Leisure Centre and flats private car park

pcn_rights

Hi,

The Driver got a parking charge notice when visiting a council’s leisure centre for the first time. The leisure centre shares a plot with some private development flats. But they don’t share the same parking spaces, which was unknown to the driver (not the registered keeper) at the time. Driver parked in one of the parking spaces designated for those flats and got a parking charge notice on the windscreen.

There are some designated parking spaces for leisure centre users marked in yellow, but the markings on the ground have worn out significantly. There was also a sign near those parking spaces saying the yellow-marked parking spaces are for leisure centres users. Unfortunately, the sign was blocked by parked cars on the day of the event. Such a sign only came as knowledge to the driver after the PCN was issued.

The Driver did see the warning of a private car park sign from Parking and Property Management LTD, but thought it was a warning from the perspective of the leisure centre.

 

The Registered Keeper has not disclosed who the driver was at the time, NTK arrived on day 36. An appeal was submitted after receiving the NTK as the Registered Keeper using the appeal template, without disclosing who the driver was but Parking and Property Management LTD replied with “If you believe the PCN has been issued incorrectly or unfairly, please submit an appeal with your reasons

We cannot accept the email below as an appeal”

The Registered Keeper received Country Claim Form with Claimant Parking and Property Management LTD, BW Legal. The Registered Keeper has acknowledged the service of claim after 5 days and within 14 days, acknowledgement of service was confirm received. Will be submitting a defence before the (5+14+14) deadline on a business day working hours and ensure acknowledgement is received. 

Currently writing the defence as the Registered Keeper using the defence template. Will take photos of the signs mentioned above tomorrow as part of evidence.

 

Based on my case, what ground should I stand in terms of my defence? Suggestions are greatly appreciated!

Thanks!

Current draft modified from defence template:

The facts as known to the Defendant:

2. It is admitted that at all material times the Defendant is the registered keeper of vehicle registration mark xxxxxxx which is the subject of these proceedings. The vehicle is insured with (name of insurer) with 2 of named drivers permitted to use it.

3. It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.

3.1. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Claimant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA")

3.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:

3.2.1. there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and

3.2.2. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.

It is not admitted that the Claimant has complied with the relevant statutory requirements.

3.3. To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.

4. This parking event allegedly took place in (date), the car park is used by users of (name of leisure centre).

Coupon-mad

We've seen this place with poorly marked 'yellow bays' before, only the other week in a thread, I think.

pcn_rights

Hi,

I sent my DQ back to the CCBC email address and got an automatic acknowledgement. However nothing is updated on the MCOL portal, I got the automatic acknowledgement email on the 4th. As of the 14th today the latest Claim Status in MCOL portal was still "DQ sent to you on 22/03/2023".

Is this normal? Should I expect the Claim Status to be updated at some point after I returned my DQ by email? Thanks!

KeithP

pcn_rights said:

Hi,

I sent my DQ back to the CCBC email address and got an automatic acknowledgement. However nothing is updated on the MCOL portal, I got the automatic acknowledgement email on the 4th. As of the 14th today the latest Claim Status in MCOL portal was still "DQ sent to you on 22/03/2023".

Is this normal? Should I expect the Claim Status to be updated at some point after I returned my DQ by email? Thanks!

You got an automatic email acknowledgment when you filed your DQ by email. That's good enough.
The CCBC do seem to be at least a couple of weeks behind with their paperwork.

Did you remember to send a copy of your completed DQ to the Claimant?

pcn_rights

KeithP said:

pcn_rights said:

Hi,

I sent my DQ back to the CCBC email address and got an automatic acknowledgement. However nothing is updated on the MCOL portal, I got the automatic acknowledgement email on the 4th. As of the 14th today the latest Claim Status in MCOL portal was still "DQ sent to you on 22/03/2023".

Is this normal? Should I expect the Claim Status to be updated at some point after I returned my DQ by email? Thanks!

You got an automatic email acknowledgment when you filed your DQ by email. That's good enough.
The CCBC do seem to be at least a couple of weeks behind with their paperwork.

Did you remember to send a copy of your completed DQ to the Claimant?

Thank you. Yup, CCed the Claimant's email when sending to CCBC. Thanks!

Coupon-mad

pcn_rights said:

Hi,

I sent my DQ back to the CCBC email address and got an automatic acknowledgement. However nothing is updated on the MCOL portal, I got the automatic acknowledgement email on the 4th. As of the 14th today the latest Claim Status in MCOL portal was still "DQ sent to you on 22/03/2023".

Is this normal? Should I expect the Claim Status to be updated at some point after I returned my DQ by email? Thanks!

https://forums.moneysavingexpert.com/discussion/comment/79989955/#Comment_79989955

pcn_rights

KeithP said:

pcn_rights said:

Hi,

I sent my DQ back to the CCBC email address and got an automatic acknowledgement. However nothing is updated on the MCOL portal, I got the automatic acknowledgement email on the 4th. As of the 14th today the latest Claim Status in MCOL portal was still "DQ sent to you on 22/03/2023".

Is this normal? Should I expect the Claim Status to be updated at some point after I returned my DQ by email? Thanks!

You got an automatic email acknowledgment when you filed your DQ by email. That's good enough.
The CCBC do seem to be at least a couple of weeks behind with their paperwork.

Did you remember to send a copy of your completed DQ to the Claimant?

Hi,

As of the 25th of May in the MCOL portal I still do not see an update showing something like "DQ filed by you on 04/04/2023”, while the latest additional Claim Status now has "DQ filed by claimant on 19/05/2023"

Is this normal? I emailed my DQ on the 4th of April and copied in the claimant, I received the automatic acknowledgement from both the CCBC and the claimant.

Do I have to email the DQ to CCDB during their office hours? My email was sent in the evening.

Should I follow up with CCBC?

Thanks!

Coupon-mad

Why not re-forward it and give them a prod?

KeithP

@pcn_rights, what happened next?

pcn_rights

KeithP said:

@pcn_rights, what happened next?

I have received the WS from the claimant, and writing my own. Hence the question about claimant accusing me  using defence template you see me asking in another thread.

pcn_rights

KeithP said:

@pcn_rights, what happened next?

My hearing is in a month time, and I need to submit a WS by 26th July 2023. 

Please will you have a look my WS below for me? 

I have two questions:

1. I referred to the Claimant's WS (both wording and their exhibits) in my own WS, is that ok?

2. Regarding the further cost under Rule 44.11, is the rate of £19 universal or it's based on my personal wage? I see a lot of WS writes hourly rate of £19.

Thank you very much in advance!!!!!

------------------------------------------------------------------------------------------------------------------- 

I, <name>, <address> WILL SAY:

 

1            I am <name>, and I am the defendant against whom this claim is made. The facts below are true to the best of my belief and my account has been prepared based upon my own knowledge.

 

2            In my statement I shall refer to exhibits within the evidence supplied with this statement, referring to page and reference numbers where appropriate. My defence is repeated, and I will say as follows:

Sequence of events and signage

3            Firstly, it should be noted that this is this car park is share with <Leisure centre>, which is owned by <xx council>. As claimant has appended to their witness statement, the signage at the entrance of that car park is positioned at a very low level, invisible from driver’s perspective when entry. I have appended the actual signage, and the actual view as a driver in the car, photographed using dashcam myself on <date>, and will refer to them throughout.

4            The approach and entrance to the car park is on a two-way road with double yellow lines (exhibit xx-01). This is a busy road where stopping is impossible, due to the double yellow lines and traffic (including many buses) not being able to pass. With the signage positioned at such low level (exhibit xx-01), it is impossible for car driver to see upon entrance.

5            As the Claimant has appended to their witness statement, the signage from <Leisure centre> was again positioned at very low level. It should also be noted that it is a parking bay right in front of the signage, which makes the signage impossible to view for anyone without prior knowledge of the existence of such signage when the parking bay is occupied (exhibit xx-02 and xx-03) upon entrance.

6            At this point of time, as a user of <Leisure centre> with prior knowledge of parking spaces are available onsite for users, the driver has entered the car park, without any knowledge of the difference between marked and unmarked parking bays.

7            It should also be noted that as the Claimant has appended on Page x in their statement, the yellow marks on the ground are heavily faded.

8            At this stage, the driver has found a suitable bay and parked safely. The only viewable signage is the signage with only “PRIVATE LAND” being readable at the best on it (exhibit xx-04 and P22, P24 & P31 in Claimant statement). Such signage could refer to the land of <Leisure centre>.

Comment on Claimant’s Witness Statement dated <date>

9            In this case, the signage fails to adhere to the standards laid out by the relevant accredited parking association, the International Parking Community ('IPC'). The IPC mandatory Code says that text on signage “should be of such a size and in a font that can be easily read by a motorist having regard to the likely position of the motorist in relation to the sign”. It also states that “they should be clearly seen upon entering the site” and that the signs are a vital element of forming a contract with drivers. A copy of an example signage is included in this statement for comparison (exhibit xx -05).

10         Pursuant to government guidance “Private Parking Code of Practice” published on 7 February 2022, remained in place at the time of the event (9 April 2022), “Signs informing drivers that a parking charge may be applicable and of the level of that charge must do so in a font of comparable size and boldness to the main body text on the sign, and where included on signs also displaying the parking tariff a font no smaller than the tariff text/numbers.” Clearly, the signage of Parking and Property management (exhibit xx – 06) does not comply the requirement at the time of the event.

11         Pursuant to the exhibit append to Claimant’s Witness Statement, Page 21, an up-close photography of the Terms and Conditions, the parking charge of £100 is barely readable, let along other terms and conditions, and reading it from distance.

Comment on Claimant’s Skeleton Argument Dated <date>

12         In the Skeleton Argument filed by the Claimant accusing my Defence as “a template defence commonly found on internet forums…”, “discloses no reasonable grounds for brining or defending the claim”, “an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings”.

13         Embarrassingly, the Skeleton above, filed by the roboclaim litigator, has itself used a "template" to now accuse the Defendant of being untruthful because, as a litigant-in-person with no legal training, I have relied on sources available to me on the internet to learn how to put together a valid Defence against woefully inadequate Particulars of Claim (PoC).

14         Given that, I therefore ask the Judge to look at the sparse/generic PoC in this case and compare it to the sudden (different and accusatory) allegations in the Claimant's legal representative's Witness Statement. It is impossible for the Claimant’s para-legal to know what is “beyond the knowledge of the Defendant” and which constitutes a personal attack and an unpleaded ambush, defying any reasonable explanation.

15         In Rothschild v Charmaine De Souza (2018] EWHC 1855 (Fam), one of many cases which demonstrate the danger of including invective in Witness Statements. In a short closing remark, Mr Justice Mostyn stated that unjustified attacks in Witness Statements like this should affect costs. It is not a third-party paralegal's place to suddenly and disingenuously attack me with bald assertions about my knowledge.

16         Based on such attack, I would suggest that striking out all or part of the Claimant’s Witness Statement might be considered, as the Claimant most likely have never been to the car park in question. The para-legal making these unpleaded and unevidenced allegations is not a true witness.

 

ParkingEye v Beavis is distinguished

17         As per addressed in my Defence (paragraph 18, 19, and 20), and not to repeat again to avoid, as Claimant has accused in their Witness Statement, that “the court and the claimant’s solicitors have to review and respond to a large volume of information”.

POFA and Consumer Rights Act

18         Pursuant to Schedule 4 paragraph 4(5) of the Protection of Freedoms Act 2012 (POFA), the sum claimed exceeds the maximum sum which may be recovered from the keeper.

19         Pursuant to Schedule 2 paragraph 6 of the Consumer Rights Act 2015, the sum claimed could be regarded as unfair by the court as it considers the test of fairness laid out in Section 71.

The Quantum and abuse of process

20         Pursuant to the Claimant’s Witness Statement paragraph 15, “Enforcement action may incur additional costs of £70 that will be added to the value of the parking charge and for which the driver will be liable.” In the present case, as the keeper, I am not liable to the additional charge.

21         In contradiction, as the Claimant’s Witness Statement appended on Page 34, the Reminder Notice sent on 11 June 2022 (exhibit xxx) states “The overdue charge will increase to £160 in the first instance of further action.” Such clause is unfair and contradicted to the Terms and Condition on the signage at the scene.

22         In the letter sent by BW Legal on <date 1>, it states “The balance due is for £100.00 of PCN charge(s), plus our client’s debt recovery costs of £60.00, which were detailed in the PCN and/or our client’s terms and conditions. The terms and conditions were clearly displayed on our client’s signage at the contravention location.” The amount of balance of £160 were repeatedly mentioned in the letter sent on <date 2>, <date 3>, and <date 4>.

23         The four letters mentioned above from BW Legal requested amount of balance including the debt recovery cost which is only liable to the driver (Paragraph 20), suggesting that BW Legal has presumed the keeper is the driver, however the evidence is lacking. Therefore, BW Legal has made a false claim against me.

24         The Claimant continues to pursue the keeper a hugely disproportionate sum. It is denied that the quantum sought is recoverable, indeed it represents a penalty. Attention is drawn to paras 98, 100, 193, 198 of ParkingEye Ltd v Beavis [2015] KSC67. Also, ParkingEye 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 admin costs inflating it to £135 'would appear to be penal'.

25         In addition to this, His Honour Judge Jackson in Excel v Wilkinson found that the ‘additional charge’ constitutes a debt recovery is false and an abuse of process, in which £60 had been added to a parking charge.

26         This Claimant has not incurred any additional costs (not even for reminder letters), and the parking charge more than covers what the Supreme Court in Beavis called “an automated letter-chain business model that generates a healthy profit”.

CPR 44.11 - further costs

27         I am appending with this bundle, a fully detailed costs assessment which also covers my proportionate but unavoidable further costs and I invite the court to consider making an award to include these, pursuant to the court's powers in relation to misconduct (CPR 44.11).

28         In support of that argument, I remind the court that I appealed and engaged with the Claimant. Not only could this claim have been avoided and the Claimant has no cause of action, but it is also vexatious to pursue an inflated sum that includes debt recovery. This is compounded by Claimant’s Witness Statement attaching stock images of signs instead of actual images, altering the Statement of Truth, and raising false claim against me and constituting a personal attack.

My fixed witness costs - ref PD 27, 7.3(1) and CPR 27.14

29         As a litigant-in-person, I have had to learn relevant law from the ground up and spent a considerable time researching the law online, processing and preparing my Defence plus this Witness Statement, which has been suddenly and disingenuously attacked by the Claimant’s para-legal as “unreasonable behaviour”, “most of which [my Defence] is beyond the knowledge of the Defendant and therefore nonsensical and/or irrelevant”. I ask for my fixed witness costs. I am advised that costs on the Small Claims track are governed by rule 27.14 of the CPR and (unless a finding of 'wholly unreasonable conduct' is made against the Claimant) the Court may not order a party to pay another party’s costs, except fixed costs such as witness expenses which a party has reasonably incurred in travelling to and from the hearing (including fares and/or parking fees) plus the court may award a set amount allowable for loss of earnings or loss of leave.

30         The fixed sum for loss of earnings/loss of leave apply to any hearing format and are fixed costs at PD 27, 7.3(1) ''The amounts which a party may be ordered to pay under rule 27.14(3)(c) (loss of earnings)... are: (1) for the loss of earnings or loss of leave of each party or witness due to attending a hearing ... a sum not exceeding £95 per day for each person.''

STATEMENT OF TRUTH