PCN issued on a private, unadopted road

jackRlnd

apologies ... should have made it more clear.

this is the claimant's WS as requested by Fruitcake and the password is jackRlnd

jackRlnd

So I'm doing some final preparation for my hearing tomorrow and I'd appreciate some confirmation that I'll be approaching and arguing the correct things.

In my defense I pointed to right of way as one of the reasons the PCN was invalid. The claimant's WS states the following:

Right of Way
12. It is the Defendant's case that residents opposite the Site have had a right of way/access to park without objection or controls, for many years and prior to the construction of the Site in or around 2000-2001. On this basis, the Defendant appears to be suggesting that he and others have acquired a prescriptive right to park at the Site.

13. My Company denies that the Defendant or indeed others, have a right to park on the land either by way of prescriptive right or otherwise. In this respect, my Company relies upon the Judgment in Winterburn v Bennett 251:

"May 2016 wherein it was established that "where there has been sufficient protest by the landowner, there can be no legal right to use the land".

The landowner in that case had erected signage upon the land prohibiting public use and it was found that he had made his position clear by the erection of such signs and thereafter, the unauthorised use of the land could not be said to be "as of right".

14. In the current case, the landowner, purchased the Relevant Land in December 2002. Pursuant to the agreement dated gth August 2017, my Company were instructed by the landowner to manage and enforce parking at the Site. In accordance with that agreement, appropriate signage was installed notifying users of the parking restrictions as shown within the images annexed to the agreement. Authorised users, were issued with a permit requiring the same to be displayed in the front windscreen at all times, as set out within the signage. My Company therefore submits that landowner took sufficient steps to notify and prevent unauthorised users from parking at the Site and by accepting and using my Company's permit, the Defendant accepted that no prescriptive right existed.

With respect to para 13, they are relying on there having been sufficient protest by the landowner. Is this something they have to prove? When they state that the landowner "had erected signage upon the land" I presume they are NOT referring to the current signage provided by UKCPM? If this is the case, can I argue that the claimant has not provided any proof that there was previous signage present or that the landowner has protested sufficiently prior to the current arrangement?

Authority to Park
15. Without concession, the Defendant has not submitted any evidence in respect of the alleged agreement between the landowner and himself, which he avers authorised him to park at the Site and the Defendant is therefore put to strict proof.

16. In any event, the Defendant suggests that the alleged agreement was made in September 2017, prior to the erection of signage by my Company. As evident from the documents annexed hereto, my Company were instructed prior to the date of the aforementioned agreement and therefore, if any such agreement existed, the authorised use was subject to compliance with the terms and conditions set out within the signage.

17. Whilst the Defendant seeks to rely upon the terms of that agreement, my Company submits that the signage at the Site is contract. The terms were conveyed to the Defendant and an offer in the form of the license was made, i.e. to park if he was authorised or else accept my Company's charge to park. By parking in the manner in which he did, the charges were properly incurred.

I have provided the letter with the informal agreement in my WS. Whilst in my defense I stated that I received the letter prior to any agreement the claimant had with the owner, it turns out that an agreement was made in early august 2017. This is where I'll be arguing that the date I received the informal agreement is no longer relevant as it provided better terms than that of the signage.

Driver/Registered Keeper
18. There is no requirement for my Company to identify the driver as alleged by the Defendant. The Criminal Case of Elliott v Loake 1983 Crim LR 36 held that the Registered Keeper of a vehicle may be presumed to have been the driver unless they sufficiently rebut this presumption. To date the Registered Keeper has been invited on numerous occasions to identify the driver, yet has failed to do so. The Court is therefore invited to conclude it more likely than not that the Registered Keeper (i.e. the Defendant) was the driver.

19. In the alternative, if the Court is not able to infer that the Defendant was the driver then the Defendant is pursued as the Registered Keeper of the vehicle pursuant to Schedule 4 of the Protection of Freedoms Act 2012 ('the Act') Paragraph 4(1) which states: "The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle. "

20. Paragraph 2 of the Act states that; the "keeper" means the person by whom the vehicle is kept at the time the vehicle was parked, which in the case of a registered vehicle is to be presumed, unless the contrary is proved, to be the registered keeper. The relevant Notice was sent to the Defendant in accordance with the Act and the Registered Keeper (the Defendant) failed to nominate who was driving the vehicle prior to these proceedings which is required under paragraph 5(2) of the Act.

In my WS I provide invoices from my contractor proving they were renovating my house over the period on which the alleged incident occurred, disputing the claimant's conclusion that I was the driver of the vehicle. As such if the claimant wants to pursue the charge using POFA, the claimant must also prove that the incident took place on relevant land. The road on which the incident took place is a private and unadopted road and the claimant has provided evidence showing that the landowner purchased a section of the road adjacent to the developement that extends maybe ~1.5 metres to the centre of the road. Despite this, there are no restrictions preventing the general public from passing/repassing and as such I will be using Halsbury’s Laws 4th Edition 21[1] to argue that the road is a highway as “there exists a public right of passage, that is to say a right for all Her Majesty's subjects at all seasons of the year freely and at their will to pass and repass without let or hindrance” and hence NOT relevant land.

THE CURRENT DEBT
35. In view of the Defendant not paying the charge within the 28 days allowed they are in breach of the contract. Breach of contract entitles the innocent party to damages as of right in addition to the parking charge incurred.

36. My Company is an Accredited Operator of the International Parking Community (IPC) who prescribes a maximum charge of £100. The Code of Practice states:

"Parking charges must not exceed £100 unless agreed in advance with the IPC. Where there is a prospect of additional charges, reference should be made to this whereappropriate on the signage and/ or other documentation. Where a parking charge becomes overdue a reasonable sum may be added. This sum must not exceed £60 (inclusive of VAT where applicable) unless Court Proceedings have been initiated."

37. In view of the Defendant not paying the charge within the initial28 days allowed or the further 28 days allowed after the Notice to Keeper has been sent, the parking charge has become overdue and a reasonable sum of £60 has been added.

38. The Sign states the prescribed charge for failing to comply with the terms is £100, however it also specifies "Where a parking charge becomes due an application may be made to DVLA for the keeper's details. Non-payment will result in additional charges which will be added to the value of the charge and for which the driver will be liable on an indemnity basis". Further the Letter Before Claim also made it clear the debt may increase in respect of costs and interest if a claim had to be· issued. Due to the Defendant not paying the charge the matter was passed to my Company's legal representatives, Gladstones Solicitors Ltd, who were instructed to commence legal proceedings. The potential additional costs mentioned above are now sought.

39. The debt has, as a result of this referral risen as my Company's staff have spent time and material in facilitating the recovery of this debt. This time could have been better spent on other elements of my Company's business. My Company believes the costs associated with such time spent were incurred naturally as a direct result of the Defendant's breach and as such asks that this element of the claim be awarded as a damage. The costs claimed are a pre-determined and nominal contribution to the actual losses. Alternatively, my Company does have a right to costs pursuant to the sign (i.e. the contract).

In my WS I have added Excel vs Wilkinson and Chevalier-Firescu v Ashfords etc mentioned in another post to argue double recovery and abuse of process against this extra charge.

STATEMENT OF TRUTH
The Claimant believes that the facts stated in this Witness Statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth. I can confirm to the Honourable court, that after having approved the contents of this my statement, I authorised my electronic signature to be applied to the same.

I provided the same statement of truth in my WS but I did not have the last sentence regarding electronic signature. Will this matter?

Coupon-mad

No that wording isn’t needed in the statement of truth. 

You seem to be on the right track and have an answer to their allegations.  I know of the Winterburn v Bennet case and you should read it online. Your answer is that putting some signs up cannot cause a derogation from grant.  i.e. you had been granted terms of parking that cannot be interfered with by a third party and you have an interest in the land (and title if you are a leaseholder not a tenant) and such leases can’t just be varied arbitrarily and unilaterally.

Fruitcake

With regards to their WS, there are a few pages missing.

It refers to a site plan, but no such plan has been included.

The sign is actually a stock image and includes a prohibited premium rate number.. There are no photos showing that there are any signs on site, or where the car was allegedly parked in relation to any signs.

The agreement has only been signed by the client. This is a breach of Sections 43 and 44 of The Companies Act 2006. (Both sections are very short and worth a read).
There is no proof it was ever agreed by the PPC.

The identity of the client has been redacted. 

Have a look at this thread about redactions where the judge in the Hancock vs Promontoria case said it was unacceptable. This was an appeal case so it is persuasive on the lower courts.

Redactions in Disclosure — MoneySavingExpert Forum

Jenni_D

You'll get an order from the court (in writing) explaining the judge's decision ... this will tell you how much you have to pay and by when.

Surprising that the judge found for the claimant when the C didn't even attend the hearing. (Professionally represented claimants seem to get far more leniency from judges than litigant in person defendants. Logically it should be the other way round).

Le_Kirk

Jenni_D said:

You'll get an order from the court (in writing) explaining the judge's decision ... this will tell you how much you have to pay and by when.

Surprising that the judge found for the claimant when the C didn't even attend the hearing. (Professionally represented claimants seem to get far more leniency from judges than litigant in person defendants. Logically it should be the other way round).

Damn, what a shame for @jackRlnd.  It makes my blood boil when I read about claimants being given this much leniency, especially as there was a recent case where the defendant waited in all morning for a call (supposed to be 09.00) that didn't come and then went to work.  Of course the call came in the afternoon and he lost for non-attendance!

Coupon-mad

That seems most unfair, but these cases are rarely with an appeal if the Judge considered everything, he is entitled to come to the conclusions he did.  Glad he disallowed the added costs as usual.

Also, this is important to stop this happening again and stupid 3 figure sums being applied:

Can you confirm you have done the Government Consultation, open until 26th August as the last full day?  

We are also getting people to complain to their MPs to ask questions of the MHCLG because there is a horrific (very obviously PPC-led) naive mistake in the proposed framework that will CAUSE court claims:

 https://www.gov.uk/government/consultations/private-parking-charges-discount-rates-debt-collection-fees-and-appeals-charter-further-technical-consultation

We need to know you have done the Government Consultation and sent an email to your MP, and also to the Newquay MP who knew what he was talking about in the debates in 2018 linked here:: :

https://forums.moneysavingexpert.com/discussion/comment/78515438#Comment_78515438

To be clear, we need individuals (you and your family and friends, separately) to do the consultation linked there AND we are now calling for everyone to ask their MPs to raise with the MHCLG, what the heck has gone wrong since March, that they now think it's OK for false debt recovery costs to be added that positively drive cases to court?  

What are the MHCLG thinking? 

That added sum was supposed to end.  The Knight Act included MPs unanimously condemning charges as high as £120, but this proposal takes it up to £200 and FUNDS THE ROBOCLAIM RACE TO COURT 

We want MPs to kick up a stink.  This MUST be stopped.

jackRlnd

Coupon-mad said:

Can you confirm you have done the Government Consultation, open until 26th August as the last full day?  

apologies for the delay ... done

Coupon-mad

Good!  More people must!

Also, I hope you've also registered for the Group Action, against the DVLA (open to anyone with a PCN since 2018?).  Gotta be in it to win it!  Nothing to lose, and it's genuine.