Gladstones County Court Claim

Dredd786

Hi everyone hope you are all well
bit of a newbie on the forums for posting so sorry if I do the mistake.

So the story goes...
in Sept 17 the driver parked in a private car park in town and paid for 3 hours after entering my cars registration, or so we thought.

Oct. 17 I get a letter asking for payment which I wrote on it 'No contract' return to sender as well as pointing out I did in fact pay for 3 hours and if their machine did not register my Reg. correctly that was no my fault.

I get another letter in Oct to say they considered my case and comments - my appeal was declined as the driver either did not pay or display or enter the correct Reg. That there was clear signage for terms of parking and the charge stands (the Signs are above the ticket machine and most of it is in a tiny font)

I could appeal to IAS.

I returned that letter to sender with 'No Contract' return to sender.
Yes I know that is not seen as a defence but it feels good to write down!

Further letters were sent which I returned in the same manor, eventually leading to a LBC letter.

I did a bit of research and started a dialogue in reply.. which worked for a while until I dropped the ball and so now I have a County Court letter to deal with which I need to acknowledge and sort out a defence?


The court letter is dated the 10th Dec, so the service date would be the 15th and I have 14 days to acknowledge which would make it the 28th Dec. I have started a thred on peipoo and uploaded docs forums.pepipoo.com/index.php?showtopic=111841&hl=Gladstone

any help appreciated


btw I liked bargepoles defence

KeithP

With a Claim Issue Date of 10th December, you have until Monday 31st December to do the Acknowledgement of Service, but there is nothing to be gained by delaying it. To do the AoS, follow the guidance offered in a Dropbox link from post #2 of the NEWBIES FAQ sticky thread.

Having done the AoS, you then have until 4pm on Monday 14th January 2019 to file your Defence.

That's nearly four weeks away. Loads of time to produce a perfect Defence, but don't leave it to the very last minute.


When you are happy with the content, your Defence should be filed via email as suggested here:

Print your Defence.
1. Sign it and date it.
   
2. Scan the signed document back in and save it as a pdf.
   
3. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
   
4. Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
   
5. Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
   
6. Do not be surprised to receive a copy of the Claimant's Directions Questionnaire, they are just trying to put you under pressure.
   
7. Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.

Your Pepipoo links directs us to a Feb 2017 thread.

Dredd786

OK will acknowledge and get started.

Dredd786

Acknowledgement has been made, thanks.

Dredd786

JPeg Images / Letters uploaded to TinyPic site to view but as the forum is not allowing to post links just copy/past them into a browser https
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Dredd786

so far I have the following

1. I am the registered keeper of the vehicle with VRN

2. On the (DATE) the driver of vehicle VRN parked in Westgate Arcade Car Park, a ticket was purchased from the pay and display machine for three (3) hours to allow enough time for five (5) people to be able to attend routine checkups at Hunjan’s Dentist’s in Westgate Arcade. On attending the appointments they were all re-arranged by the Dentist to a future date and the family returned to the vehicle approx. 14 Minuets later. The total stay at the car park was noted at 19 minutes. (I still have the appointment SMS Text messages reminders on my mobile phone)

3. I received a postal Parking Charge Notice to Keeper from HX Car Park Management Ltd

4. The PNC stated they failed to record any payment against the vehicles VRN, any failure to record the payment was entirely the fault of the Claimant's system. Given that they had the full VRN of the vehicle and data for all VRN’s recorded for that day, any incorrect VRN data recorded should have been rectified or brought to the attention of the DPO. I have asked the Claimant for payment records for the period in order to identify the vehicle but I received information for the wrong dates and a full VRN list was refused.

The requirement for the full VRN registration is a breach of The Consumer Protection from Unfair Trading Regulations 2008

The last three letters easily identify a vehicle in a small car park

The requirement to enter the full registration has no purpose other than to increase the probability that a simple mistake or a sticking keyboard will give rise to a draconian penalty

5. I am confident the Claimant provided no evidence of who was driving the car and cannot presume that the Registered Keeper was the driver at the time of the alleged contravention.

6. The Registered Keeper can only be held liable under the Protection of Freedoms Act 2012 (POFA 2012) if the Claimant meets the Notice to Keeper obligations of Schedule 4 of POFA 2012. The Notice to Keeper does not include 9(2) from Schedule 4, which is the mandatory warning about keeper liability after the prescribed 28-day period. Therefore, according to POFA 2012, I cannot be liable as the keeper for the alleged debt of the driver. As the Claimant's notice is not fully compliant with the statutory wording, the Claimant is unable to hold the Keeper of car liable under the strict 'keeper liability' provisions. A further statement is missing from of the Notice to Keeper, according to the The Independent Parking Committee - Code of Practice, Part C 5.1 (F) The Notice to Keeper must State that the Creditor does not know the name of the driver and a current address for service for the driver. Compliance with this is mandatory.

7. To support this, I rely upon the words of barrister and parking expert Lead Adjudicator for PATAS and POPLA, Henry Michael Greenslade, where he clarified in the POPLA Annual Report 2015 in a heading: 'Understanding Keeper Liability' that 'however keeper information is obtained, there is no reasonable presumption in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver.

8. Whilst HX Car Park Management Limited are listed as the claimant for this case, I have researched the title deeds and plan for the Westgate Car Park and can find no proof of whether there is any contractual arrangement between the Claimant and the owner or occupier of the land in question, or, if such a contractual arrangement exists, what the terms of that arrangement are. The Title Deeds for the land (Evidence Bundle Exhibit X) show the owner of the Land to be a company called Due West Limited (Incorporated in Cayman Islands B.W.I.).










9. I therefore assert that the Claimant has no Locus Standi to bring this claim because:

The party HX Car Park Management Limited in the Parking Contract, is claimed has the right to grant the rights in the Parking Contract. HX Car Park Management Limited is not the landowner or another entity proven to be authorised by the landowner. No proof of a formal agreement between the landowner Due West Limited (Incorporated in Cayman Islands B.W.I.) and HX Car Park Management Limited has been provided by the Claimant and therefore the Claimant has failed to establish an express conferral of rights has taken place pursuant to Section 1(1)(a) and 1(3) of the Contracts (Rights of Third Parties) Act 1999 which require terms to identify the Claimant and express terms granting the Claimant the right to enforce the contract; or the right to sue.

10. Also, Part B Paragraph 1.1 of the Independent Parking Committee (IPC) Code of Practice (CoP) that the Claimant is subject to as a Trade Association member specifically provides that the Claimant must have written authorisation of the landowner. Compliance with the CoP is mandatory. Implicit in this is that Claimant would have no rights under the Parking Contract if they were not granted by the landowner.

11. Strict proof is required that there is an assignment of contractual rights from the landowner to the Claimant. The Claimant has failed to establish an express conferral of rights has taken place pursuant to Section 1(1)(a) and 1(3) of the Contracts (Rights of Third Parties) Act 1999 which require terms to identify the Claimant and express terms granting the Claimant the right to enforce the contract; or the right to sue. This proof should also explain how such a legal assignment has taken place between a company based in the Cayman Islands, and HX Car Park Management Limited, a UK based company.

12. I also note from the Title Deeds to the land on which the Westgate Arcade Car Park is wholly situated upon, that the address of the land is completely different to the address to which the Parking Contract refers, which calls into question whether this contract can be assumed to have been formed correctly between the Driver and the Claimant. The address to which the Notice to Keeper refers is Westgate Car Park, Horton Street, Halifax, HX1 1PU. The Address of the land upon which the Westgate Car Park is wholly situated is in a different street, and has a different postcode, the address being 22-24 Westgate, Halifax, HX1 1DJ. As no Notice to Keeper has been sent for the address of land upon which the alleged contract was formed, it is held that no contract has been formed between Driver and Claimant.

13. I also deny that a contract was formed between the Claimant and the Defendant, as no offer was communicated by the Claimant, effectively or at all, that was capable of acceptance by the Defendant, expressly, by conduct, or at all.

14. Subsequent to receiving the Parking Charge Notice (PCN) I visited the car park in question, and I noticed signs place at the entrance, I could not read the first sign as it was faded. From a position as a motorist this was difficult to read and I can confirm I have good eyesight, subsequently I had to park my car and walk to the sign, only then could I read it. The sign does not follow the Contrast and Illumination rules set out in the COP Schedule 1 which are recommended to be Black on White or vice versa. The chosen scheme Red? on Brown? would cause even more issues to the visually impaired. I believe this does not meet the minimum requirement for the IPC Code of Practice relating to signs communicating contractual terms to drivers therefore an informed decision cannot be made upon entering the car park. Perhaps when new, the sign at the entrance may have deemed to have met the guidelines, but I would suggest an urgent review is in order.





15. I would also like to review the time it currently takes to read the current signage which under its current format and state was not the simple task it required to be. I recorded a video whilst I did this and it took me approx. six and a half minutes to read the signs at the entrance and at the ticket machine, taking no time to consider what I had read during the task and I was still unsure if I had read the full terms and conditions as it was not stated on the main sign anywhere that these were the full terms and conditions. Add to this the additional time taken to park a car and use the ticket machine which ironically did not record the correct VRN on first attempt proved to me that the time allowed to do all of this and to purchase a ticket within the allowed 10 minutes is insufficient, it takes more than 10 minuets to do all of the above, so what about people who don’t have excellent eyesight or the natural light is low? The signs have no additional illumination either as required for low or night conditions which I would say invites the court to take a dim view of the current arrangement altogether.

16. At the time of the Drivers alleged contractual contravention, the current signage is not sufficient to prove a contract was formed between the Driver and the Claimant.

17. The entrance sign mentions terms and conditions and lists them but does not go on to mention all of the terms and conditions. It references the sign at the pay & display machine for full terms & conditions. The pay & display sign does not state full terms and conditions, there is only reference to full terms & conditions. This is contrary to the IPC Code of Practice, Part E, Schedule 1 - Signage, Entrance Signs. (See Evidence Bundle Exhibit XX).

18. The text size of the entrance signage means that it is not readable by a motorist in a moving vehicle, or at the very best not easily read contrary to IPC Code of Practice, Part E, schedule 1 - Signage, Text size. (See Evidence Bundle Exhibit XX).
Signage is not clearly legible and placed in such position that a driver is able to clearly see them on entering and parking a vehicle, contrary to IPC Codes of Practice, Part E, Schedule 1, signage, Other Signs, condition 4. Example of signage where the vehicle was parked, (See Evidence Bundle Exhibit XX). This sign is fixed to a wall some 7ft 10inch (236cm) high (measured from pavement to bottom of the sign).

16. Signage does not contain the required text, text in the appropriate format or appropriate to position and relative position of the person who is reading it, this is particularly apparent with the entrance sign and repeater signs around the car park. contrary to IPC Codes of Practice, Part E, Schedule 1 - signage, Other Signs, condition 6. (See Evidence Bundle Exhibit XX).

17. I have also checked with the local planning authority, Calderdale Council, and I can find no advertising consent for either the signs in the Westgate Car Park. The Claimant is put to strict proof to demonstrate that they do indeed hold the required advertising consent. Failure to demonstrate this would mean the Claimant is likely committing a criminal offence under Regulation 30 of the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 (as amended), because advertising consent has not been given by Calderdale Council for the signs. Should this be the case I believe the court should not lend its aid to a Claimant who founds a claim based on an unlawful act pursuant to the doctrine ex dolo malo non oritur actio.




I believe that these facts stated in this witness statement are true.

The_Deep

Many judges now regard a wrongly entered VRN as a trifling matter and find for the defendant.

https://en.wikipedia.org/wiki/De_minimis

and the law does not deal in trifles.

IMO, taking such a claim of breach of contract in these circumstances to court is an abuse of court processes, many of these keyboards are old, well worn, and unfamiliar to the user.

Technology is available to cross reference keyboard entries to data captured by the ANPR system, but scamming PPCs know that this would affect their revenue.

Please complain about this scam to your MP as it is the will of Parliament that these scammers be put out of business.

Hopefully that will take place in the near future. The Bill has passed through the HOC without hitch, and goes to the Lords soon. In the meantime involve your MP, the poor dears are buckling under the weight of complaints about these scammers.

KeithP

Dredd786 wrote: »

so far I have the following...

What's that?

The last line says it's a Witness Statement.

Have you already filed your Defence?

Post #2 above told you that you have until 4pm on Monday 14th January 2019 to file your Defence.

That's getting quite close now.

Coupon-mad

A defence is not written ''I did this'' it's written in the third person 'The Defendant admits/denies that...' and 'The facts are that the Defendant's car was parked and a ticket paid for and displayed...blah blah' like the defence examples in the NEWBIES thread.

Dredd786

Hi

I have not filed a defence yet and I realise that what I posted last is a mix of a defence and witness statement so I am starting over to separate the two. It is difficult to gauge previous defences to see what applies in this case and what does not so it is taking time.

KeithP

Dredd786 wrote: »

...it is taking time.

And the process recognises this.

That is why you are given a whole month to compile a Defence.

Four days left.