Failure to Meet the PoFA guidelines?

rshakesp

Hi as keeper of a vehicle the following happened to me:

1. I received two identical PCNs from PCM for an alleged incident in a Shell forecourt in St Albans.
2. The allegation is that: this vehicle was parked in a manner whereby the driver agreed to pay a charge "Parking in a parking area reserved for patrons whilst on the premises only"
3. the letter references PoFA Schedule 4 as the basis for my obligation.
4. each letter contains two photographs of an empty car.

So I think I have a cast iron case on the following multiple grounds:
1. I should only have received 1 letter
2. I have bank statement evidence in a joint account of myself or my wife being a patron at the time.
3. The letter does NOT indicate the period the car was parked (there is a time stamp on the photo) - which is a requirement under clause 9 of PoFA Schedule 4
4. I have appealed to one of the letters (rejected of course) without identifying a driver because I am not sure who it was PCN, in their rejection letter, confirmed to me they have no evidence indicating who the driver was.

So I am going to appeal to the second letter using the appropriate IPC template -

My question here however is can I be even more straightforward, point out point 3 above and identify that the demand is therefore completely invalid?

Coupon-mad

My question here however is can I be even more straightforward, point out point 3 above and identify that the demand is therefore completely invalid?

Nope that will get nowhere with PCM, look:

http://www.bbc.co.uk/programmes/p02sh3sr

It doesn't invalidate the stupid 'ticket' at all, sadly, it is a minor point. You will end up like all other PCM victims here, defending a Gladstones small claim later this year. We've not seen a defence from here lose yet and there are dozens of threads about that.

By all means send an adapted version of the IPC appeal but PCM will reject, then DO NOT DO NOT DO NOT try IAS, for reasons explained in post #3 of the NEWBIES thread.

rshakesp

Thanks - I've read the posts (was prompted to do so when I started an IAS and took the time to read their terms and conditions before submitting - what a stich up!

rshakesp

As predicted a Claim form has been sent to the keeper for both tickets (which are identical in every way except or the PCN Number)
here is my draft defence:

1. I am the Defendant, ???? , DOB xx/xx/xxxx, and reside at ?????? I am the registered keeper of the vehicle. The Driver at the time in question is not known and the claimant were unable to identify the driver on request.

2. Save as specifically admitted in this defence the Defendant denies each and every allegation set out in the Particulars of Claim, or implied in Pre-action correspondence.

Preliminary matters:

3. The claimant failed to include a copy of their written contract nor any detail or reason for - nor clear particulars pertaining to - this claim (Practice Directions 16 7.3(1) and 7C 1.4(3A) refer).

4. The Particulars of Claim (PoC) do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how any terms were breached. Indeed the PoC are not clear and concise as is required by CPR 16.4 1(a) and CPR 1.4. It just states “breaching the terms of parking on the land” which does not give any indication of on what basis the claim is brought, for example whether this charge is founded upon an allegation of trespass or 'breach of contract', so I have had to cover all eventualities and this has denied me a fair chance to defend this in an informed way.

5. The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no diligence, no scrutiny of details nor even checking for a true cause of action. HMCS have identified over 1000 similar sparse claims. I believe the term for such conduct is ‘roboclaims’ which is against the public interest, unfair on unrepresented consumers and 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. On the basis of the above, I request the court strike out the claim.

6. This claim relates to two Parking Charge Notices - these notices are identical in every respect excepting the claimants reference number - despite written appeals against this duplication the claimant has refused to revoke either notice and offered no explanation of reason for the duplicate claim.

In further support of there being a want of cause of action:

7. The PCN was issued on a poorly signed Shell garage forecourt three signs are on display in amongst significant advertising hoardings which render the small parking signs insignificant. I refer to the IPC Code of Practice (CoP) Part E, highlighting that adequate and clear entrance signs are required.

8. There were no entrance signs at all to show that drivers were entering an area of 'parking enforcement' or 'private land'. The forecourt was not marked as a no-stopping zone.

9. The PCN was issued on the basis that the driver agreed to pay a charge for 'parking in a parking area reserved for patrons whilst on the premises only'. The driver has never been identified and two people are insured to drive the vehicle, regularly use the garage and could not recall who had been using the vehicle at the time in question. I have provided evidence that whoever the driver was was a patron of the Shell garage on the date of the claim. The sole evidence provided by the claimant are two photographs of an empty vehicle at one moment in time, clearly the vehicle has to be empty or a period of time in oder for fuel to be paid for,

10. The Supreme Court Judges in the Beavis case held that a CoP is effectively 'regulation' for the private parking industry, full compliance with which is both expected and binding upon any parking operator.

11. Any ‘charge’ or terms on signage on the day was not seen but even if the court believes signs were displayed, the terms were in such small print as to be illegible, contrary to the Consumer Rights Act 2015.

12. I submit that the IAS decision should be disregarded; it is ostensibly described as an appeal service, yet the Assessors' names remain secret. No figures or reports are published by the IAS but the publication 'Parking Review' reported that only 20% of appeals were upheld (compared to POPLA where 50% have consistently been upheld since its inception in 2012). There is no scrutiny board, unlike POPLA. The IAS decisions in the public domain blatantly disregard recognised standards of law or justice.

13. The IAS is a trading name of the IPC, whose Directors are Will Hurley and John Davies. These Directors, having overseen my IAS appeal being unfairly refused, have now filed this claim because they are also the directors of Gladstones solicitors. It is submitted that this chain of events is founded upon a conflict of interest and operates in breach of the CPUTRs and is contrary to good faith.

14. The Claimant may try to rely upon ParkingEye Ltd v Beavis [2015] UKSC 67, ('the Beavis case') yet such an assertion is not supported by any similarity in the location, circumstances nor signage. Absent any offer or agreement on a charge, the Beavis case does not assist the claimant and in fact, supports this defence. Further, there is no ‘legitimate interest’ served by ticketing of a car in the event of a patron leaving the premises, with no attempt to mitigate loss or draw terms to the attention of drivers, or allow any period of grace to obtain any permit or even read the signs.

15. Even if the court is minded to accept that a sign was visible, the wording on the sign was prohibitive. Unlike in the Beavis case, the Claimant offered no licence to park if ‘unauthorised’. A purported licence to stop without a permit, in exchange for payment of a ‘charge’ on the one hand, cannot be offered when that same conduct is, on the other hand, expressly prohibited in the signage wording. This does not create any possible contract.

16. It is submitted that (apart from properly incurred court fees) any added solicitors fees are simply numbers made up out of thin air, and are an attempt at double recovery by the Claimant, which would not be recoverable in any event.

17. It is submitted that the Claimant is merely an agent acting ‘on behalf of’ the landowner who would be the only proper claimant. Strict proof is required of a chain of contracts leading from the landowner to this Claimant, to allow them the right to form contracts and to sue in their name.

18. Even if this is produced, it is submitted that there is no contract offered to drivers not displaying a permit, so alleged 'unauthorised' parking (denied) can only be an event falling under the tort of trespass.

19. As was confirmed in the Beavis case, ParkingEye could not have claimed any sum at all for trespass, whereby only a party in possession of title in the land could claim nominal damages suffered (and there were none in this material case).

20. The Claimant did not comply with the Part B, section 15 of the CoP regarding 'grace periods'. The photographic evidence submitted by PCM are date and time stamped. It shows the vehicle at 12:46pm and no other time.

21. I refer to case Vehicle Services Ltd vs Ibbotson (2012) in which it was agreed that a private parking firm was responsible for mitigating any loss. The forecourt attendant who has access to a loudspeaker would have been able to warn the driver of a contravention if such an event was taking place.

22. It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, I am keeping a note of my wasted time/costs in dealing with this matter.

23. The court is invited to strike out the claim, due to no cause of action nor prospects of success.

24. The facts and information in this defence are true and the Defendant is not liable for the sum claimed, nor any sum at all.

Le_Kirk

Defence should be written in third person, i.e. not "I" but the "defendant"

The_Deep

This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of alleged contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors.

Parking Eye, CPM, Smart, and others have already been named and shamed in the House of Commons as have Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each week, hospital car parks and residential complex tickets have been especially mentioned. They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

The problem has become so widespread that MPs have agreed to enact a Bill to regulate these scammers. Watch the video of the Second Reading in the House of Commons recently

http://parliamentlive.tv/event/index/2f0384f2-eba5-4fff-ab07-cf24b6a22918?in=12:49:41

and complain in the most robust terms to your MP. With a fair wind they will be out of business by Christmas.

rshakesp

thanks will correct

Coupon-mad

1. I am the Defendant, ???? , DOB xx/xx/xxxx, and reside at ??????

Not needed in a defence - see the examples by bargepole in the NEWBIES thread.

I am the registered keeper of the vehicle. The Driver at the time in question is not known

Not true, so don't say that!

I have bank statement evidence in a joint account of myself or my wife being a patron at the time.

You need to defend as driver, no point hiding from this, as PCM use the POFA.

IMHO you should be saying the signage did not make an offer, etc., and responding to everything said in the particulars of claim, like here:

https://forums.moneysavingexpert.com/discussion/comment/74996213#Comment_74996213

I submit that

Nope, no first person in a defence. ''the Defendant''. Not I or me,

Quentin

The_Deep wrote: »

…... With a fair wind they will be out of business by Christmas.

Somewhat optimistic!!


OP - keep following the advice on defending this you have been given!


This won't be ended by the Govt in time for Christmas!!

rshakesp

Second Draft. into third person and some assertions added at the end of some key points

1. The Defendant is, ???? , DOB xx/xx/xxxx, and resides at ?????? The Defendant is the registered keeper of the vehicle. The Driver at the time in question is not known and the claimant were unable to identify the driver on request.

2. Save as specifically admitted in this defence the Defendant denies each and every allegation set out in the Particulars of Claim, or implied in Pre-action correspondence.

Preliminary matters:

3. The claimant failed to include a copy of their written contract nor any detail or reason for - nor clear particulars pertaining to - this claim (Practice Directions 16 7.3(1) and 7C 1.4(3A) refer).

4. The Particulars of Claim (PoC) do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how any terms were breached. Indeed the PoC are not clear and concise as is required by CPR 16.4 1(a) and CPR 1.4. It just states “breaching the terms of parking on the land” which does not give any indication of on what basis the claim is brought, for example whether this charge is founded upon an allegation of trespass or 'breach of contract', the Defendant has had to cover all eventualities and this been denied a fair chance to defend this claim in an informed way.

5. The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no diligence, no scrutiny of details nor even checking for a true cause of action. HMCS have identified over 1000 similar sparse claims. The Defendant believes that the term for such conduct is ‘roboclaims’ which is against the public interest, unfair on unrepresented consumers and 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. On the basis of the above the Defendant request the court strike out the claim.

6. This claim relates to two Parking Charge Notices - these notices are identical in every respect excepting the claimants reference number - despite written appeals against this duplication the claimant has refused to revoke either notice and offered no explanation of reason for the duplicate claim. The Defendant therefore submits that 50% of this claim is spurious on the basis of duplication and should be dismissed.

In further support of there being a want of cause of action:

7. The PCN was issued on a poorly signed Shell garage forecourt three signs are on display in amongst significant advertising hoardings which render the small parking signs insignificant. The Defendant refers to the IPC Code of Practice (CoP) Part E, highlighting that adequate and clear entrance signs are required.

8. There were no entrance signs at all to show that drivers were entering an area of 'parking enforcement' or 'private land'. The forecourt was not marked as a no-stopping zone.

9. The PCN was issued on the basis that the driver agreed to pay a charge for 'parking in a parking area reserved for patrons whilst on the premises only'. The driver has never been identified and two people are insured to drive the vehicle, regularly use the garage and could not recall who had been using the vehicle at the time in question. The Defendant has provided evidence that whoever the driver was was a patron of the Shell garage on the date of the claim. The sole evidence provided by the claimant are two photographs of an empty vehicle at one moment in time, clearly the vehicle has to be empty for a period of time in order for fuel to be paid for. The Defendant therefore submits that the driver was not in contravention of the terms of the sign and without proof to the contrary from the claimant that the court should strike out the claim.

10. The Supreme Court Judges in the Beavis case held that a CoP is effectively 'regulation' for the private parking industry, full compliance with which is both expected and binding upon any parking operator.

11. Any ‘charge’ or terms on signage on the day was not seen but even if the court believes signs were displayed, the terms were in such small print as to be illegible, contrary to the Consumer Rights Act 2015.

12. The Defendant submit that the option to use the IAS should be disregarded; it is ostensibly described as an appeal service, yet the Assessors' names remain secret. No figures or reports are published by the IAS but the publication 'Parking Review' reported that only 20% of appeals were upheld (compared to POPLA where 50% have consistently been upheld since its inception in 2012). There is no scrutiny board, unlike POPLA. The IAS decisions in the public domain blatantly disregard recognised standards of law or justice.

13. The IAS is a trading name of the IPC, whose Directors are Will Hurley and John Davies. These Directors, having overseen my IAS appeal being unfairly refused, have now filed this claim because they are also the directors of Gladstones solicitors. It is submitted that this chain of events is founded upon a conflict of interest and operates in breach of the CPUTRs and is contrary to good faith.

14. The Claimant may try to rely upon ParkingEye Ltd v Beavis [2015] UKSC 67, ('the Beavis case') yet such an assertion is not supported by any similarity in the location, circumstances nor signage. Absent any offer or agreement on a charge, the Beavis case does not assist the claimant and in fact, supports this defence. Further, there is no ‘legitimate interest’ served by ticketing of a car in the event of a patron leaving the premises, with no attempt to mitigate loss or draw terms to the attention of drivers, or allow any period of grace to obtain any permit or even read the signs.

15. Even if the court is minded to accept that a sign was visible, the wording on the sign was prohibitive. Unlike in the Beavis case, the Claimant offered no licence to park if ‘unauthorised’. A purported licence to stop without a permit, in exchange for payment of a ‘charge’ on the one hand, cannot be offered when that same conduct is, on the other hand, expressly prohibited in the signage wording. This does not create any possible contract.

16. It is submitted that (apart from properly incurred court fees) any added solicitors fees are simply numbers made up out of thin air, and are an attempt at double recovery by the Claimant, which would not be recoverable in any event.

17. It is submitted that the Claimant is merely an agent acting ‘on behalf of’ the landowner who would be the only proper claimant. Strict proof is required of a chain of contracts leading from the landowner to this Claimant, to allow them the right to form contracts and to sue in their name.

18. Even if this is produced, it is submitted that there is no contract offered to drivers not displaying a permit, so alleged 'unauthorised' parking (denied) can only be an event falling under the tort of trespass.

19. As was confirmed in the Beavis case, ParkingEye could not have claimed any sum at all for trespass, whereby only a party in possession of title in the land could claim nominal damages suffered (and there were none in this material case).

20. The Claimant did not comply with the Part B, section 15 of the CoP regarding 'grace periods'. The photographic evidence submitted by PCM are date and time stamped. It shows the vehicle at 12:46pm and no other time.

21. The Defendant refers to case Vehicle Services Ltd vs Ibbotson (2012) in which it was agreed that a private parking firm was responsible for mitigating any loss. The forecourt attendant who has access to a loudspeaker would have been able to warn the driver of a contravention if such an event was taking place.

22. It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, the Defendant is keeping a note of my wasted time/costs in dealing with this matter.

23. The court is invited to strike out the claim, due to no cause of action nor prospects of success.

24. The facts and information in this defence are true and the Defendant is not liable for the sum claimed, nor any sum at all.

Coupon-mad

1. I am the Defendant, ???? , DOB xx/xx/xxxx, and reside at ??????

Not needed in a defence - see the examples by bargepole in the NEWBIES thread.

Already said, no to the above. Cut out some of the waffle by reading a bargepole defence, linked in the NEWBIES thread.