POPLA HX Car Park Management Ltd PCN V O & C Car Parks Ltd Ticket

spaniel101

Hi
I wonder if someone could help. I have received a PCN from a company called HX Management (overstay 12 minutes). I have used their appeals process on the grounds of insufficient signage, disproportionate costs. However, I have also evidence the ticket to them which has a different company name on it, O & C Car Parks Ltd (not HX Management) therefore I believe all tickets to be issued illegally and that no contract was formed.

The appeal has been rejected so I am formulating my appeal to POPLA, please can someone tell me if I am right in stating the 'no contract was formed due to different company name on ticket', and if so, how best to word this to POPLA for maximum effect.

Thank you in advance, any help much appreciated.

pogofish

The Newbies Sticky covers POPLA appeals in depth - Start by reading it carefully.

Umkomaas

This can't go to POPLA as HX is a member if the IPC and their second line appeal procedure goes via the IAS. Read the NEWBIES FAQ sticky, post # 3 for details about why you don't bother appealing to the IAS.

https://bmpa.zendesk.com/hc/en-us/articles/211664369-HX-Car-Park-Management-Ltd

O&C Car Parks Ltd and HX are one and the same.

https://www.hx-pcn.com/oandc/

spaniel101

Hi Guys
I'd be really grateful if someone with great wisdom and knowledge would kindly have a read of my Defence due to be posted to Northampton CC on Monday please? - apologies for the urgency and length :rudolf: ! All advice greatly appreciated before this gets posted. Very many thanks in advance - you lot are invaluable!! Great things are coming your way...

Story thus far:-

04.08.17 - PCN (overstay 12 minutes)
16.08.17 - Denied as keeper of vehicle by return letter & copy of ticket with 'O&C Car Parks' on. Evidential photos rubbish signage
22.08.17 - Appeal rejection letter
26.09.17 - Final demand before debt recovery
10.10.17 - Letter before claim from Gladys
17.11.17 - Claim Form Northampton
02.12.17 - Did AOS MCOL
05.12.17 - Sent CPR 31.14 Request to Gladys/no response yet
Submitting Defence 1st Class 18.12.17 to Northampton

DEFENCE:-
[FONT=&quot]I am >>>>>>>>, the defendant in this matter and registered keeper of vehicle >>>>>>>>. I currently reside at >>>>>>>>>.

I deny I am liable for the entirety of the claim for each of the following reasons:



[/FONT]
[FONT=&quot]1. This Claimant has not complied with pre-court protocol. And as an example as to why this prevents a full defence being filed at this time, a parking charge can be for trespass, breach of contract or a contractual charge. All these are treated differently in law and require a different defence. The wording of any terms of contract will naturally be a key element in this matter, and a copy of the alleged terms of contract has never been provided to the Defendant, despite this having been requested by the Defendant.

a) This is a speculative serial litigant, issuing a large number of identical 'draft particulars'.

b) The Particulars of Claim are extremely sparse and divulged no sufficient detail. The Defendant has no idea why the charge arose, what the alleged terms of contract was; nothing that could be considered a fair exchange of information. The Particulars of Claim do not contain any evidence of contravention or photographs from the Claimant.

[/FONT]
[FONT=&quot]c) [/FONT][FONT=&quot]HMCS have identified over 1000 similar poorly produced claims and the solicitor's conduct in many of these cases is believed to be currently the subject of an active investigation by the SRA.
I believe the term for such conduct is ‘robo-claims’ which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers.
I have reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to my significant detriment as an unrepresented Defendant.[/FONT]

[FONT=&quot]d) The Defence therefore asks the Court to strike out the claim as having no reasonable prospect of success as currently drafted.
[/FONT][FONT=&quot]
e) Alternatively, the Defendant asks that the Claimant is required to file Particulars which comply with Practice Directions and include at least the following information;

[/FONT]
[FONT=&quot](i) [/FONT][FONT=&quot]A copy of any terms of contract it is alleged was in place (e.g. copies of signage).

[/FONT]
[FONT=&quot](ii) [/FONT][FONT=&quot]How any terms of contract were concluded (if by performance, then copies of signage maps in place at the time).

[/FONT]
[FONT=&quot](iii) [/FONT][FONT=&quot]Whether keeper liability is being claimed, and if so copies of any Notice to Driver / Notice to Keeper.

[/FONT]
[FONT=&quot](iv) Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter.

[/FONT]
[FONT=&quot](v) If charges over and above the initial charge are being claimed, the basis on which this is being claimed.

[/FONT]
[FONT=&quot](vi) If Interest charges are being claimed, the basis on which this is being claimed.

[/FONT]
[FONT=&quot](vii) Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.


[/FONT]

[FONT=&quot]2. Schedule 4 of the Protection of Freedoms Act 2012 states that the only sum a keeper of a vehicle can be pursued for (if Schedule 4 is fully complied with, which it was not, and if there was a 'relevant obligation' and ‘relevant terms of contract' fairly and adequately communicated, which there was not, as there was no clear, transparent information about maximum stay nor vehicle registration number) is the sum on the Notice to Keeper. They cannot pluck another sum from thin air and bolt that on as well when neither the illegible signage, nor the notice to keeper, nor the illegible information clearly states a possible £>>>>>>>, for outstanding debt and damages.


[/FONT]
[FONT=&quot]3. The Claimant has added unrecoverable sums to the original parking charge. It is believed that the employee who drew up the paperwork is remunerated and the particulars of claim are templates, so it is simply not credible that £50 'legal representative’s (or even admin) costs' were incurred. I deny the Claimant is entitled to any interest whatsoever.[/FONT]
[FONT=&quot]

4.[/FONT][FONT=&quot] The alleged debt as described in the claim are unenforceable penalties, being just the sort of unconscionable charges exposed as offending against the penalty rule, in ParkingEye Ltd v Beavis.[/FONT]
[FONT=&quot]a) This case can be easily distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes. Charges cannot exist merely to punish drivers. This claimant has failed to show any comparable 'legitimate interest' to save their charge from Lord Dunedin's four tests for a penalty, which the Supreme Court Judges found was still adequate in less complex cases, such as this allegation. It is submitted that (apart from properly incurred court fees) any added legal fees/costs 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 the small claims court. [/FONT]
[FONT=&quot]b) If the court believes there was a contract (which is denied) this is just the sort of 'simple financial contract' identified at the Supreme Court as one with an easily quantifiable loss (i.e. the tariff), identified as completely different from the complex 'free parking licence' arrangement in Beavis.

c) Where loss can be quantified, the 'complex' and 'completely different' Beavis decision is inapplicable, as was found in ParkingEye Ltd v Cargius, A0JD1405 at Wrexham County Court.

d) At the Court of Appeal stage in Beavis, pay-per-hour car parks were specifically held by those Judges (in findings not contradicted in the Supreme Court later) as still being subject to the "penalty" rule, with the potential for the charge to be held to be wholly disproportionate to the tariff, and thus unrecoverable. In other words, charging £100 for a period of time for which the 'agreed and published' tariff rate is £1/hour, would be perverse, contrary to the Consumer Rights Act 2015 and not a matter that the courts should uphold. [/FONT]



[FONT=&quot]5. In the absence of any proof of adequate signage that contractually bound the Defendant then there can have been no terms of contract and the Claimant has no case. [/FONT][FONT=&quot]It is denied that the signs used by this claimant can have created a fair or transparent contract with a keeper of a vehicle in any event. The signs were insufficient in terms of their distribution, wording and lighting hence incapable of binding, which distinguishes this case from the Beavis case:[/FONT]
[FONT=&quot]
a) Site/entrance signage – There was no entrance signage whatsoever. The site signage is placed within tree branches which were not be visible in the height of Summer when the trees are in full bloom. The Defendant was only made aware of these signs when returning to the site in August to take pictures for evidence. The Defendant also notes a sign has not only been placed within the branches of a tree at great height, but it is also green and white thus not making it clear to read. The Defendant refers to the Terms and Conditions that are illegible as they are displayed in such small font. [/FONT][FONT=&quot]Contrary to IPC Code of Practice, Part E, schedule 1 - Signage “Contrast and Illumination, signage - Black text on a white background or white text on a black background will provide a suitable contrast”.
[/FONT][FONT=&quot]
[/FONT][FONT=&quot]b) The Defendant is aware that a new machine and new signage has since August 2017 and the [/FONT][FONT=&quot]alleged breach of terms of parking on the land in question, been installed in the car park. The original machine was not clear which area the machine related to. The Defendant believes this to be a deliberate tactic to mislead consumers as to which area the original machine related to, specifically as the new signage HX Car Park Management have installed since August 2017, now states that the new machine is “Pay and Display both sides”, along with an equally illegible new yellow signage next to it, which you are also still unable to read such small font, upon entering the car park.

[/FONT]
[FONT=&quot]c) There is no ‘Maximum Stay’ clearly visible wheresoever on the old signage, nor the old machine, the defendant clearly would not have been informed of any such time restrictions, therefore no contact could be formed for such. The new signage since August 2017, equally does not state a ‘Maximum Stay’, yet in smallest of fonts upon the new ticket machine only, one line states Maximum stay 2 hours, so again this is still not within their terms and conditions still. The Defendant believes this is another deliberate tactic to mislead consumers.[/FONT]

[FONT=&quot]d) The old signage states “Parking charge notices will be issued for:- Failure to correctly enter your vehicle registration number” which the Defendant can see having zoomed in on one of the Defendants evidential photographs of the old signage, given this was illegible in situ. However, the old machine does not offer the option of entering a vehicle registration number. The new machine which HX Car Park Management have installed since August 2017, a vehicle registration number is compulsory.

[/FONT]


[FONT=&quot]6. The Claimant is put to strict proof that at the time of the alleged event they had both advertisement consent and the permission from the site owner to display both the old and the new signs. The Defendant is yet to receive a response to this request.

[/FONT]
[FONT=&quot]a) In the absence of strict proof I submit that the Claimant was committing an offence by displaying their signs and therefore again, no contract could have been entered into between the driver and the Claimant.

b) Inadequate signs incapable of binding the driver.

[/FONT]
[FONT=&quot](i) Sporadic and illegible of site signage, no (old) signage whatsoever at the entrance to the car park in August 2017 - breach of the POFA 2012 Schedule 4 and the BPA Code of Practice therefore no contract formed to pay any illegible sum.

[/FONT]
[FONT=&quot](ii) No clear ANPR 'data use' signage - breach of ICO rules and the BPA Code of Practice.[/FONT]

[FONT=&quot](iii) The signage was not lit and any terms were not transparent or legible; this is an unfair contract [/FONT][FONT=&quot]not agreed by the driver and contrary to the Unfair Terms in Consumer Contracts Regulations 1999.[/FONT][FONT=&quot]

[/FONT]
[FONT=&quot](iv) No promise was made by the keeper of the vehicle that could constitute consideration because there was no offer known nor accepted. No consideration flowed from the Claimant whatsoever. Absent the elements of a contract, there can be no breach of contract.

[/FONT]
[FONT=&quot]c) BPA CoP breaches:

[/FONT]
[FONT=&quot](i) The signs were not compliant in terms of the font, size, lighting or positioning.

[/FONT]
[FONT=&quot](ii) The sum pursued exceeds £100.

[/FONT]
[FONT=&quot](iii) There is / was no compliant landowner contract, despite having asked for a copy of this, this has not been supplied to the Defendant by the Claimant to date.

[/FONT]

[FONT=&quot]
7. It is believed HX Car Park Management Limited do not hold a legitimate contract at this car park. As an agent, the Claimant has no legal right to bring such a claim in their name.


[/FONT]

[FONT=&quot]8. No legitimate interest:

[/FONT]
[FONT=&quot]a) This Claimant files serial claims regarding sites where they have lost the contract, known as revenge claims. In the absence of any such contract having been evidenced to the Defendant, despite this being requested, this is not a legitimate reason to pursue a charge out of proportion with any loss or damages.


[/FONT]

[FONT=&quot]9. The Beavis case confirmed the fact that, if it is a matter of trespass (not breach of any contract), a parking firm has no standing as a non-landowner to pursue even nominal damages.


[/FONT]

[FONT=&quot]10. The charge is an unenforceable penalty based upon a lack of commercial justification.

[/FONT]


[FONT=&quot]11. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons.

[/FONT]


[FONT=&quot]12. I request the court strike out this claim for the reasons stated above, and for similar reasons cited by District Judge Cross of St Albans County Court on 20/09/16 where a similar claim was struck out without a hearing, due to Gladstones' template particulars for a private parking firm being 'incoherent', ''providing no facts that could give rise to any apparent claim in law''.

[/FONT]
[FONT=&quot]

[/FONT]
[FONT=&quot]

[/FONT]


[FONT=&quot]I believe the facts contained in this Defence Statement are true.

signature and date[/FONT]

Coupon-mad

my Defence due to be posted to Northampton CC on Monday please?

Emailed to the CCBCAQ email addy, not posted.

Certainly NOT posting such an important document this month (!) and not recorded delivery. Just email it as a signed/dated document scanned and attached (when it is ready) obviously putting the claim number and 'defence' in the subject line.

claxtome

10. The charge is an unenforceable penalty based upon a lack of commercial justification.

This has been mentioned in paragraph 4.

b) The Defendant is aware that a new machine and new signage has since August 2017 and the alleged breach of terms of parking on the land in question, been installed in the car park.

Needs rewording in my opinion.

spaniel101

Coupon-Mad, Ah - didn't realise you could email - Thank you! Am I right in saying then ccbcaq@hmcts.gsi.gov.uk and do I actually sign this document, or just type my name? (can scan if needs)

claxtome - thank you, i have removed Para 10.

Re - b) The Defendant is aware that a new machine and new signage has since August 2017 and the alleged breach of terms of parking on the land in question, been installed in the car park.

How about " The Defendant is aware that a new machine and signage has since August 2017, been installed in the car park." or where you thinking along the lines of something else please?

Much appreciated all,

Umkomaas

Everything you need to do (and how) is detailed in the NEWBIES FAQ sticky, post #2 (bargepole’s walk-through).

But it does need an actual signature (not a fancy font-type sig), so it’s print the document, sign it, scan it back in, convert to .pdf file and attach it to your email.

KeithP

spaniel101 wrote: »

How about " The Defendant is aware that a new machine and signage has since August 2017, been installed in the car park." or where you thinking along the lines of something else please?

How about "The Defendant is aware that a new machine and signage has been installed in the car park at some time since August 2017".

Coupon-mad

Request to Gladys

Love the idea of shortening Gladstones to 'Gladys', especially because I had a slightly potty Great Aunt Gladys!

O&C Car Parks Ltd and HX are one and the same.

https://www.hx-pcn.com/oandc/

The above link doesn't seem to work any more, and how can HX Car Parks Ltd be one and the same as another Limited company:

https://beta.companieshouse.gov.uk/company/09313114

https://beta.companieshouse.gov.uk/company/03651387/officers

No evidence on the IPC website of an O&C Car Parks, nor any suggestion that HX Trade under another name:

https://theipc.info/aos-members/h

So IMHO it's a valid defence point to say that the parking receipt/contract was with another legal entity and put the Claimant to strict proof of their interest in the matter.


I would remove this because you never agreed to pay HX anything, only 'O&C':

In other words, charging £100 for a period of time for which the 'agreed and published' tariff rate is £1/hour, would be perverse, contrary to the Consumer Rights Act 2015 and not a matter that the courts should uphold.

And you need a section about IPC grace periods and put HX to strict proof that the car was in fact there twelve minutes over the time, going by the timer on the ticket machine, not another watch or camera set 3 minutes out of synch, for example.

State that you do not admit that the car was there twelve minutes past paid-for time, say that it was your honest belief that you returned less than ten minutes after, going by the time on the machine and well within the required ten minute minimum grace period.

pappa_golf

sort of same location (yorkshire) , but cannot see a link https://beta.companieshouse.gov.uk/company/03651387/officers