ES Parking Enforcment Ltd Ticket face down charge notice

Umkomaas

Does this mean that there is no planning permission for the car park?

Contact the LA for a definitive answer - far more useful to you than an 'opinion' when we have no more details about the car park than you.

meagainin

Umkomaas wrote: »

Contact the LA for a definitive answer - far more useful to you than an 'opinion' when we have no more details about the car park than you.

I had but the person was less than helpful. Tried again today and yes there's a variance to the terms that was applied for in 2013.

Coupon-mad

OK so forget that and don't get bogged down in 'legal personality' if you don't understand it.

meagainin

Another draft

I'd be very grateful if someone could have a look at it.

I, XXX, of YYY will say as follows:

1. I am the Defendant in this matter. I am an unrepresented consumer who is not experienced at attending county court. In this statement I will refer to the documents contained in exhibit marked XXX1, by page number.

2. On the 1 September 2017 the driver parked in Winwick Street Car Park, walked to the nearest pay and display machine, purchased a ticket for the day and ensured that the ticket was displayed face up on the dashboard of the car before leaving. The driver as a matter of course will always double check that the parking ticket is correctly displayed before leaving the car.

3. On 15 September 2017 I received an envelope containing a postal Parking Charge Notice to Keeper from ES Parking Enforcement Ltd, which was issued on 10 September 2017 (see xxx). This was a surprise to me but fortunately all parking tickets for the car are kept in the glove compartment for at least a month and due to this I was able to locate the relevant ticket. A postal Parking Charge Notice for the scenario made me wonder if the parking firm is hoping the purchased parking ticket would have been thrown away.

5.The Claimant provided no evidence of who was driving the car and cannot presume that the Registered Keeper was the driver at the time of the alleged contravention.
The Registered Keeper can only be held liable Under POFA 2012 if the Claimant meets the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012. As the Claimant's notice is not fully compliant with the statutory wording, the Claimant is unable to hold the Keeper of car liable under the strict 'keeper liability' provisions.

I rely upon the words of barrister and parking expert Lead Adjudicator for PATAS and POPLA, Henry Michael Greenslade, where he clarified in the POPLA Annual Report 2015 in a heading: 'Understanding Keeper Liability' that 'however keeper information is obtained, there is no !!!8216;reasonable presumption!!!8217; in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. Any evidence in this regard may therefore be highly relevant'.


6.The Claimant's witness statement says that I did not appeal in the requisit time, this was not the case. Rather it was the Claimant's own website which denied me the opportunity to appeal.
I tried several times to use the Claimant's website to appeal the Parking Charge as the Registerd Keeper including a copy of the ticket as evidence that parking had been paid for and therefore I was not liable but the Claimant's website would not accept my photographic evidence even though I tried to resize the photograph more than once. When I tried again on 2 October 2017, the website would not accept my appeal as it stated that I was out of time. This was incorrect and incontravention of the International Parking Community Accredited Operator Code of Practice which states in Part B, Section 6 that Operators should 'Allow a minimum of 21 days from imposition for the motorist to lodge an appeal with you and make representations' . International Parking Community Code of Practice - see Schedule 4. As a member of this organisation, I would expect ESPEL to ahere to it's code of practice.

7. I then received a further demand dated 1 October 2017 with an increased amount owing with no explanation for the increased amount and this letter threatened me with further debt recovery (page XX of XXX1). No figure for additional charges was agreed, or communicated to me, nor could it have formed part of the !!!8216;alleged!!!8217; contract because no such indemnity costs were quantified on the Claimant!!!8217;s signs. Terms cannot be bolted on later with figures plucked out of thin air, as if they were incorporated into the small print, when they were not. (See specimen sign on 888).

8. A Letter Before Claim (page XX of XXX1) dated 9 November 2017 was received. Once again the sum of money demanded had increased, this time to £160.00 with no explanation. I responded (page XX of XXX1) on 3 December 2017, asking for more details and a copy of all documents purporting to the matter. Although my reply was acknowledged, I did not receive a response from the Claimant.

9. I then received a Claim Form dated 8 January 2018 (page xx of XXX1). The Particulars of Claim set out in the Claim Form do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies what the terms of the alleged contract were, or how they were breached. The Particulars are not !!!8220;clear and concise!!!8221; as is required by CPR 16.4 1(a). There is no information regarding why the charge arose, what the original charge was, what the alleged contract was nor anything which could be considered a fair exchange of information. It just states !!!8220;breaching terms of parking on the land at Winwick Street!!!8221; which does not give any indication of on what basis the claim is brought. The claimant also failed to provide a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A).

10. I dispute that the Claimant has incurred £50 Solicitors costs to pursue an alleged £100 debt, the costs of which are in any case not recoverable. The claimant has described the charge of £50 as !!!8216;legal representative!!!8217;s costs!!!8217; not !!!8216;contractual costs!!!8217; CPR 31.14 does not permit these to be recoverable in the Small Claims Court
The Claimant has at no time provided an explanation of how the sum claimed has been calculated, the conduct that gave rise to it or how the amount has climbed from £100 to the £160 now sought.

The Claimant relies on Parking Eye V Beavis in their witness statement, however

11. POFA sched 4 para 4 (5) ''The maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper...(less any payments towards the unpaid parking charges which are received after the time so specified).''

12. Under Regulation 30 of the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 (amended) A parking operator needs to have Advertising Consent for signs displayed in the car park. The only relevant Advertising Planning Consent found for the car park in question has now lapsed (pages XX-YY of XX1). I therefore hold to strict proof that they have Claimant has advertising consent for signage.

13. The Claimant has provided a copy of one of the signs on site at the Car Park, however the signage on Winwick Street car park is inconsistant with at least three signs all showing different wording (see xx). I have submitted as evidence a copy of the Beavis sign to use as an example of a sign with clear wording (page xx).
I have checked with Warrington Borough Council and the Claimant's Planning Consent for their sign has expired (see page xx)

14. I have produced a map of the car park (see xx). The map that the Claimant has submitted as evidence is now out of date as it shows no border between the Claimant's part and the Council-run part. (The Boundary is approximately from the pub vertically downwards).

15. On the day in question the driver had every intention to pay for parking and did so. The driver genuinely thought they had complied with the terms of parking in the car park (and was justified in that belief). There must either have been a gust of wind when the the door was closed or one of the windows may have been slightly open and the ticket may have been dislodged after the car was left and this small error comes under the de minimis principle.

16. In Jolley v Carmel Ltd [2000] 2 !!!8211;EGLR -154, it was held that a party who makes reasonable endeavours and takes reasonable steps to comply with contractual terms, should not be penalised for breach outside of their control.

17. If you look closely at the ticket you can see it is made of a flimsy piece of paper with no sticky part to it so that it could be fixed in place on the dashboard or windscreen. I would be interested to know how many Parking Charge Notices for similar circumstance occur for this car park. Since receving this charge, I personally have become aware of three other people who have received a Parking Charge Notice at this car park for the same reason and it is my understanding that the Claimant has recently discontinued at least one of these cases, I assert that the Claimant knows they have little chance of sucess in proceeding with a claim for this issue.
I note that the Claimant has stated in their witness statement that 'if they were to waive one charge on the basis put forward in the Defence, it would open the floodgates to the waiver of many more charges'. I assert that this in itself shows that the Claimant is aware that that the flimsiness of their parking ticket results in 'many' Penalty Charge Notices being issued and would question why they would not take steps to resolve this.

18. Fluttering tickets are routinely accepted as a valid defence to Council Penalty Charge Notices and whilst contractual principles are not applied to such notices, it is indicative of the fact that circumstances out of your control, and where the driver has clearly paid for the parking, are deemed to be a good reason for those notices to be cancelled.

19. I include the views of Council Adjudicators regarding the well-known issue of 'flimsy fluttering tickets' because the Supreme Court (and the Court of Appeal Judges) in Beavis were happy to draw similarities with Council PCNs: (See XX).

!!!8216;In DB05057D the adjudicator said: !!!8220;!!!8230;having seen the original ticket I note that it is made of rather thin paper which is likely to be dislodged when a car door is shut. It may be that the Council would argue that it is the driver's responsibility to ensure that the ticket is on display when the vehicle is left, but on the other hand if it chooses to issue pay and display tickets made of such thin paper it must expect that now and again this type of situation will arise.!!!8221;!

In HV05040D the adjudicator accepted the appellant!!!8217;s evidence that she had displayed the ticket on the dash and checked after closing the door that it was still there. He said: !!!8220;I am not aware of any signs in the car park suggesting the use of adhesives by motorists when parking their cars."

20. There is no possible commercial justification for such a trivial error for the Claimant. I note the Claimant relies on Parking Eye v Beavis 2015 to support their claim, however in this case, the judges at the Court of Appeal stated that there was a commercial justification for the Claimant to issue a Parking Charge Notice as the car park in question wa a free car park and needed to prevent overstays of the 2 hour free stay. Whereas in this case, the car park is a commercially viable and busy Pay & Display car park where revenue is gained as people pay to park for an agreed period in time.
In the Beavis case, the Claimant paid a fee to administor the car park and as
The Claimant has provided a copy of their Parking Contract, and the party named as the proprieter in the Parking Contract (Total CarPark Solutions), is claimed has the right to grant the rights in the Parking Contract. However the contract is incomplete as Clause 8 refers to terms and conditions overleaf. These have not been provided.
The contract signed in 2015 was valid for 1 year and although contracts may thereafter run month to month, the Claimant has not provided any proof that this is the case.

21. I assert that the Claimant has no Locus Standi to bring this claim because:

The party Total CarPark Solutions in the Parking Contract, is claimed has the right to grant the rights in the Parking Contract. Total CarPark Solutions is not the landowner or another entity authorised by the landowner. Total CarPark Solutions, or similar name, is not even a recognised company according to Companies House. No proof of a formal agreement between the landowner and Total CarPark Solutions has been provided by the Claimant and therefore the Claimant has failed to establish an express conferral of rights has taken place pursuant to Section 1(1)(a) and 1(3) of the Contracts (Rights of Third Parties) Act 1999 which require terms to identify the Claimant and express terms granting the Claimant the right to enforce the contract; or the right to sue.

22. Part B Paragraph 1.1 of the IPC CoP specifically provides that the Claimant must have written authorisation of the landowner [see x). Compliance with the CoP is mandatory. Implicit in this is that Claimant would have no rights under the Parking Contract if they were not granted by the landowner.

23. The Notice to Keper is not compliant with POFA 2012 Schedule 4 section $$56? The landowner was not party to the Parking Contract which was entered into by another company which had no rights to the land and no rights to grant to the Claimant in any contract.

23. Strict proof is required that there is an assignment of contractual rights from the landowner to the Claimant. The Claimant has failed to establish an express conferral of rights has taken place pursuant to Section 1(1)(a) and 1(3) of the Contracts (Rights of Third Parties) Act 1999 which require terms to identify the Claimant and express terms granting the Claimant the right to enforce the contract; or the right to sue.

24. The Land is divided into 4 title numbers; 3 Freehold and 1Leasehold; none of which mention the landowner or leaseholder similar to Total CarPark Solutions.
Indeed the landowner according to titles CH178919 and CH506108, and the leaseholder according to title LA139982, is Winwick Partnership which is registered in England and Wales under ref LP009364. There are two general partners; Faraday Management Ltd (registered in the Isle of Man) and Winwick Ltd, (Register 04969819) [p93, p98 and p101].

The landowner according to the final title CH588779 is ZOE Warrington Ltd which is registered in England and Wales under Register 03563382 [p105].

In Ebbw Vale Urban DC v South Wales Traffic Area Licensing Authority [1951] 1 All ER 806 (as set out in Air-Care Ltd v Blais and Les Immeubles Pro-Car Limitee et al) in which it was held that each entity in a group of companies (and their rights and obligations) is separate and distinct, and for one connected business entity to pass rights onto another, those rights must be granted by way of a formal agreement. If there is no formal agreement, the rights/obligations of one entity cannot become the rights/obligations of another entity, even if it is connected/part of the same group of companies/under common ownership.


25. In their witness statement, the Claimant relies on the Court of Appeal case of Vehicle Control Services v Her Majesty!!!8217;s Revenue & Customs [2013] EWCA Civ 186 and Parking Eye v Beavis (CA 2015), as establishing a precedent that the present Claimant can bring proceedings in its own name [Green Tab Page 33] and [Statement of Claimant para 10 and 11].

I assert that the facts of!VCS!v!HMRC!are substantially different from the present case, and that therefore the case can be distinguished from the present case for the following reasons:

i. The!VCS!v!HMRC!case was primarily concerned with VAT liabilities, and the question of whether VCS!!!8217;s charges should be considered a charge for a service, and therefore subject to VAT. It was held that they were damages for breach of contract, and therefore not subject to VAT. However, the terms under which motorists were deemed to have entered into a contract with!VCS!were materially different from the present case. In!VCS!v!HMRC, the landholder appointed!VCS!to operate a permit scheme, whereby those persons authorised to park received a permit, together with a letter from!VCS!outlining its conditions of use.

ii. It was held, at para. 27, that!" ... in my judgment the significance of that is that in effect!VCS!promised to contract with persons nominated by the landowner. It does not make the contracts !!!8220;contracts entered into as agent for the landowner!!!8221;. No landowner's name appears on the permit or the terms and conditions. By clause 4.3 of the contract between!VCS!and the landowner, the landowner agreed to ensure that all authorised vehicles displayed a!VCS!permit. The effect of that clause was that the landowner gave up the right to grant direct authorisation to anyone to park in the car park. The right to park could only be conferred by means of a contract between!VCS!and the motorist. If there was any agency it was an agency for an undisclosed principal. In the case of an agent acting for an undisclosed principal, the agent can sue and be sued on the contract. "

iii. It is clear from this that!VCS!were not acting as an agent for the principal, they were contracting in their own right, for an undisclosed principal. In the present case, the Claimant does hold himself to be an agent of the principal, whose identity is disclosed in both the Claimant's signs and the witness statement purportedly signed by the landholder's representative.

b. Also, in!VCS!v!HMRC!it was held that any fines were for 'damages' or 'trespass' neither of which are able to be recovered by a parking firm not in possession. Only a landowner can pursue a driver for damages or under tort (trespass).

I believe that the facts stated in this statement is true

meagainin

Coupon-mad wrote: »

OK so forget that and don't get bogged down in 'legal personality' if you don't understand it.

The way I read it was that Total CarPark Solutions didn't have a legal personality because they don't appear to actually exist as a company - not registered a Companys House, no internet presence, however, Claxtome's skeleton argument mentioned that ESPEL didn't have a legal personality and that's what confused me.

meagainin

Changed it again....

I, XXX, of YYY will say as follows:

1. I am the Defendant in this matter. I am an unrepresented consumer who is not experienced at attending county court. In this statement I will refer to the documents contained in exhibit marked XXX1, by page number.

2. On the 1 September 2017 the driver parked in Winwick Street Car Park, walked to the nearest pay and display machine, purchased a ticket for the day and ensured that the ticket was displayed face up on the dashboard of the car before leaving. The driver as a matter of course will always double check that the parking ticket is correctly displayed before leaving the car.

3. On 15 September 2017 I received an envelope containing a postal Parking Charge Notice to Keeper from ES Parking Enforcement Ltd, which was issued on 10 September 2017 (see xxx). This was a surprise to me but fortunately all parking tickets for the car are kept in the glove compartment for at least a month and due to this I was able to locate the relevant ticket. A postal Parking Charge Notice for the scenario made me wonder if the parking firm is hoping the purchased parking ticket would have been thrown away.!

5.The Claimant provided no evidence of who was driving the car and cannot presume that the Registered Keeper was the driver at the time of the alleged contravention.
The Registered Keeper can only be held liable Under POFA 2012 if the Claimant meets the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012. As the Claimant's notice is not fully compliant with the statutory wording, the Claimant is unable to hold the Keeper of car liable under the strict 'keeper liability' provisions.!

I rely upon the words of barrister and parking expert Lead Adjudicator for PATAS and POPLA, Henry Michael Greenslade, where he clarified in the POPLA Annual Report 2015 in a heading: 'Understanding Keeper Liability' that 'however keeper information is obtained, there is no reasonable presumption in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. Any evidence in this regard may therefore be highly relevant.'!


6.The Claimant's witness statement says that I did not appeal in the requisite time, this was not the case. Rather it was the Claimant's own website which denied me the opportunity to appeal.
I tried several times to use the Claimant's website to appeal the Parking Charge as the Registered Keeper including a copy of the ticket as evidence that parking had been paid for and therefore I was not liable but the Claimant's website would not accept my photographic evidence even though I tried to resize the photograph more than once. When I tried again on 2 October 2017, the website would not accept my appeal as it stated that I was out of time. This was incorrect and in contravention of the International Parking Community Accredited Operator Code of Practice which states in Part B, Section 6 that Operators should 'Allow a minimum of 21 days from imposition for the motorist to lodge an appeal with you and make representations' . International Parking Community Code of Practice - see Schedule 4. As a member of this organisation, I would expect ESPEL to adhere to it's code of practice.

7. I then received a further demand dated 1 October 2017 with an increased amount owing with no explanation for the increased amount and this letter threatened me with further debt recovery (page XX of XXX1). No figure for additional charges was agreed, or communicated to me, nor could it have formed part of the alleged; contract because no such indemnity costs were quantified on the Claimant's signs. Terms cannot be bolted on later with figures plucked out of thin air, as if they were incorporated into the small print, when they were not. (See specimen sign on 888).

8. A Letter Before Claim (page XX of XXX1) dated 9 November 2017 was received. Once again the sum of money demanded had increased, this time to £160.00 with no explanation. I responded (page XX of XXX1) on 3 December 2017, asking for more details and a copy of all documents purporting to the matter. Although my reply was acknowledged, I did not receive a response from the Claimant.!

9. I then received a Claim Form dated 8 January 2018 (page xx of XXX1). The Particulars of Claim set out in the Claim Form do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies what the terms of the alleged contract were, or how they were breached. The Particulars are not clear and concise as is required by CPR 16.4 1(a). There is no information regarding why the charge arose, what the original charge was, what the alleged contract was nor anything which could be considered a fair exchange of information. It just states !breaching terms of parking on the land at Winwick Street which does not give any indication of on what basis the claim is brought. The claimant also failed to provide a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A).

10. I dispute that the Claimant has incurred £50 Solicitors costs to pursue an alleged £100 debt, the costs of which are in any case not recoverable. The claimant has described the charge of £50 as legal representative's costs not contractual costs CPR 31.14 does not permit these to be recoverable in the Small Claims Court
The Claimant has at no time provided an explanation of how the sum claimed has been calculated, the conduct that gave rise to it or how the amount has climbed from £100 to the £160 now sought.

11. POFA sched 4 para 4 (5) ''The maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper...(less any payments towards the unpaid parking charges which are received after the time so specified).''

12. Under Regulation 30 of the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 (amended) A parking operator needs to have Advertising Consent for signs displayed in the car park. The only relevant Advertising Planning Consent found for the car park in question has now lapsed (pages XX-YY of XX1). I therefore hold to strict proof that they have Claimant has advertising consent for signage.

13. The Claimant has provided a copy of one of the signs on site at the Car Park, however the signage on Winwick Street car park is inconsistent, I have found 4 different signs all with different wording. The sign which is easiest to read and is attached to the pay and display machine mentions a 75 clamping charge. (see xx). I have submitted as evidence a copy of the Beavis sign to use as an example of a sign with clear wording (page xx).
I have checked with Warrington Borough Council and the Claimant's Planning Consent for their sign has expired (see page xx)

14. I have produced a map of the car park (see xx). The map that the Claimant has submitted as evidence is out of date as it shows no border between the Claimant's part and the Council-run part. (The Boundary is approximately from the pub vertically downwards) It also does not include a boundary change as part of the site now has a school and office block built on it.!

15. On the day in question, the driver had every intention to pay for parking and did so. The driver genuinely thought they had complied with the terms of parking in the car park (and was justified in that belief). There must either have been a gust of wind when the door was closed or one of the windows may have been slightly open and the ticket may have been dislodged after the car was left and this small error comes under the de minimis principle.

16. In Jolley v Carmel Ltd [2000] 2 EGLR -154, it was held that a party who makes reasonable endeavours and takes reasonable steps to comply with contractual terms, should not be penalised for breach outside of their control.

17. If you look closely at the ticket you can see it is made of a flimsy piece of paper with no sticky part to it so that it could be fixed in place on the dashboard or windscreen. I would be interested to know how many Parking Charge Notices for similar circumstance occurs for this car park. Since receiving this charge, I personally have become aware of three other people who have received a Parking Charge Notice at this car park for the same reason and it is my understanding that the Claimant has recently discontinued at least one of these cases, I assert that the Claimant knows they have little chance of success in proceeding with a claim for this issue.
!
I note that the Claimant has stated in their witness statement that 'if they were to waive one charge on the basis put forward in the Defence, it would open the floodgates to the waiver of many more charges.' I assert that this in itself shows that the Claimant is aware that that the flimsiness of their parking ticket results in 'many' Penalty Charge Notices being issued and would question why they would not take steps to resolve this?

18. Fluttering tickets are routinely accepted as a valid defence to Council Penalty Charge Notices and whilst contractual principles are not applied to such notices, it is indicative of the fact that circumstances out of your control, and where the driver has clearly paid for the parking, are deemed to be a good reason for those notices to be cancelled.

19. I include the views of Council Adjudicators regarding the well-known issue of 'flimsy fluttering tickets' because the Supreme Court (and the Court of Appeal Judges) in Beavis were happy to draw similarities with Council PCNs: (See XX).

In DB05057D the adjudicator said: 'having seen the original ticket I note that it is made of rather thin paper which is likely to be dislodged when a car door is shut. It may be that the Council would argue that it is the driver's responsibility to ensure that the ticket is on display when the vehicle is left, but on the other hand if it chooses to issue pay and display tickets made of such thin paper it must expect that now and again this type of situation will arise.'

In HV05040D the adjudicator accepted the appellant's evidence that she had displayed the ticket on the dash and checked after closing the door that it was still there. He said: 'I am not aware of any signs in the car park suggesting the use of adhesives by motorists when parking their cars.'

20. I note the Claimant relies on Parking Eye v Beavis 2015 to support their claim, however, this case differs in several important respects;

In Beavis the Defendant accepted that there was a contract formed by the signage, which was exceptionally clear and prominently displayed (a photograph of the sign in the Beavis case is at page x ). The case was therefore concerned only with the issue of damages and not liability for breach of contract. Neither admission has been made in this case.!

In the Parking Eye v Beavis case, the judges at the Court of Appeal stated that there was a commercial justification for the Claimant to issue a Parking Charge Notice as the car park in question was a free car park and needed to prevent overstays of the 2 hour free stay so as to ensure a turnover of visitors to the commercial units. This justified a departure from the penalty rule. The car park, in this case, is a stand-alone car park with no such commercial justification/interest where such a departure is NOT justified. There is no possible commercial justification for the issue of a Parking Charge Notice for such a trivial error for the Claimant.!

In Beavis the Claimant paid the landowner to operate the parking, and so the Claimant had to generate an income from doing so in order to cover its costs and make a profit. In this case, the Claimant is paid by the other party to the Parking Contract, so has no need to manage the parking in such a manner as to profit from Parking Charge Notices. The car park is a commercially viable and busy Pay & Display car park where revenue is gained as people pay to park for an agreed period of time.
The issue of illegality was not an issue in Beavis, as it is in this case.!

The Claimant has provided a copy of their Parking Contract, and the party named as the proprietor in the Parking Contract (Total CarPark Solutions), is claimed has the right to grant the rights in the Parking Contract. However, the contract is incomplete as Clause 8 refers to terms and conditions overleaf. These have not been provided.
The contract signed in 2015 was valid for 1 year and although contracts may thereafter run month to month, the Claimant has not provided any proof that this is the case.!

21. I assert that the Claimant has no Locus Standi to bring this claim because:

The party Total CarPark Solutions in the Parking Contract, is claimed has the right to grant the rights in the Parking Contract. Total CarPark Solutions is not the landowner or another entity authorised by the landowner. Total CarPark Solutions, or similar name, is not even a recognised company according to Companies House. No proof of a formal agreement between the landowner and Total CarPark Solutions has been provided by the Claimant and therefore the Claimant has failed to establish an express conferral of rights has taken place pursuant to Section 1(1)(a) and 1(3) of the Contracts (Rights of Third Parties) Act 1999 which require terms to identify the Claimant and express terms granting the Claimant the right to enforce the contract; or the right to sue.

22. Part B Paragraph 1.1 of the IPC Code Of Practice specifically provides that the Claimant must have written authorisation of the landowner [see x). Compliance with the Code Of Practice is mandatory. Implicit in this is that Claimant would have no rights under the Parking Contract if they were not granted by the landowner.!

23. The Notice to Keeper is not compliant with POFA 2012 Schedule 4 section $$56? The landowner was not party to the Parking Contract which was entered into by another company which had no rights to the land and no rights to grant to the Claimant in any contract.

23. Strict proof is required that there is an assignment of contractual rights from the landowner to the Claimant. The Claimant has failed to establish an express conferral of rights has taken place pursuant to Section 1(1)(a) and 1(3) of the Contracts (Rights of Third Parties) Act 1999 which require terms to identify the Claimant and express terms granting the Claimant the right to enforce the contract; or the right to sue.

24. The Land is divided into 4 title numbers; 3 Freehold and 1Leasehold; none of which mention the landowner or leaseholder similar to Total CarPark Solutions.
Indeed the landowner according to titles CH178919 and CH506108, and the leaseholder according to title LA139982, is Winwick Partnership which is registered in England and Wales under ref LP009364. There are two general partners; Faraday Management Ltd (registered in the Isle of Man) and Winwick Ltd, (Register 04969819) [p93, p98 and p101].

The landowner according to the final title CH588779 is ZOE Warrington Ltd which is registered in England and Wales under Register 03563382 [p105].

In Ebbw Vale Urban DC v South Wales Traffic Area Licensing Authority [1951] 1 All ER 806 (as set out in Air-Care Ltd v Blais and Les Immeubles Pro-Car Limitee et al) in which it was held that each entity in a group of companies (and their rights and obligations) is separate and distinct, and for one connected business entity to pass rights onto another, those rights must be granted by way of a formal agreement. If there is no formal agreement, the rights/obligations of one entity cannot become the rights/obligations of another entity, even if it is connected/part of the same group of companies/under common ownership.


25. In their witness statement, the Claimant relies on the Court of Appeal case of Vehicle Control Services v Her Majesty's Revenue & Customs [2013] EWCA Civ 186 as establishing a precedent that the present Claimant can bring proceedings in its own name and [Statement of Claimant para XX XX].

I assert that the facts of VCS v HMRC are substantially different from the present case, and that therefore the case can be distinguished from the present case for the following reasons:

i. The VCS v HMRC case was primarily concerned with VAT liabilities, and the question of whether VCS's charges should be considered a charge for a service, and therefore subject to VAT.
It was held that they were damages for breach of contract, and therefore not subject to VAT. However, the terms under which motorists were deemed to have entered into a contract with!VCS!were materially different from the present case. In VCS v HMRC, the landholder appointed VCS to operate a permit scheme, whereby those persons authorised to park received a permit, together with a letter from VCS outlining its conditions of use.

ii. It was held, at para. 27, that " ... in my judgement the significance of that is that in effect VCS promised to contract with persons nominated by the landowner. It does not make the contracts. contracts entered into as agent for the landowner. No landowner's name appears on the permit or the terms and conditions. By clause 4.3 of the contract between VCS and the landowner, the landowner agreed to ensure that all authorised vehicles displayed a VCS permit. The effect of that clause was that the landowner gave up the right to grant direct authorisation to anyone to park in the car park. The right to park could only be conferred by means of a contract between VCS and the motorist. If there was any agency it was an agency for an undisclosed principal. In the case of an agent acting for an undisclosed principal, the agent can sue and be sued on the contract. "

iii. It is clear from this that VCS were not acting as an agent for the principal, they were contracting in their own right, for an undisclosed principal. In the present case, the Claimant does hold himself to be an agent of the principal, whose identity is disclosed in both the Claimant's signs and the witness statement purportedly signed by the landholder's representative.

b. Also, in VCS v HMRC it was held that any fines were for 'damages' or 'trespass' neither of which are able to be recovered by a parking firm not in possession. Only a landowner can pursue a driver for damages or under tort (trespass).

I believe that the facts stated in this statement is true

claxtome

The way I read it was that as Total CarPark Solutions doesn't have a legal personality because they don't appear to actually exist as a company - not registered at Companys House, no internet presence, however, Claxtome's skeleton argument mentioned that ESPEL didn't have a legal personality and that's what confused me.

I got a lot of help, as you know, with my skeleton argument from Loadsofchildren123 a legally trained solicitor.
My understanding of why ESPEL doesn't have a legal personality is that as the parking contract wasn't legal due to 'Total CarPark Solutions' not having a legal personality ESPEL couldn't legally manage parking there as they did not have the landowners permission.
Could be wrong though....

Btw I liked your witness statement, which although long, and longer than mine, it covered points I would have included in mine but didn't discover until after sending in my WS.

How long off is it before the court day?

meagainin

I was worried about the length tbh but was scared of missing something out, however, my witness statement would have been nothing if I hadn't had your's to use as a template Claxtome.

Court date is at the end of July, will be sorting out my skeleton argument over the next couple of days and handing it in on Monday.

Just rereading the witness statements provided in mine and Claxtome's cases and have noticed that the witness (same person) has given a conflicting answer in each witness statement about the same issue (flimsiness of the ticket). I'm wondering whether this is something I can use as it's my understanding the witness statement should be the truth?
Not sure how they can say it's not an issue in their witness statement for Calxtome's case but it is in mine?
Or does it not matter?

In Claxtome's witness statement they say 'The fact that there is no adhesive on the reverse side of the ticket is irrelevant and does not impede on the Defendant's ability to display their ticket accordingly. Had this have been such an issue, my Company would have issued far more parking charges for this reason, which has not been the case' (Paragraph 11 on Claxtome's witness statement).

But in the witness statement I've received, the same person stated 'It is an integral part of the parking scheme that a valid ticket is displayed as otherwise, the scheme would be unmanageable. If my company were to waive one charge on the basis put forward in the Defence, it would open the floodgates to the waiver of many more charges making the parking management process put in place entirely redundant (Paragraph 10)

Castle

meagainin wrote: »

If my company were to waive one charge on the basis put forward in the Defence, it would open the floodgates to the waiver of many more charges making the parking management process put in place entirely redundant (Paragraph 10)

So they admit it's a common problem if they are worried about "floodgates" being opened.

Umkomaas

Castle wrote: »

So they admit it's a common problem if they are worried about "floodgates" being opened.

Hardly doing a good job in 'managing' that car park. Still, what can you expect with owd Trev involved?