CC Claim - BW Legal Help!

Quentin

Your need to remove the links to dB to foil anyone seeing original content (available via the cache)

Lynxy

I looked at PPM's letter and fine and the difference between each picture is 10 minutes so the 'grace period' angle is invalid

But found this:
https://www.britishparking.co.uk/write/Documents/Meeting%20Notes/Governance/20150730_PDandS_Board_Action_Notes.pdf

'I will rely on minutes of the Professional Development & Standards Board (30th July 2015) where the recommendation agreed outcome from the meeting was to reword Clause 13.4 to ‘If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 11 minutes’.

KeithP

Yes, but that proposal never actually made it into the Code of Practice.

Lynxy

Could I argue that the sign was too high? It is about 3 metres, I will have to measure when I get home.

https://imgur.com/a/pXNqn51

Can I quote the Traffic Signs Manual - Regulatory Signs, Section 1.9.1 states

'the normal mounting height measured to the lower edge of a sign or backing board (or any supplementary plate) is between 900 mm and 1500 mm above the adjacent carriageway. The greater height should be used where vehicle spray is likely to soil the sign, or above planted areas. Careful consideration should be given to any proposal to mount signs at a low height, such as on railings or bollards, as there is a risk of drivers not noticing them, especially at night or when they could be obscured by parked vehicles or pedestrians. Where signs facing moving traffic are erected above footways, or in areas likely or intended to be used by pedestrians (e.g. pedestrian refuges), a headroom of 2300 mm is recommended, with 2100 mm as an absolute minimum. '

Or does private parking signs not have to adhere to the manual?

Lynxy

Hello team,

Can you kindly review the draft below?
I made the changes (Thanks to CouponMad) and added new parts.

________________________________________
DEFENCE
________________________________________

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

2. The notice to keeper shows the vehicle between 01.26.14AM to 01.36.57AM. A total of less than 11 minutes. I will rely on minutes of the Professional Development & Standards Board (30th July 2015) where the recommendation agreed outcome from the meeting was to reword Clause 13.4 of the BPA Code of Practice to ‘If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 11 minutes’. UK Parking & Property Management are represented on that Board and/or will have received a copy of the minutes and will indisputably have been aware of this agreed change, since 2015. It is disingenuous for any AOS member to continue to issue PCNs for eleven minutes since that BPA/DVLA Board meeting.

3. The signage is of a “forbidding” nature. It is limited to cars displaying a valid permit only and therefore the terms cannot apply to cars without a permit because the signage does not offer an invitation to park on certain terms. The terms are forbidding. This means that there was never a contractual relationship. The Defendant requests to refer to the following case law: PCM-UK v Bull et all B4GF26K6 [2016], UKPC v Masterson B4GF26K6[2016], Horizon Parking v Mr J C5GF17X2 [2016] – In all three of these cases the signage was found to be forbidding and thus only a trespass had occurred and would be a matter for the landowner.

4. 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. BPA’s Code of Practice, Appendix B contrast and illumination section states ‘Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times. This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit, we suggest that it should be made of a retro-reflective material similar to that used on public roads and described in the Traffic Signs Manual. Dark-coloured areas do not need to be reflective.

5.1 The parking sign was not lit directly or indirectly nor was the sign retro-reflective. This is not conforming to the British Parking Association Code of Practice, nor the rules that were issued after the outcome of the “ParkingEye V Barry Beavis” case.

6. 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 in such a position that anyone attempting to read the tiny font with no direct light would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

7. The claimant repeats through a series of communications that the vehicle was ‘parked in a no parking area’ yet provides neither by adequate signage, distinctive markings or later particulars of claim any information where a reasonable person can distinguish any such difference between available parking spaces.

7.1 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. They merely state that vehicles must be parked correctly within their allocated parking bay, giving no definition of the term 'correctly parked', nor indicating which bays are allocated to whom.

8. 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.

8.1 The Notice to Keeper is not worded properly for keeper liability in that it misstates the warning from Protection of Freedoms Act 2012 Section 8(2)f by saying 'within 28 days' and paraphrases the strictly prescribed words wrongly, so that the Notice to Keeper effectively misinforms the recipient about their liability as keeper, and is premature about it, by 2-4 days when compared to the 8(2)f wording.

9. 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. – verging on, in my opinion, an attempt to fraud the Defendant in to paying extra.

9.1 The Protection of Freedoms Act 2012, Schedule 4, at Section 7(2b), stipulates the that a set of information must be included in the parking ticket and when and how the parking rules were broken - The Claimant does not state this, but instead says 'parked in a manner whereby the driver became liable for a parking charge' - the alleged "manner" was remains ambiguous.

9.2. The particulars of claim also include a sum of £50, described as "Legal representative's costs". This work is done as part of the Claimant's everyday routine and no "expert services" are involved. The Claimant is put to strict proof, by way of timesheets or otherwise, to show how this cost has been incurred

9.3. Legal services cannot be claimed in the small claims court as per CPR 27.14

10. The Claimant has failed the Protection of Freedoms Act 2012 and so the defendant is not liable under the Protection of Freedoms Act 2012.

10.1 The Defendant believes that the Claimant has not followed the correct procedures outlined in the Protection of Freedoms Act 2012 by identifying who the driver of the vehicle was and therefore the Defendant, as keeper, is not liable for the charge.

10.2 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.

11. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

12. This case can be distinguished from ParkingEye v Beavis (2015) UKSC 67 (The Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage which formed a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a license to park fee. None of this applies in this case.

13. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

I believe the facts contained in this Defence are true.

Coupon-mad

I looked at PPM's letter and fine and the difference between each picture is 10 minutes so the 'grace period' angle is invalid

I disagree. Those timings sound very convenient indeed, and you can argue they are wrong/likely altered and that it is well known the handheld machine (or phone) times can easily be changed, as UKPC infamously did:

https://www.bbc.co.uk/news/uk-england-lincolnshire-34402322

Lynxy

Those dirty scoundrels! I will search the forum for any examples, - Thanks again CouponMad. Your a credit to this forum. Maybe you should run for PM.

Coupon-mad

Lynxy wrote: »

Maybe you should run for PM.

LOL, but it's fairly well known on here for regular readers, as I've mentioned it a couple of times in passing, I voted leave (coincidentally the same way bargepole says on here that he did) and I am perfectly happy to see Boris sort out Brexit.

Apparently on other forums that makes me thick and racist.

I am neither and I know nor is bargepole, but I am aware it might surprise some who like to assume we are all dim, or didn't know what we voted for.

But I digress. Back to the topic!

Lynxy

Ah, not to digress but yes, hopefully Boris sorts it out as it is all a mess at the moment.

I could not find any cases against UKPC and a judge which has ruled against such behaviour of altering photos. I think they admitted to the fraud before it went to courts. Regardless, I mentioned it anyway. Sent it 4 days before the deadline. I will chase up on Monday if it does not appear on MCOL.