking and such a case can be fully distinguished from Beavis, which did not apply.
11. As the contract is with the driver, the Claimant has provided no proof that the vehicle was not returned to the car park with a different driver.
12. Save as expressly mentioned above, the Particulars of Claim is denied in its entirety. It is denied that the Claimant is entitled to the relief claimed or any relief at all.

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

Coupon-mad

I think you need to add your own point near the top about this:

The 2 pictures they have of the car are in completely different bays. Do the no return cover the parking space, the bay or the whole car park?

Alert the court to the confusion and ambiguity over the signs and which bays or areas they relate to (or not, as the case may be) and that the 'no return' is unclear and unmanageable, seeing as different drivers can visit a location using the same car at different times and could not have contravened any contract. No evidence of who was driving on each occasion.

Were all signs the same? If not then say so.

Oh, and near the bit about no keeper liability, add a point about Henry Greenslade's words about 'Understanding Keeper Liability' in the POPLA Annual Report 2015.

Have a look at Lamilad's defence shown on his thread (different circumstances of parking/rules at the location, but he won on 'no keeper liability' using Henry Greenslade's words as helpful, effectively 'barrister support').

sicone

Coupon-mad wrote: »

I think you need to add your own point near the top about this:

Alert the court to the confusion and ambiguity over the signs and which bays or areas they relate to (or not, as the case may be) and that the 'no return' is unclear and unmanageable, seeing as different drivers can visit a location using the same car at different times and could not have contravened any contract. No evidence of who was driving on each occasion.

Were all signs the same? If not then say so.

Oh, and near the bit about no keeper liability, add a point about Henry Greenslade's words about 'Understanding Keeper Liability' in the POPLA Annual Report 2015.

Have a look at Lamilad's defence shown on his thread (different circumstances of parking/rules at the location, but he won on 'no keeper liability' using Henry Greenslade's words as helpful, effectively 'barrister support').

All the signs in the car park are the same.
Here is draft 2 with the additions suggested (what is now points 6 and 8):
1. It is admitted that Defendant was the registered keeper of the vehicle.
2. The Defendant has no liability as they are the Keeper of the vehicle, and the Private Parking Company has failed to comply with the strict provisions of PoFA 2012 to hold anyone other than the driver liable for the charge.
3. It is denied that the Claimant has authority to bring this claim. The proper Claimant is the landowner. UKPC cannot overrule the elements of the lease or introduce them subsequently. Strict proof is required that there is a chain of contracts leading from the landowner to UKPC.
4. UK Parking Control are not the lawful occupier of the land.
(i) UKPC is not the lawful occupier of the land.
(ii) absent contract with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from 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 locus standi to bring this case.
5. The signage on the site have been amended at some point in time. Proof is required that these changes have been approved by the landowner.
6. The wording on the signage is confusing and ambiguous as the “no return” clause is unclear and unmanageable.
6.1. There is no clarification as to whether the “no return” clause refers to the parking space, bay or entire car park.
6.2. The “no return” clause is unmanageable as different drivers using the same vehicle with the time period would not have contravened the contract.
7. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. None of this applies in this material case.
8. The Protection of Freedom Act 2012 Schedule 4 has not been complied with. The registered keeper is unaware of 5 PCN's and was not the driver, as such the keeper can only be held liable if the Claimant has fully complied with the strict requirements including 'adequate notice' of £100 charge and prescribed Notice to Keeper letters in with mandatory wording.
8.1. The claimant has no right to assert that the defendant is liable based on ‘reasonable assumption’. PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, "There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and operators should never suggest anything of the sort"(2015).
9. It is believed that this Claimant has not adhered to the BPA Code of Practice and is put to strict proof of full compliance. This Claimant has been exposed in the national press - and was recently investigated by the BPA - for falsifying photo evidence, which was admitted by the Claimant. It is submitted that this is not a parking company which complies with the strict rules of their Trade Body, which were held as a vital regulatory feature in ParkingEye v Beavis.
10. This case can be easily distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes and UKPC have not shown any valid 'legitimate interest' allowing them the unusual right to pursue anything more than a genuine pre-estimate of loss.
11. No legitimate interest - the charge is incompatible with the rights under the lease - this distinguishes this case from the Beavis case
11.1. This exact question in a similar case was tested recently at Oxford County Court, JOPSON V HOME GUARD SERVICES, Appeal case number: B9GF0A9E on 29.6.16. I will include the transcript of that case at any hearing.
11.2. The Jopson Appeal case is a persuasive Appeal decision, where Senior Circuit Judge Charles Harris QC, found that the parking firm had acted unreasonably when issuing a parking charge notice to Miss Jopson, a resident of a block of flats who parked in front of the communal entrance to unload furniture, as this was the only accessible place to do so. Home Guard Services had sued Miss Jopson in the small claims court and won. Miss Jopson successfully appealed the case, her solicitor arguing that the charge was incompatible with the terms of the lease which gives residents (and their visitors and delivery drivers etc.) easements and specific rights which supersede any parking firm signs. The Judge found that Home Guard Services’ regulations - set out on wordy, unclear, badly-drafted signs like in this case - disregarded these rights and the Claimant was ordered to pay costs of some £2,000. The Judge was also at pains to point out that loading/unloading is not parking and such a case can be fully distinguished from Beavis, which did not apply.
12. As the contract is with the driver, the Claimant has provided no proof that the vehicle was not returned to the car park with a different driver.
13. Save as expressly mentioned above, the Particulars of Claim is denied in its entirety. It is denied that the Claimant is entitled to the relief claimed or any relief at all.

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

Guys_Dad

In 11.2 in your appeal you write " The Judge was also at pains to point out that loading/unloading is not parking and such a case can be fully distinguished from Beavis, which did not apply." In fact, he stated

"19 The appellant’s case could also be put in another way. The purported
prohibition was upon “parking”, and it is possible to draw a real and sensible distinction between pausing for a few moments or minutes to enable passengers to alight or for awkward or heavy items to be unloaded, and parking in the sense of leaving a car for some significant duration of time...............
...............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.""

Since Jopson relates to short-duration unloading and the judge was very clear about that in the judgement, consider whether this case helps or hinders your appeal when you write in your opening post "My brother in law has received a Court Claim from UKPC for parking in resident's parking visitor bay for more than 48 hours. " I believe that this appeal point will be shot down in flames so easily based on the appeal judge's judgement.
And, as it is your final appeal point, it is most likely to be most fresh in the mind when a decision is being reached. Best to finish with a winner than a probable loser.

Coupon-mad

I agree, but certainly do not for a minute lose the Jopson case from your defence, just don't mention the bit about 'parking/loading'. So have this instead which keeps in the fact that a residential car park (according to a Senior Circuit Judge - and erstwhile President of the Council of Circuit Judges - who county court Judges will have heard of) is not comparable to the location/contract in Beavis.

The Judge was also at pains to point out that [STRIKE]loading/unloading is not parking and[/STRIKE] such a case can be fully distinguished from Beavis, which did not apply.

This part needs a bit more too (were the signs amended or has this been wrongly copied from another defence?):

5. The signage on the site have been amended at some point in time. Proof is required that these changes have been approved by the landowner and exactly which signs and which terms were sited where, at the time of each and every alleged contravention.

Your defence now seems to cover all the bases as far as I can see. Obviously it MUST be submitted as the named defendant on the claim (the registered keeper of the car, we assume) not anyone else.

sicone

Coupon-mad wrote: »

...were the signs amended or has this been wrongly copied from another defence?

They have definitely been amended at some point. If you look at the picture of the sign (linked earlier) you can see that two of the restrictions (including the no return within 48hrs) have been stuck onto the sign.

Coupon-mad wrote: »

Your defence now seems to cover all the bases as far as I can see. Obviously it MUST be submitted as the named defendant on the claim (the registered keeper of the car, we assume) not anyone else.

It may be obvious but it's always to to reiterate just in case

To save posting the whole thing again I'll just post the amendments:
6. The wording on the signage is confusing and ambiguous as the “no return” clause is unclear and unmanageable.
6.1. There is no clarification as to whether the “no return” clause refers to the parking space, bay or entire car park. Might change this so it does not single out the “no return” but also includes the fact that parking is limited to 48hrs and does moving the car from one bay to another without leaving the car park actually break the terms of contract.
8. The Protection of Freedom Act 2012 Schedule 4 has not been complied with. The registered keeper has not be identified as the driver, as such the keeper can only be held liable if the Claimant has fully complied with the strict requirements including 'adequate notice' of £100 charge and prescribed Notice to Keeper letters in with mandatory wording. Changed from "The registered keeper is unaware of 5 PCN's and was not the driver" to The registered keeper has not be identified as the driver
11.2. The Jopson Appeal case is a persuasive Appeal decision, where Senior Circuit Judge Charles Harris QC, found that the parking firm had acted unreasonably when issuing a parking charge notice to Miss Jopson, a resident of a block of flats who parked in front of the communal entrance to unload furniture, as this was the only accessible place to do so. Home Guard Services had sued Miss Jopson in the small claims court and won. Miss Jopson successfully appealed the case, her solicitor arguing that the charge was incompatible with the terms of the lease which gives residents (and their visitors and delivery drivers etc.) easements and specific rights which supersede any parking firm signs. The Judge found that Home Guard Services’ regulations - set out on wordy, unclear, badly-drafted signs like in this case - disregarded these rights and the Claimant was ordered to pay costs of some £2,000. The Judge was also at pains to point out that such a case can be fully distinguished from Beavis, which did not apply.

sicone

I've been going over the tickets and the NTK's to see if they comply with schedule 4 of the POFA 2012 and to me they look like they (unfortunately) do. I was wondering if people with more experience at this than me could have a look and see if I missed something?
http://tinypic.com/4dumva50
Everything under the redacted bits is correct.
Due to my poor time management skills, I pretty much need to get this ready by the end of the week so I'll post up the witness statement draft for review very soon too.
Thanks

Coupon-mad

UKPC's NTKs aren't bad, so probably a Judge would consider them compliant. Do not hang your hat on that!

I did wonder from that photo on the NTK, how come it appears to be broad daylight at 04.56am? The photo looks wrong and I would go on about that and the fact there are no signs in view. UKPC have form for doctoring times on photos:

http://www.telegraph.co.uk/news/uknews/crime/11858473/Parking-firm-UKPC-admits-faking-tickets-to-fine-drivers.html

So, is there scope there for calling into question the evidence of times? It is for them to prove, not you.

Are you now at Witness Statement (WS) and evidence stage, have you met that deadline as stated on page two of the letter allocating a hearing date? See post #2 of the NEWBIES thread for examples of WS and evidence and skeleton arguments.

sicone

Yes, we are currently at the witness statement and evidence stage. The deadline is fairly soon so I do have to get a bit of a move on!
Good point about the timestamp, I hadn't given that a second thought and assumed it was p.m.. Thankfully they have another photo from a different ticket that is time stamped at a similar time (though a different date) which is much darker.
Here is the first draft of the WS:

IN THE COUNTY COURT AT 						CLAIM NO. XXXXXXXXXXXXX
BETWEEN:
UK PARKING CONTROL LTD		Claimant
AND
          Joe Bloggs			  Defendant
WITNESS STATEMENT OF JOE BLOGGS

I, JOE BLOGGS OF 23 Acacia Avenue, am the Defendant in this matter, and will say as follows –
1.	I am the defendant in this case
1.1.	It is admitted that the defendant was the registered keeper of the vehicle during the dates in question.
1.2.	Due to the length of time that has passed since the dates in question, the driver of the vehicle cannot be remembered.
2.	It is denied that the Claimant has authority to bring this claim. The proper Claimant is the landowner. UK Parking Control (UKPC) cannot overrule the elements of the lease or introduce them subsequently. Strict proof is required that there is a chain of contracts leading from the landowner to UKPC. 
3.	UKPC is not the lawful occupier of the land and I have reasonable belief that they have no locus standi to bring this case.
3.1.	I attach exhibit JB/1 the copy of the contract UKPC have supplied after a part 18 request for information which only shows their contract with Trinity Estates Ltd who are not the land owners. No chain of contracts showing authorisation stemming from the lawful occupier of the land has been provided
3.2.	The contract provided (exhibit JB/1) only covers the 12 month period beginning 15th May 2013.
4.	The signage on the site have been amended at some point in time (exhibit JB/2). No proof was provided, as requested, when these amendments where made or that they approved by the landowner (exhibit JB/3).
5.	The wording on the signage is confusing and ambiguous as the “maximum stay” and “no return” clauses are unclear and unmanageable.
5.1.	 There is no clarification as to whether the “maximum stay” and “no return” clauses refer to the parking space, bay or entire car park. If the terms apply to the parking space/bay then the evidence provided by UKPC shows that the vehicle is in a different bay each time. Should the terms apply to the entire car park then the evidence provided by UKPC shows that all tickets were issued in less than the 48hr period allowed and does not show that the vehicle left the car park within that time, only that the vehicle was moved to a different space.
5.2.	The “no return” clause is unmanageable as different drivers using the same vehicle within the time period would not have contravened the contract. As multiple people have access to the vehicle it cannot be proved that the same driver parked the vehicle in the car park each time.
6.	This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. None of this applies in this material case.
7.	It is believed that this Claimant has not adhered to the BPA Code of Practice and is put to strict proof of full compliance. This Claimant has been exposed in the national press - and was recently investigated by the BPA - for falsifying photo evidence, which was admitted by the Claimant. It is submitted that this is not a parking company which complies with the strict rules of their Trade Body, which were held as a vital regulatory feature in ParkingEye v Beavis.
7.1.	The photographic evidence provided by UKPC are time stamped between 04:39 and 05:08 yet are in full daylight even though sunrise in May is 05:10 and in July is 05:00 (Exhibit JB/4)
7.2.	Ticket XXXXXXXXXXXXX has been cancelled by Trinity Estates (Exhibit JB/5) yet UKPC are including this ticket in this case
8.	This case can be easily distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes and UKPC have not shown any valid 'legitimate interest' allowing them the unusual right to pursue anything more than a genuine pre-estimate of loss.
9.	No legitimate interest - the charge is incompatible with the rights under the lease – this distinguishes this case from the Beavis case
9.1.	This exact question in a similar case was tested recently at Oxford County Court, JOPSON V HOME GUARD SERVICES, Appeal case number: B9GF0A9E on 29.6.16. I will include the transcript of that case at any hearing.
9.2.	The Jopson Appeal case is a persuasive Appeal decision, where Senior Circuit Judge Charles Harris QC, found that the parking firm had acted unreasonably when issuing a parking charge notice to Miss Jopson, a resident of a block of flats who parked in front of the communal entrance to unload furniture, as this was the only accessible place to do so. Home Guard Services had sued Miss Jopson in the small claims court and won. Miss Jopson successfully appealed the case, her solicitor arguing that the charge was incompatible with the terms of the lease which gives residents (and their visitors and delivery drivers etc.) easements and specific rights which supersede any parking firm signs. The Judge found that Home Guard Services’ regulations - set out on wordy, unclear, badly-drafted signs like in this case - disregarded these rights and the Claimant was ordered to pay costs of some £2,000. The Judge was also at pains to point out that such a case can be fully distinguished from Beavis, which did not apply.
10.	As the contract is with the driver, the Claimant has provided no proof that the vehicle was not returned to the car park with a different driver.
11.	Save as expressly mentioned above, the Particulars of Claim is denied in its entirety. It is denied that the Claimant is entitled to the relief claimed or any relief at all.
Statement of Truth:
I believe the facts stated in this Defence are true.

I have to read up about the skeleton arguments as I'm still unclear about that bit.