Highview parking County Court Claim SAR and Defense advice - reduced timeframe due to postal error!

Sebi_895

@Fruitcake You are a genius!

Coupon-mad

Fruitcake said:

There is no contract with or flowing from the landowner to the claimant, merely a statement from a random person purporting to be acting for the landowner. 

The statement from Tim Pople is not dated, nor is his signature dated. His position within his company, ES Coventry Limited is not given.
The statement is not on company headed notepaper nor does it carry either company's seal.
He states that the parking contract began on the 1st of January 2013, yet ES Coventry Limited was not incorporated until the 30th of September 2015, therefore the original contract, if it existed, could not have been with ES Coventry Limited.
The claimant is put to strict proof that the contrary is true.

Mr Pople has never been an officer of ES Coventry Limited nor a person with significant control and therefore does not have explicit or implied authority as defined by Section 43 of the Companies Act 2006 to sign a contract, nor are there signatories from both companies.
His statement has not been properly executed as a document in accordance with Section 44 of the Companies Act 2006 as it has not been signed by two authorised persons from each party (company)

Great spot!

To evidence that point, the OP will have to add as an exhibit, a screenshot of the pages from Companies House that show the incorporation date and the officers, and persons with significant control.

Fruitcake

There's more.

The car park no longer exists. Construction of a massive student accommodation block and multi-storey car park began in October 2020 and was completed in the summer of this year.

The GSV camera car appears to have only entered the car park in 2008, however it drove past the car park over a period of several years afterwards as can be seen by using the date slider near the top left.

De Montfort Way - Google Maps


The site map is not dated.
There is no key to indicate what each sign means.
There is no correlation between the signs indicated by the yellow and blue blobs on the site map and the images of signs in the claimant's WS. 
From GSV images taken in 2017, 2018, and 2019 it can be determined that the location of the signs in the site map do not tie up with the position of the signs in these images.

There were/are no buildings or walls within the car park until building work commenced in Oct 2020, yet the claimant has shown an image of a sign affixed to a wall. The claimant is put to strict proof that this particular sign and the wall were actually present at the time of the alleged event.

Fruitcake

The 0845 number on the stock image of a sign is a premium rate number that breaches Regulation 41 of the Consumer Contracts Regulations 2013. These regulations took effect on the 13th of June 2014. 

The omission of call costs from the sign breaches Ofcom regulations that took effect 1 July 2015. 

The 0845 number is also a breach of the BPA's Code of Practice, version 7, January 2018 to December 2019.

Para 18.6 If you provide a telephone line to respond to complaints, challenges and appeals from motorists relating to the terms and conditions of parking they have entered into, these calls must not be charged above the basic rate.

This requirement had been in place from October 2015 when version 6 of the CoP was introduced, ref para 18.7

Version 6 from February 2014 stated that an operator must not offer only a premium rate number but must also include a standard rate number as well, ref para 18.7.

The claimant was therefore aware that premium rate numbers were prohibited by consumer regulations from 2014, that they must be supplemented by standard rate numbers from 2014 and were prohibited by the BPA from 2015.

Either,
These signs were present at the time of the alleged event and thus breached the BPA's code of practice at the material time and breached consumer legislation,

Or,
The signs from the claimant's WS were not present at the material time.

KellfromHell

Coupon-mad said:

And you have the cases of Lamoureux, and the persuasive appeal case of Excel v Smith and the POPLA Annual Report 2015 as exhibits too, along with Excel v Wilkinson?

You will have to also put in another exhibit: an excerpt from the BPA CoP now - the part that sets as mandatory, the 40% discount that hasn't changed in a decade!

Highview slipped up.  Unauthorised signs - the BPA would have spotted this in minutes, if any Audit took place. Jumped off the page at me.

Even if you had received the PCN you couldn't have paid the 'correct' amount of £51 or lower, because they failed to offer it.

A serious breach that you should report to the BPA as well - and say in your WS that the BPA 'are currently investigating under complaint ref BPAxxxxx' (you will get a complaint code - only briefly displayed - when you put in the complaint to the BPA this weekend - screenshot it and use it in your WS to cast doubt on everything Highview say).

I'd be saying: not only do Highview not bother with the POFA 2012 (admitted by their witness as if if doesn't matter, seemingly thinking that they know better than bothering to use keeper liability law) but their own evidence ALSO shows they don't pay regard to mandatory rules in the BPA CoP that have existed unchanged for a decade, either.

What exactly do Highview comply with, or are they winging it and hoping Defendant registered keepers & Judges don't notice?!  Surely this whole claim is more than hopeless, it is vexatious and meets the high bar of 'wholly unreasonable conduct' which opens the door to full costs for the Defendant, a registered keeper who has been wrongfully harassed and pursued for years and has only NOW seen that sign and that PCN.  Highview knew (or reasonably should have known) that their signage at this location was/is in flagrant breach of the BPA CoP all along, and have only now shown their hand after all these months. This conduct must meet the bar set in Dammerman. There is no reasonable explanation.

(That's what I'd be doing & saying.  Go for it like a Rottweiler).

Yes I have those cases in my WS

I will be following in your footsteps and going at them like a rottweiler, your knowledge of this space is really impressive! 

KellfromHell

Coupon-mad said:

With the BPA CoP (even an excerpt) and the other exhibits including your insurance policy from that year, you are going to have to print it all.  Maybe at a print shop, where you can get a durable paper receipt (print 3 bundles, one is for you) and buy TWO ring binders.

DON'T give the Claimant a ring binder version. That's for you and the Judge!

ALL pages must be numbered.  

Have the receipts and proof of your loss of leave/salary with you for the hearing. Attach what you can to your costs assessment and break down the hours you've spent on this matter, at £19 per hour. Or more ph, if your hourly rate is higher and you can prove it.

Don't forget this full costs assessment in your bundle you are posting, and how to argue the Dammerman 'unreasonable conduct' argument, to try to persuade the Judge that you deserve more than just your 'fixed costs'.  Helpfully, Highview's own WS (near the end) hands you the right CPR to cite about being granted further costs.

Also state (if you are of a mind to...) that if the Claimant should now discontinue at this very late juncture, AFTER seeing your evidence bundle that has cost time and money to research, prepare and print, you require the hearing not to be vacated and instead to hear the matter of costs.

Cite the bit about the WHITE BOOK annotation, that's in this forum's Template Defence, at the bottom...

(You can email the bundle to the Claimant, if you prefer not to post that).

Thank you once again, can't say it enough how helpful this info is!

For the costs, I'm assuming a payslip divided by hours worked (hence the cost/hour) is all I need to prove this?

KellfromHell

Coupon-mad said:

Assuming the NTKs are already in the exhibits of the C, then the D doesn't need to include images of them at all and could just refer to them by the C's exhibit numbers.

Probably a good idea to put in Schedule 4 POFA as an exhibit even though the C has admitted they are unable to rely on it (because they don't bother with that law).  Just in case this is a Judge who doesn't quite 'get it' that there is such a thing as a non-POFA NTK.  Perfectly allowed of course - DVLA says they can use a 'driver liability' PCN route if they want - but it's a 'pre-2012 style' ticket, and incapable of invoking 'keeper liability'.

Yes this is correct RE: the 4 PCNs as exhibits, they are on the Claimant's WS and will be referencing them. @Sebi_895, I cannot quote yours as it's over 2 pages so not ignoring your useful comment

KellfromHell

Fruitcake said:

With regards to the claimant's failure to comply with the BPA's CoP, remind the judge of what their WS says at paragraph 7, highlighting the word "essential".

7. In order to obtain Registered Keeper details from the Driver and Vehicle Licensing Agency ("DVLA") my Company must be a member of an ATA. It is therefore essential for my Company to comply with the Code.

Have Tables 1 and 2 been redacted as all I can see are the headings with no other information?

Yes, I have redacted all personal information from it, I have re-included relevant exhibits as the PDF to Docs transfer missed them, hence the horrible formatting in places

KellfromHell

Fruitcake said:

There is no contract with or flowing from the landowner to the claimant, merely a statement from a random person purporting to be acting for the landowner. 

The statement from Tim Pople is not dated, nor is his signature dated. His position within his company, ES Coventry Limited is not given.
The statement is not on company headed notepaper nor does it carry either company's seal.
He states that the parking contract began on the 1st of January 2013, yet ES Coventry Limited was not incorporated until the 30th of September 2015, therefore the original contract, if it existed, could not have been with ES Coventry Limited.
The claimant is put to strict proof that the contrary is true.

Mr Pople has never been an officer of ES Coventry Limited nor a person with significant control and therefore does not have explicit or implied authority as defined by Section 43 of the Companies Act 2006 to sign a contract, nor are there signatories from both companies.
His statement has not been properly executed as a document in accordance with Section 44 of the Companies Act 2006 as it has not been signed by two authorised persons from each party (company)

Fruitcake said:

Para 13 refers to the driver exceeding the maximum time of 2 hours which contradicts para 22 that says the maximum parking period is 3 hours.
The claimant does not appear to know what the maximum parking time is and by how much, if at all, this time was exceeded.

Para 23 refers to claims that the defendant would/should have engaged with the appeals process further, yet no appeals are allowed after the initial 28-day period, therefore their implication is void for impossibility.

Fruitcake said:

Just a comment but Para 25 is an argumentum ad hominem, an argument against the person as opposed to the content of the defence.

A minor point, but Para 26 ii refers to the claim being made against the owner not the driver, yet the DVLA does not hold owner details.
They actually mention earlier that they applied to the DVLA to obtain the owner's details.

these are great, I will be incorporating them now, I didn't realise just how incompetent they are!

KellfromHell

1505grandad said:

Re my observations on your previous draft the following do not appear to have been actioned in the latest WS version:-

"There are several typos re:-

"Code of Practi(s)e"  -  should be (c).   -   there are 3 typos with (s).  -  control + f (practise) will find them

Para 55  -  is (this) correct?  -  (full sentence)  -"... This Claimant indisputably has knowledge (and always had knowledge) that they have not paid a penny in debt recovery costs, nor incurred any additional costs that the (£100) parking charge is not designed to more than cover."   -   according to the charge notice you are exhibiting the parking charge amount is £85 not the £100 you say  -  hence the original query.

Great spot, I will sort this now. I think the £100 slipped through the net