Gladstones LBC for 10-min private residential stay

petallica

Fruitcake wrote: »

If no NTD/windscreen PCN, then the NTK must reach the keeper's address (the one registered with the DVLA) by day 14, day zero being the date of the alleged event.
If it didn't, then there can be no keeper liability as it fails the very strict requirements of the POFA 2012.

What is the date of the NTK, and do you still have the envelope? This of course is irrelevant if the scammers know the identity of the driver.

No NTD as car left premises before it could be left on windscreen, and NTK was dated 33 days after date of the incident (don't think I've got the envelope any more).

Unfortunately, appealed to the PPC as the driver, before reading up on this forum, so NTD was then sent about a month later. Still, doesn't this mean they breached POFA procedure before accidentally revealing driver identity?

Coupon-mad

Doesn't matter, you threw that baby out with the bathwater, so to speak, POFA is not something you can use now. Ouch:

appealed to the PPC as the driver,

petallica

The_Deep wrote: »

Read up on mitigation of loss here

https://www.google.co.uk/search?source=hp&ei=-HY2W_6nF4fikgWq34-gDg&q=mitigation+of+loss+parking+&oq=mitigation+of+loss+parking+&gs_l=psy-ab.3...1776.15827.0.17350.28.22.0.5.5.0.691.3433.0j17j2j5-1.20.0..2..0...1c.1.64.psy-ab..3.23.3486.0..0j0i131k1j0i22i30k1j33i22i29i30k1j33i160k1j33i21k1.0.6CZSXAP3bSU

and add a piece to your defence.

I've had a look at the above, but I'm not sure I've quite got the gist and couldn't find many relevant examples of parking cases, but I've had a go at including a piece about the verbal exchange and mitigation of losses below - would be very grateful for some feedback on this:

Duty to take into account mitigation of losses

8. The Defendant enquired with the same operative immediately upon witnessing his presence, who explained that a visitor parking permit was required to park in the bay marked VISITOR, after which the Defendant checked with the tenant being visited, who was not aware of the need for visitor parking permits nor where or how to obtain one, and so the Defendant told the operative that the vehicle would be moved immediately.

a) The Defendant asked the operative to confirm that there would be no charge issued, and the Defendant believes that the operative confirmed this. It is therefore deemed by the Defendant to be a breach of a verbal agreement that the parking charge was issued.

b) Additionally, this shows a lack of responsibility by the operative to take into account mitigation of any purported losses, whether to the Claimant or the client of the Claimant, which was enacted by the Defendant immediately vacating the premises in the presence of the operative.

Coupon-mad

I suggest a few changes, but not sure why you have this as #8... What happened to your old #8?:

Alternative verbal agreement made with the Claimant's employee - and failure of the duty to mitigate [STRIKE]take into account mitigation of losses[/STRIKE]

8. The Defendant [STRIKE]enquired with the same operative immediately upon witnessing his presence,[/STRIKE] spoke to the Claimant's employee lurking around the cars, who [STRIKE]explained[/STRIKE] declared for the first time that a visitor parking permit was required to park in the bay marked merely with the single word legend: 'VISITOR'.

8.1. This was news to the Defendant and to the tenant being visited, who was not aware of any requirement for visitor parking permits, or where or how to obtain one.

8.2. The Defendant told the employee that the vehicle would be moved and asked him to confirm that there would be no charge issued, and the operative confirmed this. Thus, a verbal explicit agreement was reached that the car would be moved and that no parking charge notice ('PCN') be issued and these were the agreed terms, on the material date.

8.3. No PCN was served on the car nor handed to the Defendant.

8.4. No terms on signage came into play and the Defendant's attention was never drawn to any signs, which it is believed were hidden/sparse in any case. The employee expressly agreed the car could be 'moved on' at that time, without charge, which is the sort of reasonable conduct that the Defendant would have expected from any genuine employee engaged in 'parking management'. Indeed this is how Council CEOs work on street, only ticketing if a car is left in contravention, and not pursuing any case where a PCN was not served and the driver quickly moved on.

8.5. The Claimant then issued a misleading Notice to Keeper over a month later, which wrongly stated that the driver had failed to pay a PCN. The Claimant will have no evidence of any PCN placed on the windscreen, because there was no PCN served at all.

8.6. The Claimant has ignored the verbal contract and the fact the car was moved immediately, and thus has failed in its duty to mitigate. If it can be demonstrably shown that a claimant has failed to take steps to mitigate its loss - including in breach of contract cases - or has given the impression that it has left the situation to deteriorate with the intention of recovering additional monies from the Defendant, then any damages awarded to it will be reflective of its failure to mitigate.

8.7. Since there was a failure to mitigate, with not even nominal loss or damage caused and any 'trespass' can only be a matter for the landowner to pursue anyway, not a third party parking firm (ParkingEye Ltd v Beavis being the authority for this assertion) there is no cause of action giving rise to any claim in law.

petallica

Thanks very much Coupon-mad - I'll put your edits in and amend my draft defence, which I intend to hopefully submit tomorrow.

Coupon-mad

Can you show the latest draft here, as it seems from the numbering to be a lot different.

petallica

Hi C-M, here's my latest update to the draft defence - I've made the numbering more consistent with your edits, and renumbered from #9 where I previously had #8. Thanks


In the County Court Business Centre
Claim Number: xxxxxxxxx

Between

P&PMLtd v xxxx

DEFENCE

I am xxxx, the Defendant in this matter and the driver of vehicle xxxx at the time of the parking event at xxxxxxxxxxxx on xxxxxxxxx 2017.

I deny I am liable for the entirety of the claim on the following grounds:

Non-compliance with Pre-action Protocol for Debt Claims

1. The Claimant has not complied with pre-court protocol (as outlined in the new Pre Action Protocol for Debt Claims, 1 October 2017) 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 contract will naturally be a key element in this matter, and a copy of the alleged contract has never been provided to the Defendant.

2. There was no compliant Letter Before County Court Claim under the Pre-action Protocol. As Gladstones are a firm of solicitors whose Directors also run the International Parking Community (IPC) Trade Body and deal with private parking issues every single day of the week there can be no excuse for the omissions, including the following, that were required under the PAP:

2.1 A clear summary of facts on which the claim is based.

2.2 A list of the relevant documents on which their client intends to rely.

2.3 How the charge amount of £160, increased from the original charge of £100, was calculated and justified.

2.4 Any form of possible negotiation or alternative dispute resolution offered.

3. The Claimants solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking for a true cause of action. HMCTS have identified over 1000 similar poorly produced claims. The Defendant believes the term for this 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 facts or evidence supplied until the last possible minute, to my significant detriment as an unrepresented Defendant.

4. The Claim Form Particulars were extremely sparse and divulged no cause of action nor sufficient detail. The Defendant is uncertain exactly what the claim is about, why and how the charge arose, what the alleged contract was; nothing that could be considered a fair exchange of information. Furthermore, the Claim Form Particulars did not contain any evidence of contravention. These documents, and the Letter Before County Court Claim should have been produced, pursuant to paragraph 6 of the Practice Direction Pre Action Conduct. This constitutes a deliberate attempt to thwart any efforts to defend the claim or to take stock pursuant to paragraph 12 of the Practice Direction. Again, this totally contradicts the guidance outlined in the new Pre-Action Protocol for Debt Claims (2017), the aims of which are:

4.1 Early engagement and communication between the parties, including early exchange of sufficient information about the matter to help clarify whether there are any issues in dispute.

4.2 Enable the parties to resolve the matter without the need to start court proceedings, including agreeing a reasonable repayment plan or considering using an Alternative Dispute Resolution (ADR) procedure.

4.3 Encourage the parties to act in a reasonable and proportionate manner in all dealings with one another (for example, avoiding running up costs which do not bear a reasonable relationship to the sums in issue).

4.4 Support the efficient management of proceedings that cannot be avoided.

5. The Defendant therefore asks the Court to strike out the claim as disclosing no cause of action and having no reasonable prospect of success as currently drafted.

Unrecoverable sums

6. The Claimant has added unrecoverable sums to the original parking charge of £100.

6.1 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 representatives costs were incurred. The Defendant believes that the Claimant has artificially inflated this claim. They are claiming legal costs when not only is this not permitted (CPR 27.14) but the Defendant believes that they have not incurred legal costs.

6.2 According to Ladak v DRC Locums UKEAT/0488/13/LA the Claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration cost. The Defendant denies that the Claimant is entitled to any interest whatsoever.

6.3 The Claimant has not explained in sufficient details how the claim has increased from the original parking notice of £100 to £241.88. If the Claimant alleges that they claim the cost of its in-house administration, these cannot be recovered - they are staff performing the task that they have been employed for and essential to the Claimant's business plan.

Grace Period

7. The International Parking Community (IPC) Code of Practice (CoP) includes a statement about grace periods:

7.1 15. Grace Periods
15.1 Drivers should be allowed a sufficient amount of time to park and read any signs so they may make an informed decision as to whether or not to remain on the site.

7.2 The Claimant has previously made available timestamped photographs from an operative believed to be an employee of the Claimant. These photographs show a full duration of stay at the site of 10 minutes from the time shown on the first photograph to the time shown on the last photograph, which was taken as the car is shown to be driving off the site premises.

7.3 The Defendant asserts that 10 minutes is within a reasonable time frame that could constitute a grace period, and therefore that the parking charge should never have been issued in the first place by the Claimant.

Alternative verbal agreement made with the Claimant's employee - and failure of the duty to mitigate

8. The Defendant spoke to the Claimant's employee lurking around the cars, who declared for the first time that a visitor parking permit was required to park in the bay marked merely with the single word legend: VISITOR.

8.1. This was news to the Defendant and to the tenant being visited, who was not aware of any requirement for visitor parking permits, or where or how to obtain one.

8.2. The Defendant told the employee that the vehicle would be moved and asked him to confirm that there would be no charge issued, and the operative confirmed this. Thus, a verbal explicit agreement was reached that the car would be moved and that no parking charge notice (PCN) be issued and these were the agreed terms, on the material date.

8.3. No PCN was served on the car nor handed to the Defendant.

8.4. No terms on signage came into play and the Defendant's attention was never drawn to any signs, which it is believed were hidden/sparse in any case. The employee expressly agreed the car could be 'moved on' at that time, without charge, which is the sort of reasonable conduct that the Defendant would have expected from any genuine employee engaged in 'parking management'. Indeed this is how Council CEOs work on street, only ticketing if a car is left in contravention, and not pursuing any case where a PCN was not served and the driver quickly moved on.

8.5. The Claimant then issued a misleading Notice to Keeper over a month later, which wrongly stated that the driver had failed to pay a PCN. The Claimant will have no evidence of any PCN placed on the windscreen, because there was no PCN served at all.

8.6. The Claimant has ignored the verbal contract and the fact the car was moved immediately, and thus has failed in its duty to mitigate. If it can be demonstrably shown that a claimant has failed to take steps to mitigate its loss - including in breach of contract cases - or has given the impression that it has left the situation to deteriorate with the intention of recovering additional monies from the Defendant, then any damages awarded to it will be reflective of its failure to mitigate.

8.7. Since there was a failure to mitigate, with not even nominal loss or damage caused and any 'trespass' can only be a matter for the landowner to pursue anyway, not a third party parking firm (ParkingEye Ltd v Beavis being the authority for this assertion) there is no cause of action giving rise to any claim in law.

Failure to set out clear parking terms

9. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. The charge was judged necessary to avoid overstaying. None of this applies in this case. The charge is an unenforceable penalty based upon a lack of commercial justification.

10. The Defendant avers that the parking signage in was inadequate, due to the following:

10.1 No signage clearly visible when driving onto the site, or when parking in a visitor's bay at the parking site, which is a breach of the IPC Code of Practice (CoP) Schedule 1 (4).

10.2 Illegible signage (parking charge not prominent nor in large lettering) - breach of the IPC CoP and no contract formed to pay any clearly stated sum.

10.3 No signage present around or adjacent to the bay in which the vehicle in the alleged parking event was parked, except for small signs on the parking bays themselves marked 'VISITOR', which could additionally be argued to be misleading and distract a driver's attention from the possibility of viewing other signage displaying parking terms.

Retrospective installation of signage near visitor bays following parking event

11. The timestamped photographs previously made available by the Claimant clearly show a lack of signage around the marked visitor bays of the site. The Defendant avers that approximately 2 months after the parking event, a new sign had been installed by the visitor bays that was not present at the time of the parking event, as shown by a photograph taken by the Defendant, which adds further weight to the argument that the signage was inadequate at the time of the parking event, not least in their distribution around the site.

Primacy of contract

12. The Defendant believes that the tenancy agreement held by the tenant being visited at the time of the parking event does not place restrictions on visitors to tenants of the property parking at the site, which would imply primacy of contract of the tenancy agreement (over purported contractual terms written on the Claimant's signage) that would allow an unfettered right for genuine visitors of tenants to use the visitor bays without charge.

No standing

13. No standing; this distinguishes this case from the Beavis case:
It is believed the Claimant does not, nor did at the time of the parking event, hold a legitimate contract at the car park in question. As an agent, the Claimant has no legal right to bring such a claim in their name that should be in the name of the landowner.

14. The Defendant avers that the residential site that is the subject of these proceedings is not a site where there is a commercial value to be protected. The Claimant has not suffered loss or pecuniary disadvantage. The penalty charge is, accordingly, unconscionable in this context.

15. In light of the foregoing, it is submitted that the Claimant has no cause of action, and has no evidence that the Defendant was in breach of any contractual terms, whether expressly, by conduct, or at all.

STATEMENT OF TRUTH

I confirm that the contents of this Defence are true to the best of my knowledge and recollection.

Coupon-mad

Looks to have covered the bases. Email a signed/dated and scanned PDF copy to the CCBCAQ justice email shown on various threads already.

No photos or evidence gets sent with it, even though you have referred to a photo of the new signs they will come later with your WS, in the month before the hearing.

petallica

Thanks C-M and others for all your valuable help - I'll do exactly that shortly.


If it goes to a hearing, how much flexibility do the courts offer wrt a date? For instance, if you have holiday booked, they won't expect you to cancel or move it, etc?

[Deleted User]

You need to complete an allocation questionnaire as the next step.

Your dates to avoid can be set out therein. The court will always try and fit you in and in preference to the claimant which is a commercial entity with representation.

I always flag dates where the individual is abroad for good measure. At this stage and time of year you are unlikely to be listed in August.