Looks like I am going to court with Gladstones.

onearmbandit

Carthesis: The response from Gladstones was they are pursuing me because I never discharged liability as you have just pointed out.

I am certain I did initially admit to being the driver - I emailed Link parking contesting the PCN within 1 hour of receiving it. At that point I never knew about keeper liability etc - I had never encountered the sinister world that is private parking fines. I told them I was lost etc - so yeah, I must have admitted liability.

I will be honest - I do not full understand the keeper liability. I mean, if I do not admit it - at some point if we ended up in court surely I would be done for fraud? I mean, technically I am not denying I am the driver - I am just not saying I was - but at the least, if I never admitted liability then would that not be looked at as unreasonable behaviour in the eyes of the judge?

onearmbandit

Samosalaris: Blimey - that is an interesting angle. No, there was no mention of VAT included as part of the £100 fine. If what you say is true - and VAT is required if a genuine offer to park was being made, and with it the agreement/formation of a contract, then surely they are in serious error here?

The fact is, as you pointed out - there is no offer for a permit here - park and you are fined - they are using mere word play. What judge can fall for this? I can be charged for trespass I suppose??

Much to consider.

Cheers!

onearmbandit

Coupon-mad: As pointed out, my first email I did pretty much say it was me who had park for 5 minutes. Odd that Gladstones do not know this! As mentioned, I do not fully understand how keeper liability fully works in the event you get to court because surely you will be seen as being untruthful and obstructive?

So much to learn mate! And thanks again!

Redx

if you read LAMILADS account of his day in court you would understand this KEEPER significance

IE:- IN THEORY , YOU PLEAD THE 5TH !!

the person in court has no legal obligation to name the driver , so its up to the claimant to prove the case , prove who the driver was (unless its been admitted)

as CM said in another thread about keeper liability

concentrate on the law and the expert opinion of Henry Greenslade from the 2015 POPLA Annual Report, about 'Understanding Keeper Liability'. The point is that you do not have to name the driver and they cannot presume the keeper was the driver, with no evidence as to who that person was.

how many times do you watch a police program like INTERCEPTORS on tv and they are in a tizzy about staying with the driver , identifying the driver , the copter puts the camera on the driver , the police car reviews the in-car footage to identify who the driver was , etc etc

its because they cannot just assume who was driving , they have to give the CPS the EVIDENCE of who was driving so the driver can be prosecuted , otherwise they cannot , despite what they "think" , the "defendant" just says "no comment" and is let off through a lack of EVIDENCE

its not hard to grasp

the concept of these cases is simple ,

the claimant must prove their case to 51% probability , or greater , to convince a judge that they have a valid claim against the defendant brought to court

that defendant may say , wrong person here your honour , throw the case out , as per the LAMILAD case

thats my laymans view on it anyway

and a trepass case should be brought by a landholder and the sum claimed is nominal unless damage has occurred

some parking cases are won on "forbidding signs" on the grounds that there was no contract , no offer to park , so no parking violation of contract occurred

of course its a play on words , thats what legal cases often are

onearmbandit

Redx - fast reply!!!

I will get on it now mate!

I am bloody annoyed that I didn't calm down the day this happened and looked for this site before I shot my mouth off! Never crossed my mind that forums like this existed!

Thank you

Redx

you are not the only one , I have known this happen to a relative of mine and his g/f at the time was a trainee solicitor

they got a pcn in the post and were on the phone arguing with EXCEL straightaway and dobbing in the driver in the process

I managed to rescue that one by nit-picking the contract with the aid of parking prankster and arguing it before popla , pre-beavis , he won , but the keeper liability issues were blown away by the ill tempered responses at the beginning , before I started to learn this topic

onearmbandit

Redx: Wish I had a friend like you at the time this happened! Thanks again!


Regarding PCN’s and VAT

In the case of 'Vehicle control services LTD v HMRC (2013) EWCA Civ 186' the court decided that penalties made by private parking companies to a driver who contravened its terms represented damages for ‘trespass’ and were NOT subject to VAT.

Now, this is not what is being charged against me because I am being charged for breaking a contract – not trespass. So, if I have read this correctly – Link Parking should have mentioned VAT on the PCN and NTK.

Also, in this link

http://forums.pepipoo.com/lofiversion/index.php/t76936.html

With reference to the same case it is said that the landowner collecting a fine is outside VAT but a contractor (eg Link Parking) collecting a penalty is not?

This seems to support the idea that Link Parking are in error by not including and or stating VAT in the charge

So in summary:
If the charge is for breaking a contract or is a penalty it doesn't include VAT. If the charge is for trespassing or an invoice VAT is included. Thus, because a PCN is not a fine but an invoice this means Link Parking are acting illegally???

Does anyone know if I am right or wrong in my understanding here?

Carthesis

onearmbandit wrote: »

Redx: Wish I had a friend like you at the time this happened! Thanks again!

Regarding PCN’s and VAT

In the case of 'Vehicle control services LTD v HMRC (2013) EWCA Civ 186' the court decided that penalties made by private parking companies to a driver who contravened its terms represented damages for ‘trespass’ and were NOT subject to VAT.

What's curious there is that, if they have decided that the monies represent damages for trespass, then VCS shouldn't be able to bring the case in front of the courts, as only the landowner has standing. And, in that case, then the landowner would have to qualify the amount of damages by demonstrating their losses and costs due to the trespass...

Seems to me - although I am far far far from being a legal expert because I am not any form of legal professional and thus am working on the basis of logic and common sense only - that means that if VCS aren't paying VAT on the basis of that case, then they can't bring any cases for anything other than trespass? Which they aren't allowed to do unless their contract expressly allows them to.

And the opposite - if they are bringing cases for breach, and are stating as such (that the case is being brought for breach), then how can they not provide evidence of VAT payments?

We need bargepole or HO87 or someone of that ilk to fill us in here.

onearmbandit

Carthesis: Yes - this does seem hard to interpret - thanks for your view based on logic, has helped actually!


I just found this as a summary of the 'Vehicle control services LTD v HMRC (2013) EWCA Civ 186' case.


It reads exactly as follows

"In essence, the Court found that there was a contract between the enforcement company and motorists who parked their cars - where they breached the terms and conditions imposed on them under the agreement, e.g. by parking in the wrong place, there was a breach of that contract capable of giving rise to damages".


If I read this right I may have been wrong after all - hmmmnnn.....more research needed!

Coupon-mad

I think this is the wrong angle. VAT arguments have never assisted in any defence v any private PCN that I can recall.

You are far more supported by the Jopson case which for the first time, defines parking versus 'not parking'. The facts are that the driver stopped for directions which is just the sort of temporary 'vicissitude' that His Honour Charles Harris QC found as fact, was NOT 'parked' nor can it be held to be entering into any parking contract. Plus you have the ATA CoP Grace Periods policy to cite as well as case law...

...and all the other usual defence points used in Gladstones cases, which have stopped any poster here from having to even appear at a hearing so far this year.

We've helped with loads of defences. None went to a hearing (yet) so none were lost v Gladstones. None relied on a convoluted VAT argument. Read other recent Gladstones defences.