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FightBack Forums _ Private Parking Tickets & Clamping _ Parking & Property Management Ltd. - Parking charge in residential car park

Posted by: emergencychimp Wed, 2 Aug 2017 - 20:49
Post #1305575

So the driver got a parking charge in a residential car park in the time from leaving the car in a visitor space and going up to grab a parking permit from an outgoing tenant.

It seems this place is employing 'civilian' type attendants. No marked car, no uniform...

Anyway, of course a valid permit was in the possession of the driver.

My initial question is, do you send the appeal before the 28 days? I've read some people send it a couple of days prior. Or is the normal procedure to wait for NTK?




Posted by: ostell Wed, 2 Aug 2017 - 21:53
Post #1305600

Yes, wait for the NTK. You were visiting an outgoing tenant? If you can get a copy of the lease which will probably give the right to park to the tenant and visitors without the need to display a permit.

Posted by: emergencychimp Wed, 2 Aug 2017 - 21:56
Post #1305601

The tenant was moving out and the keys were being collected from them. No access to lease.

Posted by: ostell Wed, 2 Aug 2017 - 22:00
Post #1305605

Who was collectiong the keys? Estate agent, friend........?

Posted by: Eljayjay Wed, 2 Aug 2017 - 22:17
Post #1305610

You could try eservices.landregistry.gov.uk for the lease.

Posted by: emergencychimp Wed, 2 Aug 2017 - 22:42
Post #1305617

Driver was collecting keys under instruction of agent.

Posted by: nosferatu1001 Thu, 3 Aug 2017 - 03:49
Post #1305641

ASsuming not a lease or hire car, wait for the NtK

They will state there is no appeal, however you do so anyway as KEEPER of the vehicle
State the driver of the vehcile was colelcting the permit, and insufficient observation time was given to allow for this.
In addition, their notice fails POFA to hold the keeper liable for X, Y, Z reasons (look it up yourself - POFA Schedule 4, para 8) and as such only the driver is liable, wjo you choose not to name. No assumptions about the identiy of the driver can be made

Either contact the driver or cancel the charge, either way you will not make payment without a court ordering so. Of course, no payment will ever be made to a third party, you do not have your consent to pass your data to any third party, and any costs you incur are your wasted costs to bear and are of no concern of the Keeper.

Posted by: emergencychimp Thu, 3 Aug 2017 - 19:18
Post #1305848

Thanks. Not a lease or hire car, no. Will come back when NTK turns up.

Posted by: nosferatu1001 Fri, 4 Aug 2017 - 02:38
Post #1305927

Get reading POFA schedule 4 para 8 in the meantime. Dont just sit twiddling thumbs, do your research.

Posted by: ostell Fri, 4 Aug 2017 - 09:58
Post #1306001

And ageny was acting under the instructions of the Lease Holder whose lease most likely gives them the right to park.

Posted by: emergencychimp Sat, 5 Aug 2017 - 16:12
Post #1306340

This is a no question win surely as the notice to driver isn't valid due to not displaying the period the car was parked?

Posted by: Jlc Sat, 5 Aug 2017 - 16:20
Post #1306341

QUOTE (emergencychimp @ Sat, 5 Aug 2017 - 17:12) *
This is a no question win surely as the notice to driver isn't valid due to not displaying the period the car was parked?

If it was only that simple. For a 'no permit' situation periods of parking are mostly irrelevant.

Do the signs explicitly state there's no grace period?

As fetching the permit would not be unreasonable.

Posted by: emergencychimp Sat, 5 Aug 2017 - 17:14
Post #1306348

Photo of the closest 'wordy' sign.



I was in fact parked by a sign that just said 'Private property - Strictly residents parking only' which was displayed over 3 or 4 visitor bays.

Posted by: Jlc Sat, 5 Aug 2017 - 17:19
Post #1306349

How long did it take to collect the permit?

Posted by: emergencychimp Sat, 5 Aug 2017 - 17:38
Post #1306351

Under 10 minutes. Driver was parked where this white BMW is.


Posted by: Lynnzer Sat, 5 Aug 2017 - 18:16
Post #1306357

So many ways to kill this, or at least to cause them hassle.

For a start the lease more than likely won't impose parking restrictions for permit use. It certainly won't/can't impose a secondary contract with a parking company for use of the parking bays.

The sign is forbidding. That is, they limit parking to cars displaying a valid permit only. The rest of the wording cannot effectively be construed as an offer to park without a permit as they can't contract with you to do something they forbid.

Plenty of examples on forum on other residential cases.

Just to whet your appetite take a read of the stuff from my signature links.

Also do a skip through some of the Pranksters blog. There are many examples where people have won cases for situations like this.

Posted by: emergencychimp Sat, 5 Aug 2017 - 18:31
Post #1306359

Whilst I do not have access to the lease, I do know when the tenants moved in, there were no parking restrictions. Well, nothing enforceable wink.gif

This parking enforcement company only started their contract April this year.

Posted by: Jlc Sat, 5 Aug 2017 - 18:38
Post #1306360

The bottom line is that they will reject any appeal and will almost certainly issue a claim. This is private parking at it's best.

How do they expect visitors to get the permit? By TARDIS?

But if one was giving the benefit of the doubt perhaps their operative just happened to appear a few seconds after the driver disappeared. Looked, saw the car parked and issued the ticket. They didn't appear to wait 10 minutes. Perhaps they were lurking all the time.

But a contract with them (forbidding aside) whilst the permit was being collected. If the permit could not be collected then the driver should have left, within 10 minutes. But they didn't, they returned with the (presumably) valid permit. Whilst the permit was being collected there was not a contract but a licence to remain on the land for that short period.

Whilst it could be argued about forbidding sign etc. perhaps the way to approach this is via the 'truth'. No malarkey about complying with PoFA etc. but simply the driver was collecting the permit to commence the contract (and it wouldn't have been breached).

QUOTE (emergencychimp @ Sat, 5 Aug 2017 - 19:31) *
Whilst I do not have access to the lease, I do know when the tenants moved in, there were no parking restrictions. Well, nothing enforceable wink.gif

The lease is not yours - so you cannot argue its primacy.

Although, perversely a recent court case did have the visitor 'win' and the actual tenant lose their court case! (For quite different reasons mind)

Posted by: emergencychimp Mon, 21 Aug 2017 - 20:43
Post #1310265

So NTK was received last week. Do I need to post the photos they took?





I was thinking something along the lines of the following.

To whom it may concern,

I have received a notice to keeper re. parking charge XXXXXXX. I am appealing as the keeper of the vehicle.

The driver of the vehicle was collecting the parking permit to transfer over to the driver's vehicle at the time of the PCN being issued. Insufficient observation time was given to allow for this.

If you would like additional reasons to cancel this PCN, both the notice to driver and notice to keeper fail to comply with the Protection of Freedoms Act 2012. No assumptions about the identity of the driver can be made and I am under no legal obligation to identify them, which I will not be doing.

Either contact the driver or cancel the charge. Either way I will not make any payment without a court ordering to do so. I might add no payment will ever be made to a third party. You do not have my consent to pass my data to any third party. Any costs you incur are your wasted costs to bear and are of no concern of the keeper.


Posted by: SchoolRunMum Mon, 21 Aug 2017 - 21:16
Post #1310276

Yep that's fine, then when they reject, do not try the IAS stage.

If thy try a small claim, your defence will focus on the main points, that:

- an inadequate grace period was allowed to fetch the visitors' permit (contrary to the IPC CoP), and that

- the NTK is not POFA compliant (the 28 day period warning is wrongly stated, and there is no period of parking observed that would have breached a reasonable grace period) and that

- a visitor is entitled to rely upon the authority of the resident they are fetching the permit from, and the resident has primacy of contract and rights that are validly transferred to the visitor who was merely getting that permit, and

- the signage isn't capable of forming a contract, and

- the parking firm are not landowners and have no contract or status which would allow them to sue in their own name...

Example of an ''own space'' defence written by a solicitor on MSE, here:

http://forums.moneysavingexpert.com/showthread.php?p=72977032#post72977032

In that one the keeper wasn't the driver and it wasn't about the few minutes taken to get a permit, so it can't be copied verbatim.

Come back at court claim stage, or when you get a Letter before Claim from Gladstones.

Posted by: emergencychimp Wed, 6 Sep 2017 - 09:53
Post #1313886

Appeal rejected. No surprise.

I'm a bit confused they're saying the appeal is out of the time limits. Is that something to do with waiting on NTK?

And do you think they really don't know their notice to driver and NTK, and signage are not compliant or are they just lying.




Posted by: Jlc Wed, 6 Sep 2017 - 10:42
Post #1313909

They claim the vehicle did not have a permit for 12 minutes. (And only allow 5)

The appeal date appears to be referring the original PCN date and not the NtK? (Some companies don't accept appeals from a NtK)

Posted by: emergencychimp Wed, 6 Sep 2017 - 10:56
Post #1313914

How relevant is it that there is no mention of a grace period on any sign?

Should I post their photos or just wait to see if a letter before claim turns up?

Should I chase the landowner to get them to cancel it?

Posted by: The Rookie Wed, 6 Sep 2017 - 11:25
Post #1313927

1/ Not at all relevant

2/ No, they aren't relevant

3/ You can do, yes, it depends if the Landowner brought them in or a managing company (which is good news as they have even less right to impose extra restrictions as they are meant to work for flat residents/owners). I would ask your customer (the landlord) to pay for the parking cost (as the PPC claim its a contractual cost and not a fine/penalty) of recovering the permit unless he gets it cancelled for you, he will have more clout and also it saves giving away the drivers ID.

Posted by: emergencychimp Wed, 6 Sep 2017 - 11:41
Post #1313935

I'm not going to ask anyone to pay for anything.

I have the details of the property management company at the site. I assume they are responsible for bringing in the parking system.

I suppose I could advise them it would be best to cancel the PCN as their parking agent is not compliance with POFA 12 and they will be grouped into any legal action.


Posted by: Jlc Wed, 6 Sep 2017 - 12:41
Post #1313951

QUOTE (emergencychimp @ Wed, 6 Sep 2017 - 12:41) *
I have the details of the property management company at the site. I assume they are responsible for bringing in the parking system.

Yes, but they'll probably say the matter is with the parking company...

QUOTE (emergencychimp @ Wed, 6 Sep 2017 - 12:41) *
I suppose I could advise them it would be best to cancel the PCN as their parking agent is not compliance with POFA 12 and they will be grouped into any legal action.

What's not in compliance?

How will you group them in legal action? (This would only be possible if you claimed or counterclaimed)

The bottom line is a claim is extremely likely - prepare for it. You need your facts straight as you said it took less than 10 minutes to get the permit (reasonable) where they state 12. (May be sharp practice but is important)

Posted by: emergencychimp Wed, 6 Sep 2017 - 12:55
Post #1313955

But they are capable of cancelling the PCN if they employed the parking company

Their notice to driver and NTK are not in compliance with POFA 12.

Yeah. Just thinking out loud there.

Maybe it was 12 minutes. I don't know. Who would count. As you can see from the sign, there is no mention of any permit being required. It just says 'strictly residents parking only'. Had there been a full sign over the visitor parking bays, perhaps a permit might have been acquired quicker.

Posted by: Jlc Wed, 6 Sep 2017 - 13:15
Post #1313961

QUOTE (emergencychimp @ Wed, 6 Sep 2017 - 13:55) *
But they are capable of cancelling the PCN if they employed the parking company

Believe or not, not necessarily! One wonders who signs up for these conditions but there's often a limit to the number of cancellations or even a charge to do so!

QUOTE (emergencychimp @ Wed, 6 Sep 2017 - 13:55) *
Their notice to driver and NTK are not in compliance with POFA 12.

You'll have to be more specific...

QUOTE (emergencychimp @ Wed, 6 Sep 2017 - 13:55) *
Maybe it was 12 minutes. I don't know. Who would count. As you can see from the sign, there is no mention of any permit being required. It just says 'strictly residents parking only'. Had there been a full sign over the visitor parking bays, perhaps a permit might have been acquired quicker.

Of course, but if they disprove any witness statement it won't assist your case. The signage angle is much better.

Posted by: nosferatu1001 Wed, 6 Sep 2017 - 18:06
Post #1314015

Most IOC members don't allow keepers to appeal.

Posted by: emergencychimp Sun, 19 Nov 2017 - 22:04
Post #1332816

So I got a nice little letter from the lovely bunch at Gladstones.



I was thinking something along the lines of the below. Suggestions, criticisms welcome.



To whom it may conern

I am writing to you as the registered keeper of the vehicle *** and to confirm that I have no liability in this issue.

As you are aware, you need to comply with Protection of Freedoms Act 2012 (PoFA2012) to hold the keeper liable and your client has failed to follow the procedures outlined.

As such, I cannot be liable for the alleged debt because of failure to adhere to these requirements, in particular (but not limited to) schedule 4, Paragraph 8.

In addition, the signage isn't capable of forming a contract.

The parking firm are not landowners and have no contract or status which would allow them to sue in their own name.

The sign was forbidding and that there was no offer of a contract to park as it stated "Private Property - Strictly Residents Parking Only"

Also, I am in my right to decline to name the driver and any presumption that the keeper is the driver using the inappropriate case of Elliot v Loake will be strongly refuted.

As I have no liability to you, I request that my details are removed from your filing systems under the requirements of the Data Protection Act. This request is to be taken as a request under Section 10 of the Act and I therefore require confirmation of removal within 21 days. Failure to comply with this request will result in a complaint to the ICO and to the DVLA for breach of the KADOE agreement.

I therefore expect that this issue (and any associated charges) are cancelled and that you respond to me confirming as such within 14 days of the receipt of this letter.

You should also note that I am now tracking costs in this matter.

Yours faithfully


emergencychimp

Posted by: Jlc Sun, 19 Nov 2017 - 22:14
Post #1332824

You should follow PAP - the stuff you’ve said above will not stop a claim.

Posted by: emergencychimp Sun, 19 Nov 2017 - 22:19
Post #1332825

Oh right. I grabbed that off another thread and modified it. I guess I didn't read it properly. Sorry, I'm not familiar with PAP. What's that?

Posted by: nosferatu1001 Mon, 20 Nov 2017 - 16:00
Post #1333056

Pre action protocol.
From 1st October they have to comply with more stringent rules.

Posted by: Jlc Mon, 20 Nov 2017 - 16:38
Post #1333075

QUOTE (nosferatu1001 @ Mon, 20 Nov 2017 - 16:00) *
Pre action protocol.
From 1st October they have to comply with more stringent rules.

Indeed, but more importantly the 'defendant' has the opportunity to narrow the issues and request certain documentation.

Posted by: emergencychimp Thu, 30 Nov 2017 - 19:05
Post #1336041

I'm reading the thread on MSE and there is a letter that pretty much just says the LBC is not compliant with PAP and to send a proper one before doing anything else? Is this OK to do, or do I need to point out the many failures of the LBC? (there are a lot) Or is that done at a later stage?

Also, as it requires a date for acknowledgement, is them simply stating 30 days from the date of the letter sufficient or does it need to put a date in proper date format?

Posted by: nosferatu1001 Fri, 1 Dec 2017 - 10:04
Post #1336181

30 days is fine. Presumed to be 30 days from service whic his presumed to be 2 working days after they send it.

There is a MSE letter which then also goes onto exactly what documetns you wish to receive.

Posted by: emergencychimp Fri, 1 Dec 2017 - 14:52
Post #1336257

Thanks. I've submitted a letter stating their LBC is defective and that I await one that is compliant. I was dreading messing around researching this but that excellent thread on MSE was very useful and it was actually quite straightforward.

Posted by: emergencychimp Thu, 14 Dec 2017 - 17:56
Post #1339790

OK. So this was the letter I sent to Gladstones.

QUOTE
To whom it may concern,

Thank you for your letter of ***** 2017.

First, the alleged debt is disputed and any court proceedings will be vigorously defended.

Your letter before claim is defective as it does not comply with numerous requirements of the Practice Direction on Pre-action Conduct.

Please therefore provide a Letter Before Claim which complies with the requirements of the Practice Direction on Pre-action Conduct:

I confirm that I shall then seek advice and submit a Response as required by the Practice Direction.

Please ensure that someone does actually read and respond to this letter, providing the specific information relating to any court claim that you intend to make against myself as the defendant to the proposed legal proceedings. Please DO NOT send a generic letter in reply as to do so does not meet the requirements of the Practice Direction and will take this matter no further forward.

Please note, a refusal to comply with the Practice Direction will result in an immediate referral to the Solicitors Regulation Authority for breach of the Principles contained in the SRA Handbook version 8, published on 1st October 2013.

I trust this will not be necessary, and look forward to receiving a fully compliant letter before claim in due course.



And the below is their reply.

QUOTE
You have replied to our letter, yet failed to advance the version of events as you know them. Please let me know what happened from your point of view and what you need from our client.
Please also let me know what section of the SRA handbook (version 8) you are referring to.
If I don't hear back, a claim will be issued.


Off the top of my head, I'm thinking something along the lines of.

Your reply has failed to address my issue with your letter before claim despite me explicitly requesting it. My version of events was not requested. I need your client to drop this ridiculous debt claim.

You should not be threatening claims if you cannot construct a compliant letter before court.

What do I do here? Mention their client has not complied with PoFA2012 again?

Posted by: cabbyman Thu, 14 Dec 2017 - 18:32
Post #1339801

I think it is encumbent upon them to provide a compliant LBC before they can issue a claim. It should be grounds to have the claim dismissed, but others will advise in detail.

Posted by: nosferatu1001 Thu, 14 Dec 2017 - 20:35
Post #1339837

That was the massively short letter

You need to respond robustly, stating that they have failed to follow the requirements of the new PAP for debt claims. You require them to comply with their obligations , and you will then consider their response

State that, in the event they again refuse to comply with the protocol, and raise.p a claim, you will immediately apply for a stay of proceedings until they do comply, at their clients expense.

Posted by: SchoolRunMum Thu, 14 Dec 2017 - 21:20
Post #1339854

And state that the sign at the bays, as shown in the operator's letters, made an offer without caveat or any charge:

QUOTE
Strictly residents' parking only


The driver was fetching the permit, which involved {going up flights of stairs/waiting for the lift, whatever} but the driver asserts this took less than ten minutes, during which time predatory tactics were used in issuing the 'PCN'. There is no evidence that the photographs shown were, in fact, taken 12 minutes apart, given that similar unreliable and very basic hand/held camera 'evidence' was used by UKPC, in the well-publicised case where the time of parking was altered.

Posted by: emergencychimp Thu, 21 Dec 2017 - 20:21
Post #1341611

Thoughts on my reply anyone.


Dear Mr Gladstones Solicitor,

My version of events was not requested. I was merely responding to your defective letter before claim. Should you wish to instigate a claim, I will only respond to a compliant letter before claim. What I need from your client is to drop this ridiculous debt claim.

For your convenience, I shall reiterate what happened and outline why you should immediately cease all further chasing of this alleged debt.

1. The driver parked in a clearly marked visitor bay. Over these visitor bays is a sign that reads 'Private property - Strictly residents parking only'. Please see your clients notice to keeper for a picture of this sign. This sign makes an offer without any caveat or charge and I'm sure you'll agree, is incapable of forming any contract.

2. When it became clear to the driver a parking permit was indeed required (despite the confusing sign), the permit was sought and was in the hands of the driver in around 10 minutes. The driver returned to the vehicle to display the permit, by which time your client had issued the penalty charge notice. The driver has retained photographic evidence of possession of permit.

3. Your client's notice to driver was not compliant with the Protection of Freedoms Act 2012. Therefore your client has broken data protection laws by requesting my details. Your client, yourself, or anyone else has no legal authority to demand any payment from myself.

4. Your client's notice to keeper was not compliant with the Protection of Freedoms Act 2012. You can read the above paragraph again should you wish.

I suggest you request and review the relevant documents from your client before issuing any further threats of a court claim.

In summary, this is not a valid claim and you have no grounds to request payment from me.

Any further communication from yourself, your client or any other third party, other than confirming the PCN and debt claim has been cancelled, will be retained and used as evidence for issuing a counter claim of harassment at my discretion.

Regards.

emergencychimp

Posted by: Umkomaas Thu, 21 Dec 2017 - 21:38
Post #1341638

QUOTE
Regards.

emergencychimp

Regards? That’s almost a term of endearment. These creeps are suing you - and you sign your formal response ‘Regards’?

I don’t understand.

Posted by: nosferatu1001 Thu, 21 Dec 2017 - 22:21
Post #1341649

3) is not true. They dint have to comply with pofa to request keeper data

Posted by: emergencychimp Thu, 21 Dec 2017 - 22:27
Post #1341650

QUOTE (Umkomaas @ Thu, 21 Dec 2017 - 22:38) *
QUOTE
Regards.

emergencychimp

Regards? That’s almost a term of endearment. These creeps are suing you - and you sign your formal response ‘Regards’?
I don’t understand.

Ha. I can be the bigger man here.

Should I just go with
**** you,

emergencychimp

laugh.gif

QUOTE (nosferatu1001 @ Thu, 21 Dec 2017 - 23:21) *
3) is not true. They dint have to comply with pofa to request keeper data

Yeah. I was unsure about that part. It just made sense to me that for them to be allowed to request the registered keepers data, they had to jump through specific hoops. If they did not, then the data request was invalid. I guess it doesn't work like that. I'll remove the part about data protection laws.

Posted by: nosferatu1001 Thu, 21 Dec 2017 - 22:41
Post #1341656

It’s never worked like this. They can ask for keeper details to ask the keeper to tell them the drivers identity. This single purpose under kadoe has been perverted into taking keepers to court but meh, no one seems to care

The hoops to access electronically are simply to be member of an AOS. Nothing to do with pofa.

Posted by: Umkomaas Fri, 22 Dec 2017 - 19:46
Post #1341838

QUOTE
Ha. I can be the bigger man here.

Should I just go with
**** you,

emergencychimp

laugh.gif

You could do, as long as you’re happy for a Judge to read that in the court papers you/the PPC might be submitting.

Stick to standard convention - Dear Sir/Yours faithfully. Dear Mr ..../Yours sincerely.

They’ll do nicely!

Posted by: emergencychimp Fri, 22 Dec 2017 - 23:15
Post #1341871

Yes. Of course. I wouldn't actually do that. I was just kidding.

Posted by: emergencychimp Sat, 10 Mar 2018 - 12:20
Post #1365597

So, a development on this.

Somewhat confusingly, Gladstones have sent me a court claim form. Despite knowing the NTD and NTK did not comply with POFA and issuing a defective LBC. Are they thinking I'll just get scared and pay up? Surely the court will instantly throw this out considering how inept the parking company and Gladstones have acted?

Now is all I need to do now is acknowledge the claim?

Posted by: Jlc Sat, 10 Mar 2018 - 12:33
Post #1365603

Yes but you’ll have to follow the court procedures and submit a full defence. The court will not strike it out on their own volition.

Posted by: emergencychimp Sat, 10 Mar 2018 - 12:50
Post #1365609

I take it I need to tick the 'I intend to contest jurisdiction' to move it to my local court? Does this then send me another document to allow me to tick 'I intend to defend all of this claim'? I can then make a counter claim at this time?

Posted by: ostell Sat, 10 Mar 2018 - 12:52
Post #1365611

No, only contest jurisdiction if you live in Scotland or NI. It will be moved to the court of your choice later in the process.

What are you going to countclaim for?

Posted by: emergencychimp Sat, 10 Mar 2018 - 12:57
Post #1365613

Ah. I see. I wish to counter claim for my time wasted dealing with this nonsense.

Posted by: The Rookie Sat, 10 Mar 2018 - 13:00
Post #1365615

You would need more concrete grounds than that!

Posted by: Redivi Sat, 10 Mar 2018 - 13:24
Post #1365619

That "contest jurisdiction" box causes a lot of confusion

Gladstones won't know that the NtK didn't comply with POFA
The claims process is automated and nobody looks at any documents unless the claim is defended

Posted by: Jlc Sat, 10 Mar 2018 - 13:26
Post #1365621

Should you win then you can claim your costs but these are severely limited at small claims unless the claimant can be shown to have been 'unreasonable'. (But there's more in a legal sense)

Posted by: emergencychimp Sat, 10 Mar 2018 - 13:34
Post #1365625

I informed Gladstones the NTK did not comply with POFA in some correspondence after their LBC so they are aware.

I see. Costs are more to do with stuff like DPA breaches then?

Posted by: Jlc Sat, 10 Mar 2018 - 13:37
Post #1365627

Yes, but they will pursue the keeper under the presumption they were driving.

You could counterclaim for a Data Protection breach but it's extremely hard to convince a judge. Although, a counterclaim would prevent them from vacating the hearing if they don't think they are going to win.

Posted by: emergencychimp Mon, 19 Mar 2018 - 18:44
Post #1368336

OK, so my acknowledgement of service is submitted.

Claim issued on the 6/3/18. Date of service is plus 5 days right?

So I need my defence sorted by 8/4/18 correct? Obviously the sooner the better.

Should I post the particulars of claim? I know sometimes they do not meet requirements.



Posted by: Eljayjay Mon, 19 Mar 2018 - 23:48
Post #1368390

I believe it is 28 + 2 days from 6 March which I make 5 April.

Yes, do post the particulars of claim (after redacting anything personal).

Posted by: ostell Tue, 20 Mar 2018 - 07:44
Post #1368410

The form will tell you which day is is assumed delivered. It is usually 5 days from issue to delivery so that gives you 33 days from date of issue to having to get your defence to the court. You calculation was correct but don't cut it too fine just in case there are problems getting the defence to the court.

Posted by: nosferatu1001 Tue, 20 Mar 2018 - 11:00
Post #1368445

Total of 33 days for the court to RECEIVE the defence. Print, sign, scan to PDF and email (or have a signature already in the document, then just convert to PDF. DO NOT just type the signature, this is NOT allowed)

PoC are likely utterly deficient. Just type it out here, dont waste time. its short

Posted by: emergencychimp Thu, 22 Mar 2018 - 16:52
Post #1369205

OK, here is the particulars of claim. To my untrained eye, not as embarrassingly poor as others I have that Gladstones have somehow managed to bash out.

QUOTE
The driver of the vehicle registration ******* (the 'Vehicle') incurred the parking charge(s) on 10/07/2017 for breaching the terms of parking on the land at Block A & D 1-33 Alexandra Park Queen Alexandra Road High Wycombe Buckinghamshire HP11 2HJ.

The defendant was driving the Vehicle and/or is the keeper of the Vehicle.

AND THE CLAIMANT CLAIMS
£160 for parking charges / Damages and indemnity costs if applicable, together with interest of £7.07 pursuant to s69 of the County Courts Act 1984 at 8% pa, continuing to Judgment at £0.04 per day.

Posted by: nosferatu1001 Thu, 22 Mar 2018 - 17:05
Post #1369208

Well apart:
1) no cause of action. What terms? Are they alleging contractual charge, damages for breach of contract, trespass?
2) usual rubbish thhat they dont know wha tthe defendant was, keeper or driver, so lets allege both!
3) No explanaation of where indeminty costs can be leivied against a keeper
4) No explanation of how theyre purusing the keeper (POFA? Who knows, they havent said!)

In short, its basically the same

NOtice they have 1080 characters and theyve used less than half.

Posted by: Umkomaas Fri, 23 Mar 2018 - 08:05
Post #1369336

QUOTE
NOtice they have 1080 characters and theyve used less than half.

94 words to be precise. Is that all they can muster? A complete poverty of understandable information about their case against you.

Posted by: nosferatu1001 Fri, 23 Mar 2018 - 10:07
Post #1369350

Characters, not words, is the measure here wink.gif
ABout 400 is their usual effort. WOeful and pathetic, and negates theri argument that the MCOL system doesnt allow them much space - you opoint out they didnt even use all the space they were given!

Posted by: emergencychimp Thu, 5 Apr 2018 - 18:28
Post #1372148

Draft defence. Thoughts? I wasn't sure to add in that a permit was located once it became clear one was needed.

Statement of Defence

It is admitted that Defendant is the registered keeper of the vehicle in question.
However the Claimant has no cause of action against the Defendant on the following grounds:-

1. This Claimant has not complied with pre-court protocol (as outlined in the new Pre Action Protocol for Debt Claims, 1 October 2017). As an example as to why this prevents a full defence being filed at this time, a parking charge can be for trespass, breach of contract or a contractual charge. All these are treated differently in law and require a different defence. The wording of any contract will naturally be a key element in this matter, and a copy of the alleged contract has never been provided to the Defendant.
a. There was no complaint "Letter before County Court Claim", under the Practice Direction
b. This is a speculative serial litigant, issuing a large number of "draft particulars". The badly mail-merged documents contain very little information
c. The Schedule of Information is sparse of detailed information
d. The Claim Form Particulars were extremely sparse and divulged no cause of action nor sufficient detail. The claimant had the opportunity to use 1080 characters and has used less than half of what is available to them.
It is clear the claimant does not know whether the defendant was the driver or the keeper and so is alleging both. There is no explanation of where indemnity costs can be levied against a keeper.

Furthermore, the Claim Form Particulars did not contain any evidence of contravention or photographs. These documents, and the "Letter before County Court Claim" should have been produced, pursuant to paragraph 6 of the Practice Direction - Pre Action Conduct. This constitutes a deliberate attempt to thwart any efforts to defend the claim or to "take stock", pursuant to paragraph 12 of the Practice Direction. Again, this totally contradicts the guidance outlined in the new Pre-Action Protocol for Debt Claims (2017), the aims of which are:
i. "Early engagement and communication between the parties, including early exchange of sufficient information about the matter to help clarify whether there are any issues in dispute
ii. enable the parties to resolve the matter without the need to start court proceedings, including agreeing a reasonable repayment plan or considering using an Alternative Dispute Resolution (ADR) procedure
iii. encourage the parties to act in a reasonable and proportionate manner in all dealings with one another (for example, avoiding running up costs which do not bear a reasonable relationship to the sums in issue) and
iv. support the efficient management of proceedings that cannot be avoided".
e. The Defence therefore asks the Court to strike out the claim as disclosing no cause of action and having no reasonable prospect of success as currently drafted
f. Alternatively, the Defendant asks that the Claimant is required to file Particulars with Practice Directions and include at least the following information:
i. Whether the matter is being brought for trespass, breach of contract or a contractual charge, and an explanation as to the exact nature of the charge
ii. A copy of any contract it is alleged was in place (e.g. copies of signage)
iii. How any contract was concluded (if by performance, then copies of signage maps in place at the time)
iv. Whether keeper liability is being claimed, and if so copies of any Notice to Driver / Notice to Keeper
v. Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter
vi. If charges over and above the initial charge are being claimed, the basis on which this is being claimed
vii. If interest charges are being claimed, the basis on which this is being claimed.
g. Once these Particulars have been filed, the Defendant asks for a reasonable time to file another defence.

2. The Claimant failed to meet the Notice to Driver and Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012. Absent such a notice served within 14 days of the parking event and with fully compliant statutory wording, this Claimant is unable to hold me liable under the strict 'keeper liability' provisions!
3.1. Schedule 4 also states that the only sum a keeper can be pursued for (if Schedule 4 is fully complied with, which it was not, and if there was a "relevant obligation" and "relevant contract", fairly and adequately communicated, which there was not) is the sum on the Notice to Keeper.
2.1.1) The claimant has no right to assert that the defendant is liable based on !!!8216;reasonable assumption!!!8217;. PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, "There is no !!!8216;reasonable presumption!!!8217; in law that the registered keeper of a vehicle is the driver and operators should never suggest anything of the sort"(2015).

3. The Defendant was not the driver of the vehicle on the date in question. The Claimant is put to strict proof.

3.1. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant suggests that the Claimant is therefore limited to pursuing the keeper in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA").

3.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
3.2.1. There was a 'relevant obligation' either by way of a breach of contract, trespass or other tort; and 4.2.2. That it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
It is not admitted that the Claimant has complied with the relevant statutory requirements.

3.3. To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.

4. The Claimant has provided no evidence, photographic or otherwise that the vehicle is indeed parked.

5. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. As far as I can ascertain, based upon the very vague particulars of claim and complete lack of evidence and photographs, and without having been furnished with the alleged signage "contract", none of this applies in this material case. The claimant's vehicle was parked in a clearly marked visitor bay, under a sign that read 'Private property - Strictly residents parking only' making no mention of a required permit.

6. In the absence of any proof of adequate signage contractually bound the Defendant then there can have been no contract and the Claimant has no case
a. The Claimant is put to strict proof at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs
b. In the absence of strict proof I submit that the Claimant was committing an offence by displaying their signs and therefore no contract could have been entered into between the driver and the Claimant
c. Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case:
i. Sporadic and illegible (charge not prominent nor large lettering) of site/entrance signage - breach of the POFA 2012 Schedule 4 , BPA Code of Practice and Independent Parking Committee (IPC) Code of Practice and no contract formed to pay any clearly stated sum
ii. It is believed the signage was not lit and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Consumer Rights Act 2015 in requiring a huge inflated sum as "compensation" from by an authorised party using the premises as intended
iii. No promise was made by the driver that could constitute consideration because there was no offer known nor accepted. No consideration flowed from the Claimant
iv. The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.
d. BPA CoP breaches - this distinguishes this case from the Beavis case:
i. The signs were not compliant in terms of the font size, lighting or positioning
ii. The sum pursued exceeds £100
iii. There is/was no compliant landowner contract

7. No standing - this distinguishes this case from the Beavis case:
a. It is believed Parking and Property Management Ltd do not hold a legitimate contract at this car park. As an agent, the Claimant has no legal right to bring such a claim in their name which should be in the name of the landowner.

8. If the court believes there was a contract (which is denied) this is just the sort of 'simple financial contract' identified at the Supreme Court as one with an easily quantifiable loss (i.e. the tariff), identified as completely different from the complex 'free parking licence' arrangement in Beavis.

8.1 Where loss can be quantified, the 'complex' and 'completely different' Beavis decision is inapplicable, as was found in ParkingEye Ltd v Cargius, A0JD1405 at Wrexham County Court.

8.2 At the Court of Appeal stage in Beavis, pay-per-hour car parks were specifically held by those Judges (in findings not contradicted in the Supreme Court later) as still being subject to the "penalty" rule, with the potential for the charge to be held to be wholly disproportionate to the tariff, and thus unrecoverable.

9. There is no obligation in law for the driver to identify the driver of the vehicle and this was confirmed in the POPLA Annual Report 2015 by parking expert barrister and Lead Adjudicator, Henry Greenslade, who also clarified the fact that a registered keeper can only be held liable under the POFA Schedule 4 and not by presumption or any other legal argument.

10. The claimant has yet to respond to a letter requesting a compliant letter before claim e-mail by the defendant and sent to Gladstones Solicitors Ltd on the (date).

11. The amount is a penalty, and the penalty rule is still engaged, so can be clearly distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes for the following reasons:-
a) The Claimant has no commercial justification
b) The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question
c) The amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable.

12. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landholder can pursue a case under the tort of trespass, not this Claimant, and as the Supreme Court in the Beavis case confirmed, such a matter would be limited to the landholder themselves claiming for a nominal sum.

13. Save as expressly mentioned above, the Particulars of Claim is denied in its entirety. It is denied that the Claimant is entitled to the relief claimed or any relief at all.
In my opinion, there is a better alternative than legal proceedings, namely that we utilise the services of a completely independent Alternative Dispute Resolution service suited to parking charges. This does not include the IAS appeal service - which lacks any transparency and possibly any independence from the IPC - unlike the alternative offered by the British Parking Association, POPLA, which is transparent and has been shown to be independent.

Therefore I ask the court to respectfully strike out this claim with immediate effect.
I believe that the facts stated in this Statement of defence.

Posted by: SchoolRunMum Thu, 5 Apr 2018 - 19:58
Post #1372189

You've copied some stuff that is VERY wordy, so remove this waffle for starters:

QUOTE
...the aims of which are:
i. "Early engagement and communication between the parties, including early exchange of sufficient information about the matter to help clarify whether there are any issues in dispute
ii. enable the parties to resolve the matter without the need to start court proceedings, including agreeing a reasonable repayment plan or considering using an Alternative Dispute Resolution (ADR) procedure
iii. encourage the parties to act in a reasonable and proportionate manner in all dealings with one another (for example, avoiding running up costs which do not bear a reasonable relationship to the sums in issue) and
iv. support the efficient management of proceedings that cannot be avoided".
e. The Defence therefore asks the Court to strike out the claim as disclosing no cause of action and having no reasonable prospect of success as currently drafted
f. Alternatively, the Defendant asks that the Claimant is required to file Particulars with Practice Directions and include at least the following information:
i. Whether the matter is being brought for trespass, breach of contract or a contractual charge, and an explanation as to the exact nature of the charge
ii. A copy of any contract it is alleged was in place (e.g. copies of signage)
iii. How any contract was concluded (if by performance, then copies of signage maps in place at the time)
iv. Whether keeper liability is being claimed, and if so copies of any Notice to Driver / Notice to Keeper
v. Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter
vi. If charges over and above the initial charge are being claimed, the basis on which this is being claimed
vii. If interest charges are being claimed, the basis on which this is being claimed.
g. Once these Particulars have been filed, the Defendant asks for a reasonable time to file another defence.



Go through it and read it with a fine tooth comb, asking yourself what's being said, removing repetition & waffle and removing stuff that makes no sense for this case, for example, 8.2 talks about a pay-per-hour tariff!

I saw nothing in the defence (and it should be near the top) telling the Judge this:

QUOTE
the driver got a parking charge in a residential car park in the time from leaving the car in a visitor space and going up to grab a parking permit from an outgoing tenant.


...and that lends itself to using Jopson v Homeguard, like plenty of the other residential cases on this forum.

Search for Jopson defence


Posted by: emergencychimp Thu, 5 Apr 2018 - 20:09
Post #1372196

Thanks. I was unsure about some of the waffle but I saw a lot of other defences stick it in. Will remove it and have a look at the Jopson defence.

Posted by: SchoolRunMum Thu, 5 Apr 2018 - 20:13
Post #1372199

Read this concise defence written by MSE poster Johnersh, who is a solicitor:

http://forums.moneysavingexpert.com/showthread.php?p=72977032#post72977032

It has Jopson and you can copy it/adapt it, that was his intention when he posted it, that people use it but always adapt to suit, not blindly copy verbatim.

Posted by: emergencychimp Thu, 5 Apr 2018 - 22:42
Post #1372241

It's a nice and concise defence for sure but can I really use the main parts in paragraph 6 and 7 as I have no lease to rely on and provide.

This is how is stands after I've chopped some lease stuff out.

Also, what's with the !!!8216;relevant obligation!!!8217 has some formatting been broken or something?

DEFENCE

Preliminary
1. The Particulars of Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.

2. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct. The Defendant further notes the Claimant's failure to engage in pre-action correspondence in accordance with the pre-action protocol and with the express aim of avoiding contested litigation.

Background
3. It is admitted that at all material times the Defendant is the registered keeper of vehicle registration mark XXZZZ which is the subject of these proceedings. The vehicle is insured with [provider] with [number] of named drivers permitted to use it.

4. It is admitted that on [date] the Defendant's vehicle was parked at [location]

5. It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.
5.1. The Claimant has provided no evidence (in pre-action correspondence or otherwise) 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")
5.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
5.2.1. there was a !!!8216;relevant obligation!!!8217; either by way of a breach of contract, trespass or other tort; and
5.2.2. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
It is not admitted that the Claimant has complied with the relevant statutory requirements.

5.3. To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.

Authority to Park and Primacy of Contract
6. It is denied that the Defendant or lawful users of his/her vehicle were in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the Defendant permitting the above mentioned vehicle to be parked by the current occupier and leaseholder of [address], whose tenancy agreement permits the parking of vehicle(s) on land. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms. The lease terms provide the right to park a vehicle in the relevant allocated bay, without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle or the requirement to display a parking permit.

7. The Defendant avers that the operator!!!8217;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. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial.

7. Accordingly it is denied that:
7.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant
7.2. there was any obligation (at all) to display a permit; and
7.3. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

Alternative Defence - Failure to set out clearly parking terms
8. In the alternative, the Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to consider the imposition of a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.
8.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate.
8.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;
8.1.2. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee!!!8217;s ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and
8.1.3. The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3
8.2. 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. The penalty charge is, accordingly, unconscionable in this context, with ParkingEye distinguished.
8.3 As the signage was not clear, no permit was initially displayed however, the driver of the vehicle sought out the parking permit when it became clear one was needed and was displayed in the vehicle within around 10 minutes. By this time, a parking charge had been put on the vehicle.

9. It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking parking management. The Claimant has provided no proof of any such entitlement.

10. It is denied that the Claimant has any entitlement to the sums sought.

11. It is admitted that interest may be applicable, subject to the discretion of the Court on any sum (if awarded), but it is denied that interest is applicable on the total sums claimed by the Claimant.

STATEMENT OF TRUTH
I confirm that the contents of this Defence are true.

Posted by: The Rookie Fri, 6 Apr 2018 - 08:52
Post #1372298

You don't need the statement of truth as its a defence not a statement, that comes later. Not sure why it was on that template.

Posted by: emergencychimp Fri, 6 Apr 2018 - 13:59
Post #1372422

So do people recommend to go with the Johnersh defence and remove the statement of truth as opposed to my initial defence?

Posted by: Eljayjay Fri, 6 Apr 2018 - 14:37
Post #1372433

I often comment on residential parking cases, but I have hesitated to do so in your case because, strictly speaking, it is not in my opinion a residential parking case. I regard a residential parking case as one where the contents of a lease or tenancy agreement trump a johnny-come-lately parking scheme.

You appear to be a stranger to the lease, i.e. you are not a party to it. You cannot, therefore, take any comfort from the terms of the lease unless you can claim that you were authorised to park in the residential carpark by someone who had the right under the lease to grant that authorisation to you.

Are you confident that, by the time you need to prepare your witness statement and submit your evidence, you will be able to provide a copy of the lease and explain how in accordance with its terms you were authorised to park in the carpark?

I have seen cases on the forum where defences have failed because, paraphrasing, the defendant has said "I have rights under a lease" and the judge has said "no, you do not, it is not your lease".

Laura Jopson won her case because she was a leaseholder delivering furniture to her own flat. She was not a visitor collecting a piece of paper.

I really do not wish to put a dampener on your defence but, as they say, forewarned is forearmed. Await the comments of others before deciding what to do.

Posted by: emergencychimp Fri, 6 Apr 2018 - 16:46
Post #1372463

Indeed. This is my concern with the Jopson defence. I very much doubt I can provide a copy of the lease. What I do know is the current tenant's (at the time of receiving the PCN) tenancy agreement started sometime in February 2016. The parking permit scheme came into effect March 2017.

Posted by: Eljayjay Fri, 6 Apr 2018 - 17:56
Post #1372472

You could obtain a copy of the lease from the Land Registry. On its own, however, it probably would not do you much good. As indicated in my last post, you would need to show how you gained the right to park under the lease without being a party to it.

I became interested in residential parking matters because my kids own a flat with an allocated parking space. Their lease contains a Tenant's covenant "Not to use the Parking Space other than for the parking of a private motor car or private motorcycle which has an MOT certificate if required and which is in the regular use of the Tenant or other occupier of the Property".

If the lease for the flat where your vehicle was parked says something similar, it would not help you because (presumably) the vehicle was not "in the regular use of the Tenant or other occupier of the Property".


Posted by: SchoolRunMum Fri, 6 Apr 2018 - 21:45
Post #1372507

Your defence does need signing & dating and confirming that the facts within it are true - don't just leave it blank/unsigned/dated.

Posted by: bargepole Sat, 7 Apr 2018 - 08:05
Post #1372559

QUOTE (The Rookie @ Fri, 6 Apr 2018 - 09:52) *
You don't need the statement of truth as its a defence not a statement, that comes later. Not sure why it was on that template.


Rubbish. Defences do have to be verified by a Statement of Truth.

Practice Direction 15:

2.1 Part 22 requires a defence to be verified by a statement of truth.

That's why it's pre-printed on form N9B

Posted by: emergencychimp Sat, 7 Apr 2018 - 12:04
Post #1372606

OK. Thanks for confirming.

I think I'll go with the Johnersh defence. It contains the same stuff as my initial defence but more concise. I'm not sure about

QUOTE
The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial.


as I most likely won't have access to the lease but I'm not sure of any other relevant judgments.

I will be sending this in today so if anyone has anything else to add.

Posted by: SchoolRunMum Sun, 8 Apr 2018 - 00:36
Post #1372731

You definitely need to use Jopson, so I would not be removing that bit!

If you have, never mind, as long as you have made the point that the car was only stopped for the time it took to get the permit, you will be including the Jopson transcript in with your evidence, later, at Witness Statement stage.

Posted by: Eljayjay Sun, 8 Apr 2018 - 10:24
Post #1372755

There may be all sorts of reasons as to why emergencychimp can defend the claim successfully; however, in my honest opinion, the Jopson case does not help emergencychimp in any way, shape or form.

One of the essential points acknowledged by the Court in the Jopson case was that "Miss Jopson is the owner of a leasehold flat on the third floor of the property. She purchased this flat in April 2015 from Places for People Homes Limited. It is located on a private estate. The lease which she bought included a right-of-way “with or without vehicles over the roadways within the estate”. Wolverton Park Road was one of those roadways.".

None of this applies in emergencychimp's situation. emergencychimp has no direct rights under a lease to enter the estate with a vehicle (because emergencychimp does not have a lease) and has provided no evidence of having any indirect rights to enter the estate with a vehicle.

Frankly, although it may not be what others want to hear, I think it is ridiculous to suggest that an anology between emergencychimp's case and the Jopson case can be drawn.

Posted by: ostell Sun, 8 Apr 2018 - 11:25
Post #1372766

I think the comment made by the judge in the Jopson case about modern living would be impossible if it were not possibly for people to park close to their residence. (or words to that effect) would be highly relevant.

Posted by: Eljayjay Sun, 8 Apr 2018 - 12:43
Post #1372804

As already mentioned "Laura Jopson won her case because she was a leaseholder delivering furniture to her own flat. She was not a visitor collecting a piece of paper.".

The case revolved around Laura Jopson's rights under her lease. In the transcript of the judgement, the Judge made it clear that "the respondent was not in any position unilaterally to override the right of access which the claimant had bought when she purchased the lease, and that right of access permitted short incidental stops for the purpose of access to her flat."

As emergencychimp has no lease, the parking operator is not overriding any right under a lease. There is none.

Put simply, this is not a residential parking case where the terms set-out in a resident's lease have primacy over the parking contractor's terms. emergency chimp is not a resident. Fundamentally, comparing it with the Jopson case is not comparing like with like.

Visitors do not have an unfettered right to park in residential carparks.

I really do believe that the advice to emergencychimp needs to concentrate on other issues which are relevant to the case.

Posted by: nosferatu1001 Sun, 8 Apr 2018 - 13:36
Post #1372822

It also points out that stopping unloading etc are not parking. It's also ridiculous to claim that a vehicle can be parked, the driver get s permit, and somehow get a ticket because that permit was not already present. That is also unworkable and would make modern life untenable if you could not be visited

The vehicle has absolute rights to enter as it is on a roadway accessible to the public and has no barriers.

Posted by: Eljayjay Sun, 8 Apr 2018 - 14:42
Post #1372842

nosferatu1001

I do not see how what you say can apply in all situations. I wish I could. There are, however, plenty of houses and flats with no parking facilities and those, which have them, do not necessarily have visitor parking facilities.

For example, I am very familiar with a block of flats where 29 of the 42 flats have allocated parking spaces. The other 13 flats have no parking spaces whatsoever. The leases make it abundantly clear that vehicular access is only available to the residents of the 29 flats with allocated spaces for the purpose of parking in their own spaces. Strictly speaking, therefore, neither the residents of the other 13 flats nor visitors to any of the 42 flats are able to bring vehicles on to the land.

Laura Jopson's rights were not limited in the same way. Her lease gave her a right of way "with or without vehicles over the roadways within the estate".

In addition, the judgement in her case actually said "Whether a car is parked, or simply stopped, or left for a moment while unloading, or (to take an example discussed in argument ) accompanying a frail person inside, must be a question of fact or degree.". It did not give random visitors carte blanche to park where they choose in residential carparks.

The judgement went on to give examples where the Judge considered it to be reasonable for non-residents to leave their vehicles in the carpark, all of which involved heavy/awkward loads. The examples were "A milkman leaving his float to carry bottles to the flat would not be parked. Nor would a postman delivering letters, a wine merchant delivering a case of wine, and nor, I am satisfied, a retailer's van, or indeed the appellant, unloading an awkward piece of furniture.".

It gave no comfort to a visitor collecting a single piece of paper. Furthermore, given that, in this case, the piece of paper was a parking permit, the OP can hardly argue that he/she was unaware that parking restrictions were in force on the estate.

Did the parking permit (after it had been obtained) give the driver any right to park? Did the parking permit apply to the parking space where the driver parked? I do not believe these questions have been asked or answered.


Posted by: kommando Sun, 8 Apr 2018 - 15:32
Post #1372852

And is a visitor to get a permit without first parking and going for the permit, in council ticketing in resident only parking areas vistors are allowed time to go to the resident and return with the permit. By allowing vistors to park with a permit there must be an allowance for the permit to be obtained without them having to do a 'beam me up a permit Scotty'.

Posted by: emergencychimp Sun, 8 Apr 2018 - 16:08
Post #1372866

QUOTE (Eljayjay @ Sun, 8 Apr 2018 - 15:42) *
The judgement went on to give examples where the Judge considered it to be reasonable for non-residents to leave their vehicles in the carpark, all of which involved heavy/awkward loads. The examples were "A milkman leaving his float to carry bottles to the flat would not be parked. Nor would a postman delivering letters, a wine merchant delivering a case of wine, and nor, I am satisfied, a retailer's van, or indeed the appellant, unloading an awkward piece of furniture.".

That's interesting. In this case, the driver was just doing their job too. A job that requires going to different addresses and parking abiding by any parking signs, collecting permits where required. Whether a judge would agree to the similarities I don't know.

QUOTE (Eljayjay @ Sun, 8 Apr 2018 - 15:42) *
Furthermore, given that, in this case, the piece of paper was a parking permit, the OP can hardly argue that he/she was unaware that parking restrictions were in force on the estate.

I would say that it was perfectly OK to argue that the driver was not not aware parking restrictions were in force on the site. The site is divided into two areas. The driver has been parking on the site since 2012, in the half that had no parking restrictions. On this instance, the driver parked in the usual area under a sign that read 'Private property - Strictly residents parking only' No mention a permit being required. Whilst going through paperwork at the property, it became apparent that permits were required since March 2017 so it was put on display in the vehicle.

QUOTE (Eljayjay @ Sun, 8 Apr 2018 - 15:42) *
Did the parking permit (after it had been obtained) give the driver any right to park? Did the parking permit apply to the parking space where the driver parked? I do not believe these questions have been asked or answered.

I don't see why it wouldn't. The parking permit was a resident permit so in the eyes of the parking company, whatever vehicle the permit is in, is a resident. Other residents use these visitor spaces and display their resident permit. This has not been an issue for 100s of other occasions.


Posted by: Eljayjay Sun, 8 Apr 2018 - 17:51
Post #1372877

I am not trying to dissuade you from defending the claim. I am simply trying to make sure that your defence does not go off at a tangent.

Just in case I have got this completely wrong, let me state what I think the circumstances were:-

1. The driver was on an errand to collect a parking permit from a housing development.

2. The driver was not a resident but...

3. The driver parked under a sign which read 'Private property - Strictly residents parking only'.

4. The driver was not the leaseholder of the flat - I presume it was a flat - being visited.

5. The driver was a visitor on business, nothing more and nothing less.

6. The driver is unfamiliar with the terms governing parking contained in the development's leases.

7. The driver knew that parking restrictions were in operation at the site.

8. Even though details of the parking regime were available in the files at the drive's place of business, the driver had not equipped him/herself with any detailed knowledge of the terms attaching to parking permits introduced by the parking scheme in operation at the development except that...

9. The driver knew that the parking permit being collected was a parking permit intended for use by a resident.

10.The driver did not seek (or, at least, has no evidence of having sought and received) permission to park from any person in a position of authority in the development.

If points 1 to 10 above are right, I really do not believe they are a good basis for building a defence based on Jopson. Laura Jopson's lease gave her a right of way "with or without vehicles over the roadways within the estate". You cannot claim the same right under a lease.

I think it is pretty obvious - but I do not know - that the Judge in the Jopson case deliberately chose jobs involving heavy and/or awkward loads, particularly as he went on to say "Any other approach would leave life in the block of flats close to unworkable". An individual having to walk from a parking space available to the public to collect a piece of paper might make life less easy for that individual, but it would not "leave life in the block of flats close to unworkable".

At the end of the day, it is entirely your choice what you put into your defence. Frankly, however, I believe that even a lawyer very wet behind the ears could drive a coach and horses through a defence based on Jopson.

I shall now bow out of making further posts in your thread on this particular matter.

Whatever defence you choose to submit, I do wish you good luck.

Posted by: SchoolRunMum Sun, 8 Apr 2018 - 22:20
Post #1372911

QUOTE (kommando @ Sun, 8 Apr 2018 - 16:32) *
And is a visitor to get a permit without first parking and going for the permit, in council ticketing in resident only parking areas vistors are allowed time to go to the resident and return with the permit. By allowing vistors to park with a permit there must be an allowance for the permit to be obtained without them having to do a 'beam me up a permit Scotty'.


This ^^^

I say use the Jopson judgment as evidence - because I think the comments by HHJ Charles Harris do have some application here, arguable based on 'fact and degree' - and if the Judge doesn't like it, move on to Grace Periods. The fact a permit cannot always be in the hands of the person parking, if the permit is indoors in the flat. Hence why a reasonable grace period must be allowed to fetch it.

Posted by: nosferatu1001 Mon, 9 Apr 2018 - 09:43
Post #1372938

"For example, I am very familiar with a block of flats where 29 of the 42 flats have allocated parking spaces. The other 13 flats have no parking spaces whatsoever. The leases make it abundantly clear that vehicular access is only available to the residents of the 29 flats with allocated spaces for the purpose of parking in their own spaces. Strictly speaking, therefore, neither the residents of the other 13 flats nor visitors to any of the 42 flats are able to bring vehicles on to the land"

Wrong. Leases are between lessor and lessee. They do not govern anyone elses acttions. They cannot do so, bwecause other parties have no sight of the lease

If the roadway is accessible to the public then the RTEs apply, which gives an implicit right of access to all traffic, vehicular and foot. A lease cannot remove that, because of the above.

If the signs state a VISITORs permit must be displayed, then a VISITOR msut be allowed time to get said permit. Otherwise 1) modern life would be impossible 2) no contract can possibly be formed unless sufficient time is given to get the permit. The permit cannot be expected to be already in the vehicle of A VISITOR, and Jopson makes it clear that from time to time visitors are able to use spaces for various tasks. Not just heavy goods - 1 milk bottle being dleivered is not parked. Stopping to collect the permit is not parked.

Posted by: Eljayjay Mon, 9 Apr 2018 - 11:41
Post #1372973

Sorry, I couldn't let nos's comments go.

I did not say that visitor parking was governed by the leases at the block of flats with which I am very familiar. There is signage on the land making it clear that parking on the land is not available for non-residents.

In addition to that, there are other things which I believe nos and some of the contributors to your thread have still not grasped. As you did not come back about my points 1 to 10 in my post yesterday, I presume that they were correct. On that basis, I am right about the fact that you were collecting a resident's parking permit not to park as a resident, but simply to take it away from the outgoing tenant in order to give it an incoming tenant.

That being so, nos's references to "VISITOR" - his capitalisation, not mine - seem to be misplaced.

I could not find what I was looking for in the Jopson transcript yesterday but I have found it today. In describing what, in the Judge's view, did not constitute "parking", the words actually used by him were "pausing for a few moments or minutes to enable passengers to alight or for awkward or heavy items to be unloaded".

That being so, it seems that nos's "1 milk bottle" defence probably wouldn't cut it.

I have no doubt at all that the advice given by the regular contributors to this forum is not only well-intentioned but also usually extremely pertinent and good. Before taking any advice from them or me, however, you have to satisfy yourself whether and why the advice is right.

Posted by: emergencychimp Mon, 9 Apr 2018 - 12:12
Post #1372976

Sorry, I was busy yesterday and wasn't able to respond to your 10 points.

QUOTE (Eljayjay @ Sun, 8 Apr 2018 - 18:51) *
Just in case I have got this completely wrong, let me state what I think the circumstances were:-

1. The driver was on an errand to collect a parking permit from a housing development.
No. The driver was meeting the outgoing tenant, collecting keys.

2. The driver was not a resident but...
Correct

3. The driver parked under a sign which read 'Private property - Strictly residents parking only'.
Correct

4. The driver was not the leaseholder of the flat - I presume it was a flat - being visited.
Correct

5. The driver was a visitor on business, nothing more and nothing less.
Correct

6. The driver is unfamiliar with the terms governing parking contained in the development's leases.
The driver was familiar with the terms governing parking at the site since 2012. But not since they changed in March 2017.

7. The driver knew that parking restrictions were in operation at the site.
The driver knew parking restrictions were in operation on half of the site. OPC parking restrictions signs at the entrance to that area which was not parked in. The area parked in has a sign at the entrance that says 'Private Property - Strictly residents parking only'

8. Even though details of the parking regime were available in the files at the drive's place of business, the driver had not equipped him/herself with any detailed knowledge of the terms attaching to parking permits introduced by the parking scheme in operation at the development except that...
No. 99% of the time parking details are not available to the driver prior to arriving at a site. The driver arrives at a site, identifies any signage that states a permit is needed. Goes to the property to pick up the permit. If there is no permit, the driver then parks in closest car park/metered bay/on road e.t.c

9. The driver knew that the parking permit being collected was a parking permit intended for use by a resident.
No. The primary aim was picking up keys. No prior knowledge of permit.

10.The driver did not seek (or, at least, has no evidence of having sought and received) permission to park from any person in a position of authority in the development.
Driver has been parking in visitor bays since 2012 and had no reason to seek permission to park as the sign has been the same since 2012.

If points 1 to 10 above are right, I really do not believe they are a good basis for building a defence based on Jopson. Laura Jopson's lease gave her a right of way "with or without vehicles over the roadways within the estate". You cannot claim the same right under a lease.


Posted by: nosferatu1001 Mon, 9 Apr 2018 - 12:17
Post #1372978

Your comment, which I quoted, was "The leases ...or visitors to any of the 42 flats are able to bring vehicles on to the land" So you did actually say that!

This is incorrect. Totally and utterly. The leases cannot restrict what visitors can do. Visitors are not a party ot the lease. They are complete strangers to the lease.

The OP was defeinitely not a resident, and was in fact a visitor. A visitor on business, but still a visitor.

TMA2004 also defines what parking is, and Jopson is on all fours with that.

Posted by: Eljayjay Mon, 9 Apr 2018 - 16:59
Post #1373041

nos,

What I actually said was "The leases make it abundantly clear that vehicular access is only available to the residents of the 29 flats with allocated spaces for the purpose of parking in their own spaces." In a separate sentence, I then went on to make a comment which referred to visitors. What I have made clear since is that there are signs which forbid parking by visitors.

Changing the meaning of something by the inappropriate use of points of ellipsis is utterly deplorable behaviour. It is not what I expect from you, nos.

It has always been my understanding that the OP was a visitor on business. In my opinion, the fact that the OP was on business gives a very slight nod in the direction of Jopson. After that, however, I believe Jopson completely runs out of steam in this case: unlike Laura Jopson, the OP is not a leaseholder; and unlike Laura Jopson, the OP had no need to leave the vehicle to unload awkward or heavy items.

In addition, by parking in an area with a sign saying 'Private Property - Strictly residents parking only', the parking permit, which the OP had gone to collect, was not going to help (because, if it was a resident’s permit, it did not apply to the OP who was a visitor and, if it was a visitor’s permit, it did not apply to the residents only area where the OP was parked).

Given the forbidding sign, I would have thought a defence based on that might be a better way to go.

In addition, if the OP has a copy of the parking agreement, has he/she checked whether it has been signed properly by or on behalf of the landowner? As I am sure you know, Parking & Property Management do fail on occasions to make sure that they have entered into a contract with clients who are what they purport to be.

I hope you will not be offended when I say that you do have a habit of making bald statements. I tend to regard bald statements as opinions dressed up as fact. I do enjoy reading what you write, but it would be so much more helpful to me and, I am sure, others if you could be at least a little more explanatory.


Posted by: emergencychimp Mon, 9 Apr 2018 - 17:15
Post #1373044

I am currently working on getting a copy of the parking agreement. The management company are being very unhelpful and refusing to tell me anything so I need to send them a letter.

I have received an email from Gladstones with the usual crap about not needing an oral hearing. Along with an N180 - Directions Questionnaire (Small claims track) - with special direction PDF and an N180 Special direction word doc.

It's not clear how I don't consent to this and have a proper hearing at my home court. What do I do here? Should I reply to the e-mail? Asking why I haven't received a LBC for instance?

QUOTE
We act for the Claimant and have notified the Court of our Client’s intention to proceed with the claim.

Please find attached a copy of our Client’s completed Directions Questionnaire, which will be filed with the court upon their request. You will note we intend to request a special direction that the case be dealt with on the papers and without the need for an oral hearing

This request is sought simply because the matter is in our Client’s opinion relatively straightforward and the costs incurred by both parties for attending an oral hearing would be disproportionate.

You will note our Client has elected not to mediate. Its decision is not meant to be in any way obstructive and is based purely on experience, as mediation has rarely proven beneficial in these types of cases. Notwithstanding this, our Client would be happy to listen to any genuine payment proposals that you wish to put forward.

Posted by: Eljayjay Mon, 9 Apr 2018 - 19:16
Post #1373078

Insofar as the parking agreement and other documents are concerned, you could try a letter to Gladstones – by first class mail over the counter at a Post Office getting a free certificate of posting – along the following lines:-


Dear Sirs,

As you know, I have received a County Court claim made by you on behalf of your client, Parking and Property Management Limited, in relation to a park event <give references, date, etc. here>

You also know from my letter to you of xxxx xxxxxxxxx xxxx that your letter before claim dated xxxx xxxxxxxxx xxxx failed to meet the requirements of the Pre-Action Protocol. I did, therefore, request a compliant version of the letter before claim. You did, however, fail to respond to that request and, instead, pressed on with the claim without issuing a valid letter before claim.

None of this alters the fact that the Protocol requires us to narrow the issues between us.

I am, therefore, now writing to request the following documents which I would have requested in response to a compliant letter before claim if you had sent a compliant version to me.

the parking agreement between your client and the owner or occupier of the land purporting to grant the right to your client to charge for parking;

the site plan provided by your client to its accredited trade association;

a copy of the written contract for the alleged debt;

the accredited trade association’s code of practice to which your client claims to adhere;

if there is a lease governing parking on the land, a copy of the lease;

if a lease exists and any rules or regulations have been made in accordance with its provisions to allow your client to operate a parking scheme on the land:-

(a) a copy of those rules or regulations duly signed, etc. by the person(s) who made them; and
(b) a note of the specific provisions in the lease in accordance with which those rules or regulations were made;

if a lease exists and it granted individual rights to park on the land to a particular person (e.g. the lessee), a note of the name and address of that person and a copy of the instrument which either transferred those individual rights from that person to your client or permitted them to be shared by that person and your client; and

a transcript of each County Court judgement in all previous cases in which your Company was the Claimant and, as such, sought to recover a charge for parking on the land.

Of course, as I have great respect for the Pre-Action Protocol for Debt Claims and, particularly, its aims as expressed in its paragraph 2, if you would like to provide copies of the above documents now, I shall gladly reconsider my position on receipt of them.

Yours faithfully,


I need to remind myself about the questions on a DQ which you now need to answer.

Posted by: Eljayjay Mon, 9 Apr 2018 - 19:42
Post #1373085

The bit of Gladstones wording quoted by you is their bog standard stuff.

Obviously, fill in the bits at the top and your personal details.

A1 = No

C1 = Yes

D1 = The name of your chosen County Court and, if it is your local County Court, “I am a litigant in person and this is my local County Court”.

D2 = No

D3 = If you will be your only witness, 1. Otherwise, as appropriate.

D4 = If you and/or your witnesses have any holidays, etc. planned or booked, put them down.

I imagine the answer to the interpreter question will be No.

Obviously, fill in the bits at the bottom.

Check that my answers make sense, e.g. I haven't put Yes where I should have put No or similar.

Email the completed form to the Court to which the claim has been allocated and copy the email to Gladstones. In the email, state "I do not agree that the case be dealt with on the papers and without the need for an oral hearing".

Posted by: emergencychimp Mon, 9 Apr 2018 - 19:46
Post #1373088

Perfect. Thanks. Should I give them a time limit to get it all to me? Say 14 days from the date of my letter?

Also, I have not received the DG yet. Just Gladstones completed one and dodgy redacted N159 which Gladstones are requesting the court send me.

Also, I don't know if this is relevant, but on the DQ that Gladstones have completed, it is not properly signed with a signature, just a typed 'Gladstones Solicitors' I guess this is different from other forms where there must be a proper signature?

Posted by: SchoolRunMum Mon, 9 Apr 2018 - 20:48
Post #1373110

Solicitors can sign letters & forms with the firm's name only.

You can easily download a DQ online from the courts.


Posted by: nosferatu1001 Tue, 10 Apr 2018 - 10:00
Post #1373215

SImple covering letter, objecting to the hearing being on papers only. As a consumer you ask that the hearing is at your local court.

Eli - yes there was a seperate sentence. LInked to the first, as the context hadnt altered.

Posted by: emergencychimp Tue, 10 Apr 2018 - 14:15
Post #1373331

OK. So I have a copy of the tenancy agreement for the property the driver was visiting.

I have searched the document and the only things that relate to parking are as follows. No mention of needing a permit.

QUOTE
The tenant will:
Not park any vehicle at the Property that is not in road worthy condition and/or fully taxed.

Keep any garage, driveway or parking space free of oil and to pay for the removal and cleaning of any
spillage caused by any vehicle.

Remove from the Property all vehicles at the end of the Tenancy.

Posted by: nosferatu1001 Tue, 10 Apr 2018 - 14:22
Post #1373338

That says wha tthey cannot do

Look for what they can. Dont just look for the words parking. Read it properly, looking for anything relating to communal areas, etc.

Posted by: emergencychimp Tue, 10 Apr 2018 - 15:46
Post #1373359

I have read it from first to last page. As I said in post 101, that is the only mention of parking. The words 'Permit' (in relation to parking), 'parking permit' nor 'communal' are not present at all in the agreement.

There is this about the superior lease which seems a bit catchall. Not sure if relevant.

QUOTE
SUPERIOR LEASE
THE TENANT WILL:
Comply with all the conditions of any Superior Lease, under which the Landlord owns the Property (if
applicable) save for the payment of ground rent and maintenance charges, and to perform any covenants in
the Superior Lease.

Agree to enter into any Agreement, Deed of Covenant or Licence with the Superior Landlord agreeing to
observe and perform the covenants of the Superior Lease if reasonably required to do so.

Posted by: kommando Tue, 10 Apr 2018 - 16:04
Post #1373364

Any mention of rights to 'Quiet enjoyment', next question is does this extend to an invited visitor.

Posted by: nosferatu1001 Tue, 10 Apr 2018 - 16:12
Post #1373367

Thirdly how can you comply with the superior lease unless you have sight of it. Do you?

Posted by: emergencychimp Tue, 10 Apr 2018 - 16:18
Post #1373369

I've not seen the superior lease, no. I'm not familiar with superior leases.

It does say

QUOTE
THE LANDLORD WILL ENSURE
Where possible, provide a copy of the relevant sections of the Superior Lease to the Tenant at the start of the
Tenancy.


QUOTE
DURING THE TENANCY THE LANDLORD WILL:
Agree that the Tenant paying the Rent and performing and observing the obligations on the Tenant’s part
contained in this Tenancy Agreement shall peaceably hold and enjoy the Property during the Tenancy
without any lawful interruption by the Landlord or any person rightfully claiming under, through or in trust for
the Landlord.


No mention of extending to visitors. It makes sense to me that it is implied as the tenant cannot enjoy the property if their visitors are getting hassled but I guess it doesn't work like that.

Posted by: Eljayjay Tue, 10 Apr 2018 - 17:13
Post #1373381

You can get a copy of the superior lease from the Land Registry. Google OC2. Make sure what you click on is the gov.uk site.

Posted by: kommando Tue, 10 Apr 2018 - 17:40
Post #1373388

QUOTE
No mention of extending to visitors. It makes sense to me that it is implied as the tenant cannot enjoy the property if their visitors are getting hassled but I guess it doesn't work like that.


If you don't raise it then you will never know, if you do raise it then the worst that can happen is the judge says it does not apply, the amount to pay does not increase unless you are being unreasonable, not because the judge does not agree with your reasoning. Compared to some of the rubbish arguments put up by PPC's it looks reasonable to me, how can you be a tenant with rights to quiet enjoyment when you need to worry about inviting visitors with a car possibly parking in a visitor bay. Why provide a bay marked for visitors if they can't be protected by the same right, as long as they are not being a nuisance of course.

Posted by: Eljayjay Tue, 10 Apr 2018 - 18:12
Post #1373393

...but the vehicle was parked in a bay for resident use only.

Does the tenancy agreement say anything about the CONTRACTS (RIGHTS OF THIRD PARTIES) ACT? If so, what?

Posted by: emergencychimp Tue, 10 Apr 2018 - 19:32
Post #1373408

QUOTE
THE TENANT WILL
Not assign, underlet, charge, part with or share possession or occupation of the Property or any part of it
provided always that the Tenant shall be permitted to share the occupation with any person(s) named in the
Particulars as Permitted Occupants on a rent free licence, but such persons shall obtain no benefit from the
Rights of Third Parties Act 1999.

Not cause or permit in or about the Property any act which may be or become a nuisance or annoyance to
neighbours or which may cause the neighbours and third parties loss, damage or distress.

Posted by: Eljayjay Wed, 11 Apr 2018 - 10:38
Post #1373534

Unfortunately, the bit in the tenancy agreement about the rights of third parties does not help you.

What may possibly help you is a clause in the head lease along the following lines:-

CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
A person who is not a party to this lease shall not have any rights under or in
connection with it by virtue of the Contracts (Rights of Third Parties) Act 1999 but
this does not affect any right or remedy of a third party which exists, or is
available, apart from under that Act.

Posted by: Eljayjay Wed, 11 Apr 2018 - 22:40
Post #1373730

As you may know, on the Parking Prankster's website, you will find the transcripts of a number of parking cases (http://www.parking-prankster.com/case-law.html) including the case of Parking Control Management (UK) v Christopher Bull (and two others).

Although the three defendants were leaseholders on the estate where they parked, that was not what resulted in the claims against them being dismissed. On several different occasions, they had parked on roadways on the estate, not in their allocated parking spaces.

There were signs with parking conditions:-

Those parking conditions are stated to be as follows:

“No parking on this roadway at any time. No parking either wholly or partially on paved, landscaped or access areas at any time. Enforcement in operation 24 hours.”

Then in slightly smaller type underneath those one would have thought fairly clear words are these words:

“By parking or remaining at this site otherwise than in accordance with the above you, the driver, are agreeing to the following contractual terms.”

There is a box saying “Parking charge notice” and it says:

“You agree to pay consideration in the form of a parking charge in the sum of £100 to be paid within 28 days of issue. This is reduced to £60 if paid within 14 days. You will be liable for additional parking charges for each and any subsequent 24-hour period or part thereof that the vehicle remains or if it returns at any time.”

District Judge Glen found that:-

"If the notice had said no more than if you park on this roadway you agree to pay a charge then it would have been implicit that PCM was saying we will allow you to park on this roadway if you pay £100 and I would agree... that essentially the £100 was a part of the core consideration for the licence and was not a penalty for breach. This notice is an absolute prohibition against parking at any time, for any period, on the roadway. It is impossible to construct out of this in any way, either actually or contingently or conditionally, any permission for anyone to park on the roadway. All this is essentially saying is you must not trespass on the roadway. If you do we are giving ourselves, and we are dressing it up in the form of a contract, the right to charge you a sum of money which really would be damages for trespass, assuming of course that the claimant had any interest in the land in order to proceed in trespass."

Put simply, he dismissed the claims because the signage was forbidding.

The Jopson case is an excellent case to cite, where it is relevant, because His Honour Judge Harris is a bit of a legal heavyweight when compared to District Judge Glen. I do, however, believe that the circumstances in PCM(UK) v Bull are far more relevant to your situation.


Posted by: emergencychimp Thu, 12 Apr 2018 - 15:12
Post #1373919

Thanks for your continued input everyone.

Would I be right in thinking I should get in my N180 ASAP? It's just as part of my cover letter to the court, I've seen people mention them requesting further info from Gladstones with no response. I have requested info as per Eljayjay's post #96 but it was only done this week and I don't want to hang around and risk it going on papers.

Posted by: nosferatu1001 Thu, 12 Apr 2018 - 16:30
Post #1373932

You know the deadline given on your n180, so stick to that. A decision cannot be made before that deadline.

Posted by: emergencychimp Thu, 12 Apr 2018 - 16:55
Post #1373936

I haven't actually received an N180 yet. The court should be sending this soon? I just Googled it and found it on the gov.uk site. Gladstones have sent me a Word document titled 'N180 Special Direction.doc' that informed me they have requested the court send me an N159. Is this Gladstones trying to muddy the waters as N159 is for no hearing. Yet the document is called N180 Special Direction. Surely I won't be getting an N159 as I am objecting to it.

Posted by: nosferatu1001 Thu, 12 Apr 2018 - 17:26
Post #1373949

See what mcol states, that tells you when they've sent your n180 out. Or just fill in the n180 you've downloaded with the usual cover letter

Posted by: emergencychimp Fri, 13 Apr 2018 - 13:47
Post #1374189

I'm not seeing anywhere on mcol that states when they've sent out the N180. I phoned the court business centre and they said I should receive it within 30 days of receiving my defence.

So just wait for that to turn up and reply with covering letter and ignore anything from Gladstones regarding an N159 yeah?

Posted by: nosferatu1001 Fri, 13 Apr 2018 - 13:50
Post #1374191

Or just fill out a downloaded copy and send the covering letter. State you oppose any suggestion this is heard on papers as you deny that this is relatively straigthforward

Show us your covering letter.

Posted by: kommando Fri, 13 Apr 2018 - 18:03
Post #1374272

We have seen people get default judgements against them by them just waiting and some form going missing, either ring them back and get them to say definitively whether the N180 has been sent or not. Or just download and fill it out, you need to include an objection to Gladstones wanting ihe case to be heard from papers.

Posted by: emergencychimp Mon, 16 Apr 2018 - 15:41
Post #1374823

Draft cover letter.

Dear Sir/Madam,

(a) as an unrepresented defendant I require a hearing at my local Court because Gladstones have followed their usual well-trodden path of robo-claims with no due diligence, offering no evidence of any contract, no facts nor clear and concise Particulars of Claim. They are known to withhold any contract/facts until the last minute (often ambushing Defendants late with paperwork never shown earlier).

(b) This potentially causes any consumer extreme disadvantage if these cases are heard 'on the papers' because based on the routinely scant information provided to you so far, it has been almost impossible to put together a detailed defence thus far. I respectfully request that, in the event that the claim is not struck out due to the lack of Particulars, the court exercises its discretion to allow a more detailed defence to be submitted without cost, should Gladstones finally produce facts, details, a contract and evidence.

© I request the court strike out this claim, under Rule 3.4(2)(a) of PRACTICE DIRECTION 3A as having not set out a concise statement of the nature of the claim or disclosed reasonable grounds or particulars for bringing a claim (Part 16.4(1)(a) and PRACTICE DIRECTION 16 paragraphs 3.1-3.8).

In C3GF84Y (Mason, Plymouth County Court), the judge struck out the claim brought by KBT Cornwall Ltd, as Gladstones Solicitors had not submitted proper Particulars of Claim. Similar reasons were cited by District Judge Cross of St Albans County Court on 20/09/16 where another relevant poorly pleaded private parking charge claim by Gladstones was struck out without a hearing due to their ‘roboclaim’ particulars being incoherent, failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''.

(d) I would also like to bring to the court's attention of the failings of the claimant in issuing a valid Letter Before Claim despite my multiple requests. In addition, Gladstones are only pursuing me as their client asked for my details from the DVLA under the Protection of Freedoms Act 2012 when have no authority to do so as their notice to driver and notice to keeper did not comply with the guidelines of the Protection of Freedoms Act 2012. Therefore I am not liable as the keeper and as the driver has not been identified, there is simply no case.

Posted by: Redivi Mon, 16 Apr 2018 - 16:42
Post #1374833

I wouldn't send that covering letter
It can be interpreted as a rant

Search the forum (top right corner) for the phrase "reasonably straightforward"

It will produce some threads with a "colder" text to use

When it comes to the part "The Defendant will in particular wish to question the Claimant about the following points" you can list them as appropriate

Posted by: emergencychimp Mon, 16 Apr 2018 - 18:23
Post #1374858

Understood. This one seems to be the go to one on MSE.

The Defendant opposes the Claimant's request for special directions and requests that the case be listed for an oral hearing at the Defendant's local court. It is noted that this serial litigator has failed to provide any coherent particulars of claim, providing only scant details.

Other such claims in the public domain issued by Gladstones for parking companies also follow this same 'cut & paste' model, omitting any facts at all. The vague template particulars appear to be incapable of giving rise to any contractual claim in law and the omissions prejudice the Defendant's right, as registered keeper of a vehicle, to understand the issues and make informed decisions and responses in defence. The conduct of the Claimant and their Solicitor suggests an inherent disregard for the CPR overriding objective, when dealing with unrepresented Defendants (as in this case).

It is requested that the conduct of this Claimant and their Solicitor in pursuing scattergun, copied and un detailed claims, apparently as a cheap form of debt collection and to intimidate consumers unused to the court process, is referred for such pre-hearing directions specific to this case, as the Judge may see fit.

Posted by: nosferatu1001 Tue, 17 Apr 2018 - 06:36
Post #1374925

Tjhat says nothing about why you need an oral hearing

For example, that you believe the claimant will only disclose their actual case in the witnesss statement, or that you need to crsos examine their witness about...

Posted by: ManxRed Tue, 17 Apr 2018 - 08:01
Post #1374941

Something like:

QUOTE
I object strongly to this proposal.

I deny the claimant's assertion that the matter is relatively straightforward.

The issues in dispute include the Claimant's defective Particulars of Claim, and its failure to meet the requirements of the Protection of Freedoms Act to pursue the Defendant,

As a litigant in person, I would be seriously disadvantaged against the Claimant, a parking company that has employed its trade association's solicitor to prepare its documents.

I would also wish to question the Claimant regarding its witness statement and other documents.


I therefore requests that the matter is transferred to xxxxxx County Court Hearing Centre in accordance with the Civil Procedure Rules where the Defendant is a consumer

Posted by: emergencychimp Tue, 17 Apr 2018 - 15:32
Post #1375093

Cool. Thanks. Yeah. I did wonder why it was missing stuff about cross examining e.t.c. As I said, it was pretty much verbatim from one used on MSE that was being used as a recommended template.

I'll go with ManxRed's one.

Posted by: ManxRed Wed, 18 Apr 2018 - 08:17
Post #1375259

QUOTE
The issues in dispute include the Claimant's defective Particulars of Claim, and its failure to meet the requirements of the Protection of Freedoms Act to pursue the Defendant


I've not had time to read through all seven pages, so just make sure that both these issues are relevant to your case.

Posted by: emergencychimp Wed, 18 Apr 2018 - 14:31
Post #1375380

Yup. Particulars of claim are piss poor. NTD and NTK fail to meet requirements of POFA.

Particulars of claim are in post 63.

Posted by: emergencychimp Tue, 1 May 2018 - 16:58
Post #1378961

Along with the N180, there was an EX730 about mediation with 2 tick boxes on a cover page. I take it this can be ignored? It doesn't say I need to send it anywhere.

Posted by: SchoolRunMum Wed, 2 May 2018 - 00:07
Post #1379054

If it is a sheet dealing solely with Mediation, and you have ticked NO to Mediation on the N180 itself(?), then it seems superfluous.

Posted by: emergencychimp Wed, 16 May 2018 - 13:27
Post #1382642

Are the management company under any obligation to provide a copy of the contract with the parking company?

I thought I would try and establish if there is a legitimate contract but the management company refuse to provide one.

They say the management company has no authority to disclose any details of any contracts entered into by their clients. They say they are under no obligation to to discuss the nature of contracts with any third party and will not release copies of any documents pertaining to the residents association.

Of course they confirm that the parking company has been engaged by the residents association and are operating within the terms of their contract with the full consent of the the management company.

I just can't understand how a supposed contract that only exists in sign form can be enforced when the management company is unwilling to provide a copy of a written contract.

Posted by: The Slithy Tove Wed, 16 May 2018 - 17:07
Post #1382711

QUOTE (emergencychimp @ Wed, 16 May 2018 - 14:27) *
Of course they confirm that the parking company has been engaged by the residents association and are operating within the terms of their contract with the full consent of the the management company.

I just can't understand how a supposed contract that only exists in sign form can be enforced when the management company is unwilling to provide a copy of a written contract.

But the management company is not the landowner. Big difference.

In any case, you simply assert that in the absence of a contract between PPC and MC, the assumption must be made that there is none.

Posted by: emergencychimp Wed, 16 May 2018 - 17:15
Post #1382714

Yeah. It's just a bit weird. I know this management company has been difficult about handing over contracts in the past but from what I gather, they do eventually provide a copy.

It's a moot point really as they'll be forced to provide one should it go to court. I was just trying to be a bit proactive.

Posted by: Eljayjay Wed, 16 May 2018 - 19:00
Post #1382731

Did you send the letter, which I drafted for you, in post #96?

If you did, did you get a response?


Posted by: emergencychimp Wed, 16 May 2018 - 20:32
Post #1382761

Yeah. I sent that. No response as of yet. From my research, this is typical of Gladstones no? They just ignore requests for relevant documents until they have to provide a witness statement?

Posted by: Eljayjay Wed, 16 May 2018 - 21:31
Post #1382774

It is very typical of Gladstones insofar as many letters sent to them are concerned. I know that a few of the post #96 letters have been sent to Gladstones but, to date, they have failed to reply to any of them.

Has you received anything to say to which court your case been allocated?

From memory, I am pretty sure that this recorded on MCOL. So, if you have not received anything through the post, check MCOL.

If it has been allocated to a court, you should be able to find the court's email address at courttribunalfinder.service.gov.uk

If necessary, as there may be a few from which to choose, find the correct one by telephoning the court.

Then, as you did not receive a letter before claim, send an email to the court, saying...


As you know, Gladstones Solicitors Limited have made a claim (No. xxxxxxxxx) against me on behalf of their client xxxxxxxxxxxxxxxxxxx.

I understand that, in accordance with the Pre-Action Protocol for Debt Claims, I should have been sent a letter of claim from either the claimant or their solicitors but no such document was received by me.

I had received the letter of claim, I would have asked its author to provide a number of documents and other information. The claimant would then have been required to either provide the documents or information, or (b) explain why the document or information is unavailable, within 30 days of receipt of the request.

Having been denied the opportunity at the correct time, I sent the following letter to <the claimant/the claimant's solicitors> on xx xxxxx 2018.

<text of your previous letter>

As time is flying by and I have not received the documents and information or even an acknowledgement from <the claimant/the claimant's solicitors>, I request the court to strike out the claim in the event of a full reply not being received within 30 days of my letter.


If nothing else, it draws the court's attention to your difficulty in defending the claim.


Posted by: emergencychimp Wed, 16 May 2018 - 21:51
Post #1382777

It appears to have been allocated to my local court a few days ago. I shall send them that e-mail. Thanks.

Posted by: nosferatu1001 Thu, 17 May 2018 - 11:44
Post #1382868

Had I received the letter of claim

Posted by: emergencychimp Thu, 17 May 2018 - 13:17
Post #1382886

QUOTE (nosferatu1001 @ Thu, 14 Dec 2017 - 21:35) *
State that, in the event they again refuse to comply with the protocol, and raise.p a claim, you will immediately apply for a stay of proceedings until they do comply, at their clients expense.

I don't think I warned them I would apply for a stay of proceedings until they comply. Is this worth doing/can I still do it?

QUOTE (Eljayjay @ Wed, 16 May 2018 - 22:31) *
I request the court to strike out the claim in the event of a full reply not being received within 30 days of my letter.

Should this not be 'I request the court to strike out the claim due to a full reply not being received within 30 days of my letter'. As 30 days have already passed since the date of my letter.

Posted by: nosferatu1001 Thu, 17 May 2018 - 16:44
Post #1382943

Of course you can do it. It'll cost £100 for the application but you can ask that the c repays this.

Posted by: Eljayjay Thu, 17 May 2018 - 23:23
Post #1383049

Obviously, if you sent the letter more than 30 days ago, change the wording of the letter to suit.

Posted by: emergencychimp Mon, 15 Oct 2018 - 17:02
Post #1425448

Finally, an update. I received a copy of their witness statement via e-mail today but no updates to MCOL since the claim was transferred to my local court in May. What's my next step here?

Posted by: ostell Mon, 15 Oct 2018 - 17:19
Post #1425454

Without going back, have you sent your witness statement yet? It must be due soon. If not sent then you have the ideal opportunity to add comments about the claimants witness statement to your statement.

Posted by: emergencychimp Mon, 15 Oct 2018 - 17:28
Post #1425457

No, I have not sent one. I have not been requested to send one. I take it I should get a letter requesting me to do so?

Shall I post theirs?

Posted by: ostell Mon, 15 Oct 2018 - 17:35
Post #1425463

So have you got a letter from the court giving a date of the hearing? If you have it will tell you when you should submit your documents. This is normally 14 days before the hearing but it can be more.

You could be sleep walking into a default judgement against you !!!

Posted by: emergencychimp Mon, 15 Oct 2018 - 17:45
Post #1425467

No letters. No date of hearing. The last thing on MCOL just says the date the claim was transferred to my local court 5 months ago. Is this not normal?

Posted by: SchoolRunMum Mon, 15 Oct 2018 - 18:08
Post #1425477

No its not.

Ring your local court to ask what's happened to the case, was it discontinued (you hope), or has the claimant failed to reply or pay a fee and if so, ask can it now be struck out please to bring the scam to an end.

If the other side has sent you a WS I would be concerned you've missed a court letter asking for those from both sides, and setting a date very soon.

Posted by: emergencychimp Mon, 15 Oct 2018 - 18:18
Post #1425483

I'm pretty sure I haven't missed any letters. Surely any activity on the claim should be mirrored on MCOL? For instance it shows the date the DQ was sent to me, when the DQ was filed by the claimant etc

Posted by: SchoolRunMum Mon, 15 Oct 2018 - 18:28
Post #1425488

Once it leaves the CCBC I am not sure everything the local court does is updated on MCOL. Ring the court.

Posted by: emergencychimp Mon, 15 Oct 2018 - 18:40
Post #1425499

I see MCOL no longer updates when transferred to local court. Didn't know that. Either way, I've not had any letters from them. Seems very odd.

My local court seems very unprofessional. I was chasing every few weeks a few months ago and was told it was a waste of time calling them as they couldn't give me any updates and just wait for a letter.

Posted by: ostell Mon, 15 Oct 2018 - 19:27
Post #1425525

The DQ determines which local court the claim will transfer to so MCOL aren't interested after that. The parking companies are not known for prompt supply of a WS so the one you've received would have been at the last possible moment. What do they know that you don't? I would suggest contacting the court as soon as possible to get the latest status just in case something has got lost.

Posted by: emergencychimp Mon, 15 Oct 2018 - 19:38
Post #1425532

Yeah. That was my thinking. Leaving it to the last moment. Will call in the morning and find out what's going on. I've never had an issue with post before so I'm a bit skeptical.

Posted by: ostell Mon, 15 Oct 2018 - 20:37
Post #1425561

Make sure you get the names of the people you talk to, even record if you can.

Posted by: nosferatu1001 Tue, 16 Oct 2018 - 08:06
Post #1425656

Yep, defintiely get names
You need to havea record of this, as if you rely upon it and their info is wrong, you need to be able to point to a person.

Posted by: emergencychimp Tue, 16 Oct 2018 - 12:09
Post #1425734

Finally got through and apparently there was something sent out in July informing me of the court date and that the court has been moved for some reason. I've been told I can request it moved back to my local court.

They're going to e-mail me a copy.

So yeah, I need to do my witness statement now and I have a bit of wiggle room on the 14 days as I never received notice. Got their name and recorded the call.

What's the best format for a witness statement? I've seen ones in the standard format and others that use the claimant's WS and clarify incorrect info. Or should that be done separately after my WS?

Also, part of the claimant's WS are loads of photos dated months before the day in question. Surely only photos supplied with the date of the incident can be used? Also, I'm sure at least one has been doctored. Can I request a copy of the original jpg? Should I submit a photo showing how easily the photo could be doctored?

Posted by: nosferatu1001 Tue, 16 Oct 2018 - 12:22
Post #1425747

Why not get it moved back to your local court? That would give you more time, surely? Where did it get moved to?

The "correct" format is the ONLY one around - which is you, setting out your facts and referencing your evidence to support your statetement. Seperately, at the end, you can rebut their WS.

No, they can use any photos, you just have to point out why that isnt correct / misleading / not relevant. So if they try to claim a photo tkaen in bright sunshine shows the signs can be readin the dark, as an example, you wuodl of course point out that that is rubbish. How has it been doctored, in what way?

Posted by: emergencychimp Tue, 16 Oct 2018 - 12:36
Post #1425757

It got moved 18 miles away. When I requested it be moved back, I was told just add a note with info about notice being delayed 'and it would be looked at'. I said surely that would affect the court date but the person I spoke to couldn't confirm.

I was talking about this type of WS

http://forums.pepipoo.com/index.php?showtopic=106959&st=40&p=1225247!!!entry1%20%20225247

Where do I get a template if stuff like that is incorrect?

The photos from a few months ago show a sticker sign at the entrance. There was no sticker on the day and no photo of that sticker sign. I believe someone peeled that off. I initially thought they had been edited but removed seems to be more likely.

Posted by: nosferatu1001 Tue, 16 Oct 2018 - 12:45
Post #1425763

If it gets moved back then it would meana delay
What is your actual deadline.
You dont get a template. Obviously this is YOUR FACTs about YOUR INCIDENT. Newbies thread post 2 over at the MSE FORUM gives you some ideas of *layout* but thats all you really should be lookuing at.

How will you prove they were edited? Do you have anything to swing it back round in your favour? An assertion that "its easy" is not likely to be enough.

Posted by: emergencychimp Tue, 16 Oct 2018 - 12:58
Post #1425771

Deadline for WS is 18th.

That WS in the link was from post 2 on MSE.

I could edit them myself but other than that I'm struggling to prove it so I might just leave it. It being vandalized seems more likely.

Posted by: nosferatu1001 Tue, 16 Oct 2018 - 13:20
Post #1425780

What do you mean "leave it"? Or being vandalised?

You have had months to know what to say in a WS. Months.

You seem to disreagard that YOUR ws IS EVIDENCE.

Posted by: emergencychimp Tue, 16 Oct 2018 - 15:10
Post #1425807

Leave it as in not bring it up. Being vandalized as in they have a photo of a sign dated x months before the date of the parking charge and yet it was not present on the day of the parking charge. Someone removed it as it was only a sticker.

I would have had months had I received what was allegedly sent in July. Seeing as I only found out about it yesterday, I have not had months.

Posted by: nosferatu1001 Tue, 16 Oct 2018 - 15:26
Post #1425812

THen you state it. Your first hand witness evidence is evidence. Get them to disprove it. Again. what YOU say is evidence. How much weight is put on this is up to the corut.

You have had months, becasue you have known for months that youwould need to write a witness statement. This is not an unexpected part of the court process, its written on every single thread about court claims, with examples galore
Yes, you shoudl have known about the date sooner, however the FACT you would have to submit a WS WAS known to you, if you had looked.

Posted by: emergencychimp Tue, 16 Oct 2018 - 15:39
Post #1425817

To tell you the truth, I didn't want to waste any more of my time on a WS until I had to just in case they decided to not go ahead with it. I figured I would have months to prepare it.

Am I allowed to redact information from my evidence? The lease for instance. It's not mine so does not have my name on it. Can I still use it as evidence with the leaseholder of the property name blanked out?

Posted by: nosferatu1001 Tue, 16 Oct 2018 - 15:46
Post #1425820

You did have months!
The order could have come through and given you 14 days
You gambled and lost. Sadly deal with it. The failure to prepare isnt the courts fault.

You can redact, why do you need to redact the lessees name?

Posted by: emergencychimp Tue, 16 Oct 2018 - 15:54
Post #1425823

They no longer live there and I don't wish to get them involved.

Posted by: nosferatu1001 Tue, 16 Oct 2018 - 17:41
Post #1425844

How will they be involved?
They won't be in court
Theyre not the driver

Bear in mind the more you redact the less convincing it becomes. If it's a real lease as well the C can trivially get the name.

Posted by: emergencychimp Tue, 16 Oct 2018 - 18:31
Post #1425867

Fair enough. I'll leave it intact.

Posted by: SchoolRunMum Tue, 16 Oct 2018 - 20:27
Post #1425910

OK so let's see your WS, the story of what happened - the fact you know that sign in evidence was not there on the day - and what evidence you are exhibiting with it.

There is more than one example WS on MSE, and a list of typical evidence to include (certainly the lease in your case).

Posted by: emergencychimp Sun, 21 Oct 2018 - 17:06
Post #1427165

Witness statement first draft.

Some questions.

1. Should I use 'I' or 'defendant'?
2. For the exhibits, I take it I need to copy all letters, e-mails I've sent to various people?
3. The cases I reference, do I need to include all entire transcripts?
4. If I want to reference something in claimant's WS, do I need to reproduce it in my exhibits or just say see claimant's WS page 15 for example?
5. Do I need to include a copy of PRACTICE DIRECTION – PRE-ACTION CONDUCT AND PROTOCOLS?



Witness Statement
-------------------------

I am emergencychimp, of [Address], [Postcode], the Defendant in this matter. I will say as follows:

I assert that I am the registered keeper of the vehicle in question in this case. I was not the driver.

Exhibited to this Witness Statement are the following documents which the defendant wishes to rely upon;

i) Tenancy agreement
ii) Parking agreement
iii) POFA 2012
iv) Copy of parking permit
v) Signs

Background

1. On [DATE], the driver of the vehicle visited the site in question to collect keys from the outgoing tenant of [ADDRESS].

2. The driver parked in a clearly marked visitor bay, under a sign that read 'Private Property - Strictly Residents parking only'.

3. After being in the property for a short time, it became apparent to the driver the site now required parking permits to be displayed after discovering said parking permit in the property. The driver then returned to the vehicle to display the permit to find in that short time a parking charge had already been fixed to the vehicle's windscreen.

4. As the parking scheme was introduced between the start of the tenancy at [ADDRESS] and the time of the check out, there was no mention of any parking restrictions in the paperwork supplied to the driver.

5. The driver duly appealed the parking charge by providing evidence of possession of a permit and that they were authorized to be there. However the claimant has elected to pursue this matter via litigation for some unknown reason.

6. The Claimant has no standing, or cause of action, to litigate in this matter for the following reasons.

I deny I am liable for the entirety of the claim for each of the following reasons:

Section 1: The Claimant has no authority to claim

1.1 I deny that the Claimant has any authority over this property and I contend that the Claimant has no authority to bring a claim. The Claimant does not own the land where the vehicle was parked, nor do they have any interest in the land. Therefore, they lack the capacity to offer parking.

1.2 The vehicle was parked on property in accordance with the terms of the Lease of the property that was being visited. The lease does not include a requirement to display a permit. Exhibit 1 details the full leasehold agreement.

1.3 Recent cases have set clear precedence that the Lease has primacy of contract over any signage that the Claimant puts up as per judgements in B9GF0A9E Jopson v Homeguard [2016], C6GF14F0 Pace vs Mr N - [2016] and C7GF50J7 Link Parking v Ms P [2016].

1.4. In B9GF0A9E Jopson v Homeguard [2016], the exact question regarding terms in a lease was tested at Oxford County Court on 29/9/2016. The Jopson case is a persuasive decision, where Senior Circuit Judge HHJ Charles Harris QC found that Home Guard had acted unreasonably when issuing a penalty charge notice to Miss Jopson, a resident of a block of flats.

1.5 Furthermore, in the case of C7GF51J1 Pace vs Mr N [2016] District Judge Coonan ruled that any amendments to a leaseholder’s covenants regarding parking cannot be amended by a third party, they must be amended into the Lease by the landowner directly, in accordance with the terms set out within the Lease.

1.6 In the case of Saeed v Plustrade Limited [2001] EWCA Civ 2011 parking restrictions and a change which caused detriment to tenants and their visitors were held to be in breach of the well-known and well established principle that ‘a grantor shall not derogate from his grant’.

1.7 The Claimant has not provided proof of a chain of contracts leading from the landowner to the Claimant which show that they have a right to unilaterally remove or interfere with the overriding rights conferred by leasehold agreement. This evidence has been requested from the Claimant and the Claimant’s agents in letters dated xx/xx/2017, xx/xx/2017 and has not been provided, neither has this communication been included within the Claimants witness statement.

1.8 One of the legal justifications that the claimant has provided in response to my denial of debt has been to quote The Criminal Case of Elliott v Loake 1983 which relied on forensic evidence which is entirely irrelevant to this case. If registered keepers can simply be "presumed" to be drivers, POFA 2012 will have been rendered almost completely superfluous. The main point of POFA 2012 was to provide a legal mechanism by which registered keepers could be held liable for parking contracts entered into (and breached) by drivers. Elliot vs. Loake was decided in 1982--obviously the holding in that case was not considered by Parliament to have already solved the problem. The case of Parking Eye vs Bevis [2015] is also irrelevant to this case, as this is a residential parking space in a strictly residential car park. The parking is not public, and not a commercial venue.

1.9 The charge is an unenforceable penalty based upon a lack of commercial justification. The claimant states they are relying on the case of Parking Eye vs Bevis [2015]. However, this case actually confirmed that the penalty rule is certainly engaged in any case of a private parking charge, and was only disengaged due to the unique circumstances of that case, primarily the specific interests of the landowner, which do not apply to this claim as the parking is not available to commercial tenants, nor to attract customers, nor to ensure turnover to increase customers, nor prevent misuse of the space by commuters, which were the deciding factors in the case.

1.10 There can be no ‘legitimate interest’ in penalising residents and their visitors for using parking spaces which they own or rent, under the excuse of a scheme where ostensibly and as far as the landowner is concerned, the parking firm is contracted for the benefit of the residents. It is unconscionable, contrary to the requirement of good faith and ‘out of all proportion to any legitimate interest’ to fine residents or their visitors for using the parking spaces they own.

1.11 The presence of the Claimant on the land will have supposedly been to prevent parking by uninvited persons, for the benefit of the actual leaseholders. Instead, a predatory operation has been carried out on those very people whose interests the Claimant was purportedly there to uphold.

1.12 The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking for a true cause of action. I believe the term for such conduct is ‘robo-claims’ which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. This is a claim that has proceeded without any facts or evidence supplied until the last possible minute at the claimant's witness statement, to my significant detriment as an unrepresented Defendant. This has made putting together an initial defence challenging when I couldn't be sure of the facts.

1.13 In the pre-court stage, the Claimant’s solicitor refused to provide me with the necessary information I requested in order to defend myself against the alleged debt.
They did not send me a Letter before Action that complied with the Practice direction on pre-action conduct. The Letter before Action can be seen to miss the following information:
a) The basis on which the claim is made
b) A clear summary of facts on which the claim is based.
c) A list of the essential documents on which they intend to rely.
d) Any form of possible negotiation or ADR offered.

1.14 I suggest that parking companies using the small claims track as a form of aggressive, automated debt collection is not something the courts should be seen to support.

1.15

In the lease of [ADDRESS], there is no mention of any requirement to display a parking permit.

"DURING THE TENANCY THE LANDLORD WILL:
Agree that the Tenant paying the Rent and performing and observing the obligations on the Tenant’s part
contained in this Tenancy Agreement shall peaceably hold and enjoy the Property during the Tenancy
without any lawful interruption by the Landlord or any person rightfully claiming under, through or in trust for
the Landlord."

How can you be a tenant with rights to quiet enjoyment when you need to worry about inviting visitors with a car, possibly parking in a visitor bay. Why provide a bay marked for visitors if they can't be protected by the same right?

Parking agreement invalid

I might add this is the first time seeing a copy of the parking agreement after asking multiple times and always being refused or ignored.


Section 2: Claimant Witness Statement rebuttals

The defence

2.1 Claimant's point 7

The Criminal Case of Elliott v Loake 1983 Crim LR 36
See section 1.8 for dismissal of this case. It is merely an invitation to identify the driver, which I have declined.

Driver / keeper

2.2 Claimant's point 9
Non compliance with Protections of Freedoms Act 2012

The claimant states the registered keeper's details were requested from the DVLA and notice to keeper was sent to the registered keeper that was in accordance with the Protections of Freedoms Act 2012. This is a lie.

It does not state or specify:
-The period the vehicle was parked for
- The outstanding amount of the parking charge and of the maximum additional costs the claimant may seek to recover, and of the dispute resolution arrangements
- Details of the discount for payment within 14 days

2.2 Claimant's point 10
Non compliance with Protections of Freedoms Act 2012

The claimant states the initial notice was affixed to the Defendant’s vehicle on the 10/07/2017. This notice to driver was not compliant with the Protections of Freedoms Act 2012.

It does not state:
- The period the car was parked
- the maximum additional costs the claimant may seek to recover
- 28 day period warning is incorrectly stated

2.3 Claimant's point 11
Again, the defendant has decided to not take up the client on the offer of naming the driver. The claimant wants to know why the defendant filed a defence if he was not the driver. It doesn't take a solicitor to know that's what you do when someone tries to take you to court. It was mentioned from the first correspondence from the defendant to the claimant that he was not the driver.

The claimant claims the defendant has not assisted the claimant with providing further information. The defended provided all the information required to cancel this charge and avoid wasting the court's time.

2.4 Claimant's point 12
This is simply a reworded point 11.

2.5 Claimant's point 14
Again, there can be no assumption the registered keeper is the driver. There is no requirement to name the driver.

Particulars of claim

2.6 Claimant's point 15

The claimant states due to the limitations of the claim process of the County Court Business Centre, it "only allows the claimant to insert very brief details of the claim"

The claimant has the opportunity at this point to utilize 1080 characters and all they could muster was half of that. The claimant states that "the particulars of claim contained sufficient information for the defendant to be aware of what the claim relates to"

And yet,

1) There is no cause of action stated. What terms? Are they alleging contractual charge, damages for breach of contract, trespass?
2) They state they don't know whether defendant was, keeper or driver, so allege both even though they have already admitted they do not know who the driver is
3) No explanation of where indemnity costs can be levied against a keeper
4) No explanation of how they're pursuing the keeper
5) No parking charge reference number (despite being listed as point iii)

2.7 Claimant's point 17

The claimant states the defendant was sent a Letter Before Claim in accordance with Practice Direction. This is another lie.

The only Letter Before Claim received was not in compliance with Practice Direction. Multiple requests were made by the defendant to be sent a compliant Letter Before Claim, but requests were met with no reply.

2.8 Claimant's point 18
Whether the defendant was aware or not of the full details of the parking charge notice is irrelevant. The claimant consistently fails to provide documents is accordance with Practice Direction.

2.9 Claimant's point 19
The defendant has pointed out lack of detail of the claim in every piece of correspondence.
The defendant has stated numerous times there was a brief period of parking at the property where it was not clear to the driver a permit was required.

Signage

2.10 Claimant's point 24
The claimant states signage was sufficient at this site and references clean signs upon entry. Yet on the day in question, not all signs where present. The claimant has provided photographs at the entrance to the site (pages 11, 12, 13, 14 of the claimants witness statement), dated the 27/3/17 and yet there are no photos of these signs dated from the day of the parking charge. You can see at least one is a sticker, stuck to an existing sign. The defendants asks the claimant to prove those signs were present on the 10/7/17 and not removed/vandalized. It is the belief of the defendant, the claimant has failed to maintain it's signage.

Page 10 of the claimant's witness statement is an aerial view of the site showing sign locations along with an annotation "PPM two icon 'Parking conditions apply' signs. This is the only type of signage to appear throughout the site.
And yet, on page 12, 13, 18, 19, 37, 38 and 39, you can additional signs that state 'Private Property - Strictly Residents Parking Only' It is under one of these signs that the driver parked under. A sign that makes no mention of a parking permit and is incapable of forming a contract. It is forbidding and makes no offer to park. In UKPC v Masterson B4GF26K6[2016] it was also found the signage was forbidding and so the matter was one of trespass. In Horizon Parking v Mr J C5GF17X2 [2016] it was also found the signage was forbidding and so the matter was one of trespass.

No Contract / Nature of the Offence:

2.11 Claimant's point 28
It is not simply a suggestion. It is fact. There was no contract.

2.12 Claimant's point 40
The defendant is aware after the fact a permit is required to park. See 2.9.

2.13 Claimant's point 41
The defendant puts it to the claimant to prove that a parking permit was received/accepted by the claimant which bound them to a parking scheme.

2.14 Claimant's point 42
See point 2.13.

2.14 Claimant's point 43
See point 2.13.

2.15 Claimant's point 44
The Managing Agents have no right to sign the contract. Phil Bacon is not a listed Director for the company, with his role solely as Property Manager on the contract. The Claimant has failed to show any lines of communication between the managing agent and themselves. The Claimant is put to strict proof. There is also no company number listed on the agreement. The defendant would like to add the first time the parking agreement has been provided was the copy in the claimant's witness statement. Multiple requests were refused prior to this.

2.16
The Claimant has been a claimant in other cases involving parking agreements signed by persons purporting themselves to be directors of companies of which they are not directors. For example, in the case of Parking & Property Management Limited v John Jones (D4GF31W1) heard at Croydon County Court on 17 November 2017, District Judge Hay found that the person (i.e. Andrew Copley) signing as a director of the Claimant's alleged client (i.e. Premier Ground Rents No.4 Limited) "on any reasonable construction and construal of this document, Mr Copley is holding himself out as purporting to be a director of Premier Ground Rents Number 4, which he simply is not." and that "the entire scheme is invalid and there is no right at the present time for Parking and Property Management to issue parking tickets or to operate a scheme in this estate. So, I am dismissing the claim."

Section 3: The Claimant has added unrecoverable sums to the original parking charge

3.1 The provision requiring payment of £160.00 is an unenforceable penalty clause and an unfair term contrary to the Consumer Rights Act 2015 and the Unfair Terms in Consumer Contracts Regulations 2008. It has already been established that the ruling of ParkingEye v Beavis [2015] UKSC 67 is not applicable to cases involving residential parking spaces. This is supported by the cases referenced in section 1.3 above.

3.2 Furthermore, Paragraph 4, Schedule 4 of the Protection of Freedoms Act 2012, makes it clear the keeper can only be liable for the amount on the original notice. The original noticed stated the charge was "£100, reduced to £60 if paid within 14 days".

3.3 I deny that any interest is due, because the Claimant has ignored all requested to provide evidence of their authority to claim. As noted in 1.8 above the Clamant has had multiple occasions since XX/XX/XXXX to provide contractual evidence to support their claim and have failed to respond on every occasion.

3.4 Furthermore I submit that the £50 legal representatives cost have not actually been incurred by the Claimant; these are figures plucked out of thin air and applied regardless of facts as part of their roboclaim litigation model in an attempt to circumvent the Small Claims costs rules using double recovery. The Court is invited to report Gladstones Solicitors to the Solicitors’ Regulation Authority for this deliberate attempt to mislead the Court, in contravention of their Code of Conduct.

7. I invite the Court to dismiss this claim in its entirety, and to award my costs of attendance at the hearing, such as are allowable pursuant to CPR 27.14.

I believe that the facts stated in this Witness Statement are true.

Signature

Date




Claimant's WS

The Defence
4. The Defendant has been issued with a parking charge notice due to the fact his vehicle was
parked in a manner that contravened the terms and conditions of the signage contained on site,
namely the Defendant did not display a valid permit when parking his vehicle.
5. Attached to this witness statement at exhibit “GSL1” is a copy of the signage from the site. The
sign states “parking is permitted for vehicles displaying a valid parking permit within the front
windscreen”.

Driver / Keeper:
6. The Defendant avers that they were not driving the vehicle at the time of the parking incident.
7. The Criminal Case of Elliott v Loake 1983 Crim LR 36 held that the Registered Keeper of a vehicle
may be presumed to have been the driver unless they sufficiently rebut this presumption. The
defendant appears to have been deliberately evasive in this regard by failing to provide details of
the nominated driver. He states in his Defence at paragraph 5 “it is denied that the Defendant
was the driver of the vehicle. The Claimant is put to strict proof. The Claimant has provided no
evidence 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
POFA”.
8. The attached photographic evidence shows evidence of the parking charge notice affixed to the
Defendant’s windscreen.
9. As the charge remained unpaid and as the driver failed to appeal the parking charge notice
within the prescribed time, my Company applied to the DVLA, electronically, for the Registered
Keeper details and, in turn, were provided with the Defendant’s name and address. A Notice to
Keeper was subsequently sent to the Defendant in accordance with Schedule 4, paragraph 8 of
the Protection of Freedoms Act 2012 (“the Act”). The Notice to Keeper provided the Defendant
with an opportunity to nominate a driver, however, no driver nomination was received.
10. The initial notice was affixed to the Defendant’s vehicle; the same was issued on the 10/07/2017.
A further letter was sent to the Defendant on the 12/08/2017. A letter before claim was also
sent to the Defendant on the 01/11/2017.
11. As is clear from above, the Defendant has been in correspondence regarding this parking charge
notice for some time. He has failed to provide any driver nominations. The Defendant is asked
why he filed a Defence if he was not the driver and why this was not mentioned by the
Defendant sooner. At this late stage the Defendant has not assisted my Company and has
avoided providing any further information regarding the Driver which would have been the
correct protocol.
12. It is noted that the Defendant appealed this parking charge by way of his correspondence of the
27/08/2017 within which he mentioned the driver of the vehicle being someone other than
himself but did not specify the details. Instead the Defendant was deliberately evasive of this
information to quote his appeal “no assumptions about the identity of the driver can be made
and I am under no legal obligation to identify them, which I will not be doing”.

13. It is noted that the Defendant’s appeal was considered by my Company and upon consideration
the Defendant’s appeal was rejected as it was held that the parking charge had correctly been
issued.
14. In the absence of the above and despite having had ample opportunity the Defendant has failed
to identify the driver either adequately or at all. The Court is therefore invited to conclude it
more likely than not that the Registered Keeper (i.e. the Defendant) was the driver.

Particulars of Claim:
15. The Claim is issued via the County Court Business Centre which is a procedure specifically
provided for in the Civil Procedure Rules. This only allows the Claimant to insert brief details of
the Claim. In any event, I can confirm that the Particulars of Claim contained sufficient
information for the Defendant to be aware of what the claim relates to; namely:-
i) The date of the charge;
ii) The vehicle registration number;
iii) The Parking Charge Notice number;
iv) The amount outstanding;
v) That is relates to parking charges; and
vi) That it is debt.
16. I refer to paragraph 5.2A of Practice Direction 7E which states that “the requirement in
paragraph 7.3 of Practice Direction 16 for documents to be attached to the particulars of
contract claims does not apply to claims started using an online claim form”.
17. Further, prior to proceedings being issued the Defendant was sent notices in accordance with
the Act and a Letter Before Claim. As such, the Defendant would have been aware of the charge
which is/are the subject of this claim.
18. In addition, the original notice affixed to the Defendant’s vehicle contained details about the
vehicle in question, the date and time of the alleged incident and the reason for issuance. It is
denied that the Defendant was not aware of the details of the parking charge notice.
19. As has previously been mentioned, the Defendant previously submitted an appeal in this matter.
It is noted that the Defendant at no point within his appeal correspondence mentioned the lack
of detail or raised any queries about the details surrounding the issuance of the parking charge.
In fact, the Defendant referred to the fact the vehicle had no permit displayed in the vehicle as
the alleged driver of the vehicle was transferring the same over into another vehicle. I would
question the Defendant as to why this information was provided if he had been unsure about the
reason of issuance regarding the parking charge. It is clear the Defendant was aware of the fact
his vehicle had no permit displayed and it can reasonably be assumed that he knew this was a
requirement to park.

Signage:
20. The Defendant alleges within his Defence at paragraph 8 that “the parking signage in this matter
was without prejudice to his/her primary Defence above, inadequate”.

21. The Defendant further goes on to state that “at the time of the material events the signage was
deficient in number, distribution, wording and lighting to reasonably convey a contractual
obligation” and that “the signage did not comply” with the requirements of the IPC code of
practice.
22. It is evident from the site plan attached to this witness statement that there are sufficient signs
on the relevant land. Furthermore, the attached photographs show the Defendant’s vehicle
parked within close proximity to the signage on the site.
23. The photographs show that to the right of the Defendant’s vehicle on the wall directly behind is a
sign affixed to the wall. As the Defendant pulled up to the bay in which he parked and reversed
his vehicle into the space it is reasonable to assume that the Defendant would have noticed the
sign that is affixed to the wall.
24. There are also clear signs upon entry to the parking where the alleged incident took place and
further signage situated at the entrance of the building on the wall. The Defendant states that he
is a resident of the premises, therefore it is reasonable to assume that he would have noticed the
signage upon entry and exit to the building and entry/exit to the parking area.
25. What is more, without concession, even in the unlikely event the Defendant didn’t see the signs I
submit they ought to have done so. As Lord Justice Roch observed in the Court of Appeal case of
Vine v London Borough of Waltham Forrest 2000,
“Once it is established that sufficient and adequate warning notices were in place, a car driver
cannot be heard to say that he or she did not see the notice. Were that to be the law, it would be
too easy for car drivers who trespass with their cars to evade the only method land owners have
of stopping the unauthorised parking of cars in parking spaces or parking areas on their
property”.
26. Signage is prominent throughout the parking area. Signage location, size, content and font has
been audited by the International Parking Community.
27. The area is fully lit, nevertheless the Defendant’s vehicle was parked within broad daylight so it is
not agreed that there was insufficient lighting and that lighting was an issue.

No Contract / Nature of the Offence:
28. The Defendant further suggests that there was no contract.
29. The rules of interpretation require simply that the parties knew of their obligations to oneanother.
The Defendant was offered to use the Land and thereafter either follow the rules and
park for free or in breach of the rules agree to pay £100. The rules here just so happen to be
parking is permitted for “vehicles displaying a valid parking permit within the front windscreen”.
30. In the case of Alder v Moore (1961) The court concluded that one should consider the obligations
imposed by the agreement, not the terminology used i.e. the agreement’s substance, not form.

31. The principles in this case are the same as in the Parking Eye case, save that in the Parking Eye
case, as the particular parking rules were different, the rule breached was that motorists must
leave the site within 2 hours, whereas here, as set out above, the rule was “parking is permitted
for vehicles displaying a valid parking permit within the front windscreen”. In that case it was
accepted as an established principle that a valid contract can be made by an offer in the form of
the terms and conditions set out on the sign, and accepted by the driver’s actions as prescribed
therein.
32. The Court may conclude that the Land is managed as follows; the Claimant grants a contractual
license to all; this license allows anyone permission to be on the Land. This is inferred by the
nature of the land and the lack of any general prohibition of entry on the signage. In this regard,
the Defendant (as were all the motorists) was offered to comply with the normal conditions (as
clear on the sign), or park otherwise than in accordance with the normal conditions and incur a
£100 charge. The acceptance was at the point the Defendant decided to park, having read the
sign, and his consideration was the promise to pay £100 for the privilege of parking outside the
normal conditions. The Claimant’s consideration is the provision of parking services.
33. I refer to the Court to Judge Hegarty’s comments in ParkingEye v Somerfield (2011) that “If this is
the price payable for the privilege, it does not seem to me that it can be regarded as a penalty,
even though it is substantial and obviously intended to discourage motorists from leaving their
cars on the car park”.
34. Alternatively; it could be concluded that, any person can use the Land provided they do not
exceed the licensed activity as set out on the sign and in failing to comply with the license
granted to them, they in turn agree to the Claimant’s entirely distinct offer from that license
which is ‘to park otherwise than in accordance with the license for a charge of £100’.
35. The signage at the site is clearly visible and the information on the signage informs the driver of
the parking conditions at the location. Signage is prominent throughout the parking area.
Signage location, size, content and font has been audited and approved by the International
Parking Community (“the IPC”).
36. It is the driver’s responsibility, to check for signage, check the legality and obtain any
authorisation for parking before leaving their vehicle. The signage on site is the contractual
document. By parking in the manner in which the Defendant did, the charge was properly
incurred.
37. My Company relies on the case of ParkingEye v Beavis 2015. In that case it was accepted as an
established principle that a valid contract can be made by an offer in the form of the terms and
conditions set out on the sign, and accepted by the driver’s actions as prescribed therein.

Right to Park:
38. The signs on the Land are clear and unambiguous. Furthermore, the Defendant suggests within
his Defence that there “was an absolute entitlement to park deriving from the terms of the lease,
which cannot be fettered by any alleged parking terms”. He further states “the lease provides he
right to park a vehicle in the relevant allocated bay, without limitation…”.


39. It is noted that the Defendant has not provided any evidence to support their alleged right to
park. My Company has been instructed to manage the relevant land and without concession the
Defendant has failed to prove otherwise.
40. In any event, the Defendant is clearly aware that a valid permit is required in order to be able to
park at the site of the alleged incident, this is further supported by the fact that the Defendant
refers to this within his appeal.
41. By receiving / accepting a permit from my Company, the Defendant bound themselves to the
parking scheme which was in part for their benefit. In taking this benefit (i.e. in having the
parking bay managed), the Defendant must accept their part to play, which was to simply display
a permit.
42. At no time after the scheme was introduced and prior to the first parking charge being issued
was my Company made aware that there was any objections to the scheme. Without concession,
if the Defendant did have a right over the space (which isn’t accepted at present), I submit they
ought to have notified my Company, rather than accepting the permit (and as such the benefit of
the scheme). Any rights he did have were therefore abandoned.
43. It is clear from the order of events my Company offered to manage the car park and that the
Defendant was happy to accept the benefit of my Company’s service in managing the car parking
bays, specifically the Defendant’s parking bay.
44. Attached to this witness statement is a copy of the parking enforcement agreement between my
Company and the Managing Agent. The agreement is dated the 22/03/2017 and clearly
stipulates that the managing agent authorises my company to operate a parking enforcement
service on the land, namely Alexandra Park, High Wycombe, Bucks, HP11 2HJ.
45. The lease agreement that exists between the Defendant and the Lessor (Managing Agent)
provides for the Lessee to comply with any regulations that the Lessor chooses to introduce for
the management of the Estate, in this case the parking enforcement scheme would fall under the
same.
46. As the contract is between my Company and the Defendant, my Company does have the
authority to enforce parking charges. However, both VCS v HM Revenue & Customs (2013) and
Parking Eye v Beavis (CA 2015) made it clear that a contracting party need not show they have a
right to do what they have promised in the performance of a contract, nor is (in the case of a
parking operator) the agreement between Operator and Landowner of any relevance. In any
event, and without concession, the Agreement exhibited to this Witness Statement evidences
my Company’s authorisation to operate / manage the Relevant Land on behalf of the
Landowner.
The Current Debt
47. In view of the Defendant not paying the charge within the 28 days allowed they are in breach of
the contract. Breach of contract entitles the innocent party to damages as of right in addition to
the parking charge incurred.

48. My Company is an Accredited Operator of the International Parking Community (IPC) who
prescribes a maximum charge of £100. The Code of Practice states:
"Parking charges must not exceed £100 unless agreed in advance with the IPC. Where
there is a prospect of additional charges, reference should be made to this where
appropriate on the signage and/ or other documentation.
Where a parking charge becomes overdue a reasonable sum may be added. This sum
must not exceed £60 (inclusive of VAT where applicable) unless Court Proceedings have
been initiated."
49. In view of the Defendant not paying the charge within the initial 28 days allowed or the further
28 days allowed after the Notice to Keeper has been sent, the parking charge has become
overdue and a reasonable sum of £60 has been added.
50. The Sign states the prescribed charge for failing to comply with the terms is £100, however it
also specifies “Failure to pay the charge may result in the vehicles keepers details being
requested from the DVLA. Enforcement action may incur additional costs that will be added to
the value of the parking charge and for which the driver will be liable”. Further the Letter Before
Claim also made it clear the debt may increase in respect of costs and interest if a claim had to
be issued. Due to the Defendant not paying the charge the matter was passed to my Company's
legal representatives, Gladstones Solicitors Ltd, who were instructed to commence legal
proceedings. The potential additional costs mentioned above are now sought.
51. The debt has, as a result of this referral risen as my Company’s staff have spent time and
material in facilitating the recovery of this debt. This time could have been better spent on other
elements of my Company’s business. My Company believes the costs associated with such time
spent were incurred naturally as a direct result of the Defendant’s breach and as such asks that
this element of the claim be awarded as a damage. The costs claimed are a pre-determined and
nominal contribution to the actual losses. Alternatively, my Company does have a right to costs
pursuant to the sign (i.e. the contract).

Posted by: nosferatu1001 Mon, 22 Oct 2018 - 11:21
Post #1427317

1) "I" as a WS is first person
2) Attach any and all evidence you wish to rely upon, anything yo umiss cannot be introduced later.
3) Just the bits supporting yoru case plus a bit around those paras to show context. Highlight the para(s) you rely upon.
4) Just reference their WS, thats why every para is numbered. Give page and para number, or at least para!
5) No, just refer to it and have it on a tablet on the day, if you have one, just in case. I doubt anyone will care about it.

NOTHING in this is an "offence"

THis seems remarkably long.

5) AuthoriSed. No "z". Check spell check language! It wasnt an "unknown reason" - they think there is a debt and they have pursued it. You could instead state they have pursued this despite knowing they have no cause of action against a Resident.

6) You give reasons meaning arguments, arguments are NOT included here. Remove them, for example 1.1. You then start your numbering again, which is confusing. This is ONE DOCUMENT, you cannot have multiple indexes!

1.8 - Overly long rebuttal. Just keep it simple. E v L turned on a finding of fact that the Keeper was the driver, based on teh Keepers testimony that noone else could have driven their car

Stick to facts. Your supposition about POFA is just that - supposition.

1.9 Im not a fan of...s this a repeat?

1.10 was this not Argued in your defence? If so do not repeat it
1.14 again, not sure how it states facts.

I have NO idea what to yumean by "parking agreement invalid" - how is that part of your WS? You state you have now seen it, so that you hadnt seeen it before is of not much bearing. What about it makes it invalid?

You introduced an excerpt from teh lease with any referencing or introduction at all. You MSUT include, at the point your reference evidence, a reference TO that evidence. INITIALS /001. Number, in pencil, EVERY page of your evidence in thsi way.

2.1 - thats wrong. EvL made no "Invitation to name the driver", you surely know all abot the case by now? I woudlnt rebut it in your ws either, but keep rebutall in one place
2.2 - call it a blatant misrepresentation. The notice is non compliant for the following reasons : and after each give the refernce to POFA sSChedule 4 para... which supports your contention. FACTS FIRST, always facts.

Same for your OTHER 2.2 - you cant have duplicate numbers..

Are they points or paragraphs? I suggest they are PARAGRAPHS and not "Points". same as your number is paragraphs.


2.3 - state instead - I as the named defendant of course filed a defence, and I am confused as to why the CLaimant is questioning why a defence was filed by me - had I failed to file a defence in time, the claimant would no doubt have applied for a default judgement. If they did not want me to file a defence, they should not have raised a claim. The claimant also asserts that I somehow have failed in a duty to provide the drivers details - on the contrary, Parliament could have chosen to make this a requirement, when enacting POFA2012, however they chose not to despite there being such a requirement in criminal legislation, under S172 of the RTA1988.
2.4 - just include both their points togehter, and state they both seek to suggest a duty on the Keeper of a vehicle that simply does not exist, and the claimant is being at best disingenuous and worst, deliberately misleading. The court is invited to strike the WS as it clearly contains no relevant facts, and instead advances new, unsupported argumetns based upon wild claims and insinuations, with no basis in applicable law.

2.6 - state they could have also added further particulars of claim, if they felt their claim was not sufficiently detailed given the limitations of MCOL. They chose not to do so.

2.7 - 2.9 - just summarise their LBA failings in one section, ref all their para. Thats it. DOnt belabour the point.

2.13 is dangerous. DOnt state the permit can bind you, when in fact you make the very clear point that the permit is irrelevant. It doesnt matter if you received it or not - a permit is NOT required, as ONLY YOUR LEASE MATTERS. DOnt lose sight of this!

And, again, summarise. Dont say "see point..." when its irrelevant. Just collate the claimants WS para together into one section

2.15 Why do you assert this first sentence? Managing agents CAN sign a contract, thats for sure - but it might not give ANY rights, as they are not the landholder. Point out that this fails to prove a chain, etc.

AND SO ON.

Posted by: emergencychimp Mon, 22 Oct 2018 - 15:46
Post #1427422

Your feedback is much appreciated nosferatu, thank you.

Tweaked it for a V2.

Witness Statement
-------------------------

I am emergencychimp, of [Address], [Postcode], the Defendant in this matter. I will say as follows:

I assert that I am the registered keeper of the vehicle in question in this case. I was not the driver.

Exhibited to this Witness Statement are the following documents which the I wish to rely upon;

i) Tenancy agreement
ii) Parking agreement
iii) POFA 2012
iv) Copy of parking permit
v) Signs
vi) correspondence

Background

1.1 On [DATE], the driver of the vehicle visited the site in question to collect keys from the outgoing tenant of [ADDRESS].

1.2. The driver parked in a clearly marked visitor bay, under a sign that read 'Private Property - Strictly Residents parking only'.

1.3. After being in the property for a short time, it became apparent to the driver the site now required parking permits to be displayed after discovering said parking permit in the property. The driver then returned to the vehicle to display the permit to find in that short time a parking charge had already been fixed to the vehicle's windscreen.

1.4. As the parking scheme was introduced between the start of the tenancy at [ADDRESS] and the time of the check out, there was no mention of any parking restrictions in the paperwork supplied to the driver.

1.5. The driver duly appealed the parking charge by providing evidence of possession of a permit and that they were authorised to be there. However the claimant has elected to pursue this matter via litigation despite knowing they have no cause of action.

1.6. The Claimant has no standing, or cause of action, to litigate in this matter for the following reasons.


Section 1: The Claimant has no authority to claim

1.7 I deny that the Claimant has any authority over this property and I contend that the Claimant has no authority to bring a claim. The Claimant does not own the land where the vehicle was parked, nor do they have any interest in the land. Therefore, they lack the capacity to offer parking.

1.8 The vehicle was parked on property in accordance with the terms of the Lease of the property that was being visited. The lease does not include a requirement to display a permit. Exhibit 1 details the full leasehold agreement.

1.9 Recent cases have set clear precedence that the Lease has primacy of contract over any signage that the Claimant puts up as per judgements in B9GF0A9E Jopson v Homeguard [2016], C6GF14F0 Pace vs Mr N - [2016] and C7GF50J7 Link Parking v Ms P [2016].

1.10. In B9GF0A9E Jopson v Homeguard [2016], the exact question regarding terms in a lease was tested at Oxford County Court on 29/9/2016. The Jopson case is a persuasive decision, where Senior Circuit Judge HHJ Charles Harris QC found that Home Guard had acted unreasonably when issuing a penalty charge notice to Miss Jopson, a resident of a block of flats.

1.11 Furthermore, in the case of C7GF51J1 Pace vs Mr N [2016] District Judge Coonan ruled that any amendments to a leaseholder’s covenants regarding parking cannot be amended by a third party, they must be amended into the Lease by the landowner directly, in accordance with the terms set out within the Lease.

1.12 In the case of Saeed v Plustrade Limited [2001] EWCA Civ 2011 parking restrictions and a change which caused detriment to tenants and their visitors were held to be in breach of the well-known and well established principle that ‘a grantor shall not derogate from his grant’.

1.13 The Claimant has not provided proof of a chain of contracts leading from the landowner to the Claimant which show that they have a right to unilaterally remove or interfere with the overriding rights conferred by leasehold agreement. This evidence has been requested from the Claimant and the Claimant’s agents in letters dated xx/xx/2017, xx/xx/2017 and has not been provided, neither has this communication been included within the Claimants witness statement.

1.14 One of the legal justifications that the claimant has provided in response to my denial of debt has been to quote The Criminal Case of Elliott v Loake 1983 which relied on forensic evidence which is entirely irrelevant to this case. If registered keepers can simply be "presumed" to be drivers, POFA 2012 will have been rendered almost completely superfluous. The main point of POFA 2012 was to provide a legal mechanism by which registered keepers could be held liable for parking contracts entered into (and breached) by drivers. Elliot vs. Loake was decided in 1982--obviously the holding in that case was not considered by Parliament to have already solved the problem. The case of Parking Eye vs Bevis [2015] is also irrelevant to this case, as this is a residential parking space in a strictly residential car park. The parking is not public, and not a commercial venue.

1.15 The charge is an unenforceable penalty based upon a lack of commercial justification. The claimant states they are relying on the case of Parking Eye vs Bevis [2015]. However, this case actually confirmed that the penalty rule is certainly engaged in any case of a private parking charge, and was only disengaged due to the unique circumstances of that case, primarily the specific interests of the landowner, which do not apply to this claim as the parking is not available to commercial tenants, nor to attract customers, nor to ensure turnover to increase customers, nor prevent misuse of the space by commuters, which were the deciding factors in the case.

1.16 There can be no ‘legitimate interest’ in penalising residents and their visitors for using parking spaces which they own or rent, under the excuse of a scheme where ostensibly and as far as the landowner is concerned, the parking firm is contracted for the benefit of the residents. It is unconscionable, contrary to the requirement of good faith and ‘out of all proportion to any legitimate interest’ to fine residents or their visitors for using the parking spaces they own.

1.17 The presence of the Claimant on the land will have supposedly been to prevent parking by uninvited persons, for the benefit of the actual leaseholders. Instead, a predatory operation has been carried out on those very people whose interests the Claimant was purportedly there to uphold.

1.18 The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking for a true cause of action. I believe the term for such conduct is ‘robo-claims’ which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. This is a claim that has proceeded without any facts or evidence supplied until the last possible minute at the claimant's witness statement, to my significant detriment as an unrepresented Defendant. This has made putting together an initial defence challenging when I couldn't be sure of the facts.

1.19 In the pre-court stage, the Claimant’s solicitor refused to provide me with the necessary information I requested in order to defend myself against the alleged debt.
They did not send me a Letter before Action that complied with the Practice direction on pre-action conduct. The Letter before Action can be seen to miss the following information:
a) The basis on which the claim is made
b) A clear summary of facts on which the claim is based.
c) A list of the essential documents on which they intend to rely.
d) Any form of possible negotiation or ADR offered.


1.20 In the lease of [ADDRESS], there is no mention of any requirement to display a parking permit.

Part 3, Paragraph 1.3

"DURING THE TENANCY THE LANDLORD WILL:
Agree that the Tenant paying the Rent and performing and observing the obligations on the Tenant’s part
contained in this Tenancy Agreement shall peaceably hold and enjoy the Property during the Tenancy
without any lawful interruption by the Landlord or any person rightfully claiming under, through or in trust for
the Landlord."

How can you be a tenant with rights to quiet enjoyment when you need to worry about inviting visitors with a car, possibly parking in a visitor bay. Why provide a bay marked for visitors if they can't be protected by the same right?

Section 2: Claimant Witness Statement rebuttals

The defence

2.1 Paragraph 4 states the vehicle was parked in a manner that contravened the terms and conditions of the signage. The vehicle was parked under a sign with no terms and conditions.

2.2 Paragraph 7 references the Criminal Case of Elliott v Loake 1983 Crim LR 36 which is irrelevant due to a finding of fact that the Keeper was the driver, based on the Keepers testimony that no one else could have driven their car.

Driver / keeper

2.3 Paragraph 9

The notice to driver and notice to keeper are not compliant with Protections of Freedoms Act 2012 as all applicable conditions have not been met.



Notice to keeper

The claimant states the registered keeper's details were requested from the DVLA and a notice to keeper was sent to the registered keeper that was in accordance with the Protections of Freedoms Act 2012. This is blatant misrepresentation.

It does not state or specify:
-The period the vehicle was parked for (POFA Schedule 4, paragraph 8 (2) (a), 9 (2) (a))
- The outstanding amount of the parking charge and of the maximum additional costs the claimant may seek to recover (POFA Schedule 4, paragraph 4, (5))
- Details of the discount for payment within 14 days (POFA Schedule 4, paragraph 8, (2) (g)), 9 (2) (g)
- 28 day period warning is incorrectly stated (POFA Schedule 4, paragraph 8 (2) (f))


2.4 Paragraph 10

Notice to driver

The claimant states the initial notice was affixed to vehicle registered to me on the 10/07/2017. This notice to driver was not compliant with the Protections of Freedoms Act 2012.

It does not state:
- The period the car was parked (POFA Schedule 4, paragraph 7 (2) (a)
- the maximum additional costs the claimant may seek to recover (POFA Schedule 4, paragraph 7 (2) ©
- 28 day period warning is incorrectly stated (POFA Schedule 4, paragraph 4 (4)

2.5 Paragraph 11

I, as the named defendant of course filed a defence and I am confused as to why the claimant is questioning why a defence was filed by me. Had I failed to file a defence in time, the claimant would no doubt have applied for a default judgement. If the claimant didn't want me to file a defence, they should not have raised a claim.

The claimant also repeatedly asserts that I have somehow failed in a duty to provide the drivers details, on the contrary, Parliament could have chosen to make this a requirement, when enacting POFA2012, however they chose not to despite there being such a requirement in criminal legislation, under S172 of the RTA1988.

2.6 Paragraph 11, 12 & 14

These paragraphs seek to suggest a duty on the Keeper of a vehicle that simply does not exist, and the claimant is being at best disingenuous and worst, deliberately misleading. The court is invited to strike the claimant's witness statement as it clearly contains no relevant facts, and instead advances new, unsupported arguments based upon wild claims and insinuations, with no basis in applicable law.

Particulars of claim

2.7 Paragraph 15 & 16

The claimant states due to the limitations of the claim process of the County Court Business Centre, it "only allows the claimant to insert very brief details of the claim"

The claimant has the opportunity at this point to utilize 1080 characters and all they could muster was half of that.
The claimant also could have added further particulars of claim if they indeed felt their claim was weak and not sufficiently detailed. They chose not to.
The claimant states that "the particulars of claim contained sufficient information for the defendant to be aware of what the claim relates to"

And yet,

1) There is no cause of action stated. What terms? Are they alleging contractual charge, damages for breach of contract, trespass?
2) They state they don't know whether defendant was, keeper or driver, so allege both even though they have already admitted they do not know who the driver is
3) No explanation of where indemnity costs can be levied against a keeper
4) No explanation of how they're pursuing the keeper
5) No parking charge reference number (despite being listed as point iii)

2.8 Paragraph 17
The claimant states I was sent a Letter Before Claim in accordance with Practice Direction. This is more misrepresentation.

The only Letter Before Claim received was not in compliance with Practice Direction. Multiple requests were made by me to be sent a compliant Letter Before Claim, but requests were met with no reply.

Paragraph 18 denies I was not aware of the details of the parking charge. Whether I was aware or not, is irrelevant. The claimant consistently fails to provide documents is accordance with Practice Direction.

Paragraph 19 states 'at no point within his appeal correspondence did I mention lack of detail of raise any queries about details'. Again, the claimant is guilty of misrepresentation as my numerous copies of letters and e-mails document. I have pointed out a lack of detail of the claim in every piece of correspondence.
I have stated numerous times there was a brief period of parking at the property where it was not clear to the driver a permit was required.

Signage

2.9 Paragraph 22, 24, 35, 38
The claimant states signage was sufficient at this site and references signs upon entry. Yet on the day in question, not all signs were present. The claimant has provided photographs at the entrance to the site (pages 11, 12, 13, 14 of the claimants witness statement), dated the 27/3/17 and yet there are no photos of these signs dated from the day of the parking charge. You can see at least one is a sticker, stuck to an existing sign. I ask the claimant to prove those signs were present on the 10/7/17 and not removed/vandalized. I believe the claimant has failed to maintain it's signage.

2.10 Page 10 of the claimant's witness statement is an aerial view of the site showing sign locations along with an annotation "PPM two icon 'Parking conditions apply' signs. This is the only type of signage to appear throughout the site".
And yet, on page 12, 13, 18, 19, 37, 38 and 39, you can additional signs that state 'Private Property - Strictly Residents Parking Only' It is under one of these signs that the driver parked under. A sign that makes no mention of a parking permit and is incapable of forming a contract. It is forbidding and makes no offer to park. In UKPC v Masterson B4GF26K6[2016] it was also found the signage was forbidding and so the matter was one of trespass. In Horizon Parking v Mr J C5GF17X2 [2016] it was also found the signage was forbidding and so the matter was one of trespass.


No Contract

2.11 Paragraph 28, 29
I put it to claimant to prove a contract was clearly offered to and accepted by the driver.

2.12 Paragraph 37
The case of Parking Eye vs Bevis 2015 is irrelevant to this case, as this is a residential parking space in a strictly residential car park. The parking is not public, and not a commercial venue.

2.13 Paragraph 40, 41, 42, 43
I put it to the claimant to prove that a parking permit was received/accepted by myself. It is irrelevant anyway as, as per the lease, there is no requirement to display a permit.

2.14 Paragraph 44
As the Managing Agents are not the landowners, any contract they sign with a parking company is not valid. Phil Bacon is not a listed Director for the company, with his role solely as Property Manager on the contract. The Claimant has failed to show any lines of communication between the managing agent and themselves. The Claimant is put to strict proof. There is also no company number listed on the agreement. I would like to add the first time the parking agreement has been provided was the copy in the claimant's witness statement. Multiple requests were refused prior to this.

2.15
The claimant has been a claimant in other cases involving parking agreements signed by persons purporting themselves to be directors of companies of which they are not directors. For example, in the case of Parking & Property Management Limited v John Jones (D4GF31W1) heard at Croydon County Court on 17 November 2017, District Judge Hay found that the person (i.e. Andrew Copley) signing as a director of the Claimant's alleged client (i.e. Premier Ground Rents No.4 Limited) "on any reasonable construction and construal of this document, Mr Copley is holding himself out as purporting to be a director of Premier Ground Rents Number 4, which he simply is not." and that "the entire scheme is invalid and there is no right at the present time for Parking and Property Management to issue parking tickets or to operate a scheme in this estate. So, I am dismissing the claim."

2.16 Paragraph 45
The claimant states 'The lease agreement that exists between the Defendant and the Lessor (Managing Agent) provides for the Lessee to comply with any regulations that the Lessor chooses to introduce for the management of the Estate, in this case the parking enforcement scheme would fall under the same'

The claimant has failed to provide a copy of this lease they have quoted this from and yet in paragraph 39, they question the right to park as if the driver didn't have the protections of a lease.


Section 3: The Claimant has added unrecoverable sums to the original parking charge

3.1 The provision requiring payment of £160.00 is an unenforceable penalty clause and an unfair term contrary to the Consumer Rights Act 2015 and the Unfair Terms in Consumer Contracts Regulations 2008. It has already been established that the ruling of ParkingEye v Beavis [2015] UKSC 67 is not applicable to cases involving residential parking spaces. This is supported by the cases referenced in section 1.9 above.

3.2 Furthermore, Paragraph 4, Schedule 4 of the Protection of Freedoms Act 2012, makes it clear the keeper can only be liable for the amount on the original notice. The original noticed stated the charge was "£100, reduced to £60 if paid within 14 days".

3.3 I deny that any interest is due, because the Claimant has ignored all requested to provide evidence of their authority to claim. As noted in 2.8 above the Clamant has had multiple occasions since XX/XX/XXXX to provide contractual evidence to support their claim and have failed to respond on every occasion.

3.4 Furthermore I submit that the £50 legal representatives cost have not actually been incurred by the Claimant; these are figures plucked out of thin air and applied regardless of facts as part of their roboclaim litigation model in an attempt to circumvent the Small Claims costs rules using double recovery. The Court is invited to report Gladstones Solicitors to the Solicitors’ Regulation Authority for this deliberate attempt to mislead the Court, in contravention of their Code of Conduct.

3.5. I invite the Court to dismiss this claim in its entirety, and to award my costs of attendance at the hearing, such as are allowable pursuant to CPR 27.14.

I believe that the facts stated in this Witness Statement are true.

Signature

Date


Posted by: nosferatu1001 Mon, 22 Oct 2018 - 15:52
Post #1427424

Oh and referencing - INITIALS / 001 is the only way to do it. So EC/001 - a photo showing...

Posted by: ostell Mon, 22 Oct 2018 - 16:28
Post #1427439

You are referencing POFA section 9 but this is only for NO windscreen ticket.

Mention that Jopson v Homeguard was an appeal case and therefore more persuasive.

Posted by: emergencychimp Mon, 22 Oct 2018 - 16:36
Post #1427442

Thanks for the clarification on that. I must admit I was racking my brains trying to determine the reason of having both the section 8 and 9. I don't think it's clear as 6 (1)(b) doesn't state solely a NTK. But that's just me.

I will amend the Jopson v Homeguard.

Posted by: nosferatu1001 Tue, 23 Oct 2018 - 06:29
Post #1427606

In both 8 and 9 a nth is needed, it's just the timescales are different (and that a nth has to repeat the info on a
ntd, if there was a ntd)

Posted by: emergencychimp Tue, 23 Oct 2018 - 10:14
Post #1427666

Should I include a copy of this?

http://parking-prankster.blogspot.com/2016/01/is-independent-appeal-service-kangaroo.html

In case they question why I didn't use IAS?

Posted by: nosferatu1001 Tue, 23 Oct 2018 - 10:17
Post #1427668

I woudlnt include a copy of it, just have to to hand

You can point out that
- the IAS themselves confirmed that they promise to reject 85% of appeals, in a promise made to their members
- that the owners and oeprators of the IAS were, until recently, the same as the owners of the IPC who are the solicitors "overseeing" this claim - Gladstones - and the recent shuffle of directors appears to be a poor attempt at hiding this clear conflict of interests
- that the oeprator evidence is never disclosed, the burden of proof is on the appellant reversing the usual burden, and the asessors are claimed to be legally qualified however this cannot be verified as their identities are hidden. These represent material breachs of the ADR regulations for beign competent ADR.

Posted by: emergencychimp Tue, 23 Oct 2018 - 10:53
Post #1427687

Also, I take it I only need to include schedule 4 of POFA 2012?

Things like NTK, NTD, LBC, do I need those original documents as part of my pack as they are items to be discussed?

Posted by: nosferatu1001 Tue, 23 Oct 2018 - 10:59
Post #1427690

As it is statute they will have access ot it
I would include only those bits of sched 4 you need

Posted by: emergencychimp Tue, 23 Oct 2018 - 16:36
Post #1427806

I'm aiming to get this sent off tomorrow. Any further comments before it's set in stone?

Posted by: emergencychimp Wed, 31 Oct 2018 - 18:32
Post #1429913

Hearing is tomorrow. No sign of gladstones discontinuing it.

I should question the claimant's representative's right of audience right of the bat correct?

Assuming I win, I gather I can only claim 45p per mile, parking and whatever loss of earnings to attend court? What about paper for witness statement and postage and admin stuff like that?

Worst case scenario and I lose for some reason. I should have cash ready to pay on the spot and get a receipt from claimant and take to someone at the court? Can only be £100 max right?

Posted by: Umkomaas Wed, 31 Oct 2018 - 20:34
Post #1429933

QUOTE
I should question the claimant's representative's right of audience right of the bat correct?

Are you confident in your own ability to articulate this to the Judge and argue you corner if he/she starts to get ****** off - that seems more the case of late, I've seen no cases where a defendant has managed to get a Judge to show the claimant's advocate the door.

QUOTE
Assuming I win, I gather I can only claim 45p per mile, parking and whatever loss of earnings to attend court? What about paper for witness statement and postage and admin stuff like that?

Max loss of earnings = £95 - but you need pay slips to prove the amount claimed - for a half day's pay.

You need a cost schedule detailing all your costs. Should have been presented to the court and claimant a day or so before the hearing. Here's how it might be laid out.

https://forums.moneysavingexpert.com/showthread.php?p=72079752#post72079752

Type out and print copies to take with you. Don't let the Judge pack away his papers, then remember your cost as you exit the building! If you win, make sure this is covered before you leave the actual court room.

QUOTE
Worst case scenario and I lose for some reason. I should have cash ready to pay on the spot and get a receipt from claimant and take to someone at the court? Can only be £100 max right?

Lose and you cop for the claimant's costs in bringing the case.

£100 - original PCN.
£25 - case filing fee
£25 - case hearing fee
£50 - (capped max) claimant's Legal costs (if incurred - be prepared to question, ask for invoices, paid receipts etc)
Plus a bit of interest if this has been going on for a while.
So around £200.

But the claimant might try to add on various other costs, so you need to be ready to argue those. What's detailed in the Particulars of Claim?

Posted by: emergencychimp Wed, 31 Oct 2018 - 21:13
Post #1429937

QUOTE (Umkomaas @ Wed, 31 Oct 2018 - 21:34) *
QUOTE
I should question the claimant's representative's right of audience right of the bat correct?

Are you confident in your own ability to articulate this to the Judge and argue you corner if he/she starts to get ****** off - that seems more the case of late, I've seen no cases where a defendant has managed to get a Judge to show the claimant's advocate the door.
To be honest, I read the section on it from Parking Cowboys https://www.parkingcowboys.co.uk/right-of-audience/ And the piece in the Law Gazette linked to in that post.

I trust the following will be provided at the beginning of the hearing re. claimant?

- the name and address of each advocate;
- his qualification or entitlement to act as an advocate [emphasis added]; and
- the party for whom he so acts.’

I suppose it comes down to what is written down for the qualification. I have heard some judges getting arsey with people questioning it. I think it's reasonable considering the complete unprofessionalism displayed from all previous interactions with gladstones. And that I don't trust them at all. Would that be sufficient to question it?


QUOTE
Assuming I win, I gather I can only claim 45p per mile, parking and whatever loss of earnings to attend court? What about paper for witness statement and postage and admin stuff like that?

Max loss of earnings = £95 - but you need pay slips to prove the amount claimed - for a half day's pay.

You need a cost schedule detailing all your costs. Should have been presented to the court and claimant a day or so before the hearing. Here's how it might be laid out.
Thanks. I was not aware this was supposed to have done in advance. I will bring anyway.
https://forums.moneysavingexpert.com/showthread.php?p=72079752#post72079752

Type out and print copies to take with you. Don't let the Judge pack away his papers, then remember your cost as you exit the building! If you win, make sure this is covered before you leave the actual court room.

QUOTE
Worst case scenario and I lose for some reason. I should have cash ready to pay on the spot and get a receipt from claimant and take to someone at the court? Can only be £100 max right?

Lose and you cop for the claimant's costs in bringing the case.

£100 - original PCN.
£25 - case filing fee
£25 - case hearing fee
£50 - (capped max) claimant's Legal costs (if incurred - be prepared to question, ask for invoices, paid receipts etc)
Plus a bit of interest if this has been going on for a while.
So around £200.

But the claimant might try to add on various other costs, so you need to be ready to argue those. What's detailed in the Particulars of Claim?
Particulars of claim are predictably bad.

The driver of the vehicle registration ******* (the 'Vehicle') incurred the parking charge(s) on 10/07/2017 for breaching the terms of parking on the land at Block A & D 1-33 Alexandra Park Queen Alexandra Road High Wycombe Buckinghamshire HP11 2HJ.

The defendant was driving the Vehicle and/or is the keeper of the Vehicle.

AND THE CLAIMANT CLAIMS
£160 for parking charges / Damages and indemnity costs if applicable, together with interest of £7.07 pursuant to s69 of the County Courts Act 1984 at 8% pa, continuing to Judgment at £0.04 per day.



Also, I take it the judge will not ask me to name the driver? I am happy to answer questions and I don't want to appear unhelpful but they won't ask this will they?

As for cost like 'Research, preparation and drafting of documents (3 hours at Litigant in Person rate of £19 per hour) £57.00' How realistic can this be? Obviously if I added up all the time I've wasted it on this, it would probably be a weeks worth of work. What is the max realistic total I could ask for?

Posted by: Umkomaas Wed, 31 Oct 2018 - 23:01
Post #1429963

QUOTE
Also, I take it the judge will not ask me to name the driver? I am happy to answer questions and I don't want to appear unhelpful but they won't ask this will they?

A Judge will ask what a Judge wants to ask. No one can give you any guarantee on that - you just need to be ready for it. It's been discussed many times during the period over the past 15 months your case has been 'live' on this forum, surprised you haven't picked this up previously.

QUOTE
As for cost like 'Research, preparation and drafting of documents (3 hours at Litigant in Person rate of £19 per hour) £57.00' How realistic can this be? Obviously if I added up all the time I've wasted it on this, it would probably be a weeks worth of work. What is the max realistic total I could ask for?

To get much more than the basic loss of earnings, a few miles @ 45p and a bit of parking on your day in court (a fiver, or thereabouts), to get much more you're going to have to argue successfully that the claimant has been unreasonable in pursuing this for any meaningful costs beyond the above. Try for a few hours L-I-P, see how you get on .... unless you're going to do lots of research and analysis on 'unreasonable behaviour' and be able to document it then articulate/argue it in front of the Judge - then you might decide to forget any larger amount.

Posted by: emergencychimp Wed, 31 Oct 2018 - 23:40
Post #1429965

I've read read many threads over the past few years on here and I have genuinely never come across that discussion.

OK. Thanks. I'll stick with the standard few hours LIP. I don't want to waste any more time on it.

Posted by: nosferatu1001 Thu, 1 Nov 2018 - 10:28
Post #1430010

Rememebr it is loss of pay OR leave - so if you took holiday, then you get this as well. BRing proof.

You have no chance of claiming ANY LIP time UNLESS You show they have been unreasonable. CPR27.14(2)(g). Your costs are as told - ordinary costs at max £95, parking and mileage.

They obvious £60 you will be arguing against them claiming, IF you lose - the original NtK was £100, £60 is costs they HAVE NOT incurreed and you would not be liable for anyway.

Posted by: emergencychimp Thu, 1 Nov 2018 - 15:24
Post #1430124

Well, I lost this. My two strongest points, the non valid parking agreement and POFA2012 non compliance did not hold any water with the judge.

Despite there being no period of parking noted on the NTD, he said it complied as para 9 was compliant. In the heat of the moment I mixed up para 9 for no NTD with NTH stuff so didn't question it any further.

The judge also deemed the parking agreement to be legitimate and said in the PPM v Jones case, the judge was wrong as it's actually voidable if all parties agree, rather than it's void.

Posted by: nosferatu1001 Thu, 1 Nov 2018 - 15:31
Post #1430131

Wait, the judge misdirected themself and didnt look at Para 14?
Could be wroth an appeal then.

Posted by: emergencychimp Thu, 1 Nov 2018 - 15:36
Post #1430138

The judge mentioned a cost for appealing. How much would that be?

Posted by: nosferatu1001 Thu, 1 Nov 2018 - 15:44
Post #1430149

Its still small claims, so likely an application costing £255

You need to see what others sya

What was the jyudgement against you? Remember you MUST pay within one month to avoid the CCJ staying on your file

Posted by: emergencychimp Thu, 1 Nov 2018 - 17:50
Post #1430221

What was the judgment? As in how much did I have to pay? £200.

Posted by: emergencychimp Sun, 18 Nov 2018 - 22:46
Post #1435169

Thoughts on my appeal?

I would like to appeal the judgement for case XXXXX that was recently sat in XXXX on 1/11/18.

My reason for appealing is that the judge was not fully familiar with the Protection of Freedoms Act 2012 on which my argument utilized and misread a key aspect.

I maintain that the notice to driver was not compliant with the Protection of Freedoms Act 2012 as no time period was noted. The judge mistakenly read from paragraph 9 and believed that as the notice to keeper contained times on the included photographs, this was sufficient to make the notice to driver valid.

Paragraph 9 is not applicable to this case as it is for parking charges administered by ANPR and other situations where there was no notice to driver.

On these grounds, the notice to driver did not comply with the Protection of Freedoms Act 2012.

Posted by: Jlc Sun, 18 Nov 2018 - 22:58
Post #1435171

I don't personally subscribe to that argument. A period of parking is usually given as a time preceding the given time when it's a permit situation. (Unlike an ANPR in/out situation)

Posted by: emergencychimp Sun, 18 Nov 2018 - 23:14
Post #1435173

Surely it still has to state 'The period the car was parked' to comply?

Posted by: Jlc Sun, 18 Nov 2018 - 23:24
Post #1435175

It’s an argument but I’m not convinced it’s persuasive.

Posted by: emergencychimp Sun, 18 Nov 2018 - 23:50
Post #1435179

To be honest, the whole thing showed me what a farce the legal system is. I don't know what's worth arguing anymore.

Stuff like Pre Action Conduct is basically a waste of time and completely meaningless. The judge said it doesn't matter if they completely ignore them. 'They just might not be awarded costs if they don't comply'.

The judge completely disregarded my tenancy agreement argument as the driver was not named on the lease. Yeah, visitors generally won't be...

He didn't agree the parking agreement was invalid despite only being signed by someone from the leasehold management company acting as the secretary. No second authorised signatory as per Companies Act 2006 Section 44. Should I raise this argument again?

It's there in black and white, that the NTD needs a period of parking on it. I did not for one second think this was a grey area. I don't know what to think now.

Posted by: ManxRed Mon, 19 Nov 2018 - 08:51
Post #1435203

QUOTE (emergencychimp @ Sun, 18 Nov 2018 - 23:50) *
He didn't agree the parking agreement was invalid despite only being signed by someone from the leasehold management company acting as the secretary. No second authorised signatory as per Companies Act 2006 Section 44. Should I raise this argument again?


I don't think that's a strong argument either. I've executed hundreds of contracts in my time going back to mid 90's and NONE of them were signed by two directors.

Posted by: emergencychimp Mon, 19 Nov 2018 - 13:46
Post #1435291

Yeah, I saw there were some doubters in this thread too.

http://forums.pepipoo.com/lofiversion/index.php/t117947.html

It just makes no sense to me. All of this stuff is written down in Acts and yet, it doesn't matter if it's followed. How is a layman supposed follow this?

So is the consensus it's not worth appealing then?

Posted by: nosferatu1001 Mon, 19 Nov 2018 - 14:12
Post #1435301

The Act gives another route to signing, and the one singl,e claim ive seen wher ther D won on the not two direction ssection the judge misdirected themselves, at a guess, as they thought it was the ONLY way it oculd be signed. this is clearly not true

PAP is just that. A Protocol.

It is your choice. I tis not the strongest point to appeal on.

Posted by: emergencychimp Mon, 19 Nov 2018 - 14:21
Post #1435308

Heres the section. Is there another route to signing? It seems to me a secretary and a random from the parking company doesn't fulfill the requirement but I'm not familiar with all this.

44Execution of documents

(1)Under the law of England and Wales or Northern Ireland a document is executed by a company—

(a)by the affixing of its common seal, or

(b)by signature in accordance with the following provisions.

(2)A document is validly executed by a company if it is signed on behalf of the company—

(a)by two authorised signatories, or

(b)by a director of the company in the presence of a witness who attests the signature.

(3)The following are “authorised signatories” for the purposes of subsection (2)—

(a)every director of the company, and

(b)in the case of a private company with a secretary or a public company, the secretary (or any joint secretary) of the company.

(4)A document signed in accordance with subsection (2) and expressed, in whatever words, to be executed by the company has the same effect as if executed under the common seal of the company.

(5)In favour of a purchaser a document is deemed to have been duly executed by a company if it purports to be signed in accordance with subsection (2).

A “purchaser” means a purchaser in good faith for valuable consideration and includes a lessee, mortgagee or other person who for valuable consideration acquires an interest in property.

(6)Where a document is to be signed by a person on behalf of more than one company, it is not duly signed by that person for the purposes of this section unless he signs it separately in each capacity.

(7)References in this section to a document being (or purporting to be) signed by a director or secretary are to be read, in a case where that office is held by a firm, as references to its being (or purporting to be) signed by an individual authorised by the firm to sign on its behalf.

(8)This section applies to a document that is (or purports to be) executed by a company in the name of or on behalf of another person whether or not that person is also a company.

Posted by: emergencychimp Wed, 13 Feb 2019 - 13:23
Post #1461784

Well, I'm back. And after an utter fustercluck at the hands of the court staff, my request to appeal has been allowed.

Is there guidance for this stage anywhere? MSE?

Posted by: nosferatu1001 Wed, 13 Feb 2019 - 13:51
Post #1461801

In a nutshell, not really
WE rarely see appeals
You need to do your own research.

Posted by: chapinahat Wed, 13 Feb 2019 - 20:45
Post #1461972

Hi

Not sure what happens next other than it is in the CPR rules and likely in the explanatory notes of the appeal forms.

Your points about the validity of the Management Contract held by C P M being void for non compliance with CA2006 section 44. This is complicated and on what you have written here is not in your reason for appeal.
First find out if you can introduce it. You are appealing on the law not being applied correctly so is this signing matter a similar error by the judge?
Second where is the fault. Did CPM sign incorrectly? The leaseholder/freeholder is not party to the claim unless you add them via counter claim?

There is no knowledge I have to direct what you need do other than to read, read, read and ring the clerks for clarification on the stages in the CPR you are uncertain of. Your clock will be ticking from the day you received permission to appeal

ATB

Posted by: emergencychimp Sat, 11 May 2019 - 16:56
Post #1484365

Sorry guys, I forgot to update this. I won my appeal!

The appeal was moved to a central London court as the judge had moved there instead of my local-ish original court.

I signed in with the usher and was told "oh, we were told you wouldn't be attending" which was odd as I had never told them this. I immediately thought, "brilliant, hopefully that means Gladstones couldn't be bothered to turn up. Maybe this will be an easy win". I sat and waited and my case was called. Gladstones definitely was a no show.

The judge explained that the consummate Professional, Mr. David Blake had sent an informal e-mail 20 minutes before the hearing was due to start explaining that he was suffering from food poisoning and wouldn't be able to make it and asked for it be adjourned. The judge made it clear she thought the excuse was piss poor and questioned why Gladstones couldn't have sent someone else instead. She was also not impressed he didn't use the official way to notify of an absence. She asked me if I would like to carry on in the absence of Mr. Blake. Of course I said yes.

The judge made it clear immediately that she had already made her decision and that she would be finding the appeal in my favour. She offered me a chance to say my piece but I declined, not wanting to waste more time than necessary.

I raised two points in my appeal. The first point was the parking agreement being invalid due to the signatures. This was a weak point anyway and I only raised it as a 50/50 chance due to PPM v Jones case. The Judge stated that Judge Hay had got that wrong. Fair enough.

My other appeal point was non PoFA12 compliance due to no time period noted on the NTD and NTK (though there were time stamps on the photos on the NTK).

The judge seemed quite shocked the judge at my initial hearing deemed them compliant as it's there in black and white that the time period is needed. I explained that the previous judge deemed them compliant as he thought that as it says in Para 6 it says "or has given a notice to keeper in accordance with paragraph 9". He seemed to think that by complying with para 9, that removed needing to comply with 7 and 8.

I explained that that it's either compliance with 7 and 8 or 9, as they are for two different situations. The judge still couldn't grasp this but said it was irrelevant as the NTK didn't have the time period noted. I didn't bother trying to explain it any further.

In summary, the judge made it clear she thought it was a bit of a greasy way to get out of it, but it is what it is. Another PPC Gladstoned.

Posted by: bobbione Sat, 11 May 2019 - 19:42
Post #1484391

Have appeal hearing this month after awful court case.

Well done on seeing it through .

Posted by: Jlc Sat, 11 May 2019 - 20:59
Post #1484420

icon_thumleft.gif

Posted by: emergencychimp Sat, 11 May 2019 - 23:51
Post #1484442

QUOTE (bobbione @ Sat, 11 May 2019 - 19:42) *
Have appeal hearing this month after awful court case.

Well done on seeing it through .

Good luck with it.

Thanks again for everyone's help with this.

Posted by: Umkomaas Sun, 12 May 2019 - 20:19
Post #1484605

QUOTE
Sorry guys, I forgot to update this. I won my appeal!

Almost two years from the start of this thread and over 200 inputs later, the update comes three months after the court case. As it’s an appeal, the result carries more significance than a run of the mill judgment. This might have helped others earlier this year.

Anyway, we’ve got the detail now. Thanks for the info.

Posted by: emergencychimp Sun, 12 May 2019 - 22:04
Post #1484626

The hearing was March so 2 months. I wrote the draft update on the train home but couldn't post from my phone and I only just realized I never actually posted it. Apologies.

Posted by: ostell Mon, 13 May 2019 - 07:25
Post #1484655

As it's an appeal could you post up the details, ie case No and judge

Posted by: kmoosa Mon, 17 Apr 2023 - 15:40
Post #1774333

Hi guys, looking for any further details on this one as I'm in a very similar situation to Emergencychimp and would like to quote the appeal case details at my hearing, if anyone can help?

Posted by: Umkomaas Mon, 17 Apr 2023 - 20:46
Post #1774379

QUOTE (kmoosa @ Mon, 17 Apr 2023 - 16:40) *
Hi guys, looking for any further details on this one as I'm in a very similar situation to Emergencychimp and would like to quote the appeal case details at my hearing, if anyone can help?

Last input on this thread was almost 4 years ago - now pretty much irrelevant, lots have water has passed under this bridge since.

Please start a new thread of your own with redacted copies of what you've receive and details of what your parking charge is all about.

Posted by: kmoosa Tue, 18 Apr 2023 - 12:26
Post #1774500

QUOTE (Umkomaas @ Mon, 17 Apr 2023 - 20:46) *
QUOTE (kmoosa @ Mon, 17 Apr 2023 - 16:40) *
Hi guys, looking for any further details on this one as I'm in a very similar situation to Emergencychimp and would like to quote the appeal case details at my hearing, if anyone can help?

Last input on this thread was almost 4 years ago - now pretty much irrelevant, lots have water has passed under this bridge since.

Please start a new thread of your own with redacted copies of what you've receive and details of what your parking charge is all about.


Thanks, will do that

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