PCM/Gladstones Court Claim

Coupon-mad

Yes, once you've read Jopson, you will see there is a solid legal argument quite separate from any signage.

Trainerman

Why did my wife thought it was ok to unload there? Because otherwise she would have to carry shopping few hundred meters, but given the signage being visible isn't this defence without legal basis? i.e. ultimately signage was clear.

Really? You think? Coupon-Mad is (as always) right on the money with Jopson v Homeguard, but now that you have shown one of the signs I think you can rethink the quoted statement a little.

DrAculaGonzo

Ok, AOS served and draft defence below.

Guidance welcome and guys, appreciate you only steer people and cannot draft exact words for those of us, who are a bit less able on this front, but when something makes no sense/is wrongly worded please don't be dismissive about it and please offer some further insight. I'm happy to invest time to read into and try to understand if I know what I'm researching, but even though I'm not completely thick (only a bit), it's beyond me to navigate all of this minefield without unsustainable time investment.
E.g, of what I mean - having read Jopson I now understand that stopping is not parking - firm basis for my defence, but aside from that still stand by my statements that signage is prominently displayed and in good state of repair. Trainerman seems to suggest this in itself is a ridiculous claim and I honestly don't get why. Unless you offer a bit more insight/guidance I'm not sure what makes it so ridiculous.

Anyway, turning to defence below is a draft and of points 2&3 - in my case expanded to 2 - 11. All other points are left intact as per original guidance. Appreciate your views on these and also if you could address a couple of extra points for me as below:

1)    To my point above about signage - is there any benefit in my case from taking video of signage – this is not main reason for my defence and signage itself is quite prominent and visible?

2)     Isn’t there a contradiction between Point 22 of standard defence

(Quote: 22. 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.)

and what is being claimed here: https://forums.moneysavingexpert.com/discussion/5555458/irrelevant-defences-and-how-to-avoid-them/p1

(Quote: Distinguishing your case from Beavis: The fact that Parking Eye paid £1,000 a week to operate in that case makes no difference at all, the arrangements between landowner and PPC are not relevant, as has been ruled by the higher courts. You need to concentrate on things that make your case substantially different, otherwise you’re unlikely to win.)

DRAFT DEFENCE:

The facts as known to the Defendant:

2. It is admitted that the Defendant was the registered keeper of the vehicle in question. It is denied that the Defendant was the driver of the vehicle.

3. The Defendant owns (via leasehold) the flat in the residential area concerned. PCM has been introduced to the site in late 2014 without consultation with residents and, in Defendant’s specific case, without prior notice (the letter which supposedly informed residents of PCM starting to enforce the ‘rules’ was never delivered to the Defendant). After initial (and informal) ‘grace’ period where enforcement was patchy, PCM started issuing ‘PCNs’ en masse.

4. Loading bays in question have been originally intended for the commercial units on the ground floors of the development’s buildings however, due to the fact that these units remain largely unoccupied (15 years from completion of the development), these bays are virtually always empty and unused. Given the lack of any other genuine usage local residents have for years used these bays in order to load, unload or temporarily stop for any other reason. This was the case both prior to and after introduction of PCM to site and is an indirect proof that residents’ life would be nigh impossible should they not be able to resort to use these bays from time to time for the purposes described.

5. Both the Defendant and the driver are residents at the development where the parking ‘fine’ was issued and neither use the loading bay aside from the circumstances described or the need to load/unload the vehicle before/after long haul car journeys. Typically stay in the loading bays in question does not last longer than 10 minutes taken to bring the shopping home and unload frozen/refrigerated goods before returning to the car to take it to the offsite car park.

6. Due to lack of direct involvement and passage of time the Defendant cannot factually state the course of events on the day however it is Defendant’s strong belief that the driver stopped in the loading bay due to lack of available street parking whilst in need of obtaining reasonable access for unloading multiple shopping bags and taking them up to the 5th floor flat without carrying them from the off-site car park located several hundred meters away. In Jopson vs Homeguard (case number B9GF0A9E) Judge Harris stated that loading and unloading is not parking. Since this was an appeal case it carries significant weight of precedent, which to date has not been overturned, and is therefore persuasive on the lower courts.

7. The Defendant asserts that no Notice to Driver was ever affixed to the vehicle nor handed to the driver whilst the vehicle was stationary in breach of the IPC Code of Practice and in breach of the PoFA 2012.

8. Regardless of considerations above the Defendant is aware that there is a legally binding grace period (BPA Approved Operator Scheme's Code of Practice) before the issuing of a fine and feels they were not granted this period.

9. There is primacy of contract by way of the residents existing rights in the tenancy agreement, including those transferred to visitors, there is no mention of the site being controlled by any parking company, there is no requirement to pay parking charges, and no mention of court claims. Changes to a tenancy can only take place if approved in accordance with a ballot as per the strict requirements of the landlord and Tenant Act 1987.

10. To prevent any resident or leaseholder from obtaining reasonable access to their property, including through stopping a vehicle in a designated space to load or unload, would constitute derogation from grant.

11. The Defendant does not accept fault or liability as at no point a legally binding contract has been entered into with the Claimant, whether express, implied or by conduct. Crucially, the signage, such as it is, is of a forbidding nature and no contract can be formed on that basis. In Defendant’s understanding, nothing is being offered that the resident does not already have therefore there can be no acceptance and therefore no contract. On this basis, as a matter of contract as well as consumer law, the Defendant cannot be held liable to the Claimant for any charge or damages arising from any alleged breach of the purported terms.  Whilst there is a lack of evidence from the Claimant, the Defendant sets out this defence as clearly as possible in the circumstances, insofar as the facts below are known.

Thanks in advance for all help, insight and feedback.

Coupon-mad

You don't need evidence yet.

A blurry photo of the sign hidden by foliage, or in a corner behind the bin store (we've seen it all over the years!) will be useful later, for witness statement and evidence stage.

still stand by my statements that signage is prominently displayed and in good state of repair. Trainerman seems to suggest this in itself is a ridiculous claim and I honestly don't get why. 

Because

(a) the punitive £100 is buried in small print and

(b) they are not offering any terms for unloading, so there's nothing 'on offer' of any value.  So there is no contract.

A key part of a contract is 'consideration' = something of value offered by both sides; an agreement. A meeting of minds; an intention to contractually agree to terms.

Not there, is it?

The elements of a contract (and in particular, re loading/unloading) do not exist.

In fact, there are no relevant t&cs and no doubt the lease grants 'rights of way' and a right to 'peaceful enjoyment'?  Those rights stand.

Does reading this help?  PCM v Bull:
http://parking-prankster.blogspot.com/2016/04/pcm-uk-signage-does-not-create-contract.html?m=1

Mouse007

DrAculaGonzo said:

but aside from that still stand by my statements that signage is prominently displayed and in good state of repair. Trainerman seems to suggest this in itself is a ridiculous claim and I honestly don't get why. Unless you offer a bit more insight/guidance I'm not sure what makes it so ridiculous.

Well they might be "prominently displayed and in good state of repair" but what makes them relevant? Did you not get my joke last night?

Then stand back and say to yourself, hang on what if the words on that sign said you must strip naked and dance if you are on this land?

It was a serious observation, now that I've seen a picture of the sign I know I was right.

That sign is ridiculous. It might not be asking you to strip naked and dance, but equally it is not offering you the right to park. Read it, what does it say exactly? There is no offer to park, just a charge for doing something not allowed.

The issue is contract law v the tort of trespass. Under contract law they might (small chance here) have a claim, under trespass they have no claim at all.

The reason why the sign is ridiculous is because it does not contain the simple elements required to form a contract. That is an offer, acceptance and consideration. It does however contain a penalty clause, which without a secondary obligation (head pops) and legitimate interest (head explodes) means the whole is uneforceable.

That sign set you (your wife) up for a trespass claim, not a breach of contract which this claim is based upon. Ridiculous.

Trainerman

Trainerman seems to suggest this in itself is a ridiculous claim and I honestly don't get why. Unless you offer a bit more insight/guidance I'm not sure what makes it so ridiculous.

I did say earlier that it depends what they say , or don't. Thanks to 
@Coupon-mad and @Mouse007 for answering that question first. Small font, hidden terms, forbidding /no offer .

DrAculaGonzo

Apologies for late response, but was on business trip few days and then had my laptop nicked from the car so took me a while to recover everything (as much as I could)... 

Coupon-mad said:

You don't need evidence yet.

A blurry photo of the sign hidden by foliage, or in a corner behind the bin store (we've seen it all over the years!) will be useful later, for witness statement and evidence stage.

still stand by my statements that signage is prominently displayed and in good state of repair. Trainerman seems to suggest this in itself is a ridiculous claim and I honestly don't get why. 

Because

(a) the punitive £100 is buried in small print and

(b) they are not offering any terms for unloading, so there's nothing 'on offer' of any value.  So there is no contract.

A key part of a contract is 'consideration' = something of value offered by both sides; an agreement. A meeting of minds; an intention to contractually agree to terms.

Not there, is it?

The elements of a contract (and in particular, re loading/unloading) do not exist.

In fact, there are no relevant t&cs and no doubt the lease grants 'rights of way' and a right to 'peaceful enjoyment'?  Those rights stand.

Does reading this help?  PCM v Bull:
http://parking-prankster.blogspot.com/2016/04/pcm-uk-signage-does-not-create-contract.html?m=1

This is very helpful. Thank you. I will look to include this attempt to include some references used there in my revised defence (to be prepared next weekend now).

Mouse007 said:
Well they might be "prominently displayed and in good state of repair" but what makes them relevant? Did you not get my joke last night?

Well, I said I am a bit thick and not a native speaker so that's my excuse. Slowly getting there with all of you guys chipping in with bits of info and advice. Much appreciated.


Guys, as I said I will now need to leave the defence further drafting till next weekend as going on business trip again now for 4 days this week, but could you please offer some help on the draft defence I submitted last week? I already see I can improve it, but would be good to have some feedback so I can work through it before I report the final draft next Sat/Sun. Thanks again!DrAculaGonzo said:

DRAFT DEFENCE:

The facts as known to the Defendant:

2. It is admitted that the Defendant was the registered keeper of the vehicle in question. It is denied that the Defendant was the driver of the vehicle.

3. The Defendant owns (via leasehold) the flat in the residential area concerned. PCM has been introduced to the site in late 2014 without consultation with residents and, in Defendant’s specific case, without prior notice (the letter which supposedly informed residents of PCM starting to enforce the ‘rules’ was never delivered to the Defendant). After initial (and informal) ‘grace’ period where enforcement was patchy, PCM started issuing ‘PCNs’ en masse.

4. Loading bays in question have been originally intended for the commercial units on the ground floors of the development’s buildings however, due to the fact that these units remain largely unoccupied (15 years from completion of the development), these bays are virtually always empty and unused. Given the lack of any other genuine usage local residents have for years used these bays in order to load, unload or temporarily stop for any other reason. This was the case both prior to and after introduction of PCM to site and is an indirect proof that residents’ life would be nigh impossible should they not be able to resort to use these bays from time to time for the purposes described.

5. Both the Defendant and the driver are residents at the development where the parking ‘fine’ was issued and neither use the loading bay aside from the circumstances described or the need to load/unload the vehicle before/after long haul car journeys. Typically stay in the loading bays in question does not last longer than 10 minutes taken to bring the shopping home and unload frozen/refrigerated goods before returning to the car to take it to the offsite car park.

6. Due to lack of direct involvement and passage of time the Defendant cannot factually state the course of events on the day however it is Defendant’s strong belief that the driver stopped in the loading bay due to lack of available street parking whilst in need of obtaining reasonable access for unloading multiple shopping bags and taking them up to the 5th floor flat without carrying them from the off-site car park located several hundred meters away. In Jopson vs Homeguard (case number B9GF0A9E) Judge Harris stated that loading and unloading is not parking. Since this was an appeal case it carries significant weight of precedent, which to date has not been overturned, and is therefore persuasive on the lower courts.

7. The Defendant asserts that no Notice to Driver was ever affixed to the vehicle nor handed to the driver whilst the vehicle was stationary in breach of the IPC Code of Practice and in breach of the PoFA 2012.

8. Regardless of considerations above the Defendant is aware that there is a legally binding grace period (BPA Approved Operator Scheme's Code of Practice) before the issuing of a fine and feels they were not granted this period.

9. There is primacy of contract by way of the residents existing rights in the tenancy agreement, including those transferred to visitors, there is no mention of the site being controlled by any parking company, there is no requirement to pay parking charges, and no mention of court claims. Changes to a tenancy can only take place if approved in accordance with a ballot as per the strict requirements of the landlord and Tenant Act 1987.

10. To prevent any resident or leaseholder from obtaining reasonable access to their property, including through stopping a vehicle in a designated space to load or unload, would constitute derogation from grant.

11. The Defendant does not accept fault or liability as at no point a legally binding contract has been entered into with the Claimant, whether express, implied or by conduct. Crucially, the signage, such as it is, is of a forbidding nature and no contract can be formed on that basis. In Defendant’s understanding, nothing is being offered that the resident does not already have therefore there can be no acceptance and therefore no contract. On this basis, as a matter of contract as well as consumer law, the Defendant cannot be held liable to the Claimant for any charge or damages arising from any alleged breach of the purported terms.  Whilst there is a lack of evidence from the Claimant, the Defendant sets out this defence as clearly as possible in the circumstances, insofar as the facts below are known.

1505grandad

"8. Regardless of considerations above the Defendant is aware that there is a legally binding grace period (BPA Approved Operator Scheme's Code of Practice) before the issuing of a fine and feels they were not granted this period."

Claimant are IPC AoS members  -  nothing to do with BPA  -  as per IPC AoS members list:-

Parking Control Management (UK) Ltd (Trading As Parking Control Management)

www.parkingcontrolmanagement.co.uk

The experts will no doubt be along shortly and possibly comment that a lot of the above should be in WS.

DrAculaGonzo

Hi all,

Thanks for everyone's feedback. Working through revised defence now and will post shortly, 

In the meantime, I noticed that no one address the question I posted before. Am I being really thick here?

Repeat:

Isn’t there a contradiction between Point 22 of standard defence

(Quote: 22. 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.)

AND

what is being claimed here: https://forums.moneysavingexpert.com/discussion/5555458/irrelevant-defences-and-how-to-avoid-them/p1

(Quote: Distinguishing your case from Beavis: The fact that Parking Eye paid £1,000 a week to operate in that case makes no difference at all, the arrangements between landowner and PPC are not relevant, as has been ruled by the higher courts. You need to concentrate on things that make your case substantially different, otherwise you’re unlikely to win.)

Thanks

DrAculaGonzo

All, once gain thank you for your help. I have taken a few detailed bits out for witness statement, but having had no feedback and having incorporated everything I was advised to incorporate I would really welcome some feedback on where I need to take this next. I only have a week to submit it and with my work being really manic I only really get a chance to look at this on weekends.
Ideally I would like to send on the 10th so I have 13th as a buffer in case something goes wrong.

Many thanks for your time in advance.


Final draft of defence below:

2. It is admitted that the Defendant was the registered keeper of the vehicle in question. It is denied that the Defendant was the driver of the vehicle.

3. Due to lack of direct involvement and passage of time the Defendant cannot factually state the course of events on the day however it is Defendant’s strong belief that the driver stopped in the loading bay due to lack of available street parking whilst in need of obtaining reasonable access for unloading multiple shopping bags and taking them up to the 5th floor flat without carrying them from the off-site car park located several hundred meters away. In Jopson vs Homeguard (case number B9GF0A9E) Judge Harris stated that loading and unloading is not parking. Since this was an appeal case it carries significant weight of precedent, which to date has not been overturned, and is therefore persuasive on the lower courts.

4. The Defendant asserts that no Notice to Driver was ever affixed to the vehicle nor handed to the driver whilst the vehicle was stationary in breach of the IPC Code of Practice and in breach of the PoFA 2012.

5. Regardless of considerations above the Defendant is aware that there is a legally binding grace period (IPC Code of Practice) before the issuing of a fine and feels they were not granted this period.

6. There is primacy of contract by way of the residents existing rights in the tenancy agreement, including those transferred to visitors, there is no mention of the site being controlled by any parking company, there is no requirement to pay parking charges, and no mention of court claims. Changes to a tenancy can only take place if approved in accordance with a ballot as per the strict requirements of the landlord and Tenant Act 1987.

7. To prevent any resident or leaseholder from obtaining reasonable access to their property, including through stopping a vehicle in a designated space to load or unload, would constitute derogation from grant.

8. The Defendant does not accept fault or liability as at no point a legally binding contract has been entered into with the Claimant, whether express, implied or by conduct. Crucially, the signage, such as it is, is of a forbidding nature and no contract can be formed on that basis (ref: PCM v Bull - case number B4GF26K6). In Defendant’s understanding, nothing is being offered that the resident does not already have therefore there can be no acceptance and therefore no contract. On this basis, as a matter of contract as well as consumer law, the Defendant cannot be held liable to the Claimant for any charge or damages arising from any alleged breach of the purported terms.  Whilst there is a lack of evidence from the Claimant, the Defendant sets out this defence as clearly as possible in the circumstances, insofar as the facts below are known.