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  • FIRST POST
    • psdie
    • By psdie 18th Jul 18, 10:15 PM
    • 120Posts
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    psdie
    Link Parking / Gladstones - unclear signage Court Defence by 23 July
    • #1
    • 18th Jul 18, 10:15 PM
    Link Parking / Gladstones - unclear signage Court Defence by 23 July 18th Jul 18 at 10:15 PM
    Hi all - thank you for the amazing work by the kind volunteers here!

    I need urgent advice please for drafting my Court Defence filing (orientated around conflicting and unclear signage), due by Saturday 21st (EDIT: actually probably Mon 23rd, as weekend) unfortunately. Sorry for the late notice - just back from holiday.

    I've been lurking here for a while picking up advice for a Link Parking (LP) PCN received in Sep last year - I filed an appeal with LP disputing the PCN entirely, on the basis of:
    1. A sign right next to the entrance / parking space stating that restricted days were Mon-Sat, meaning unrestricted on the Sunday parking date, in accordance with DfT sign regulations. I much later came to suspect this sign relates to a couple of council-run parking spaces adjacent to the restricted area, but this is impossible to know - the sign is literally next to the space that was parked in!
    2. I provided photos of the above to LP in the appeal, along with photos showing the entrance sign (which doesn't mention LP) fully obscured by parked vehicles, and another sign obscured by hedges well away from the parking space near the entrance. No operator signs were legible for these reasons when entering the car park, particularly late evening at the time of parking (no sign illumination) - only the unrestricted sign was clearly visible.

    Despite the above, LP refused outright to hear my appeal unless I agreed to identify the driver - which I've refused as I understand there's no legal requirement. I did however provide all details necessary to authenticate myself as an authorised representative - full PCN and personal contact details, etc. I also requested the usual evidence of land owner authority etc, plus acknowledgement of a DPA Section 10 notice to not distribute my personal data, which they have continually ignored to-date.

    I received a POFA NtK from LP in November and replied clearly setting out the appeal grounds again (without identifying the driver), with further gathered photos, and repeated my request for documentation and acknowledgement of the Section 10 notice. They sent a generic reply (given the signs are clearly inadequate and conflicting):

    The vehicle was parked in a manner which attracted a charge as it was parked whilst not fully displaying a valid permit. It is the drivers responsibility to ensure they meet the parking requirements. Our signs clearly advertise the parking requirements and by not meeting them you accepted our charge.

    Given the facts we are rejecting your appeal. We note that you previously refused to comply with our standard appeals process. If you believe this decision is incorrect, you are entitled to appeal to the Independent Appeals Service (IAS).
    I received a Letter Before Claim from Gladstones in March, with the original £100 PCN amount increased by £60 "claimed by our Client for its time spent and resource facilitating the recovery of the charge. The amount is pre-determined and nominal contribution to our Client's losses as a direct result of your non-payment.". I completed their online PAP reply (and sent them an e-mail with full appeal thread) reiterating that the claim was fully disputed, the key reasons, and highlighting that LP refused to hear my pre-POFA appeal or provide requested evidence of authority.

    I also stated that I understood adding additional collection fees is expressly disallowed by POFA, according to advice on this forum - is that correct, and the max they can claim is the original PCN amount?

    Gladstones didn't reply. I received a MCOL Claim Form in June - £160, plus £8+ interest (continuing till judgement at £0.04/day), plus £25 Court fee, plus £50 "Legal representative's costs". Again, are they allowed to add legal fees, court fees, interest - or are these generally disallowed by the court in POFA cases if I have followed PAP rules (which I believe I have)? Clarification particularly appreciated on fees, as they increase the amount from £100 to £240+! If any part is disallowed / unlikely to be allowed, what do I do to enforce this?

    I now need to submit a Court Defence filing by Saturday, having already submitted an Acknowledgement of Service to the court opting to defend in full, which I'm prepared to do in person at my local Small Claims court.

    I'm going to submit this post now as it's getting late, and add further detail - pointers to the best template Defence to start with would be much appreciated, along with any other advice. There's tonnes of threads here with conflicting and sometimes outdated advice (e.g., those highlighted in Irrelevant Defences), so I'd appreciate help.

    Many thanks in advance!
    Last edited by psdie; 20-07-2018 at 1:30 AM. Reason: Add additional info
Page 4
    • Castle
    • By Castle 13th Oct 18, 8:42 AM
    • 2,103 Posts
    • 2,823 Thanks
    Castle
    Paragraph 10-"claim for interest" makes no sense as it refers to a claim being issued on 5 August 2016!
    • bargepole
    • By bargepole 13th Oct 18, 10:02 AM
    • 2,496 Posts
    • 7,152 Thanks
    bargepole
    Mid Dec = Hearing date at Magistrates Court
    Originally posted by psdie
    Why is this at the Magistrates' Court? Are you accused of a crime as well?

    I think you need to read that notice more carefully - these hearings are held at the County Court.

    I have been providing assistance, including Lay Representation at Court hearings (current score: won 35, lost 10), to defendants in parking cases for over 5 years. I have an LLB (Hons) degree, and am a Graduate member of CILEx, studying towards a Fellowship (equivalent to solicitor) in Civil Litigation. However, any advice given on these forums by me is NOT formal legal advice, and I accept no liability for its accuracy.
    • psdie
    • By psdie 15th Oct 18, 12:57 AM
    • 120 Posts
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    psdie
    Yep is County Court - lists Magistrates Court within the address because same building - I've updated my notes (and the post) to refer to it correctly, thanks!
    Last edited by psdie; 15-10-2018 at 1:10 AM.
    • psdie
    • By psdie 15th Oct 18, 1:02 AM
    • 120 Posts
    • 73 Thanks
    psdie
    Paragraph 10-"claim for interest" makes no sense as it refers to a claim being issued on 5 August 2016!
    Originally posted by Castle
    Well spotted thank you Castle! And a good thing it's wrong as otherwise should have been redacted. I can confirm that's over a year before the PCN issue date (wrong day and month too), so great evidence for the Judge that Gladrags haven't applied reasonable care
    • psdie
    • By psdie 15th Oct 18, 1:35 AM
    • 120 Posts
    • 73 Thanks
    psdie
    Summary strikeout / Parking Bill 2018
    My notes say: once court has been assigned, can potentially write letter to them requesting "summary strikeout with no hearing" at no charge under "CPR Rule 1.4(2)(c) and Practice Direction 26, paragraph 5.1, namely to summarily dispose of issues which do not need full investigation and trial. The courtís powers include striking out a claim (or part of it) under CPR Rule 3.4 and Summary Judgment under CPR Rule 24.

    That's based on this post from Loadsofchildren. Worthwhile do you think, or waste of time?

    Also, has there been any progress or useful new quotes RE Sir Greg Knight MP's 'Parking (Code of Practice) Bill', which I referenced in my Defence? Hope that's progressing nicely so we can put an end to nonsense claims like this one from Gladrags!
    • IamEmanresu
    • By IamEmanresu 15th Oct 18, 6:37 AM
    • 3,783 Posts
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    IamEmanresu
    Summary Judgment under CPR Rule 24 has always been available without the Parking Bill but there is a court fee attached to getting it. Courts are not free.

    Have only even see two companies use it / try to use it. The first is ParkingEye and the other is TPS (though that died a death)

    But if you have the money, then try it.
    If you want to win - avoid losing first. Here are a few examples
    1. Failing to RTFM - the Civil Procedure Rules
    2. Failing to Acknowledge or Defend- See #1
    3. Failing to RTFCL - the Court letters
    4. Template defences that say nothing - See #1
    5. Forgetting about the Witness Statement - See #3
    • psdie
    • By psdie 15th Oct 18, 9:52 PM
    • 120 Posts
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    psdie
    Hi IamE - Loadsofchildren mentioned the option to ask the court to strike the claim out of its own violition:

    There is no harm in asking the court to strike out. But the application fee is £255 which is excessive. If you won you'd get these costs back. You apply on Form N244 (google it you'll find a link) and you have to include a draft order saying what order you want the court to make (you can copy this from the orders which are on the Prankster's blog (don't forget to include a costs order) and your evidence in support (which is basically your letter).

    HOWEVER here is the good news: Under the CPR the court has the power to make an order of its own volition, without an application. Alternatively it has the power to treat a letter from you as an application without requiring a formal N244 application (and the fee). So yes, write to the court and ask it to make an order - it's worth trying.
    That's what I'm wondering is worth trying in my situation - agreed £255 for formal N244 request is too much of a gamble!
    • psdie
    • By psdie 24th Oct 18, 2:53 PM
    • 120 Posts
    • 73 Thanks
    psdie
    Hi all - about to file amended Defence by 4pm (another crazy busy work week, ugh). I presume this can be sent by e-mail as previously - is it the same CCBCAQ@Justice.gov.uk address, or a special one for the specific court? There's no e-mail listed on the instruction letter. Thanks.

    EDIT: Googling turns up 2 different court specific addresses: e-filing.LOCATION.countycourt@justice.gov.uk (listed on Court Finder as "Enquiries" / "Civil queries") and e-filing@LOCATION.countycourt.gsi.gov.uk (local info site) - anyone know which is likely correct? A pity it's not just listed on the instructions.
    Last edited by psdie; 24-10-2018 at 3:05 PM. Reason: Emails
    • psdie
    • By psdie 19th Nov 18, 8:06 PM
    • 120 Posts
    • 73 Thanks
    psdie
    Witness Statement due this Weds (21st)
    Hi all - submitted revised Defence previously, plus Document Bundle last week (built via BundleDocs.com and inc photos, key legal references, etc). Claimant has paid the court fee and posted me a copy of their WS / doc bundle on 12th (arrived 13th), despite being due on 7th so they were late and had the benefit of seeing my bundle first. I now need to prepare and submit the Witness Statement by Weds (final step before early mid Dec CC hearing) and would appreciate advice.

    For starters, advice please on how to prepare the WS as a description of what happened without identifying the driver? I have not identified the driver (despite claimant pretending to know otherwise based on guesswork), which ensures cap of the claim to the PCN amount. What's the best way to present statement without identifying the driver (and obviously without making any false statements)? During 2017, another person was insured on my vehicle and was the primary driver of the vehicle.

    I will scan a redacted copy of the claimant's WS and add a link here. Thank you in advance!
    Last edited by psdie; 19-11-2018 at 8:13 PM.
    • Coupon-mad
    • By Coupon-mad 19th Nov 18, 8:54 PM
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    Coupon-mad
    I think you just say what you know as keeper, and you can talk about the poorly signed car park (or whatever) based on local knowledge.

    No need to say who was driving but state that the car was insured for more than one person and attach your insurance as proof (with names redacted).

    Remember now this is at local court stage, you can't file things by email to the court.
    • psdie
    • By psdie 19th Nov 18, 10:06 PM
    • 120 Posts
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    psdie
    Thank you CM - yes statement as Reg Keeper; but I do need to communicate the reason the driver was confused by signage - i.e., didn't see entrance sign obscured behind vehicle park in front of it (no copy in their evidence, shown as obscured in photo they handily included in their WS!), instead read the big sign right next to the parking space that said unrestricted parking.

    What if the judge directly asks for identification of the driver? Can I reasonably request not to answer the question as would remove POFA protections, and claimant has no right to the info as a private company?

    Here's the redacted Witness Statement from LP (inc some handwritten notes).

    In addition to this, they included: a) close-up photo of the sign hidden in bush around corner 8 spaces away, b) PCN copy, c) NTK, d) photos of vehicle in space (showing blurry sign in hedge at night), e) GLS LBC letter, f) copy of our e-mail trail, including my full appeal (which they refused to hear pre-NTK) and unanswered requests for basic info, g) copies of 2 of my own (helpful!) photos - vehicle next to unrestricted parking sign, and Google Maps image showing obscured entrance sign.

    I'll add some notes below on the LP WS shortly.
    Last edited by psdie; 20-11-2018 at 3:56 AM.
    • Coupon-mad
    • By Coupon-mad 19th Nov 18, 10:25 PM
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    Coupon-mad
    The landowner authority appears to be expired, as you say, and is on Links' own notepaper (drafted by them then) and in the section about PERMITS it requires that 'the client' must display a permit at all times. The CLIENT? The Managing Agent?

    Nothing in that contract says residents have any relevant obligation...only the stupid client who contracted with Link.

    In the WS, you need to call them out on #29 at the hearing and put Martin Gardner on the spot about his incorrect and spuriously misleading citation of Vine, as explained by Johnersh (a solicitor poster) here:

    https://forums.moneysavingexpert.com/showthread.php?p=73971817#post73971817

    ''The Claimant appears to have led the Court to the Respondent's argument in Vine v London Borough of Waltham and, critically, NOT the ratio of the judgment from Roch LJ.''
    • psdie
    • By psdie 19th Nov 18, 11:36 PM
    • 120 Posts
    • 73 Thanks
    psdie
    Excellent points, thank you CM

    The WS claims GLS are not under investigation by the SRA, contrary to a suggestion that this is the case by Stephen Doughty MP in the in 17/9/17 Commons debates of the Parking Bill:

    What discussions is the Minister having with the Ministry of Justice and the Solicitors Regulation Authority, which I met a few months ago to raise concerns about a number of named companies, and which has advised me that it is looking at the practices of those firms and whether they are operating in an appropriate way? [..] I should be clear that that is Gladst*nes Solicitors in Knutsford ..
    Is there more tangible proof of this SRA investigation that someone knows of, and something to show that Gladrags were specifically included?
    • Coupon-mad
    • By Coupon-mad 19th Nov 18, 11:41 PM
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    Coupon-mad
    No, but I would drop that line of defence as your opponent is not Gladstones.
    • psdie
    • By psdie 20th Nov 18, 12:54 AM
    • 120 Posts
    • 73 Thanks
    psdie
    Take your point - but my argument is that a competent solicitors firm would have taken one look at the photo of an unrestricted parking sign next to my vehicle and advised their client not to proceed with a claim with no reasonable prospect of success, which would have avoided wasting the court's valuable time. The claimant's choice of GSL to represent them, given their widely known roboclaims reputation, demonstrates IMO that the claimant was not interested in the merit of their case and sought instead to intimidate into settlement regardless.

    I plan to use this (along with refusal to hear appeal unless driver identified, refusal to provide basic requested info like basis of claimed debt until literally their WS, and the raft of basic errors - changing amounts / descriptions, factual errors, etc) to argue for costs award on basis it shows unreasonable, vexatious behaviour.

    I assume I am on solid ground to state that refusal to hear appeal unless the driver is identified is unreasonable and fails to fulfil their responsibilities under POFA to provide a robust appeals process before applying for Keeper details? Does this indeed count as a failure to meet the pre-requirements for POFA and invalidates their right to claim against the Keeper, as I propose in my Defence?

    #27 claims that they have marked on the plan where the vehicle was parked. There's an ambiguous cross on the plan near the entrance which could either represent signage or the location of the vehicle, but doesn't match the location of either (as shown by evidence photos).

    #32 and #35 state "lack of any general prohibition of entry on the signage" - when in fact the (obscured) Management Company entrance sign states "No Public Parking" (permit only) and the (distant) LP sign states parking only permitted for permit holders. This lack of prohibition is used as their claimed "relevant obligation" - yet the entrance sign in particular is clearly prohibitive and contradictory. Is the "prohibitive language" argument worth bothering with? I'm concerned it overly emphasises the "No Public Parking" language.
    Last edited by psdie; 20-11-2018 at 1:10 AM.
    • psdie
    • By psdie 20th Nov 18, 1:11 AM
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    psdie
    Wow, lying sods - #43 quotes from their signage but changes the wording to include "will incur an additional costs of £60". Their own evidence clearly shows the actual wording is "may incur additional costs" - no amount identified. Utterly deceptive.
    Last edited by psdie; 20-11-2018 at 1:35 AM.
    • Coupon-mad
    • By Coupon-mad 20th Nov 18, 1:19 AM
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    Coupon-mad
    I assume I am on solid ground to state that refusal to hear appeal unless the driver is identified is unreasonable and fails to fulfil their responsibilities under POFA to provide a robust appeals process before applying for Keeper details?
    Yes it's unreasonable.

    The DVLA told all parking firms in January 2014 - before the IPC started - the following:

    https://forums.moneysavingexpert.com/showthread.php?p=64401866#post64401866

    a positive response from the DVLA, please see below:

    Dear Mr XXXX,

    Thank you for your patience in this matter.

    The British Parking Association have now provided a response to myself.

    The BPA have confirmed that this practice should not be occurring (as we already knew) and have taken steps to address this behaviour throughout the industry as this may not be an isolated incident.

    The following message has now been issued by the BPA to all of their members...

    'the following practices may be considered as Code breaches and must not be continued:
    • Asking the motorist to enter into additional correspondence to obtain a POPLA code
    • Failing to include a correct and/or valid POPLA Code within the Rejection correspondence
    • Issuing a POPLA Code with a date identifier which is significantly different from the date of rejection
    Appearing to indicate that the issue of a POPLA Code is conditional on driver details being supplied
    I am hoping that this type of incident will not be occurring any more.

    I wish to thank you of bringing this matter to the DVLA's attention and ultimately, the BPA's.

    If you do encounter any further issues such as this, please do not hesitate to contact myself.


    Kind regards
    And then once the IPC rocked up soon after that and rounded up a motley crew of PPCs desperate for a laxer CoP, this happened:

    http://parking-prankster.blogspot.com/2015/10/how-independent-parking-committee.html

    Following pressure from the DVLA and consumers, the code of practice was changed.

    The requirement to name the driver at the IAS appeal stage remained, but following pressure from the DVLA this was removed, although the code of practice was not updated. Instead, on appealing the keeper was required to state whether they were the driver at the time, were not the driver at the time or did not want to state whether they were the driver.
    Conclusion

    It appears that the IPC have successfully bamboozled the DVLA into letting them remove the right to appeal from vehicle keepers.

    Also see:

    http://parking-prankster.blogspot.com/2015/09/how-independend-parking-committee.html

    Notice to Keeper

    Old CoP: ''6.4 The keeper must be told that the process of appealing within your internal appeals process
    and the IAS.''

    The requirement to allow keepers to be able to appeal has been removed.

    The right of a keeper to appeal is a fundamental protection. It was a clear condition of government that the motorists should have access as a condition of the Protection of Freedoms Act Schedule 4 going live. The Prankster believes that ATA status should be removed from the IPC until the right for keepers to appeal has been restored.

    Conclusion

    It is obvious that every change has been made to the detriment of the motorist and without good reason. This is what happens when the DVLA allows a rogue ATA to have full control of its code of practice. The Prankster therefore backs the BPA's call for a single industry-wide code of practice, maintained by an independent body.

    Until the IPC gets its house in order and reverts back to a fair code of practice, restoring at least signage requirements, and the ability for keepers to appeal, the DVLA should suspend its ATA status.
    All of the above happened in 2015 and that's certainly unreasonable, given the starting position of the DVLA and the IPC's first CoP which they then watered down once they had ATA status.

    Wow, lying sods - #43 quotes from their signage but changes the wording to include "will incur an additional costs of £60". Their own evidence clearly shows the actual wording is "may incur additional costs" - no amount identified. Utterly deceptive.
    Originally posted by psdie
    Yes, indeed.

    If you really go to town on unreasonableness to meet that very high bar, you could get a huge amount of costs. Create a stand alone document about their unreasonableness, blow by blow - pages long, to hand to the Judge when it comes to the matter of costs.
    Last edited by Coupon-mad; 20-11-2018 at 1:23 AM.
    • psdie
    • By psdie 20th Nov 18, 1:36 AM
    • 120 Posts
    • 73 Thanks
    psdie
    Wonderful, thank you CM - fantastic find! I'll digest that further now - a few final observations on their WS:

    #47 tries to turn my Defence 7.4.2 (Consumer Rights Act 2015) into a colloquial interpretation of the word "fair" - but of course I'm referring to the Act's definition of Fair, which includes in Schedule 2 the following example of an unfair alleged contract term:

    (10) A term which has the object or effect of irrevocably binding the consumer to terms with which the consumer has had no real opportunity of becoming acquainted before the conclusion of the contract.
    #48 - any idea how they could justify claiming I didn't file a DPA Section 10 notice with them, when the e-mail chain clearly shows this being expressed multiple times?
    Last edited by psdie; 20-11-2018 at 1:50 AM.
    • Coupon-mad
    • By Coupon-mad 20th Nov 18, 1:48 AM
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    Coupon-mad
    This is stuff I remember from 2015 so it was easy to look up - I have a good memory for details, as parking firms and any others who bother me, know to their cost.



    As for your questions, you are discovering that PPCs will tell lies and more lies, and they hope you will not notice. Keep digging!
    • psdie
    • By psdie 20th Nov 18, 1:53 AM
    • 120 Posts
    • 73 Thanks
    psdie
    I will - and I will be pushing for full costs (with write-up here after) - there needs to be a clear disincentive for PPCs to behave like this.

    In terms of the overall structure of my WS - rather than repeat the bulk of my Defence wording, which I believe mainly stands its own in the face of their WS counter-arguments, would it be sensible to state the key facts of the case and then present a short summary of my primary arguments (~1 page), plus a further short section highlighting key flaws in their counter-arguments?

    I'm thinking of leading into it with something like: "Given the Claimant has already inappropriately used its Witness Statement to present brand new legal arguments, I will take the opportunity now to summarise the key Defence arguments and respond to key misleading aspects of the Claimant's Witness Statement."

    Also, any idea what to do if the judge asks me face to face to identify the driver? I assume can't / bad idea to refuse - but worth asking to be allowed not to name them, perhaps with a legal justification (I have no idea what terminology to use)?
    Last edited by psdie; 20-11-2018 at 1:57 AM.
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