HX Parking "Stopping Charge" Draft Defence

Parkingcompaniesfoad

Ok, I think it's sorted.

1)
Inadequate Particulars of Claim which do not comply with civil procedure rules/ practice directions.
The Claimant has provided no details to disclose a cause of action (in breach of CPR 16.4) to enable a defence and therefore the defendant has no case to answer and respectfully requests the court to strike out the claim.

2)
The Driver of the vehicle needed to stop away from the main forecourt because of a mechanical problem so as not to cause disruption to other motorists. The driver chose the area as a place of refuge for a matter of minutes, to resolve a temporary emergency issue with the vehicle.

3)
Signage which makes no offer therefore cannot form a contract.
The Claimants signage with the largest font at this site states !!!8220;NO STOPPING AT ALL!!!8221;. It is submitted that if these notices are attempting to make a contractual offer, then as they are forbidding they do not fulfil the basic requirement of a contract, which is that each party to the contract must offer valuable consideration to the other party, on clear terms capable of acceptance. In this case neither the Claimant, nor their principal the landowner, is offering anything to motorists. The notices cannot, therefore, reasonably be construed as having created a contractual relationship between the Claimant and the Defendant.

It should be noted that since the date of the Alleged offence the Signage and Markings at the site have been improved. This would indicate an admission by the Claimant that the signage and markings were inadequate and deliberately misleading.
In the alternative, if it was held that the signage was contractually valid, it would be impossible for a motorist to have read the terms and conditions contained therein from a moving or stopped vehicle, and if the vehicle is stopped, according to the Claimant the offence is already committed.

4)
Failure to comply with International Parking Community code of practice.
The IPC code of practice states;
a) That a grace period must be allowed in order that a driver might spot signage, go up to it, read it and then decide whether to accept the terms or not. A reasonable grace period in any car park would be from 5-15 minutes from the period of stopping. This grace period was not observed and therefore the operator is in breach of the industry code of practice. Additionally no contract can be in place by conduct until a reasonable period elapses.
b) !!!8220;14.1 You must not use predatory or misleading tactics to lure drivers into incurring parking charges. Such instances will be viewed as a serious instance of non-compliance and will be dealt with under the sanctions system as defined in schedule 2 to the Code.!!!8221;
In this instance the ticketer hides in a BMW and tickets cars immediately, within minutes, which is just the sort of 'predatory' practice banned by the IPC CoP.
5)
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")
Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that: (i)there was a !!!8216;relevant obligation!!!8217; either by way of a breach of contract, trespass or other tort; and
(ii)that it has followed the required deadlines and mandatory 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

To the extent that the Claimant may seek to allege that any such presumption exists, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.

6)
The Claimant !!!8220;Gladstones solicitors!!!8221; were mentioned in a Parliamentary debate on 02/02/2018 circa 13:06hrs where an MP named and shamed them. And I quote !!!8220;We need to crack down on these rogue companies, they!!!8217;re an absolute disgrace to this country, ordinary motorists, ordinary residents should not have to put up with this and I wholeheartedly support the bill today!!!8221;

Parkingcompaniesfoad

Could anyone confirm this is good to go, need to get it submitted tonight if possible?

Much appreciated

Coupon-mad

We assume you did, & that you signed and dated it with a statement of truth, as you see on this forum?

And that you have now had a DQ from the court and filled that in & returned it to the court and to Gladstones, and that you might soon get your letter telling you the case is allocated to your local court, and then a letter telling you the date by which all parties MUST file their WS and evidence, well before the hearing.

Anyway, on pepipoo I've just seen a copy of a HX Notice to Keeper, which is NON-POFA:

http://forums.pepipoo.com/index.php?showtopic=119328

You can spot why, good research for people going to a hearing against HX, where the driver is not admitted or evidenced. This will be mentioned in your WS, assuming your NTK is the same.

CLUE: the important giveaway paragraph ends with the word 'driver'.

And here's a case where a poster won on that basis, explained the omission well to the Judge:

https://forums.moneysavingexpert.com/discussion/comment/73805827#Comment_73805827

leighlad86

I too have just received a PCN from hx at the same spot. It was on the 3rd of March and the day in question snow was covering any markings. I have never know anything like it at a petrol station. The driver stopped near the jet wash and sinage looked as though it related to McDonald's not the garage. I have appealed on the hx website but I have never had a ticket in 10 years of driving. I guess said appeal will be turned down? Where should I go from there?

Many thanks

KeithP

leighlad86 wrote: »

I too have just received a PCN from hx at the same spot. It was on the 3rd of March and the day in question snow was covering any markings. I have never know anything like it at a petrol station. The driver stopped near the jet wash and sinage looked as though it related to McDonald's not the garage. I have appealed on the hx website but I have never had a ticket in 10 years of driving. I guess said appeal will be turned down? Where should I go from there?

Many thanks

Leighlad86, from here you should go to the NEWBIES FAQ sticky thread and have a read about the game you are caught up in.

If you still have questions after that can you please start a new thread.

Trying to address tow people's issues in one thread can only lead to confusion.

Please no further response on this thread. Thanks.

Coupon-mad

I have never had a ticket in 10 years of driving

You still haven't.

Course it will be turned down, it's an IPC firm! Same as this advice given earlier on pepipoo:

http://forums.pepipoo.com/index.php?showtopic=119271

Follow the links to the Parking Prankster explaining the 'kangaroo court' of IAS/IPC.

You need to go and read the NEWBIES sticky thread.

If you later get a small claim, or a LBCCC from Gladstones, then come back and start your own thread after reading post #2 of the sticky thread.

Not posting here, this is Parkingcompaniesfoad's own thread about his/her case.

Yorksmanfromyorks

So today i get a PCN from HX Car Park Management. so I do my research and find this thread.
Also I drive back over to the shell Garage and photograph the signage ect.

Has nobody mentioned that if you use McDonalds Drive through you have NO choice but to drive over the Shell garage forecourt to exit to the main road? (a one way system) And that when driving into McDonalds there are NO signs. It is all very misleading, There is a McDonalds "Trash bin" on the Shell forecourt exit road, I was under the impression this was McDonalds Land by this. Been the environmentally sound chap I am I stopped to use said bin... Bad idea.

In cases like these Is it not mandatory to place signs at the entrance?? if so should i not just recycle the PCN as bog roll?

Yorksmanfromyorks

Any help stick it to these leaches appreciated. :beer:

Coupon-mad

Start your own thread after reading the NEWBIES sticky thread first. You know where that is, because my signature (below) tells you where to click at the top of the page.

should i not just recycle the PCN as bog roll?

NOT a good idea, seeing as you will need all the letters and info when they sue you later this year, or in 2019. Which is what these scam firms do, and what WE do, is beat them!

Read this thread link, but no posting on it please as it's not your thread either! This shows you how to defend when thy pointlessly sue you, same facts as your case, same place maybe:

https://forums.moneysavingexpert.com/discussion/5893921/parking-in-garage-mcdonalds

No posting here, this is Parkingcompaniesfoad's thread about his/her case.

Read the NEWBIES thread and get clued up from other threads, but don't post on them, start your own new thread on page one of the forum (no asking where the new thread button is please...). You will get advice on your own new thread.

KeithP

Parkingcompaniesfoad, what happened?