First Parking PCN

KeithP

Para 6.1(b) states:

So without that 'prior express notice', which I guess you haven't seen, First Parking will not be conducting 'debt collection and or court proceedings'.

That's good to know, isn't it?

zipadee

KeithP said:

Para 6.1(b) states:

So without that 'prior express notice', which I guess you haven't seen, First Parking will not be conducting 'debt collection and or court proceedings'.

That's good to know, isn't it?

Can you please explain what "prior express notice" actually means. Thanks
So KeithP I will add that to my defence.

Coupon-mad

What do you think it means?  Not sure what's unclear...this is a useful point for your defence.

zipadee

Coupon-mad said:

What do you think it means?  Not sure what's unclear...this is a useful point for your defence.

The Client that FP is referring to is the Security company acting on behalf of the landowner but as I have not seen the agreement between Security company and the landowner, then FP should not have started debt collection or court proceedings as KeithP states.

Coupon-mad

It's more than that. There are two issues:

It says the prior express agreement has to come from the client (Security company) and there is no evidence that happened either.

As well as no evidence of authority flowing from any landholder.   This breaches the BPA CoP and arguably, F1rst should not have obtained your DVLA data either because they just don't have the level of landowner authority that the BPA CoP requires.

zipadee

Coupon-mad said:

It's more than that. There are two issues:

It says the prior express agreement has to come from the client (Security company) and there is no evidence that happened either.

As well as no evidence of authority flowing from any landholder.   This breaches the BPA CoP and arguably, F1rst should not have obtained your DVLA data either because they just don't have the level of landowner authority that the BPA CoP requires.

Thanks Coupon-mad. I will add both points to my defence. 

Fruitcake

How nice to state that the contract is not with the landowner.

Some redactions are acceptable, such as payments or charges for services as they could be considered commercially sensitive. 
However, some of the redactions are unacceptable.

Have a look at this thread by Johnersh, who is a solicitor, and note the comments made by the judge in the Hancock vs Promontoria case about this subject. Note that the case quoted was heard in the Appeal Court, so is persuasive on the lower courts.

Redactions in Disclosure — MoneySavingExpert Forum

Something has been redacted in section 1 between Parking contraventions and Popla. It is possible that the contravention alleged by the scammers is not covered by the service agreement, and has therefore deliberately been hidden.

In section 4, Sub paras (b) (g) and (h) in the section beginning, First Parking shall ... have been redacted. It is possible the scammers failed to do whatever is required and has deliberately hidden it as a result.
Similarly, under the clients obligations in section 5, sub para (j) has been redacted. It is possible therefore that the agents themselves have failed to do something that is required of them, and this has also been deliberately redacted to hide that omission.

The names of the signatories have either been omitted or redacted. The client's signature appears to have PP against it, meaning it has not been signed by the person whose name has been redacted and whose position (job title) has been given. The signatures are also illegible, and are not dated, so there is no proof it was done before the date of the alleged event.

This should all come under the defence template points regarding Not the Landowner/No standing to issue charges etcetera. However, a comment that the service agreement provided is not with the landowner and does not meet the requirements of the Companies Act 2006 Sections 43 and 44, neither of the signatures to the alleged agreement have been dated, nor are either of the signatories authorised to sign a contract on behalf of the landowner with an unregulated third party, First Parking.

I also get the feeling that there is a self ticketing arrangement going on, so it is possible that someone from the UNi has been handing out tickets. This may explain some of the redactions.

I suggest you point out all of this to the Uni. 

zipadee

Fruitcake said:

How nice to state that the contract is not with the landowner.

Some redactions are acceptable, such as payments or charges for services as they could be considered commercially sensitive. 
However, some of the redactions are unacceptable.

Have a look at this thread by Johnersh, who is a solicitor, and note the comments made by the judge in the Hancock vs Promontoria case about this subject. Note that the case quoted was heard in the Appeal Court, so is persuasive on the lower courts.

Redactions in Disclosure — MoneySavingExpert Forum

Something has been redacted in section 1 between Parking contraventions and Popla. It is possible that the contravention alleged by the scammers is not covered by the service agreement, and has therefore deliberately been hidden.

In section 4, Sub paras (b) (g) and (h) in the section beginning, First Parking shall ... have been redacted. It is possible the scammers failed to do whatever is required and has deliberately hidden it as a result.
Similarly, under the clients obligations in section 5, sub para (j) has been redacted. It is possible therefore that the agents themselves have failed to do something that is required of them, and this has also been deliberately redacted to hide that omission.

The names of the signatories have either been omitted or redacted. The client's signature appears to have PP against it, meaning it has not been signed by the person whose name has been redacted and whose position (job title) has been given. The signatures are also illegible, and are not dated, so there is no proof it was done before the date of the alleged event.

This should all come under the defence template points regarding Not the Landowner/No standing to issue charges etcetera. However, a comment that the service agreement provided is not with the landowner and does not meet the requirements of the Companies Act 2006 Sections 43 and 44, neither of the signatures to the alleged agreement have been dated, nor are either of the signatories authorised to sign a contract on behalf of the landowner with an unregulated third party, First Parking.

I also get the feeling that there is a self ticketing arrangement going on, so it is possible that someone from the UNi has been handing out tickets. This may explain some of the redactions.

I suggest you point out all of this to the Uni. 

Fruitcake, is it OK for me to copy your points above directly into my defence, obviously replacing the use of the word scammers. with the Claimant.

Thanks

zipadee

Here is latest defence including all helpful comments provided.

The facts as known to the Defendant:

2.  It is admitted that the Defendant was the registered keeper of the vehicle in question but liability is denied. 

3.  The Defendant understands that the PCN relates to a residential car park for users living in University accommodation. The accommodation is spread out and can be a significant distance from the car park. The Defendant also understands that the car park is used by visitors and residents to unload heavy items to be transported to the residential accommodation as there is no other means to do this. Reference to ‘ Jopson V Home Guard Services, appeal case number B9GF0A9E on 29/09/2016’ where it was deemed unloading is not parking.

4. The Defendant also understands, from correspondence with the University, that the car park operates a grace period of 30 mins for parking. The Defendant also notes that First Parking did not operate an ANPR system, so is unable to provide evidence of when the vehicle entered and left the car park. First Parking has provided a photo of the parked vehicle but has not provided photos that confirm that the vehicle was parked for longer than the grace period.

5. The claimant has provided a copy of the ‘Non-Landowner Parking Enforcement Services Agreement’. The service agreement provided is not with the landowner and does not meet the requirements of the Companies Act 2006 Sections 43 and 44, neither of the signatures to the alleged agreement have been dated, nor are either of the signatories authorised to sign a contract on behalf of the landowner with an unregulated third party, First Parking.

6. The agreement is between First Parking and Securitas Security Services (UK) Limited (The Client), who are not the landowners. Para 6.1(b) states: “Subject to prior express notice being issued by the Client First Parking will conduct all debt collection and/or court proceedings relating to unpaid to unpaid ANPR Charges or Handheld Parking Charges.”  This states that prior express agreement has to come from the client (Securitas Security Services) and there is no evidence that this has happened.

7. There is no evidence of authority flowing from any landholder.This breaches the BPA CoP and First Parking should not have obtained the defendant’s DVLA data because First Parking do not have the level of landowner authority that the BPA CoP requires.

8.The agreement provided has also been heavily redacted. In Hancock v Promontoria (Chesnut) Limited [2020] EWCA Civ 907, The Court of Appeal are now clear that care needs to be taken with redactions where the Court are being asked to interpret the contract. 

” ...The document must in all normal circumstances be placed before the court as a whole...
Seldom, if ever, can it be appropriate for one party unilaterally to redact provisions in a contractual document which the court is being asked to construe, merely on grounds of confidentiality...confidentiality alone cannot be good reason for redacting an otherwise relevant provision...”

9. With reference to specific redactions, something has been redacted in section 1.1 between Parking contraventions and Popla. It is possible that the contravention alleged is not covered by the service agreement and has therefore deliberately been hidden.

In section 4, Sub paras (b) (g) and (h) in the section beginning, First Parking shall ... have been redacted. It is possible the Claimant failed to do whatever is required and has deliberately hidden it as a result.
Similarly, under the client’s obligations in section 5, sub para (j) has been redacted. It is possible therefore that the agents themselves have failed to do something that is required of them, and this has also been deliberately redacted to hide that omission.

The names of the signatories have either been omitted or redacted. The client's signature appears to have PP against it, meaning it has not been signed by the person whose name has been redacted and whose position (job title) has been given. The signatures are also illegible, and are not dated, so there is no proof it was done before the date of the alleged event.

10. The Defendant has returned to the Car Park to observe the signage and noted that the car park has no entrance sign, breaking requirement 18.2 of the British Parking Association code of practice. The Claimant’s main signage has 6 different background colours making the wording especially difficult to read. The Claimant’s signs are cluttered and confusing, they have vague/hidden terms and a mix of small font, such that they would be considered incapable of binding any person reading them under common contract law, and would also be considered void pursuant to Sch2 of the CRA. Consequently, it is the Defendant’s position that no contract to pay an onerous penalty was seen, known or agreed.

The colourful sign also has nothing about any risk of a fine.  It is in small print on another, higher sign but it's not there in the large colourful sign and nor does the colourful sign tell drivers that further bolt-on charges (secondary contracts) might apply for breach, and that there are other signs that must be read and understood.  Therefore, even if a person had seen that sign, as a matter of basic contract law, they cannot have agreed to pay anything except the stated tariffs.

Fruitcake

You don't need to go into so much detail. That comes later at the WS stage. You have used the "F" word, thus giving it a level of authority that a scamvoice does not have.

You just need the salient points, some of which I am sure are already in the template.

Paras 6 - 9 can be condensed to something like the following, and added to the template, no standing - no authority point in the template or whatever it is called. The long winded version you have used is more suitable for the WS stage.

The service agreement provided by the claimant clearly states that it is not between the claimant and the landowner. It has been redacted which is unacceptable as determined in the persuasive Appeal Court judgment in Hancock vs Promontoria, case number XXXXXXX.
The claimant is put to strict proof that it has a contract with the landowner to operate on the site.

You don't need the two parts in para10 at all because signage is already covered in the template.