PCN to keeper questions

Lauybob

So email to gladstones, the same email as when I emailed the DQ etc?


And by walk into the court, you mean take it there by hand rather than sending it by post?


With regards to the lease, do I have to submit the whole lease, or just the revelant pages?


Lastly, any pointers or tips on my witness statement?



Thanks a lot guys

Lauybob

Hi guys

The date for the WS to be submitted has passed few days ago. I’ve taken one to the court and also emailed one to Gladstone’s.

however I haven’t received anything off them? Does this mean I can add this to my skeleton argument about them not sending the evidence to me on time?

Thanks

KeithP

You could ring the Court and ask them if they have received the Claimant's Witness Statement.

nosferatu1001

Yep, and if they also havent received a copy, you ask that this fact be recorded. You ask that the Judge does not allow the claimant any relieff from sanction for breach of the order of X date.

Lauybob

I've just rung them and they said they have not received any paperwork as of yet and will make a note to say that I have rung to chase it up and that the claimant has breached the order date for the statemtents/evidence to be sent in by



They did say however that the court hearing fee has been paid today. Has this any bearing on anything?


Is there anything else I need to do at this stage?


Thanks

nosferatu1001

Well, if it hadnt been paid it woudl have been struck out

Work out your skeleton argument.

Lauybob

Coupon-mad wrote: »

Looks good to me.

I would send only the small bit that suits you.

If they reply & ask for the rest, tell them their client must surely have already considered the leaseholders' rights and seen the Head Lease as part of their due diligence before rocking up and starting 'pseudo-enforcement'...like the suggested reply here!

https://forums.moneysavingexpert.com/showthread.php?p=74251374#post74251374


Search the forum for Gladstones email and you will find it posted on this forum.

I’ve received an email for GS asking for copy of the lease because they need the full copy to consider it as evidence. I’m assuming I just reply very similar to the link posted? Or do I need to send the the full lease due to using it as evidence?

They’ve also still not provided me with any evidence etc. So do I need to ask for it or just leave them to it?
Thanks

KeithP

A similar question was asked, and answered, only yesterday:

forums.moneysavingexpert.com/showthread.php?p=74980472#post74980472

Lauybob

KeithP wrote: »

A similar question was asked, and answered, only yesterday:

forums.moneysavingexpert.com/showthread.php?p=74980472#post74980472

Great thanks Keith.



I was only asking because the cases I've seen (including the one from yesterday) seem to ask for the lease before a court date has been reached whereas in my case, the date for evidence etc to be sent in has gone.

Lauybob

This is a copy of their WS

The Defence

4. The signs are clear and unambiguous. The sign states, "Permit holders only in allocated boys." As can be seen from the photographs exhibited to this statement the Defendant failed to display a valid permit at the time of the incident, therefore the charge was correctly incurred.

5. There are allocated bays on the Relevant Land and every bay is numbered, therefore it is vital that if someone is authorised to park on site they display the permit showing they are in the correct bay. Residents are only permitted to park in their own allocated bay, issues have arisen in the past from residents parking their vehicles in other residents bays.


6. The Claim is issued via the County Court Business Centre which is a procedure specifically provided for in the Civil Procedure Rules. This only allows the Claimant to insert brief details of the Claim. ln any event, I can confirm that the Particulars of Claim contained sufficient information for the Defendant to be aware of what the claim relates to; namely:
The date of the charge;
The vehicle registration number;
The amount outstanding;
That is relates to parking charges; and
That it is debt.


7.I refer to paragraph 5.2A of Practice Direction 7E which states that "the requirement in paragraph 7.3 of Practice Direction 16 for documents to be attached to the particulars of contract claims does not apply to claims storted using an online cloim form" .


8. The documentation exhibited to this Witness Statement evidence a parking charge notice (notlce to driver) was affixed to the vehicle windscreen at the time it was issued.


9. As the charge remained unpaid and as the driver failed to appeal the parking charge notice within the prescribed time, my Company applied to the DVLA, electronically, for the Registered Keeper details and, in turn, were provided with the Defendant's name and address. A Notice to Keeper was subsequently sent to the Defendant in accordance with Schedule 4, paragraph 8 of the Protection of Freedoms Act 2Ot2 ("the Act"). The Notice to Keeper provided the Defendant with an opportunity to nominate a driver, however, no driver nomination was received.


10. As the charge still remained unpaid, my Company instructed Gladstones Solicitors Ltd to seek recovery of the charge. The Defendant failed to nominate who was driving prior to these proceedings being issued (which is required under the paragraph 5(2) of the Act).


11. Notwithstanding the above, the Criminal Case of Elliott v Loake 1983 Crim LR 36 held that the Registered Keeper of a vehicle may be presumed to have been the driver unless they sufficiently rebut this presumption. The Court is therefore invited to conclude it more likely than not that the Registered Keeper (i.e. the Defendant) was the driver.

12. The Protection of Freedoms Act 2012, Sched 4 (para 2) states that; the "keeper" means the person by whom the vehicle is kept at the time the vehicle was parked, which in the case of a registered vehicle is to be presumed, unless the contrary is proved, to be the registered keeper.


13. ln view of the above, if the Court is not able to infer that the Defendant was, in fact, the driver then the Defendant is pursued as the Registered Keeper of the vehicle pursuant to Schedule 4 (a)(1) of the Protection of Freedoms Act 2012 ('the Act') which states:
"The creditor has the right to recover ony unpaid porking charges from the keeper of the vehicle."


14. The Defendant alleges The Protection of Freedoms Act 20L2 has not been complied with and puts my Company to proof with regards to this. Relevant obligation is defined as an obligation ongoing under the terms of the relevant contract or trespass. Relevant contract is defined as a contract between driver and a person authorised by occupier of land to enter a contract with driver. The sign forms the contract between my Company and the driver. My Company is authorised to enter into a contract in view of the landowner agreement that is attached to this statement.


15. Both the Parking Charge Notice and Notice to Keeper complies with paragraphs 7 and 8 of The Protection of Freedoms Act 2012 and sent within correct time scales, and therefore is compliant with the Act.


16. The Defendant alleges he has a right to park on the Land under his tenancy, however he has not provided any evidence to support their alleged right to park. My Company has been instructed to manage the Relevant Land and without concession the Defendant has failed to prove otherwise.


17. Furthermore, exhibited to this witness statement is a copy of the Judgment laid down in the recent County Court decision in the case of Link v Blaney (Claim Number C9GF03Q9) (May 2017). I refer namely to paragraph 22 whereby it was held that the landowner's rights were subject to regulations brought in from time to time and therefore "any tenoncy agreement...must be subject ta it as well." ln light of this, any right the Defendant alleges may have been given to them to park would have always encumbered as the Landlord could not have given a right which was not theirs to give.


18. The signage at the site is clearly visible and the information on the signage informs the driver of the parking conditions at the location. Signage is prominent throughout the parking area. Signage location, size, content and font has been audited and approved by the lnternational Parking Community ("the lPC"). As evidenced by the site plan exhibited to this statement there was sufficient signage on the Relevant Land. lt is the driver's responsibility, to check for signage, check the legality and obtain any authorisation for parking before leaving their vehicle. The signage on site is the contractual document. By parking in the manner in which they did, the charge was properly incurred.


19. Further, as can be seen from the photographs exhibited to this statement the Defendant's vehicle was parked within close proximity to the sign. The sign was displayed on the lamppost directly behind the Defendant's vehicle, therefore he ought to have seen the sign and been aware of the terms.


20. The Defendant denies there was any agreement between him and my Company. However, the contract was formed at the point the Defendant entered the premises. The rules of interpretation require simply that the parties knew of their obligations to one-another. The Defendant was offered to use the Land and thereafter either follow the rules and park for free or
in breach of the rules agree to pay f100. The rules here just so happen to be that to park, they need to be "Permit holders only in allocated baysJ'


21. ln the case of Alder v Moore (1961) The court concluded that one should consider the obligations imposed by the agreement, not the terminology used i.e. the agreement's substance, not form.


22.The principles in this case are the same as in the Parking Eye case, save that in the Parking Eye case, as the particular parking rules were different, the rule breached was that motorists must leave the site within 2 hours, whereas here, as set out above, the rule was"Permit holders only in allacoted boys." ln that case it was accepted as an established principle that a valid contract can be made by an offer in the form of the terms and conditions set out on the sign, and accepted by the driver's actions as prescribed therein.


23. The Court may conclude that the Land is managed as follows; the Claimant grants a contractual license to all; this license allows anyone permission to be on the Land. This is inferred by the nature of the land and the lack of any general prohibition of entry on the signage. ln this regard, the Defendant (as were all the motorists) was offered to comply with the normal conditions (as clear on the sign), or park otherwise than in accordance with the normal conditions and incur a f 1-00 charge. The acceptance was at the point the Defendant decided to park, having read the sign, and his consideration was the promise to pay f100 for the privilege of parking outside the normal conditions. The Claimant's consideration is the provision of parking services.


24. I refer to the Court to Judge Hegarty's comments in ParkingEye v Somerfield (2011) that "lf this is the price payable for the privilege, it does not seem to me that it can be regarded as a penalty, even though it is substantial and obviously intended to discourage motorists from leaving their cars on the car park".


25. Alternatively; it could be concluded that, any person can use the Land provided they do not exceed the licensed activity as set out on the sign and in failing to comply with the license granted to them, they in turn agree to the Claimant's entirely distinct offer from that license which is 'to park otherwise than in accordance with the license for a charge of f 100'.


26. The Defendant also appealed the charge, which was rejected on the grounds that the signage clearly stipulated a permit was required to be on display to use the Relevant Land, and the Defendant failed to adhere to the terms and conditions.
The Current Debt


27. ln view of the Defendant not paying the charge within the 28 days allowed they are in breach of the contract. Breach of contract entitles the innocent party to damages as of right in addition to the parking charge incurred.


28. My Company is an Accredited Operator of the lnternational Parking Community (lPC) who prescribes a maximum charge of f 100. The Code of Practice states:
"Parking charges must not exceed f1-00 unless agreed in advance with the lPC. Where there is a prospect of additional chorges, reference should be made to this where appropriote on the signage and/ or other documentation. Where a parking charge becomes overdue a reasonable sum may be added. This sum must not exceed £60 (inclusive of VAT) unless Court Proceedings have been initiated.”

How do I go about my skeleton argument? just argue each and every point in their witness statement?


Like they've talked about them complying with POFA? Same as my defence? i.e

1. It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.
1.1. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA't )
1.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
1.2.1. there was a relevant obligation; either by way of a breach of contract, trespass or other tort; and
1.2.2. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
It is not admitted that the Claimant has complied with the relevant statutory requirements.

Also with 16- they said I have not provided evidence of my alleged right to park, but I did send them the copy of the lease etc so I'm guessing I can argue that?#


Any help would be great


Thanks