Gladstones Letter Before Claim

ts6789

Further background to hep advice on the best approach:

I was not parked in a marked parking area. However the ticket was issued for not displaying a valid parking permit. I had on display an expired permit from the old parking company as per the advice of my housing association which was in the process of renewal the parking permits with a new company (not the one that issues the parking ticket)

ts6789

I have pulled together a defence using Johnersh's template which I found on the newbies thread. Text in red the sections I've changed and my notes in green. I'd be grateful on which defence would be the most effective - I'm assuming the latter regarding the signage would be most effective but would appreciate opinions from those more qualified/experienced!

Preliminary
1. The Particulars of Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.

2. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct. The Defendant further notes the Claimant's failure to engage in pre-action correspondence in accordance with the pre-action protocol and with the express aim of avoiding contested litigation.

Background
3. It is admitted that at all material times the Defendant is the registered keeper of vehicle registration mark XXZZZ which is the subject of these proceedings. The vehicle is currently insured with [provider] with [number] of named drivers permitted to use it. At the time of the claim, it was insured with [provider] with 9number] or names drivers permitted to use it. Added this as I've changed the person driving the vehicle at the time the ticket was issued is no longer a named driver.

4. It is admitted that on [date] the Defendant's vehicle was parked at [location]

5. It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.
5.1. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA")
5.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
5.2.1. there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
5.2.2. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
It is not admitted that the Claimant has complied with the relevant statutory requirements.

5.3. To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.

Authority to Park and Primacy of Contract
6. It is denied that the Defendant or lawful users of his/her vehicle were in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the Defendant permitting the above mentioned vehicle to be parked by the current occupier and leaseholder of [address], whose tenancy agreement permits the parking of vehicle(s) on land. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms. The lease terms provide the right to park a vehicle in the relevant allocated bay, without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle or the requirement to display a parking permit. A copy of the lease will be provided to the Court, together with witness evidence that prior permission to park had been given. Not sure if I can use this given what is currently stated in my tenancy agreement - ""You, members of your household and your visitors will:
- only park in marked parking areas
- comply with any parking schemes running at the estate"

7. The Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial.

7. Accordingly it is denied that:
7.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant
7.2. there was any obligation (at all) to display a permit; and
7.3. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

Alternative Defence - Failure to set out clearly parking terms
8. In the alternative, the Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to consider the imposition of a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.
8.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate.
8.1.1. At the time of the material events the signage was deficient in number, distribution, location, wording and lighting to reasonably convey a contractual obligation;
8.1.2 The signage was displayed opposite a similar sign from a different parking company, making it unclear as to which parking company operates in the area and thus to which company the Defendant was entering a contractual obligation Added this as the signage is currently situated opposite the sign from a different parking company. See link to the two signs below.
8.1.3. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee’s ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and
8.1.4. The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3
8.2. The Defendant avers that the residential site that is the subject of these proceedings is not a site where there is a commercial value to be protected. The Claimant has not suffered loss or pecuniary disadvantage. The penalty charge is, accordingly, unconscionable in this context, with ParkingEye distinguished.

9. It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking parking management. The Claimant has provided no proof of any such entitlement.

10. It is denied that the Claimant has any entitlement to the sums sought.

11. It is admitted that interest may be applicable, subject to the discretion of the Court on any sum (if awarded), but it is denied that interest is applicable on the total sums claimed by the Claimant.

STATEMENT OF TRUTH
I confirm that the contents of this Defence are true.

hxxps://drive.google.com/open?id=1BzNzSDn4zRfaRiqn66C97Vp7KeTAiSju
hxxps://drive.google.com/file/d/1sYkjMp8SSQLqvpyDQJdKCwYAZefIFg3a/view

[Deleted User]

Ok - a precedent is like fire - a good slave, but a bad master.

Don't be afraid to prune the template and prune it hard.

No witness statement regarding permission to park *delete*
No conflict between lease and parking terms precisely because the lease required you to comply with parking terms from time to time in force *a lot of deleting needed*

You need to ensure your best foot is forward. If their signage is more pants than a Victoria's Secret store, for heaven's sake say so - and I mean front & centre, not buried within your ancillary arguments.

Consider whether you need to defend as driver or if a first hand account from the individual that parked the car will assist/be more powerful. If the latter, that may have a bearing on how the defence is to be phrased.

Le_Kirk

Good sound advice from Johnersh and, as he is a legal-type person, I would, if I were the OP, follow his advice.

ts6789

Thanks Johnersh. I've removed the section on Authority to park and primacy of contract as I agree the best argument is the issues with the signage. I have made some tweaks - grateful for your expert opinion.

Is the argument around it not being a site of commercial value relevant in this case or not necessary if the rest of the argument is strong enough?

As for defending as the driver, I wasn't the driver. It was my father, who was a named driver at the time. He parked the car for a short period of time to take bring shopping to my flat. I'm not sure how a first hand account from my father would help in this case?

Preliminary
1. The Particulars of Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.

2. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct. The Defendant further notes the Claimant's failure to engage in pre-action correspondence in accordance with the pre-action protocol and with the express aim of avoiding contested litigation.

Background
3. It is admitted that at all material times the Defendant is the registered keeper of vehicle registration mark XXZZZ which is the subject of these proceedings. The vehicle is currently insured with [provider] with [number] of named drivers permitted to use it. At the time of the claim, it was insured with [provider] with 9number] or names drivers permitted to use it.

4. It is admitted that on [date] the Defendant's vehicle was parked at [location]

5. It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.
5.1. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA")
5.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
5.2.1. there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
5.2.2. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
It is not admitted that the Claimant has complied with the relevant statutory requirements.

5.3. To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.

6. 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. The ticket was issued for not displaying a valid parking permit

6.1. 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.

6.2. The terms on the Claimant's signage are displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

6.3 The signage was also situated directly opposite another sign from a different parking company which operates in the same area. It is therefore impossible for any individual to know which company the Defendant was entering into a contractual obligation with.

6.4. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation. The Defendant is aware that the landowner has contracted out a different parking company to operate in that estate. It is unclear as to which part of the estate is managed by which parking company and who the Defendant, or any other driver, is entering into a contract with. I am seeking confirmation from the other housing association that this parking company is allowed to operate in the part of the estate which is managed by a different housing association, which is where the ticket was issued

6.5. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee’s ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and

6.6.. The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3

7. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

8. It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking parking management. The Claimant has provided no proof of any such entitlement.

9. It is denied that the Claimant has any entitlement to the sums sought.

10. It is admitted that interest may be applicable, subject to the discretion of the Court on any sum (if awarded), but it is denied that interest is applicable on the total sums claimed by the Claimant.

STATEMENT OF TRUTH
I confirm that the contents of this Defence are true.

[Deleted User]

Hang on...

I had on display an expired permit from the old parking company as per the advice of my housing association which was in the process of renewal the parking permits with a new company (not the one that issues the parking ticket)

This. Let's break it down:

1. You had an old permit, which you were told to display pending your managing agent or the PPC sending you a new one (I hope you have an email to this effect)
2. You attempted to comply with the requirements and as per directed by your managing agent. what do they say?
3. If permits were not issued "back to back" by the parking companies the issues must be these.
3.1. The PCN issuer and old parking co "oldco" failed to issue a new temporary permit until their contract expired; or
3.2. oldco issued a PCN when their contract had expired and was granted to newco (hence no permit had been sent to you); or
3.3. there is a boundary issue between parking companies and a conflict of contractual signage.

The existence of newco signs is would suggest that the oldco contract had been terminated. You'll need very careful witness evidence and may wish to review the defence carefully.

ts6789

I'm not sure this issue is relevant to this parking ticket as the ticket in question was issued by UKCPM who are managed by the other landlord on the estate. There are two landlords who have contracted out two different parking companies. My landlord has appointed Countrywide Parking whilst the other landlord appointed UKCPM. But I'll provide the background regardless so you can advise appropriately.

1. I have a copy of the letter from the HA advising us to display our expired permit whilst they look to change over parking companies.
2. The letter states the following: "We are currently working with Countrywide Parking Management, who will be taking over the Parking Enforcement contract in your area. Whilst we finalise the contract, please continue to display your current permit, we have agreed that these will be valid until the new contract is in place. If you are not displaying a permit in your vehicle and are parked on the estate you may receive a penalty charge notice". This was back in February 2018. I continued to display my permit. The HA claim to have sent a follow up letter on 6 March advising tenants on how to renew. I did not receive this letter, neither did my father who also lives on the estate. I received a ticket from Countrywide parking on 27th April 2018 and one by UKCPM on 14th June 2018 for not displaying a valid permit. I only realise the HA were ready for applications for renewal when I received my first ticket. I applied by there was a delay in issuing the permit due to rent arrears on my account, so I only received a permit in late June.

The tenancy contract states the following: You, members of your household and your visitors will:
- only park in marked parking areas
- comply with any parking schemes running at the estate"

3. I think the main issues 3.3. The ticket in question was not issued by the oldco but by the co appointed by the other landlord which manages the other half of the estate. UPDATE: I spoke to the other landlord and they said that CPM are authorised to monitor all of the estate except for the bays allocated to the other landlord. Does this weaken my argument?

ts6789

Would really appreciate a response to this as soon as, if possible! The deadline to submit my defence is fast approaching - Monday 19th August.

ts6789

Reposting my draft defence as I'd appreciate some advice on whether this is the best approach


Preliminary
1. The Particulars of Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.

2. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct. The Defendant further notes the Claimant's failure to engage in pre-action correspondence in accordance with the pre-action protocol and with the express aim of avoiding contested litigation.

Background
3. It is admitted that at all material times the Defendant is the registered keeper of vehicle registration mark XXZZZ which is the subject of these proceedings. The vehicle is currently insured with [provider] with [number] of named drivers permitted to use it. At the time of the claim, it was insured with [provider] with 9number] or names drivers permitted to use it.

4. It is admitted that on [date] the Defendant's vehicle was parked at [location]

5. It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.
5.1. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA")
5.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
5.2.1. there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
5.2.2. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
It is not admitted that the Claimant has complied with the relevant statutory requirements.

5.3. To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.

6. 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.

6.1. 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.

6.2. The terms on the Claimant's signage are displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

6.3 The signage was also situated directly opposite another sign from a different parking company which operates in the same area. It is therefore impossible for any individual to know which company the Defendant was entering into a contractual obligation with.

6.4. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation. The Defendant is aware that the landowner has contracted out a different parking company to operate in that estate. It is unclear as to which part of the estate is managed by which parking company and who the Defendant, or any other driver, is entering into a contract with. I contacted the other housing company and they have said that CPM have been authorised to operate across the entire estate. Does this weaken my argument?
6.5. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee’s ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and

6.6.. The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3

7. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

8. It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking parking management. The Claimant has provided no proof of any such entitlement.

9. It is denied that the Claimant has any entitlement to the sums sought.

10. It is admitted that interest may be applicable, subject to the discretion of the Court on any sum (if awarded), but it is denied that interest is applicable on the total sums claimed by the Claimant.

STATEMENT OF TRUTH
I confirm that the contents of this Defence are true.

ts6789

Hi,

I have received my court date for 4th February and I need to provide my documents no later than fourteen days before - is that fourteen working days (i.e. 15th of Jan) or fourteen normal days (i.e. 21st Jan)?

I will be using my defence above to shape my witness statement. I'd be grateful for any views on whether I need to strengthen specific parts of it for the witness statement.

I will also be providing the following images to show that there are two parking signs from two different companies positioned opposite each other. Interestingly, the parking sign from UKCMP has now been removed.

hxxps://drive.google.com/open?id=1BzNzSDn4zRfaRiqn66C97Vp7KeTAiSju
hxxps://drive.google.com/file/d/1sYkjMp8SSQLqvpyDQJdKCwYAZefIFg3a/view

I have asked my housing association for a parking map but they have refused to provide it. I have also contacted the housing association which brought in UKCMP and they said the following "in order to address illegal parking, CPM are authorised to monitor all of x Street apart from bays 5 to 21, which are monitored by Countrywide." (removed name of street for anonymity). Does this affect my case in anyway?

In terms of other evidence to provide, I'm think the only ones that would be relevant based oj the list provided in the newbies thread, are the following:
((a) a copy of the Beavis case sign as a comparison to show how awful the small print sign was in yours case
(b) photos proving the scarce and illegible small print signs in your case, a view showing the lack of entrance signs, etc.
(c) a video of how it looks from a car is good evidence! You can get a passenger to hold a camera or phone and record the lack of signs seen.
(d) a copy of Schedule 4 of the POFA - there is a link to it in post #1 above. The Judge will NOT have this to hand & is unlikely to be familiar with it. This is only applicable if you are defending as keeper.
(e) a copy of Henry Greenslade's wording from the POPLA Annual Report 2015 'Understanding Keeper Liability' if defending as keeper.