Proceedings issued, NTK invalid, Gladstones/Millennium refusing to respond

Loadsofchildren123

I apologise profusely for the length of this post but I think it's best to provide all info up front rather than drip feed. The proceedings relate to the driver parking in a residential development in Copper Quarter, Swansea on 31.10.15. Gladstones are acting.
In a nutshell:

• Notice to Driver was in the form of a windscreen ticket.
• Notice to Keeper received, keeper responded by denying that he was the driver and then (wrongly) disregarded everything that followed. The keeper mislaid his copy of the NtK and was unaware of POFA so didn’t check the time limits/conditions had been met.
• Various chasers and the usual defective LBC from Gladstones were received. Gladstones seem to have sent out “batch” NtKs and LBCs because I’ve seen a few posts about LBCs and NtKs with identical dates (September and February 2016).
• Gladstones issued proceedings in November. Claim Form/Particulars contains the usual unintelligible rubbish - I've read this up exhaustively on the Parking Prankster blog and these threads. Keeper invited Gladstones to retrospectively comply with the Practice Direction – Pre-Action Conduct and Protocols and to provide a list of information and documents (photographs of the car, the signage, a plan of the site showing where the car was parked relative to the signs, the contract with the landowner etc). Once this was ignored, keeper wrote to the court asking it to strike out or give summary judgment - keeper included examples of where other courts had done this (found on Parking Prankster’s blog). Keeper suggested that in the alternative, the court should stay the proceedings and order Gladstones to follow the Practice Direction, and/or treat the request for docs/information as having been made under CPR Part 18 (ie make them answer it). Keeper also said he'd have to amend his defence once this was done, because he had only been able to file a bald defence due to having no idea what the claim was about and could not tell whether the NtK was POFA compliant.
• At same time, keeper invited Gladstones to discontinue the claim. They ignored both letters/the request for information.
• Before the court has dealt with the matter (Xmas intervened), Gladstones have filed a witness statement. This deals (mostly) with the complaint that they have not explained the basis of the claim or provided documents such as a copy of the signage/contract with landowner. Whilst there is still insufficient info/evidence about the signage, at least the keeper can now see what the claim actually is.
• The claim is that the keeper was the driver (they rely on Elliott v Loake as setting the precedent for making this presumption), and that there was a valid contract formed by the signage, or alternatively the keeper is liable under POFA. Of course, Elliott v Loake does not set any such precedent. I think the keeper will win on this point and the court will not presume him to have been the driver because in fact the keeper does not drive, and has no valid driving licence or insurance. So that leaves keeper liability. If there is any issue over driver liability, the keeper’s case is that the signage was inadequately worded to have formed a contract (it is very similar wording to the sign in the Parking Control Management (UK) v Christopher Bull, which the court found was “forbidding” wording and made no offer so was not capable of creating a contract – a transcript can be found (with other useful cases) here http://www.parking-prankster.com/case-law.html and/or the signage was inadequately displayed (signs/type/font not big enough, insufficient attention drawn to them). Gladstones have produced a plan but it’s impossible to follow where the vehicle was parked relative to the signs (although they have produced photos showing 2 signs near to the parked car, although both signs are small and impossible to read from any distance).
• Gladstones have exhibited both the NtD and the NtK to the statement. It is questionable whether the NtD is fully compliant with the requirements of para 7 of Schedule 4 of POFA. But the killer point here is that the NtK was served 48 days AFTER the time period allowed by para 8, Sched 4 of POFA, so well out of time (there are other queries over its validity under the other conditions set out in paras 5, 6, 11 and 12 of Schedule 4, but this one seems to be a killer point and not open to any interpretation).
• Keeper has filed his own statement and has again written to the court asking it to strike out or give summary judgment, based not only on the defective Particulars of Claim but now also on the basis that he cannot be held liable under POFA as the keeper, and neither can he be proven or presumed to have been driving. The court’s response is awaited. At the same time, Gladstones have again been asked to discontinue the claim as it is without any merit. They have not so far responded.
• Keeper has now been able to see the contract between the Claimant and the landowner – it simply confers rights to manage parking and issue charges, it does not grant the right to issue proceedings, which in the VCS v Ibbotson case was held to be fatal and the claim was dismissed (case can be found on the same link as above).
• I’ve seen the links on here about complaining to the SRA which the keeper will do as well. In fact, he’s been threatening Gladstones with a complaint since they issued proceedings and also invited the court to refer the matter to the SRA, but I note that a recent complaint was rejected so I don’t hold out any hope. The complaint has more teeth now because Gladstones must know that their client’s statement contains an inaccurate factual assertion about the law and liability and other false assertions yet they have allowed their client to sign it when it bears a statement of truth (the incorrect assertion about Elliott v Loake and the assertion that the NtK is valid and the keeper is liable under POFA).

My questions are:
I have seen that Gladstones do discontinue cases when it is spelled out to them that they have no merit and can’t succeed. But they are proceeding with this one - am I missing something or is this just their policy to ignore everything until the day of the final hearing?


Keeper hasn’t issued a formal application for strikeout/summary judgment because the issue fee is £255, which is out of proportion to the claim. The court has the power to make these orders of its own volition (CPR Rule 1.4(2)(c) and Practice Direction 26, paragraph 5.1) or alternatively to treat the keeper’s letter as an application without requiring a formal application and fee (CPR Part 23.3(2)(b)). If the court won’t do either then it seems to me that there is no point pursuing the application separately, all of these arguments will just have to be pursued at the final hearing. Or should the keeper pursue it separately? If he wins, it surely follows that he’ll get these costs back (but he’d obviously prefer not to shell them out to begin with).


Signage: Is the keeper better off avoiding getting bogged down by the signage/contract points, and keeping things simple (ie relying on the NtK). On the other hand, the PCM v Bull case above is really helpful (and Beavis) and should the keeper therefore include these arguments? So should the keeper rely on inadequate signage, and put the claimant to full proof? Anyone have any experience of the signage at this site and whether it’s forbidding or capable of forming a contract? A poster called Stroma said he was going to go and have a look at the signs in 2014 but I can’t find any further comment from them about it.

Contract: is the VCS v Ibbotson case still good law or has it been contradicted? The contract between Millennium and the landowner doesn’t contain the right to issue proceedings, although it contains the following rights/obligations:

• to place warning signs to deter unwanted vehicles,
• to “operate within the AOS code”
• “all enforcement procedures will be handled by MPS….all appeals [should] be referred to MPS”
• “should a registered keeper not clearly display the permit, they will be liable for the enforcement procedures set out on the signage” [the sign says nothing about these procedures other than that the keeper’s details will be requested and they will be pursued by “our debt recovery service” – no mention of proceedings]
• “the client permits the use of a collection company to pursue unpaid parking charge notices”

And then there are attached terms and conditions which provide

• MPS is to place and maintain the signage
• MPS is to issue PCNs to any vehicle parked without authority “and of which MPS has been informed by the client”
• The landowner is to give MPS support “to defend any litigation made by third parties as a result of the services provided by MPS”
• The landowner must “inform MPS of any vehicles parked…without permission”.
• That the landowner will pay MPS to install and maintain the signage.

I don’t think the contract authorises MPS to issue proceedings, but simply to use debt collectors to pursue the charges (as per the VCS case). Also it is stated in the contract that the landowner must report unauthorised vehicles and MPS is entitled to issue a PCN to such vehicles “of which MPS has been informed by the client”. There is no evidence here that there was any complaint about the car being parked, and so was MPS entitled to issue a PCN in the first place?
I think I may have another point on the contract. The proceedings have been brought by Millennium Door and Event Security Ltd. The landowner contract, however, is with “Millennium Parking Services”. MPS doesn’t seem to have any legal identity of its own. The contract says that “MPS is a division of Millennium Door and Event Security Ltd, formed for the purpose of operating a car park management system; in respect of attaching parking charges to vehicles parked without permission or authority on land or premises owned by or in control of the client”. The wording at the foot of the contract, which appears to be their standard letterhead footer, says “Millennium Group is the trading name of Millennium Door and Event Security Ltd” and goes on to say “MPS [and 2 other names] are divisions of Millennium Door and Event Security trading as Millennium Group”. The signage shows the logo of “the Millennium Group” and MPS, it doesn’t mention the limited company. At the bottom in small type it repeats the wording at the foot of the contract about the Millennium Group being the trading name and MPS being a “division” of Millennium Door and Event Security Ltd”. It does NOT say anywhere that says that the limited company is trading as MPS. So is the contract even valid if it’s made with an entity that has no legal personality of its own? Are Millennium Door and Event Security Limited actually entitled to bring proceedings (supposing they are entitled to), if their name (or their “Trading As” name) were not on the contract with the landowner?


Is there anyone on here who knows this site? I drove round it on Sunday and it seems that there is quite a lot of signage on all parts of the site (although they are small and difficult to read) except for the part nearest to the retail park, where there are no signs at all. From the photographs this is where it seems to me the car was parked. Why is there just one area of the site with no signage on it? It seems from the photos that there were previously at least two signs there, but they’ve been removed. Gladstones haven’t identified on any plan where they say the car was parked so of course it’s difficult to say this for sure and I might be wrong in where I think the car was parked.


I have read that Millennium had the parking contract terminated by the landowner because of so many complaints against them. But their name is still on all the signage on the site. Anyone know any more about this? The keeper doesn’t want to claim it in his defence if it’s an unfounded/unevidenced rumour.

If anyone wants me to post on here the letters to Gladstones or the court regarding the strikeout/summary judgment, I can.
Any comments would be gratefully received. If the court won’t strike out or give summary judgment now, then the next step is for the Keeper to file an Amended Defence setting out a proper detailed defence to the claim (when he filed the original defence he didn’t know any details about the claim or what it was so all he could say was that he wasn’t the driver). I’m aware that leave is required for this under the CPR but am sure the court will give leave because of the defective Particulars.

System

Keeper hasn’t issued a formal application for strikeout/summary judgment because the issue fee is £255

You get that back off them if you win. Seem to recall the lease for that site does not allow anyone other than the Management Company issuing contracts. Have you checked the wording.

See this thread at post #20 and check if your wording is the same. If it is, then reconsider the summary judgment

http://forums.pepipoo.com/index.php?showtopic=110949

Loadsofchildren123

That fee (£60) is the fee for a counterclaim, not for applying for SJ/strikeout. The fee for any application in proceedings is £255, whatever the application is. The fee for a counterclaim is the same as for a claim - it's a scaled fee depending on the value of the claim/counterclaim, hence the debate about what the correct fee was.
If it was £60 I'd do it. It is really annoying that the claim only cost the Claimant £25 to file, because of its low value, yet I have to pay £255 to apply to get it slung out. yes I would get the money back, but I have to shell it out to begin with. That's why I'm hoping the court will do it of its own initiative, which it has the power to do and I've spelled this out in my letters - courts will often do this with litigants in person (or treat the letter as the application thereby doing away with the fee). I'm not the keeper, I'm helping the keeper, btw.


Dealing with your other point - the keeper isn't a tenant/owner at the site so I don't have any lease to look at. The site was built by Barratt Homes, but the contract is signed by "BDW South Wales" so perhaps they are the management company. I guess I need to point out that I haven't seen a chain of contracts giving BDW authority to enter into that contract with Millennium - Millennium therefore fall at another hurdle which is proving they have locus standi to bring the claim in the first place because they cannot show a contract with the landowner?


I'm going to do a new formal Pt 18 Request repeating my requests in the November letter and asking some new ones as follows, any thoughts?:

• The contract dated 28.1.14 refers to a plan or map (paragraph 3). Please produce the said plan/map showing the area on which Millennium authorised to operate on.
  
• Please produce a better plan than the one at page 4 of the exhibit showing exactly where it is claimed the car was parked and exactly where the signs were located.
  
• Please produce a better resolution photograph of the permit it is claimed was invalidly displayed, on which it is clear that the wording on the permit could not be read by the Claimant’s operative who issued the Notice to Driver
  
• As previously requested, produce evidence of the size of each sign, the height at which it was displayed, and the size of the font used (there are different fonts on the sign, the Defendant requires the font size of each part of the sign).
  
• The contract allegedly granting rights to the Claimant dated 28.1.14 is made between “Millennium Parking Services” and “BDW South Wales Limited”. Please produce the following:
  
  1. Evidence of who is the landowner of the land on which the vehicle was allegedly parked, in the form of Land Registry Official Copy Register Entries and title plan
  2. If the landowner is not BDW South Wales Ltd, any contract in which the landowner gave authority to BDW South Wales Ltd to enter into the contract with Millennium Parking Services
     
• What is the legal status of “Millenium Parking Services”? is it a registered company? If it is claimed that it is the “trading as” name of the Claimant please produce evidence of this.
  
• Under what basis is it claimed that the Claimant is entitled to bring this claim, given that the contract was entered into between Millennium Parking Services (ie not the Claimant) and BDW South Wales Limited
  
• Please produce evidence that the Claimant made a valid application for keeper’s details in accordance with paragraph 11, Schedule 4 of the Protection of Freedoms Act (and in the meantime the Defendant reserves all of his rights under the Data Protection Act)
  
• On what basis is it claimed that he contract dated 28.1.14 gives the Claimant authority to issue proceedings against a keeper of a vehicle in respect of alleged unauthorised parking? Please answer with reference to the specific clauses in the contract.
  
• With reference to clause 3b of the Terms and Conditions appended to the contract, please produce evidence that BD South Wales Limited informed Millennium Parking Services that the vehicle was parked without authority
  
• The Defendant understands that the contract between BDW South Wales Limited and Millennium Parking Services has been terminated. Please produce evidence of the date of termination.

Loadsofchildren123

Perhaps it is relevant information for me to add that the keeper genuinely doesn't know who the driver was - he can't remember and disregarded the reminders/NtK at the time they were delivered and now it's 15 months down the line (he is elderly). The keeper allowed various family members to use the car at the relevant time. He asked them at the time of the NtK if it was any of them and none of them could remember having the car on that day (NtK having been received 4 months after the event). None of them lived at Copper Quarter so cannot have been tenants/owners and had lease rights. The photographs Millennium has now produced show that a permit was displayed, but the claim is it was invalidly displayed. The photos are possibly not good enough to show that (you can't see what wording is on the permit, it looks blank but then the wording might have been faint and not showed up on the photo). So it looks like visitor parking to me.
The issue over the invalidly displayed permit is irrelevant if they can't identify the driver or prove the keeper was the driver (which on balance they can't, even by inviting a presumption, because the keeper is elderly and has no valid licence/insurance and no longer drives at all). The contractual points then fall away leaving just the NtK points (the NtK being out of time and therefore this is fatal).

The_Deep

Surely they must know by now that E V L is a dead parrot.


http://parking-prankster.blogspot.co.uk/2017/01/skipton-judge-rubbishes-elliot-v-loake.htmld

Loadsofchildren123

Cleary not - quote from their witness statement (the SRA complaint will mention that they clearly know that Elliott v Loake doesn't say this yet they are allowing clients to say that it does and are misleading litigants in person about it:
The Criminal Case of Elliott v Loake 1983 Crim LR 36 held that the Registered Keeper of a vehicle may be presumed to have been the driver unless they sufficiently rebut this presumption. To date the Registered Keeper has been invited on numerous occasions to identify the driver, yet has failed to do so. The Court is therefore invited to conclude it more likely than not that the Registered Keeper (i.e. the Defendant) was the driver.

System

Wouldn't lose sight of the comment that

"Rights of the third parties:
"The parties intend that no clause of this agreement may be enforced by any third party, other than the Landlord's agent, pursuant to the contracts (Right of Third Parties) Act 1999""

So whether they were a visitor, tenant, or leaseholder. Millennium can't offer parking to anyone.

Loadsofchildren123

Sorry Iam, where does that come from?

Loadsofchildren123

If it's from a lease that's been quoted (perhaps from the Pepipoo thread which I'll look at again), the driver in this case was not a tenant/leaseholder. Are you saying that it follows that if Millennium can't enforce against a tenant/leaseholder then they cannot enforce ANY parking on the site, against visitors/contractors/third parties there without any reason other than to nick a bit of free parking?
Regarding agency, won't they say Millennium is the landlord's agent (although they haven't provided a chain of contracts proving that).


I've just spent all day reading the case law on the parking prankster's link. Those cases where the judges say that only the landowner can bring proceedings, not the agent, because a contract cannot impose a cause of action and doesn't entitle a third party to bring a claim (eg ParkingEYe v Sharma, ParkingEye v Gardam, ParkingEye v Clarke etc) - don't they blow these cases out of the water or are they not good law since Beavis (the appeal court and the supreme court allowed parkingeye to claim)? They are all of course District Judge level decisions which means that they are persuasive but not binding. I haven't read Beavis in full yet, that's my next job.

Loadsofchildren123

post #38 - who is the landlord's agent if it isn't Millennium? do you mean the letting agent who is letting out the flats, or the freeholder (ie the landowner)?

hoohoo

Loadsofchildren123 wrote: »

I've just spent all day reading the case law on the parking prankster's link. Those cases where the judges say that only the landowner can bring proceedings, not the agent, because a contract cannot impose a cause of action and doesn't entitle a third party to bring a claim (eg ParkingEYe v Sharma, ParkingEye v Gardam, ParkingEye v Clarke etc) - don't they blow these cases out of the water or are they not good law since Beavis (the appeal court and the supreme court allowed parkingeye to claim)? They are all of course District Judge level decisions which means that they are persuasive but not binding. I haven't read Beavis in full yet, that's my next job.

This actually depends on the wording of both signage and landowner contract, and is not cut and dried.

The reality is, that many judges will not understand the complexities and so will bluff their way through the issues.

The other reality is that is the contract blows the parking companies case out of the water, they will either not provide it, or will redact the clauses which cause them trouble.

The other reality is that some judges do completely understand the issues and will dismiss the claim if the parking company documentation does not support their claim, or if they fail to provide the documents.

So this can be a claim winner, but not with all judges, and may also require you to get into complex legal arguments.