Not advising Change of Registered Keeper to PCM

edinh05

Dear all,
Some quick context:
I received a PCN from PCM in January 2016 which I contested and appealed through the IPC process. The appeal was unsuccessful and a debt recovery letter from DRP followed, which was ignored. In April 2016 we moved house, the change of address relayed to the DVLA and an updated V5 sent out. At no stage did I inform PCM of the change of address of the registered keeper.

Some post forwarded to our new address included a further debt recovery letter from Zenith dated June 2016 and nothing further was heard on the matter. Fast forward to March 2017 and I've just been made aware of a letter sent to the old address from Gladstones stating that they have recently obtained a CCJ on behalf of PCM and that I will have "no doubt received a copy of the Judgement of the Court."

I have received no correspondence directly to my new address relating to any Court proceedings and do not know what might have been sent to the previous address.

Can anyone provide a steer as to where do I stand on this?

Many thanks in advance.

Coupon-mad

edinh05 wrote: »

Dear all,
Some quick context:
I received a PCN from PCM in January 2016 which I contested and appealed through the IPC process. The appeal was unsuccessful and a debt recovery letter from DRP followed, which was ignored. In April 2016 we moved house, the change of address relayed to the DVLA and an updated V5 sent out. At no stage did I inform PCM of the change of address of the registered keeper.

Some post forwarded to our new address included a further debt recovery letter from Zenith dated June 2016 and nothing further was heard on the matter. Fast forward to March 2017 and I've just been made aware of a letter sent to the old address from Gladstones stating that they have recently obtained a CCJ on behalf of PCM and that I will have "no doubt received a copy of the Judgement of the Court."

I have received no correspondence directly to my new address relating to any Court proceedings and do not know what might have been sent to the previous address.

Can anyone provide a steer as to where do I stand on this?

Search this board for 'set aside' and follow that process. Loads of threads setting aside CCJs here.

edinh05

Will do many thanks

Coupon-mad

Threads galore like this:

https://forums.moneysavingexpert.com/discussion/5612773

But there are loads more, including one found when you search for 'Ash' or 'saggi' who both recently got set asides.

HTH

Umkomaas

The PPC will continue to only correspond with the original address provided to them by the DVLA, you updating the DVLA about a subsequent change of address does not update the PPC. They would only correspond with the new address if you inform the PPC and/or the debt collectors in writing. This is where things have gone wrong here.

Get on with applying for a set aside. You might find the following helpful:

http://www.aboutsmallclaims.co.uk/

http://www.aboutsmallclaims.co.uk/set-aside-default-court-judgment.html

edinh05

Many thanks for the pointers so far. I've prepared a statement to attach to the N244 and will send off shortly.
To be clear, was I under any obligation to inform PCM that I had moved? At the time of our move I'd had nothing more than the usual round of DRP letters.

Coupon-mad

NO - but it was in yours interests not to miss court papers, so it is best not to let letters go to an old address you won;t get post from in time.

This is a problem the Government has been alerted to act to stop:

http://parking-prankster.blogspot.co.uk/2016/12/government-announce-ccj-review-due-to.html

Keep us updated as you will need to read threads about defending this so you know what to say at the set aside hearing and to claim your costs back (have you read the threads you find when you search the forum for 'Ash' and 'saggi'? The latter even got her £255 ordered refunded, the CCJ wiped and the claim struck out immediately).

edinh05

I've looked at both the Saggi and Ash threads which I've used to build my N244 statement. Shall I post a sanitised version on this thread to test its strength, or perhaps via PM?

Many thanks once again for the help.

Coupon-mad

Post it here, that is fine.

edinh05

Please see below. I think there might be a degree of repetition in points 2.4 - 2.8.

I am XXXX XXXX and I am the Defendant in this matter. This my supporting Statement in support of my application dated XX March 2017 to:
1. Set aside the Default Judgement dated XX December 2016 as it was not properly served at my current address and order for the Claimant to pay the Defendant £255 as reimbursement for the set aside fee;
2. Order for the original claim to be heard at a re-hearing.

1. Default Judgement

1.1. I understand that the Claimant obtained a Default Judgement against me as the Defendant in January 2017. I am aware that the Claimant is Parking Control Management (UK) Ltd, represented by Gladstones Solicitors and that the claim is in respect of an unpaid Penalty Charge Notice from the X January 2016 at 5 Heath Parade, Grahame Park Way, London NW9 5ZN. I further contest this charge for the reasons outlined in Part 2 of this defence.
1.2. The claim form was not served at my current address and I thus was not aware of the Default Judgement until 18th March 2017. I understand that this Claim was served at, XXXX. However, I moved to a new address at, XXXX on the 17th April 2016. In support of this I can provide a scanned copy of the vehicle’s V5C log book which shows the details of the registered keeper, a solicitor’s completion statement showing the date of completion and confirmation fromXXX Borough Council showing my updated details for the purposes of paying Council tax. Both are attached at Annex X.
1.3. I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they held the Defendant’s correct contact details at the time of the claim. They have used information that was at the time nine months out of date.
1.4. According to publicly available information my circumstances are far from being unique. The Claimant’s persistent failure to use correct and current addresses results is an unnecessary burden for individuals and the justice system across the country.
1.5. On the basis provided above I would suggest that the Claimant did not fulfil their duty to use the Defendant’s current address when bringing the claim.
1.6. Considering the above I was unable to defend this claim. I thus believe that the Default Judgement against me was issued incorrectly and thus should be set aside and I ask the Court to kindly consider the reimbursement of the fee of £255 from the claimant should this request be successful.

2. Order for the original claim to be heard at a re-hearing
I am aware that the claim is for an unpaid Penalty Charge Notice (PCN). I contend that I am not liable for the parking charge and the grounds for this are laid out below in in further detail, and in summary are:
• Unclear, ambiguous, inadequate and lack of International Parking Community (IPC) compliant signage
• No contractual agreement with the driver
2.1. I was, at the relevant date, the registered keeper of the vehicle in question registration number XXXXXXX. Below is a summary of my version of the events:
2.1.1. We needed to stop, so I pulled into the layby. Having seen some signs on the wall when I pulled in I then got out of the car to try and understand what the signs said and if they were related to parking and if I could park there.
2.1.2. The Loading Bay road marking signs were not visible approaching from the west along Grahame Park Way. It was raining and as Image 1 in Annex X shows they are not clearly visible from that angle.
2.1.3. Once I had pulled into the layby area I saw there were signs roughly 7.5ft up on the wall; Images 1 and 3 in Annex X show these. I estimate that the block of wording in the sign that states the contractual terms which we are agreeing to by parking were less than 5cm high at the most and illegible from the car. I therefore got out of the car attempt to read the sign properly and have a look around to see if there was any further signage.
2.1.4. In the process of stopping to read the sign, an overzealous operator took a picture of my car in the loading bay and issued the PCN. I then refrained from parking there by driving off.
2.1.5. I subsequently received a Notice to Keeper from the Claimant, alleging that a charge of £100 was due to them. I did send an appeal to the Claimant and a further appeal to the Independent Appeals Service (IAS), the allegedly independent body appointed by the Claimant’s trade body, the Independent Parking Committee - now International Parking Community (IPC). Both appeals were rejected. The appeal rejection was dated 17th February 2016 and no further direct communication from the Claimant has been received since late February 2016.
2.2. The signage located at the site formed no contract with the driver, switched between ‘contractual fee’ and ‘unauthorised parking’ and does not meet the IPC Code of Practice (CoP) guideline requirements. Firstly terms are only imported into a contract if they are clear and prominent that the party ‘must’ have known about it and agreed. The signage present at the location of the alleged contravention does not identify the claimant as a creditor for any charges that arise out of the contract or damages following a breach of the contract. Therefore, this cannot form a contract between the driver and landowner or PCM.
2.3. Consequently, should a contract be found to exist between the landowner and the driver, the claimant, not having been identified as a creditor are unable to pursue this claim as stated on page 10 [Part B: 1(2.1)] and page 27 [Other Signs: (1)] of the IPC CoP. To date, no authority has been provided that establishes that the Claimant are authorised to pursue this claim on behalf of the landowner, which also does not comply POFA, 2012. The Claimant have only stated in their correspondence that “This land is private land and is managed and operated by Parking Control Management” (ref: attachment Appeal Rejection in Annex X).
2.4. Upon entering the location where the contravention took place, due to the rain, no “Loading Bay” road markings signs were visible and the signs placed on the wall did not make it immediately clear they were for or what the specific parking conditions were.
2.5. Due to the high positioning along with the overall minute size of text used, the signage is barely legible making it difficult to read and understand. On page 26 of IPC CoP it clearly states that “The signs must be readable from far enough away so that drivers can read all the of the Group A and Group B text without needing to look more than 10 degrees away from the road ahead” and on page 27 “The signs must be at a suitable height – is suggest that no part of the sign which contains relevant text should be over 6’’, or under 12’’, from the ground level. Such text must be of a size which is easily legible having regard to the location and in any event should not be less than 5mm in height” (see attached Signage copies).
2.6. However, the signage at the location was placed at 7.5 ft, making it very difficult to read. The body of text which states the contractual obligations was less than 5cm in height, which at four lines of text means the character size was less than 5mm. I contend that the signs and any core parking terms the Claimant are relying upon being too small for any driver to see, read and understand whilst driving or stationary, as the text containing the information is not easily legible as it is WRITTEN ALL IN CAPITAL LETTERS.
2.7. In addition the terms are misleading with wording that dresses up the charge as a ‘contractual’ fee, which it is not. The fact that the sign states “Retrospective evidence of authority to park will not be accepted”, confirming that the sign is setting out that one group of drivers are ‘authorised’ to park and the other group are not(those who are not “actively loading and unloading whilst delivering to the commercial tenants of Heath Parade”). Therefore, there is no consideration/acceptance flowing from the Claimant to the second group of drivers to form a contract. If a firm wanted to make an ‘offer to park’ by way of consideration to the second group they should word their signs along the lines of parking is allowed/authorised for everyone (not loading or unloading) at a daily tariff rate of £100. One cannot contract to be allowed to do something the sign states as not ‘allowed/unauthorised’.
2.8. The Claimant’s signage with the largest font at this site states “No Customer Parking At Any Time”. A further sign with much smaller writing and higher up states “The loading bay is only for authorised vehicles actively loading & unloading when delivering to the commercial tenants of Heath parade”. It is submitted that if these notices are attempting to make a contractual offer, then as they are forbidding they do not fulfil the basic requirement of a contract, which is that each party to the contract must offer valuable consideration to the other party, on clear terms capable of acceptance. In this case neither the Claimant, nor their principal the landowner, is offering anything to motorists. The notices cannot, therefore, reasonably be construed as having created a contractual relationship between the Claimant and the Defendant.
The above point was recently tested in the County Court at High Wycombe, in the case of Parking Control Management (UK) Ltd v Bull & 2 Others (B4GF26K6, 21 April 2016), where District Judge Glen dismissed all three claims, stating in his judgment that:
“If the notice had said no more than if you park on this roadway you agree to pay a charge then it would have been implicit that PCM was saying we will allow you to park on this roadway if you pay £100 and I would agree with Mr Samuels’ first analysis that essentially the £100 was a part of the core consideration for the licence and was not a penalty for breach. The difficulty is that this notice does not say that at all. This notice is an absolute prohibition against parking at any time, for any period, on the roadway. It is impossible to construct out of this in any way, either actually or contingently or conditionally, any permission for anyone to park on the roadway. All this is essentially saying is you must not trespass on the roadway. If you do we are giving ourselves, and we are dressing it up in the form of a contract, the right to charge you a sum of money which really would be damages for trespass, assuming of course that the claimant had any interest in the land in order to proceed in trespass.”
While this is a County Court decision and therefore not binding, it is on all fours with the present case and may be considered as persuasive.
2.9. In addition, the Consumer Rights Act 2015 rules that if signage has multiple interpretations the interpretation most favourable to the consumer applies. It is clear from this the signage with the largest font should apply.
2.10. In the alternative, if it was held that the signage was contractually valid, it would be impossible for a motorist to have read the terms and conditions contained therein from a moving or stopped vehicle, and if the vehicle is stopped, the ‘contravention’ according to the Claimant is already committed.
2.11. The above point was recently tested in several cases regarding Hayes and Harlington station. There a similar situation arises as the vehicles were charged for briefly stopping but the signs are far away from vehicles and high up. In all cases it was ruled that no contract was entered by performance as the signage could not be read from a vehicle. No transcripts are available but as PCM UK were the claimant in all cases they will be fully aware of the cases; C3GF46K8, C3GF44K8, C3GFY8K8.
2.12. The IPC code of conduct states that a grace period must be allowed in order that a driver might spot signage, go up to it, read it and then decide whether to accept the terms or not. A reasonable grace period in any car park would be from 5-15 minutes from the period of stopping. This grace period was not observed and therefore the operator is in breach of the industry code of practice. Additionally no contract can be in place by conduct until a reasonable period elapses. The Claimant’s own notes (ref: IAS Appeal Rejection Letter in Annex X) state that my vehicle was present in the loading bay from 11.31.45 to 11.33.08 which is a total of 83 seconds. I have a video recording lasting 28 seconds on my phone of a remonstrative conversation I had with the operator during those 83 seconds which means I had just 55 seconds in which to read the terms and conditions of a contract on a sign that was physically placed in such a way that it was very difficult to do so. I contest that I was clearly given no opportunity to study and agree terms and have an honestly held belief that this company engages in the predatory practice of having signs at a height that cannot be read, with a density of text that is difficult for the average driver to see, and then give little or no notice before issuing a parking charge. I further believe that there was not only any intent to create legal relations, but indeed no legal relations were entered into.
2.13. Thus the signage is simply a device to entrap motorists into a situation whereby the Claimant sends them invoices for unwarranted and unjustified charges, for which motorists can have no contractual liability due to the terms and conditions not having been sufficiently brought to their attention.
2.14. The Court is invited to dismiss this Claim, and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14.

Lamilad

Woah! Wall of text... Break up your points with line spaces.