Missed all the early stages of appeal and now heading to court

harmonicapapa

Good morning,  after spending the last several years successfully ignoring all the letters from various parking firms, it looks like on this occasion Smart Parking and Gladstones are ready to take it to the final stage.  Using the info on this forum, I have submitted my Defence Statement and have just received a Serving Defendant with DQ email from Gladstones stating the have asked for mediation.

I have a couple questions:
1. The first letter I received from Smart Parking was 34 days after the alleged incident.  Is there a time limit on when they can issue their first Parking Charge Notice?
2. Subsequent letters stated I had until the 4th of December to pay £100, but I received a letter dated 3rd of December form a Debt Collection company asking for £150.  What argument can I use to show the unprofessional correspondence and feeling of harassment from Smart Parking?
3. I am disputing the clear signage.  Where can I find info about 
4. The charge is in relation to overstaying Free Time (4 hrs was free, but the vehicle is shown to be leaving within 4hr 14min) My understanding is the BPA suggests a minimum allowance of 20 minutes grace period.  Is this a valid argument people have won with?

I am not sure what my next steps are.  Gladstones have sent me their Directions Questionaire, but I have not received a DQ from the court yet.  Would this normally come after the Complainant sends in theirs?

To recap, I didn't appeal, I didn't send a SAR letter (can this still be done at this late stage?), Smart Parking sent me a Notice to Owner not a Notice to Keeper.

Thanks for any and all help this group can give.

D_P_Dance

Read what Pete Wishart MP said recently in the House of commons about Smart Parking.

"I am sick and tired of receiving emails from people complaining about the behaviour of parking companies, telling me that they will never again visit Perth city centre because of the negative experience they had when they had the misfortune to end up in a car park operated by one of these companies. I have received more complaints about one car park in the city of Perth than about any other issue. That car park is operated by the lone ranger of the parking cowboys: the hated and appalling Smart Parking—I see that many other Members are unfortunate enough to have Smart Parking operating in their constituencies. It has reached the stage where one member of my staff now spends a good part of each day just helping my constituents and visitors to my constituency to navigate the appeals process.

…
The BPA does not have the ability to regulate these companies and has shown no sign whatsoever that it is trying to get on top of some of the sharper practices. The BPA gives a veneer of legitimacy to some of the more outlandish rogue operators by including them in their membership, allowing them to continue to operate. The Bill will oblige operators such as Smart Parking to amend their practices." https://forums.moneysavingexpert.com/discussion/5972164/parking-eye-signs-oxford-road-reading

Nine times out of ten these tickets are scams, so consider complaining to your MP, it can cause the scammer extra costs and work, and has been known to get the charge cancelled.

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.

Redx

1) 7 months is the time limit to obtain keeper details ( not subject to POFA )

But as they failed POFA then it's 14 days to hold a keeper liable , but that won't help if the driver has been revealed

2) ignore all the preamble with LBC and debt letters , concentrate on the legal aspects and core terms, you won't get anywhere with harassment , they can pursue you like a dog with a bone if they have issued an invoice. Harassment etc is a high bar in court and needs doctors notes , treatment evidence and is difficult to prove , forget it !!

3) the Barry Beavis case , the CRA 2015 , the BPA CoP etc

4) you are incorrect , the BPA CoP says nothing of the kind , read the one in force at the time of the incident (not the current one) , read clause 13 , do not argue the alleged overstay , argue the two grace periods , the first to enter , park up and read the signs , the second is a minimum of ten minutes to leave the site once the Parking period has expired , keep them separate

Email the SAR to the DPO at Smart asap , attaching a copy of the claim form as proof of I D under the GDPR

Post the submitted defence below , for critique and tonhelp you get a grip on the WS plus Exhibits plus costs schedule stage later on

Do not fill in the claimant s DQ , only fill in the CCBC DQ when it arrives

This would have been much easier to win if you had appealed to Smart and to Popla at the start , you were very foolish to ignore them and are now doing the same work with a greater risk and larger sums. Smart would have been easy to beat at Popla

harmonicapapa

Thanks Redx, I will send the SAR right away.

Here's the defence I submitted:

1. 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 LC-- --S, of which the Defendant is the registered keeper, was parked on 28/09/20-- in a marked bay at --- --- Shopping Park.

3. The identity of the driver of the vehicle on the date in question has not been ascertained.

a. The Claimant did not identify the driver

b. The Defendant has no liability, as they are the Keeper of the vehicle and the Claimant must rely upon the strict provisions of the Protection of Freedoms Act 2012 in order to hold the defendant responsible for the driver’s alleged breach.

4. The Particulars of Claim state that the Defendant; was the registered keeper and/or the driver of the vehicle which . 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. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

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. 

7. 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 would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

8. The Claimant is a registered member of the BPA and as such operated to the AOS Code of Practice Version 7.  As stated in section 13 - Grace Periods of the Code, a minimum of 10 minutes should be allowed for finding a parking place and considering the Terms and Conditions.  An additional minimum of 10 minutes should be allowed for exiting the car park by the driver. As such, this claim does not fall within the requirements of the AOS Code of Practice Version 7 to allow sufficient time to exit the car park before issuing a claim.

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 £90. The claim includes an additional £85, 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.

harmonicapapa

Here's my SAR request... am I missing anything?

Dear Sir or Madam

Subject access request ( Data Protection Act 2018 / General Data Protection Regulations (GDPR) )

 B******* *******,of *********, *****, BS** *LB. VRN – L*** **S

 Please supply the data about me that I am entitled to under data protection law relating to myself.

 In particular I require:

 ·         ALL photos taken of me and any related to this VRN

·         all letters/emails sent and received

·         all data held held on me

·         all evidence you will rely on for the claims proceedings in county court

·         a full copy of the Parking Charge Notice you may have issued

·         a copy of any Notice To Keeper letter you may have sent

·         a full list of all Parking Charge Notices you consider are outstanding against me and/or this VRN

I have attached a copy of the Claim Form issued by the County Court Business Centre as proof of ID.

Redx

Seems ok except the bit about all evidence to be used in Court
You are only entitled to your own data , so they won't supply all the evidence

harmonicapapa

Thankyou, I'll get it in the post today.  Thanks for your help. I'll be in touch for the next stage I guess.  

Le_Kirk

Why not just e-mail it to dpo@smartparking.com

harmonicapapa

I'll do Le_Kirk said:

Why not just e-mail it to dpo@smartparking.com

Oh yeah, I thought I had to do it by post.  thanks for that.

harmonicapapa

@Redx Do you have any suggestions on the defence I submitted?  I appreciate it has already been sent off, but is there anything I should pay special attention to when preparing for the WS and Skeleton Argument?
Many thanks for your help.

Redx

I do not advise on the legal contents of a defence , just any common sense issues , errors or typos etc

I am sure there is , but others may advise you on your WS plus Exhibits plus costs schedule

My advice is for you to read twenty ongoing or completed court case threads within the last 12 months , which is what I would be doing