Claim Form - Gladstones PPC

tricky89_2

Hi,

I have read through a good number of posts on here now and am starting to get my thoughts together. However I just want to make sure I'm going in the correct direction. Sorry if you have seen this before I have posted a few weeks ago on Pepipoo but haven't had many replies.

The vehicle was parked on a private car park for a block of flats. The driver of the vehicle was visiting someone at the flats for the weekend when they received the "Parking Charge Notice". A note was left in the windscreen stating which flat the driver was visiting however this didn’t prevent the PCN.

The PCN relates to “No Permit being displayed” and was issued on 06/02/2016. The PCN states the vehicles parking period was for 5 minutes (times shown on PCN but omitted from here – I assume this is the time the vehicle was monitored). IPC and IAS membership is stated on the PCN.

Now, at first I had (maybe now incorrectly) just ignored the letters that were sent from the usual companies (PCS, DRP Zenith).

Later after receiving a “Letter before Claim” from Gladstones Solicitors, I replied to them explaining that I was only the Registered Keeper and could not be held liable as under POFA Schedule 4 Paragraph 8(5) the Notice to Keeper NTK has to be served between 29 and 56 days. However in this case it was not. But they then replied saying that it was served in time, which has left me questioning myself!

Since their reply I have now received a Claim Form on the 22/12/16 relating to an unpaid parking charge, costs, interest etc. I have already filed and Acknowledgement of Service to give 28 days to compile my defence which by my calculation gives a deadline of 24/01/2017 (adding the 5 days for post to get the service date?). Is this correct?

I have copies of (to use as part of my defence):
The PCN left on the Vehicle (kindly left unpaid from the driver)
NTK
Debt Chasing Letters
Letter before action
Their reply to my letter

My initial question that I would like to confirm are:

As the PCN was left on the vehicle on the 06/02/2016 yet the NTK was not sent to me until 15/04/16 (date of letter not date assumed delivered), am I correct in saying this was not served in time? By my workings it is 73 days.

The PCN states the charge is £100 reduced to £60 for 14 days. However does state at the bottom if the payment if received late additional charges will be incurred. My question here is that the NKT states a parking charge notice of £150 outstanding. I believe that the keeper should be offered the same charges are presented to the driver?

*********************************

After reading some articles on pepipoo I have sent the two letters below and drafted a start at a defence. (See three posts below).

Apologies its a bit long but hopefully gives a clear picture of the situation. Your thoughts and comments on the above would be appreciated, I defiantly do not want to miss the deadlines or make a silly mistake.

tricky89_2

Dear Sir

Ref : ****

I have received notification of your claim number ****** issued on ****** in the County Court Business Centre.

I deny any debt to Millennium Door and Event Security Limited.

The driver of the vehicle has not been identified and your client has failed to meet the requirements of The Protection of Freedoms Act to pursue me as keeper.

Please send me copies of all the documents sent by your client including the windscreen notice if one was attached to the vehicle.

When these are supplied, please also confirm whether the intended action is founded on a contractual charge, a breach of a contract or trespass.

Please provide a copy of your client's contract with the land-holder to show specific authority to take legal action and confirm that this will be produced for the court. A witness statement stating that a contract exists is insufficient.

If your claim is under POFA then POFA limits the claim on the registered keeper to the amount due the day before the Notice To Keeper, therefore I also require an explanation for the additional £50 charge including confirmation that it has already been invoiced and paid.

Please respond within 7 days. I consider this period to be reasonable as I trust you already have the documents that you intend to rely on.

I look forward to your response

Yours Faithfully

tricky89_2

Dear Sir,

Ref PCN: ******

You have obtained my details from the DVLA and proceeded to use them after you have no right to do so.

The vehicle in question, for which I am the registered keeper was parked with the permission of a resident at the premises to which the parking is attached as part of a lease with unfettered rights to its use.

Access to the DVLA database for my personal details was unwarranted and unlawful due to the fact that your operational rights on the land do not supersede the leaseholder rights thus you have accessed my personal data from the DVLA without reasonable cause.

Notwithstanding the above, you have then proceeded to use my personal details to pursue me, as registered keeper, outside of the timeframe stipulated in the Protection of Freedoms Act.

I am therefore submitting a complaint to the Information Commissioner’s Office about your misuse of personal data and now make a claim against you for punitive damages to the extent of £500 for the wrongful application for, and misuse of my information from the DVLA. This is a serious matter and one which is both stressful and degrading.

Separate to that complaint to the ICO another complaint will be submitted to the DVLA about your conduct.

I now claim the amount of £500 for the damages for wrongful application of, and misuse of the data from the DVLA. This is less than an amount which has already been adjudicated on as being reasonable as evidenced by the case of Halliday v Creation Consumer Finance Ltd [2013] All ER (D) 199, but reflects the distress this matter has caused me to date.

To prevent this matter being added as a counter-claim I require payment before the 19th January 2017. Failure of this will result in it being added without further notification. You are advised that one a counter-claim is added there will be nothing you can do prevent the case being heard except by prior agreement with myself.

The cancellation of your own case and the payment of damages is the only way I will discontinue a counter-claim.

Yours sincerely

tricky89_2

IN THE COUNTY COURT

Claim Number XXX

BETWEEN:

MILLENNIUM DOOR AND EVENT SECURITY LIMITED

-and-

XXX
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

DEFENCE STATEMENT
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

1) It is admitted that the Defendant is the registered keeper of the vehicle in question.

2) The Particulars of the Claim submitted to the Defendant provide no statement to the nature of the claim and the Defendant does not believe these particulars to be compliant with Civil Procedure Rules 16.4 nor Practice Direction 16 7.3-7.5 inhibiting the ability of the Defendant to provide a comprehensive and conclusive defence statement

3) The Defendant has prepared the defence on the presumption that the alleged parking contravention is in reference to an occasion whereby the defendant’s vehicle was parked in an allocated leaseheld residential parking space at the residential address of an associate of the Defendant.

4) The Defendant denies that the Claimant has the authority to bring a claim. The Claimant does not own the land where the vehicle was parked, nor does he have any interest in the land. He therefore lacks the capacity to offer parking.
a. The Claimant has failed to provide strict proof of a chain of contracts leading from the landowner to the Claimant which show that they have a right to unilaterally remove or interfere with the overriding rights conferred in the Lease.
b. Alternatively, even if a contract could be established, the provision requiring payment of £150.00 is an unenforceable penalty clause and an unfair term contrary to the Consumer Rights Act 2015.

5) The Defendant believes that his personal details have been obtained unlawfully by the Claimant and asks that the Court does not to assist the Claimant to benefit from a wrongdoing. (Ex turpi causa non oritur action).

6) The Defendant has no liability as they are the keeper of the vehicle and the Claimant has failed to comply with the strict provisions of FOFA 2012 to hold anyone other than the driver liable for the charges.
a. The driver has not been evidenced on any occasion.
b. There is no presumption in law that the keeper was the driver and nor is the keeper obliged to name the driver to a private parking firm. This was confirmed in the POPLA Annual Report 2015 by the POPLA Lead Adjudicator and the barrister, Henry Gleenslade, when explaining the POFA 2012 principles of ‘keeper liability’ as set out in Schedule 4.

7) The Particulars of Claim do not give any reasons why the Claimant requires a payment other than it results from the ‘Parking Rules’ on the signage. It is a forbidding sign that cannot create a contract. In the cases of B4GF26K6 PCM (UK) v Mr B, B4GF27K3 PCM (UK) v Mr W and B4GF26K2 PCM (UK) v Ms L it was demonstrated that forbidding signage at residential parking spaces did not create a contract.
a. The charges, which include an additional £50 per ticket (not specified on the signage), are arbitrary and an attempt to penalise motorists

8) The presence of the Claimant on the land will have supposedly been to prevent parking by uninvited persons, for the benefit of the actual leaseholders and their invited guests. Instead a predatory operation has been carried out on those very people whose interests the Claimant was purportedly there to uphold.
a. The vehicle was parked on land in accordance with the terms of the Lease.

9) In the case of Saeed v Plustrade Limited [2001] EWCA Civ 2011 parking restrictions and a change which caused detriment to tenants and their visitors were held to be in breach of the well known and well established principle that ‘a grantor shall not derogate from his grant’

10) 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 interests of the landowner. Strict compliance with the BPA(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.
a. In Beavis it was held that the purpose of a parking charge must not be to penalise drivers. Justification must depend on some other ‘legitimate interest in performance extending beyond the prospect of pecuniary compensation flowing directly from the breach in question’. The true test was held to be ‘whether the impugned provision is a secondary obligation which imposes detriment on the contract-breaker out of all proportion to any legitimate interest[…..] in enforcement of the primary obligation’
b. There can be no ‘legitimate interest’ in penalising residents or their visitors for using parking spaces, under the excuse of a scheme where ostensibly and as far as the landowner is concerned, the parking firm is contracted for the benefit of the residents. It is unconscionable, contrary to the requirement of good faith and ‘out of all proportion to any legitimate interest’ to fine residents or their visitors for using allocated parking spaces.

11) The exact question regarding terms in a lease was tested recently at Oxford County Court, JOPSON v HOME GUARD SERVICES, Appeal case number B9GF0A9E on 29/9/2016.

12) The Jopson Appeal case is a persuasive Appeal decision, where Senior Circuit Judge Charles Harris QC found that Home Guard Services had acted unreasonably when issuing a penalty charge notice to Miss Jopson, a resident of a block of flats.

13) The Defendant also relies upon the Croydon Court decision in Pace Recovery and Storage v Mr N C6GF14FO 16/9/2016, where District Judge Coonan dismissed the claim and refused leave to appeal, having found that a third party parking firm cannot unilaterally alter the terms of the tenancy agreement.

14) The Defendant also relies upon the Saeed v Plustrade Ltd (2001) EWCA Civ 2011 whereby it was determined the managing agent could not reduce the number of parking spaces available to residents.

15) The Defendant also relies on the In Link Parking v Ms P C7GF50J7 (2016) case whereby the parking enforcement company could not override the tenant’s right to park by requiring a permit to park.

16) The Defendant disputes that the Claimant has incurred solicitors costs of £50 to prepare the claim. The Defendant refers the Court to the incompetent Particulars of Claim that disclose neither the basis for the claim nor a definite cause of action.
a. Additionally, as this is already included as part of the costs of the claimant, factored into the £100 parking charge, this is essentially double charging.
b. The £50 solicitor cost was disputed in the test case of ParkingEye v Beavis and Wardley. HHJ Moloney refused to award the £50.
c. The £50 was also struck out by DJ Sparrow on 19 August 2015 in ParkingEye v Mrs S, claim number B9FC508F.

17) The amount claimed includes charges for a solicitor that the Claimant has not incurred plus interest that has been charged without any explanation as to how it has been calculated.

18) The Claimant has brought a claim that discloses no cause of action. The Defendant has the reasonable belief that the Claimant is abusing the Court process by using the threat of action and the threat of damaging the Defendants credit rating to alarm the Defendant into making a payment that is not owed.

The Court is invited to strike out the claim as having no reasonable prospect of success.

I now claim the amount of £500 for the damages for wrongful application and misuse of the data from the DVLA. This is less than an amount which has already been adjudicated on as being reasonable as evidenced by the case of Halliday v Creation Consumer Finance Ltd [2013] All ER (D) 199, but reflects the distress this matter has caused me to date.

I believe the facts stated in this Defence Statement are true.

Coupon-mad

I have now received a Claim Form on the 22/12/16 relating to an unpaid parking charge, costs, interest etc. I have already filed and Acknowledgement of Service to give 28 days to compile my defence which by my calculation gives a deadline of 24/01/2017 (adding the 5 days for post to get the service date?). Is this correct?

Yes, and your defence covers most of the points you need it to cover.

I didn't see a basic point about 73 days in your point #6. I would make it very clear that the PCS letter was too late for keeper liability to be claimed.

I would also suggest that the penultimate paragraph, if intended as a counter-claim, needs to be stronger and more obviously a counter claim (heading needed and 'particulars of counter claim'). The Parking Prankster sets out a counter-claim in this Blog at the foot of his suggested defence about a scam site:

http://parking-prankster.blogspot.co.uk/2016/12/heath-parade-graham-park-way-scam-site.html

If unsure about a counter-claim, miss that off and concentrate on winning this case. You can always sue the PPC and landowner afterwards, if you win, if you have grounds for alleging data misuse. I am not sure you do unless the PCS letter stated the keeper is liable...not all cases do lend themselves to a claim under the DPA and if unsure, bide your time and defend and win.

Then you will have six years to make your mind up whether you have any grounds to claim for data misuse, you can complain to the ICO and take your time over it later on, if so.

HTH

tricky89_2

Thanks for the comments.

I have also added under point 6 another sub point:

c. The ‘Notice to Keeper’, was not served within the timeframe required under POFA 2012 (Schedule 4 Paragraph 8(5)) to hold the keeper liable. The ‘Notice to Keeper’ was received 73 days after the alleged parking contravention, which is significantly past the 56 day requirement.

I plan to send the above defence tomorrow evening to the court via email.

Given the time scales, I assume its best to leave the counterclaim off and then deal with it separately (after the resolution of the original case?)

Coupon-mad

It's up to you about whether to counterclaim now, or bide your time, win, then claim! The good thing about the latter is that if they discontinue, the pressure is off and any hearing will not happen...then you can see how other people's claims are going during this year and take your time to decide.

tricky89_2

Hi,

As a general update on my case, I have filled in the directions questionnaire and had a response from the County Court Business Centre saying the case is going to be transferred to my local court.

Am I correct in saying I now need to sort out a witness statement, a skellington argument and any evidence i wish to take along?

Any ideas how long it normally is before a date is allocated? Only I have had another date come up that I now cannot do, should I try and contact the court now to get it added to my directions questionnaire?

Thanks.

Coupon-mad

Yes but it's a skeleton not skellington (that's how little kids pronounce that word!).

Date should be issued to you in March I expect, for maybe a May hearing.