County Court Claim AM Parking Services Ltd

JimmyChan

Ok here is the sign they are claiming forms a contract hxxps://filetea.me/n3wOV6Q0nvlQV6YHxHerCSeoA and here are their refiled PoC:

[FONT=&quot]THE CONTRACT[/FONT]
1. The Claimant is a Parking Operator managing the land at Coriander Drive, Maidstone, Kent, ME16 (“the Land”). Attached to these Particulars of Claim are photographs of the incidence marked ‘Document 1’.
2. The Claimant installed signs (i.e. the “Contract”) on the Land that set out its terms of parking. A copy of the Contract is attached to these Particulars of Claim marked ‘Document 2’.
3. The Claimant entered into a Contract with the driver of the vehicle with Registration Number XXXXXXX (“the Vehicle”). A schedule is set out below; Failure to display valid permit
4. Through the act of parking as described above, pursuant to the Contract, the driver accepted the Claimant’s terms and was issued with a Parking Charge Notice for the sum set out in the Contract (‘the Relevant Charge’).
5. The driver failed to pay the Relevant Charge within 28 days (‘the Relevant Period’) or indeed at all. The Relevant Charge now forms the substantive element of this claim.
6. In addition to the Relevant Charge the Claimant claims £50.00 in general damages as a predetermined and nominal contribution to its actual losses suffered as a result of the Relevant Charge not being paid within the Relevant Period.

[FONT=&quot]REGISTERED KEEPER[/FONT]
7. The Defendant is the Registered Keeper of the Vehicle.
8. Pursuant to Schedule 4 of the Protection of Freedoms Act 2012, the Claimant has the right to recover any unpaid parking charges from the keeper of the Vehicle and the ‘keeper’ of the Vehicle is presumed to be the Registered Keeper, unless the contrary is proven.

[FONT=&quot]CLAIM FOR INTEREST[/FONT]
9. The Claimant claims interest under S.69 of the County Courts Act 1984 at a rate of 8% from the date of 28 days after the charge until the date of issue of this claim (10 February 2017) and continuing at a rate of £0.03 per day until judgment or earlier payment or alternatively at such rate that the Court thinks fit.

[FONT=&quot]CLAIM FOR COSTS[/FONT]
10. The Claimant claims costs on contractual (indemnity) basis, pursuant to CPR 44.5, as the contract contains an expressed indemnity clause permitting them to do so.

[FONT=&quot]AND THE CLAIMANT CLAIMS:[/FONT]
(1) The Relevant Charge as a debt;
(2) Damages for the Defendant’s breach of contract in the sum of £50.00, as set out above;
(3) Statutory interest, as set out above; and
(4) Costs on a contractual (indemnity) basis pursuant to CPR 44.5, together with the fixed fees and costs of issuing.

JimmyChan

So here is my ammended defence now I have more details, I have started with the most important points about them trespassing, through to not identifying the driver (if there even was a driver and a parking event even took place), through to discrediting the contract to finally mitagating their added on charges:

[FONT=&quot]PRELIMINARY MATTERS[/FONT]
[FONT=&quot]1. [/FONT][FONT=&quot]The Claimant failed to include a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the Claimants contractual authority to operate on the land, as required by the Claimants Trade Association's Code of Practice A7.1 which says that [/FONT]

If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges.

[FONT=&quot]A7.2 Then goes on to say that[/FONT]

[FONT=&quot]If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.[/FONT]

[FONT=&quot]2. [/FONT][FONT=&quot]The Claimant[/FONT][FONT=&quot]has not complied with the pre-court protocol:[/FONT]
[FONT=&quot]a. [/FONT][FONT=&quot] When requested for concise details of the claim (in line with Para 6(a) Para 6(c)), such as a specific location, a contract with the land owner and how the claimed amount had been arrived at, the Claimant either ignored the request or stated it would only be provided in their witness statement if the matter went to court.[/FONT]
[FONT=&quot]b. [/FONT][FONT=&quot]When requested that we consider using ADR, as Para 8 suggests, by using the Claimant’s own Trade Association’s recommended ADR (Parking on Private Land Appeals) it was dismissed with no satisfactory answer. Due to the above the Defendant would refer the court to Para 11 & 14(c) on the unreasonableness of dismissing ADR.[/FONT]
[FONT=&quot]c. [/FONT][FONT=&quot]The Defendant would refer the court to Para 4 on non-compliance and sanction, and also point out that there can be no reasonable excuse for the Claimant's failure to follow the Pre-action Conduct process.[/FONT]
[FONT=&quot]3. [/FONT][FONT=&quot]The Defendant has emails from the Managing Agent for the private land the parking charge was issued on which states “[/FONT][FONT=&quot]I can confirm that we were not in touch with them nor would we get involved with parking” which shows they have no standing in order to bring a claim.[/FONT]
[FONT=&quot]DEFENCE[/FONT]
[FONT=&quot]I am [FONT=&quot]Jimmy[FONT=&quot]Chan[/FONT][/FONT], defendant in this matter. It is admitted that the Defendant was the registered keeper of the vehicle noted at the date of alleged breach, and it was being kept on the Land shown in the images filed with the Claimant’s Particulars of Claim. However, the Claimant has no cause of action against the defendant on the following grounds: -[/FONT]
[FONT=&quot]1. [/FONT][FONT=&quot]The Claimant claims to be “a Parking Operator managing the land,” this is misleading as they do not have any authority to manage the Land the vehicle was being kept on. [/FONT]
[FONT=&quot]2. [/FONT][FONT=&quot]The Claimant claims to have “installed signs on the Land,” this is not true as the signs are not installed on the Land, but on a different area of land, with a different registered title.[/FONT]
[FONT=&quot]3. [/FONT][FONT=&quot]The Defendant owned the registered leasehold title which included the Land, which has been whole demised.[/FONT]
[FONT=&quot]4. [/FONT][FONT=&quot]The Defendant has never authorised the Claimant to charge for use of the Land, nor to operate in any way on the Land, or to carry out court proceedings in their own name in relation to the Land.[/FONT]
[FONT=&quot]5. [/FONT][FONT=&quot]The leasehold title held by the Defendant at the time of the alleged breach, with no amendments mentions no terms which must be followed in order to keep a vehicle on the Land.[/FONT]
[FONT=&quot]6. [/FONT][FONT=&quot]The Defendant believes that the Claimant has trespassed on the Land, and from this their personal details have been obtained unlawfully by the Claimant and asks that the Court does not to assist the Claimant to benefit from a wrongdoing. (Ex turpi causa non oritur actio).[/FONT]
[FONT=&quot]7. [/FONT][FONT=&quot]The Claimant has not authority to operate on any of the other areas of land they have installed signs on.[/FONT]
[FONT=&quot]8. [/FONT][FONT=&quot]Authorities to support my defence include but are not limited to the (higher court level) Appeal case heard at Oxford County Court by Senior Circuit Judge Charles Harris QC, in Jopson v Homeguard [2016] B9GF0A9E. Similar Small Claim decisions in 2016 include Pace v Mr N C6GF14F0 and Link Parking v Ms P - C7GF50J7. All three cases were brought by the Claimants legal representatives for parking operators (including the original Jopson claim) and in these cases, it was found that the parking company could not override residents’ existing rights by requiring a permit to park and that the signs were of no consequence due to the primacy of contract enjoyed by the Defendants.[/FONT]
[FONT=&quot]9. [/FONT][FONT=&quot]The Claimant has not identified the driver who allegedly entered into a contract with them.[/FONT]
[FONT=&quot]10. [/FONT][FONT=&quot]The Claimant has failed to meet many of the conditions set out in The Protection of Freedoms Act 2012 (PoFA 2012) which would allow them to transfer the liability of any unpaid parking charges to the registered keeper. This includes but is not limited to:[/FONT]
[FONT=&quot]a. [/FONT][FONT=&quot]The right to enforce the requirement to pay[/FONT]
[FONT=&quot]b. [/FONT][FONT=&quot]The maximum charge recoverable[/FONT]
[FONT=&quot]c. [/FONT][FONT=&quot]The statutory wording required in documents[/FONT]
[FONT=&quot]d. [/FONT][FONT=&quot]The time frames for certain actions[/FONT]
[FONT=&quot]11. [/FONT][FONT=&quot]The vehicle’s registered keeper’s address has been at the Land long before the signs have been installed.[/FONT]
[FONT=&quot]12. [/FONT][FONT=&quot]The Claimant cannot identify if the vehicle was indeed parked as this is the land the vehicle was kept on.[/FONT]
[FONT=&quot]13. [/FONT][FONT=&quot]The signs are said to be a contract to park, which are an advertisement to park but there has been no planning or advertising consent. Regulation 30 of the Town and Country Planning (Control of Advertisement) (England) Regulations 2007 makes it a criminal offence to display advertisements without the relevant consent. Due to these signs being criminal in nature therefore they cannot form a contract with a driver.[/FONT]
[FONT=&quot]14. [/FONT][FONT=&quot]The signs do not form a contract.[/FONT]
[FONT=&quot]15. [/FONT][FONT=&quot]The signs and their terms are unclear.[/FONT]
[FONT=&quot]16. [/FONT][FONT=&quot]The Claimant’s signs attempt to make a forbidding offer, which isn’t an offer at all, therefore no contract exists.[/FONT]
[FONT=&quot]17. [/FONT][FONT=&quot]Coriander Drive has been adopted by Kent County Council and is marked as a “Publicly Maintainable Highway” in the Kent County Council Highways Gazetteer under the Unique Street Reference Number of 24202170. Signs have been placed alongside the public road stating it is a private road, this makes it impossible to identify where the public highway ends and where the private land starts (and therefore there is no way to know what land the “terms” apply).[/FONT]
[FONT=&quot]18. [/FONT][FONT=&quot]The Claimant was a member of the Approved Operator Scheme of the British Parking Association, the signs and their conduct on the Land does not meet their Code of Practise which goes at length to explain how they should operate on the Land in order to ensure fairness to all parties.[/FONT]
[FONT=&quot]19. [/FONT][FONT=&quot]No contract would have been accepted by any driver as any driver already knew there was a primary contract for the land and that many “terms” on the signs are untrue.[/FONT]
[FONT=&quot]20. [/FONT][FONT=&quot]The signs quiet clearly state that there is "No Unauthorised Parking," the Land hand been demised to the Defendant so the vehicle was being kept on the Land with authority.[/FONT]
[FONT=&quot]21. [/FONT][FONT=&quot]The Claimant has at no time provided an explanation how the damages have been calculated[FONT=&quot] or[/FONT] the conduct that gave rise to it which appear to have been plucked from thin air and do not appear on the signage. This is an attempt at double recovery, which the POFA specifically disallows. In addition, CPR 27.14 does not permit these to be recovered in the Small Claims Court.[/FONT]
[FONT=&quot]22. [/FONT][FONT=&quot]The Claimant’s claim for interest is unwarranted, the Defendant at every stage tried to correspond with them, explaining the situation and requesting further information but they continued to court, which could have been avoided.[/FONT]
[FONT=&quot]23. [/FONT][FONT=&quot]The signs contain no indemnity clause.[/FONT]
[FONT=&quot]24. [/FONT][FONT=&quot]The Claimant’s claim for interest is unwarranted, the Defendant at every stage tried to correspond with them, explaining the situation and requesting further information but they continued to court, which could have been avoided.[/FONT]

JimmyChan

Can anyone with court listing access tell me when / if AM Parking is up in Maidstone next week? I have the week off and might go down to see what the lay of the land is like. Assuming I can just go and sit in the cheap seats and watch?

Umkomaas

JimmyChan wrote: »

Can anyone with court listing access tell me when / if AM Parking is up in Maidstone next week? I have the week off and might go down to see what the lay of the land is like. Assuming I can just go and sit in the cheap seats and watch?

Contact the BMPA to see if they have info for next week. They publish daily lists here:

http://www.bmpa.eu/court.html

HTH

JimmyChan

Cheers, just what I was after.

JimmyChan

I have mentioned a few times (here and in other threads) that DR+ on behalf of AM have used the V888/2 form to access my details (rather than the correct V888/3). Many times I have been told that this is wrong, but no one has pointed to the actual law or DVLA contract / rules which states this so I can put it in front of a judge.

In this comment http://forums.moneysavingexpert.com/showthread.php?t=5576322&page=3#55 it is said:

TNC PARKING have asked for details illigally using V888/2

How can I easily point this out to a judge so they will understand that this and help my DPA claim?

Coupon-mad

Maybe email David Dunford at the DVLA...if you are sure that argument has legs. I'm not sure.

JimmyChan

Thanks, I am fairly comfortable with defending their claim (thanks to the vast amounts of info on this site) but when it comes to the counter claim, due to the smaller number of threads (and court cases) I just want to make sure the judge understands that there could have been no reasonable cause for them to access my data, and the fact that they have used an inappropriate form to access my data shows that either either are incompetent or are malicious.

I have read in a Prankster post where the judge found that the PPC had accessed the data under the assumption that they had a reasonable cause, even though later it had been found that they had issued the charge incorrectly. This according to the judge meant that no DPA breach had occurred.

I want to show the judge that very idea from the start that the very notion that they had reasonable cause is flawed as they used the wrong forms and don't know what they are doing.

DoaM

https://www.gov.uk/request-information-from-dvla

Does that help?

Who is making the request	     Form
An individual	                     Form V888
A company	                     Form V8882
A company that issues parking        Form V8883
or trespass charge notices

JimmyChan

I received their witness statement, reviewing it of course it is more like a new particulars of claim. It now starts claiming I am to be presumed to be the driver. Is it worth writing a letter to the court to point out that a) this appears to be more like a PoC & b) that at no point in their revised PoC do they say this claim is being brought as I was the driver. This seems mightily unfair that they bring this new PoC in at this late stage especially as the judge has already allowed them a second go at filing a PoC? And at this stage we are meant to be narrowing the points down for the hearing, not adding more.


Any thoughts? Or should I just avoid annoying the judge when I have already filed a large amount of documents for my evidence?