Advice for PCN Challenge

ceto

Hello

Having read and followed the advice from the newbie thread I still need further advice in challenging the PCN from UK CPM.

I unsuccessfully appealed against the charge directly with the operator as the registered keeper on the grounds that the location cited in the PCN is factually incorrect and inconsistent with the pictured location of the vehicle on the day. It is important to note that the car was parked in the rear car park of a parade of shops NOT on the side street being alleged in the PCN. In their rejection letter the operator stated Church street (pseudo name) is the internally used name to denote the entire site which CPM administers.

I have since received a formal demand notice seeking prompt payment of the claim otherwise the overdue charge will increase to £160 in the first instance of further action. Unfortunately I wasn’t able to appeal to the IAS within the time period advised in the rejection letter, so as it stands I can now reasonable expect a letter from their solicitor as the next stage of further action, or perhaps more letter demanding payment.

So my first question is whether the fact the location cited in the PCN is factually incorrect is a strong enough argument in my defence should this matter go all the way to litigation.

Secondly, I wondered if there was a good argument for unfairness in the claim given I was on site for legitimate shopping business in the parade. The signage (see link below) states “A valid permit must be clearly displayed in the windscreen at all times or the vehicle registration must be registered for an electronic permit. No parking outside of a designated area. If unsure seek advice from CPM or refrain from parking.” Unfortunately, there was no where on site for the vehicle to be registered for an electronic permit as indicated in the signage.

Thirdly, the signage states ANPR may be in use but in actual fact there is no such thing as the photo of the alleged contravention was taken from a camera phone with no date or time stamp shown. This was further confirmed from the appeal rejection letter where CPM states “…the site operates under a self-ticketing system whereby the landowner, or approved agents of the landowner, self-police the site for parking contraventions.” Is there any credible argument to be made here as part of my defence?

Thank you all and looking forward to the feedback.

Coupon-mad

Unfortunately I wasn’t able to appeal to the IAS within the time period advised in the rejection letter,

That's not unfortunate. NO-ONE tried IAS here. A kangaroo court. You'd have lost.

So my first question is whether the fact the location cited in the PCN is factually incorrect is a strong enough argument in my defence should this matter go all the way to litigation.

Not on its own, but it would be mentioned in your defence, yes.

Secondly, I wondered if there was a good argument for unfairness in the claim given I was on site for legitimate shopping business in the parade. The signage (see link below) states “A valid permit must be clearly displayed in the windscreen at all times or the vehicle registration must be registered for an electronic permit. No parking outside of a designated area. If unsure seek advice from CPM or refrain from parking.” Unfortunately, there was no where on site for the vehicle to be registered for an electronic permit as indicated in the signage.

Have a look at defences you find when you search this forum for:

defence PACE v Lengyel true

...as a non permit holder has been offered no licence to park and cannot display a permit even if they tried, so that term is void for impossibility. Read the Lengyel case and threads mentioning it.

Thirdly, the signage states ANPR may be in use but in actual fact there is no such thing as the photo of the alleged contravention was taken from a camera phone with no date or time stamp shown. This was further confirmed from the appeal rejection letter where CPM states “…the site operates under a self-ticketing system whereby the landowner, or approved agents of the landowner, self-police the site for parking contraventions.” Is there any credible argument to be made here as part of my defence?

Yes, you can argue that the operation is predatory and ticketing is incentivised for payment of a bounty. State that the person taking the photos should be called to court as a witness to answer for their reasons for issuing the PCN and to be questioned on whether they have been trained in the IPC Code of Practice, the DPA/GDPR and the Equality Act, given the data they are handling and the requirements of those laws and codes are paramount for any AOS member.

ceto

Thanks Coupon-mad. I am now battle ready! Bring it on!!

ceto

Hello again,

Just to give a quick situation update and seek your wise counsel as ever.

I received a letter today from TRACE Debt Recovery UK Ltd demanding prompt payment as you would expect. It goes on to say:

“Our client is now assessing cases on their merits for enforcement through the county court. Your case is now under review (in bold letter font). If you do not make the full amount (£160) by 30 May 2019 or you have not contacted us to agree a payment option by then, we will be forced to take further recovery action which could include an appointed solicitor being instructed to take your case to court. Should we take this action it will result in: further solicitor charges and court costs being added to your balance, and county court judgment”

Am I right in thinking the advice remains Do Nothing until court claim papers are issued?

Thanks for your help.

Le_Kirk

ceto wrote: »

Am I right in thinking the advice remains Do Nothing until court claim papers are issued?

Thanks for your help.

Absolutely correct as advised in depth in the NEWBIE thread post # 4.

The_Deep

Nine times out of ten these tickets are scams so complain to your MP.

Parliament is well aware of the MO of these private parking companies, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, persistent offenders denied access to the DVLA database and unable to operate.

Hopefully life will become impossible for the worst of these scammers, but until this is done you should still complain to your MP, citing the new legislation.

http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted

Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.

ceto

Hello,

Just a quick update on situation. I have now been served with the court claim form. I have already acknowledged the service of claim, giving me sufficient time to prepare my defense.

I have prepared my defense statement below for which I now invite your critique and review.

Thanks ever so much.

---

IN THE COUNTY COURT BUSINESS CENTRE

CLAIM No: GXXXX

BETWEEN:

UK CAR PARK MANAGEMENT LIMITED (Claimant)

-and-

XXX (Defendant)

________________________________________
DEFENCE STATEMENT
________________________________________


1. I am the Defendant, DOB - xx/xx/19xx, and reside at xxxx and it is admitted that I was the driver of the vehicle on the day of this event.

2. Save as specifically admitted in this defence the Defendant denies each and every allegation set out in the particulars of Claim

Preliminary matters:

3. The claimant failed to include a copy of their written contract nor any detail or reason for - nor clear particulars pertaining to - this claim (Practice Directions 16 7.3(1) and 7C 1.4(3A) refer).

4. The Particulars of Claim (PoC) do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how any terms were breached. Indeed the PoC are not clear and concise as is required by CPR 16.4 1(a) and CPR 1.4. It just vaguely states “parked in breach of the terms of parking stipulated on the signage” which does not give any indication of on what basis the claim is brought, for example whether this charge is founded upon an allegation of trespass or 'breach of contract', so I have had to cover all eventualities and this has denied me a fair chance to defend this in an informed way. I have asked questions in the form of a Part 18 request but have not received any response.

5. The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no diligence, no scrutiny of details nor even checking for a true cause of action. HMCS have identified over 1000 similar sparse claims. I believe the term for such conduct is ‘roboclaims’ which is against the public interest, unfair on unrepresented consumers and parking companies using the small claims track as a form of aggressive, automated debt collection is not something the courts should be seen to support. On the basis of the above, I request the court strike out the claim.

6. The claimant’s signage reads:
Private Property
Parking Terms & Conditions
Authorised Vehicles Only
A valid permit must be clearly displayed in the windscreen at all times or the vehicle registration must be registered for an electronic permit. No parking outside of a designated area. If unsure seek advice from CPM or refrain from parking.
By entering or remaining on this land you agree to abide by all the Terms and Conditions.
Breach of ANY term or condition will result in the driver being liable for a Parking Charge of £100
Parking charges are to be paid within 28days. Additional parking charges apply for each 24hour period, or part thereof, that the vehicle remains in breach or if it returns at any time. Terms and conditions apply 24hours a day, all year round. Where a parking charge becomes due an application may be made to the DVLA for the keeper’s details. Non-payments 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. Automatic Number Plate recognition may be in use. Images may be captured and retained for enforcement purposes. We are not liable for any loss or damage howsoever caused to any person or property whilst on this site save under any statutory exceptions. Managed by: UK Car Park Management Ltd. PO Box 3114 Lancing BN15 5BR Registered in England and Wales (07383860)

In further support of there being a want of cause of action:

7. According to the Particulars of Claim, the claimant states the vehicle was parked in breach of terms of parking stipulated on the signage (the Contract). I refer to case Pace Recovery and Storage Ltd vs Zoltan Lengyel (24th May 2017) in which it was agreed that ‘… the signs must inform the driver that he is entering into a contract with the claimant’. As in the Pace vs Lengyel case (see section 13), nowhere within this sign does it inform the driver that by parking in the car park, he is entering into a contract with the claimant. Indeed the words “contract” or “agreement” do not appear at all within the sign, which merely refers to the driver being liable for a parking charge if in breach of any term or condition. In the Pace vs Lengyel case, the judge established that the phrase “terms and conditions” are not synonymous with a contract.
8. Even if the court is minded to accept that a valid contract exists between the claimant and defendant, the basis for such a contract requires the driver to display a valid parking permit or register the vehicle for an electronic permit. This is something the defendant could not do as a legitimate customer within the parade complex. The shop I was visiting informed me they weren’t able to issue a customer parking permit (display or electronic) as this was never provided to them. The consequence of this is that any contract between the claimant and the defendant required the defendant to do something which he simply could not do, that is, display a permit. The inability of the defendant to display a permit was not caused by any act or omission but by state of affairs over which he had no control. Therefore any contract between the parties is invalid under the doctrine of impossibility of performance. Again I refer to case Pace Recovery and Storage Ltd vs Zoltan Lengyel (24th May 2017)
9. The claimant’s signage states Automatic Number Plate recognition may be in use with images captured and retained for enforcement purposes. However, the images of alleged contravention was clearly taken from a camera phone with no date and time stamp information provided. I submit, therefore, that the operation is predatory and ticketing is incentivised for payment of a bounty.!I wish to state that the person who toke the photos should be called to court as a witness to answer for their reasons for issuing the PCN and to be questioned on whether they have been trained in the IPC Code of Practice, the DPA/GDPR and the Equality Act, given the data they are handling and the requirements of those laws and codes are paramount for any AOS member.
10. It is submitted that the Claimant is merely an agent acting ‘on behalf of’ the landowner who would be the only proper claimant. Strict proof is required of a chain of contracts leading from the landowner to this Claimant, to allow them the right to form contracts and to sue in their name.
11. It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, I am keeping a note of my wasted time/costs in dealing with this matter.
12. The court is invited to strike out the claim, due to no cause of action nor prospects of success.
13. The facts and information in this defence are true and the Defendant is not liable for the sum claimed, nor any sum at all.

KeithP

What is the Issue Date on your County Court Claim Form?

Upon what date did you file an Acknowledgment of Service?

MCOL claim history will have the definitive answers to those questions. Please don't guess.

ceto

Hi KeithP,
Issue date on the claim form was 13th Jan 2020.
Acknowledgement of service was posted on 28th Jan 2020.

Thanks.

KeithP

ceto wrote: »

Issue date on the claim form was 13th Jan 2020.
Acknowledgement of service was posted on 28th Jan 2020.

With a Claim Issue Date of 13th January, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 17th February 2020 to file your Defence.

That's over two weeks away. Plenty of time to produce a Defence, but please don't leave it to the last minute.


When you are happy with the content, your Defence could 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. No need to do anything on MCOL, but do check it after a few days to see if the Claim is marked "defence received". If not, chase the CCBC until it is.

After filing your Defence, there is more to do...

1. Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire. Nothing of interest there. Just file it.
   
2. Wait for your own Directions Questionnaire from the CCBC, or download one from the internet, and then complete it as described by bargepole in his 'what happens when' post linked from post #2 of the NEWBIES thread.
3. The completed DQ should be returned by email to the CCBC to the same address and in the same way as your Defence was filed earlier.
4. Send a copy of your completed DQ to the Claimant - to their address on your Claim Form.

ceto

Hello Again,

I'd really appreciate any feedback on my defence arguments please. Have I missed any important points or is it ready to go as is. Thanks