Small Claims Court, Parking fine

JonathanGd

I might have screwed up my defence against a PCN. Or is there still a way to fight it in court? Here is what happened:

• In November 2018 I received a PCN from a company called ES Parking Enforcement. According to the PCN I had violated the parking conditions by returning back to the customer parking lot within four hours. The times given were 7:02:37 PM, and 7:16:10 PM, duration of stay was according to the PCN 13 minutes.
• What I do know for certain is that I was not the driver. With the PCN came two time stamped photos, both very dark, which just showed the outline of my car and the highlighted number plate.
• Since I was not the driver, I wanted to appeal. The only option given to appeal was the company’s online portal. I am of an age where contemporary technology seems frightening and I don’t fully trust any webbased services.
• Oh, this is probably important: The PCN was sent to me 19 days after the incident and arrived 22 days after. Which seems to me in breach of the stipulations of POFA Act 2012, schedule four ( I have done a little research)
• I have never had to deal with any legal notices before, and had no idea how to phrase a legal text such as an appeal. Legal texts scare me, because I find them very hard to comprehend. So I used a website that provides legal letters. You answer some questions and receive a tailored legal letter which you then send of. I really should have read the wording, though. Here is what I wrote:

On 20th November 2018 you sent me a notice, which required me to pay what is referred to within the charge notice as a Parking Charge. However, I believe that the ticket was not fairly issued and that no sums are owed by me because:

I. I was not parked inappropriately at the time the ticket was issued. I was parked fully in accordance with the rules set out at the car park because the vehicle was parked as follows:

The Parking Charge alleges that on 1st November 2018 the driver has entered the car park, shopped, left the car park and returned again. All of this within 13 minutes, which sounds hardly plausible.

II. The signage at the car park does not clearly set out the relevant parking restrictions. This means that there can be no contract between me and the landowner and/or that it cannot be claimed by you that I am in breach of any restrictions.

III. The fine of £100 is clearly excessive. It does not reflect any genuine loss to the landowner of such amount.

IV. I was not driving the vehicle in question at the time the ticket was issued and did not park it where alleged.

V. The notice to keeper is not valid in accordance with Schedule 4 of the POFA Act 2012 because:

a. The notice arrived more than 14 days after the alleged parking infringement.

For the avoidance of doubt, I will not disclose any details regarding the driver of the vehicle on the day in question, as I do not have any obligation to do so as a registered keeper of the vehicle.

The cornerstone of my appeal was then – and still is – that I was not the driver. I sent the appeal twice, once using their web portal (which I don’t trust!) and once via signed for mail. I


I didn’t receive any response to my appeal. Instead, a second notice arrived, asking me to either name the driver or pay. The quality of the attached pictures had slightly improved, yet still not showed the driver.


Since I was still waiting for the outcome of my appeal, I ignored the letter. Next letter in the post was from Gladstone Solicitors. I answered that, again stating that I was not the driver of the car. Here’s a copy:

Dear Sir/ Madam,

This is to inform you that I will not accept your client’s claim stated above. I have appealed ES Parking Enforcement Ltd’s Parking Charge Notice on 10th December 2018 on grounds that I was not the driver who committed the alleged parking offence.

The appeal was made twice, once using ES Parking Enforcement Ltd’s dedicated online portal and also in writing by Royal Mail Special Delivery. The letter was delivered and signed for at 10:06 AM on 12th December 2018.

Unfortunately, your client has not deemed it necessary to respond to either the appeal made using their web portal nor to the written letter.

If necessary, I am prepared to contest your client’s claim in Small Claims Court.

Yours Sincerley

Gladstone’s answer included a copy of the rejection of the appeal, supposedly emailed to me the same day I filed the appeal. Needless to say, it never arrived in my inbox. Nor in the spam box, coming to think of it.

And now they are taking me to court. I have acknowledged the service online and thus have 28 days left to write my defense. There are a number of things that bother me and that I want to include. But first, here are Gladsone’s Particulars of Claim:

The driver of the vehicle….. parked in breach of the parking terms stipulated on the signage (the contract) at ...(location) … on … (date) thus incurring the parking charge (the PCN). The driver of the vehicle agreed to pay (note: If they know the driver and have reached agreement with them, why are they still pursuing me???) within 28 days of issue yet failed to do so. The Claimant claims the unpaid PCN from the defendant as the driver/keeper of the Vehicle. Despite demands being made, the Defendant has failed to settle their outstanding liability. (the rest specifies the composition of the claimed sum).

So, what bothers me?

• 1. How do I know that they (ES Parking and by implication Gladstones) actually act legally for the landowner? At no point have they made that clear.
• 2. I WAS NOT THE DRIVER!
• 3. The PCN was sent 19 days after the incident.
• 4. The contract the driver has entered in according to ES PARKING can hardly be legal since it does not provide any stipulations for cancellation.
• 5. The signs are clearly visible. They are, however, about 1, 80 m – 2,00 m off the ground, so you have to leave the car and walk close to read them.
• 6. Gladstone seem to thing that the signs serve as a notice to the driver, equivalent to a traditional note stuck behind your windscreen wiper and that they are therefore not bound by the POFA 2012 14 days restriction.
• 7. They reason that I had not provided proof that I was not the driver. Neither have they provided proof that I was the driver! What is that about?
• 8. What also bothers me: The ‘contract’ is between the driver and the Parking Enforcement company. It is quite common in my family (and in many others I know off) that two or more drivers visit the same supermarket at different times. That means that the vehicle might have breached the contract but not the drivers. They still pursue the driver and/or keeper. Is this actually legal.

Can I put any of this in my defense? And, if so, how would I phrase it. As I said in the beginning, I am not at all good at any kind of legal writing.

p { margin-bottom: 0.25cm; line-height: 115%; background: transparent none repeat scroll 0% 0%; }

The_Deep

Please read the stickies/FAQs, and acquaint yourself with the keeper liability parts of schedule 4 of POFA 2012. Many of your questions are answered therein.

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.

Le_Kirk

Just check the NEWBIE thread post # 2 (it's the Sticky on the first page of this forum) and find one of the defences written by Bargepole and others and adapt it to suit, including all the points you make. Someone will critique it for you.

JonathanGd

Thank you for the answer. I have read the FAQ's, but must have overlooked the bit where the validity has beed discussed of the Solicitor's claim that the signs in car parks serve as the equivalent of a driver notice and that they therefore have 57 days rather than only 14 to give notice to the keeper.

Coupon-mad

this is probably important: The PCN was sent to me 19 days after the incident and arrived 22 days after. Which seems to me in breach of the stipulations of POFA Act 2012, schedule four

True. Therefore the fact you were not the driver does mean your main argument is 'no keeper liability'.

I have read the FAQ's, but must have overlooked the bit where the validity has beed discussed of the Solicitor's claim that the signs in car parks serve as the equivalent of a driver notice and that they therefore have 57 days rather than only 14 to give notice to the keeper.

That's a weird way to put it. The NEWBIES thread does say in the first post, where it talks about 'IF YOU WANT TO DIG DEEPER' that the POFA is not mandatory and the PCN is not 'void' just because it's non-POFA. But it is incapable of holding a keeper liable.

The_Deep

JonathanGd wrote: »

Thank you for the answer. I have read the FAQ's, but must have overlooked the bit where the validity has beed discussed of the Solicitor's claim that the signs in car parks serve as the equivalent of a driver notice and that they therefore have 57 days rather than only 14 to give notice to the keeper.

I do not understand, please clarify.

JonathanGd

Okay, I have pieced together a defence, but am not sure if this can stand as it is or would need further adjustments. I would therefore greatly appreciate if someone could have a look at it and point out what could be done better.


DEFENCE

In the COUNTY COURT BUSINESS CENTRE
Claim No.
Issue Date: 07 June 2019

Defendant:
Claimant: ES Parking Enforcement Limited, City House, 131 Friargate, Preston, PR1 2EF

1. The claimant states that the driver of the vehicle with registration XXXXXXXX parked in breach of the terms of parking stipulated on the signage at Seymour Grove Retail Park Manchester on 01/11/2019

I am the registered keeper of the above vehicle, but I was NOT the driver committing the alleged breach. Since the signage at XXXXXXXXX stipulates explicitly that the contract is concluded between ES Parking and the driver of the car, I can not be hold liable for the Parking Charge.

2. The Claimant states that the driver has agreed to pay the PCN within 28 days of issue yet failed to do so.
This indicates that the Claimant have been in contact with the driver and thus also have their contact details. If this is the case, the Claimant’s attempt to hold me as the keeper liable for unpaid Parking Charges amounts to harassment.

3. The Claimant sent the notice to keeper on (date of letter), 19 days after the recorded incident. Therefore the notice to keeper is in breach of POFA 9, Section 4.

4. I have appealed against the charge notice twice, using their online portal but also, because I do not trust webbased portals, by registered post. The letter was posted on XXXXXXX, and received and signed for on XXXXXXX.

5. I had not received any response to the appeal. Only when I reminded Gladstone Solicitors of the missing response to the appeal, they kindly sent me a pdf copy of the letter in which the appeal was rejected. I have not received this reply (one reason why I posted the appeal was because I simply do not trust the reliability of email correspondence), nor was one in the post. Since all other communication has been postal, I would have expected a serious matter like the rejection of an appeal to be sent by postal service, too. Therefore, there was not time to initiate an appeal with the independent appeal authority.

6. Thus far, I am uncertain whether the Claimant actually acts on behalf of the landlord. Neither the correspondence with ES Parking Limited nor with Gladstone Solicitors identifies their contractual status with the landlord.

Redx

there are unfounded assumptions in there that GLADRAGS or E S PARKING know who was driving , they dont unless somebody has told them , so they assume that the keeper and driver are one and the same, yet you have stated that you were not the driver, so unless you named the actual driver, its a mystery to them so that statement is incorrect, an assumption at best (so stick to the facts)

in post #1 above you have asserted that you are not the driver and yet state that you were parked correctly within the lines, one is incorrect, either you did park as driver , or you didnt

their assertion is that the vehicle broke the rules, not a person

looks more like a Witness Statement to me, not a defence

starts with CCBC, when its nothing to do with the CCBC , it should be claimant versus defendant (look at the defences by Bargepole)

has no mention of ABUSE OF PROCESS as seen in other threads (if they are claiming extra costs , so more then say £175)

has no statement of truth at the bottom

here is what CM thinks people may be using as a defence

most people can use bargepole's concise template defence from the NEWBIES thread,
and add in a point or two about the facts of the case/contravention/why they are not liable.
And a point about no landowner authority as seen in other defences and add the
ABUSE OF PROCESS paragraphs by coupon-mad, and renumber all paragraphs.

this court case will be at your local court, not the CCBC in Northampton

JonathanGd

Thanks. I realise that the wording in post one is misleading: I was not the driver. Looking at a picture of the signage I have taken, they state clearly that the driver is entering the contract, not the vehicle. Also, just a technicality, they claim that the contract contains a 'No return within 4 hours' clause (is that the vehicle or the driver?). The signs, however state clearly: No return within 90 minutes.

Redx

all this is grist for the mill and can and should be brought up in your WS and in court , never mind in any defence

the fact is that a pcn is issued against a vehicle, its common practice that a driver is deemed responsible for actions of said vehicle, and a keeper is only liable if they have followed POFA in order to transfer culpability from driver to keeper , meaning that is when POFA allows it to be transferred, otherwise it remains against the driver (even if the driver is unknown)

misleading and incorrect signage tends to be a killer argument for any defendant, as does no landowner authority or contract, plus POFA and CoP failures etc

KeithP

JonathanGd wrote: »

Issue Date: 07 June 2019.

With a Claim Issue Date of 7th June, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Wednesday 10th July 2019 to file your Defence.

That's a week away. Loads of time to produce a Defence and it is good to see that you are not leaving it to the last minute.


When you are happy with the content, your Defence should 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. Log into MCOL after a few days to see if the Claim is marked "defence received". If not chase the CCBC until it is.
   
6. Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire, they are just trying to keep you under pressure.
   
7. Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.