OK whats my next move?

sparkyhx · 15 September 2018 at 11:23PM

Hello you good people. I've been lurking for a while and pretty much got 10 months down the line following all the guides, but I've now come to a bit of an impass.

BACKGROUND INFO
received a parking ticket last December, we appealed largely on the grounds the signage was not clear i.e. sign at entrance referred to full conditions at pay station, which contradicted other signs elsewhere which were small, high up, and it was those that had the rule that was contravened. Namely you must buy a ticket within 10 mins of ENTERING the car park. The other sign said ticket was required for PARKING. The car park in question is very small and its usual to see people waiting for a space (i.e. not parked).
I believe case law says waiting is not parking.
3JD08399 ParkingEye v Ms X. (Altrincham 17/03/2014).

There are other issues but the primary one is as above.

HISTORY & TIMELINE
1. Ticket Received 17 Dec.
2. Appealed immediately and Requested further info - info was not received
3. 22nd Dec - appeal denied - no surprise there.
4. June 5 - LBC was received - responded to immediately and additional info was requested again (originally requested 20 Dec)
5. July 11 - email response from Gladstones to June 5 reply - completely inadequate info from Gladstones
6. July 25 - replied that still inadequate info from Gladstones
7. 15th Sept (>3 months from original LBC) partial additional info supplied in an email NOT a revised LBC -

still not met the 30 day guide in the PAP guidelines - does it matter they did not comply with guidelines?
in an email not a revised LBC - should they issue a new LBC - does it matter?

MY REQUESTS AND GLADSTONES RESPONSES
1. an explanation of the cause of action

Response from Gladstones - The motorist entered into a contract as soon as he parked on the land our Client is contractually obligated to manage. The contract was to park in accordance with the sign or, in the event the motorist did not wish to comply, pay a charge of £100 for the 'privilege' of parking otherwise than in accordance with the signs at the site. This payment was due imminently and by not paying the charge, the motorist breached the contract. - we are back to the original grounds for appeal here - inconsistent signs therefore unknown what I need to comply with?

2. whether they are pursuing me as driver or keeper

Response from Gladstones - You are presumed to be the driver, as the registered keeper of the vehicle, until you prove otherwise. It is the registered keepers obligation to prove otherwise as it is safe to assume the registered keeper is also the driver of the vehicle. - no surprises there, we still haven't admitted who was the driver

3. whether they are relying on the provisions of Schedule 4 of POFA 2012

Response from Gladstones - Our Client is not relying on these provisions.-
no idea what this means of if the response even makes sense - any ideas?

4. what the details of the claim are; where it is claimed the vehicle was parked, for how long, how the monies being claimed arose and have been calculated

Response from Gladstones - basically don't say - they just refer to the original LBC, which doesn't actually state anything

5. Is the claim for a contractual breach? If so, provide a copy of that contract bearing my signature. Or is the claim for trespass? If so, provide details.

This has been previously addressed - ok they kinda have

6. a copy of the contract with the landowner under which they assert authority to bring the claim, as required by the IPC code of practice section B, clause 1.1

Response from Gladstones -This is irrelevant at this stage, your contract is solely and primarily with our Client. I thought the landowner must be the client not the leaseholder - are they being evasive? or is this a valid response - should I push it under PAP

7. a plan showing where any signs were displayed

This is irrelevant. This will be provided as and when the Court orders. - Really is this a valid response?

8. details of the signs displayed (size of sign, size of font, height at which displayed)

Response from Gladstones - This is irrelevant. Really is this a valid response? or should I push it under PAP

9. Details of the additions to the original charge, what that represents and how it has been calculated.

Response from Gladstones - The amount of £60 is a predetermined loss and added to the original charge as a nominal contribution to the Client's losses, the time spent faciliting the debt when this is not their main duty. - valid response?

So the ask here is what do I do next. I'm pretty sure they don't have a leg to stand on if it does go to court, bearing in mind the signage discrepancies They still haven't answered all the questions so do I just bounce them back again asking them to answer the missing info on PAP grounds?
Do I need to re-respond to the LBC - there is no new one - so I don't see how I can?

As a slight aside they have fixed the sign discrepancy now, but you still have to go to the paystation to see all the details - i.e. if you are waiting you still wouldn't know till too late. and then there is the case law re 'waiting' not being parking. just a thought, do the changed signs act in my favour?

Thanks for reading

Coupon-mad · 15 September 2018 at 11:29PM

still not met the 30 day guide in the PAP guidelines - does it matter they did not comply with guidelines?
in an email not a revised LBC - should they issue a new LBC - does it matter?

Not really, as long as they are responding. The Court expects such prolonged discussions and pre-action 'evidence swapping' will take longer than 30 days - to narrow the issues.

Response from Gladstones - You are presumed to be the driver, as the registered keeper of the vehicle, until you prove otherwise. It is the registered keepers obligation to prove otherwise as it is safe to assume the registered keeper is also the driver of the vehicle. -

no surprises there, we still haven't admitted who was the driver

Their reply is codswallop of course. A PPC cannot safely 'presume' the keeper was the driver, if it was that easy, why was POFA Schedule 4 needed, then?!

And this is a lie:

It is the registered keepers obligation to prove otherwise

The POFA Sch4 creates NO SUCH OBLIGATION.

3. whether they are relying on the provisions of Schedule 4 of POFA 2012
Response from Gladstones - Our Client is not relying on these provisions.-

no idea what this means of if the response even makes sense - any ideas?

What do you think, come on! Don't ask us ''any ideas'' because it's not difficult. It is obvious. Open your eyes to what they are admitting...think about whether a PPC has to use the POFA (they don't) so what's the position if a PPC chooses NOT to use the POFA?

Which parking firm?

sparkyhx · 15 September 2018 at 11:49PM

Thanks Coupon Mad,
re 2 - if they not relying on POFA 4, - how can they NOT rely on it? If NOT then under what rules are they assum ing keeper liability? Should that be challenged?
re 3 - my eyes are open but I still no see, can you explain what they are admitting?

as far as I know - they appear to have followed the 'rules' to assume the keeper is liable. - but if not used POFA then on what grounds are they assuming Keeper responsible - or is that the point of your post?

sparkyhx · 15 September 2018 at 11:50PM

HX Car Park Management

Coupon-mad · 16 September 2018 at 12:05AM

Saves my typing fingers if you read other HX threads. Try the keywords:

HX non-POFA no keeper liability defence

as far as I know - they appear to have followed the 'rules' to assume the keeper is liable

You are clearly wrong, and Gladstones have told you they have not!

...and please, do NOT read PARKING COWBOYS website - there are dodgy links there IMHO, and the advice is old in many places. Steer well clear.

beamerguy · 16 September 2018 at 12:09AM

sparkyhx wrote: »

HX Car Park Management

I don't think that Gladstones fully understand what
they are saying and HX Car Park Management are
probably being grossly misled and can expect a court
to whoop Gladstones / HX

Gladstones are well known to the courts and of late,
judges are dismissing their claims very quickly

Gladstones have lost credibility and at least HX should
be made aware of this

Coupon-mad · 16 September 2018 at 12:15AM

sparkyhx, please remove that link to parking cowboys, can't have people looking there.

No-one here points people to that website, littered with a link we do not recommend.

sparkyhx · 16 September 2018 at 5:30PM

The more I read the more confused I get. If

Bearing in mind all the above do I reiterate my request for info, or leave it til it actually gets to court and use 'none compliance' as an argument?

I'm tempted to re-reply requesting unredacted landowner act again. I'm a bit confused whether this is only relevant for Traspass cases or for 'breach of contract' defence as well.

Items 7 and 8 - can they say they will not supply until court?

If they are NOT relying on POFA sch4 - does this mean they cannot assume the keeper is liable?
if so - so what? what does this mean in practice?

They have 'refused copy of the contract - can they do this?
Response from Gladstones -This is irrelevant at this stage, your contract is solely and primarily with our Client. - my understanding is they must respond? is that right?

KeithP · 16 September 2018 at 5:41PM

sparkyhx wrote: »

If they are NOT relying on POFA sch4 - does this mean they cannot assume the keeper is liable?
if so - so what? what does this mean in practice?

If they are not relying on POFA, then they cannot hold the keeper liable unless they can show that the keeper was the driver.

What that means in practice is that if the keeper never gives away the identity of the driver, and the PPC is not relying on POFA, then they have no case against the keeper.

Have you read post #1 of the NEWBIES FAQ sticky thread?

In there you will find:

- this is why not to name the driver (thanks to The Slithy Tove for this explanation):

http://forums.moneysavingexpert.com/showthread.php?p=69906180#post69906180

Well worth reading.

System · 17 September 2018 at 6:55AM

Items 7 and 8 - can they say they will not supply until court?

You need 7 and 8 so go back to them and request it again. 8 is actually the "contract" that the driver is supposed to have breached so they are being obstructive and it should be pointed out to the court at the defence stage or the DQ stage that they the particular solicitor at Gladstones is involved in the abuse of the court process by withholding the same.

** Use the solicitor's name to make it clear that it may be a particular "officer of the court" that is involved in this misuse.

sparkyhx · 18 September 2018 at 9:35PM

Cheers everyone, reply sent to the LBC requesting they provide the details as per my request and entitlement, I doubt anything will come of it. So I await the court summons.

This is now the third reply to the LBC - on asking for the detail, 2 asking again, 3 the below asking again.

Thankyou for your correspondence of 15th September
You have once again failed to answer the questions outlined. I am clearly entitled to this information under
paragraphs 6(a) and 6(c) of the Practice Direction. I also need it in order to comply with my own obligations under paragraph 6(b).

If your client does not provide me with this information then I put you on notice that I will be relying on the cases of Webb Resolutions Ltd v Waller Needham & Green [2012] EWHC 3529 (Ch), Daejan Investments Limited v The Park West Club Limited (Part 20) – Buxton Associates [2003] EWHC 2872, Charles Church Developments Ltd v Stent Foundations Limited & Peter Dann Limited [2007] EWHC 855 in asking the court to impose sanctions on your clientand to order a stay of the proceedings, pursuant to paragraphs 13 ,15(b) and (c) and 16. I will draw to the court the fact that I have repeatedly requested this information since as early as 20th December 2017 yet your client has
refused to provide it, with the latest correspondence (below) saying (ifor some requests) that it will not do so until this matter reaches the court.

Until your client has complied with its obligations and provided this information, I am unable to respond properly to the alleged claim and to consider my position in relation to it, and it is entirely premature (and a waste of costs and court time) for your client to issue proceedings. Should your client do so, then I will seek an immediate stay
pursuant to paragraph 15(b) of the Practice Direction and an order that this information is provided.

1) an explanation of the cause of action

Answer 1. This is disputed as per the original appeal re the signage was inconsistent, with the main sign
near the Pay and Display point not mentioning any 10 minute rule. Therefore what specific contract terms
have been entered into when there are contradicting statements.

2) whether they are pursuing me as driver or keeper

Answer 2. If you are not relying on POFA Schedule 4 2012 (see answer 3), on what legal basis are you
pursuing the Keeper, the contract (if any(defective and therefore irrelevant)) is entered into by the driver
and it is your responsibility to pursue the driver not the keeper.

a. To support this I rely upon the words of barrister and parking expert Lead Adjudicator for PATAS and
POPLA, Henry Michael Greenslade, where he clarified in the POPLA Annual Report 2015 in a
heading: 'Understanding Keeper Liability' that 'however keeper information is obtained, there is no
reasonable presumption in law that the registered keeper of a vehicle is the driver. Operators
should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under
Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they
were the driver at the material time.

3) whether they are relying on the provisions of Schedule 4 of POFA 2012

Answer 3. – you state you are NOT relying on the provisions of POFA Schedule 4 2012 – see Answer 2
comments

4) what the details of the claim are; where it is claimed the vehicle was parked, for how long, how the monies
being claimed arose and have been calculated

Answer 4. – Inadequate response

a. You do not break down how the cost has been arrived at
b. You have been asked to provide the evidence of when a ticket was bought for the vehicle in
question. This the client clearly has in their possession and is relevant to the assessment for breach
of contract (if any)

5) Is the claim for a contractual breach? If so, provide a copy of that contract bearing my signature. Or is the
claim for trespass? If so, provide details.

Answer 5 – satisfactory

6) a copy of the contract with the landowner under which they assert authority to bring the claim, as required
by the IPC code of practice section B, clause 1.1

Answer 6 – totally unsatisfactory.

a. I asked for a copy of the contract with the landowner (I believe to be Due West Limited
(Incorporated in Cayman Islands B.W.I.)) permitting the client to operate on their land. You have
failed to do so. I must therefore assert that the Claimant has no Locus Standi to bring this claim
because:

i. The party HX Car Park Management Limited in the Parking Contract, is claimed has the right
to grant the rights in the Parking Contract. HX Car Park Management Limited is not the
landowner or another entity proven to be authorised by the landowner. No proof of a
formal agreement between the landowner Due West Limited (Incorporated in Cayman
Islands B.W.I.) and HX Car Park Management Limited has been provided by the Claimant and
therefore the Claimant has failed to establish an express conferral of rights has taken place
pursuant to Section 1(1)(a) and 1(3) of the Contracts (Rights of Third Parties) Act 1999 which
require terms to identify the Claimant and express terms granting the Claimant the right to
enforce the contract; or the right to sue.

b. Secondly your answer refers to contract between HX Parking (your Client). There is an alleged
breach of contract with the driver (glad you acknowledge it is the driver not the keeper) so the
details of the contract are 100% relevant, however as mentioned above the signs are inconsistent,
so please provide the full details of the contract allegedly entered into and a reason why the signs
were contradictory, with the main sign by the Pay and Display machine not mentioning the terms
allegedly breached .
c. So please provide details of both unredacted contracts as I am clearly entitled to such under
paragraphs 6(a) and 6(c) of the Practice Direction.

7) a plan showing where any signs were displayed

Answer 7 - This is not irrelevant and cannot be deferred until the court case as it will inform my defence, and
I am entitled to it under the Practice Direction. So please supply requested documentation

8) details of the signs displayed (size of sign, size of font, height at which displayed)

Answer 8 – This is NOT irrelevant, as readability and location of signs is fundamental to whether your client
has followed IPC guidelines. So please supply requested information as per the Practice Direction

9) Details of the additions to the original charge, what that represents and how it has been calculated.

Answer 9 – Insufficient detail to determine how the cost was calculated – please supply requested
breakdown information requested as per the Practice Direction

Regards

OK whats my next move?

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