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  • FIRST POST
    • squire1234
    • By squire1234 6th Aug 18, 3:33 PM
    • 26Posts
    • 3Thanks
    squire1234
    Private PCN on residential estate
    • #1
    • 6th Aug 18, 3:33 PM
    Private PCN on residential estate 6th Aug 18 at 3:33 PM
    Hi all,

    I live in a large estate where each resident has their own parking space. There are also 4 visitor spots but these are almost always taken by residents with second vehicles. There are undesignated areas within the estate, alongside curbs, which residents regularly use for additional parking and these do not cause any obstruction to traffic, but are obviously against the T&Cs of parking in the estate. Unfortunately, there is no way to pay for additional parking permits anywhere in my area so residents, including myself, continue to do so out of necessity.

    Whenever I have a visitor, I will allow them to park in my bay (with my permit) and I will move my car to one of the undesignated areas. Unfortunately, I have received 3 parking tickets over the past 12 months as a result. I have followed the advice on this forum and waited for the NTK in each case and then appealed to the PPC, not admitting liability. The photographic evidence that the PPC have does not clearly confirm whether I was even parked in an undesignated area in any of the cases. Obviously, the appeals were all rejected.

    I have now received a LBC from Gladstones and was hoping for some reassurance that I am doing the right thing by not paying and guidance on what to do next. I am currently making my way through the newbies thread. Any help would be greatly appreciated. Thank you!

    P.S. I cannot attach an image of the letter and the signage in the estate as a new user but I can PM if it helps.
Page 3
    • Coupon-mad
    • By Coupon-mad 25th Mar 19, 10:07 PM
    • 70,218 Posts
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    Coupon-mad
    Not sure, it's so buried in text!

    Try putting it and your other background facts (briefly) into bargepole's concise defence example, so we can review it.

    Make sure it's the one by bargepole that includes the 'no landowner authority' in it.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
    • squire1234
    • By squire1234 26th Mar 19, 3:16 PM
    • 26 Posts
    • 3 Thanks
    squire1234
    I wasn't able to find the exact defence to which you were referring but I used Bargepole's defence on inadequate signage. If you can point me in the right direction and I am happy to rewrite? But here is my attempt using the former (I have highlighted the headings for my main defences):

    IN THE COUNTY COURT

    CLAIM No: ...

    BETWEEN:

    LINK PARKING LTD (Claimant)

    -and-

    ... (Defendant)

    ________________________________________
    DEFENCE
    ________________________________________


    1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

    2. The Particulars of Claim on the N1 Claim Form refer to 'Parking Charge(s)' incurred on 14/04/2018. However, they do not state the basis of any purported liability for these charges, in that they do not state what the terms of parking were, or in what way they are alleged to have been breached. In addition, the particulars state 'The Defendant was driving the vehicle and/or is the keeper of the vehicle' which indicates that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5.

    3. The Particulars refer to the material location as '[LOCATION]’. The Defendant has, since [DATE], held legal title under the terms of a lease to [ADDRESS] at that location.

    4. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

    5. The Claimant has provided no evidence thus far that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA").

    Failure to comply with Schedule 4 POFA
    6. As set out by Schedule 4 Paragraph 8 (4), the deadline for the Notice to Keeper is the period of 28 days following the period of 28 days beginning with the day after that on which the notice to driver was given. The Defendant notes that the ‘Notice to Keeper’ was sent on 13/06/2018 and received on 15/06/2018, 62 days after the alleged breach of contract on 14/04/2018. In this instance, the Claimant failed to provide due notice and, therefore, liability cannot be transferred to the Defendant.

    7. Further, the Defendant notes that the ‘Notice to Driver’ was deficient in its contents in that it failed to specify the ‘period of parking’ as is required by POFA Schedule 4, Sections 7(2)(2) & (3). As stipulated, this is obligatory to the requirements of the notice and such an omission renders both the ‘Notice to Driver’ and, subsequent, ‘Notice to Keeper invalid in law.

    8. The Court is invited to dismiss the Claim in its entirety on the above basis, that the Claimant has failed to meet the mandatory requirements set out by Schedule 4 POFA and court proceedings are, therefore, unwarranted.

    Authority to Park and Primacy of Contract
    9. Under the terms of the Defendant's lease, a number of references are made to conditions of parking motor vehicles and permission for the use of communal areas.
    9.1. There are no terms within the lease requiring lessees to pay penalties to third parties, such as the Claimant, for non-compliance of the same.

    10. Communal areas within the estate are often used for loading/unloading as parking is limited within the estate. The Defendant avers that there was an absolute entitlement for the vehicle to remain in the alleged location, deriving from the terms of the lease, for the purposes of loading/unloading.

    11. The Defendant relies on their primacy of contract and avers that the operator’s signs cannot: (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease.

    12. In this case the Claimant has taken over the location and runs a business as if the site were a public car park, offering terms with 100 penalty on the same basis to residents, as is on offer to the general public and trespassers. The Defendant avers that the Claimant's conduct in aggressive ticketing is in fact a matter of tortious interference, being a private nuisance to residents.

    Inadequate/insufficient signage
    13. At the time of the material events the signage was deficient in number, distribution, wording and lighting from the site of the alleged contravention to reasonably convey a contractual obligation.

    14. The signage at the entrance to the land was displayed in a manner that could not be seen when attempting to safely manoeuvre a vehicle into the turning of the residential estate.

    15. In the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. They merely state that vehicles must be parked correctly within their allocated parking bay, giving no definition of the term 'correctly parked', nor indicating which bays are allocated to whom. The only clear large lettering on the signage was the notice of ‘WARNING: PRIVATE LAND' – ‘Private Land’ to which the Defendant has access as granted by the lease agreement.

    16. Further, the signs suggest that ‘by parking or remaining at this site’ without permission, motorists are contractually agreeing to a parking charge of 100. This is clearly non-sensical, since if there is no permission, there is no offer, and therefore no contract.

    17. The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 as a binding precedent on the lower court. However, that only assists the Claimant if the facts of the case are the same, or broadly the same. In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas it is the Defendant's position that no such breach occurred in this case, because there was no valid contract, and also because the 'legitimate interest' in enforcing parking rules for retailers and shoppers in Beavis does not apply to these circumstances. The Defendant avers that the residential site that is the subject of these proceedings is not a site where there is a commercial value to be protected. The Claimant has not suffered loss or pecuniary disadvantage. Therefore, this case can be distinguished from Beavis on the facts and circumstances.

    Summary
    18. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case 100. The claim includes an additional 60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

    19. In summary, it is the Defendant's primary defence that the claim is invalid on the grounds that the POFA 2012 Section 4 conditions were not met at first instance. Further, the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.


    STATEMENT OF TRUTH
    I confirm that the contents of this Defence are true.
    Last edited by squire1234; 26-03-2019 at 3:19 PM.
    • Coupon-mad
    • By Coupon-mad 26th Mar 19, 3:33 PM
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    Coupon-mad
    That looks fine, as long as all the details about the signs and lease are about your residence and not just copied where they don't make sense (some people do!).

    I would remove mention of the NTD, as it sort of implies you might have been the driver, and the Claimant will seize on the fact you know about ad saw the windscreen PCN:
    7. Further, the Defendant notes that the ‘Notice to Driver’ was deficient in its contents in that it failed to specify the ‘period of parking’ as is required by POFA Schedule 4, Sections 7(2)(2) & (3). As stipulated, this is obligatory to the requirements of the notice and such an omission renders both the ‘Notice to Driver’ and, subsequent, ‘Notice to Keeper invalid in law.
    If this is about more than one PCN, have this sort of thing in there near the end:

    https://forums.moneysavingexpert.com/showthread.php?p=75631067#post75631067
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
    • squire1234
    • By squire1234 26th Mar 19, 4:04 PM
    • 26 Posts
    • 3 Thanks
    squire1234
    That looks fine, as long as all the details about the signs and lease are about your residence and not just copied where they don't make sense (some people do!).
    Yeah, I've thoroughly looked over my lease and the signs and it does apply to my residence.

    I would remove mention of the NTD, as it sort of implies you might have been the driver, and the Claimant will seize on the fact you know about ad saw the windscreen PCN:
    I will remove this but I appealed the windscreen ticket at the time. Does this throw my defence regarding their pursuit of me as keeper under the bus?

    I have also looked over my correspondence with Gladstone's and in one of their emails they said that they were pursuing me as driver because I had allegedly admitted that I was the driver at the time. I am not sure what they are basing this on because I never admitted this. Where do I stand?

    If this is about more than one PCN, have this sort of thing in there near the end:
    It is about one ticket only, although I have just received a claim form for one of the other tickets. It is a separate issue.
    • Coupon-mad
    • By Coupon-mad 26th Mar 19, 7:01 PM
    • 70,218 Posts
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    Coupon-mad
    I will remove this but I appealed the windscreen ticket at the time. Does this throw my defence regarding their pursuit of me as keeper under the bus?
    Not at all, a keeper can have appealed and known about the PCN. I just wouldn't draw attention to this point in your defence, for now - don't give them the NTD to think about.

    Also, there is very little that a NTD has to include and saying it's non compliant isn't needed, if the NTK was late and non-POFA.

    I assume you DIDN'T appeal as driver?
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
    • squire1234
    • By squire1234 26th Mar 19, 8:27 PM
    • 26 Posts
    • 3 Thanks
    squire1234
    I assume you DIDN'T appeal as driver?
    Nope, I didn't accept or deny that I was the driver and didn't refer to myself as the driver so am unsure where they got that from.

    If this is about more than one PCN, have this sort of thing in there near the end:
    Just going back to what you said earlier - as I have now received a claim form for one of the other tickets, do you have any advice on how to proceed? The other NTK met the POFA requirements. Should I treat it as an entirely separate defence although the circumstances are identical?
    • Coupon-mad
    • By Coupon-mad 26th Mar 19, 9:41 PM
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    Coupon-mad
    Do the same defence for both, only with the right claim number at the top.

    Have the paragraph about consolidating the two claims in these defences, then REPEAT IT again and again at each stage (DQ, then WS) till your local Judge spots it and merges the hearings into one.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
    • squire1234
    • By squire1234 26th Mar 19, 10:38 PM
    • 26 Posts
    • 3 Thanks
    squire1234
    Thanks, but just to reiterate that the second ticket meets the POFA deadlines (they didn't send the NTK outside of the 56 day limit) - I'll remove this part from the second defence and otherwise keep it the same with the additional paragraph that you recommended.
    • Coupon-mad
    • By Coupon-mad 26th Mar 19, 10:59 PM
    • 70,218 Posts
    • 82,799 Thanks
    Coupon-mad
    You can still allege they have failed to transfer liability to the keeper, due to a failure to meet the POFA 2012 Schedule 4 requirements for 'adequate notice' of the parking charge on prominent signs, and a lack of any 'relevant contract' or 'relevant obligation' that could have bound the driver, given the circumstances.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
    • squire1234
    • By squire1234 27th Mar 19, 11:17 AM
    • 26 Posts
    • 3 Thanks
    squire1234
    Great! Really appreciate all the help so far. Will get back to you when there is an update.
    • squire1234
    • By squire1234 31st Mar 19, 4:39 PM
    • 26 Posts
    • 3 Thanks
    squire1234
    Can I please check that when sending my defence to the email that KeithP provided, do I need to fill out the form and attach it or can I simply send a .pdf of my defence on its own?
    • Coupon-mad
    • By Coupon-mad 31st Mar 19, 6:46 PM
    • 70,218 Posts
    • 82,799 Thanks
    Coupon-mad
    No form needed, as long as you put in the subject line:

    URGENT - DEFENCE ATTACHED RE CLAIM NO. XXXXXXXX
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
    • squire1234
    • By squire1234 16th Apr 19, 6:52 PM
    • 26 Posts
    • 3 Thanks
    squire1234
    I haven't received a DQ as of yet, should I be proactive about chasing it?
    • Umkomaas
    • By Umkomaas 16th Apr 19, 7:18 PM
    • 23,009 Posts
    • 36,544 Thanks
    Umkomaas
    I haven't received a DQ as of yet, should I be proactive about chasing it?
    Originally posted by squire1234
    When did you submit your defence? How soon were you expecting a DQ? Have you researched it on the MCOL website? Does the NEWBIES FAQ sticky, post #2 not cover this?
    Last edited by Umkomaas; 16-04-2019 at 7:21 PM.
    Please note, we are not a legal, residential or credit advice forum, rather one that helps motorists fight private parking charges, primarily at the 'front-end' of the process.
    Give a man a fish, and you feed him for a day;
    show him how to catch fish, and you feed him for a lifetime.
    • KeithP
    • By KeithP 16th Apr 19, 7:46 PM
    • 14,268 Posts
    • 16,208 Thanks
    KeithP
    Didn't the court write and tell you that the Claimant has 28 days to consider their options?

    The court will not be sending you a Directions Questionnaire until that hear from the Claimant that they want to continue.
    .
    • squire1234
    • By squire1234 17th Apr 19, 5:21 PM
    • 26 Posts
    • 3 Thanks
    squire1234
    I sent the defence at the start of April and Gladstones informed me that they had told the court of their decision to proceed on 3rd April. I will continue to wait for the DQ. Thanks

    Can I also confirm the following - I received another court claim on 18th March, does this mean I have until 4pm on 23rd April to file my defence? I already submitted my acknowledgement of service before 14 days after issue.
    • KeithP
    • By KeithP 17th Apr 19, 5:42 PM
    • 14,268 Posts
    • 16,208 Thanks
    KeithP
    Can I also confirm the following - I received another court claim on 18th March, does this mean I have until 4pm on 23rd April to file my defence? I already submitted my acknowledgement of service before 14 days after issue.
    Originally posted by squire1234
    That's correct.
    .
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