PCN outside own commercial unit LBC issued, help with defence?

bobcrow

Hi all, i hope its ok that im posting at this time, dont want to waste anyone's time but do need help! I have been issued a Letter Before Claim from Gladstones and have just got back my SAR today from Parking Control Management (UK) Ltd. I want to get my defence drafted now (my understanding is that i dont have to communicate with Gladstones (except to ask for extension due to the SAR, which i've done) until the court proceedings are actually issued? is that right?)

So anyway i've read through a fair bit of the forum and i think im on the right track, but im hoping that you guys can review what i've done for errors, and maybe think about any further avenues i might be able to go down.

Basically the situation is this, i rent an industrial unit with a large yard. There's lots of mechanics there so there's vehicles everywhere, but no one really minds. Anyway one day the Landlord decided to get PCMUK involved. I've always ignored all their letters and debt collector letters, then recently they sent me a LBC.

Its worth noting that i signed a new lease with the landlord after PCMUK came on the scene, however the lease does not mention parking control. I am looking to rely on the fact that i am a tenant, and the i am the keeper of the vehicle, therefore i have the right to put my vehicle outside my unit (whether or not driven by me).

In any case i will also explain that i was loading/unloading therefore was not parked.

One other thing is that they never issued 'notice to driver' even though it was a parking warden, not sure what the deal is with that is? there's a note on each one that says something along the lines of 'no notice to driver issued to avoid confrontation with driver'. This to me would also imply that the driver was on the scene to have a possible confrontation with, which is further evidence that the vehicle was attended and therefore loading was in all probability taking place.

I was also thinking, in terms of the right to park there, i could get a witness statement from neighbours saying that if i was parked in that location that it would not harm their enjoyment of their premises?


Defence:

1. No liability
   
   
2. It is admitted that Defendant is the registered keeper of the vehicle in question
3. The defendant has no liability as they are the Keeper of the vehicle, and the Private Parking Company has failed to comply with the strict provisions of PoFA 2012 to hold anyone other than the driver liable for the charges
   1. the driver has not been evidenced on any occasion.
   2. There is no presumption in law that the keeper was the driver and nor is a keeper obliged to name the driver to a private parking firm. This was confirmed in the POPLA Annual Report 2015 by the POPLA Lead Adjudicator and barrister, Henry Greenslade, when explaining the POFA 2012 principles of 'keeper liability' as set out in Schedule 4.
      
      
4. No parking area designated
   
   
5. Notwithstanding the defendants right to use and park in the area in which the vehicle was allegedly parked at the material time, the signage which allegedly created a contract between the driver and the appellant makes reference to a designated parking area, however, no parking area is designated on the specified land, apart from any common areas to which the defendant has the right to use.
   
   
6. Defendant authorised to park
   
   
7. The keeper is a tenant of Unit 15. Which is the unit directly outside which the vehicle has been photographed.
8. The keeper, in his capacity as tenant, has the right to the enjoyment of the curtilage of his property, and this would include the area directly outside his property, as long as it did not interfere with neighboring properties.
9. The keeper, in his capacity as tenant separately, and additionally, has the right to use of the loading bay by virtue of his lease that he has with the freeholder. This lease sets out the tenant's right to use the common parts, which are explicitly set out in the lease to include "forecourts, loading bays"
10. This permission created the prevailing and overriding contract - the only contract - and the business was concluded as agreed, at no cost or penalty.
11. The car park has a security gate which can be opened only by authorised people. In this case, the vehicle was located inside the premises beyond that gate.
12. The reason for this parking company's presence on this gated site can only be for the sole purpose of deterring parking by uninvited persons, for the benefit of drivers authorised by the leaseholder businesses. Instead this Claimant carries out a predatory operation on those very people whose interests they are purportedly there to uphold.
    
    
13. Vehicle not parked, loading underway
    
    
14. Notwithstanding the defendants right to park his vehicles as set out above in any case within the common parts of the estate, it is denied that in the instances claimed by the appellant that the vehicle was parked.
15. The vehicle was not parked, it was stopped within a loading bay as part of the tenant's lawful use and enjoyment of the premises for which he pays due consideration.
16. The vehicle is depicted directly outside the defendant's unit, directly next to the doors of the defendant's unit and in anticipation of the loading or unloading of the vehicle.
17. In the case of PC******27 and PC******90 the photographic evidence of the alleged parking presented by PCM shows a period of maximum of 2 minutes, which is a reasonable period to leave a vehicle unattended whilst loading/unloading.
18. In the case of PC******72 photographic evidence presented by the appellant shows the vehicle at the following times on 13/05/2019: 13:43, 13:44, 13:51, 14:52, 17:04. It is maintained by the defendant that the vehicle was coming and going from the unit throughout the day, so it would have been possible to photograph the vehicle in a state of being apparently parked a number of times during that day.
19. Loading or unloading with the permission of the landholder is not 'parking' and signs cannot override existing rights enjoyed by landowners and their visitors, as was found in the Appeal case decided by His Honour Judge Harris QC in June 2016 at Oxford County Court, in a similar case number B9GF0A9E: 'JOPSON V HOME GUARD SERVICES’.
20. The right of the on site businesses to allow authorised vehicles to load/unload pre-dates the arrival of this Claimant and the Jopson Appeal case found that signs added later by a third party parking firm are of no consequence to authorised visitors to premises where other rights prevail and supersede any alleged new 'parking contract’.
21. In any event, the signs make no offer to authorised persons engaged in permitted loading/unloading for which no 'parking permit' was ever required (neither before the arrival of this Claimant onsite, nor after).
22. Any person potentially bound by any terms and conditions would have to see those terms and conditions clearly and prominently as adequate notice of the charge, which is denied. The only clear large lettering was 'PRIVATE LAND' and it is submitted that the presence of the vehicle was certainly not 'unauthorised'.
23. There is no clear mentioning of loading/unloading rules on the sign board. Photograph evidence of sign boards are available to be provided upon request.
    
    
24. No authority
    
    
25. It is denied that the Claimant has authority to bring this claim. The proper Claimant is the landowner. Strict proof is required that there is a chain of contracts leading from the landowner to Parking Control Management (UK) Ltd. The claimant is unable to re-offer a contract to park on more onerous terms that those already specified in the lease, which grants an easement/ right to park for everyone and an entitlement to peaceful enjoyment.
26. If there was a contract, it is denied that the penalty charge is incorporated into the contract. The leaseholders' lease is missing any reference to parking permit requirements and involvement of Parking Control Management (UK) Ltd. And there is no evidence that the original lease contract and revised lease contract with specific details of Parking Control Management (UK) Ltd’s role and involvement was shared with the defendant.
    
    
27. Penalty clause not enforceable
    
    
28. Alternatively, even if there was a contract, the provision requiring payment of £480 (correct amount to be edited before submission) is an unenforceable penalty clause.
29. Further and alternatively, the provision requiring payment of £480 is unenforceable as an unfair term contrary to the Consumer Rights Act 2015.

Fruitcake

If the PC numbers in paras 17 and 18 are the PCN numbers, they should be redacted.

"I was also thinking, in terms of the right to park there, i could get a witness statement from neighbours saying that if i was parked in that location that it would not harm their enjoyment of their premises?"

You can't try to rely on a non PoFA compliant NTK point and then get a neighbour to confirm the identity of the person who parks there, which is effectively what that paragraph suggests.
In any case, your neighbours' enjoyment is irrelevant. It's your lease that counts not theirs.

What did the landowner say when you asked why you were getting a PCN/court claim? Have you asked for a copy of the contract that shows the scammers can issue charges and court claims?

You won't get an extension from the scamlicitors because of a SAR. You need to tell them instead that "although you deny the debt you are seeking debt advice" and therefore they must put proceedings on hold for a month.

You should in any case respond to the LBC as per the guide to court from post 2 of the NEWBIES.

Please give us a breakdown of alleged costs as it appears they have added on fake additional charges. See beamerguy's "abuse of process" thread for more advice.

How did the scammers fail the PoFA requirements. You haven't mentioned a NTD or NTK.

bobcrow

thanks for the response fruitcake, tbh , the No Liability part i copypasted from somewhere, im not sure i fully understand why its there. Im pretty sure that the NTK was compliant with PoFA under paragraph 9. So should i just get rid of the no liability part if thats the case?

The reason for the neighbours thing was that, in my head, i wouldnt be getting the neighbour to say that anyone had parked there, but that if someone was to park there, it wouldnt harm there enjoyment. The reason was to establish that it was a reasonable use of the common parts of the estate to which my lease gives me rights. (eg if i had parked in front of the neighbours door, maybe that would be a different story?) idk though maybe it doesnt make sense as a line of argument.

Fruitcake

It sounds like a "This is not a parking charge" envelope was left on the car. Unfortunately the DVLA accept this as not being a NTD, even though it is left for the driver to find, and therefore Para 9 of the PoFA applies.

We have no idea whether the NTK was PoFA compliant or not. Nobody but you can decide that unless you show us a redacted copy plus the dates of the alleged event and the date the NTK was received.

Please answer all questions you are asked. They are asked in order to get as much information as possible to help you.

The_Deep

Nine times out of ten of these tickets are scams so consider complaining to your MP, it can cause the scammer extra work.

Parliament is well aware of the MO of these private parking companies, many of whom are former clampers, 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

bobcrow

thanks fruitcake and the deep for help so far,

nothing was left on the car, so i'm assuming they are pursuing the claim under paragraph 9, although im not really sure what the difference in their obligations are.

here is a dropbox link to redacted versions of:
- chain of correspondence and photographic evidence for each PCN as received after my SAR
- A copy of the Letter Before Claim

dropbox *DOT* com/sh/der7ywue1z7fixd/AACPRN8v4MviYMjdL4blgHy6a?dl=0

*you will have to copy and paste the link and edite to suit in to your browser sorry as i dont have sufficient privileges to post a proper link

Thanks in advance for any help and time given!

bobcrow

Fruitcake wrote: »

What did the landowner say when you asked why you were getting a PCN/court claim? Have you asked for a copy of the contract that shows the scammers can issue charges and court claims?

I havent spoken to the landowner. The problem is becasue of my relationship with the landlord i can't really ask them to cancel it, unfortunately.


No, i haven't asked for a contract.


So i guess my next step is to write to Gladstones and ask for an extension due to debt advice and to ask them for the contract that gives them authority to issue charges?

The_Deep

So i guess my next step is to write to Gladstones and ask for an extension due to debt advice and to ask them for the contract that gives them authority to issue charges?

Gladstones will not have the contract, you need to ask the PPC.

Fruitcake

https://dropbox.com/sh/der7ywue1z7fixd/AACPRN8v4MviYMjdL4blgHy6a?dl=0

The scamlicitors have added a fake £60 charge to each PCN. As previously mentioned, read beamerguys "abuse of process" thread, especially post 14 by Coupon-mad. Do not react to this extra charge until the court claim itself arrives. That way you can ask the court to have the case thrown out for the reasons given in that thread. Doing anything beforehand might cause the scamlicitors to drop the fake ad-ons but still continue with the claim.

Get pics of the site and signage. The PCNs do not show the signs on site. they could be anywhere.

I'm not sure whether the scammer was employed by PCM or if this was a self ticketing scam, but I believe they have made a mistake by not leaving a NTD on the vehicle.

The NTKs and reminders are vague to start with and only refer to Schedule 4 of the PoFA. Later on under a small section entitled DATE THIS NOTICE IS GIVEN they refer to paragraph 8. Paragraph 9 is not referred to anywhere at all on any of the documents you have shown us.

So it can reasonably be argued that the scammers are relying on Paragraph 8 of the PoFA 2012 to transfer liability to the keeper.
However for para 8 to apply,
1 There has to be a NTD given to the driver or left on the vehicle.
2 The scammers cannot apply to the DVLA until day 28, and it must be received by the keeper by day 56, the date of the alleged event being day zero.

The scammers have failed on both counts. They have conveniently taken photos of the vehicle that clearly shows no NTD was left on the vehicle. They have even backed that up by stating it was posted, not given according to the requirements of the PoFA.
Having failed to comply with para 8, they have compounded their error by obtaining the keeper's details too early.

So, start by complaining to the DVLA. The scammers have conveniently given the DVLA contact details on the NTK. Include a copy of all three NTKs, highlight the part that refers to para 8 of the PoFA. Quote the relevant parts of the PoFA that specify the requirements about giving a NTD and dates.
Point out that the scammers have unlawfully accessed your personal data on three separate occasions.

Do check all your documents and triple check what I have said to make sure I have go it right, and that you understand the significance of everything.
Don't rush this. Read and reread and make notes, then fire off your complaints.