PCN Appeal to IAS? ES Parking Enforcement

KeithP

Kingofspain2k1 wrote: »

Sorry Keith completely missed that as I thought your post was blank!

The issue date is 6 December.

With a Claim Issue Date of 6th December, you have until Monday 30th December to file an Acknowledgment of Service. If possible, do not do the AoS before 12th December, but otherwise there is nothing to be gained by delaying it. To do the AoS, follow the guidance offered in a Dropbox file linked from post #2 of the NEWBIES FAQ sticky thread. About ten minutes work - no thinking required.

Having filed an AoS, you have until 4pm on Wednesday 8th January 2020 to file your Defence.

That's four 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.
   
6. Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire, they are trying to keep you under pressure. Just file it.
   
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.

Kingofspain2k1

KeithP wrote: »

With a Claim Issue Date of 6th December, you have until Monday 30th December to file an Acknowledgment of Service. If possible, do not do the AoS before 12th December, but otherwise there is nothing to be gained by delaying it. To do the AoS, follow the guidance offered in a Dropbox file linked from post #2 of the NEWBIES FAQ sticky thread. About ten minutes work - no thinking required.

Having filed an AoS, you have until 4pm on Wednesday 8th January 2020 to file your Defence.

That's four 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.
   
6. Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire, they are trying to keep you under pressure. Just file it.
   
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.

Thanks Keith

With AOS complete, an SAR sent to ESPE, and data rectification notices sent to both Gladstones and the CC, I am still currently drafting my defence.

For the benefit of this thread I am uploading the Particulars of Claim...

"The driver of the vehicle with registration XXXXXXX (the 'Vehicle') parked in breach of the terms of parking stipulated on the signage (the 'Contract') at XXXXXXXXXX, on XXXXXXXX, XXXXXXXX thus incurring the parking charges (the 'PCN's'). The PCN's were not paid within 28 days of issue. The Claimant claims the unpaid PCN's from the Defendant as the driver/keeper of the Vehicle. Despite demands being made, the Defendant has failed to settle their outstanding liability. THE CLAIMANT CLAIMS £100 per PCN, £60 per PCN contractual costs pursuant to the Contract and PCN terms and conditions, together with statutory interest of £6.87 pursuant to s69 of the County Courts Act 1984 at 8.00% per annum, continuing at £0.07 per day."

THEY HAVE ADDED A SECOND OFFENCE DATE! This is the first time I am aware of any additional breaches. Until now it was a single offence on 11 July but the POC say both 11 July and 23 July. I have had no paperwork from anybody until now regarding the 23 July. No additional PCNs or debt recovery letters.

My defence currently is aimed at

• Not identifying the driver and pursuing me as driver/keeper
• The lack of signage upon entry to the road
• The only sign being 25m beyond the point of where the vehicle is positioned in the photographic evidence and therefore a) illegible, and b) not obviously applicable to the land preceding it

Although not defences per se, is this the appropriate time to question the addition of the second alleged offence, and also whether the claimant has land owner authority to take legal action against me? I'm reading all the defences and trying to make sense of what gets included in this initial defence stage. If not should there be an additional letter to Gladstones to ask for justifications on these things, as well as evidence of these PCN contractual costs they claim?

KeithP

A reminder...

...you have until 4pm on Wednesday 8th January 2020 to file your Defence.

Over three weeks have simply vanished since I wrote that.

Kingofspain2k1

KeithP wrote: »

A reminder...

Over three weeks have simply vanished.

Thanks for the saltiness Keith.

Yes three weeks have passed but certainly not vanished as during that time I have:

a) faced the irrevocable breakdown of my relationship
b) been told I am facing redundancy at work, the bureaucratic processes that come with that, and spent hours drafting a 26 page individual counter proposal, and
c) had to contend with the small matter of Christmas

I have also (somehow) been working on the defence. I haven't posted it yet because the first draft isn't finished. I have read the sticky thread and the links contained within and have honestly struggled to make sense of what applies to my case but I am pushing on regardless. Also, due to time commitments, it is difficult to dip in and out as I find myself re-reading threads again just to try and understand them.

When I have something which includes all elements I will post. I have just hit a point whereby I was unsure what to include at this stage and whether or not to spend time drafting it only to get feedback from the likes of yourself telling me it is not relevant yet. Hence my post today. I had also not seen any other examples of additional alleged offences being snuck into a claim for the first time despite no prior knowledge.

Coupon-mad

I had also not seen any other examples of additional alleged offences being snuck into a claim for the first time despite no prior knowledge.

Did the sum being claimed change & go up, from the LBC to the POC?

They added an extra one so surely the sum changed by £160 plus, at what point? LBC stage? Claim?

ashley_cohen

Kingofspain2k1 wrote: »

The lack of signage upon entry to the road
The only sign being 25m beyond the point of where the vehicle is positioned in the photographic evidence and therefore a) illegible, and b) not obviously applicable to the land preceding it

Worth checking from the local council whether the road is adopted or not.

If it's adopted, it's not relevant land, and the parking company can't issue private tickets, it has to issue council-authorised tickets, quoting the Traffic Management Act.

Kingofspain2k1

Coupon-mad wrote: »

Did the sum being claimed change & go up, from the LBC to the POC?

They added an extra one so surely the sum changed by £160 plus, at what point? LBC stage? Claim?

I never received a LBC so the first I became aware of the additional offence was in the Claim itself. But I am not in possession of any facts surrounding that instance, no times no photos. I presume it is the same spot on the same road as it is where I used to drop my ex gf off at her work before I received the first PCN.

Kingofspain2k1

ashley_cohen wrote: »

Worth checking from the local council whether the road is adopted or not.

If it's adopted, it's not relevant land, and the parking company can't issue private tickets, it has to issue council-authorised tickets, quoting the Traffic Management Act.

I doubt it but thanks for the tip. I have sent an email off to the council asking for clarification.

Kingofspain2k1

IN THE COUNTY COURT

CLAIM No: XXXXXXXX

BETWEEN:

ES PARKING ENFORCEMENT LTD (Claimant)

-and-

XXXXXXXXXXXXXXXXXXXXX (Defendant)


________________________________________
PRELIMINARY MATTERS
________________________________________

(1). The Claimant has failed to include a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the
Claimant’s contractual authority to operate there as required by the Claimants Trade
Association's Code of Practice B1.1 which says

1.1 If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the ‘Creditor’ within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges. There is no prescribed form for such agreement and it need not necessarily be as part of a contract but it must include the express ability for an
operator to recover parking charges on the landowner’s behalf or provide sufficient
right to occupy the land in question so that charges can be recovered by the operator
directly. This applies whether or not you intend to use the keeper liability provisions.

(2). The particulars of claim do not meet the requirements of Practice Direction 16 7.5 as
there is nothing which specifies how the terms were breached. Indeed the particulars
of claim are not clear and concise as is required by CPR 16.4 1(a). The Claimant is
known to be a serial issuer of generic claims similar to this one. HM Courts Service
have identified over 1000 similar sparse claims. I believe the term for such behaviour
is roboclaims and as such is against the public interest.

Practice Direction 3A which references Civil Procedure Rule 3.4 illustrates this point:

1.4 The following are examples of cases where the court may conclude that particulars of
claim (whether contained in a claim form or filed separately) fall within rule 3.4(2)(a):
1. those which set out no facts indicating what the claim is about, for example ‘Money
owed £1000’,
2. those which are incoherent and make no sense,
3. those which contain a coherent set of facts but those facts, even if true, do not
disclose any legally recognisable claim against the defendant.

(3). The Claimant has not complied with the pre-court protocol.

1. I'd refer the court to Para 4 on non-compliance and sanction, and I'd also point out
that there can be no reasonable excuse for the Claimant's failure to follow the
Pre-action Conduct process including

Sending all correspondence to a previous address of the Defendant
Declaring without proof that the Defendant was driving the vehicle in question without evidence as to the fact in their response to the PCN appeal by the Defendant
The claim was also issued by the Claimant’s own Solicitors so they clearly had legal advice before issuing proceedings.

It is asserted that the above is an abuse of process by the Claimant.

As a result, the Defendant will not be able to respond to the claim relating to the alleged offence on 23/07/2019 as the Defendant has not received any evidence or information from the Claimant in respect of this matter.

________________________________________
DEFENCE
________________________________________

1. It is admitted that the Defendant was the authorised registered keeper of the vehicle in question at the time of the alleged incident. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The facts are that the vehicle, registration XXXXXXX, of which the Defendant is the registered keeper, was situated on the material date by the side of a road in the Spinningfields Estate, Manchester between 20:04:50 and 20:04:53 on 11/07/2019.

3. The Particulars of Claim state that the Defendant was the registered keeper and/or the driver of the vehicle. These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5.

4. There is no presumption of keeper liability (Elliott v Loake and CPS v AJH Films). The Claimant has not provided any evidence as to who the driver was during the alleged breach of parking. Therefore no such presumption can be made based on those cases.

5. 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. 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. Between the start of the road in question and the location in which the vehicle was photographed, there is no signage at all warning the Claimant of any liability for stopping.

7. The first sign to appear along the road in question is approximately 25 metres beyond the point in which the vehicle has been photographed by the Claimant. Being the first sign along the route it is contended that any terms presented on the sign would only be applicable and therefore potentially enforceable beyond that point in the road and not before it.

8. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a vehicle at that distance, 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.

9. 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.

10. 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.

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.

I believe the facts contained in this Defence are true.

Kingofspain2k1

I would really appreciate any feedback at all on what I've drafted