Multiple PCNs expected

SeaHaven

Okay - understood. Wholly unfair of course, and hardly applying justice.

However, the good news for the first ticket is that even if delivered to the Keeper 2 working days after Issue Date, this takes it clearly to Day 16 from the date of infraction. The next one arrived with the Keeper on Day 17 following infraction. Surely both are invalid charges?

KeithP

No it does not make the charge invalid.

It does however mean that there is no way that liability can be transferred to the keeper.

Which in turn means that unless they know the identity of the driver, they have no-one to pin the charge on.

Unfortunately that won't stop them hounding the keeper.

twhitehousescat

you could or course contact the dvla asking at what date the company asked for your info , there should be a few dates , a look at those will determine the date they were able to post them , if for example they were sent info on day 13 then it would be impossible to serve in tome for
pofa to apply

Coupon-mad

SeaHaven wrote: »

However, the good news for the first ticket is that even if delivered to the Keeper 2 working days after Issue Date, this takes it clearly to Day 16 from the date of infraction. The next one arrived with the Keeper on Day 17 following infraction. Surely both are invalid charges?

What makes you think that makes a charge 'invalid'? That's not what the NEWBIES thread says.

SeaHaven

Yes, understood, however, they now need to prove who the driver was at the time of the alleged contract breach. The Keeper will be sending the standard response laid out in the newbies thread.

The_Deep

It is the will of Parliament that these scammers be put out of business. Hopefully that will take place in the near future. In the meantime involve your MP, the poor dears are buckling under the weight of complaints about these scammers. Read this one which I wrote earlier

This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of alleged contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors. Is has been suggested by an MP that some of these companies may have connections to organised crime.

Parking Eye, CPM, Smart, (especially Smart}, and others have already been named and shamed in the House of Commons as have Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each week), hospital car parks and residential complex tickets have been especially mentioned. They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

The problem has become so widespread that MPs have agreed to enact a Bill to regulate these scammers.

Sir Greg Knight's Private Members Bill to curb the excesses, and perhaps close down, some of these companies passed its Third Reading in late November, and, with a fair wind, will become Law next year.

All three readings are available to watch on the internet, (some 6-7 hours), and published in Hansard. MPs have an extremely low opinion of the industry. Many are complaining that they are becoming overwhelmed by complaints from members of the public. Add to their burden, complain in the most robust terms about the scammers.

SeaHaven

We've finally had a Claim Form issued by Northampton County Court (Gladstones acting for claimant UKCPM). Following the LBC sent by Gladstones we wrote to UKCPM with our SAR. Standard response given that we MUST complete their form in order to process our SAR. Over a month, no data provided, and obviously we have not completed their form on the basis that it is not required by law. Therefore the PCP cannot be met on our side because we have not been furnished with suitable data upon which to defend their claim. We have since received a further LBC for another PCN so wish to have any other claims handled under the same hearing, if it in fact comes to that. We have repeated our SAR to UKCPM and to date have not received a response either by email or as requested by post to the registered keeper's address (as supplied by the DVLA).
We have read and understood similar examples on this forum to enable us to draft a Defence which we trust forum members will critique before it is submitted?
Also - on a separate note concerning which Court should personally hear the case - just because the papers are issued from Northampton, does this preclude the case being heard locally to the Defendant in the juris diction of the actual land resulting in the issue of the PCN?

Herewith our Defence Draft for your comment: -

DEFENCE

Preliminary Matters.

(1). The claimant failed to include a copy of their written contract as per Practice Direction
16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the
Claimants contractual authority to operate there as required by the Claimants Trade
Association's Code of Practice B1.1 which says
1.1 If you operate parking management activities on land which is not owned by you, you
must supply us with written authority from the land owner sufficient to establish you
as the ‘Creditor’ within the meaning of the Protection of Freedoms Act 2012 (where
applicable) and in any event to establish you as a person who is able to recover
parking charges. There is no prescribed form for such agreement and it need not
necessarily be as part of a contract but it must include the express ability for an
operator to recover parking charges on the landowner’s behalf or provide sufficient
right to occupy the land in question so that charges can be recovered by the operator
directly. This applies whether or not you intend to use the keeper liability provisions.

(2). The particulars of claim do not meet the requirements of Practice Direction 16 7.5 as
there is nothing which specifies how the terms were breached. Indeed the particulars
of claim are not clear and concise as is required by CPR 16.4 1(a). The Claimants are
known to be serial issuers of generic claims similar to this one. HM Courts Service
have identified over 1000 similar sparse claims. I believe the term for such behaviour
is roboclaims and as such is against the public interest.

Practice Direction 3A which references Civil Procedure Rule 3.4 illustrates this point:

1.4 The following are examples of cases where the court may conclude that particulars of
claim (whether contained in a claim form or filed separately) fall within rule 3.4(2)(a):
1. those which set out no facts indicating what the claim is about, for example ‘Money
owed £1000’,
2. those which are incoherent and make no sense,
3. those which contain a coherent set of facts but those facts, even if true, do not
disclose any legally recognisable claim against the defendant


(3). The Claimant has not complied with the pre-court protocol.

1. I'd refer the court to Para 4 on non-compliance and sanction, and I'd also point out
that there can be no reasonable excuse for the Claimant's failure to follow the
Pre-action Conduct process, especially bearing in mind that the Claim was issued by
their own Solicitors so they clearly had legal advice before issuing proceedings.


(4). The claimant failed to abide by Schedule 4 of POFA 2012 9, which clearly states: -

(4) The notice must be given by—
(a)handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
(b)sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.
(5) The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.
(6) A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.

In this instance whilst the date of issue of the PCN was XXXXXX, the PCN was in fact received by post on XXXXXX, some 23 days after the alleged date of parking. There was no reason for such a lengthy delay in the public postal system, and the defendant contests the validity of the Issued Date as published, as to date the claimant has presented no evidence of the actual date of postage of the PCN. It could be interpreted that the claimant has falsified the Date of Issue of the PCN to appear as if it had complied with POFA 2012. It is assumed that the PCN was produced by means of a modern digital publication system, and as such, a digital record held by the claimant should easily prove or disprove the date upon which the document had been produced. The defendant has not been furnished with such evidence, and therefore contests the claimant’s assertion that the Date of Issue is true.

On the basis of the above, I request the court strike out the claim for want of a cause of action.






Statement of Defence

I am XXXXX, defendant in this matter. It is admitted that the defendant was the
authorised registered keeper of the vehicle in question at the time of the alleged
incident.
The defendant denies liability for the entirety of the claim for the following reasons: -

(1) (Subject to the Court’s indication that point (4) in Preliminary Matters above is agreed)
The identity of the driver of the vehicle on the date in question has not been ascertained.
1. The claimant did not identify the driver.
2. The defendant has no liability, as they are the Keeper of the vehicle and the claimant
must rely upon the strict provisions of the Protection of Freedoms Act 2012 in order to
hold the defendant responsible for the driver’s alleged breach.

(2) The claimant has not provided enough details in the particulars of claim to file a full
defence. In particular, the full details of the contract which it is alleged was broken
have not been provided.
1. The claimant has disclosed no cause of action to give rise to any debt.
2. The claimant has stated that a parking charge was incurred.
3. The claimant has given no indication of the nature of the alleged charge in the Particulars of Claim.
4. The Particulars of Claim contains no details and fails to establish a cause of action.
The claimant has therefore disclosed no cause of action which would enable the defendant to prepare a specific defence.
It just states “parked” which does not give any indication of on what basis the claim is brought.
There is no information regarding why the charge arose, what the original charge was, what the alleged contract was nor anything which could be considered a fair exchange of information.
The Particulars of Claim are incompetent in disclosing no cause of action.
5. On the 20th September 2016 another relevant poorly pleaded private parking charge claim by Gladstones was struck out by District Judge Cross of St Albans County Court without a hearing due to their ‘roboclaim’ particulars being incoherent, failing to comply with CPR. 16.4 and ‘providing no facts that could give rise to any apparent claim in law.’
6. On the 27th July 2016 DJ Anson sitting at Preston County Court ruled that the very similar parking charge particulars of claim were deficient and failing to meet CPR 16.4 and PD 16 paragraphs 7.3 – 7.6. He ordered the claimant in that case to file new particulars which they failed to do and so the court confirmed that the claim be struck out.

(3) The claimant has not complied with the pre-court protocol.
1. I'd refer the court to Para 4 on non-compliance and sanction, and I'd also point out that there can be no reasonable excuse for the Claimant's failure to follow the Pre-action Conduct process, especially bearing in mind that the Claim was issued by their own Solicitors so they clearly had legal advice before issuing proceedings.

(4) The defendant wrote to the claimant on xxxxx asking for:
a) All data held about the defendant
b) All evidence the claimant intends to use against the defendant (to include a copy of the contract with the landowner under which the claimant asserts authority to bring a claim against the defendant; a copy of the alleged contract with the driver; a plan showing where any signs were displayed and details of the signs displayed).
c) All letters/emails sent and received (including the claimant’s correspondence with the DVLA to obtain the defendant’s personal details and any appeal correspondence).
d) A full copy of the parking charge notices
e) All photos taken
f) A list of all PCNs the claimant considers are outstanding against the defendant.
g) A close-up image of the signage at XXXXXXXXX.
h) Evidence the claimant has paid a debt collector.

The claimant failed to provide any of the information requested, and instead insisted that the defendant must complete a further form to enable the claimant to process the request. The claimant has therefore failed in its legal duty to fulfil a lawful Subject Access Request. After receipt of the County Court Claim Form, and in order to begin the process of defending this claim, the defendant sent a further Subject Access Request to the claimant dated XXXXXX pointing out that by law they MUST provide the defendant with the data, and that the defendant WILL NOT complete an additional form which only serves to unnecessarily delay their response. To date a response has not been forthcoming, putting the defendant at a distinct disadvantage.

(5) Withholding any relevant photos of the car, particularly the windscreen and dashboard, and the signage terms, despite being asked for by the defendant at the outset, is against the SRA code as well as contrary to the ‘overriding objective’ in the pre action protocol.
As Gladstones are a firm of solicitors whose Directors also run the IPC Trade Body and deal with private parking issues every single day of the week there can be no excuse for these omissions.

The Defendant asks that the court orders Further and Better Particulars of Claim and asks leave to amend the Defence.

(6) UK Car Park Management are not the lawful occupier of the land. I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no rights to bring action regarding this claim.
1. The claimant is not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract.
2. The claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question.
3. The claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third-party agent, the claimant may not pursue any charge.

(7)
1. 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 to £160. This appears to be an added cost with apparently no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.
2. The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.

(8) The signage was inadequate to form a contract with the motorist.
1. The signage on this site was inadequate to form a contract. It was barely legible, making it
difficult to read.
2. The sign fails because it must state what the ANPR data will be used for. This is an ICO breach and contrary to the Code of Practice.
3. The sign cannot confer an obligation to only park in marked bays when there were no marked bays on the site, therefore there was no breach of any ‘relevant obligation’ or ‘relevant contract’ as required under Schedule 4 of POFA.
4. In the absence of ‘adequate notice’ of the terms and the charge (which must be in
large prominent letters such as the brief, clear and multiple signs in the Beavis case)
this fails to meet the requirements of Schedule 4 of the POFA.

(9) The driver did not enter into any 'agreement on the charge', no consideration flowed
between the parties and no contract was established.
The defendant denies that the driver 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.

(10)
1. The claimant has sent threatening and misleading demands which stated that further debt recovery action would be taken to recover what is owed by passing the debt to a ‘local’ recovery agent (which suggested to the Defendant they would be calling round like bailiffs) adding further unexplained charges of £60 to the £100 with no evidence of how this extra charge has been calculated.
No figure for additional charges was 'agreed' nor could it have formed part of the alleged 'contract' because no such indemnity costs were quantified on the signs.
Terms cannot be bolted on later with figures plucked out of thin air, as if they were incorporated into the small print when they were not.
2. The defendant also disputes that the claimant has incurred £50 solicitor costs.
3. The defendant has the reasonable belief that the claimant has not incurred £50 costs to pursue an alleged £100 debt.
4. Notwithstanding the defendant's belief, the costs are in any case not recoverable.
5. The claimant described the charge of £50.00 "legal fees" not "contractual costs". CPR 27.14 does not permit these to be recovered in the Small Claims Court.

(11) The defendant would like to point out that the land subject of this claim can be fully distinguished from the details, facts and location as in the Beavis case. This site does not offer a free
parking licence, nor is there any comparable 'legitimate interest' nor complex contractual arrangement to disengage the penalty rule, as ParkingEye did in the unique case heard by the Supreme Court in 2015. Whilst the claimant withheld any photos of the signs on site, the defendant contends these are illegible with terms hidden in small print, unlike the 'clear and prominent' signs which created a contract Mr Beavis was 'bound to have seen'.

(12) The claimant used a Prohibitive Sign.
IN THE COUNTY COURT AT HIGH WYCOMBE - Thursday, 21st April 2016
DISTRICT JUDGE GLEN
Between:
PARKING CONTROL MANAGEMENT (UK)
Claimant
-v-
CHRISTOPHER BULL
In summing up HHJ GLEN stated: -
18. 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.
19. I think Mr Samuels (for Claimant) recognised the difficulty of his conditional obligation argument, ie you must not park here but if you do then you have got to pay, and he urged upon me in the alternative that one had to look outside of just the roadways and look at the leases and the rights and obligations under the leases as a whole and to construct, as it were, a package of mutual obligations and benefits which gave rise to consideration for a contract whereafter a breach would result in a charge.
20. In my judgment the question of the ability to park on the roadways is a quite separate matter. On each occasion when the defendants parked on the roadway they trespassed against the interest of Thames Valley Housing Association Limited and Thames Valley Housing Association Limited would have been entitled to seek an injunction from doing it and would have been entitled to sue them for damages and those damages might have represented a reasonable charge for doing what they had done. However, in my judgment, there was never any contractual relationship, whether one categorises it as a licence or simply some form of contractual permission, because that is precisely what PCM were not giving to people who parked on the roadway.

The defendant’s submission is that this claim is so similar in terms of the use of a Prohibitive Sign, that only the owner of the land was entitled to sue for damages, not for breach of any contract, but for simple trespass. Similarly, ‘there was never any contractual relationship, whether one categorises it as a licence or simply some form of contractual permission, because that is precisely what the claimant was not giving to people who parked on the roadway.’

I believe the facts stated in this defence are true.


(Name) (Signature) (Date)


We really appreciate the time and patience of forum members in providing advice, support and confidence in fighting these unfair claims.

Fruitcake

Did the keeper send proof of ID with the SAR? We normally recommend a copy of the V5 or a redacted utility bill if that is no longer available.
Never send photo' ID.

If suitable ID was sent then complain to the ICO for each failure to respond to each SAR.

Tell the scamlicitors that although you deny the debt, you are seeking debt advice and therefore require them to put the case on hold for a month. Use those precise words.

Are you following the guide to court by bargepole from post 2 of the NEWBIES? This tells you how and when to get the case transferred to your local court as long as the case is against an individual rather than a business.

Do the AoS first but do not put anything in the defence box at this stage, not even a full stop.

SeaHaven

Thanks Fruitcake.
There was no need to send further proof of ID. We used the same email address they have corresponded with us, and we requested the data be posted to the keeper's address as provided by the DVLA.
If you feel strongly that we need to send proof of ID this can be accommodated, but from our perspective, unnecessary according to law as they already know the keeper's identity. Fundamentally we just want the data, so will do what is reasonable and necessary to achieve it.
We have completed the AoS online and confirm nothing submitted at all in defence at this time. We have limited time to submit a defence, about a week and a half.
Will read bargepole's advice in the Newbies thread - thanks for signposting!

Fruitcake

The Defence is followed by Statement of Defence. This makes no sense and is confusing because the numbering is not then unique.

Replace "I'd" with "the defendant" or "the court is referred to ..." or similar.

Either change 9 to paragraph 9, or move it to just in front of the second (4) like this,

(4). The claimant failed to abide by Schedule 4 of POFA 2012 [STRIKE]9[/STRIKE], which clearly states: -

9 (4) The notice must be given by—(4) The notice must be given by—

Where you use abbreviations, always put the full meaning the first time it is used, followed by the abbreviation afterwards in brackets.

In your second use of point 7, include that the judges in the Beavis case stated that the charge could not be more than that of the original charge.
Look for the beamerguy thread called "abuse of process", especially post 14, and include the comments made by the judges about throwing the cases out due to the fake £60 add on. If you have had debt crawler letters, do a screen grab from the website if it states something like no-win, no-fee since this means no extra charges have actually been incurred yet.