WY Parking PCN

Coupon-mad

Yes they can choose Leeds.

I think that's within lamilad's area. He sometimes turns up to court to help people!

KeithP

jorge_gills wrote: »

Claim form received dated 11 April.

With a Claim Issue Date of 11th April, you have until Tuesday 30th April to do the Acknowledgement of Service, but there is nothing to be gained by delaying it. To do the AoS, follow the guidance offered in a Dropbox file linked from post #2 of the NEWBIES FAQ sticky thread. About ten minutes work - no thinking required.

Having done the AoS, you have until 4pm on Tuesday 14th May 2019 to file your Defence.

That's nearly three weeks away. Loads of time to produce a perfect Defence, but don't leave 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 "defence received". If not chase the CCBC until it is.
   
6. Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire, they are just trying to keep 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.

jorge_gills wrote: »

Some people aren't confident enough to stand in front of a judge and would rather pay.

Have a look at this short video:

www.youtube.com/watch?v=n93eoaxhzpU

Notice that everyone remains seated - most of the time.

jorge_gills

AOS submitted. First go at a defence:


The Defendant was the registered keeper of vehicle registration number xxx on the material date. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

The Defendant denies that driver or keeper of the vehicle agreed to pay the PCN within 28 days of issue as it states on the claim form.

The Particulars of Claim state that the Defendant is “the driver/keeper 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. Despite requests by the Defendant, the Claimant has not provided copies of the Notice to Driver or Notice to Keeper.

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.

The Defendant denies that the signs at the location were in compliance with the Claimant's trade association Code of Practice. Specifically British Parking Association Code of Practice (Appendix B section B4) which requires signage at the entrance to the parking area. There are no signs at the entrance to the parking area in question (refer to item 01 in defence pack attached).

The signs used by the operator cannot constitute a contract as they are prohibitive or forbidding and do not have the necessary requirements of a contract, offer, acceptance and consideration (refer to item 02).

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 a position that anyone attempting to read the tiny font would be unable to do so easily. Furthermore the positioning of the signage is such that a large vehicle such as a van would block the sign from the view of a driver of a smaller car (refer to item 03). It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

In addition to the signs, the parking area is not clearly defined at the site. There are marked bays which may indicate to a driver that there are parking restrictions, however these bays end at a point beyond which a driver is likely to believe the parking area ends as the area turns into wasteland (refer to item 04). The car was parked in this area outside of the marked bays when the “PCNs” were issued by the Claimant. The Defendant maintains that a reasonable driver would believe they are not parking in an area where parking restrictions apply as there are no marked bays, nor are the signs clearly visible.

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.

The Defendant has not been issued a Notice to Keeper (NTK) by the Claimant or its agents. As a Notice to Driver was provided on the vehicle, an NTK is required to be issued no sooner than 28 days after, or no later than 56 days after the service of that notice. This stipulation is laid out in Schedule 4 of the Protection of Freedoms Act 2012 (PoFA). The alleged infringement occurred on 27/05/2017 so the NTK was required to reach the Defendant by 22/07/2017. As none of the mandatory information set out by Schedule 4 paragraphs 8 and 9 of the PoFA has been made available to the defendant as Registered Keeper the conditions set out by paragraph 6 of Schedule 4 has not been complied with. Therefore, there can be no keeper liability.

The keeper liability requirements of Schedule 4 of POFA must be complied with, where the appellant is the registered keeper, as in this case. One of these requirements is the issue of a NTK compliant with certain provisions. This operator failed to serve any NTK at all. As there has been no admission as to who may have parked the car and no evidence of this person has been produced by the operator, it has been held by Parking On Private Land Appeals (POPLA) multiple times in recent years that a parking charge with no NTK cannot be enforced against the registered keeper.

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. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

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.

Coupon-mad

Looks good - as long as the real version is paragraph numbered and has the usual headings and usual signature, date and statement of truth.

But no evidence yet! Evidence comes later - see NEWBIES thread to be prepared:

(refer to item 03) (refer to item 04).

jorge_gills

Yes real version will have numbers and headings etc.

Coupon-mad wrote: »

But no evidence yet! Evidence comes later - see NEWBIES thread to be prepared:

Noted, thank you.

jorge_gills

Received a couple of letters recently.

One is a Request for Rectification of Data (Address):
We write further to your AOS when you provided a different address to the address we hold on file.
We require sufficient documentation to enable us to verify your identity. Please provide proof of residence (utility bill/bank statement) of the address you wish for us to hold.
Whilst we write to the address provided on this occasion, no update to our system will be made until we are in receipt of the requested documents.
Please note we do not retain identification documents.
Under GDPR we are obliged to respond to your request within one month of receiving it but please note that the one month compliance will not start until we receive proof of your identity.
Please note that we may close your request if we do not receive the above mentioned documentation from you within 10 working days of the date of this letter.

I assume I have no obligation to send them anything?

Second letter enclosed a copy of the DQ. They have requested a special direction to not have an oral hearing and have the judge just go by the papers. It sounds like they don't want to waste expense attending court as they know they will lose. Anyway I'm fairly happy with this.

Le_Kirk

Do you really want a hearing "on papers" where you will have no chance to put your side of the story, strengthen your defence and point to the PPC's unreasonable behaviour? A few cases were lost a couple of weeks ago because defendants did not turn up - albeit that is different to a case being heard on papers - it was still a loss.


Regarding proof of address, did you move after receiving the PCNs and before submitting the AoS? If so, you should have sent a rectification notice the DPO of the PPC and included something, such as your V5C to prove where you live. You don't want a CCJ by default because you didn't receive something important.

KeithP

The first issue:

You have no obligation to prove that the address you have given for service is your residence. It could just as easily be a convenient address of a friend, for example.



The second point:

You were of course expecting a copy of their DQ.

As post #33 suggested, you now need to read Bargepole's 'what happens when' post linked from post #2 of the NEWBIES thread to find out exactly how to answer all the questions on your DQ. In that post you will also see:

Note: Gladstones are currently including a 'request for special directions' asking the Court to hear the case on the papers only, without an oral hearing. You should oppose this, and include the following text in D1: “The Defendant opposes the Claimant’s request for special directions, and requests that the case be listed for an oral hearing at the defendant’s home court, pursuant to CPR 26.2A(3)”.

In your earlier posts you said that the Defendant didn't want to attend a hearing, but at this stage you would be wise to continue as if a hearing is needed. This will not allow the Claimant to see that they might have an easy time. Later, about a week before the hearing, the Defendant can write to the court stating that they would like the case heard ' on the papers', if that is still their wish.

jorge_gills

I have access to both the 'old' and 'new' addresses, so I'll ignore the first letter.

Regarding the DQ - noted, thank you.

jorge_gills

Hi all, I have a date at court on 30th August. First go at witness statement (excl the other necessary info):

4. I assert that I was the registered keeper of the vehicle in question in this case, at the time of the event. I was not the driver.

5. Regarding section 2 of my defence (Particulars of Claim), I deny that the driver or keeper of the vehicle agreed to pay the PCN within 28 days of issue as it states on the claim form.

6. Regarding section 3 of my defence (Signage), the signage at the site is extremely poor and falls well short of the requirements set out in the British Parking Association’s Code of Practice (included as Exhibit 01), the trade association of which the claimant is a member. Specifically:

6a. There are no signs to the entrance to the parking area (a photo of the entrance is included as Exhibit 02) as required by Appendix B, paragraph B4.1 of the Code. The driver did not believe they were entering a controlled parking area.

6b. The positioning of the signage within the parking area (a photo of the signs in the parking area is included as Exhibit 03) is such that a large vehicle such as a van would block the sign from the view of a driver of a smaller car. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract. The driver did not notice the signage when parking the car.

6c. 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 a position that anyone attempting to read the tiny font would be unable to do so easily. Exhibit 04 is a photo taken right up close to the sign and shows even then the smaller writing is barely readable. I am of the belief that a driver would not be able to read the sign from a passing vehicle.

6d. Even if the signs could be read, they cannot constitute a contract as they are prohibitive or forbidding and do not have the necessary requirements of a contract, offer, acceptance and consideration.

6e. In addition to the signs, the parking area is not clearly defined at the site. Exhibit 05 shows there are marked bays which may indicate to a driver that there are parking restrictions, however these bays end at a point beyond which a driver is likely to believe the parking area ends as the area turns into wasteland. The car was parked in this area outside of the marked bays (where the blue car is parked in 05) when the “PCNs” were issued by the Claimant. Exhibit 05 also shows how small and inconspicuous the signage is in the area.

6f. The driver did not believe they were parking in an area where parking restrictions apply as there are no signs at the entrance, the signs are not clearly visible, and there are no marked bays.

6g. I site ‘Vine vs Waltham Forest LBC [2002]’. Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in ParkingEye vs Beavis.

6h. A reasonable interpretation of the 'red hand rule' and the BPA and IPC Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently and in far larger lettering, with fewer words and more 'white space' as background contrast suited to an outdoor sign.

6i. I site 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them. This judgment is binding case law from the Court of Appeal. This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established.

7. Regarding section 6 of my defence (Protection of Freedoms Act 2012 (POFA)), in order for the claimant to hold the registered keeper liable, they are required to adhere to Schedule 4 of POFA (included as Exhibit 06), specifically the conditions in paragraphs 5, 6, 11, and 12 have to be met.

7a. The condition of paragraph 6 has not been met as although a notice to driver was left on the windscreen of the vehicle, I have never received a notice to keeper.

7b. The condition of paragraph 11 has not been met as although the claimant has obtained my details from the DVLA, sub-paragraph (1)(b) cannot apply as a notice to keeper was never issued.

7c. The condition of paragraph 12 has not been met as the provisions in sub-paragraph (3) have not been satisfied as explained in detail above.

7d. Barrister and parking law expert Henry Greenslade was the ‘POPLA’ (‘Parking on Private Land Appeals’ independent service offered by the BPA) Lead Adjudicator from 2012 – 2015 and the Claimant was under that Trade Body during this time. I adduce as evidence Mr Greenslade’s opinion in the POPLA Annual Report 2015 (Exhibit 07) which confirms that there is no presumption in law that a keeper was the driver and that keepers do not have any legal obligation whatsoever, to name drivers to private parking companies. No adverse inference can be drawn from my choice not disclose the identity of the driver.

Is there a way of checking whether they have paid their court fee?