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“The above point was recently tested in the County Court at High Wycombe, in the case of Parking Control Management (UK) Ltd v Bull & 2 Others(B4GF26K6, 21 April 2016), where District Judge Glen dismissed all three claims”
Why not just search the forum for something like: PCM Bull defence predatory and find ones already written that cover the Bull case and PCM lurking ticketers?
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Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
CLICK at the top of this/any page where it says:
Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
After sending a SAR request, I received a response from PCM in the post with copies of 2 postal PCN notices. First with £100 charge discounted to £60 if paid within 14 days. Second with £100 charge. The only mention of the land owner I can see on notices is “PCM UK Ltd are the creditor and agents of the landowner, have the right to seek payment for this charge”. As per the parking-prankster link - this applies to me,
“In order to issue parking charges, and to pursue unpaid charges via litigation, the Claimant is required to have the written authority of the landowner, on whose behalf they are acting as an agent, in this case Peel Land & Property Ltd. No evidence of such authority was supplied by the Claimant at any time, and the Claimant is put to strict proof of same, in the form of an unredacted and contemporaneous contract, or chain of authority, from the landowner to the Claimant”?.
also received 4 photos of the vehicle, the ones available on their website with times as I mentioned on my earlier post.
DEFENCE
1. The parking charges referred to in this claim did not arise from any agreement of terms. The charge and the claim was an unexpected shock. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all. It is denied that any conduct by the driver was a breach of any prominent term and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue or form contracts in their own name. Liability is denied, whether or not the Claimant is claiming 'keeper liability', which is unclear from the Particulars.
The facts as known to the Defendant:
2. It is admitted that the Defendant was the registered keeper and driver of the vehicle in question but liability is denied. The Claim relates to an alleged debt, arising from the driver’s very brief stop on land adjacent to a Public Highway (a lay-by)
3. The defendant did not see any prominent signs before entering the said private land. Upon noticing a sign, the defendant immediately turned the vehicle around and stopped by this sign to read it. The vehicle in question is a registered disabled person’s vehicle therefore the driver was seeking information on disabled parking availability. The Defendant will be providing evidence of the passenger’s Blue Badge.
(a) The site appears to be a lay-by and part of the public highway
(b) There is no information close enough to be read by an approaching driver to suggest it is private land or otherwise restricted.
4. The defendant also brings to the court’s attention that they have since revisited the location and note that:
(a) There are three signs, one by a bus stop which is obscured when a bus stops in front, one at the far end not legible to the human eye and one by the entrance poorly positioned hidden by telephone boxes on approach.
(a) Photographs will be submitted to the court as evidence
5. It is clear that the signs are so high and the writing so small it cannot be read from a vehicle or even by a pedestrian until right by the sign. As a result, it took longer for the driver to establish that there is no parking available. As stated on the claimant’s signage “IF UNSURE PLEASE SEEK FURTHER ADVICE OR REFRAIN FROM PARKING”. After reading this the driver decided to leave without parking.
6. If it is the Claimant’s case that the area is intended as a “no stopping zone” then they cannot also offer parking at a price, if cars are never authorised to stop under any circumstances, then any breach would be a matter that falls firmly under the tort of trespass.
7.In the case of PCM vs Bull, DJ Glenn dismissed a similar case, commenting on signage that forbids parking other than prescribed, stating it is impossible to construct out of this in any way, either actually or contingently or conditionally, any permission for anyone to park on the roadway. All this is essentially saying is you must not trespass on the roadway. If you do we are giving ourselves, and we are dressing it up in the form of a contract, the right to charge you a sum of money which really would be damages for trespass, assuming of course that the claimant had any interest in the land in order to proceed in trespass.
(a) As PARKING CONTROL MANAGEMENT (UK) Ltd are not the landowners, merely an agent, and cannot pursue the defendant for trespass.
(b) PARKING CONTROL MANAGEMENT (UK) Ltd are not the lawful occupier of the land. Defendant has reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no rights to bring action regarding this claim.
8.The claimant incorrectly claims “the vehicle parked in breach of the signage (the contract). The defendant does not agree with the particulars of the claim i.e. 'contractual breach' or 'failure to comply with terms and conditions as no contract or terms and conditions were breached, understood or signed. The defendant denies this claim.
9.Should the court be satisfied that there is a potential cause of action, there were no road markings or bays etc.; this is not a car park, just an unmarked lay-by. It is trite law on-street (had this been Council highway, where the TMA2004 applies as well as the Highway Code) that no markings suggest no restrictions
10. There was not a sufficient grace period offered to the Defendant as per the IPC AOS Code of Practice (of which Parking Control Management UK LTD is a member of) 13.1 states: “Motorists must be allowed a sufficient consideration period so they may make an informed decision as to whether or not to enter or remain on the private land”.
11.As there are no adequate signs on the boundary, the defendant had no reason to believe a charge started from the time entered the land. The time spent within was 11 minutes and 53 seconds (assuming the camera equipment used by the claimant’s representative has been properly maintained and serviced).
12.Given the timings involved, the balance of probability strongly suggests that the claimant’s representative watched from a distance and took photographs as the vehicle entered the site. This can be construed as a strategy to entrap and unfairly penalise individuals. Not to warn the driver that they would incur a parking charge, this in my opinion is “predatory tactics”.
The IPC guidelines (14) state:
‘You must not use predatory or misleading tactics to lure drivers into incurring parking charges. Such instances will be viewed as a serious instance of non-compliance’.
13.If the parking company genuinely wished to prevent parking, rather than lurking around taking photographs, they could politely ask drivers to leave immediately. They would also use large signs which can be seen from inside vehicles. Thus the signage is simply a device to entrap motorists into a situation whereby the Claimant sends them invoices for unwarranted and unjustified charges, for which motorists can have no contractual liability due to the terms and conditions not having been sufficiently brought to their attention
14. The facts in this defence come from the Defendant's own knowledge and honest belief. To pre-empt the usual template responses from this serial litigator: the court process is outside of the Defendant's life experience and they cannot be criticised for adapting some pre-written wording from a reliable advice resource. The Claimant is urged not to patronise the Defendant with (ironically template) unfounded accusations of not understanding their defence.
15. With regard to template statements, the Defendant observes after researching other parking claims, that the Particulars of Claim ('POC') set out a cut-and-paste incoherent statement of case. Prior to this - and in breach of the pre-action protocol for 'Debt' Claims - no copy of the contract (sign) accompanied any Letter of Claim. The POC is sparse on facts about the allegation which makes it difficult to respond in depth at this time; however, the claim is unfair, objectionable, generic and inflated.
16. This Claimant continues to pursue a hugely disproportionate fixed sum (routinely added per PCN) despite knowing that this is now banned. It is denied that the quantum sought is recoverable (authorities: two well-known Parking Eye cases where modern penalty law rationale was applied). Attention is drawn to paras 98, 100, 193, 198 of Parking Eye Ltd v Beavis [2015] UKSC67. Also Parking Eye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was £75, discounted to £37.50 for prompt payment. Whilst £75 was reasonable, HHJ Hegarty (sitting at the High Court; later ratified by the CoA) held in paras 419-428 that unspecified 'admin costs' inflating it to £135 'would appear to be penal'.
17. This finding is underpinned by the Government, who have now stated that attempts to gild the lily by adding 'debt recovery costs' were 'extorting money'. The Department for Levelling Up, Housing and Communities ('DLUHC') published in February 2022, a statutory Code of Practice, found here: https://www.gov.uk/government/publications/private-parking-code-of-practice
18. Adding costs/damages/fees (however described) onto a parking charge is now banned. In a section called 'Escalation of costs' the incoming statutory Code of Practice says: "The parking operator must not levy additional costs over and above the level of a parking charge or parking tariff as originally issued."
19. The Code's Ministerial Foreword is unequivocal about abusive existing cases such as the present claim: "Private firms issue roughly 22,000 parking tickets every day, often adopting a labyrinthine system of misleading and confusing signage, opaque appeals services, aggressive debt collection and unreasonable fees designed to extort money from motorists."
20. The DLUHC consulted for over two years and considered evidence from a wide range of stakeholders. Almost a fifth of all respondents to the 2021 Technical Consultation called for false fees to be scrapped altogether; this despite the parking industry flooding both public consultations, some even masquerading as consumers. The DLUHC saw through this and in a published Response, they identified that some respondents were 'parking firms posing as motorists'. Genuine consumer replies pointed out that successful debt recovery does not trigger court proceedings and the debt recovery/robo-claim law firms operate on a 'no win, no fee' basis, seeking to inflate the sum of the parking charge, which in itself is already sufficiently enhanced.
21. This Claimant has not incurred any additional costs (not even for reminder letters) because the (already high) parking charge more than covers what the Supreme Court in Beavis called an automated letter-chain business model that generates a healthy profit.
22. The driver did not agree to pay a parking charge, let alone unknown costs, which were not quantified in prominent text on signage. It comes too late when purported debt recovery fees are only quantified after the event.
23. Whilst the new Code and Act is not retrospective, it was enacted due to the failure of the self-serving BPA & IPC Codes of Practice. The Minister is indisputably talking about existing (not future) cases when declaring that 'recovery' fees were 'designed to extort money'. A clear steer for the Courts.
24. This overrides mistakes made in the appeal cases that the parking industry try to rely upon (Britannia v Semark-Jullien, One Parking Solution v Wilshaw, Vehicle Control Services v Ward and Vehicle Control Services v Percy). Far from being persuasive, regrettably these one-sided appeals were findings by Circuit Judges who appeared to be inexperienced in the nuances of private parking law and were led in one direction by Counsel for parking firms, and the litigant-in-person consumers lacked the wherewithal to appeal further. In case this Claimant tries to rely upon those cases, the Defendant avers that significant errors were made. Evidence was either overlooked (including inconspicuous signage in Wilshaw, where the Judge was also oblivious to the BPA Code of Practice, including rules for surveillance cameras and the DVLA KADOE requirement for landowner authority) or the Judge inexplicably sought out and quoted from the wrong Code altogether (Percy). In Ward, a few seconds' emergency stop out of the control of the driver was unfairly aligned with the admitted contract in Beavis. Those learned Judges were not in possession of the same level of facts and evidence as the DLUHC, whose Code now clarifies all such matters.
POFA and CRA breaches
25. Pursuant to Schedule 4 paragraph 4(5) of the Protection of Freedoms Act 2012 ('the POFA') the sum claimed exceeds the maximum potentially recoverable from a registered keeper, even in cases where a firm may have complied with other POFA requirements (adequate signage, Notice to Keeper wording/dates, and a properly communicated 'relevant contract/relevant obligation'). If seeking keeper/hirer liability - unclear from the POC - the Claimant is put to strict proof of full compliance and liability transferred.
26. Claiming costs on an indemnity basis is unfair, per the Unfair Contract Terms Guidance (CMA37, para 5.14.3), the Government guidance on the Consumer Rights Act 2015 ('CRA'). The CRA introduced new requirements for 'prominence' of both contract terms and 'consumer notices'. In a parking context, this includes signage and all notices, letters and other communications intended to be read by the consumer.
27. Section 71 creates a duty upon courts to consider the test of fairness, including (but not limited to) whether all terms/notices were unambiguously and conspicuously brought to the attention of a consumer. In the case of a 'PCN', this must have been served to the driver whilst the vehicle was stationary or, at sites remotely monitored by ANPR/CCTV, served to the keeper so that the motorist learns about it quickly. Signage must be prominent, plentiful, well placed and lit, and all terms unambiguous and obligations clear. The Defendant avers that the CRA has been breached due to unfair/unclear terms and notices, pursuant to s62 and paying due regard to examples 6, 10, 14 & 18 of Schedule 2 and the requirements for fair dealing and good faith.
ParkingEye v Beavis is distinguished (lack of legitimate interest/prominence of terms)
28. ParkingEye overcame the possibility of their £85 charge being dismissed as punitive, however the Supreme Court clarified that ‘the penalty rule is plainly engaged’ in parking cases, which must be determined on their own facts. That 'unique' case met a commercial justification test, given the location and clear signs with the parking charge in the largest/boldest text. Rather than causing other parking charges to be automatically justified, the Beavis case facts (in particular, the brief, conspicuous yellow & black warning signs) set a high bar that this Claimant has failed to reach.
29. Without the Beavis case to support the claim and no alternative calculation of loss/damage, this claim must fail. Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of a legitimate interest in performance extending beyond the prospect of compensation flowing directly from the alleged breach. The intention cannot be to punish a driver, nor to present them with hidden terms, unexpected/cumbersome obligations nor any 'concealed pitfalls or traps'.
30. In the present case, the Claimant has fallen foul of those tests. The Claimant’s small signs have vague/hidden terms and a mix of small font, and are considered incapable of binding a driver. Consequently, it remains the Defendant’s position that no contract to pay an onerous penalty was seen or agreed. Binding Court of Appeal authorities which are on all fours with a case involving unclear terms and a lack of ‘adequate notice’ of a parking charge, include:
(i) Spurling v Bradshaw [1956] 1 WLR 461 (‘red hand rule’) and
(ii) Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ2,
both leading authorities confirming that a clause cannot be incorporated after a contract has been concluded; and
(ii) Vine v London Borough of Waltham Forest: CA 5 Apr 2000, where Ms Vine won because it was held that she had not seen the terms by which she would later be bound. It was unsurprising that she did not see the sign, due to "the absence of any notice on the wall opposite the parking space'' (NB: when parking operator Claimants cite Vine, they often mislead courts by quoting out of context, Roch LJ's words about the Respondent’s losing case, and not from the ratio).
31. Fairness and clarity of terms and notices are paramount in the statutory Code and this is supported by the BPA & IPC Trade Bodies. In November 2020's Parking Review, solicitor Will Hurley, CEO of the IPC, observed: "Any regulation or instruction either has clarity or it doesn’t. If it’s clear to one person but not another, there is no clarity. The same is true for fairness. Something that is fair, by definition, has to be all-inclusive of all parties involved – it’s either fair or it isn’t. The introduction of a new ‘Code of Practice for Parking’ provides a wonderful opportunity to provide clarity and fairness for motorists and landowners alike."
Lack of landowner authority evidence and lack of ADR
32. DVLA data is only supplied to pursue parking charges if there is an agreement flowing from the landholder (ref: KADOE rules). It is not accepted that the Claimant has adhered to a defined enforcement boundary, grace period or exemptions (whatever the landowner's definitions were) nor that this Claimant has authority from the landowner to issue charges in this specific area. The Claimant is put to strict proof of all of this, and that they have standing to make contracts with drivers and litigate in their own name, rather than merely acting as agents.
33. The Claimant failed to offer a genuinely independent Alternative Dispute Resolution (ADR). The Appeals Annex in the new Code shows that genuine disputes such as this - even if the facts were narrowed later - would have seen the charge cancelled, had a fair ADR existed. Whether or not a person engaged with it, the Claimant's consumer blame culture and reliance upon the industry's own 'appeals service' should not sway the court into a belief that a fair ADR was ever on offer. The rival Trade Bodies' time-limited and opaque 'appeals' services fail to properly consider facts or rules of law and would have rejected almost any dispute: e.g. the IAS upheld appeals in a woeful 4% of decided cases (IPC's 2020 Annual Report).
Conclusion
34. The claim is entirely without merit and the Claimant is urged to discontinue now, to avoid incurring costs and wasting the court's time and that of the Defendant.
35. With the DLUHC's ban on the false 'costs' there is ample evidence to support the view - long held by many District Judges - that these are knowingly exaggerated claims. For HMCTS to only disallow those costs in the tiny percentage of cases that reach hearings whilst other claims to continue to flood the courts unabated, is to fail hundreds of thousands of consumers who suffer CCJs or pay inflated amounts, in fear of the intimidating pre-action demands. The Defendant believes that it is in the public interest that claims like this should be struck out because knowingly enhanced parking claims like this one cause consumer harm on a grand scale.
36. In the matter of costs, the Defendant asks:
(a) at the very least, for standard witness costs for attendance at Court, pursuant to CPR 27.14, and
(b) for a finding of unreasonable conduct by this Claimant, seeking costs pursuant to CPR 46.5.
37. Attention is drawn specifically to the (often-seen from this industry) possibility of an unreasonably late Notice of Discontinuance. Whilst CPR r.38.6 states that the Claimant is liable for the Defendant's costs after discontinuance (r.38.6(1)) this does not normally apply to claims allocated to the small claims track (r.38.6(3)). However, the White Book states (annotation 38.6.1): "Note that the normal rule as to costs does not apply if a claimant in a case allocated to the small claims track serves a notice of discontinuance although it might be contended that costs should be awarded if a party has behaved unreasonably (r.27.14(2)(dg))."
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.
Defendant’s signature:
Date:
I would change "the said private land" to a more vague "the area".
Were their photos actually taken by a lurking person with an iphone at car height then, as your end section suggests? Not CCTV or ANPR 'in and out' driving images?
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Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD