PCM fine - Solicitor letter - please help

Coupon-mad

seezjear wrote: »

Hi guys. Could someone please help me? I spent nights reading topics over and over again but none of the cases are similar to mine. Tried to find the JOpson one, with no luck. I think I might not be able to write a defense

I don't understand your issue, don't know what you mean 'tried to find the Jopson one' - ONE?

We meant find the DOZENS that cite the Jopson case in the defence. You say no cases are similar but all Gladstones Jopson (residential car park) defences are generic, really. The defences for these cases are similar.

When you search this board for 'Jopson defence Gladstones' and choose advanced search' then 'show POSTS' you get to see recent defences to copy. So copy one from 2017, you will find LOADS. Adapt it to suit of dates/location or parking firm need changing.

Show your draft here.

seezjear

Hi all,

So I have finished with my draft version see below. Just to refresh the case in a nutshell:

My car was parked on the street (not in an allocated bay), there is no parking machines in the area - you either have a permit or you get the pcn. I do have a permit I just failed to display. As soon as I saw the PCN on the windscreen i contacted PCM with the copy of my permit, but they rejected my appeal. I am not 100% sure if I told them anything about the driver - I might admitted that it was me. There is nothing in my tenancy agreement about parking, however on the driveway i can park my car without the permit. They've got thousands of signs around the area, but the letters for the £100 fee for not displaying the permit are small-prints. They post the permits every year via mail, but there is nothing in these letters about fines for not displaying the permit. My car was photoed after 5-6pm - all the photos are dark, but the license plate is clear. They photoed my car, and their sign, however there is no photo in the evidences where the car and the sign can be clearly seen together. - There is a photos where you can see my car and the pole with their sign - but their sign is not clear enough to be identified.

Defense Draft:
1. 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.

3. 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.



4. The signage around the site was small, unclear and not prominent and did not meet the standards of the Independent Parking Committee (IPC) code of practice. The claimant was a member of the IPC at the time and committed to this code of practice. Therefore, no contract has been formed with the driver(s) to pay £100 or any other fees.

b) The driver did not enter into any 'agreement on the charge', no consideration flowed
between the parties and no contract was established.
The Defendant denies that the driver would have agreed to pay the original demand
of £100 to agree to the alleged contract had the terms and conditions of the contract
been properly displayed and legible, because the residents have primacy of contract at this location so any signs elsewhere on site are of no consequence.

5. 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’

6. 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.

7. 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. I will include the transcript of that case at any hearing.

a) 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.

8. 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.

9. The Defendant disputes that the Claimant has incurred ‘Legal representative’s 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. I submit these ‘costs’ are artificially invented figures in an attempt to circumvent the Small Claims costs rules using double recovery. The Court is invited to report Gladstones to the Solicitors’ Regulation Authority for this deliberate attempt to mislead the Court, in contravention of their Code of Conduct.

10. The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking for a true cause of action. HMCS have identified over 1000 similar poorly produced claims and the solicitor's conduct in many of these cases is believed to be currently the subject of an active investigation by the SRA.

11. I believe the term for such conduct is ‘robo-claims’ which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. I have reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to my significant detriment as an unrepresented Defendant.

12. I suggest that parking companies using the small claims track as a form of aggressive, automated debt collection is not something the courts should be seen to support.

13. It is denied that the Claimant has authority to bring this claim. The proper Claimant (if any debt exists, which is denied) would be the landowner.

14. I request the court strike out this claim for the reasons stated above, and for similar reasons cited by District Judge Cross of St Albans County Court on 20/09/16 where a similar claim was struck out without a hearing, due to Gladstones' template particulars for a private parking firm being 'incoherent', failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''.

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

System

Did you check with the council to see if this road is adopted and therefore a public highway?

seezjear

it is a dead end road in a newly built (2007) development, I dont think it was adopted, Is it worth to check it? How that would change the case?

Redx

if it was a public highway adopted by the council then no private parking company can issue invoices on it , its that simple

they can only be contracted on private land , not council public roads

The_Deep

is that likely? I have been reading these fora for several years and cannot recall a case of a PPC issuing a ticket on council land.

seezjear

Any thoughts on my draft defense?

Coupon-mad

The_Deep wrote: »

is that likely? I have been reading these fora for several years and cannot recall a case of a PPC issuing a ticket on council land.

I can, a handful of times, normally just beyond their area.

Coupon-mad

seezjear wrote: »

Any thoughts on my draft defence?

Defence = UK (your auto-correct must be American, as it changed to defense)!

At 3b I would make it clear your case is wholly different from the Beavis case:

3b) 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. The facts and the residents' interests are wholly different from those in the retail park scenario in ParkingEye v Beavis [2015] UKSC 67.

seezjear

Thanks, so I just delete 3b from the defence?