PCM, Gladstones, Service acknowledged. Defence help needed

Redx

plus it seems overly long to me , and long defences have attracted criticisms in the past by member BARGEPOLE, hence his concise defence that we cite as the starter for ten defence

compare yours to his, and bear in mind his comments about rants etc

Umkomaas

18. This charge represents a breach of the well-known and well-established principle that 'a grantor shall not derogate from his grant'. This rule embodies a general legal principle that, if A agrees to confer a benefit on B, then A should not do anything that substantially deprives B of the enjoyment of that benefit.

I normally associate 'derogation from grant' more with residential parking cases. I'm not saying it doesn't apply more widely, but as you've included it in your defence, I take it that you have researched it more fully and have better information about it than I do?

Can you share your source(s) please?

Donotdealwithorigin

Fair comments and thank you. I have chucked everything at it. Ok, will consider that source and revise. Didn't think it was ranting, however I'm happy to listen and adapt to what is likely to go down better in a shorter message.



As for my sources, I used part of



https://forums.moneysavingexpert.com/discussion/5940347/draft-defence-against-private-parking-solutions-i-have-read-newbies-thread


Which I thought was well written. Where I thought it is relevant to this case is that permission had been granted many times to park in this location by the gym as was done on the occasion my son got the ticket. My opinion is that as permission was granted, it is relevant, however I am not coming on here being a "know-it-all" and saying you very experienced people haven't thought of it. I probably will prune it out when I cut it down to not cause too much fluff to the argument.

Donotdealwithorigin

Thanks for your input, whilst no where near as short as one of BARGEPOLE's defences, it is closer to that than the first draft and removes the section raised, as are others, with the intent to put more detail in for the witness statement and skeleton defence. Please feel free to let me know if it is still overweight or plain wrong:



IN THE COUNTY COURT

CLAIM NO: XXXXXXX

BETWEEN:

PARKING CONTROL MANAGEMENT (UK) LIMITED (Claimant)

-and-

xxxxxxxxxxxxxxxxxxx (Defendant)



DEFENCE

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The facts are that the vehicle, registration XXXX, of which the Defendant is the registered keeper, was parked on the material date in parking site allocated to Company XXXX at XXXX Industrial Estate, and had permission to park from the lessee/owner of the business attached to the land parked on.

3. The Particulars of Claim state that the Defendant was driving the Vehicle and/or is the Keeper of the Vehicle.’ These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the Claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

4. Due to the sparseness of the particulars, it is unclear as to what legal basis the Claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

5. It is admitted that the Defendant is the registered keeper of the vehicle in question.

6. The defendant has no liability as they are the Keeper of the vehicle, and the Private Parking Company has failed to comply with the strict provisions of PoFA 2012 to hold anyone other than the driver liable for the charges.

6(i) The driver has not been evidenced on any occasion.

6(ii) There is no presumption in law that the keeper was the driver and nor is a keeper obliged to name the driver to a private parking firm. This was confirmed in the POPLA Annual Report 2015 by the POPLA Lead Adjudicator and barrister, Henry Greenslade, when explaining the POFA 2012 principles of 'keeper liability' as set out in Schedule 4.



7. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle and is unlit, as the matter was alleged to have occurred in the hours of darkness. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

8. The Claimant claims that the Defendant “incurred the parking charge(s) on 14/11/2017 for breaching the terms of parking on the land at xxxxxx xxxx Industrial xxx(postcode)” when they do not state which bit of land they refer to or the exact actual location. Xxxxxx xxxx is a large industrial estate with many businesses, with free, without-permit parking across most of the site. Furthermore, there is no signage at the entrance to the site, therefore there are no clear terms of parking for the industrial estate. This is a clear breach of the Claimant’s trade body (Independent Parking Community) guidelines.

9. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them.

10. The defendant cannot contractually agree to do something in the signage that is forbidden (parking in the “hatched areas”). The claim and signage are in error in being unclear as to whether parking constitutes a contract or a trespass, therefore a contract could not have been formed.

11. By stating “Retrospective evidence of authority to park will not be accepted” on the Claimant’s signage, it creates an unfair situation that cannot pass the test of reasonableness, in that the Claimant has, in advance, disallowed a reasonable invitation to approach the lessee/owner of the gym and clarify the permission that the Defendant was granted to park.

12. The driver was allowed the right to park by ……. Gym, relying on an express verbal agreement with the manager. This permission created the prevailing and overriding contract - the only contract - and the business was concluded as agreed, at no cost or penalty.

13. 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. 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.

14. Even if there were a contract, the Claimant is trying to recover additional charges such as legal costs £50.00 and court fees £25.00. The Protection of Freedoms Act (POFA) 2012 does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. The Defendant also has reasonable belief that the Claimant has not incurred the stated additional costs and is put to strict proof they actually have occurred.

15. This charge represents a breach of the well-known and well-established principle of promissory estoppel, i.e. that a promise is enforceable by law, even if made without formal consideration, when party A has made a promise to party B, who then relies on that promise to his subsequent detriment.

16. The Court is invited to dismiss this claim in its entirety, and should the matter proceed to trial, to award the Defendant his costs pursuant to CPR 27.14.

Statement of Truth:


I confirm that the contents of this statement are true to the best of my knowledge and belief.

Name
Signature
Date

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. 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. 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 pub

Donotdealwithorigin

Thanks, The Deep, yes I have seen this post from you elsewhere and I agree, they are a total menace.



Update: Can you believe it? PCM sent a reply, received today, to my son's request for a SAR, made on Monday morning! At least their Data Protection Officer is good at his Job, or maybe he doesn't have a lot to do. There is nothing to note on the response, just the same dark, grainy pictures, correspondence and basic details to identify the owner of the vehicle, so it seems they have nothing on his file that relates to any of the pre-court protocol requested and I am guessing that Gladstones hasn't asked them for it.

Redx

PCM will only send the data on him in response to a SAR

the PaP oct 2017 is where you require the rest, in the LBC rebuttal, which they will eventually produce just before the court date, in theory by the date the judge sets as the deadline

I think these DPO are realising they need to be more on the ball as we recommend it a lot, same as over on pepipoo forums, CAG and legal beagles etc


you can check any basic facts using that data, in case any of it alters the defence for example


there was another thread today where the defendant found they had admitted to being the driver in their initial appeal, so POFA2012 went out of the window

Donotdealwithorigin

I've read a few cases on here regarding PaP oct 2017 not being followed. So, is it your experience that you are seeing judges being hard on the claimant if they have not complied, as in this case, or is it very patchwork in those who get tough on it and those who don't?


re POFA2012, my son admitted to being the driver when the debt collection letter arrived (before I found this forum), but didn't receive the letters from PCM, the notice to keeper and reminder, so the demand for money had already gone up and he didn't get the chance to appeal, was simply told "too late". I was in two minds whether to include the POFA2012, however without the opportunity to appeal, against the premise of part of the case was that he was, on repeated occasions, allowed to park there, I kept it in my second draft (comments still welcome), but don't know if it presents a contradiction and if I was correct to do this?

Umkomaas

So, is it your experience that you are seeing judges being hard on the claimant if they have not complied, as in this case, or is it very patchwork in those who get tough on it and those who don't?

A very small number do, most don't. Other than not missing the opportunity to report their non-compliance, I wouldn't base any hope that this will be any kind of showstopper.

Donotdealwithorigin

Hi, I'm bumping this up as we are going to submit the defence in the next couple of days and I would really appreciate comments as to whether the revised defence I posted up on 3rd Jan is acceptable/ok/still too long. As I said earlier, it isn't the briefest defence, however cuts a lot of wood out of the first one.