Unsure where to go next following LBA from Gladstone's re Premier Park Limited

brandmartyr

Hi everybody,

I've been following the advice on here since my wife received a PCN from Premier Park Limited in August of last year. It's all been tremendously helpful but there is a lot of information and I'm increasingly finding myself going around in circles. I thought if I summarise the journey here, some kind soul and person of knowledge and experience might be able to provide some re-assurance/guidance on next steps.

The car park in question is the Exeter Road Car Park in Braunton Devon operated by Premier Park Limited. We are not local and the car park is unfamiliar to us. I failed to make a £0.50 payment when I entered and stopped on the site to deal with a medical issue.

The original PCN asked for £60 discounted, £100 full and indicated it could rise to £115 if further recovery is necessary. I'm unclear why the Debt Recovery Plus amount therefore increased to £170. The £115 threatened on 2 letters has never manifested?

I am unclear whether the NTK is PoFa compliant or not and firstly wondered if anybody could help me clarify this based on the image below. I believe one of the key phrases concerns the action to pass the notice on to the driver - this is present.

I was the Driver but not the Keeper (this is my wife) and the car was ANPR photographed entering and leaving the site over a 15 minute period.

We have followed the advice on here:
- we have accepted nothing, denied liability of anything
- we have not identified the driver so all correspondence is directed to my wife as Keeper
- we appealed to both Premier Park Ltd and to POPLA on the basis that the vehicle entered the site due to the Driver being a Type 1 Diabetic fearing the onset of Hypoglycaemia and was legally bound to pull over, conduct a blood glucose test and legally bound to remain stopped until confident that episode had passed. Supported by poor and unclear signage, not visible from inside the vehicle. DENIED. CAR ENTERED, LEFT, DIDN"T PAY. DON'T CARE WHY!
- we have received multiple Debt Recovery Plus letters and phone calls asking for £170. 

We have now received a Letter Before Action from Gladstones and I am now confused about which way to go with this?  I am fully prepared to go to Court and defend 

Q. Should we now identify the driver as I don't necessarily want my wife to have to face the court on my behalf. Is there any benefit to maintain my anonymity? Does it depend on whether the NTK is PoFA compliant or not?

Q. Is the main point of the response to a Letter Before Claim to simply ask them to put the case on hold for 30 days whilst debt advice is sought?

Q. Is it worth asking for a SAR from Premier Park? What is the benefit of this apart from taking up their time?

Q. In our response to Gladstone's how much information should we provide in terms of the basis of the defence of our dispute?

Apologies for the long post and thanks for your attention.

KeithP

Hello and welcome.

The first few paragraphs of the second post of the NEWBIES thread offer good guidance on how to respond to a Letter of Claim.

Gr1pr

Yes it may depend on POFA and no keeper liability, but if the keeper is not suitably prepared to go to court then the keeper can name the driver and extricate themselves, up until a court claim is issued, not after.  The person named on the court claim is the one being sued, not the other person 

POFA doesn't assist a driver, so goes into the bin when the known driver is involved 

No, not just those items, its been updated with the VAT questions too

We no longer advise a SAR request, because claimants may provide an inadequate POC in the court claim 

None 

Coupon-mad

Q. Should we now identify the driver as I don't necessarily want my wife to have to face the court on my behalf. Is there any benefit to maintain my anonymity? Does it depend on whether the NTK is PoFA compliant or not?

If you would be more robust, and will be better at facing them in court then she should ID you (name and postal address) in writing/email.

You can't transfer liability by contacting them yourself. The keeper has to do it.  YES:SHE MUST DO IT NOW (THIS IS HER FINAL CHANCE) if you would be stronger as a Defendant.


Q. Is the main point of the response to a Letter Before Claim to simply ask them to put the case on hold for 30 days whilst debt advice is sought?

No. The VAT question is the important bit, so she (your wife) can complain to HMRC about Gladstones and the usual VAT concerns (search the forum).

And in her case, this is her last chance to transfer liability to you!  Important to do that.  


Q. Is it worth asking for a SAR from Premier Park? What is the benefit of this apart from taking up their time?

No no and more no.  Do not do a SAR. You want a vague claim in your name, in a case where you've NEVER been sent a PCN yourself. Perfect vague crap.  So much easier for you!


Q. In our response to Gladstone's how much information should we provide in terms of the basis of the defence of our dispute?

Not much. More important that she clearly transfers liability to you and ask the VAT question.

brandmartyr

Thanks all for the thoughts. What happens in terms of the process once she transfers liability to me? Does it remain at LBC stage or does it revert back to the original PCN?

Coupon-mad

I predict the former even though it SHOULD be the latter.  Like I said, great position to successfully defend a claim against these eejits: you'll be able to plead that you were not even served with a PCN, let alone any evidence or clue what it's about!

brandmartyr

Thanks for the guidance Coupon-mad - can she make this transfer of liability to Gladstone's in response to the LBC or does she need to do it directly to Premier Park Ltd? Or do we need to do both?

Given she is my wife and we live at the same address, is pleading ignorance in defence as you suggest likely to hold any water with a Judge?

I guess given my state of mind, living on prescribed medication for anxiety and my diabetes, she could have been doing the right thing by me and keeping it away from my radar?

LDast

brandmartyr said:

Given she is my wife and we live at the same address, is pleading ignorance in defence as you suggest likely to hold any water with a Judge? 

In law, ignorantia juris non excusat (Latin for "ignorance of the law excuses not"), or ignorantia legis neminem excusat ("ignorance of law excuses no one"), is a legal principle holding that a person who is unaware of a law may not escape liability for violating that law merely by being unaware of its content. 

Gr1pr

She tells the Claimant parking company, in writing, that she is naming the driver as is her right under POFA 2012 , with the name and address ( even if it is the same address. ), cc Gladstone's as well, email is ok but she should add her own email address so that everyone gets it, including herself. ( Covering herself )

As mentioned above, ignorance is no defence in law, I don't think any judge would be sympathetic, either money is owed, or it's not, that would be the determination by a judge, who owes who and any monetary value is decided, should it actually get as far as a hearing, many don't 

As keeper she can do as she pleases, no problem with that, but not being the driver may not remove her possible liability in law. (. POFA. )

Coupon-mad

brandmartyr said:

Thanks for the guidance Coupon-mad - can she make this transfer of liability to Gladstone's in response to the LBC or does she need to do it directly to Premier Park Ltd? Or do we need to do both?

Given she is my wife and we live at the same address, is pleading ignorance in defence as you suggest likely to hold any water with a Judge?

I guess given my state of mind, living on prescribed medication for anxiety and my diabetes, she could have been doing the right thing by me and keeping it away from my radar?

She Emails Gladstones.

Yes it will hold water.

Are you both certain you would be stronger to go to court as a Defendant? If not, then DON'T!  As I said in my first reply yesterday:

ONLY DO IT IF THE NAMED DRIVER WOULD BE A STRONGER, MORE ROBUST DEFENDANT.

You are protected by the Equality Act 2010.  You are legally allowed more time than most to stay or go, and that must go into the response to Gs, whether or not she transfers liability.

brandmartyr

Thanks for your continued interest and input Coupon-Mad. We will properly consider whether to transfer liability or not.  

The thrust of argument we believe is one of significant importance for Type 1 Diabetics who have a legal obligation to act properly in the event of feeling the onset of Hypoglycaemia.  

Our argument references the Appeal case Jopson v Homeguard (B9GF0A9E), Judge Harris QC said attending to a vicissitude of some small duration is not parking.

The Driver stopping to deal with the potential onset of a hypoglycaemic attack constitutes a vicissitude of short duration in the same way as Judge Harris QC states that the necessary changing the punctured wheel of a car would too.  This ruling was an appeal case and therefore will be persuasive on the lower courts.

“The concept of parking, as opposed to stopping, is that of leaving a car for some duration of time beyond that needed for getting in or out of it, loading or unloading it, and perhaps coping with some vicissitude of short duration, such as changing a wheel in the event of a puncture”. Jopson v Homeguard Judge Harris QC

The road side signage in question which offered the Driver the promise of safe refuge is a simple generic Exeter Road Parking (P). Your client stated at the POPLA appeal stage:

“The Driver would have driven past an entrance sign which clearly states “Welcome. Camera enforcement in operation. Private Land. Parking restrictions in place. See additional signs for full details. It is then the responsibility of the driver of the vehicle to ensure that they have located, read and can fully comply with the advertised terms and conditions of parking at all times – 

THIS ENTRANCE SIGN IS SMALL AND PASSENGER SIDE. BUT WHAT IF THEY ARE FOCUSED ON DEALING WITH A MEDICAL VICISSITUDE THAT PREVENTS THEM DOING THIS? PREMIER PARK ARE SHOWING LITTLE UNDERSTANDING OR EMAPTHY WITH THE DISABILITY AS CLASSIFIED UNDER THE EQUALITY ACT 2010. WHAT IS THE APPROPRIATE LEVEL OF MEDICAL VICISSITUDE THAT IS ACCEPTABLE AS A MITIGATING CIRCUMSTANCE. UNCONSIOUSNESS? DEATH? 

 Your client again says that Signage on-site states: Parking period commences 5 minutes after entry’ as well as ‘No stopping or waiting. If you cannot pay for any reason do not park’. – THIS IS WRITTEN IN SMALL PRINT ON ONE SIGN SITUATED IN ONE CORNER OF THE PARKING LOT. AGAIN, IS THIS ACCEPTABLE TO SOMEBODY WITH A CLASSIFIED DISABILITY DEALING WITH A MEDICAL VICISSITUDE?

 Such vicissitudes like the onset of Hypoglycaemia are mitigating because they are unexpected and cannot be predicted. They can be acute and short-term. Left unchecked they pose an immediate threat to the safety of the Diabetic and to others.  The Driver is also a long-term sufferer of anxiety and has been using prescribed medication for dealing with this. The overall impact on the Driver’s state of mind and ability to behave in a rational manner like a non-diabetic and comply as stated above is ignorant, insensitive and possibly even bordering on being discriminatory. A criminal offence. 

 “Early symptoms of hypoglycaemia include sweating, shakiness or trembling, feeling hungry, fast pulse or palpitations, anxiety and tingling lips”. DVLA

The driver was legally obliged to stop safely and immediately, the parking lot on Exeter Road visible from the road and marked by a generic Exeter Road Parking sign lured them with the offer of an immediate safe refuge.  We will argue contrary to the client statement above that the entrance sign referred to by your client is not legible at dusk, at speed, focusing on safe driving and.  The contract signage is also not clear from various vantage points of being inside a car on the lot at dusk dealing with a medical situation. We believe that because the driver was legally prevented from leaving until 10-15 minutes later, any parking contract is frustrated as a result. 

 The non-payment of £0.50 was therefore an honest but unfortunate oversight caused by the feelings and symptoms associated with dealing the medical vicissitude detailed above and not helped by the lack of clear signage clearly visible and readable from within the vehicle at the time.

I appreciate I'm asking a lot Coupon-Mad but does this feel robust to you?