PCN CC Claim from Gladstones & UKPCN in Atlip centre Wembley

jean232

Hi all, wondering if I could help some expert advice please.

My wife and I received a CC notice on the 5th of May 2022 for a fine that dates back to June 2019. The CC claim form was sent to her parents, being the registered address of the car at the time and they said they haven't received any fines or communication from Gladstone prior to this. They are pensioners and live in a bloc of flats, letters could be have been lost, if sent. 
we parked at Atlip centre in Wembley on the 17th of June 2019 to view a property for sale in one the buildings at the end of the car park. The only way to reach the building is through the car park. There were signs inside the car park but not at the entrance or the turn before being caught on camera. 
The sign at the time stated 15 minutes maximum stay and that customers to the Atlip centre must log in their vehicle registration into the permit. the sign wasn't clear that you are only allowed to park if visiting the Atlip centre as there was no mention to the block of flats at the end of the car park and we understood this as the T&Cs do not apply since we are not visiting the centre but the block of flats. 
since receiving the CC claim, I went back to revisit the site and the sign has now changed to remove the 15 minutes maximum stay and few signs stating "Atlip Centre visitors only" which I am confident were not there in 2019 but cannot prove. 

The claim is for £100 for the PCN, £70 contractual costs pursuant to the contract & PCN terms and conditions, statutory interest of £38.16 pursuant to s69 of the county courts Act 1984 at 8% per annum, continuing at £0.04 per day. total is £293.16.

I have not as yet acknowledged receiving the claim through moneyclaim.gov.uk (only logged in to it once). 

We are looking to challenge this claim as the signs were not clear enough that we could not park there unless visiting the Atilp centre.

Do you think we have any grounds for appeal and could win this? 

Thanks in advance for your help.

Coupon-mad

Yes you have grounds to win.  And it's a no-brainer, everyone should always defend a court claim from a PPC that adds the fake £60 or £70 because that's always killable now.

May as well defend, rude and naive not to!

And we win 99% of cases anyway.  No CCJ or costs risk as long as you follow all advice.

Is it UKCPM or UKPC?

Le_Kirk

If it is a N1 claim form you received, what is the date of issue (not the date you received it)?  Have you found and read the NEWBIE sticky and the defence template?  Don't miss your deadline for completing AoS.

jean232

Thanks a lot for the very quick reply, amazing not to feel alone in this. 
The N1 form was issued on the 5th of May 2022 from Galdstones on behalf of UK CPM Ltd.

I have read few threads here and took ideas from the defence template, the last one I read was from jellybelly 23 with some pointers that I could use but would struggle on  point 2 with the facts and my defence as it is different in my case.

I will go ahead and complete the AoS and please give me any ideas on what to write in the defence.

Thanks again 

KeithP

jean232 said:

The N1 form was issued on the 5th of May 2022 from Galdstones on behalf of UK CPM Ltd.
I will go ahead and complete the AoS and please give me any ideas on what to write in the defence.

With a Claim Issue Date of 5th May, you have until Tuesday 24th May to file an Acknowledgment of Service but there is nothing to be gained by delaying it. 

To file an Acknowledgment of Service, follow the guidance in the Dropbox file linked from the second post in the NEWBIES thread.

Having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Tuesday 7th June 2022 to file your Defence.

That's over three weeks away. Plenty of time to produce a Defence, but please don't leave it to the last minute.

To create a Defence, and then file a Defence by email, look again at the second post on the NEWBIES thread - immediately following where you found the Acknowledgment of Service instructions.

Don't miss the deadline for filing an Acknowledgment of Service, nor that for filing a Defence.

Do not try and file a Defence via the MoneyClaimOnline website. Once an Acknowledgment of Service has been filed, the MCOL website should be treated as 'read only'.

Le_Kirk

If you read  the template defence you will see that you only have to adjust two paragraphs (2 & 3) and paragraph #2 is only averring that you were keeper and driver or keeper and not driver.  Paragraph #3 is your defence against their claim and seems to be about poor signage and specifically that there were no signs prohibiting drivers from parking if they were visiting the flats.  Keep it short, punchy, written in the third person, relating to facts only and save the rest of the story for the witness statement later in the process.

jean232

Thanks again for the links, we've responded to the AoS and will be drafting the defence next using the template and amending paragraphs 2 and 3. 
Will definitely run it through you first for feedback, thanks again for the help

jean232

Hi again, we drafted the below as our defence, would really appreciate some guidance please

THE COUNTY COURT

 

CLAIM No: XXXXXXXX

             

BETWEEN: 

 

UK CAR PARK MANAGEMENT LTD (Claimant)

 

-and-

 

XXXXXX XXXXXX (Defendant)

 

________________________________________

DEFENCE

________________________________________

1.    The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.   Whilst it is admitted that the Defendant was the registered keeper and driver, it is denied that the driver of the vehicle entered into any contractual agreement with the Claimant, whether express, implied, or by conduct. Further, the mandatory requirements to establish 'keeper liability' have not been met and the Defendant is not liable in law.

 

2.  The Particulars of Claim provide insufficient detail for the Defendant to be able to ascertain the nature of the case as pleaded. The Defendant has no knowledge of any parking charge notice and no letters were received, thus a Notice to Keeper ('NTK') as set out in Schedule 4 of the Protection of Freedoms Act 2012 ('the POFA') was not properly served. The defendant also denies receiving a pre-action Letter before Claim, contrary to the pre-action protocol for debt claims - The Defendant has no information, paperwork or photographs and has had to work out the car park location from the Particulars of Claim where the location and date are stipulated. The Defendant sets out this Defence as best they can, in the circumstances.

 

3.  The parking is located at the entrance of a block of flats where the Defendant was viewing a property for sale. There is no other route to the block of flats aside from entering the Atlip Centre car park. There is no signage at the turn from the main road to the car park and the sign is located few yards past the ANPR entrance camera. The vehicle registration would have been stored prior to giving consent through seeing and/or reading the signage.   

4. The signage at the car park of the Atlip Centre, Ealing road, HA0 4LW is misleading and the terms and conditions did not state the parking is "only" for visitors to the Atlip centre. Upon revisiting the parking site recently, the main signage that includes the terms and conditions still does not stipulate that the parking is only for the Atlip centre visitors but there are signs near few parking bays now stating that the parking is for Atlip centre visitors only. The Defendant denies these signs were present on the 17/06/2019 when using the car park.

5. It is denied that the claimant's signage set out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them, even if they were seen. They merely state that the customers of the Atlip centre must log their vehicle registration into the permit system inside but do not specify that the parking spaces are for the Atlip centre customers only. The Defendant denies entering into a “contract” with xxxx as the terms only apply to the Atlip centre visitors and not the visitors of the block of flats.

6.  Further and in the alternative, the Claimant is put to strict proof that it has sufficient proprietary interest in the land, or the necessary authorisation from the landowner to issue parking charge notices under the alleged (unknown to the Defendant) circumstances and to pursue keepers by means of litigation.  It is not accepted that the Claimant has adhered to any landowner instructions, definitions, exemptions, other terms or grace period and it is not accepted that the Claimant has complied with its Trade Body Code of Practice ('CoP') as regards mandatory signs, grace period or any other matter that is later revealed in evidence by way of ambush.  

7.    The POFA, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the NTK.  The Defendant is having to guess that this did not exceed the Trade Body ceiling of £100, yet the claim includes an additional £60, for which no explanation is given, and which appears to be an attempt at double recovery.  The Claimant may mislead the court by pointing to a clause in their own Trade Body's CoP that appears to 'allow' added sums by way of damages but the Defendant reminds the court that the CoP is written by the parking firms themselves and is a self-serving document, not regulation, and the two competing 'race to the bottom' CoPs propping up this industry have failed consumers so badly that Parliament is currently working on replacing them with a new CoP, following the enactment of the Parking (Code of Practice) Act 2019.

 

8.   Parking Eye Ltd v Beavis [2015] UKSC 67 ('the Beavis case') is the authority for recovery of the parking charge itself and no more, since that sum (£85 in the Beavis case) was held to already incorporate the costs of an automated private model including recovery letters, which do not represent 'damages'.  The Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages anyway.  By contrast with Beavis, this charge is unconscionable and devoid of any 'legitimate interest' and the Supreme Court stated no less than three times that the operational costs 'must' already be covered by the parking charge, if such a charge is to be held to be a justified/necessary deterrent and disengage the 'penalty rule'.

8.1.  To quote from the Beavis case at Para [108]: ''But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85''. Ad at [199]: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests.''
8.2. In the Beavis case it was said at para [205]: ''The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.''
8.3. At para 98. {re ...The desirability of running that parking scheme at no cost, or ideally some profit, to themselves} ''Against this background, it can be seen that the £85 charge had two main objects. One was to manage the efficient use of parking space in the interests of the retail outlets, and of the users of those outlets who wish to find spaces in which to park their cars [...] The other purpose was to provide an income stream to enable ParkingEye to meet the costs of operating the scheme and make a profit from its services...''
8.4. At para 193. ''Judging by ParkingEye’s accounts, and unless the Chelmsford car park was out of the ordinary, the scheme also covered ParkingEye's costs of operation and gave their shareholders a healthy annual profit.'' and at para 198: ''The charge has to be and is set at a level which enables the managers to recover the costs of operating the scheme. It is here also set at a level enabling ParkingEye to make a profit.''

 

9.   In summary, the Claimant's particulars disclose no legal basis for the sum claimed and it is the Defendant's position that the poorly pleaded claim discloses no cause of action and no liability in law for any sum at all.  The Defendant is of the view that this Claimant knew or should have known that an exaggerated claim in excess of £100 for a parking charge which cannot have the same costs added again, is disallowed under the CPRs, the Beavis case, the POFA and the CRA, and that relief from sanctions should be refused.

Statement of Truth:
I believe that the facts stated in this defence are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

Name
Signature
Date

  

KeithP

That doesn't look like it is based on the template Defence.

Have you seen the template Defence? It runs to twenty-seven paragraphs.

3.  The parking is located at the entrance of a block of flats where the Defendant was viewing a property for sale. There is no other route to the block of flats aside from entering the Atlip Centre car park.

Does that mean there is no possibility of anyone ever visiting or living at the block of flats if they don't have a car?  

4. The signage at the car park of the Atlip Centre, Ealing road, HA0 4LW is misleading and the terms and conditions did not state the parking is "only" for visitors to the Atlip centre. Upon revisiting the parking site recently, the main signage that includes the terms and conditions still does not stipulate that the parking is only for the Atlip centre visitors but there are signs near few parking bays now stating that the parking is for Atlip centre visitors only. The Defendant denies these signs were present on the 17/06/2019 when using the car park.

There were signs in that car park in Jun 2019.
Here's five of them...
https://goo.gl/maps/qEDy8ddBBgErKurw8

Although it is not possible to read the signs in that image, they look remarkably similar to the signs there in August 2021...
https://goo.gl/maps/L7n246HW9WCxGS6QA

As you say, that sign states...

You should note that it does not say what drivers who are not visiting the Atlip Centre should do. It certainly doesn't say they are forbidden from parking there.

It goes on to say...


I only mention these things because the Claimant will surely do so if this reaches a hearing.

jean232

Will check the template again and add the missing paragraphs.
To answer your question, not sure but it doesn't change the fact that the sign didn't specify that the parking is only for the shopping centre and not the block of flats.

Le_Kirk

jean232 said:

Will check the template again and add the missing paragraphs.

Don't add the "missing" paragraphs to your draft for critique unless you have amended any of them.  What @KeithP is stating is that it does not resemble the defence template.  Of course you use ALL of the template when sending it to the CCBC but only paragraphs 2 & 3 (or any others you have added or altered) on the forum for critique.