Never issued PCN and can prove, yet appeal still rejected

Umkomaas

In the case of Elliot v Loake (1982) the legal principle is established, that, in the absence of sufficient evidence to the contrary, the keeper of a vehicle is assumed to be the Driver. As the Appellant provides no documentary proof as to their whereabouts I am not satisfied that the Appellant has proved that they are not the Driver as appears to be claimed.

Then why is it that every court case we have seen, no judge has taken this line, rather has thrown it out as totally irrelevant.

So surely any 'legal' who is carrying out these adjudications is either woefully unread of recent cases, or is utterly institutionally biased - or both.

Appaling state of affairs if this is from someone truly legally trained, qualified and purporting to perform an impartial ADR service.

The IAS is in danger of being accused of being a kangaroo court!

Loadsofchildren123

It is a completely false statement to say that Elliott v Loake establishes that.


OP, some pointers for you - I suggest you read my thread on Millennium. It's a bit long because I love the sound of my own voice and can't stop once I've started. BUT:


1. the signage will identify MPS. But the company suing you will be Millennium Door and Event Security Ltd (MDES). I say that MPS is identified as a separate entity to MDES by its signage and on the Millennium Group website. So it's a runnable argument to say that MDES is not the correct claimant (which stuffs them because MPS is not a legal entity, even though they hold it out as one). MPS will also probably have signed the landowner parking contract (not MDES). If this argument ever sees the light of day and succeeds, MDES will find it very difficult to recover any parking charges in court. It's probably why they withdrew.


2. I have now seen 2 MDES/MPS parking contracts, the one in my case and another posted up recently (Jackbasta's thread). In both, the very first clause says that Millennium must comply with its AOS CoP - you will find multiple breaches of the CoP and can argue that the contract is repudiated (and therefore void) because of this breach of a fundamental term. Also, in the t&cs, paras 3 and 4, you will see that Millennium is only entitled to ticket cars that are reported to it as unauthorised by the landowner (para 3) and the landowner will report to Millennium cars it thinks are unauthorised (para 4). so you ask Gladstones, - and ask again and again - for evidence that such report was made. If there was no report, then you argue that Millennium wasn't entitled under the contract to issue a pcn. The contract also doesn't specifically authorise Millennium to pursue court proceedings in its own name, which the BPA CoP recommends is a specific clause in any contract (not sure about IPC CoP - have a look though - at the time of my parking event Millennium was a BPA member so this helped me). Again, if this argument were to see a win in court then that could make life very difficult for them in all their other cases.

Umkomaas

@LoC - have you seen today's court list? MDES have 12 cases going through in Swansea today. It will be like a factory conveyor belt. This is obscene.

COURT CASES FOR 28-04-2017

Court Claim Number Claimant Comments
Aldershot C3GF2P04 Parking And Property Management
Basingstoke C8GF1R7V Parking And Property Management
Brighton C1QZ0V5R MIL Collections
Cardiff D6GF793J Link Parking Set Aside
Chelmsford C3GF0P51/2 Parking And Property Management Post Set Aside
Dudley C1GF9P8T Euro Parking Services
Dudley C6GF1T3C Euro Parking Services
Dudley C9DP5T4F Excel Parking Services
Dudley C9DP16P6 Excel Parking Services
Hertford C4CF3Q8J Park Direct UK
Hertford C4CF06FF Parking Control Management (UK)
Manchester C7DP2C7T Excel Parking Services Paper Hearing
Oxford C3QZ4K5V Vehicle Control Services
Preston C2GF3N2C SIP Parking
Reading C4GF2Y8M Parking And Property Management
Reading C6GF0Y20/2 Parking And Property Management From 27-01-2017
Reading C8GF68N2/2 Parking And Property Management From 16-12-2016
Reading C0FC2P7F ParkingEye
Reading C0GF23AQ UK Car Park Management
Reading C2GF6X3K UK Car Park Management
Romford C4GF3F05 Link Parking
Romford C4GF11CX Parking Control Management (UK)
Romford C2FC4X9D ParkingEye
Sheffield C1QZ8Z4N Vehicle Control Services
Sheffield C9DPH6H Vehicle Control Services Set Aside
Skipton C3DP29CT Excel Parking Services
Skipton C9DP14CC Excel Parking Services
Slough C0GF7P0T Parking And Property Management
South Shields C0DP5T62 Vehicle Control Services
Southampton C4FC2J6D ParkingEye
Southampton C8GF3Q7H Premier Park
St Helens C4GF79AP ES Parking Enforcement
St Helens C3DP39Q2/2 Excel Parking Services Post Set Aside
St Helens C0FC3R7C ParkingEye
St Helens C1FC4E1M/2 ParkingEye From 24-02-2017
St Helens C6GF3Z6D SIP Parking
Swansea C3DP75CT Excel Parking Services
Swansea C9DP30CH Excel Parking Services
Swansea C7DP32CC Excel Parking Services
Swansea C5GF1X1C Millennium Door And Event Security
Swansea C1GF6V7A Millennium Door And Event Security
Swansea C2GF2T0J Millennium Door And Event Security
Swansea C2GF9Y3N Millennium Door And Event Security
Swansea C2GF5T5J Millennium Door And Event Security
Swansea C7GF04CX Millennium Door And Event Security
Swansea C2GF4T7J Millennium Door And Event Security
Swansea C4GF3V1A Millennium Door And Event Security
Swansea C3GF5Y7N Millennium Door And Event Security
Swansea C8GF1Z7K Millennium Door And Event Security
Swansea C3GF8V0A Millennium Door And Event Security
Swansea C5GF5T1C Millennium Door And Event Security
Swansea C7DP7C3Z Vehicle Control Services
Telford C6FC2829 ParkingEye
Uxbridge C6GF17Q5 Parking And Property Management

You should pop down there and look them in the eye!

Loadsofchildren123

The small claims list often looks like that, it is obscene. Hopefully the more this happens the more the tide will turn. There is a risk of course that the more claims are incompetently defended, or Ds don't even turn up, that the tide turns in favour of the PPC. My hope is that all it takes is a few well defended cases, the judges start talking over coffee and start turning on the PPCs. This did seem to happen in Port Talbot a couple of weeks ago (same judges)

Bell-liv

I have forwarded the following in response to LBCCC

I await a response with baited breath!




Acknowledgement to Letter before Claim
Dear Sirs,

Ref : PCN Number xxxxxxx
I acknowledge your ‘Letter Before Claim’ dated 20th April 2017 and received at my address on 25th April 2017.
I forward you this both by 1st class post with proof of posting and by email.

I deny any debt to the claimant Millenium Door and Event Security Ltd.

The driver is not identified in your letter and your client has failed to meet the requirements of The Protection of Freedoms Act to pursue me as keeper. No ticket was issued to my vehicle and the claimant forfeits their right to use POFa 2012 to their advantage.
1. Please state whether you are claiming keeper liability exists. It is believed that the claimant has not met or chosen not to invoke the Keeper liability provisions of POFA2012 and therefore there is no possible cause of action against the vehicles keeper. POFA Sched 4 para 8 or 9 both require this.
I am concerned that the claimant instructs Gladstones Solicitors in this case, especially when I, as the appellant, have followed the claimants own appeals process via the Independent Appeals Service (IAS).
I consider it a clear conflict of interest as the IAS and Gladstones have been run by the same body, Hurley and Davies. A potential conflict of interest therefore exists between the Gladstones Solicitors, the IPC and the IAS. In effect the Claimant’s solicitors have the potential, to exert influence via their formulation of the appeals process and appointment of adjudicators, over the extent to which appeals are allowed.

You also cannot presume that I possess all the documents which would allow me to formulate a full response.
2. Please send me copies of all the documents generated by the claimant including the windscreen notice if one was attached to the vehicle and all photographs of the vehicle and driver.
3. Please also confirm whether the intended action is founded on a contractual charge, a breach of a contract or trespass.
4. Please confirm that your client's contract with the land-holder includes specific authority to take legal action and that this will be produced for the court.
5. I also require an explanation for the additional £60 charge including confirmation that it has already been invoiced and paid.


When I receive the documents and your explanations I will be in a position to make a more detailed response
It would be unreasonable to proceed with litigation before you have clarified your client's cause of action.
You have provided me with 14 days to acknowledge your Letter Before Claim and I would request that you afford me the same courtesy of 14 days to give me your reply.


I look forward to your response

Yours Faithfully

Bell-liv

Evening all.

Glads reply has been received stating that I am being pursued as the registered keeper and they quote such 4 of pofa and Elliot v loake.
The provide photographs of my vehicle and my written responses however conveniently omit the email from mill enium confirming that no ticket was ever issued to my vehicle.

My belief is that I cannot be pursued under pofa given no ticket was issued to my vehicle and I am unable to identify the driver when first requested 38 days after the alleged incident.

I have now acknowledged their Court Claim Form within 14 days and so have another 14 days to reply with my defence.

Should I provide a skeleton defence until my witness statement is requested, or should I compile a full defence?

Assistance fully appreciated.

Coupon-mad

You must cover every base now, as you cannot add to a defence later on (except at huge cost). Show us your defence draft based on others you find that are similar, when searching the forum for suitable keywords and the word 'defence'. You will find loads.

[Deleted User]

Please post details of the PoC on the forum. I think this needs to be targeted rather than generic:

1. (Usually applicable) the Particulars of Claim lack specificity and fail to set out in detail the basis of the claim which the defendant is required to respond to. The defendant reserves the right to add to or amend his defence in the event that the claimant amends or clarifies their pleaded case.

2. By means of pre-action correspondence dated X the claimant confirms that proceedings are brought in reliance upon the Protection of Freedoms Act (POFA) and Elliot v Loake.

3. The abov

[Deleted User]

(sorry)

3. The POFA permit recovery of private parking charges in limited circumstances as defined by the act and contingent upon whether (a) a parking charge notice (PCN) was affixed to the windscreen of the vehicle or (b) a PCN was issued via post, having obtained details from the Driver Vehicle Licensing Agency (DVLA). The Defendant relies upon POFA Schedule 4 para 9(5) and avers that Notice to Keeper was sent after the statutory period permitted. Accordingly, the Claimant may not rely upon the Act to transfer liability to the keeper. *NB can you prove it was sent late or was it simply received late. This point may be critical*

4. In the pre-action correspondence dated X the Defendant refers to Elliot v Loake as an authority for establishing a presumption as to the identity of the driver. This is incorrect. Elliot v Loake may be distinguished as a criminal matter in which there was additionally overwhelming forensic evidence. The Court will be provided with recent authorities rejecting the basis for such a presumption. Further it will be noted that had parliament intended to impose a presumption as to the identity of a driver of any vehicle they would have done so - whether in connection with driving matters generally (under the Road Traffic Act 1988) or within the more recent legislation, such as POFA itself. The Court will note that Parliament specifically provided for a more limited liability.

5. It is averred that the Claimant has no basis with which to bring his claim and that it should be struck out.

Before my paragraph 1 it may be sensible to include your own details setting the scene - that you own a car and that you are the keeper, that it was parked, that no ticket was affixed etc etc as the Claimant almost certainly wont do this. Once you've done that the rest of the points above should be sequential....

Bell-liv

Evening all, please could you find my draft defence - id appreciate any observations you may have


Defence Statement

I am , the defendant in this matter and registered keeper of .

I deny I am liable for the entirety of the claim as outlined below.
The defendant has responded promptly to each correspondence from the claimant and their legal representatives and fully complied with the timescales set out by the County Court Claim Form.

The defendant therefore asks the Court to strike out the claim as having no reasonable prospect of success as currently drafted

1)
The claimant’s legal representatives letter dated 16th June 2017 quotes Elliot v Loake 1983 Crim LR 36 and also Schedule 4 (4)(1) of the Protection of Freedoms Act 2012 in that the defendant is being ‘pursued as the registered keeper’ of the vehicle. This contradicts the Claimant’s Claim Form which states that ‘the defendant was driving the vehicle and/or is the Keeper of the vehicle. The Claimant does not reasonably identify how the defendant is being pursued, which prevents the defendant compiling a Full Defence
The defendant was issued a Parking Charge Notice/Notice to Keeper dated 8th December 2016, yet delivered on the 17th December 2016. The PCN/NTK states that a ‘Parking Charge Notice was affixed to the windscreen of the vehicle at the time of issue’ on 08/11/16. The PCN/NTK also states that ‘At the time that the charge was incurred, a Notice to Driver was affixed to the vehicle’.


The defendant acknowledged they were the registered keeper, yet cannot reasonably be expected to identify who was driving the vehicle on any given date after 38 days. The defendant is not the only regular driver of the vehicle. The defendant highlighted that he had no knowledge of any Parking Charge Notice or Notice to Driver. The defendant highlighted that it could be considered an attempt to pervert the course of justice should the attendant claim to have issued a PCN when they had not. Confirmation that the NTK was received on day 38 is provided in a witness statement.


The claimant, confirmed by email on 17/01/17 that ‘looking into your parking charge notice, no PCN was affixed to the vehicle due to it having been marked as a drive off’.The claimant therefore acknowledges that they adopted the ANPR method of issuing a parking charge ie taking a photograph and then issuing the charge at a later date. The Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012. Absent such a notice served within 14 days of the parking event and with fully compliant statutory wording, this Claimant is unable to hold me liable under the strict ‘keeper liability’ provisions.


The admission by the claimant within this email (xxx) renders their one and only Parking Charge Notice/Notice to Keeper, dated 8th December 2016 invalid.


The POFA permit recovery of private parking charges in limited circumstances as defined by the act and contingent upon whether (a) a parking charge notice (PCN) was affixed to the windscreen of the vehicle or (b) a PCN was issued via post, having obtained details from the Driver Vehicle Licensing Agency (DVLA). The Defendant relies upon POFA Schedule 4 para 9(5) and avers that Notice to Keeper was sent after the statutory period permitted. Accordingly, the Claimant may not rely upon the Act to transfer liability to the keeper


In the pre-action correspondence dated X the Defendant refers to Elliot v Loake as an authority for establishing a presumption as to the identity of the driver. This is incorrect. Elliot v Loake may be distinguished as a criminal matter in which there was additionally overwhelming forensic evidence. The Court will be provided with recent authorities rejecting the basis for such a presumption. Further it will be noted that had parliament intended to impose a presumption as to the identity of a driver of any vehicle they would have done so - whether in connection with driving matters generally (under the Road Traffic Act 1988) or within the more recent legislation, such as POFA itself. The Court will note that Parliament specifically provided for a more limited liability.


2)
The defendant has been provided no information as to the identity of the driver, given that if the parking attendant claims this matter was a ‘drive off’, then this would imply some form interaction between the driver and the attendant. The defendant would require the attendant to provide evidence as to the driver’s identity.


The claimants letter dated 25th January 2017 states ‘…as well as taken statements from the operative(s) (where applicable) who issued the PCN. At no time has this ‘statement’ been provided, nor has the claimant assisted the defendant in identifying the driver.


The defendant would expect that any evidence as to the driver’s identity would adhere to the provisions within R v Turnbull 1976, 63 Cr App R 132. A copy of R v Turnbull would be provided to the court.

3)
The complainant and their legal representative are speculative serial litigants, issuing a large number of identical 'draft particulars'. The badly mail-merged documents contain very little information.


The defendant is concerned that the claimant instructs Goldstones Solicitors in this case, especially when the defendant has followed the claimant’s own appeals process via the Independent Appeals Service (IAS). The defendant considers it a clear conflict of interest as the IAS and Gladstones Solicitors have been run by the same body, Hurley and Davies. A potential conflict of interest therefore exists between Gladstones Solicitors, the IPC and the IAS. In effect, the claimants solicitors have the potential to exert influence via their formulation of the appeals process.

4)
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 the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr. Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a license to park free. None of this applies in this material case.

In the absence of any proof of adequate signage that contractually bound the Defendant then there can have been no contract and the Claimant has no case.


The defendant submits three photographs (Court ref xxx), taken after receipt of the NTK, from the perspective of the driver of the vehicle whilst entering the car park, which clearly show that the signage within the car park is physically impossible to view, let alone adhered to the clear signage requirement within the Beavis case.


Since this matter arose, the car park has implemented further signage within the car park, (Court ref CW/5) which the defendant presents as a clear acknowledgement that the signage at the time of the alleged incident was wholly inadequate.


The Claimant is put to strict proof that at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs.


Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case:


Sporadic and illegible (charge not prominent nor large lettering) of site/entrance signage - breach of the POFA 2012 Schedule 4 and the BPA Code of Practice and no contract formed to pay any clearly stated sum.


It is believed the signage and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Consumer Rights Act 2015 in requiring a huge inflated sum as 'compensation' from by an authorised party using the premises as intended.


The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.


The charge is an unenforceable penalty based upon a lack of commercial justification. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim.


5)
Schedule 4 also states that the only sum a keeper can be pursued for (if Schedule 4 is fully complied with, which it was not, and if there was a 'relevant obligation' and relevant contract' fairly and adequately communicated, which there was not as there was no clear, transparent information inside or outside the site) is the sum on the Notice to Keeper. They cannot pluck another sum from thin air and bolt that on as well when neither the signs, nor the NTK, nor the permit information mentioned a possible £242.58 for outstanding debt and damages.


The Claimant has added unrecoverable sums to the original parking charge. It is believed that the employee who drew up the paperwork is remunerated and the particulars of claim are templates, so it is simply not credible that £50 'legal representative’s (or even admin) costs' were incurred. I deny the Claimant is entitled to any interest whatsoever.


The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has:

(a) Failed to disclose any cause of action in the incorrectly filed Claim Form issued on 12th June 2017.

(b) Sent a template, well-known to be generic cut and paste 'Particulars' of claim relying on irrelevant case law (Beavis) which ignores the fact that this Claimant cannot hold registered keepers liable in law, due to their own choice of non-POFA documentation.


The vague Particulars of Claim disclose no clear cause of action. The court is invited to strike out the claim of its own volition as having no merit and no reasonable prospects of success.

I confirm that the above facts and statements are true to the best of my knowledge and recollection.