I Park Services-Overstayed

Coupon-mad

I think your facts need to spell out in your defence facts (if I have got this right?):


3.  Driver liability (paragraph 3 of the POC) is denied and impossible, given the fact that the Defendant was not the driver on the material date. Persuasive case law specific to parking on private land confirms that parking operators may not 'assume' an owner was driving. The Defendant will rely upon the persuasive VCS v Edward  appeal case.  Keeper Liability is denied on every level (paragraph 4 of the POC). Hirer liability was not pleaded but is also denied as there is no hirer agreement. The Defendant pays a monthly sum under a Finance Agreement. The vehicle is neither leased nor hired. To clarify:
-  the registered keeper is (BLAH);
-  the owner of the vehicle is the Defendant;
-  the driver was neither of the above.

3.1. To pursue the Defendant, as well as evidencing a breach of a prominently signed and 'relevant' obligation for which the driver had 'adequate notice', the Claimant must show that the Defendant was the driver or keeper. Further, the operator must have fully complied with Sch4 of the Protection of Freedoms Act 2012.  It is denied that any of the above conditions have been met, and denied that the Claimants ever had the right to transfer liability to a 'legal owner' named in a Finance Agreement, which Sch4 specifically excludes.

4. The Defendant was not driving and has no first hand knowledge of the event.  The Claimant is put to strict proof that the vehicle significantly overstayed after expiry of the purchased ticket, as alleged. More likely is that the Claimant failed to allow a suitable consideration period on arrival, if (as suggested by the POC) this was a site requiring use of a pay and display machine.  All this takes time on arrival at a site and is not part of the 'parking period'. Reasonably short minutes on arrival and upon leaving do not count and would fall within reasonable grace periods, especially in a car park where after finding a space, one must first read tariff boards, find coins or download an app and take time to pay.  The British Parking Association ('BPA'), the Court of Appeal and the relevant Government Department (now renamed the MHCLG) all agree with this point:

4.1. In an official, published BPA news article by Kelvin Reynolds, BPA Director of Corporate Affairs, he states that there is a difference between 'grace' periods and 'observation' periods in parking and that good practice allows for this:
“An observation period is the time when an enforcement officer should be able to determine what the motorist intends to do once in the car park. Our guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket. No time limit is specified. This is because it might take one person 5 minutes, but another person 10 minutes depending on various factors, not limited to disability.”
https://www.britishparking.co.uk/News/good-car-parking-practice-includes-grace-periods

4.2. In the Court of Appeal case of National Car Parks Limited vs The Commissioner for HMRC (2019) A3/2017/2435 Lord Justice Newey states that ‘the precise figure was settled when the customer inserted her pound coin and 50p piece into the machine and then elected to press the green button rather than cancelling the transaction. The best analysis would seem to be that the contract was brought into being when the green button was pressed.’

4.3.  This (consumer fairness) position is also reflected by the planned statutory regime which will flow from statute law already enacted, and which the new Government is now set to finalise in the coming months. Under the Parking (Code of Practice) Act 2019, the Secretary of State 'must' lay a statutory Code of Practice before Parliament and provide for a regulated regime of scrutiny to overcome the wholesale 'market failure' of the consumer-harming private parking industry. The draft statutory Code of Practice includes clauses that were not objected to by the parking industry's 2022 Judicial Review blocking tactics. In the definitions, the DLUHC (now MHCLG) state at 2.24: - parking period:  the length of time that a vehicle has been parked, i.e. left stationary otherwise than in the course of driving, after any relevant consideration period has expired (excluding instances where the driver has stopped to enable passengers to leave or enter the vehicle).  This is not the period between a vehicle being recorded as entering and departing controlled land."  

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Here's NCP v HMRC in readiness for your later Witness Statement:

https://www.bailii.org/ew/cases/EWCA/Civ/2019/854.html

Anchovie

Wow, Thanks Coupon-mad. as the 'overstay' was less than 17 minutes, I was just reading 'Consideration and grace periods' in the Government Private Parking Code of Practice as you posted the above   

1505grandad

C-m  -  just checking  -  is it ok to refer to BPA when claimant is IPC AoS member?

Anchovie

1505grandad said:

C-m  -  just checking  -  is it ok to refer to BPA when claimant is IPC AoS member?

Latest IPC and BPA good practice is identical to proposed 'government Private Parking Code of Practice' consideration and grace periods. 

LDast

Bazarius said:

LDast said:

Gr1pr said:

If the defendant has not or does not deny being the driver, its accepted in most cases that the defendant was driving 

Errr... a read of the persuasive VCS v Edward case would beg to differ. Mr Edward never denied being the driver. VCS never proved he was, which was the point.

Mr Edward pleaded that he could not confirm as a fact whether he was the driver or not and he  put the claimant to strict proof that he was .  

Which is the whole point. Mr Edward never denied or admitted to being the driver. He was not asked by the judge to say either way. His contention that the burden of proof that he was the driver lays entirely with the claimant. The court agreed.

I simply don't understand where this presumption that if the Keeper does not deny being the driver then "If the defendant has not or does not deny being the driver, its accepted in most cases that the defendant was driving". That sounds precisely what the vermin BPA and IPC are trying to put across in their Joint CoP.

There is no 'balance of probability' when there are facts. Whether the defendant does not know or simply refuses to say whether they were the driver, the fact is that it up to the claimant to prove that the defendant was, if they have alleged as such. 

Coupon-mad

1505grandad said:

C-m  -  just checking  -  is it ok to refer to BPA when claimant is IPC AoS member?

Yes. I thought of that and decided it doesn't matter. The article isn't confined to BPA AOS members.  It is a statement of industry best practice that a Judge would like, and it matches the incoming statutory Code too.

Anchovie

Just had my 'Mediation' calls. Claimants offer started at £ 230, then £100, final offer £60. All declined. 

Anchovie

Hearing date 25 March so preparing WS for 11 March using @Harry77 as template. Would it be correct that I should not disclose that I know that the difference between the car entering/leaving the car park and the parking purchased is 17 minutes ? During mediation I asked the Claimant for this information but they couldn't or wouldn't provide it. 

Coupon-mad

Anchovie said:

Hearing date 25 March so preparing WS for 11 March using @Harry77 as template. Would it be correct that I should not disclose that I know that the difference between the car entering/leaving the car park and the parking purchased is 17 minutes ? During mediation I asked the Claimant for this information but they couldn't or wouldn't provide it. 

No, quite the opposite!  Surely you will be arguing that there has to be a fair consideration period on arrival plus a minimum 10 minutes grace period at the end, and that the actual 'parking period' is correctly described in the way that the last Government defined it.

Search the forum for:

defence DLUHC parking period not time passengers

Anchovie

DBC Legal discontinue letter received yesterday (dated 13 March so 1 day after Witness Statements due), but the weird thing is the actual Notice of discontinuance was signed dated 24 July 2023 with the car being parked in November of 2023? 

Anyway, thanks for all your help, I'll add to DCB discontinue thread in the hope that our Government stops this massive waste of County Courts and consumers time.