IAS APPEAL....feedback appreciated

Southernsoftie_jo

And so it goes on....finally a more personalised reply to the LBC which they sent last summer. (I'm thinking if we're off to court they really are dragging this out)

They reject my argument that no contract was established due to lack of signage. (Interestingly, since this fine was issued they have upgraded their signage)

I have photo evidence of a badly damaged sign which is broken in two, parallel to the road so not placed where a driver could expect to see it, and another when you enter the site which is also broken. The only intact sign is so high up and small that it is illegible.

Are there any industry standards around signage that these damaged signs would not comply with?

That, and the car was not parked there for more than 10 minutes so the (damaged) signs could not have been read. Is it up to me to evidence the car was not there long enough to review signs and accept their terms or for them to prove it was?

Thanks for your help!

beamerguy

Southernsoftie_jo wrote: »

And so it goes on....finally a more personalised reply to the LBC which they sent last summer. (I'm thinking if we're off to court they really are dragging this out)

They reject my argument that no contract was established due to lack of signage. (Interestingly, since this fine was issued they have upgraded their signage)

I have photo evidence of a badly damaged sign which is broken in two, parallel to the road so not placed where a driver could expect to see it, and another when you enter the site which is also broken. The only intact sign is so high up and small that it is illegible.

Are there any industry standards around signage that these damaged signs would not comply with?

That, and the car was not parked there for more than 10 minutes so the (damaged) signs could not have been read. Is it up to me to evidence the car was not there long enough to review signs and accept their terms or for them to prove it was?

Thanks for your help!

They will reject you, this is a scam business

BUT .... you have photos of broken unreadable signs that could never form a contract.
Every sign must be clearly visible and readable be they BPA or IPC members

Maybe Gladstones will continue but they then face a judge to explain broken unreadable signs.

Enjoy, you could be the next one to whoop Gladstones in court

Southernsoftie_jo

Update....claim form received with issue date 12/3/2019.

I have acknowledged online and am researching all relevant posts for my defence.

Background;

- PCN received by post Feb 2017, 3 day's after alleged incident.
- Appeal rejected, further demands and debt collector requests ignored. Charge inflated once debt collector requests start.
- LBC received, replied to as non compliant. My requests for further info ignored, further letters exchanged with repeated demands for payment. Court claim form received.


- I am registered keeper and was not the driver on the day nor passenger.
- I have not informed them I was not driving.
- Car was parked for around 10 mins total duration in a visitors bay on private land. Their terms state a permit must be displayed (amongst other terms relating to how Vehicle is parked) which it was not, so they are holding keeper responsible for breach of the terms stipulated on the signage.
- The private land is approached by crossing over a mini-roundabout. There are no large 'Private' signs, so in continuing along the road one believes they are still on the public highway.
- There was one sign in an elevated position upon entering the area which is not clearly visible and was slightly damaged (a passing driver could not notice sign or review its content) and a further sign perpendicular to the road which was broken in the middle vertically. (I have photos, taken a few days after the event).
- Placement of an intact sign near where the car is parked would indicate that land beyond this point is covered by these restrictions (having not previously seen intact, visible signs and seemingly not strayed off public road)
- Since the event, the signs have been replaced/upgraded. Signs on the site were different, with inconsistent wording. One stated a tax disc must be displayed (��) perhaps that is the breach they are taking me to court over?! (Particulars aren't specific on claim form ��)
- Vehicles in visitor bays (where my vehicle was) are allowed to stay a maximum 24hours with no return - inferring you could visit for 24 hours with no permit.

Particulars of Claim

"The driver of the vehicle with registration XXXXX (the Vehicle) parked in breach of the terms of parking stipulated on the signage at XXXX on XXXX thus incurring the parking charge (the PCN). The driver of the Vehicle agreed to pay the PCN within 28 days of issue yet failed to do so.
The Claimant claims the unpaid PCN from the Defendant as the driver/keeper of the Vehicle. Despite demands being made, the Defendant has failed to settle their outstanding liability. THE CLAIMAINT CLAIMS £100 for the PCN, £60 contractual costs pursuant to the Contract and PCN terms and conditions, together with statutory interest of £25.38 pursuant to s69 of the County Courts Act 1984 at 8% per annum, continuing at £0.04 per day"


Draft defence to follow, comments eagerly awaited.

Southernsoftie_jo

IN THE COUNTY COURT

CLAIM NO: XXXXXXX

BETWEEN:

UK CAR PARK MANAGEMENT LIMITED (Claimant)

-and-

XXXXX (Defendant)

________________________________________
DEFENCE
________________________________________

It is admitted that the Defendant was the registered keeper of the vehicle in question at the time of the alleged incident but the Defendant was not the driver that day.

The Defendant denies liability for the entirety of the claim for the following reasons:

1. On the material date, the Defendant was at xxxxxxx , and was not in the area claimed at the time claimed.

2. In order to transfer liability from the driver to the registered keeper, the Claimant is required to comply with the strict statutory conditions set out in Schedule 4 of the Protection of Freedoms Act 2012 ("POFA"). The Claimant has failed to do so, and cannot, therefore, hold the Defendant liable.

3. The Claimant has provided no proof the defendant was driving and continued to send increasingly inflated formal demands for braking terms for which the defendant did not enter in to.

4. The Particulars of Claim state that the Defendant was the registered keeper or the driver of the vehicle. These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

5. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

6. Further and in the alternative, it is denied that the claimant's signage sets out the contractual terms in a visible manner which would be capable of binding any reasonable person reading them. The terms on the Claimant's signage are displayed in a font which is too small to be read from a passing vehicle, and is in such an elevated position that anyone attempting to read the tiny font would be unable to do so easily.

6.1 The placement of signage is such that, upon entering land covered by the terms of parking, any driver would reasonably believe they are still on the public highway, having merely crossed over a mini-roundabout.

6.2 The two signs present at the entrance of the site (at the time of the alleged event) were badly damaged, one completely illegible as half was missing. Indeed the Vehicle did at no point actually pass a sign indicating the land was private property due to the damaged nature of the signs. It is therefore denied that the Claimant's signage is capable of creating a legally binding contract.

7. The Claimant is put to strict proof that it has sufficient prorpietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

8. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery. This additional charge is not recoverable under The Protection of Freedoms Act 2012 Schedule 4 nor with reference to the judgement in Parking Eye v Beavis.

9. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

I believe the facts contained in this Defence are true.

Name
Signature
Date





I have reviewed other defences and taken points from posts which I believe are relevant to my situation. Comments appreciated.

Questions...

Do I reference the fact I wasn't driving, I'm confused about whether this constitutes a relevant defence or not?

Do I focus on the fact it was not clear that it was private land and that a permit was required, or should I throw in the inconsistent, confusing signage for good measure? Does this weaken my argument that the signs weren't obvious?

Do I focus on point 8 reference the additional charges? I understand the case from Imreallystale was thrown out by the Judge on those grounds very recently.

I have not yet done a SAR, is there any value in still doing one at this stage?

Sincerely appreciate any help given!

KeithP

Southernsoftie_jo wrote: »

Update....claim form received with issue date 12/3/2019.

I have acknowledged online...

With a Claim Issue Date of 12th March, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Monday 15th April 2019 to file your Defence.

That's over four weeks away. Loads of time to produce a perfect Defence, and it is good to see that you are not leaving it to the very last minute.


When you are happy with the content, your Defence should be filed via email as suggested here:

Print your Defence.
1. Sign it and date it.
   
2. Scan the signed document back in and save it as a pdf.
   
3. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
   
4. Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
   
5. Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
   
6. Do not be surprised to receive a copy of the Claimant's Directions Questionnaire, they are just trying to put you under pressure.
   
7. Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.

Yes, send a SAR to the PPC asap. The result may be useful at Witness Statement and evidence time, even if the response is to late to influence your Defence.

Le_Kirk

formal demands for braking terms

Should be: -

formal demands for [STRIKE]braking [/STRIKE]breaking terms

The two signs present at the entrance of the site (at the time of the alleged event)

How do you know this if you weren't driving and were not a passenger? Obviously the driver told you or you have been back since and observed it!

sufficient prorpietary

Should be: -

sufficient proprietary

Southernsoftie_jo

Thanks for comments so far. Can anyone add anything further regards my draft defence?

I have a few weeks but am anxious to get this right and not leave it to the last minute!

Many thanks!

Southernsoftie_jo

I've made a few tweaks, any thoughts? Thank you!

IN THE COUNTY COURT

CLAIM NO: XXXXXXX

BETWEEN:

UK CAR PARK MANAGEMENT LIMITED (Claimant)

-and-

XXXXX (Defendant)

________________________________________
DEFENCE
________________________________________

It is admitted that the Defendant was the registered keeper of the vehicle in question at the time of the alleged incident but the Defendant was not the driver that day.

The Defendant denies liability for the entirety of the claim for the following reasons:

1. On the material date, the Defendant was at xxxxxxx , and was not in the area claimed at the time claimed.

2. In order to transfer liability from the driver to the registered keeper, the Claimant is required to comply with the strict statutory conditions set out in Schedule 4 of the Protection of Freedoms Act 2012 ("POFA"). The Claimant has failed to do so, and cannot, therefore, hold the Defendant liable.

3. The Claimant has provided no proof the defendant was driving and continued to send increasingly inflated formal demands for breaking terms which the defendant did not enter in to.

4. The Particulars of Claim state that the Defendant was the registered keeper OR the driver of the vehicle. These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

5. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

6. Further and in the alternative, it is denied that the claimant's signage sets out the contractual terms in a visible manner which would be capable of binding any reasonable person reading them. The terms on the Claimant's signage are displayed in a font which is too small to be read from a passing vehicle, and is in such an elevated position that anyone attempting to read the tiny font would be unable to do so easily.

6.1 The placement and overall lack of signage is such that, upon entering land covered by the terms of parking, any driver would reasonably believe they are still on the public highway, having merely crossed over a mini-roundabout.

6.2 Upon inspection of the location having received the initial PCN, it was evident that the two signs present at the entrance of the site (which have since been replaced) were badly damaged, one completely illegible as half was missing. Indeed the Vehicle would have at no point actually passed a sign indicating the land was private property - due to the damaged nature of the signs. It is therefore denied that the Claimant's signage is capable of creating a legally binding contract with any driver.

6.3 Furthermore, signage was inconsistent and outdated. Upon inspection of signage following the alleged incident, the terms on one sign (but not others) require all vehicles to display a tax disc, however this has not been required under UK law since 2014.

7. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

8. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery. This additional charge is not recoverable under The Protection of Freedoms Act 2012 Schedule 4 nor with reference to the judgement in Parking Eye v Beavis.

9. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

I believe the facts contained in this Defence are true.

Name
Signature
Date

Southernsoftie_jo

Is anyone able to offer a critique of my defence please, prior to sending it off?

I really want to be the next person to show those Glastards they can't use their bully boy tactics to intimidate people!

Thank you!

Le_Kirk

I would move your point 6.2 to make it the first point about the signage to make sure the judge understands that you visited the site AFTER having received the PCN and not basing your assertion on your knowledge of the signs at the time. Then renumber the other points accordingly. Other than that it seems to have covered all the points as can be seen in the concisely written defences by Bargepole.