Heath Parade NW9 again. NTK received. Ignore or appeal?

keekstuff

One crucial defence point I'm trying to put together is to challenge whether PCM had power to enter a contract in the first place, through authorisation from the land owner. Based on Sainsbury's address next to the lay by, I dug up a copy of the land registry (NGL931573) and it matches with zaklondon's post

hxxps://forums.moneysavingexpert.com/showthread.php?t=5578291&highlight=heath+parade&page=3#57



Although I have paid for a copy of the land registry through HM land registry site, it appears to not be admissible in court and refers to maps not available in the download.

I am 3 links deep into https://www.gov.uk/get-information-about-property-and-land site to figure out how to request official copies, but I'm drowning in tabs. Is there a guide?

KeithP

keekstuff wrote: »

Although I have paid for a copy of the land registry through HM land registry site, it appears to not be admissible in court and refers to maps not available in the download.

I am 3 links deep into https://www.gov.uk/get-information-about-property-and-land site to figure out how to request official copies, but I'm drowning in tabs. Is there a guide?

Despite what it says, that Land Registry stuff is good enough for your purpose.

keekstuff

If I understood the newbies thread properly, I am supposed to start a new thread to discuss my defence (Small Claim - start a new thread). Post #1 will be background info and I'll post my defence in Post #2.

Background:
- Post about original NTK
hxxps://forums.moneysavingexpert.com/showthread.php?t=5664076
- Claim Issue Date of 10th August. AoS submitted. Have until Wednesday 12th September to file Defence.
- Driver stopped at notorious Heath Parade (now taken over by the council)
- The predatory 'Ms sunglasses' did not offer any help, just took photos.
- Went into Sainsbury's to ask where to Park
- Left after 2m 45seconds.
- I am writing defence on behalf of driver and will be a 'lay representative' if it goes to court.


Main defence points will be on

1. The signage does not offer a contract with the motorist
2. Insufficient Grace Period and Predatory Tactics
3. The Claimant has no standing to bring a case

Wondering whether i should include the usual distance contract defence.

Coupon-mad

The predatory 'Ms sunglasses' did not offer any help, just took photos.

LOL, she wasn't there to help, was she?!

Wondering whether i should include the usual distance contract defence.

I wouldn't.

keekstuff

In the County Court

CLAIM No: CXXXXXX

BETWEEN:

Parking Control Management (UK) (Claimant)

-and-

XXXX (Defendant)


________________________________________
DEFENCE STATEMENT
________________________________________

I assert that I am not liable to the Claimant for the sum claimed or any amount at all, for the following reasons:

1. The signage does not offer a contract with the motorist
2. Insufficient Grace Period and Predatory Tactics
3. The Claimant has no standing to bring a case


1. The signage does not offer a contract with the motorist

1.1 The claim is for breach of contract. However, it is denied any contract existed.

1.2 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.

1.3 The above point was recently tested in the following court hearings:
(i) 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. A full transcript of the Approved Judgment for the above case will be provided, in the event that this case proceeds to a hearing. #Note I have access to a copy through parking prankster

(ii) County Court Clerkenwell & Shoreditch in the case of Parking Control Management (UK) v Ms C. (C1GF92FF, 31 May 2017)

- The grace period was, according to the claimant's evidence, 3 minutes, which is not enough time to pull up, get out of the car, read the terms and leave.

- Forbidding language on the signs - the largest sign saying NO CUSTOMER PARKING AT ANY TIME. This is echoed in the Claimant's sign.

#Note I only have a reference to this case through parking prankster, no details of a full case, so may be risky. I cannot tell if a transcript or even a recording for transcription exists (e.g. through [url]hxxps://www.gov.uk/apply-transcript-court-tribunal-hearing[/url], without applying),

1.4 In addition, the Consumer Rights Act 2015 rules that if signage has multiple interpretation the interpretation most favourable to the consumer applies. It is clear from this the signage with the largest font should apply.

1.5 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.

1.6 The above point was recently tested in several cases regarding Hayes and Harlington station, where a comparable situation arose as the vehicles were charged for briefly stopping but the signs were at an elevated position in a distance too far to read from the vehicle.

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 Parking Control Management (UK) were the Claimant in all cases they will be fully aware of the cases; C3GF46K8, C3GF44K8, C3GFY8K8.

2. Insufficient Grace Period and predatory tactics

2.1. It is understood that, based on logos on the signage, letters and statement on their website, that PCM (UK) is an approved operator with the Independent Parking Committee, IPC and thus a member of the scheme.

2.2. The following quotes the IPC’s website:

“The IPC’s Accredited Operator Scheme provides advice and support to its members. It is a scheme run for the private parking sector and members are able to gain conditional access to the DVLA Database of registered vehicle keepers under the terms of the IPC’s Accredited Trade Association (ATA) status thereby enabling them to enforce the parking charges that they impose.

All members of the scheme are required to comply with the IPC Code of Practice which contains the need for every site, sign and many documents to be audited by the IPC.”

2.3. Clause 15.1 of the Independent Parking Committee (IPC) code of Practice states that

“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.”


2.4. Furthermore, clause 14.1 of the Independent Parking Committee (IPC) code of conduct states that

“You must not use predatory or misleading tactics to lure drivers into incurring parking charges. Such instances will be viewed as a serious instance of non-compliance and will be dealt with under the sanctions system as defined in schedule 2 to the Code.”

2.5. A reasonable grace period would be from 5-15 minutes from the period of stopping, in order to get out of the car, interpret the hard to read signs, make enquiries (#Went into Sainsbury’s to ask where to park) if necessary, before making an informed decision as to whether or not to park on the premises. Evidence provided by the Claimant shows time stamps between 13:55:30 – 13:58:15, and as requested by the defendant, based on the complete set of photographs taken (#First Appeal asked for ALL photographs to be provided, thus, considered all time stamps provided), the car stopped for 2 minutes and 45 seconds. This is well below a reasonable grace period. Thus, operator is in breach of clause 15.1 of the industry code of practice.

2.6. The unmarked photographer and signage made no attempt to mitigate loss. Thus, the actions of the claimant and their signage are simply a device to entrap motorists into a situation whereby the Claimant sends invoices for unwarranted and unjustified charges, for which motorists or keeper can have no contractual liability due to the terms and conditions not having been sufficiently brought to their attention. This activity is bordering on, if not actually crossing the boundary of, a criminal offence of Fraud By False Representation and is in clear breach of clause 14.1 of the industry code of practice.

2.7. Based on points 2.5 and 2.6 above, Claimant has breached 2 points of the industry code of practice, thereby making the DVLA search and subsequent invoicing unjustified.


3. The Claimant has no standing to bring a case

3.1 Clause 1.1 of the IPC Code of Practice

“If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the ‘Creditor’ within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges. There is no prescribed form for such agreement and it need not necessarily be as part of a contract but it must include the express ability for an operator to recover parking charges on the landowner’s behalf or provide sufficient right to occupy the land in question so that charges can be recovered by the operator directly. This applies whether or not you intend to use the keeper liability provisions.”

3.2 Thus, in order to issue parking charges, and to pursue unpaid charges via litigation, the Claimant is required to have the written authority of the landowner, on whose behalf they are acting as an agent.

3.3 It is believed the signage contains further clauses which show that the Claimant is acting as an agent of the landowner, not the principal, which are identical or similar to the following; ‘The site is PRIVATE LAND and is managed and operated by PCM (UK) Ltd’

3.4 No evidence of such authority was supplied by the Claimant at any time, and the Claimant is put to strict proof of same, in the form of an unredacted and contemporaneous contract, or chain of authority, from the landowner to the Claimant.

#NOTE: In the correspondence, PCM have not stated that they operate on behalf of Genesis Housing Association, who are not the landowners of the layby at the time. So, although I have the land registry information, I cannot, based on info I have, demonstrate that they were unable to issue tickets, unless I reference other cases – I asked AmoUK for their court case details.


I believe the facts contained in this Defence Statement are true.



(Signature, Date)

Le_Kirk

Here is your link: -
https://forums.moneysavingexpert.com/discussion/5664076/heath-parade-nw9-again-ntk-received-ignore-or-appeal


It's just DEFENCE, not DEFENCE STATEMENT

Coupon-mad

Easier for all of us to help you, if you get the two threads merged.

Send a quick pm to a Board Guide, like Crabman or soolin.

Crabman

Threads have been merged.

Coupon-mad

I cannot, based on info I have, demonstrate that they were unable to issue tickets, unless I reference other cases – I asked AmoUK for their court case details.

That's fine because you don't have to demonstrate or evidence it yet. But your defence must allude to it.

keekstuff

@Crabman thanks for merging

@Coupon-mad - thanks, I understand this better now. So, whilst I should ensure that evidence -can- be obtained to back my defence, I have some time to collect it all once I submit. Cheers.