What options do I have?

Joe_Bloggss

Morning Coupon.

Thank you for that. I've been researching as you suggested and have been considering the points for my defence. I am off work tomorrow so will be drafting and posting my defence then.

If anyone can provide any talking points to the posts I have made, in particular the NTK and whether this is compliant with POFA I would be grateful. I've looked through it and there are parts where I think has omission but another pair of eyes would be great.

My defence will discuss the signs and how these are not compliment with code of practice and too high with small font as shown in the photo attached.

If someone could also please look over the close up of the sign and suggest whether they think this enforces a contract between us.

Appreciate all the support

Joe_Bloggss

Any advice to the pictures posted to support defence would be welcomed. Drafting defence tomorrow to be posted for review

Coupon-mad

Shame the car is parked next to a sign...can't read it though!

NTK is not compliant in wording, pick out the several omissions (be pedantic). I see omissions from para 8:

8 (1)A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(a) is given in accordance with this paragraph if the following requirements are met.
(2)The notice must—
(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;

(b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;

(c)state that a notice to driver relating to the specified period of parking has been given and repeat the information in that notice as required by paragraph 7(2)(b), (c) and (f);
...
(e)state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—
(i)to pay the unpaid parking charges; or

(ii)if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver

and to pass the notice on to the driver;

(f)warn the keeper that if, at the end of the period of 28 days beginning with the day after that on which the notice to keeper is given—

(i)the amount of the unpaid parking charges (as specified under paragraph (c) or (d)) has not been paid in full, and
(ii)the creditor does not know both the name of the driver and a current address for service for the driver,
the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;
...

Joe_Bloggss

Thanks Coupon.
I thought these also and didn't know if their wording was compliant or not.
The NTK is so vague and misleading so will use these to my advantage.
If anyone else spots anything let me know.
Drafting defence today for proof reading.

Joe_Bloggss

Please see draft defence below.
Any advuce or amendments would be welcomed


1.
The Defendant denies any liability whatsoever to the Claimant.

2.
The Defendant admits he is the registered keeper of the vehicle at the time of the parking charge being issued however denies any knowing of who was driving the vehicle.

3.
If the Claimant is intending to pursue this claim against the Defendant on the basis that the Defendant is the registered keeper then the Claimant has failed to show that the conditions for recovering this charge under Schedule 4 of the Protection of Freedoms Act 2012 have been met. The Defendant disputes that some of the conditions necessary for a claim to be pursued against the keeper of the vehicle have been met.

4.a)
The Claimant will argue a notice to keeper was issued to the registered keeper complying with Schedule 4 of the Protection of Freedoms Act 2012 8(5) The relevant period for the purposes of sub-paragraph (4) is the period of 28 days following the period of 28 days beginning with the day after that on which the notice to driver was given. The Defendant will argue that this is only one of many conditions that the Notice to Keeper must oblige to.

4.b)
Where a notice had been provided it failed to meet the other required demands as specified in the Schedule 4 of the Protection of Freedom Act 2012. By having these omissions the Notice to Keeper is not compliant and therefore no claim can be brought forward to the registered keeper.

It failed to comply with:

"8
(1)A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(a) is given in accordance with this paragraph if the following requirements are met.
(2)The notice must—
(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;

(b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;

(c)state that a notice to driver relating to the specified period of parking has been given and repeat the information in that notice as required by paragraph 7(2)(b), (c) and (f);
(e)state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—
(i)to pay the unpaid parking charges; or

(ii)if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;

(f)warn the keeper that if, at the end of the period of 28 days beginning with the day after that on which the notice to keeper is given—

(i)the amount of the unpaid parking charges (as specified under paragraph (c) or (d)) has not been paid in full, and
(ii)the creditor does not know both the name of the driver and a current address for service for the driver, the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;

5).
It is believed that the Claimant has no standing to bring this claim. The proper Claimant is the landowner. Despite requesting, under the Ministry of Justice Part 31 - DISCLOSURE AND INSPECTION OF DOCUMENTS Rule 31:14, for all documents relating to this case including copies of signs in place at the time of the parking charge notice as well as evidence of any contractual agreemets in place with the landowner the Claimant has failed to establish their legal right to bring a claim either as the landholder or the agent of the landholder. Strict proof is required that there is a chain of contracts leading from the landowner to Parking and Property Management. The Defendant claims that the Claimant does 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.

6).
If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landowner can pursue a case under the tort of trespass, not this
Claimant, and as the Supreme Court in the ParkingEye Ltd v Beavis [2015] UKSC 67, such a matter would be limited to the landowner themselves claiming for a nominal sum.

7).
The Claimant might argue that the Supreme Court’s decision is Parking Eye v. Beavis is applicable. The Defendant will argue that the present case meets none of the conditions that the Supreme Court stated were required for a parking notice to be exempt from the well-established principle that penalty charges cannot be recovered. The main difference is that the Supreme Court determined that, in a retail park, there was a public interest in ensuring a turnover of visitors that justified a disincentive to overstay. There is clearly no such interest in a third party attempting to impose conditions in a <non retail> where there is no turnover of visitors and the defendant’s vehicle was not in pay-and-display car parking.

At no point did the driver enter into any contract with the third party.

8) The Claimant did not display clear signs within the site that were capable of being read and/or form a contract.
a) There is no prominent signage at the entrance of the parking area.
b) Signage is not lit.
c) Other signs are raised high up with small text which is difficult to read.
d) The amount of charge is non prominent in the wording on the signage.

The signage did not meet the British Parking Association (BPA) Code of Practice or the Independent Parking Committee (IPC) Code of Practice. The Claimant was a member of the IPC, whose requirements they also did not follow. Therefore no contract has been formed with driver and the notices do not provide the 'adequate notice' of the parking charge which is mandatory under Schedule 4 of the POFA.

8).
The Claimant has not complied with the pre-court protocol. The Particulars of Claim contains no details and fails to establish a cause of action which would enable the Defendant to prepare a specific defence. It just states “parking charges” which does not give any indication of on what basis the claim is brought. There is no information regarding why the charge arose, what the original charge was, what the alleged contract was nor anything which could be considered a fair exchange of information. Furthermore despite the Defendant requesting for this information, under the Ministry of Justice Part 31 - DISCLOSURE AND INSPECTION OF DOCUMENTS Rule 31:14, no information has yet been provided to establish a defence even though the Claimant had 7 days from the letter sent on Wednesday 18th January 2017 and was received on Thursday 19th January 2017.

The defendant therefore asks that the court orders the case to be struck out for want of a detailed course of action and/or for the claim as having no prospect of success.


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

Coupon-mad

Looks like you cover the bases there. You could add in the bit about IPC firms not offering an appeal that would have been allowed anyway and that Gladstones are run by the same people as the IPC and IAS ('appeals') - you should find that if you search the forum for 'controlling minds Hurley'.

Also add in the usual stuff objecting to the added costs - again normally in most Gladstones defences. Here's one being worked on:

https://forums.moneysavingexpert.com/discussion/5532469

Neck and neck with yours, different style.

Joe_Bloggss

Thanks Coupon

Please see below with additions made as suggested.

Any other advice?


DEFENCE STATEMENT
________________________________________

1.
The Defendant denies any liability whatsoever to the Claimant.

2.
The Claimant is a member of the Independent Parking Committee (IPC), an organisation operated by Gladstones Solicitors. They also operate the Independent Appeals Service (IAS), the allegedly independent body appointed by the Claimant’s trade body, the IPC. My research revealed that the IAS, far from being independent, is a subsidiary of the IPC, which in turn is owned and run by the same two Directors who also run Gladstones Solicitors. The individuals in question are John Davies, and William Hurley. Such an incestuous relationship is incapable of providing any fair means for motorists to challenge parking charges, as well as potentially breaching the SRA Code of Conduct. As such, the Claimant does not come to this matter with clean hands.

2.
The Defendant admits he is the registered keeper of the vehicle at the time of the parking charge being issued however denies any knowing of who was driving the vehicle.

3.
If the Claimant is intending to pursue this claim against the Defendant on the basis that the Defendant is the registered keeper then the Claimant has failed to show that the conditions for recovering this charge under Schedule 4 of the Protection of Freedoms Act 2012 have been met. The Defendant disputes that some of the conditions necessary for a claim to be pursued against the keeper of the vehicle have been met.

4.a)
The Claimant will argue a notice to keeper was issued to the registered keeper complying with Schedule 4 of the Protection of Freedoms Act 2012 8(5) The relevant period for the purposes of sub-paragraph (4) is the period of 28 days following the period of 28 days beginning with the day after that on which the notice to driver was given. The Defendant will argue that this is only one of many conditions that the Notice to Keeper must oblige to.

4.b)
Where a notice had been provided it failed to meet the other required demands as specified in the Schedule 4 of the Protection of Freedom Act 2012. By having these omissions the Notice to Keeper is not compliant and therefore no claim can be brought forward to the registered keeper. It failed to comply with:

"8
(1)A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(a) is given in accordance with this paragraph if the following requirements are met.
(2)The notice must—
(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;

(b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;

(c)state that a notice to driver relating to the specified period of parking has been given and repeat the information in that notice as required by paragraph 7(2)(b), (c) and (f);

(e)state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—
(i)to pay the unpaid parking charges; or

(ii)if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;

(f)warn the keeper that if, at the end of the period of 28 days beginning with the day after that on which the notice to keeper is given—

(i)the amount of the unpaid parking charges (as specified under paragraph (c) or (d)) has not been paid in full, and
(ii)the creditor does not know both the name of the driver and a current address for service for the driver, the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;

5).
It is believed that the Claimant has no standing to bring this claim. The proper Claimant is the landowner. Despite requesting, under the Ministry of Justice Part 31 - DISCLOSURE AND INSPECTION OF DOCUMENTS Rule 31:14, for all documents relating to this case including copies of signs in place at the time of the parking charge notice as well as evidence of any contractual agreemets in place with the landowner the Claimant has failed to establish their legal right to bring a claim either as the landholder or the agent of the landholder. Strict proof is required that there is a chain of contracts leading from the landowner to Parking and Property Management. The Defendant claims that the Claimant does 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.

6).
If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landowner can pursue a case under the tort of trespass, not this Claimant, and as the Supreme Court in the ParkingEye Ltd v Beavis [2015] UKSC 67, such a matter would be limited to the landowner themselves claiming for a nominal sum.

7).
The Claimant might argue that the Supreme Court’s decision is Parking Eye v. Beavis is applicable. The Defendant will argue that the present case meets none of the conditions that the Supreme Court stated were required for a parking notice to be exempt from the well-established principle that penalty charges cannot be recovered. The main difference is that the Supreme Court determined that, in a retail park, there was a public interest in ensuring a turnover of visitors that justified a disincentive to overstay. There is clearly no such interest in a third party attempting to impose conditions in a <non retail> where there is no turnover of visitors and the defendant’s vehicle was not in pay-and-display car parking.

At no point did the Defendant enter into any contract with the third party.

8).
The Claimant did not display clear signs within the site that were capable of being read and/or form a contract.
a) There is no prominent signage at the entrance of the parking area. These are too high up and difficult to read.
b) Signage is not lit.
c) Other signs are raised high up with small text which is difficult to read. In some cases some of the signs are damaged beyond reading.
d) The amount of charge is non prominent in the wording on the signage.

The signage did not meet the British Parking Association (BPA) Code of Practice or the Independent Parking Committee (IPC) Code of Practice. The Claimant was a member of the IPC, whose requirements they also did not follow. Therefore no contract has been formed with driver and the notices do not provide the 'adequate notice' of the parking charge which is mandatory under Schedule 4 of the POFA.

9).
The charge stated on the (virtually unreadable) signs is £100. The claimant is claiming additional £50.00 "indemnity costs" with no explanation of what those costs are, how (if at all) they have been incurred, and why the defendant should be liable for them. It is suggested that this is nothing but a means of artificially inflating the value of the claim in an attempt to circumvent the Small Claims costs rules using double recovery. The Court is invited to report Glastones to the Solicitors’ Regulation Authority for this deliberate attempt to mislead the Court, in contravention of their Code of Conduct. Also due to reasons sated above, as no contract was formed, I cannot be subject to any fictional damages or loss incurred.

10.a)
The Claimant has not complied with the pre-court protocol. The Particulars of Claim contains no details and fails to establish a cause of action which would enable the Defendant to prepare a specific defence. It just states “parking charges” which does not give any indication of on what basis the claim is brought. There is no information regarding why the charge arose, what the original charge was, what the alleged contract was nor anything which could be considered a fair exchange of information. Furthermore despite the Defendant requesting for this information, under the Ministry of Justice Part 31 - DISCLOSURE AND INSPECTION OF DOCUMENTS Rule 31:14, no information has yet been provided to establish a defence even though the Claimant had 7 days from the letter sent on Wednesday 18th January 2017 and was received on Thursday 19th January 2017.

10.b)
The particulars of claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached. Indeed the particulars of claim are not clear and concise as is required by CPR 16.4 1(a). The Claimant are known to be a serial issuer of generic claims similar to this one. HM Courts Service have identified over 1000 similar sparse claims. I believe the term for such behaviour is roboclaims and as such is against the public interest.

On the basis of the above the defendant therefore asks that the court orders the case to be struck out for want of a detailed course of action and/or for the claim as having no prospect of success.


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

Coupon-mad

Looks good - you could make #2 become 2(a) and add a point 2(b) to explain why no appeal was made, because the IAS is widely accepted to be weighted in favour of parking operators, hopeless for consumers who are expected to bear the burden of proof (even of information not within their knowledge) and are left with no options but to pay or be sued, regardless of contract, liability or basis for a claim in law.

Joe_Bloggss

Thanks Coupon,

I'll add that in and get this sent!

Thank you for all of your help.

Joe_Bloggss

To update you. I have received and sent of my DQ.
What is the time frame to expect a court hearing / WS?

I believe I may have also received a letter before claim for the other PCN's I have. If this is to proceed (I expect it will) am I able to use the same defence?

Also if in court and ruling is made in favour. Am I able to strike out all other potential claims from the outstanding PCN's?