PCN - help wanted please

Umkomaas

IS there someone on here I can send the defence to for a look over - prior to submission to the MCL by e-mail

Unlikely. Keep everything on forum, then you get the widest response. Anything offered on the forum as advice that is not correct, potentially mischievous, or dangerous to you will be subject to peer moderation.

Now you've offered yourself up to PM/email exchange, beware anyone offering assistance/advice via that medium who has fewer than around 1,000 posts to their name on here.

Not everyone is who they seem to be.

Fruitcake

As above, post your (redacted) defence here following the guide to court format in post 2 of the NEWBIES written by bargepole.

This thread is the best place to get it checked as you get the input from as many regulars as possible.

duffyscouse

Ok I intend to base my defence around unclear and contradictory information of signage - Which also is dimly lit and at the rear of a car parking in front of the stores - no signs on entry to tell you that you are entering privately owned car parking - you pass the signs quickly and it is not possible to read without walking up to them and shining a torch at them after dark. I was ticketed at 20:41 and have a receipt from the store (the actual store till was 2 hours out at the time - currently 3 hours out due to BST changes - I have a voice recording where this is discussed with the store owner and he admits the time is incorrect on his till - the ONLY till in the store) my receipt show 7.07 pm - it was 9.07 pm - I firstly visited the shop next door and then the store that I obtained the receipt from that displays a sign saying customers can park for 1 hour - contradicting the signage that says 30 minutes.

duffyscouse

IN THE COUNTY COURT

CLAIM No: xxxxxxxxx

BETWEEN:

xxxxxx (Claimant)

-and-

xxxxxxx (Defendant)
________________________________________

DEFENCE
________________________________________


1. It is admitted that the Defendant was the driver of the vehicle in question at the time of the alleged incident. The defendant was issued an alleged PCN notice via post by the claimant in relation to alleged breach of terms of parking on land which the claimant alleged to have occurred on xxxxxx.

2. The Defendant denies entering into any contract with the Claimant.

2.1. The claim is denied in it’s entirety except where explicitly admitted here. The Defendant asserts that they have no liability to the Claimant for the sum claimed, or any amount at all. No agreement of terms/no contract

2.2. The Claimant is pursuing the Defendant for a breach of contract, however not at any point in material time was any contract agreed.

The parking charge terms and the sum itself was not prominent and no contract was agreed. As such the facts and circumstances of this case can be fully distinguished from ParkingEye Ltd v Beavis [2015] UKSC 67, and fails to avoid falling foul of the penalty rule, due to a lack of any possibility to argue a 'legitimate interest' excuse.

Given the facts, this Claimant's claim must fail and the court is invited to strike it out, or in the alternative, order under the Judge's own discretionary case management powers, a preliminary hearing to examine the indirect discrimination issue, to save burdening the court with a claim that has no merit.

3. The Defendant denies they would have agreed to pay the original demand of £100 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.


4. The Claimant has at no time provided an explanation how the sum has been calculated, the conduct that gave rise to it or how the amount has climbed from £100 as per the PCN issued on xxxxxx to £160 on subsequent correspondence. This appears to be an added cost with no apparent qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.

5. No offer of an independent ADR.
The independence of the IPC has however been questioned as the Parking Review reported in 2016; only 20% of all appeals were upheld. The most recent lead adjudicator of POPLA, Henry Michael Greenslade in his 2015 annual report stated that ‘As the IAS does not allow motorists to see and comment on the operators entire evidence, it is by Mr Greenslade's definition an unfair service.’ As a result, it appears that, and any appeal was likely to have deemed to fail.

6. No signage exists at the entrance of the car park to indicate that the land on which the car park is located is private land. It is therefore not easily distinguished that the parking area is not a continuation of the public carriageway. Therefore, it is reasonable to presume that the private parking area which the claimant manages is a public parking area as no signage exists to clearly demarcate the boundary of the carriageway. Other cars are often parked in the area for long periods and are not regularly issued with a fine or ticket for contravention, making the signage and adherence ‘a lottery’.
The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position, that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is incapable of creating a legally binding contract. It isn’t clear on entry to the parking area that you are indeed entering into a privately owned area and entering into a contract. The signage is unable to read in passing and is not illuminated, in fact the nearest street lighting is behind the signage which is also at the rear of any cars parking in front of the shops, their being insufficient room to turn a vehicle to park with the signage visible to the front of the car. In hours of darkness it is almost a certainty that the signs would not be noticeable to a car parking in front of the store. The claimant failed to include a copy of their written contractual terms (on signage in this case) as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A).
The Claimant's sign was not seen on the material date because it is small and placed in a non-prominent place, being particularly difficult to notice, considering the time of day and weather conditions experienced at the location. A sign with 'parking charge' terms in minuscule font, placed out of the natural line of sight (failing to meet the high bar set in Lord Denning's Red Hand Rule) simply could not be seen, through no fault or omission of the Defendant.

6.1 The signage – when later examined in daylight contradicts a sign displayed on the entrance door to the store. The sign states “30 minutes maximum stay whilst loading and unloading” – The store displays a sign saying “Maximum 1 hour parking for shop customers only”. The defendant refutes that they stayed longer than permitted. It is also a fact there is nothing to suggest visiting xxxxxx is going 'off site' or beyond any imaginary boundary. The agent took no attempt to inform me that I was about to breach the terms and conditions as 'he clearly observed me'.

7. The defendant has a valid receipt for purchased goods at the store and still has the item purchased in his possession. This proves he was indeed a customer and eligible to park, if indeed the terms of any contract are agreed to be legal and enforceable by the court.

8. The claimant’s case is based around the defendant being seen to leave the site. The Defendant refers the court the case of VCS Ltd vs Ibbotsen [May 2012] in which magistrates quashed a very similar case.
The Defendant therefore asks that the court orders the case to be struck out for want of a detailed course of action and/or for the claim as having no prospect of success.

9. The defendant requests the court strike out this claim for the reasons stated above.

The defendant believes the facts contained in this Defence are true.

duffyscouse

IS this ok as a defence ? thanks

Coupon-mad

Well it looks very long.

Why not just use bargepole's concise defence template that you saw linked in the examples in the NEWBIES thread, and add the facts?

I firstly visited the shop next door and then the store that I obtained the receipt from that displays a sign saying customers can park for 1 hour - contradicting the signage that says 30 minutes.

Contradictory signs is good (for your later evidence), and the fact there is nothing to suggest visiting xxxxxx is going 'off site' or beyond any imaginary boundary.

This one sounds like one to appeal as admitted driver. No hiding behind the POFA.

KeithP

Para 1. What is an authorised registered keeper?

As para 1. admits the Defendant is the driver, para 4. is not relevant.

Similarly, para 5.1. has no place.

Para 6. IPC has not equated to the Independent Parking Committee for several years and it is not run by "the same two Directors who also operate the Independent Appeals Service (IAS)".

Para 9. "May I refer the court..." should be "The Defendant refers the court...".

The sentence before the Statement of truth is a duplication of a statement in Para 1.

duffyscouse

All amended accordingly thanks

duffyscouse

I cannot find the original PCN posted for the date but I know it was later than specified - Anyone know how to find the details ?

Coupon-mad

Yes.

Send the PPC a SAR online or by email to the DPO - see their DATA PRIVACY webpage.