CPMS - LETTER OF CLAIM RECEIVED UPDATE 2021 - FINAL WITNESS STATEMENT HELP

Coupon-mad

Looks fine. 

Nothing to stop you adding a point #4 and #5 to include these two valid points, then adjusting the later numbering to suit:

• Given access by estate agent and told to park where vehicle was parked - implied permission to be there? YES, PROMISSORY ESTOPPEL.
• Not receiving the NTK and getting no response (x2) from CPMS when tried to contact them - and therefore escalating the whole matter without a chance at any resolve.  YES, THE JUDGE WILL WANT TO KNOW THIS.

Le_Kirk

If that is a defence, then no pictures accompany it when submitted, save them for the WS stage.  If they are just to show us, that's fine.

greengeko

Thanks both - very much appreciate your input.

The photos are just for clarification for anyone reading the thread - I will not be including them in the defence.

Coupon - I'm not sure I understand exactly how promissory estoppel exactly applies in this case? As the promisor (estate agent) has not gone back on their word.

I have added the below paragraphs as #3 and 5 (as it seems more logical in that order) - any comments on the below would be great.

3. Access to the land in question is by a secured gate. The Defendant was given access to the land by a representative of the estate agent ‘Julie Twist Properties’. The representative instructed the Defendant to park the vehicle in the location it was left. Therefore, the vehicle was de facto authorised to be there.

5. A notice to keeper, compliant with Schedule 4 of the Protection of Freedoms Act 2012, was never received by the Defendant. It is accepted however that under paragraph 9 of the above act that “A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered”. The Defendant only became aware of the alleged (and disputed) ‘parking charge’ after being contacted by ‘Debt Recovery Plus Ltd’ on the 24th July 2019 and again on the 14th August 2019. The Defendant tried twice to try and contact the Claimant via email to clarify this matter, once on the 28 July 2019 and again on the 25th August 2019. Despite receiving acknowledgment of contact no reply was ever received. The Defendant then received a letter from the Claimant informing them that the matter had been sent to BWLegal. It is clear to the Defendant that the Claimant had no interest in providing reasonable clarification or resolution of the matter.

KeithP

I would remove this sentence from your para5...

It is accepted however that under paragraph 9 of the above act that “A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered”.

It adds nothing to your argument. 

Coupon-mad

Therefore, the vehicle was de facto authorised to be there and the doctrine of promissory estoppel applies. In the alternative, an alternative contract was agreed, with the authorised property agent granting the right to park.  You could base your defence on this similar one:

https://forums.moneysavingexpert.com/discussion/comment/77789200/#Comment_77789200

greengeko

Thanks coupon and KeithP - I will make the suggested changes.

Having been back and looked at the google maps views of the car park entry it seems that there is a sign of some description on the inner facing aspect of the right gate post (unclear if it is a parking sign) - I've attached the google images views.

I've added an additional sentence to address this in one of the paragraphs - thoughts on this?:

4.1. It is accepted by the Defendant that on the date and time in question an entrance sign was visible but did not convey any contractual terms and simply stated that “PARKING RESTRICTIONS APPLY” and to “READ SIGNAGE WITHIN”. No signage displaying terms and conditions was reasonably visible at the entrance gate. A sign, if related to parking at all, had been deliberately placed on an inner facing aspect of the opposite gate post, thereby rendering it unviewable by a driver entering the land from the direction of 'Media City'.

Coupon-mad

Yes, that's fine.

greengeko

Having read about the PACE v Lengyel case (should I reference this?) I have also added the bold text (and removed a sentence) to the below points:

4.2. The Defendant states the signage displaying the terms and conditions was deficient in number, distribution and wording to reasonably convey a contractual obligation.

4.2.1. The signage at the time of the material events 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 is a signatory. The signage displaying the terms and conditions are not in “sufficient number so that they are clearly visible to Motorists on the Controlled Land”. It is put forward that the Claimant is unable to provide evidence that the signage displaying the terms and conditions were reasonably visible from the area occupied by the vehicle. Additionally, the signage displaying the terms and conditions do not explicitly identify Car Park Management Services as “as ‘the Creditor’” as such the Defendant avers that they cannot be held to a contractual obligation with an unidentified party.

4.2.2 Nowhere within either sign does it inform the reader that by parking on the land that they are entering into a contract with the Claimant. It is noted by the Defendant that neither sign mentions the words ‘contract’ or ‘agreement’, but simply states that the ‘driver accept liability to pay the Parking Charge for any failure to comply with the Terms and Conditions contained within this sign”. It is averred by the Defendant that “Terms and Conditions” are not equivalent to a contract.

4.2.3  The signage displaying the terms and conditions refers only to “ALLOCATED PARKING ONLY”, indicating individuals should only park in their “OWN ALLOCATED BAY”. If a contract was entered into by the Defendant with the Claimant (something which is strongly denied) then this contract required the Defendant to do something which he could not do, that is, parking in his own allocated bay. As such any contract that could have be formed between the Defendant and the Claimant is invalid under the doctrine of impossibility of performance.

greengeko

So the below are the final parts from my draft defence - hoping to get this sent off today or tomorrow.

Would appreciate any final feedback regarding points/arguments/clarity etc. (I have yet to proof read it).

Really appreciate everyone's input so far. I'm feeling much more confident about the issue having followed everyone's advice and reading around a little.

2.       It is admitted that the Defendant was the registered keeper of the vehicle in question, but liability is denied. On the material date and time in question it is admitted that the Defendant was the driver of the vehicle.

3. Access to the land in question is by a secured gate. The Defendant was given access to the land by a representative of the property agent ‘Julie Twist Properties’ in order to view a flat. The representative instructed the Defendant to park the vehicle in the location in which it was left. Therefore, the vehicle was de facto authorised to be there and the doctrine of promissory estoppel applies. In the alternative, an alternative contract was agreed, with the authorised property agent granting the right to park.

4. The Defendant avers that the parking signage in this matter was inadequate.

4.1. It is accepted by the Defendant that on the date and time in question an entrance sign was visible but did not convey any contractual terms and simply stated that “PARKING RESTRICTIONS APPLY” and to “READ SIGNAGE WITHIN”. No signage displaying terms and conditions was reasonably visible to the Defendant at the entrance gate. A sign, if related to parking at all, had been deliberately placed on an inner facing aspect of the opposite gate post, thereby rendering it unviewable by a driver entering the land from the direction of ‘Media City’ (the direction from which the Defendant approached the car park).

4.2. The Defendant states the signage displaying the terms and conditions was deficient in number, distribution and wording to reasonably convey a contractual obligation.

4.2.1. The signage at the time of the material events 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 is a signatory. The signage displaying the terms and conditions are not in “sufficient number so that they are clearly visible to Motorists on the Controlled Land”. It is put forward that the Claimant is unable to provide evidence that the signage displaying the terms and conditions were reasonably visible from the area occupied by the vehicle. Additionally, the signage displaying the terms and conditions do not explicitly identify Car Park Management Services as “the Creditor” as such the Defendant avers that they cannot be held to a contractual obligation with an unidentified party.

4.2.2 The Defendant refers to the para 13 of DJ Iyer county court decision in PACE Recovery and Storage Ltd v Lengyel [2017]. Nowhere within either sign does it inform the reader that by parking on the land that they are entering into a contract with the Claimant. It is noted by the Defendant that neither sign mentions the words ‘contract’ or ‘agreement’, but simply states that the ‘driver accept liability to pay the Parking Charge for any failure to comply with the Terms and Conditions contained within this sign”. It is averred by the Defendant that “Terms and Conditions” are not equivalent to a contract. Therefore, it is asserted by the Defendant that the claim, which is for a “contractual charge” due to “a contractual breach” is invalid.

4.3.  The signage displaying the terms and conditions refers only to “ALLOCATED PARKING ONLY”, indicating individuals should only park in their “OWN ALLOCATED BAY”. If a contract was entered into by the Defendant with the Claimant (something which is strongly denied) then this contract required the Defendant to do something which he could not do, that is, parking in his own allocated bay. As such any contract that could have be formed between the Defendant and the Claimant is invalid under the doctrine of impossibility of performance.

5. A notice to keeper, compliant with Schedule 4 of the Protection of Freedoms Act 2012, was never received by the Defendant. The Defendant only became aware of the alleged (and disputed) ‘parking charge’ after being contacted by ‘Debt Recovery Plus Ltd’ on the 24th July 2019 and again on the 14th August 2019. The Defendant tried twice to contact the Claimant via email to clarify this matter, once on the 28 July 2019 and again on the 25th August 2019. Despite receiving acknowledgment of contact no reply was ever received. The Defendant then received a letter from the Claimant informing them that the matter had been sent to BWLegal. It is clear to the Defendant that the Claimant had no interest in providing reasonable clarification or resolution of the matter.

greengeko

I apologise for bumping this so soon but just wondered if anyone had any final points/comments to add? Thanks again all.