COURT DATE SET - Two PCM Tickets whilst parked outside my house

ndon2017

Continuing from another thread.. https://forums.moneysavingexpert.com/discussion/5989378/court-date-set-with-gladstones-and-just-received-the-claimants-witness-statement-statement.

Ok great, I will have a read this evening. I will submit my WS on Monday, I am just waiting to hear back from a friend that won a case against PCM 2 years ago. He is writing a statement for me to include in my WS. I will then submit my skeleton a few days before my hearing.

Coupon-mad

That's good. Have you had their WS yet? Tear it apart in your WS, if so!

Please show us your planed WS and the evidence you are filing with it.

ndon2017

1. I, **** am the Defendant in this matter and litigant in person:

2. The facts and matters set out in this statement are from my own personal knowledge. Where I refer to information supplied by others, they are true to the best of my information and belief.

3. References below are in reference to the following exhibits;

i. The Tenancy Agreement signed by residents
ii. The Permit letter provided to the residents.
iii. Image of the Permit as proof of existence.
iv. Image illustrating illegibility of signage at time of alleged offence.
v. Image illustrating lack of visibility from parking space.
vi. Email from the letting agent of the property / majority in the area received by housemates partner who also received a PCN parking outside the property.
vii. The site map provided by the claimant.
viii. Witness Statement from resident partner who was taken to court ****
ix. Witness Statement from resident ***
x. Olley v Marlborough Court Ltd [1949] 1 KB 532 (CA)
xi. The Consumer Contracts Regulations 2013
xii. ‘Parking Prankster’ Case summary of ‘B4GF26K6 PCM (UK) v Mr B, B4GF27K3 PCM (UK) v Mr W & B4GF26K2 PCM (UK) v Ms L’

4. 20/02/2017: I had returned to my house having been food shopping. The vehicle was parked in front of the house door (exhibit v.). After 20 minutes I returned to my car to find a PCN attached to the window.

a) I had a permitted right to park (exhibit ii. & iii.) under the alleged scheme, however as there are only 2 permits between a house of 5 + their partners, often permits are shared meaning that it is frequently hard to track one down, see the difficulty caused by the claimant’s scheme and disruption to living in an email I received from the property agency when asking for comment on this case (exhibit vi.).

b) This (exhibit vi.) clearly shows the claimant has no interest in cooperating with the majority student population to maintain peace, the permit scheme, and then keeping agents under threat/pressure that they would withhold permits to the student customers.

c) The claimants site map (exhibit vii.) will convey the level of difficulty introduced in transporting a week’s worth of food items from a ‘permitted’ location (of which there is rarely any free space) to my property (green drawn path) the area is also prolific with crime, it’s not always safe to have to walk these distances, potentially alone, at night.

d) This restriction on legitimate residents in a well-known high rental population area creates issue, there are often 4-5 cars per household, which are then granted 2 permits, this then causes issues alluded to in exhibit vi & viii & ix. It’s a free for all for private spaces as the claimant doesn’t police them, which has led to significant civil unrest and outbreaks of aggression in the community.

5. After studying the tenancy agreement, which should give primacy of contract (exhibit i.) for mention of this scheme, I can confirm there is none. This scheme is annually retrospectively bolted on to these properties with a letter (exhibit ii.) which doesn’t request a signature, and has no record as to which tenant removed the permit from the letter allegedly ‘accepting’ this ‘agreement’, it is not sufficient as a contract and is not even an agreement all tenants and their guests should be bound under legally.

a) Should the claimant wish to argue the signage is the point at which a contract is formed, as I believe they have insisted in their claim (as it has not been formed through the tenancy agreement or permit letter yet), then contrary to their witnesses statement that “The precise terminology used on the signs is not necessarily of importance and it should be interpreted in such a way that gives efficacy to the agreement.”, I would argue that language on the sign serving as ‘the contract’ is of importance, and shouldn’t require interpretation of and agreement that has never been formed. An attempt by claimant’s scheme to confuse those who lack legal education.

6. The claimant’s pursuit of this ‘breach of contract’ continued over the following months, several copy-paste attempts to extract money from me arrived in the post, until eventually they filed a claim.

a) This process was fully automated, there was no tailoring for the situation, and as anyone can find online, there are literally thousands of these same letters sent to victims with no concern to the unique circumstance.

b) This is evidenced by the fact that 2 more charges have been issued against the residence I was parked outside, both to guests,. All the same letters, same wording, same lack of regard to attempts to explain the situation. One guest was taken to court in which he won, the other guest had their claim dropped. (exhibit viii.).

The Claimant Defence & Witness Statement
7. I would like to point to the court that the Claimant’s Defence and alleged ‘Witness Statement’ are both template, which are widely shared on the internet by other victims in their claim defence with minimal tailoring, further demonstrating the robo-claims process at each stage of this claim.

The Permit Letter

8. The letter that came with the permit (exhibit ii.) was innocuous and failed to alert residents to any 'contract' which was never explained or identified as a contract, nor that by not rejecting the permits, they and their legitimate visitors would be bound by a penalty not specified in the letter.

a) Residents and their authorised visitors cannot be deemed to be fairly bound by the onerous and unexpected repercussions of a 'scheme' by simply not rejecting the permits foisted upon them in unsolicited, unsigned-for mail which was simply not capable of unilaterally varying their rights under their tenancy agreement.

b) The letter did not state that binding terms on a sign were incorporated into the permit scheme, nor did it mention loading/unloading which is a normal part of daily life in a site of shared residences. Nor were parking charges/permits mentioned in the tenancy agreement.

c) It is trite law that a term of a contract is only incorporated if parties are aware of it before the contract is formed, otherwise the terms come too late. The authority for this is Olley v Marlborough Court Ltd [1949] 1 KB 532 (CA) (exhibit x.).

d) The letter did not say that residents had any choice to 'opt in' or 'opt out' and what the repercussions might be of either action. This smacks of the type of 'automatic rollover' annual contract disallowed in consumer contracts. It has been identified that such a contract is likely to be most harmful where there are additional problems associated with it, for example where the commercial intent for it, and/or the financial risk, is not disclosed to consumers at the outset.

e) The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (exhibit xi.) apply to contracts made both on and away from business premises, as well as contracts such as this one, made 'at a distance' for example by mail. The Regulations require detailed information to be supplied, which the 'permit letter' letter failed to include. It also holds that: Consumers should always be asked to expressly consent to additional charges. Consumers will not be liable for any additional payments that they have not actively consented to and they have the right to request that they are refunded for these payments.

f) The guidance on the European Law Directive 2011/83/EU, which resulted in the CCR Regulations states: 'For example, renting a parking space...is subject to the Directive.' There is no exemption for a private parking firm/parking spaces, and traders dealing with consumers and 'offering contracts' cannot exempt themselves from Consumer law.

g) Only two permits were provided and were shared as best the students could, on the basis of need as a car arrived, but purely with the expectation that they were complying with a mere request to assist the landlord, to show they were not trespassers. We had no idea we might be bound by unknown and onerous terms, which cannot in any event, disregard the normal rights of way enjoyed under a tenancy or lease.

h) The information provided with the permits, coupled with the sparse signage small print, failed to meet Lord Denning's well-known 'red hand rule' as held in Spurling v Bradshaw [1956] 1 WLR 461, “I quite agree that the more unreasonable a clause is, the greater the notice which must be given of it. Some clauses which I have seen would need to be printed in red ink on the face of the document with a red hand pointing to it before the notice could be held to be sufficient". Neither the unsolicited letter attaching the permits, nor the signs, drew any terms fairly or transparently to the attention of residents or their visitors who had no idea there was a 'contract' let alone agreed to it.





Particulars of The Claim
9. There is no evidence that the Claimant wanted to include more detailed particulars of claim and was unable to do so by the constraints of the system. The character limitation should not be deployed as a basis for failure to plead his case properly. In any event the MCOL system guidance specifically states:

“If you do not have enough space to explain your claim online and you need to serve extra, more detailed particulars on the defendant, please tick the box that appears after the statement ‘you may also send detailed particulars direct to the defendant’”

a) Until re-pleaded with the signage, the Claimant failed to set out clearly the precise terms of the contract breached or, for example, the hours of operation of the contract. If the pre-action correspondence has not set out the full terms of the wording of any signage and nor does the Particulars, it is unclear what, if any, contractual term have been breached. Merely setting out the registration of your car, the date and a fee sought, is nothing more than a request for payment, not detail of why the debt is said to be owed – it is not for nothing that the document is described as ‘Particulars’. This is in the context of a professional claimant.

The Charge
10. If £50 is automatically levied as a result of a failure to pay within 28 days, that would appear not to have any basis in actual costs incurred, but to be a penalty that is not referred to on any signage and which is, by common consent, a sum which takes the total sum sought in excess of industry recommended maximum. Indeed, the signage refers to additional (unspecified) charges MAY be charged, not MUST or WILL. I did not agree to them.

a) Parking Eye v Beavis is not authority that £85 is reasonable, but that it was an appropriate penalty within a commercial scheme, which fulfilled a legitimate business interest (to increase circulation of free spaces on a trading estate). A sum in an amount equal to or excess of £85 may be an unconscionable penalty in a different context such as this one, where the aim of the scheme is discourage unlawful visitors and not penalise or restrict the lawful user of the property.

Contractual Entitlement
11. It is not for the Defendant to prove that the Claimant is not permitted to issue tickets. The Claimant must prove his case. If the Claimant fails to make out his case, the presumption is that the charge shall not apply. The Defendant does not need to prove pre-action that he has a tenancy agreement, although such will be made available to the Court. Conversely, the Claimant does need to prove that he is entitled to ticket before he can reasonably expect a Defendant to pay.

a) The Claimant has not pleaded nor previously advanced any argument based on conduct accepting a permit scheme to which the Defendant was never a signatory. The Defendant avers that the Claimant should be debarred from pursuing this argument at this late stage in the proceedings.

b) The Defendant does not contend that there was no signage. The Defendant will rely upon Jopson v Homeguard in support of the contention that temporary loading and unloading by his front door is legitimate use of his residence. The Defendant may well have repositioned his vehicle and displayed a permit once he had unloaded heavy supermarket shopping and had he been afforded opportunity to do so.

c) It is noted that the Claimant does not contend that the Defendant was not a lawful user or that the Defendant's household was not in possession of a permit to display. It is therefore unlikely to be disputed that the intention of the scheme (namely to prevent third party motorists obstructing the land and use by lawful residents) is not met by enforcement against the Defendant.


Signage
12. The signage is determinative of the contract between driver and parking company, if one is held to exist. Alder v Moore is an authority which, by and large, has been superseded by the Supreme Court judgment in Parking Eye v Beavis on penalty charges. Even were that not to be the case, it is averred that the Alder matter can be distinguished, relating as it did to a commercial policy of insurance where to allow the Defendant to receive his insurance payment and pay no liquidated damages would have resulted in unjust enrichment.

a) The Claimant has failed to demonstrate in his witness evidence how his company derives any entitlement to grant licenses over the land which exclude the lawful user. Any permitted parking management contract cannot extend to the granting of licences to third parties to use the land as this would operate to the exclusion of the lease, which expressly excludes subletting of any kind. Since the Claimant’s parking scheme is said to operate on this basis alone, it is averred that there is no parking scheme that can be offered.

b) To the extent that the Claimant avers that he is entitled to damages in any event (i.e. the “Buckingham Palace example”, notwithstanding that there is no parking facility that can have been provided, the Defendant respectfully requests that the Court record as much in their Judgment, such that a claim may be brought against ‘PCM Ltd’ for breach of contract and unreasonable conduct in pursuing damages in connection with a contract for which no services have been provided.

c) The Signage does not relate to nor set out any terms about loading/unloading restrictions, and as such, it is reasonable to conclude that there are no restrictions on reasonable, temporary loading/unloading activity at this multi-occupant accommodation.




Costs

13. The wrapping up of additional charges with the claim by the Claimant appears to be an attempt to recover legal professional costs which are not permitted or recoverable on the small claims track. To the extent that the costs are based otherwise the Claimant has provided no evidence as to how these costs are derived and no schedule in support of the same. The Defendant avers that they should be disallowed.

I believe that the facts stated in this Witness Statement are true.

I also have some exhibits attached such as:
- Permit letter we receive at start of tenancy which is not a contract or anything we have to sign.
- Image of Permit
- Picture of sign at night
- Sign from my car which clearly shows I'm parked outside front door
- Letting agent email which highlights the issues parking in the area, the fact that only 2 permits are given per house when we have 5 tenants and the issues of non residence parking in private spots.
- A couple of witness statements, one from housemate and another from their partner who went to court and won for the same "offence".
- Parking Prankster Case Summary "PCM-UK signage does not create a contract"

Fruitcake

You have a few occasions where "I" should be replaced with "The Defendant."

ndon2017

Ok so I should do it all in third person? I’m going to post it tomorrow to Gladstones and the court.

Umkomaas

ndon2017 wrote: »

Ok so I should do it all in third person? I’m going to post it tomorrow to Gladstones and the court.

We recommend emailing to the claimant’s solicitor and delivery by hand to the court - in a ring binder, neatly paginated and cross referenced to evidence contained within a section of the binder.

I realise tomorrow is a bank holiday, can you deliver Tuesday? What’s your absolute deadline for delivery?

ndon2017

I’ve missed the deadline, which was 2 weeks before May 1st but I have been out of the country recently and for some reason thought I had time when I was back. Will the judge even look at it now it’s late?

Umkomaas

ndon2017 wrote: »

I’ve missed the deadline, which was 2 weeks before May 1st but I have been out of the country recently and for some reason thought I had time when I was back. Will the judge even look at it now it’s late?

Who knows, Judges are a law unto themselves. The claimant may also object to the fact you missed the deadline, which could influence a Judge’s view.

You will only find out when you submit everything.

ndon2017

Ok I will put it all into a folder and send to them, should I make a folder for myself too to take on the day?

Should I also put in the folder I take on Tuesday my skeleton argument?

Coupon-mad

In fact it is a Witness statement so change 'the Defendant' to ''I'' throughout.

Here, do not admit to a full 20 minutes to unload shopping! 20 mins is quite a while... Do not quantify it and if asked in court, say it was as long as reasonably needed to unload a large food shop into premises, collect the permit that was shared between cars, then come back out to park and leave the car with the permit in place:

4. 20/02/2017: I had returned to my house having been food shopping. The vehicle was parked in front of the house door (exhibit v.). [STRIKE]After 20 minutes[/STRIKE] I returned to my car to find a PCN attached to the window.

And don't say that there is no primacy of contract! As a tenant you have implied rights even if they are not stipulated and your argument is that you DO have primacy of contract, not that ''there is none'' which this sentence says (maybe not what you intended it to say):

5. After studying the tenancy agreement, which should give primacy of contract (exhibit i.) for mention of this scheme, I can confirm there is none.

And this is confusingly written and I would remove it entirely:

a) Should the claimant wish to argue the signage is the point at which a contract is formed, as I believe they have insisted in their claim (as it has not been formed through the tenancy agreement or permit letter yet), then contrary to their witnesses statement that “The precise terminology used on the signs is not necessarily of importance and it should be interpreted in such a way that gives efficacy to the agreement.”, I would argue that language on the sign serving as ‘the contract’ is of importance, and shouldn’t require interpretation of and agreement that has never been formed. An attempt by claimant’s scheme to confuse those who lack legal education.

As your argument is about loading shopping, how did you miss JOPSON V HOMEGUARD which has far more application than other cases and was an appeal case decided by a Senior Circuit Judge ON APPEAL, so it is persuasive at County Court level and is exactly like your case!

You do not need to print out or include as evidence the Consumer Contracts Regulations 2013 as it's statute law and IMHO adds little to your case.

You can't file this on Monday, it being a Bank Holiday.

should I make a folder for myself too to take on the day?

Of course, and also print out for your file, proof of emailing a copy of all evidence to the Claimant's solicitors, to take with you, in case they lie (as PPC reps have done several times) that your WS and evidence was never served.

You can go ''oh yes it was!''.