UK Car Park Management ignoring invoice rejection

c1223

Thanks very much Coupon-mad.

This is the final update before I submit. If anyone has a moment and wouldn't mind giving it a quick read I'd great appreciate it.

Background

1. It is admitted that at the time of the alleged infringement the Defendant, ****, was the registered keeper of the vehicle, registration mark ****, which is subject of these proceedings. The vehicle was insured with three named drivers permitted to use it.

2. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the keeper in these proceedings under the provisions set out by the statute in the Protection of Freedoms Act 2012 (“POFA”).

3. The Defendant denies any amount is owed to the Claimant in relation to the incident described in the Particulars of Claim.

4. It is denied that on **** the Defendant’s vehicle was parked at ****. The vehicle was stopped in order to remove another vehicle from the parking space in which it would then park.

4.1. The Defendant refers to Jopson v Homeguard [2016] B9GF0A9E where Charles Harris QC was clear on the concept of parking, as opposed to stopping. In this case, the driver was required to cope with a “vicissitude of short duration”.

4.2. Parking on street, there is no contravention if a vehicle’s driver is merely:

- “Opening or closing a gate or barrier to allow the vehicle to enter or leave premises, and it is not reasonably practical to stop elsewhere”

- “Using the vehicle in connection with the removal of any obstruction”

Therefore it would be disingenuous for a private parking firm to argue that they have more rights than a local authority engaged in parking management, or indeed that swapping one vehicle out of a bay to make way for the other breaches any parking terms in the few minutes that the activity took.

No Contract

5. The breach of terms referred to in the Particulars of Claim presumably refers to the supposed contract formed by the signage at ******.

6. The sign states “No parking on roadways at anytime”. The very act of entering into this alleged contract (parking) constitutes a breach of its terms, therefore making it impossible to perform.

7. The Claimant’s signage attempts to make a forbidding offer, which isn’t an offer at all. The basic requirement for a contract which is that each party to the contract must offer valuable consideration to the other party, on clear terms capable of acceptance, is not fulfilled, therefore no contract exists.

8. The Defendant refers to the cases of Horizon Parking v Mr J. Guildford [2016] C5GF17X2 and PCM (UK) v Bull [2016] B4GF26K6 which considered whether similar signage was forbidding in nature. In both cases, it was concluded that as the signage does not offer an invitation to park on certain terms there is no contractual offer and therefore charges could not be made on a contractual basis for vehicles that were not authorised to park.

9. Furthermore, no contract was formed due to the failure to provide adequate grace periods, the purpose of which is to provide sufficient time for an individual to read the terms of a contract and decide if they agree to them, as per The IPC Code of Practice B15.1:

“Drivers should be allowed a sufficient amount of time to park and read any signs so they may make an informed decision as to whether or not to remain on the site.”

Predatory Behaviour

10. The Defendant believes the Claimant has also breached the IPC Code of Practice B14.1 relating to “predatory tactics” by not allowing any grace period.

Failure to comply with Protection of Freedoms Act 2012

11. The Claimant has the right to recover any unpaid parking charges from the keeper of the vehicle subject to compliance with Schedule 4 of the Protection of Freedoms Act 2012. The Claimant has failed to meet the conditions of this Act.

12. The vehicle in question, at the time of the alleged infringement was under hire.

13. The Defendant admits that the vehicle-hire firm named the Defendant as the hirer.

14. The Claimant’s right to recover unpaid parking charges from the hirer of the vehicle is only applicable should the notice to the hirer be compliant with Schedule 4 of the Protection of Freedoms Act 2012. The notice must include certain documents as per the requirements of paragraph 14(2)(a) of Schedule 4 of the Protection of Freedoms Act 2012:

“the creditor has within the relevant period given the hirer a notice in accordance with sub-paragraph (5) (a “notice to hirer”), together with a copy of the documents mentioned in paragraph 13(2) and the notice to keeper;”

The documents mentioned in paragraph 13(2) are:

“(a) a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement;
(b) a copy of the hire agreement; and
(c) a copy of a statement of liability signed by the hirer under that hire agreement.”

Absent such documents served with the notice to hirer, the Claimant has failed to comply with the Protection of Freedom Act, therefore the keeper is not liable for any charges.


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

Coupon-mad

Very good.

Protection of Freedoms Act

Also, I notice you have removed everything from the end of the first draft, but I'd say keep but swap round, your last 2 points from that first draft, and re-word to suit, like here where it ends by asking for a strike out for abuse of process, which might catch the Judge's eye:

https://forums.moneysavingexpert.com/discussion/comment/74503811#Comment_74503811

c1223

I've submitted my defence now. Thanks for all the help. I'll keep this thread updated.

Just out of interest, do PPCs ever successfully claim from drivers who have contract hire leases? My understanding is that they need the various documents such as a copy of the hire agreement etc... I spoke to VWFS yesterday and they said that the only information they gave UK CPM was:

My name, address, contract duration, vehicle registration and PCN reference.

Therefore, UK CPM will never have received the required documents in order to pursue me as the hirer.

So is this basically a bit of a blackhole for PPCs?

Umkomaas

Ultimately, if you don't pay the charge and the PPC instigates court action, you'd need to convince a Judge. That is not always as easy as it sounds, and some mind-numbing adverse decisions have been made.

c1223

Although in my appeal to the PPC I relied on their failure to comply with POFA, my defence to the court relies more on the fact that in reality I wasn't really "parked" and the signage being forbidding.

When it gets to it, would a witness statement from a colleague stating that I frequently had to stop the car there to move vans in and out spaces/swap them be worth while?

Fruitcake

c1223 wrote: »

Although in my appeal to the PPC I relied on their failure to comply with POFA, my defence to the court relies more on the fact that in reality I wasn't really "parked" and the signage being forbidding.

When it gets to it, would a witness statement from a colleague stating that I frequently had to stop the car there to move vans in and out spaces/swap them be worth while?

I wouldn't mention having to do this frequently, but a witness statement from someone who saw the driver do the swap on this occasion might be useful, as long as the driver isn't identified.

Also, if the parking weasel saw the driver swap the vehicle, and this was a breach of parking conditions, why didn't they intervene and tell the driver not to do it, thus mitigating his/her employer's loss.

System

Also, if the parking weasel saw the driver swap the vehicle, and this was a breach of parking conditions, why didn't they intervene and tell the driver not to do it, thus mitigating his/her employer's loss.

Wasn't "loss" trashed by the Beavis case. Isn't the issue that it is a sum due under contract and the terms of the contract are on the signs. At very best, there is a duty of care to point to the signs but DoC I've only ever seen in regulated markets such as mortgages.

Where did this idea of "loss" come in after Beavis.

c1223

I have a feeling this particular car park (on a business estate) isn't actually patrolled by UK CPM. Rather, someone from one of the units on the estate snuck up and took a few photos and sent them onto the PPC.

System

I have a feeling this particular car park (on a business estate) isn't actually patrolled by UK CPM. Rather, someone from one of the units on the estate snuck up and took a few photos and sent them onto the PPC.

This may be a "self-ticketing" site. The contract should show who hired UKCPM and may not be someone with the authority to hire UKCPM (there are a lot of dodgy UKCPM contracts out there). You should start checking who owns/occupies the site so you can challenge later.

c1223

Thanks, I will look into that. I have found some info that the trade park is owned by an investment company. I have a feeling it is someone who works at one of the units on the estate who took the photos.

Just out of interest, what sort of timeframe am I looking at? Is it usually about a month before the N180 is received?