PCN Received from New Generation Parking Management - Advice Required

nero33

Hi. Unfortunately due to bereavement I was unable to spend much time on this appeal in the last couple of weeks.

However I'll be getting this done and sent off in good time.

I received an email yesterday from the Claimant - a 45pg Trial Bundle I assume.  In summary, they're basically dismissing every argument relating to my mother, her disability, inability to walk without assistance  etc.  Each statement is rebutted with words to the effect of 'but with all due respect she/her disability is totally irrelevant to this case and they broke the rules of that car park and weren't parked in the assigned zones as per the contract they entered into when entering the car park' etc etc etc

I felt a little despondent and deflated reading it.

Coupon-mad

nero33 said:

Hi. Unfortunately due to bereavement I was unable to spend much time on this appeal in the last couple of weeks.

However I'll be getting this done and sent off in good time.

I received an email yesterday from the Claimant - a 45pg Trial Bundle I assume.  In summary, they're basically dismissing every argument relating to my mother, her disability, inability to walk without assistance  etc.  Each statement is rebutted with words to the effect of 'but with all due respect she/her disability is totally irrelevant to this case and they broke the rules of that car park and weren't parked in the assigned zones as per the contract they entered into when entering the car park' etc etc etc

I felt a little despondent and deflated reading it.

I am so sorry to hear you've been coping with a bereavement.  My sincere condolences.

Don't feel deflated.  Stand up for yourself and be confident, after all, they HAD to respond to everything in your strong line of defence.

Just reminding us all of the additional facts you added to the defence, below:

_________________

2. It is admitted that the Defendant was the registered keeper of the vehicle in question, but all liability is denied.

3.  The Defendant's wife was driving, and she went over to their daughter's apartment to pick up the Defendant's mother who had been visiting. The passenger was aged 79, had had a stroke, was suffering from severe mobility issues and was unable to walk unassisted so clearly needed the Defendants wife's help to leave the flat and safely access the vehicle.  This had been done previously without any issues or incident.

4. The Defendant's wife parked the car in a part of car park that was also used as a 'drop off/pick up point'. At this place, there was no need to display the Defendant's mother's Blue Badge because dropping off/picking passengers up from there (and loading/unloading) was always allowed. It was not regarded as a restricted area.

5.  The Defendant will produce evidence from the landlord confirming this normal usage of that area, and will also rely upon the persuasive Appeal authority of a similar private parking residential case, Laura Jopson vs Homeguard Securities [B9GF0A9E] – 2016, where the judgment by His Honour Judge Harris QC, sitting at Oxford Court, supported the defence that loading and unloading, including people as well as goods is not parking.  The defendant will also produce photographic evidence confirming how the defendant’s daughter’s assigned parking bay was regularly blocked by other unauthorised vehicles. 

6.  The visitor being collected was elderly with clearly visible mobility issues, therefore had protected characteristics in accordance with the Equality Act 2010. The parking employee saw the Defendant's wife and the disabled passenger but refused to speak to them when approached and (despite seeing the needs of the passenger) used his predatory photos to later upload and create a postal Parking Charge Notice which was sent to the Defendant, demanding £100.   It is reasonable to assume that had the employee engaged in conversation, instead of leaving, it could have been demonstrated that the defendant had a right to leave their car in the car park, that no PCN would have been issued, and litigation could have been avoided.
Service providers such as the claimant are required by law to make reasonable adjustments for people with a disability. In this instance it would have been reasonable adjustment to allow the defendant a longer grace period than normally allowed to reach the vehicle with their disabled passenger and allowed to leave the car nearer to the resident's property for the purposes of boarding said vehicle.
The defendant asserts that this was the case and puts the claimant to strict proof that the opposite is true. 

7. It is also stated in the Tenancy Agreement, Section 8.1 that ‘the Landlord shall permit the Tenant to have quiet enjoyment of the Property without interruption by the Landlord or his Agent’. 
The claimant should have been aware of the resident's rights and ability to confer their rights to visitors in according to the resident's lease before commenting operations on the site.

8.  This was neither an agreed nor fair contract and nor was there a breach of any 'relevant obligation' a condition required under the Protection of Freedoms Act 2012 (the POFA) before any case where liability is sought to be transferred to a registered keeper can get off the ground.  It is denied that the Defendant is liable for any sum at all.

9.  The Claimant is put to strict proof of its compliance with Schedule 4 of the POFA and the EA, as well as showing how they met their statutory duties under the additional EHRC Services, Public Functions and Associations Statutory Code of Practice relating to the EA duty of public-facing companies to avoid discrimination. The parking charge in itself, and the ensuing hounding of the family through court, represents unlawful harassment of a disabled person and their carer, and the lack of 'reasonable adjustments' and failure to recognise the proper use of this pick up area, breaches the EA and also rides roughshod over the rights of the resident and her visitors.

I assume you had all of the rest of the Template Defence after this, going up to over 35 paragraphs altogether?

Go through the defence and highlight all the things you are going to need to attach as exhibits.  Your defence mentions a few exhibits you now need.

It will be a lot, due to bulky things like the passenger's Tenancy Agreement, photos of cars in your bay, Jopson v Homeguard (full transcript) and the EHRC Code of Practice for Services and Public Functions, plus the usual things like Excel v Wilkinson (full transcript) which you will find in the thread by @aphex007 which is the exemplar WS bundle we tell people to base their bundle on.

I suggest a short factual WS separately signed by your wife (the driver) would be a good addition too, attaching evidence of the passenger's disability/conditions and Blue Badge and parking Permit.

It will be a large bundle but tough, your court Hearing Order says the CLAIMANT (solicitor) has the task of producing the full bundle, therefore you can email it to their solicitors and the local court (let their legals struggle with how to print & get that bundle to court in a format they'll accept!).

We'd like to see their WS please.

And their photos of the car, and please tell us how many seconds/minutes the photos were taken over?  Could be important.

Show us that first (redacted of your ID & car data).

I'd like to see how they are wriggling against their overriding statutory duties under the EA 2010, and why they are saying that disability is irrelevant!

nero33

Coupon-mad said:

nero33 said:

Hi. Unfortunately due to bereavement I was unable to spend much time on this appeal in the last couple of weeks.

However I'll be getting this done and sent off in good time.

I received an email yesterday from the Claimant - a 45pg Trial Bundle I assume.  In summary, they're basically dismissing every argument relating to my mother, her disability, inability to walk without assistance  etc.  Each statement is rebutted with words to the effect of 'but with all due respect she/her disability is totally irrelevant to this case and they broke the rules of that car park and weren't parked in the assigned zones as per the contract they entered into when entering the car park' etc etc etc

I felt a little despondent and deflated reading it.

I am so sorry to hear you've been coping with a bereavement.  My sincere condolences.

Don't feel deflated.  Stand up for yourself and be confident, after all, they HAD to respond to everything in your strong line of defence.

Just reminding us all of the additional facts you added to the defence, below:

_________________

2. It is admitted that the Defendant was the registered keeper of the vehicle in question, but all liability is denied.

3.  The Defendant's wife was driving, and she went over to their daughter's apartment to pick up the Defendant's mother who had been visiting. The passenger was aged 79, had had a stroke, was suffering from severe mobility issues and was unable to walk unassisted so clearly needed the Defendants wife's help to leave the flat and safely access the vehicle.  This had been done previously without any issues or incident.

4. The Defendant's wife parked the car in a part of car park that was also used as a 'drop off/pick up point'. At this place, there was no need to display the Defendant's mother's Blue Badge because dropping off/picking passengers up from there (and loading/unloading) was always allowed. It was not regarded as a restricted area.

5.  The Defendant will produce evidence from the landlord confirming this normal usage of that area, and will also rely upon the persuasive Appeal authority of a similar private parking residential case, Laura Jopson vs Homeguard Securities [B9GF0A9E] – 2016, where the judgment by His Honour Judge Harris QC, sitting at Oxford Court, supported the defence that loading and unloading, including people as well as goods is not parking.  The defendant will also produce photographic evidence confirming how the defendant’s daughter’s assigned parking bay was regularly blocked by other unauthorised vehicles. 

6.  The visitor being collected was elderly with clearly visible mobility issues, therefore had protected characteristics in accordance with the Equality Act 2010. The parking employee saw the Defendant's wife and the disabled passenger but refused to speak to them when approached and (despite seeing the needs of the passenger) used his predatory photos to later upload and create a postal Parking Charge Notice which was sent to the Defendant, demanding £100.   It is reasonable to assume that had the employee engaged in conversation, instead of leaving, it could have been demonstrated that the defendant had a right to leave their car in the car park, that no PCN would have been issued, and litigation could have been avoided.
Service providers such as the claimant are required by law to make reasonable adjustments for people with a disability. In this instance it would have been reasonable adjustment to allow the defendant a longer grace period than normally allowed to reach the vehicle with their disabled passenger and allowed to leave the car nearer to the resident's property for the purposes of boarding said vehicle.
The defendant asserts that this was the case and puts the claimant to strict proof that the opposite is true. 

7. It is also stated in the Tenancy Agreement, Section 8.1 that ‘the Landlord shall permit the Tenant to have quiet enjoyment of the Property without interruption by the Landlord or his Agent’. 
The claimant should have been aware of the resident's rights and ability to confer their rights to visitors in according to the resident's lease before commenting operations on the site.

8.  This was neither an agreed nor fair contract and nor was there a breach of any 'relevant obligation' a condition required under the Protection of Freedoms Act 2012 (the POFA) before any case where liability is sought to be transferred to a registered keeper can get off the ground.  It is denied that the Defendant is liable for any sum at all.

9.  The Claimant is put to strict proof of its compliance with Schedule 4 of the POFA and the EA, as well as showing how they met their statutory duties under the additional EHRC Services, Public Functions and Associations Statutory Code of Practice relating to the EA duty of public-facing companies to avoid discrimination. The parking charge in itself, and the ensuing hounding of the family through court, represents unlawful harassment of a disabled person and their carer, and the lack of 'reasonable adjustments' and failure to recognise the proper use of this pick up area, breaches the EA and also rides roughshod over the rights of the resident and her visitors.

I assume you had all of the rest of the Template Defence after this, going up to over 35 paragraphs altogether?

Go through the defence and highlight all the things you are going to need to attach as exhibits.  Your defence mentions a few exhibits you now need.

It will be a lot, due to bulky things like the passenger's Tenancy Agreement, photos of cars in your bay, Jopson v Homeguard (full transcript) and the EHRC Code of Practice for Services and Public Functions, plus the usual things like Excel v Wilkinson (full transcript) which you will find in the thread by @aphex007 which is the exemplar WS bundle we tell people to base their bundle on.

I suggest a short factual WS separately signed by your wife (the driver) would be a good addition too, attaching evidence of the passenger's disability/conditions and Blue Badge and parking Permit.

It will be a large bundle but tough, your court Hearing Order says the CLAIMANT (solicitor) has the task of producing the full bundle, therefore you can email it to their solicitors and the local court (let their legals struggle with how to print & get that bundle to court in a format they'll accept!).

We'd like to see their WS please.

And their photos of the car, and please tell us how many seconds/minutes the photos were taken over?  Could be important.

Show us that first (redacted of your ID & car data).

I'd like to see how they are wriggling against their overriding statutory duties under the EA 2010, and why they are saying that disability is irrelevant!

Thank you for your kind words.

The file they emailed me was in PDF format and I managed to convert it into Word format to take out all personal details from both sides, and resaved as a Word document and PDF file.  How do I post it here as it's 42pgs long.  I'm not that tech literate

Le_Kirk

nero33 said:

The file they emailed me was in PDF format and I managed to convert it into Word format to take out all personal details from both sides, and resaved as a Word document and PDF file.  How do I post it here as it's 42pgs long.  I'm not that tech literate

You can host the original pdf document on Dropbox (or similar) and post the link on here.

nero33

Le_Kirk said:

nero33 said:

The file they emailed me was in PDF format and I managed to convert it into Word format to take out all personal details from both sides, and resaved as a Word document and PDF file.  How do I post it here as it's 42pgs long.  I'm not that tech literate

You can host the original pdf document on Dropbox (or similar) and post the link on here.

Hopefully I've got it right now

PDF version!

https://www.dropbox.com/s/fv36y8f0gz8lldn/EDITED1_Witness Statement (amended)(paginated).pdf?dl=0

1505grandad

New Code of Practice (“COP”)

"xxx.   Further to the above, the Defendant’s opinion of the industry being regulated by the Independent Parking

Committee and British Parking Association bears no relevance to the Defendant’s liability."

Presumably only "IPC" was mentioned as per template Defence  -  are they using a template? 

Coupon-mad

Interesting... loads of ammo you can respond with.

e.g.

They denied you any right to appeal as keeper;

At one point they blame you for not appealing but you did and they refused to even look at it because you are the keeper (POFA 'keeper liability' was delayed until 2013 and was fully dependent upon allowing a keeper the right to appeal, not just drivers!)

They are pretending the Equality Act doesn't apply on private land (LOL!) and have made no attempt to justify the lack of reasonable adjustments for disabled passengers who need to access the flats from a closer point than able bodied people;

the terms on the signs were not breached.  This isn't a roadway or hatched area; it's a perfect place to stop to access the door & the flat with a disabled person;

Jopson v HomeGuard applies and is persuasive because it was an appeal (above first instance County Court level). It is on all fours with this case.  Miss Jopson parked at her residence (outside of marked bays, closer to an access door) in order to unload a piece of furniture.  HHJ Harris found that this is not parking conduct and the terms on signs don't apply to unloading that is a necessary part of life at a block of flats;

In your case the Equality Act 2010 absolutely trumps any contractual terms anyway.

And be aware that a trader cannot protest that they "didn't know" there was a disabled person in the car because their ticketer DID KNOW and had a conversation that they say the "company was not party to" (but they were...their ticketer was).  Why no witness statement from him, or even a copy of his notebook about the incident?

Do you have evidence to prove the landowner intended that area to be for drop offs?  That would be useful.

nero33

Coupon-mad said:

Interesting... loads of ammo you can respond with.

e.g.

They denied you any right to appeal as keeper;

At one point they blame you for not appealing but you did and they refused to even look at it because you are the keeper (POFA 'keeper liability' was delayed until 2013 and was fully dependent upon allowing a keeper the right to appeal, not just drivers!)

They are pretending the Equality Act doesn't apply on private land (LOL!) and have made no attempt to justify the lack of reasonable adjustments for disabled passengers who need to access the flats from a closer point than able bodied people;

the terms on the signs were not breached.  This isn't a roadway or hatched area; it's a perfect place to stop to access the door & the flat with a disabled person;

Jopson v HomeGuard applies and is persuasive because it was an appeal (above first instance County Court level). It is on all fours with this case.  Miss Jopson parked at her residence (outside of marked bays, closer to an access door) in order to unload a piece of furniture.  HHJ Harris found that this is not parking conduct and the terms on signs don't apply to unloading that is a necessary part of life at a block of flats;

In your case the Equality Act 2010 absolutely trumps any contractual terms anyway.

And be aware that a trader cannot protest that they "didn't know" there was a disabled person in the car because their ticketer DID KNOW and had a conversation that they say the "company was not party to" (but they were...their ticketer was).  Why no witness statement from him, or even a copy if his notebook about the incident?

Do you have evidence to prove the landowner intended that area to be for drop offs?  That would be useful.

This is the best I can do. A chat transcript by my daughter with the landlord

Coupon-mad

That's great if you provide that as a screenshot Exhibit, including the date of conversation and the parties/emails involved!

nero33

Coupon-mad said:

That's great if you provide that as a screenshot Exhibit, including the date of conversation and the parties/emails involved!

Might be a dumb question but the Trial Bundle I submit, does it have to contain the Defence that I submitted initially before any court date was received or does it have to be a new Witness statements from scratch in which I can raise or counter issues raised in the bundle I received on the weekend from their solicitors?  Cos I'm using the Defence I sent to put together the Exhibits I have to back up my Defence. 

I have signed statements from my mother (passenger) and wife (driver).  I wasn't there so nothing from me other than to put everything together?  Essentially, it is all being narrated by me.

Thanks