Me vs PCM UK (Heath Parade) - court stage

mnkut

Hi all

This will be my first time submitting a Defence for a claim (exciting!). Please note, this is the first & only thread regarding this specific parking ticket.

Some background

• The Claimant is PCM UK regarding the layover at Heath Parade NW9, blogged by The Prankster http://parking-prankster.blogspot.com/2016/12/heath-parade-graham-park-way-scam-site.html
• The Defendant had stopped at the layby for the purposes of alighting a passenger. Headlights are on in all photo evidence supplied by PCM) which was observed for under 15 mins
• Within the photo evidence the driver can be distinguished sitting in the car
• Signage is the same illegible signage covered in the prankster's blog above. Far to high up to read without microscope, forbidding language used and conflicting signage.
• A generic initial appeal was made using the newbies thread but of course rejected by PCM, adjudication would have been with IAS so this was not done.
• Defendant did not receive an LBCC
• When Defendant received a CCF, acknowledgement of service was complete within time period
• A request for response to Gladstones needs to be sent, but unsure if this is just a simple email?)
• How would I inform the courts I would like to represent my family member - couldn't find this on a thread

Also would appreciate any feedback on the Defence so far - have read up on other really useful threads :beer: (posting shortly)

The_Slithy_Tove

mnkut wrote: »

Also ould appreciate any feedback on my defence so far - have read up on other really useful threads :beer: (posting shortly)

What "defence so far"? There is no information in this post/thread. If you have another thread running with the case you are referring to, then post to that. If not, then some more information would help. This particular post sits here with no context, no useful information, nothing.

Umkomaas

Also ould appreciate any feedback on my defence so far

Where is it?

How would I inform the courts I would like to represent my family member - couldn't find this on a thread

On the day - inform the Usher and/or Judge that you will be acting as a Lay Representative for your relative.

Look up 'Lay Representative' on Google. While you're at it check out 'McKenzie Friend', which is another stratum of assistance to the defendant. You need to understand both roles in case the Judge asks you specifically which one you are.

Whichever, you do know that the defendant must be present, in person, in court? You can't do anything without them there.

mnkut

Defence

Preliminary (should I include site history information here?)

1. The Particulars of Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defence, failing to meet CPR16.4 and PD16 7.3-7.5 and merely provide a date, due date, and an "amount" consisting of a completely unsubstantiated and inflated three-figure sum, vaguely and incoherently adduced by the claimant's solicitors. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.

1.1 The Claimant's 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. HMCS have identified thousands of similar poorly pleaded claims.
1.2 The Defendant believes the term for such 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. The Defendant has reason to believe to their significant detriment that this is a claim that will proceed without any facts or evidence supplied until the last possible minute. A punitive costs order will be sought against the Claimant and a wasted costs order against its solicitors.


2. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct.

Background

3. It is acknowledged that at all material times the defendant, XXXX, residing at XXXXX is the registered keeper of the vehicle in question.

4. It is denied that any "parking charges or indemnity costs" (whatever they might be) as stated on the Particulars of Claim are owed and any debt is denied in its entirety.

5. It is admitted that the Defendant's vehicle was stopped on the material date, for the purposes of loading and alighting. As evident through photographic evidence the Defendant's vehicle lights are on. It is denied that there was any relevant obligation upon the Defendant that can have been breached. The Defendant did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.

6. The Defendant received a Notice to Keeper from the Claimant, alleging that a charge of £100 was due to them. An appeal was sent to the Claimant, which was rejected. But not a further appeal to the Independent Appeals Service (IAS), the allegedly independent body appointed by the Claimant's trade body, the Independent Parking Committee (IPC). Research revealed that the IAS, far from being independent, is a subsidiary of the IPC, which in turn is owned and run by the same two Directors who also run Gladstones Solicitors, the individuals in question being John Davies, and William Hurley. Such an incestuous relationship is incapable of providing any fair means for motorists to challenge parking charges, as well as potentially breaching the SRA Code of Conduct. As such, the Claimant does not come to this matter with clean hands.

7. The Claimant failed to send a Letter Before Court Claim to the Defendant, leaving them non-compliant with the Practice direction on pre-action conduct. This prejudiced the Defendant from vital information such as:
7.1. A clear summary of facts on which the claim is based.
7.2. A list of the relevant documents on which your client intends to rely.
7.3. How the 'charge amount' of £100 has been calculated and justified.
7.4. Any form of possible negotiation or ADR offered.


Claimant's rights to bring a Claim

8. It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking 'parking management'. In order to issue parking charges, and to pursue unpaid charges via litigation, the Claimant is required to have the written authority of the landowner, on whose behalf they are acting as an agent, in this case Peel Land & Property Ltd. No evidence of such authority was supplied by the Claimant at any time, and the Claimant is put to strict proof of same, in the form of an unredacted and contemporaneous contract, or chain of authority, from the landowner to the Claimant. Thus far the Claimant has provided no proof of any such entitlement.

9. No evidence has been provided that the Claimant has locus standi to bring this claim: it was not identified on the signage, nor the notice to driver, and the Defendant has reason to believe that it is not named in the parking contract.

9.1 In fact the conflicting signage one stating Genesis Housing and the other PCM UK it is unclear which contract was formed. From the Defendant's due diligence the registered landowner of the layby is 'CHOICES FOR GRAHAME PARK LIMITED (Co. Regn. No.05303074)' Title Number NGL931573 of Capital House, 25 Chapel Street, London NW1 5DT.
9.2 Therefore if any document presented by the Claimant from "Genesis Housing Association" purporting to be the freeholder and providing the Claimant authority to issue parking tickets is regarded invalid.


Forbidding Signage and Legibility

10. The Claimant's signage with the largest font at this site states 'No Customer Parking At Any Time'. A further sign with much smaller writing and higher up states 'The loading bay is only for authorised vehicles actively loading & unloading when delivering to the commercial tenants of Heath parade'. Not only is the further sign illegible to anyone without a microscope but 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.

10.1 The above point was recently tested in the County Court at High Wycombe, in the case of Parking Control Management (UK) Ltd v Bull & 2 Others (B4GF26K6, 21 April 2016), where District Judge Glen dismissed all three claims, stating in his judgment that: "If the notice had said no more than if you park on this roadway you agree to pay a charge then it would have been implicit that PCM was saying we will allow you to park on this roadway if you pay £100 and I would agree with Mr Samuels' first analysis that essentially the £100 was a part of the core consideration for the licence and was not a penalty for breach. The difficulty is that this notice does not say that at all. This notice is an absolute prohibition against parking at any time, for any period, on the roadway. It is impossible to construct out of this in any way, either actually or contingently or conditionally, any permission for anyone to park on the roadway. All this is essentially saying is you must not trespass on the roadway. If you do we are giving ourselves, and we are dressing it up in the form of a contract, the right to charge you a sum of money which really would be damages for trespass, assuming of course that the claimant had any interest in the land in order to proceed in trespass."

10.2.While this is a County Court decision and therefore not binding, it is on all fours with the present case and may be considered as persuasive. A full transcript of the Approved Judgment for the above case will be provided in the event that this case proceeds to a hearing.

10.3. In Beavis vs ParkingEye case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were !!!8216;large lettering!!!8217; on all signs according to the Judges. By comparison the signs provided by the Claimant fails as an example of the !!!8216;large lettering!!!8217; that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park, a contract and !!!8216;agreement on the charge!!!8217; existed.

11. In addition, the Consumer Rights Act 2015 rules that if signage has multiple interpretation the interpretation most favourable to the consumer applies. It is clear from this the signage with the largest font should apply.

12. 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, the 'contravention' according to the Claimant is already committed.

12.1.The above point was recently tested in several cases regarding Hayes and Harlington station. There a similar situation arises as the vehicles were charged for briefly stopping but the signs are far away from vehicles and high up

12.2.In all cases it was ruled that no contract was entered by performance as the signage could not be read from a vehicle. No transcripts are available but as PCM UK were the Claimant in all cases they will be fully aware of the cases; C3GF46K8, C3GF44K8, C3GFY8K8.

13. The IPC code of conduct states 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.
Thus the signage is simply a device to entrap motorists into a situation whereby the Claimant sends them invoices for unwarranted and unjustified charges, for which motorists can have no contractual liability due to the terms and conditions not having been sufficiently brought to their attention. This activity is bordering on, if not actually crossing the boundary of, a criminal offence of Fraud By False Representation.

14. The Defendant notes since the material event additional signage has been added by Sainsbury, which can only suggest that the existing signage provided by the Claimaint had not been clear enough for motorists.

Wholly unreasonable and vexatious claim

15. It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, the Defendant is keeping careful note of all wasted time/costs in dealing with this matter and should the case continue to trial (or in the event of the Claimant filing a Notice of Discontinuance) the Defendant will seek further costs, pursuant to Civil Procedure Rule 27.14(2)(g).

16. The Defendant respectfully suggests that parking companies using the small claims track as a form of aggressive, automated monetary demands against residents, alleging 'debts' for loading and alighting at Loading bays is not something the Courts should be seen to support.

17. The Court is invited to take Judicial Notice of the fact that the Claimant's solicitors, Gladstones, is engaged in a course of conduct which involves issuing tens of thousands of totally meritless Claims, which are routinely dismissed by District Judges sitting in this Court, and other County Court hearing centres in all parts of England & Wales. The Court is therefore invited to refer the matter to the Designated Civil Judge, for consideration of the issuing an Extended Civil Restraint Order against the Claimant, pursuant to CPR Practice Direction 3.1(3).

18. There has been recent discussions at the House of Commons about the Parking (Code of Practice) Bill, and the rogue industry, which can be read here: https://hansard.parliament.uk/commons/2018-02-02/debates/CC84AF5E-AC6E-4E14-81B1-066E6A892807/Parking(CodeOfPractice)Bill

19. The Defendant denies the claim in its entirety, voiding any liability to the Claimant for all amounts due to the aforementioned reasons. The Defendant asks that the court gives consideration to exercise its discretion to order the case to be struck out under CPR Rule 3.4, for want of a detailed cause of action and/or for the claim having no realistic prospects of success.

20. If the court is not minded to make such an order, then when Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because it is expected that the Claimant will use its witness statement to provide the sort of detail which should have been disclosed much earlier, and the Defendant should have the opportunity to consider it, prior to serving evidence and witness statements in support of this defence.

21. In addition to the £100 'parking charge', for which liability is denied, the Claimant's legal representatives, Gladstones Solicitors, have artificially inflated the value of the Claim by adding costs of £50 which I submit have not actually been incurred by the Claimant, and which are artificially invented figures in an attempt to circumvent the Small Claims costs rules using double recovery. The Court is invited to report Gladstones Solicitors to the Solicitors' Regulation Authority for this deliberate attempt to mislead the Court, in contravention of their Code of Conduct.

22. The parking charges sought are not a genuine pre-estimate of loss, but an extravagant penalty, and therefore unenforceable. In the Beavis case, the Supreme Court was only prepared to accept a charge of £85 sufficient to act as a disincentive. The Supreme Court had previously stated that £135 would be unacceptable (ParkingEye v Somerfield). The charge of £125 to the Defendant is clearly extravagant and disproportionate to the Claimant's interest and in fact comprises non-contractual elements

23. The Court is invited to dismiss this Claim, and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14.

mnkut

Umkomaas wrote: »

Where is it?


On the day - inform the Usher and/or Judge that you will be acting as a Lay Representative for your relative.

Look up 'Lay Representative' on Google. While you're at it check out 'McKenzie Friend', which is another stratum of assistance to the defendant. You need to understand both roles in case the Judge asks you specifically which one you are.

Whichever, you do know that the defendant must be present, in person, in court? You can't do anything without them there.

Excellent will Google now.
Yes, the Defendant will be present on the day, thanks for noting!

Redx

please turn off SMART PUNCTUATION on your apple device and edit the above by removing the punctuation errors caused by MSE forum issues


a defence should also contain a statement of truth as the last paragraph

mnkut

Redx wrote: »

please turn off SMART PUNCTUATION on your apple device and edit the above by removing the punctuation errors caused by MSE forum issues


a defence should also contain a statement of truth as the last paragraph

Just noticed that, how odd I'm posting via desktop rather than phone. Will amend all now!

Amended the eyesores

Redx

well, maybe you copied and pasted parts of the defence from other affected threads ?

there is nothing odd about this, MSE admin staff havent fixed this punctuation mark issue and so the errors continue. its been mentioned for several months and yet they do not fix it, so posts like yours have these problems, plus its worse if somebody uses any apple device (turning off SMART PUNCTUATION on apple devices also seems to help and UMKOMAAS has posted about this issue numerous times this year)


and as UMKOMAAS rightly states above, you need to stick to your original thread and have the 2 merged by a board guide, for clarity and continuity


only start a new thread if you have a new unconnected issue to deal with

mnkut

Redx wrote: »

well, maybe you copied and pasted parts of the defence from other affected threads ?

there is nothing odd about this, MSE admin staff havent fixed this punctuation mark issue and so the errors continue. its een mentioned for several months and yet they do not fix it, so posts like yours have these problems, plus its worse if somebody uses any apple device (turning off SMART PUNCTUATION on apple devices also seems to help and UMKOMAAS has posted about this issue numerous times this year)


and as UMKOMAAS rightly states above, you need to stick to your original thread and have the 2 merged by a board guide, for clarity and continuity


only start a new thread if you have a new unconnected issue to deal with

Apologies both, this is my first and only thread! I will add more details to the original post.

mnkut

Redx wrote: »

well, maybe you copied and pasted parts of the defence from other affected threads ?

there is nothing odd about this, MSE admin staff havent fixed this punctuation mark issue and so the errors continue. its een mentioned for several months and yet they do not fix it, so posts like yours have these problems, plus its worse if somebody uses any apple device (turning off SMART PUNCTUATION on apple devices also seems to help and UMKOMAAS has posted about this issue numerous times this year)


and as UMKOMAAS rightly states above, you need to stick to your original thread and have the 2 merged by a board guide, for clarity and continuity


only start a new thread if you have a new unconnected issue to deal with

Got it! It's because I copy + pasted from Google Docs. Apologies!

Redx

mnkut wrote: »

Apologies both, this is my first and only thread! I will add more details to the original post.

you posted another thread last year about a similar issue, or the same issue

if this is a continuation of that previous thread then the 2 need merging

if this new thread is a different court claim to the previous thread, then its one topic , one thread and the 2 dont need merging

we believe you are talking about the same case that you did late last year, in which case you should add to that original thread with the new information and requests

help us to help you