UKCPS Court Claim - Out of marked bay

bluetoffee1878

Hello again all,

I'm helping yet another friend with yet another court claim, this time UKCPS for "parking out of a marked bay"

This was a windscreen ticket, unfortunately ignored along with other paperwork and is now a valid MCOL (I've checked)

AOS has been sent indicating to defend in full. The claim is the usual drivel.

I've had the RK complain numerous times to the land owner who have responded, I'm hoping that they will reply stating that they will request UKCPS to withdraw.

So in the meantime I'm just in the process of researching and constructing the defence points from here and pep. Any advice or moral support gratefully received.

I will post up the defence for critique when its ready so thanks in advance for reading.

The interesting thing about this car park is that Legion were kicked out (which I'd like to think I had a hand in) but unfortunately replaced by UKCPS.

Around the time they started 'managing' lots of people got tickets which I helped with the initial standard appeal. All these appeals were rejected so I looked into an IAS appeal. Lo and behold the tickets didn't exist on the IAS system.

Somebody on here from the thread I posted advised to check UKCPS own website, which I did and the tickets didn't exist there either. The theory being that the land owner instructed them during the first few weeks to cancel tickets. The signage by the way was almost non existant.

The only ticket that was 'live' was for somebody who did not send an appeal. The ticket involved in this claim also falls around this particular time.

Anyway thanks for reading this long thread and lets hope with help I can see them off

Cheers BT

Coupon-mad

Hi again BT!

"parking out of a marked bay"

I would mention that in the Supreme Court hearing of the Beavis case, the Judges chewed over the various types of tickets and expressed a view that 'out of bay' PCNS where the driver caused no obstruction seemed an unfair idea. I am paraphrasing, obviously, but they were not happy with the idea! You will have to watch the whole hearing to find that wording but I remember snoozing on and off through it and noticed that view expressed by one of the Judges. Clearly he felt that a charge in such circs would be unconscionable.

Is this a workplace car park or a residential car park? If either of those, or if the driver was relying upon a right to load/unload (even at a retail park, for example) then the new Jopson Appeal transcript comes into its own.

https://bmpa.zendesk.com/hc/en-us/articles/213077149-Milton-Keynes-woman-secures-landmark-victory-for-flat-tenants-in-parking-dispute

There are also recent example appeals in post #3 of the NEWBIES thread.

HTH for starters.

bluetoffee1878

Hi back CM nice to hear from you again, and thanks for the info I will check it out. BTW shame that BHA never made the prem lets hope this season.

The car park is one of a number that serve various parts of a small town centre on the outskirts of a larger city (you remember where I'm from?). Some are council some are private.

I was wondering if the fact that the PPC only started 'managing' a couple of weeks prior to this ticket, and the fact that any appealed ticket from around that time never progressed to the PPC or IAS website as per my previous thread.
https://forums.moneysavingexpert.com/discussion/5455081

I seem to recall a UKCPS signage type claim that PP blogged so I'll check that out too

Cheers BT

Coupon-mad

(you remember where I'm from?).

Your username gives it away or am I remembering wrong?

There were two wins in quick succession v UKPCS in court, regarding wordy/gobbledegook signage terms in 2014:

http://parking-prankster.blogspot.co.uk/2014/07/ukcps-claim-dismissed-judge-rules.html

http://parking-prankster.blogspot.co.uk/2014/07/ukcps-claim-dismissed-judge-rules_14.html

HTH - I doubt their signs are any better now and of course they are currently banned by the DVLA (might be worth a FOI to find out why...?!)

bluetoffee1878

FOI sent to DVLA.

Reply due no later than 21st December 2016

I'll post when recieved

bluetoffee1878

First stab at initial defence, all critique welcomed (especially CM) TIA

Claim No. XXXXXXXX


UKCPS Ltd (Claimant)
1200 Century Way, Thorpe Park Business Park, Leeds LS15 8ZA

-vs-

(Defendant)




DEFENCE STATEMENT


Initial Defence to Particulars of Claim

The Defendant is the registered keeper of vehicle registration number XXXXXXX. The Defendant denies the Claim in its entirety, and asserts that he is not liable to the Claimant for the sum claimed, or any amount.
As an unrepresented litigant in person, I respectfully ask that I be permitted to amend and or supplement this interim defence as may be required following a fuller disclosure of the Claimants case.

1. The Claim states that; “a parking charge was issued to a vehicle with registration number XXXXXXX on land named XXXXXX. This land is managed by the Claimant UKCPS Ltd”. As far as the Defendant understands, XXXXXX is a town in the metropolitan borough of XXXXXXXX, XXXXXXXXXX, England. This is a very large area incorporating public land, private land, residential and commercial land. The Defendant states as such that the land named in the Claim as XXXXXX cannot be relevant land managed by UKCPS Ltd or indeed any other private parking company. The Protection of Freedom Act 2012 Schedule 4 only applies on ‘relevant land’. Defined in paragraph 3 as any land other than:
(a) A highway maintainable at the public expense (within the meaning of section 329(1) of the Highways Act 1980);
(b) A parking place which is provided or controlled by a traffic authority;
(c) Any land (not falling within paragraph (a) or (b) on which the parking of a vehicle is subject to statutory control.

The Defendant asserts that the failure to identify relevant land in the Particulars of Claim means that the registered keeper may not be held liable under POFA 2012.
As no specific location, address or post code has been provided by the Claimant, the Defendant is unable to assist the Court further.

2. Although the Defendant is not aware of which land that the Claim refers to, he has spent a significant amount of time researching for this defence. During that research he has discovered that UKCPS appear to have a presence in the car park at Xxxxx Xxxxx Xxxxxx. If this is the private land that UKCPS Ltd manage and are referring to in this Claim, the Defendant asserts that this location has not been specifically identified as the relevant land at the material time in the Particulars of Claim.

3. The Defendant asserts that at the material time, there was no entrance signage indicating any parking restrictions in the car park at the address referred to in paragraph 2.

The IPC code of practice states: Entrance Signs should
a) Make it clear that the motorist is entering onto private land
b) Refer the motorist to the signs within the car park which display the full terms and conditions.
c) Identify yourself (where you are a limited company. This should be by reference to your full company name, your company number and the jurisdiction within which your company is registered).

4. The Defendant asserts that the driver did not see any repeater signs within the boundary of the car park. If signage was present, then it was not obvious or prominent.
The Defendant cites 14/04/2014 UKCPS – v – Gaskell case 3QZ55265 at Cardiff where at #43 the Judge states “As to the first question posed [under paragraph 16 above] "(a) was this defendant contractually bound?" 1 therefore repeat my conclusion that the signs in this case were not sufficiently prominently and clearly positioned and displayed to sustain the contention that the defendant consented to, or willingly assumed, the risk of his attracting the parking charge levied. Therefore the defendant in the particular circumstances was not contractually bound. In Parking Eye v Beavis UKSC 2015/0116 paragraph 90Lord Neuberger states, a contract was deemed to be formed due to the ‘large, prominent and legible signs, so that any reasonable user of the car park would be aware of their existence and nature, and would have a fair opportunity to read them if he or she wished to do so’. It is the Defendants submission that no contract could be formed with any user of the car park at the material time due to lack of quantity, prominence and legibility of any signs.

5. The Defendant submits that any signage present on the site even if seen by a motorist is not clear or legible in its construction, and therefore not able to form a contract. The Defendant brings to the attention of the Court A0QZ7658 UKCPS v Anonymous 4/7/14 at Bradford, and A3QZ1305 UKCPS v Anonymous 2/7/14 at Sheffield. The Judges in these cases found that UKCPS Ltd signs were ‘gibberish, too wordy and with conflicting terms’. The Defendant submits that the signs on this site fall into the same description and are therefore unable to form a contract even if seen.

6. The claim states that the vehicle was parked “OUT OF MARKED BAY”. UKCPS Ltd have not shown to the Defendant any evidence of the alleged parking infringement. In Parking Eye v Beavis 4th November 2015 UKSC 2015/0116, in paragraph 310 Loud Toulson states “There may be reasons why a user parks with his wheels outside the marked bay (for example because of the way the adjacent vehicle is parked or because he is a wheelchair user and none of the blue bays are available). Examples could be multiplied. The point is that the penalty clause makes no allowance for circumstances, allows no period of grace and provides no room for adjustment”.

7. It is denied that the Claimant entered into a contract with the Defendant. Under civil law, any contract must be formed by offer, consideration both ways and acceptance. The Claimant is a private parking company (UKCPS Ltd) who was simply contracted by the landowner to provide car-park management services. The claimant therefore is not capable of entering into a contract with the Defendant on its own account. Accordingly, it is denied that the Claimant has any standing to bring this claim in their own name.

8. In Parking Eye v Beavis UKSC 2015/0116, Their Lordships ruled that a charge of £85 was neither unconscionable nor extravagant. It was also ruled not a penalty and bore some relation to local authority penalty charges. The Defendant states that this matter can be differentiated from the ‘Beavis case’ in that the local authority car park situated next door will issue penalty charges for contravention of parking regulations of £70. UKCPS are claiming a charge of £100, this is a little over a 42% increase on the local authority penalty.
The Defendant believes that a charge 42% higher is both unconscionable, extravagant, not a genuine pre estimate of loss and therefore a penalty.

9. Parking Eye v Beavis covered the fact that the penalty was commercially justifiable due to the clear and prominent signage making users of that car park aware of the space maximisation management conducted by Parking Eye on behalf of the land owner. There is no indication of space maximisation for this car park. The Defendant states that if this were the case, then any motorist who parked out of a marked bay is in fact helping to maximise the car park use.

10. There can be no keeper liability because this Claimant has not issued Notice to Keeper which is compliant with Schedule 4 of the POFA 2012. Therefore the 'second condition' for keeper liability has not been met. It is far too long ago for the keeper to have any knowledge of who was driving the vehicle to do the weekly shop that day, and it was the will of Parliament when the Impact Assessment of the POFA 2012 was discussed in 2011, that keepers are not legally obliged to name a driver - even if known. So the defendant cannot be held liable in law.

11. The Defendant is of the reasonable belief that the Claimant UKCPS Ltd does not hold the required authority from the Land owner to issue charges or to litigate in its own name. The Defendant has seen no evidence of any contract between the Land owner and the Claimant.

12. The POFA 2012 only allows a registered keeper to be held liable with a sum in any compliant notice to keeper. Various demands have fluctuated between £100 up to £175 as shown in the N1SDT Claim form. The Defendant denies all of the alleged debt, and in particular the vague unexplained inflation of the alleged debt to £175.



The above points will be explained fully in the Witness Statement which will be served not later than 14 days before the date of any hearing.

I believe that the facts contained in this Defence Statement are true.

Carthesis

When was the ticket issued, and when was the NTK generated / posted?

Presumably it was outside (prior to) October this year,m when UKCPS were suspended from the IPC and hence unable to access DVLA data?

bluetoffee1878

Yes you are correct, it was earlier in 2016 before their ban.

The Land owner has been informed regarding the ban in case they did not know. I'm hoping it might invalidate any contract they may have.

I also have an FOI with DVLA asking the reason for the ban

Carthesis

The ban from the KADOE database is because they were suspended by the IAS - it's mandatory to be a member of an ATA for RK access.

That's all the DVLA FOI will tell you.

Coupon-mad

Defence looks to have covered all the bases, to me.

bluetoffee1878

Quick update:

Defence sent in by the deadline.

Received Notice of Allocation / DQ.

DQ completed and sent to court and to UKCPS.

Interesting point, in the background I had the RK complaining to the landowner. The latest received from them is:

"as a gesture of goodwill, I have arranged for the penalty notice to be void. We now consider this matter closed".

I understand that this alone does not close the matter, we need to wait for UKCPS to discontinue, but I guess if they do not then it will be part of the evidence pack that the land owner does not wish to pursue the claim.

Love the way they call it a penalty too.

Thoughts anyone