HX CPM Non POFA compliant and citing Elliot v Locke

Mr_Picklehead

The defendant has now received a "Notice of Allocation to the Small Claims Track (Hearing)". It states that the claimant must pay a fee of 25 pounds. Will there be any confirmation that this has been paid or should the defendant just turn up on the date of the hearing?

KeithP

You will not be notified when they pay the fee.

Assume they will pay the fee and act as if they have until you hear anything different.

... should the defendant just turn up on the date of the hearing?

There's a little bit more to it than that.

Re-read post #2 of the NEWBIES thread and discover how to write a Witness Statement, gather evidence and produce a Costs Schedule.

Mr_Picklehead

I mean just turn up at court on the day even if they don't receive confirmation of payment. Of course they've already prepared / sent witness statement etc.


The case from Gallstones doesn't even mention POFA. The main thrust of their argument is the signage was clear and therefore the driver entered into a contract., The keeper had ample time to name the driver but has not done so. Therefore as Elliot v Loake held "the RK of a vehicle may be presumed to have been the driver unless they sufficiently rebut this presumption." ......... Really?!!! That's not my understanding of it!!!


With regards to the inflated claim they state "where a parking charge becomes overdue a reasonable sum may be added. This sum must not exceed sixty pounds". They add later the costs claimed are a pre-determined and nominal contribution to the actual loses.

beamerguy

Mr_Picklehead wrote: »

I mean just turn up at court on the day even if they don't receive confirmation of payment. Of course they've already prepared / sent witness statement etc.


The case from Gallstones doesn't even mention POFA. The main thrust of their argument is the signage was clear and therefore the driver entered into a contract., The keeper had ample time to name the driver but has not done so. Therefore as Elliot v Loake held "the RK of a vehicle may be presumed to have been the driver unless they sufficiently rebut this presumption." ......... Really?!!! That's not my understanding of it!!!


With regards to the inflated claim they state "where a parking charge becomes overdue a reasonable sum may be added. This sum must not exceed sixty pounds". They add later the costs claimed are a pre-determined and nominal contribution to the actual loses.

ELLIOT v LOAKE ?????

Are Gladstones doing some time travelling .... BACK IN TIME ?
Don't they have a clue about BWLegal who were spanked many times for relying on Elliot v Loake ???
Talk about incompetence

the costs claimed are a pre-determined and nominal contribution to the actual loses.

Pre-determined from where ????? From their code of practice, the IPC scam of course

POFA2012 is the law which Gladstones are flaunting, not their own silly made up rules

This additional charge is not recoverable under the protection of freedoms act 2012, Schedule 4

Wakey wakey Gladstones, get a hard book to tuck in your trousers ready for the next spanking

[Deleted User]

The fact of the matter is that there is no presumption in law as to who was driving, hence s.172 of the road traffic acts (duty to name driver for speeding offences etc) and PoFA which creates a liability - but only in specific circumstances.

Parliament specifically created PoFA to deal with circumstances where a driver was not named. If the PPC fails to comply with those requirements that is a matter for them, but they should not argue that there is authority that provides for such a presumption where it does not.

It's open to the judge to make a finding of fact o/p was driving, but he needs evidence. In EvL that evidence was available - the witness said no one else could've been driving and forensics established it was his car responsible for the hit & run. In short there was bloody good evidence for the court to make a finding of fact. In other cases on the forum the DJ has made a determination based on inference - that the defendant was evasive of questions. Tough, but a finding s/he can make.

"where a parking charge becomes overdue a reasonable sum may be added. This sum must not exceed sixty pounds".

Where are they getting that from? If it cannot exceed £60 why not put the specific sum on the sign/contract?

the costs claimed are a pre-determined and nominal contribution to the actual loses.

Pre-determined cost. So in fact it is a liquidated damage - like the fees you agree to pay to banks for unauthorized overdrafts etc.
https://en.m.wikipedia.org/wiki/Liquidated_damages
It needs to be specifically and contractually agreed. I fear that most of the example signs I see spectacularly fail to do that.

Also if the sign says indemnity costs, it should in my view be argued that the costs should be limited to the actual costs C can prove were incurred in your case (not business overhead) as otherwise the PPC is advancing generic costs which may not have been incurred at all, which breaches the indemnity principle.

Mr_Picklehead

Johnersh wrote: »

Where are they getting that from? If it cannot exceed £60 why not put the specific sum on the sign/contract?

They are getting that fom the IPC Code of Practice... The defendant will challenge the validity of that using some of the points submitted here.... Their case goes on to add that the 100 + 60 max then increases because HX CPM passed the matter on to Gallstones Solicitors and that they were instructed to commence legal proceedings and therefore additional costs as Gallstones have "spent time and material in facilitating the recovery of this debt. This time could be better spent on other elements of my Company's business. My company believes the costs associated with such time were incurred naturally as a direct result of the Defendant's breach and as such asks that this element of the claim be awarded as a damage. The costs claimed are a pre-determined and nominal contribution to the actual losses". Alternatively , my Company does have a right to costs pursuant to the sign (i.e the contract)"

Coupon-mad

Which is rebutted by these quotes from Beavis which prove the PCN covers the costs:

http://www.bailii.org/uk/cases/UKSC/2015/67.html

“ at para 98. {re ...The desirability of running that parking scheme at no cost, or ideally some profit, to themselves} ''Against this background, it can be seen that the £85 charge had two main objects. One was to manage the efficient use of parking space in the interests of the retail outlets, and of the users of those outlets who wish to find spaces in which to park their cars [...] The other purpose was to provide an income stream to enable ParkingEye to meet the costs of operating the scheme and make a profit from its services...''

at para 193. ''Judging by ParkingEye’s accounts, and unless the Chelmsford car park was out of the ordinary, the scheme also covered ParkingEye's costs of operation and gave their shareholders a healthy annual profit.''

at para 198. ''The charge has to be and is set at a level which enables the managers to recover the costs of operating the scheme. It is here also set at a level enabling ParkingEye to make a profit.''

They cannot argue 'loss/damages' when the charge already gives them a healthy PROFIT!

Mr_Picklehead

I'm not sure whether this point is significant and worth defending. Under "No Authority To Enforce Charges" they cite PE V Beavis (2015) which "made it clear that a contracting party need not show they have a right to do what they have promised in the performance of a contract, nor is the agreement between op. and landowner of any relevance" ... in any event they produce an Agreement which they claim evidences authorisation to manage the relevant land..


They cite Lord Justice Lewison's remarks on VCS v HM Revenues & Customs (2013).... "the flaw in the reasoning [VCS not having the right to grant a licence to park] is that it confuses the making of a contract with the power to perform it"


???? The Defendant doesn't know how to argue on this point ????

Coupon-mad

What they mean is, the PPC can offer a contract and it stands alone, regardless of whether they are landowners or not. It can be rebutted by saying that the facts show that the parking charge is clearly just an unconscionable penalty in this case, of the type that the Beavis case Judges said would remain unrecoverable, due to no 'commercial justification' or legitimate interest, which initially flows from the landowner.

in any event they produce an Agreement which they claim evidences authorisation to manage the relevant land..

Show us.

Mr_Picklehead

Coupon-mad wrote: »

Which is rebutted by these quotes from Beavis which prove the PCN covers the costs:

http://www.bailii.org/uk/cases/UKSC/2015/67.html

“ at para 98. {re ...The desirability of running that parking scheme at no cost, or ideally some profit, to themselves} ''Against this background, it can be seen that the £85 charge had two main objects. One was to manage the efficient use of parking space in the interests of the retail outlets, and of the users of those outlets who wish to find spaces in which to park their cars [...] The other purpose was to provide an income stream to enable ParkingEye to meet the costs of operating the scheme and make a profit from its services...''

at para 193. ''Judging by ParkingEye’s accounts, and unless the Chelmsford car park was out of the ordinary, the scheme also covered ParkingEye's costs of operation and gave their shareholders a healthy annual profit.''

at para 198. ''The charge has to be and is set at a level which enables the managers to recover the costs of operating the scheme. It is here also set at a level enabling ParkingEye to make a profit.''

They cannot argue 'loss/damages' when the charge already gives them a healthy PROFIT!

Would they not argue that operating the Car Park makes a profit... but they are pursuing these costs (not for operating the car park but instead) for chasing an unpaid "debt"?