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CCJ - Gemini Parking, HELP!!
Trixie2
post Fri, 22 Sep 2017 - 15:09
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Hello all and thanks in advance for your help here.

I was recently turned down for a credit card, which really surprised me as I know I have a good credit rating. When I got home I looked at my credit file and to my horror someone had taken out a CCJ against me, at my old address.

After a lot of digging it turns out it's a PPC. The ticket was received in January 2016 by Gemini Parking. I remember the day - the machine would not accept the driver's coins and when the button for help was pressed no one answered. No choice but to leave the premises and a couple of weeks later a ticket arrived in the post to me as the registered keeper. I was so busy with an incredibly stressful house move that kept almost falling through at the last minute, that I thought I'd appeal later. I forgot.

We eventually completed and on March 1st 2016 we moved house. We had a redirection on our post for a few weeks - plus I updated my details with the DVLA.

Now fast forward to today and I find out indirectly that in January 2017 they went to court in Northampton and got a CCJ completely without my knowledge. The court said the mail was never sent back to them - not much I can do about that as I don't know the new owners.

They said I can either pay the debt and the CCJ will remain on file for 6 years, or I can pay £255 to apply to have it set aside. Problem with that is, the judge might not find in my favour and then I still have to pay £260 for the debt.

What on earth do I do?? Should they have attempted to double check my address when they went to court?

Any help will be greatly appreciated.

Thanks.

This post has been edited by Trixie2: Thu, 28 Sep 2017 - 12:44
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post Fri, 22 Sep 2017 - 15:09
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Trixie2
post Wed, 27 Sep 2017 - 21:34
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QUOTE (kommando @ Wed, 27 Sep 2017 - 22:25) *
Later when they come to raise a claim they are supposed to use a tracing company


Thanks Kommando. Do they HAVE to? Gemini told me this is no longer anything to do with them and it was taken over by DRP and Gladstones (despite Gemini being mentioned in the court papers). So would it have been Gladstones that had to use a tracing company?
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SchoolRunMum
post Thu, 28 Sep 2017 - 00:10
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QUOTE (Trixie2 @ Wed, 27 Sep 2017 - 21:12) *
Hi all. Thanks for your help so far. I've read all the links you provided but am slightly concerned that none are like mine. At the time the original PCN was issued and reminder notice I was still at the address they wrote to but I didn't respond. I only moved a month or so later and didn't update the DVLA for another month. When the claim went to court I had been in my new address for 9 months but I'm not sure if they'd have to double check at the point of court applications if they had the right address.

Any advice on what my defense might be for ignoring would be hugely appreciated.

Never mind the first letter that had all the hallmarks of a scam, fake parking 'ticket' as outed years ago by Watchdog. You were ALLOWED to ignore it.

The fact is, you didn't get the court claim, and your silence for months should have suggested that their letters might not be reaching you - instead they've misused the court system as a cheap form of debt collection/CCJs by default. The entire industry is rotten and parking firms were singled out by the Government here:

https://www.gov.uk/government/news/new-meas...rom-debt-claims

http://parking-prankster.blogspot.co.uk/20...iew-due-to.html

Use that to convince the Judge the innocent party is you, and also write a defence in readiness, to show you have a high chance of successfully defending what was a vexatious and meritless claim from the outset. As per all the other threads about CCJ set asides.

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nosferatu1001
post Thu, 28 Sep 2017 - 07:59
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As above, really
Oh, and defenCe. UK spell check please!

You need to show that GOOD SERVICE of the claim forms was not given. You can say for 5) that you presume letters were returned but you cannot be sure - and dont have to be.

At your new address were you

On the electoral register?
Driving licence?
Utility bills there?

ERtc. ANYTHING showing you lived at that address, and would take literally FIVE MINUTES for a tracing company to find, shows that you were "3there to be found". That they did not get any response from you at the original address should have told any responsible firm that you may have moved - especailly given the length of time - and so they should have used a tracing firm. You were not hiding, if they had bothered they could have found you

As such good service of the claim was not made, meaning the set asidew SHOULD BE automatically granted. Again, you missed that you MUST ask the court, as part of your draft set aside order that YOU WRITE, to get gemini to pay you the £255 back. They appointed GS, so GS failing to do their job is the fault of Gemini.

IN ADDITION you write a defence, JUST IN CASE the court decides the claim forms were served. This must be ONE PAGE and NO MORE of A4.

As long as the driver has NOT been identified, then you can talk about POFA compliance. If they know who the driver is, and the claim was against them, then you cannot talk about POFA. It is irrelevant.

If the driver was NOT identified to them, edit ALL your posts to ensure they only talk about "the driver" - no "i", "she", "he" etc. You defnd this as the KEEPER at all points.

You defence has multiple grounds
No keeper compliance (if true)
parking paid for (if true)
no standing
signage woeful and incpable of offering a contract
forbidding signs (if they are forbidding, i.e.. permit holders only forbids anyone else from parking there)
amount is a clear penalty with no commercial justification (this has to be CAREFULLY written. Absolutely NEVER mention GPEOL)

Get on with this now, you've gotten more than enoughj to get a defence wtritten. Show it us ASAP.
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Trixie2
post Thu, 28 Sep 2017 - 12:42
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Thank you thank you thank you!

Parking was not paid as machine would not accept money. No one answered the help button that was pressed twice and the kiosk was not manned. The driver had no choice but leave the premises.

I was not on the open register but my company was connected to that address and they could have got my registered company address and served papers there, which would have been forwarded on to me by my accountant by registered post.

Will get the defence sorted asap. Court sending copy judgement, council sending council tax bill to show I lived at my current address for 9 months when the papers were served. I can also print out my notice of completion from the solicitor to show the house was sold on 1st March 2016, and a print out of 192.com that shows the house was sold on that date. There's no doubt I was not living there.

Will go later to get photos of the hospital carpark.
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Trixie2
post Thu, 28 Sep 2017 - 12:52
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Ps I found this on another thread..... How can I find out the POPLA appeal number so I can quote it? It's the same hospital a few months after mine was issued:

DecisionSuccessful
Assessor NameAdele Brophy
Assessor summary of operator case
The operator advises that the Parking Charge Notice (PCN) was issued due to failure to pay for the duration of stay.

Assessor summary of your case
The appellant’s case is that the operator has not complied with the equality act 2010 and has issued a non-compliant Notice to Keeper. The appellant states that the terms and conditions are unfair and the operator has no standing authority to pursue charges or form contracts with drivers. The appellant further advised that the Parking Charge Notice (PCN) is not a genuine pre – estimate of loss, and the signage at the site was not clear.

Assessor supporting rational for decision
Whilst the appellant has raised a number of grounds for appeal, my report will focus on genuine pre-estimate of loss as this supersedes all other grounds for appeal. The legality of parking charges has been the subject of a high profile court case, ParkingEye-v-Beavis. Cambridge County Court heard the case initially, handing down a decision in May 2014 that a parking charge of £85 was allowable. It held that the parking charge had the characteristics of a penalty, in the sense in which that expression is conventionally used, but one that was commercially justifiable because it was neither improper in its purpose nor manifestly excessive in its amount. Mr Beavis took the case to the Court of Appeal, which refused the appeal in April 2015, stating that the charge was neither extravagant nor unconscionable. Mr Beavis further appealed to the Supreme Court, which on 4 November 2015, concluded: “…the £85 charge is not a penalty. Both ParkingEye and the landowners had a legitimate interest in charging overstaying motorists, which extended beyond the recovery of any loss. The interest of the landowners was the provision and efficient management of customer parking for the retail outlets. The interest of ParkingEye was in income from the charge, which met the running costs of a legitimate scheme plus a profit margin. Further, the charge was neither extravagant nor unconscionable, having regard to practice around the United Kingdom, and taking into account the use of this particular car park and the clear wording of the notices.” As such, it is evident that I must consider whether the signage at the location was sufficient to bring the parking charge to the attention of the appellant and other motorists who may wish to park. Within Section 18.1 of the BPA Code of Practice it states that “A driver who uses your private car park with your permission does so under a licence or contract with you. If they park without your permission this will usually be an act of trespass. In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start. You must use signs to make it easy for them to find out what your terms and conditions are.” Furthermore, Section 18.3 of the BPA Code of Practice states, “You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand”. Within its response, the operator has provided a number of photographs documenting the signage at the location.. Upon close inspection of these photographs, I note that the parking charge is noted on several of these. However, the Supreme Court stated that the parking charge must be “clear”. Based on the evidence provided, I can only conclude that the signage in place does not meet the standards outlined by the Supreme Court in that the “wording of the notices” are not sufficiently “clear” to bring the parking charge to the attention of the appellant and other motorists who use this car park. In light of this, I can only conclude that the operator has failed to demonstrate it issued the Parking Charge Notice (PCN) correctly and so while I note the other grounds of appeal raised by the appellant, these do not require any further consideration.
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nosferatu1001
post Thu, 28 Sep 2017 - 13:38
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It wont help to have the number really, as you can just quote the decision. it isnt binding on the court at all

Rememebr defence is one page and one page only. Short sharp LEGAL arguments - for example attempted o comply with the supposed contract but was frustrated by the failure of THEIR machine.
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Trixie2
post Thu, 28 Sep 2017 - 22:20
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OK this is my first bash at it. I have combined a few similar cases and added my own bits in etc. What are your initial thoughts?

I am XXX and I am the Defendant in this matter.

This my supporting Statement in support of my application dated 27/9/17 to:

• Set aside the Default Judgement dated XXXXX as it was not properly served at my current address;
• Order for the Claimant to pay the Defendant £255 as reimbursement for the set aside fee; £18 reimbursement for 192.com subscription, £59 daily childcare cost needed to formulate defence.

1. Default Judgement
1.1. I understand that the Claimant obtained a Default Judgement against me as the Defendant in XXX 2017. However, this claim form has not been served at my current address and I thus was not aware of the Default Judgement XXXX. I only became aware of it when I was doing a routine check on my credit file. I understand that this Claim was served at an OLD ADDRESS (XXXXX). However, I moved to a new address on March 1st 2016, 10 months before the application to court was made. In support of this I can provide confirmation from Hertsmere Council showing my updated details for the purposes of paying Council tax. I can also provide a summary of completion from my conveyancing solicitor.

1.2 On 25th September 2017 I contacted Gemini Parking and spoke with XXX. She advised me that on 2nd April 2016 the case had been transferred to a debt collection agency, DRP, and then onto Gladstones Solicitors. She advised me that the case was no longer connected to Gemini Parking Solutions but did agree to send copies of the parking notices relating to this case.

1.3 I have never received any documentation from DRP or Gladstones Solicitors in this matter and I thus was never able to properly challenge this claim.

1.4 On 25th September 2017 I contacted DRP about this case. I was told they could not access any information on their systems as it had been transferred to Gladstones Solicitors.

1.5 I have made numerous calls to Gladstones Solicitors, all of which have gone unanswered, and I was unable to leave a voice message. I have since e mailed the company and received a bounce back e mail stating my communication would be answered in 28 days’ time. This means I still do not have any details of correspondence they might have sent me.

1.6. On Saturday 23rd September, I visited my old address and spoke to the current owner, XXXX. She advised me that all mail that was received at her address, XXXX, during 2016, after our mail redirection ended, was returned to sender, and clearly marked ‘no longer at this address’.

1.7 I believe the Claimant knew I no longer lived at the address they gave to the court, and has behaved unreasonably in pursuing a claim against me without taking reasonable steps to find a current and correct address for me at the time of issuing the Claim. It is obvious from the 192.com website that the house was sold on March 1st 2016 (see print out of 192.com entry). A tracing company would have been able to find me at my new address.

1.8. On the basis provided above I would suggest that the Claimant did not fulfil their legal duty to use my current address when bringing the claim.

1.9. A simple Google search of my full name brings up the name of my Ltd company, which is connected to my old address. The Companies House website, lists my company’s registered address. The Defendant had the opportunity to serve papers there, which would have been re-directed onto me at my current address. (See print out from Companies House website)

1.10. Considering the above I was unable to defend this claim properly. I thus believe that the Default Judgement against me was issued incorrectly and thus should be set aside.

2. Order for the original claim to be heard a re-hearing.

I understand that the Claimant is a Parking Company which seeks to claim for “parking charges” which the Claimant believes are due as a result of an alleged breach of contract for parking by a motorist.

I contend that I am not liable for the parking charge and the grounds for this are laid out below in further detail, and in summary are:

• Non-compliant ‘Notice to Driver’, and ‘Notice to Keeper’, rendering it invalid with no keeper liability.
• no contractual agreement formed with the driver due to unclear, inadequate and non-compliant signage

Summary of Events
2.1. On the XXX 2016 the driver pulled into the car park at Chase Farm Hospital for an appointment. Upon leaving the hospital the driver attempted to pay with cash. The machine did not accept the pound coins the driver was attempting to pay with and having no other means to pay, went to look for an operative in the booth adjacent to the machine. Upon finding the booth empty, the driver pressed the help button next to the machine. The call went unanswered and eventually cut off. The driver pressed the button again and waited but again the call went unanswered and eventually cut off. With no other option left, the driver returned to the car and left the premises.

2.1.2 It appears from copies sent to me by the Claimant, that a ‘Notice to Driver’, and a ‘Notice to Keeper’ was the sent to me, the Registered Keeper, stating a ‘parking charge’ was due, due to a breach of contract.

Non-compliant ‘Notice to Driver’, and ‘Notice to Keeper’
2.2. I assert that the Parking Notices, issued by the Claimant, do not comply with strict stipulations set out under the Protection of Freedoms Act, 2012, herein after referred to as PoFA, and therefore the Keeper is not liable for the charges.

2.3. Schedule 4 paragraph 9 of PoFA stipulates that some mandatory information must be included in the Notice to Keeper. If all of this information is not present then the Notice to Keeper is invalid and a parking company can only potentially pursue the (unidentified) driver.

2.4 The NTK issued by the Claimant is non-compliant under the POFA 2012, Schedule 4 paragraph 9 for the following 5 reasons:

9(2)(a). The NTK fails to specify the relevant land on which the car was parked. It simply states ‘Chase Farm’. This could either mean the fire station or the hospital (which in itself covers a large area of land). There are over 500ft between the fire station and the hospital, and are mutually exclusive. The NTK also fails to note the period of parking.

9(2)(b). The NTK fails to inform the keeper that the driver is liable for the parking charge and the amount, and that it has not been paid in full.

9(2)(e) The NTK does not state that they don’t know the name of the driver or the current address for the service of the driver.

9(2)(h) The NTK does not identify the creditor.

9(2)(i) The NTK does not specify the date the Notice was sent.

2.5. A Notice to Keeper is a fundamental document in establishing keeper liability. The requirements of Schedule 4 of POFA 2012 and the mandatory detail and wording to ensure a Notice to Keeper is compliant are prescriptive, unequivocal and a matter of statute, not contract law. Any omission or failure to set out the mandatory Notice to Keeper wording renders it non-compliant, meaning the keeper is not liable for any charges.

No contract formed due to unclear, inadequate, and non-compliant signage
2.6. I understand the Claimant asserts that the ‘parking charge’ relates to a breach of contract. I contend that no such contract was formed when the driver entered the car park on XXX 2016, due to signage, which did not comply with the BPA Code of Practice, or Supreme Court rulings, both of which state that for a contract to be formed, the binding terms and conditions must be ‘clear’ and ‘intelligible’, and bring the parking charge to the attention of the motorists who use the car park.

2.3. The requirement to pay £100 is not clear on many of the signs at Chase Farm Hospital, and none of the signs that are directed to the disabled driver are prominent as the Supreme Court commented on in ParkingEye Vs Beavis. Such an onerous obligation should be the most prominent part of the sign, as is stated in Lord Denning's Red Hand Rule. (Please see attached photos of signage at the car park in question)

2.4. Furthermore, The BPA Code of Practice states under appendix B, entrance signage:
“The sign must be readable from far enough away so that drivers can take in all the essential text without needing to look more than 10 degrees away from the road ahead.”
I have included a photograph of the sign drivers pass as they enter the car park. ‘PAY ON EXIT’ is the only text which is prominently displayed and intelligible to drivers, but no other essential text is readable from the car as you drive into the car park.

2.5. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. Nothing about Claimant’s 'parking charges' was sufficiently prominent and it is clear that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance and fairness and transparency of terms offered in good faith) were not satisfied.

2.5.a. Furthermore, the BCP Code of Practice states that a mix of colours should not be used on signage as it could cause problems for people who have impaired colour vision. Many of the signs at Chase Farm Hospital are a mix of red and yellow, making them difficult to read, especially for me as I am almost totally colour blind.

2.6. I can also cite a recent case in which the Claimant pursued a claim for non-payment of a PCN at the same location of Chase Farm Hospital. The claim was dismissed at POPLA stage. A reason for dismissal was that the signage ‘does not meet the standards outlined by the Supreme Court, in that the ‘wording of the notices’ are not sufficiently clear to bring the parking charge to the attention of the appellant and other motorists who use this car park. The assessor concluded that ‘the operator has failed to demonstrate it issued the Parking Charge Notice (PCN) correctly’.

2.7 I contend that when the Claimant pursued this Claim in January 2017, they were fully aware their signage was non-compliant, due to the POPLA decision mentioned above, rendering any PCNs issued invalid.

2.8. I further submit that the Claimant’s claim is without merit due to substantial issues in law. This is for the following main reasons:

2.8.1. Lack of Standing by Claimant: The Claimant is unlikely to be the landowner of the car park in question, and will have no proprietary interest in it. This means that the Claimant, as a matter of law, will have no locus standi to litigate in their own name. Any consideration will have been provided by the landholder, and only they would have been able sue for any damages or trespass.

2.8.2. No Loss Suffered by Claimant: Their claim of £271 is presumably based on damages for the alleged breach of contract. It is a fundamental principle of English Law that a party who suffers damages through breach of contract can only seek through court action to be put back in the same position as they would have been if the breach had not occurred. In order to do so, they must demonstrate their actual, or genuine, pre-estimate of loss. I submit that had a contract been formed on XXX 2016, no loss was suffered by the Claimant as a result of any alleged breaches of contract on the part of any motorist of the vehicle of which I am the Registered Keeper. I further submit that any loss to the landholder (which would be the only party able to claim such losses) would be at most a few pounds.

2.9 On this basis I believe that the Claimant has not provided any reasonable cause of action and the claim should be dismissed in its entirety.
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nosferatu1001
post Fri, 29 Sep 2017 - 07:02
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192.com subs - how on earth will they HAVE to pay for that? Nowhere do you even say it is a direct cost of you having to apply for the set aside, so why should they pay?
No hope on childcare costs
Literally we said the set aside fee. Assuming this goes to a hearing you can submit a schedule of costs a day before which would include half a day of work max, for loss of pay OR loss of leave (take along CPR27.14(e) I think which says loss of leave is claimable. easy enough to find)

No "i can provide" - you DO provide! Reference them into your WS.
we said give as much as possible. You've shown the house was sold, and ONE item to show your new address
How about - utility bills in your name, mobile phone, driving licence (NOT V5, driving licence), presence on electoral register, etc? I wouldnt really use the ltd company too much, and not as its own point. YOu want a single, concise point showing you were there to be found.

It was not "issued" incorrectly, it was never SERVED to you. Good service is the key phrase to use. Without good service the set aside should be automatically granted.

You want a witness statement signed by a statement of truth for this, I would say. I think the form even says so?

2 Order for hearing -why? You could say the claim has no merit as the claimant has not complied with the only legislative route open to them to pursue the Keeper of a vehicle, namely POFA2012, and as such you ask the court to strike the claim of its own volition. In the alternative, you ask the court to Order the claimant to produce Further and Better Particulars of Claim that fully specify the claim, as per the PDs and CPRs, and explain how a Keeper of a vehicle is liable in law when the requirements of POFA have not been met.

2.1.2 - if it was ANPR, then NO NtD is ever sent. The first communication MUST be the NtK, sent so it would be received within 14 days.

2.8.2 - no no no no no

Do NOT argue GPEOL. Its dead and buried. What you need to say is that the Beavis case supports your defence, as the penalty rule is clearly not disengaged in a case with unclear signage, where no contract was formed as the driver attempted to pay but left due to a failure by the claimant to maintain their machines in a fit and proper state, and where the terms have not been made abundantly clear enough to meet Lord Dennings "Red Hand Rule" (basically, and dont include this bit, onerous terms should be as obvious as if the sign had a huge red hand pointing at the terms in question)

For a new 2.8.2, You state the amount is instead unrecoverable, as POFA sets out that the only amount the keeper can be liable for is the amount in the Notice to Keeper, namely £X, and therefore...

How do you understand it is breach of contract? Have you had this confirmed somewhere? Usually GS particulars are woeful. In fact, that reminds me - youre missing the entire Preliminary Matters section found in all 2017 GS defences. Try here or MSE Forum - I believe Jonnersh or Loadsofchildren, both legally qualified, wrote them.

Wait on others feed back.
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Trixie2
post Fri, 29 Sep 2017 - 08:56
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OK thank you. Will re-write later when toddler isn't needing me.
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Trixie2
post Sat, 30 Sep 2017 - 08:52
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Hi. Here it is again. Apologies I've no legal training and have never had to write anything like this before, so please excuse any mistakes I make. What does PDs stand for? And what is a statement of truth? How do I lay it out?

I am XXX and I am the Defendant in this matter.

This my supporting Statement in support of my application dated 27/9/17 to:

• Set aside the Default Judgement dated XXXXX as it was not properly served at my current address;
• Order for the Claimant to pay the Defendant £255 as reimbursement for the set aside fee.

1. Default Judgement
1.1. I understand that the Claimant obtained a Default Judgement against me as the Defendant in XXX 2017. However, this claim form has not been served at my current address and I thus was not aware of the Default Judgement XXXX.

I only became aware of it when I was doing a routine check on my credit file. I understand that this Claim was served at an OLD ADDRESS (XXXXX). However, I moved to a new address on March 1st 2016, 10 months before the application to court was made.

In support of this I will provide confirmation from Hertsmere Council showing my updated details for the purposes of paying Council tax. I will also provide a summary of completion from my conveyancing solicitor, utility bills in my name at my current address, mobile phone bills, and my driver’s license. The Claimant also had the opportunity to serve the claim at my limited company’s registered address, which was easy to find. In support of this I will submit Company House details of my company showing the registered address.

1.2 On 25th September 2017 I contacted Gemini Parking and spoke with XXX. She advised me that on 2nd April 2016 the case had been transferred to a debt collection agency, DRP, and then onto Gladstones Solicitors. She advised me that the case was no longer connected to Gemini Parking Solutions but did agree to send copies of the parking notices relating to this case.

1.3 I have never received any documentation from DRP or Gladstones Solicitors in this matter and I thus was never able to properly challenge this claim.

1.4 On 25th September 2017 I contacted DRP about this case. I was told they could not access any information on their systems as it had been transferred to Gladstones Solicitors.

1.5 I have made numerous calls to Gladstones Solicitors, all of which have gone unanswered, and I was unable to leave a voice message. I have since e mailed the company and received a bounce back e mail stating my communication would be answered in 28 days’ time. This means I still do not have any details of correspondence they might have sent me, and no evidence appears to have been submitted to the County Court in support of their claim.

1.6. On Saturday 23rd September, I visited my old address and spoke to the current owner, XXXX. She advised me that all mail that was received at her address, XXXX, during 2016, after our mail redirection ended, was returned to sender, and clearly marked ‘no longer at this address’.

1.7 I believe the Claimant knew I no longer lived at the address they gave to the court, and has behaved unreasonably in pursuing a claim against me without taking reasonable steps to find a current and correct address for me at the time of serving the Claim. It is obvious from the 192.com website that the house was sold on March 1st 2016 (see print out of 192.com entry). A tracing company would have been able to find me at my new address, which would have been easy to do.

1.8. On the basis provided above I would suggest that the Claimant did not fulfil their legal duty to use my current address when bringing the claim.

1.9. Considering the above, I was unable to defend this claim properly. ‘Good service’ cannot be claimed as court papers were never served to me. Therefore the Default Judgement against me was issued incorrectly and should thus be set aside.

2. Order to strike out the Claim

Preliminary Matters
From the copy Judgement sent to me by the County Court, on 29th September 2017, it appears the Claimant is seeking “parking charges”, from me, the Registered Keeper of vehicle XXXXX, which the Claimant believes are due as a result of the driver ‘breaching the terms of parking’ at ‘Chase Farm’.

2.1. However, the Claimant has failed to include a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the Claimants contractual authority to operate at Chase Farm Hospital as required by the Claimants Trade Association's Code of Practice B1.1, which states:

“1.1 If you operate parking management activities on land which is not owned by you, you
must supply us with written authority from the land owner sufficient to establish you
as the ‘Creditor’ within the meaning of the Protection of Freedoms Act 2012 (where
applicable) and in any event to establish you as a person who is able to recover
parking charges.”

Without any evidence of this contract, as a matter of law, the Claimant will have no locus standi to litigate in their own name, and the claim is therefore invalid. Any consideration will have been provided by the landholder, and only they would have been able sue for any damages or trespass.

2.2 I further contend that I am not liable for any parking charges, as the Claimant has not complied with the only legislative route open to them to pursue the Keeper of the vehicle, namely the Protection of Freedom’s Act 2012 (PoFA). As such I request the Court either strikes out the claim or requests from the Claimant Further and Better Particulars of Claim that fully specify the claim, as per the PDs and car park regulations, and explain how the Keeper of the vehicle is liable in law when the requirements of PoFA have not been met.

Summary of Events
2.3. On the XXX 2016 the driver pulled into the car park at Chase Farm Hospital for an appointment. Upon leaving the hospital the driver attempted to pay with cash. The machine did not accept the pound coins the driver was attempting to pay with and having no other means to pay, went to look for an operative in the booth adjacent to the help point. Upon finding the booth empty, the driver pressed the help button. The call went unanswered and eventually cut off. The driver pressed the button again and waited but again the call went unanswered and eventually cut off. With no other option left, the driver returned to the car and left the premises.

2.3.1 It appears from copies sent to me by the Claimant, that a ‘Notice to Keeper’ (NtK), and a ‘Reminder Notice’ (RN) was the sent to me, the Registered Keeper, stating a ‘parking charge’ was due, due to a breach of the terms and conditions of the car park.

Requirements of PoFA that have not been fulfilled, rendering the charge invalid:

• Non-compliant ‘Notice to Keeper’, rendering it invalid and therefore no keeper liability.
• no terms and conditions set out for the driver, due to missing, unclear, inadequate and non-compliant signage


Non-compliant ‘NtK’.
2.4. I assert that the NtK, issued by the Claimant, did not comply with strict stipulations set out under PoFA, and therefore the Keeper is not liable for the charges.

2.5. Schedule 4 paragraph 9 of PoFA stipulates that some mandatory information must be included in the Notice to Keeper. If all of this information is not present then the Notice to Keeper is invalid and a parking company can only potentially pursue the (unidentified) driver, NOT the Keeper.

2.6. The NTK issued by the Claimant is non-compliant under the POFA 2012, Schedule 4 paragraph 9 for the following 5 reasons:

9(2)(a). The NTK fails to specify the relevant land on which the car was parked. It simply states ‘Chase Farm’. This could either mean the fire station or the hospital (which in itself covers a large area of land containing many car parks). There are over 500ft between the fire station and the hospital, and are mutually exclusive. The NtK also fails to note the period of parking.

9(2)(b). The NtK fails to inform the keeper that the driver is liable for the parking charge and the amount, and that it has not been paid in full.

9(2)(e) The NtK does not state that they don’t know the name of the driver or the current address for the service of the driver.

9(2)(h) The NtK does not identify the creditor.

9(2)(i) The NtK does not specify the date the Notice was sent.

2.7. A Notice to Keeper is a fundamental document in establishing keeper liability. The requirements of Schedule 4 of POFA 2012 and the mandatory detail and wording to ensure a Notice to Keeper is compliant are prescriptive, unequivocal and a matter of statute, not contract law. Any omission or failure to set out the mandatory Notice to Keeper wording renders it non-compliant, meaning the keeper is not liable for any charges.

No terms and conditions set out to the driver, due to missing, unclear, inadequate, and non-compliant signage
2.8. The Claimant asserts that the ‘parking charge’ is due, due to a breach of terms of parking at the car park. I contend that no breach occurred when the driver entered the car park on XXX 2016, due to signage, which did not comply with the BPA Code of Practice, or Supreme Court rulings, both of which state that for a contract to be formed, the binding terms and conditions must be ‘clear’ and ‘intelligible’, and bring the parking charge to the attention of the motorists who use the car park.

2.9. The BPA Code of Practise states under appendix B, entrance signage:
“The sign must be readable from far enough away so that drivers can take in all the essential text without needing to look more than 10 degrees away from the road ahead.”

I have included a photograph of the sign drivers pass as they enter the car park. The ‘Pay on Exit’ sign is the only sign which is prominently displayed and intelligible to drivers, but the terms and conditions are not readable from the car as you drive into the car park. The requirement to pay £100 cannot be read from the entrance sign. Furthermore, the sign is still cordoned off, as it was in January 2016, so drivers cannot even approach the sign once they’ve left their car. Please see photos.

2.10. I further contend that the Claimant has not complied with the BPA Code of Practise, on signage, which states under appendix B, 18.3, that signage must be placed ‘throughout the site so that drivers have the chance to read them at the time of parking or leaving their vehicle’. As you will see from my photos of the car park, there are no terms and conditions within the car park, apart from terms and conditions for disabled drivers, which you would only pass by if you’d parked on that side of the car park. Even those signs are not prominent as the Supreme Court commented on in ParkingEye Vs Beavis. In this instance the driver did not pass a single sign containing any terms and conditions.

2.11. A Notice is not imported into the terms and conditions unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. Nothing about the Claimant’s 'parking charges' was sufficiently prominent and do not pass Lord Denning’s ‘Red Hand Rule’.

2.12. This is supported by a recent case in which the Claimant pursued a claim for non-payment of a ‘Parking Charge’ at the same location of Chase Farm Hospital. The claim was dismissed at POPLA stage. A reason for dismissal was that the signage ‘does not meet the standards outlined by the Supreme Court, in that the ‘wording of the notices’ are not sufficiently clear to bring the parking charge to the attention of the appellant and other motorists who use this car park. The assessor concluded that ‘the operator has failed to demonstrate it issued the Parking Charge Notice (PCN) correctly’.

2.13. Furthermore, the BCP Code of Practice states that a mix of colours should not be used on signage as it could cause problems for people who have impaired colour vision. The signs that are available at Chase Farm Hospital are a mix of yellow, blue, white, and black, making them difficult to read, especially for me as I am almost totally colour blind.

2.14. I contend that when the Claimant pursued this Claim in January 2017, they were fully aware their signage was non-compliant, due to the POPLA decision mentioned above, rendering any ‘Parking Charge’ notices invalid.

2.15. I further submit that the Claimant’s claim is without merit due to substantial issues in law. This is for the following main reasons:

2.16. The Claimant is claiming £271.67, which from the Judgement, appears to be made up of an inflated penalty, and costs. Had the Claimant complied with ALL the stipulations incumbent upon them set out in PoFA, the only amount the Keeper would be liable for is the amount clearly stated in the NK, which is £100, not the £160 stated in the Judgement (before costs).

2.17. However, in this case the £100 is a penalty, which is unrecoverable. Parking Eye Ltd Vs Beavis supports my case, in that the penalty rule cannot be disengaged where no rules and regulations are set out. As explained above, no terms and conditions were available for the driver on 7th January 2016, that would have met Lord Denning’s ‘Red Hand Rule’. Despite this, the driver did attempt to pay for the use of the car park, but was unable to due to a failure by the Claimant to maintain their machines in a fit and proper state.

2.18. On this basis I believe that the Claimant has not provided any reasonable cause of action and thus the claim should be dismissed in its entirety.

This post has been edited by Trixie2: Sat, 30 Sep 2017 - 09:53
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Trixie
post Sun, 1 Oct 2017 - 11:28
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Hi sorry to bump. Im hoping to get this in the post tomorrow so wondered if I could get another steer on my post above please?

I forgot to mention, I'm not on the open register so they couldn't have found me quite so easily. That's why I put in my limited company bit because that is how they could have served me for sure.

re breach of contract, their paperwork says breach of terms and conditions. I've edited my WS to reflect that phrase.

This post has been edited by Trixie: Sun, 1 Oct 2017 - 11:28
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SchoolRunMum
post Sun, 1 Oct 2017 - 21:55
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QUOTE
'm not on the open register so they couldn't have found me quite so easily. That's why I put in my limited company bit because that is how they could have served me for sure.
Good, throw in any valid fact that shows you were there to be found.

QUOTE
BPA Code of Practise

2.13. Furthermore, the BCP Code of Practice


Both are wrong - this must say BPA Code of Practice each time.

Don't be surprised if the judge asks if you were driving seeing as you gave such a detailed account of what happened. You need to decide how to answer, if asked, because you can't lie at a hearing, and no-one here suggests it.

Just noticed that your WS actually admits it was you - if you do this, you CAN'T use the POFA at all:

QUOTE
The signs that are available at Chase Farm Hospital are a mix of yellow, blue, white, and black, making them difficult to read, especially for me as I am almost totally colour blind.


I would add in the Government policy on NHS Car Parks which says a business model of fines for a third party private firm, is unacceptable:

http://www.independent.co.uk/news/uk/home-...s-10047797.html

Here's the policy, which all NHS Trusts have received and has been the case since 2014:

https://www.gov.uk/government/publications/...ement-htm-07-03

I would also include the fact the Government singled out parking firms for the sharp practice of stealth CCJs to address they knew or should have known were not the correct address for service of their victims:

https://www.gov.uk/government/news/new-meas...rom-debt-claims

This post has been edited by SchoolRunMum: Mon, 2 Oct 2017 - 17:56
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Trixie2
post Mon, 2 Oct 2017 - 12:47
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Hi SchoolRunMum - thanks for the advice.

I have added your final point, re the Government singling out PPCs.

I am unsure how to add the NHS policy on third party fines. I went through the policy but couldn't find anywhere it said that. Are you able to point me in the right direction please?

Re colour of signs - I probably didn't explain that well. I saw their signs don't comply due to the colours so just fitted that one in - and added that I am almost totally colour blind. I didn't mean I was driving but I have re-worded that.

I have to be honest, I don't actually remember who was driving. The appointment was mine but that doesn't mean it was me who was driving - 3 of us were there that day. It was so long ago that I don't remember. It could have been any one of us that was driving. It was me that tried to pay though, which is why I remember it. I have edited the summary of events to say I don't remember who was driving - do you think that's OK? What would you advise?

Also what does PD stand for - Nosferatu mentioned it so I added it but don't know what it stands for.

Do you think this is ready to go?

I am XXX and I am the Defendant in this matter.

This my supporting Statement in support of my application dated 27/9/17 to:

• Set aside the Default Judgement dated XXXXX as it was not properly served at my current address;
• Order for the Claimant to pay the Defendant £255 as reimbursement for the set aside fee; £18 reimbursement for 192.com subscription, £59 daily childcare cost needed to formulate defence.

1. Default Judgement
1.1. I understand that the Claimant obtained a Default Judgement against me as the Defendant in XXX 2017. However, this claim form has not been served at my current address and I thus was not aware of the Default Judgement XXXX. I only became aware of it when I was doing a routine check on my credit file. I understand that this Claim was served at an OLD ADDRESS (XXXXX). However, I moved to a new address on March 1st 2016, 10 months before the application to court was made. In support of this I can provide confirmation from Hertsmere Council showing my updated details for the purposes of paying Council tax. I can also provide a summary of completion from my conveyancing solicitor, as well as a 192.com entry showing the house was sold. I will also provide evidence that the address of my registered company was readily available to the Claimant, where they could have served papers.

1.2 On 25th September 2017 I contacted Gemini Parking and spoke with XXX. She advised me that on 2nd April 2016 the case had been transferred to a debt collection agency, DRP, and then onto Gladstones Solicitors. She advised me that the case was no longer connected to Gemini Parking Solutions but did agree to send copies of the parking notices relating to this case.

1.3 I have never received any documentation from DRP or Gladstones Solicitors in this matter and I thus was never able to properly challenge this claim.

1.4 On 25th September 2017 I contacted DRP about this case. I was told they could not access any information on their systems as it had been transferred to Gladstones Solicitors.

1.5 I have made numerous calls to Gladstones Solicitors, all of which have gone unanswered, and I was unable to leave a voice message. I have since e mailed the company and received a bounce back e mail stating my communication would be answered in 28 days’ time. This means I still do not have any details of correspondence they might have sent me.

1.6. On Saturday 23rd September, I visited my old address and spoke to the current owner, XXXX. She advised me that all mail that was received at her address, XXXX, during 2016, after our mail redirection ended, was returned to sender, and clearly marked ‘no longer at this address’.

1.7 I believe the Claimant knew I no longer lived at the address they gave to the court, and has behaved unreasonably in pursuing a claim against me without taking reasonable steps to find a current and correct address for me at the time of issuing the Claim. A tracing company would have been able to find me at my new address.

1.8. According to publicly available information my circumstances are far from unique. The industry’s persistent failure to use correct and current addresses results is an unnecessary burden for individuals and the justice system across the country. I note that the Justice Minister The Rt Hon Sir Oliver Heald QC MP announced on the 23rd December 2016 a consultation and information campaign to help protect consumers from debt claims. The consultation will look at ways to; “better protect consumers who are sent mail to inaccurate addresses and verify addresses again before a claim is sent.” The Minister added that “In the digital age, we must ensure companies pursuing unpaid debts make every reasonable effort to contact individuals, rather than simply relying on a letter to an old address.” He singled out ‘poor practice by private parking companies’ and the issue is being tackled by the Department of Communities and Local Government.

1.9. On the basis provided above I would suggest that the Claimant did not fulfil their duty to use the Defendant’s current address when bringing the claim.

1.10. Considering the above, I was unable to defend this claim properly. I thus believe that the Default Judgement against me was issued incorrectly and thus should be set aside.

2. Order to strike out the Claim

Preliminary Matters
From the copy Judgement sent to me by the County Court, on 29th September 2017, it appears the Claimant is seeking “parking charges”, from me, the Registered Keeper of vehicle XXXXX, which the Claimant believes are due as a result of the driver ‘breaching the terms of parking’ at ‘Chase Farm’.

2.1. However, the Claimant has failed to include a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the Claimants contractual authority to operate at Chase Farm Hospital as required by the Claimants Trade Association's Code of Practice B1.1, which states:

“1.1 If you operate parking management activities on land which is not owned by you, you
must supply us with written authority from the land owner sufficient to establish you
as the ‘Creditor’ within the meaning of the Protection of Freedoms Act 2012 (where
applicable) and in any event to establish you as a person who is able to recover
parking charges.”

Without any evidence of this contract, as a matter of law, the Claimant will have no locus standi to litigate in their own name, and the claim is therefore invalid. Any consideration will have been provided by the landholder, and only they would have been able sue for any damages or trespass.

2.2 I further contend that I am not liable for any parking charges, as the Claimant has not complied with the only legislative route open to them to pursue the Keeper of the vehicle, namely the Protection of Freedom’s Act 2012 (PoFA). As such I request the Court either strikes out the claim or requests from the Claimant Further and Better Particulars of Claim that fully specify the claim, as per the PDs and car park regulations, and explain how the Keeper of the vehicle is liable in law when the requirements of PoFA have not been met.

Summary of Events
2.3. On the XXX 2016, I the registered keeper had an appointment at Chase Farm Hospital. I do not remember who was driving as it could have been 1 of 3 people. Upon leaving the hospital I attempted to pay with cash. The machine did not accept the pound coins I was attempting to pay with and having no other means to pay, went to look for an operative in the booth adjacent to the help point. Upon finding the booth empty, I pressed the help button. The call went unanswered and eventually cut off. I pressed the button again and waited but again the call went unanswered and eventually cut off. Ultimately I was not able to pay for the parking.

2.3.1 It appears from copies sent to me by the Claimant, that a ‘Notice to Keeper’ (NtK), and a ‘Reminder Notice’ (RN) was the sent to me, the Registered Keeper, stating a ‘parking charge’ was due, due to a breach of the terms and conditions of the car park.

Requirements of PoFA that have not been fulfilled, rendering the charge invalid:

• Non-compliant ‘Notice to Keeper’, rendering it invalid and therefore no keeper liability.
• no terms and conditions set out for the driver, due to missing, unclear, inadequate and non-compliant signage


Non-compliant ‘NtK’.
2.4. I assert that the NtK, issued by the Claimant, did not comply with strict stipulations set out under PoFA, and therefore the Keeper is not liable for the charges.

2.5. Schedule 4 paragraph 9 of PoFA stipulates that some mandatory information must be included in the Notice to Keeper. If all of this information is not present then the Notice to Keeper is invalid and a parking company can only potentially pursue the (unidentified) driver, NOT the Keeper.

2.6. The NTK issued by the Claimant is non-compliant under the POFA 2012, Schedule 4 paragraph 9 for the following 5 reasons:

9(2)(a). The NTK fails to specify the relevant land on which the car was parked. It simply states ‘Chase Farm’. This could either mean the fire station or the hospital (which in itself covers a large area of land containing many car parks). There are over 500ft between the fire station and the hospital, and are mutually exclusive. The NtK also fails to note the period of parking.

9(2)(b). The NtK fails to inform the keeper that the driver is liable for the parking charge and the amount, and that it has not been paid in full.

9(2)(e) The NtK does not state that they don’t know the name of the driver or the current address for the service of the driver.

9(2)(h) The NtK does not identify the creditor.

9(2)(i) The NtK does not specify the date the Notice was sent.

2.7. A Notice to Keeper is a fundamental document in establishing keeper liability. The requirements of Schedule 4 of POFA 2012 and the mandatory detail and wording to ensure a Notice to Keeper is compliant are prescriptive, unequivocal and a matter of statute, not contract law. Any omission or failure to set out the mandatory Notice to Keeper wording renders it non-compliant, meaning the keeper is not liable for any charges.

No terms and conditions set out to the driver, due to missing, unclear, inadequate, and non-compliant signage
2.8. The Claimant asserts that the ‘parking charge’ is due, due to a breach of terms of parking at the car park. I contend that no breach occurred when the driver entered the car park on XXX 2016, due to signage, which did not comply with the BPA Code of Practice, or Supreme Court rulings, both of which state that for a contract to be formed, the binding terms and conditions must be ‘clear’ and ‘intelligible’, and bring the parking charge to the attention of the motorists who use the car park.

2.9. The BPA Code of Practice states under appendix B, entrance signage:
“The sign must be readable from far enough away so that drivers can take in all the essential text without needing to look more than 10 degrees away from the road ahead.”

I have included a photograph of the sign drivers pass as they enter the car park. The ‘Pay on Exit’ sign is the only sign which is prominently displayed and intelligible to drivers, but the terms and conditions are not readable from the car as you drive into the car park. The requirement to pay £100 cannot be read from the entrance sign. Furthermore, the sign is still cordoned off, as it was in January 2016, so drivers cannot even approach the sign once they’ve left their car. Please see photos.

2.10. I further contend that the Claimant has not complied with the BPA Code of Practice, on signage, which states under appendix B, 18.3, that signage must be placed ‘throughout the site so that drivers have the chance to read them at the time of parking or leaving their vehicle’. As you will see from my photos of the car park, there are no terms and conditions within the car park, apart from terms and conditions for disabled drivers, which you would only pass by if you’d parked on that side of the car park. Even those signs are not prominent as the Supreme Court commented on in ParkingEye Vs Beavis. In this instance the driver did not pass a single sign containing any terms and conditions.

2.11. A Notice is not imported into the terms and conditions unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. Nothing about the Claimant’s 'parking charges' was sufficiently prominent and do not pass Lord Denning’s ‘Red Hand Rule’.

2.12. This is supported by a recent case in which the Claimant pursued a claim for non-payment of a ‘Parking Charge’ at the same location of Chase Farm Hospital. The claim was dismissed at POPLA stage. A reason for dismissal was that the signage ‘does not meet the standards outlined by the Supreme Court, in that the ‘wording of the notices’ are not sufficiently clear to bring the parking charge to the attention of the appellant and other motorists who use this car park. The assessor concluded that ‘the operator has failed to demonstrate it issued the Parking Charge Notice (PCN) correctly’.

2.13. Furthermore, the BPA Code of Practice states that a mix of colours should not be used on signage as it could cause problems for people who have impaired colour vision. The signs that are available at Chase Farm Hospital are a mix of yellow, blue, white, and black, making them difficult to read.

2.14. I contend that when the Claimant pursued this Claim in January 2017, they were fully aware their signage was non-compliant, due to the POPLA decision mentioned above, rendering any ‘Parking Charge’ notices invalid.

2.15. I further submit that the Claimant’s claim is without merit due to substantial issues in law. This is for the following main reasons:

2.16. The Claimant is claiming £271.67, which from the Judgement, appears to be made up of an inflated penalty, and costs. Had the Claimant complied with ALL the stipulations incumbent upon them set out in PoFA, the only amount the Keeper would be liable for is the amount clearly stated in the NK, which is £100, not the £160 stated in the Judgement (before costs).

2.17. However, in this case the £100 is a penalty, which is unrecoverable. Parking Eye Ltd Vs Beavis supports my case, in that the penalty rule cannot be disengaged where no rules and regulations are set out. As explained above, no terms and conditions were available for the driver on 7th January 2016, that would have met Lord Denning’s ‘Red Hand Rule’. Despite this, the driver did attempt to pay for the use of the car park, but was unable to due to a failure by the Claimant to maintain their machines in a fit and proper state.

2.18. On this basis I believe that the Claimant has not provided any reasonable cause of action and thus the claim should be dismissed in its entirety.

This post has been edited by Trixie2: Mon, 2 Oct 2017 - 12:56
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Trixie2
post Mon, 2 Oct 2017 - 13:21
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Just thinking - shall I take out the 'summary of events' and then that takes away any doubt on who was driving, cos I really don't remember. I just take out all reference that payment was attempted.

This post has been edited by Trixie2: Mon, 2 Oct 2017 - 13:23
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kommando
post Mon, 2 Oct 2017 - 15:14
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I would leave it in but just reword to enforce the fact the driver could have been any 1 from 3 people of which the keeper was only 1, you need to show that it was their systems that were at fault not an attempt to not pay.
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Trixie2
post Mon, 2 Oct 2017 - 16:28
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Ok thank you. I'll get this in the post tomorrow. Need to sort out format etc. Will keep you posted.
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SchoolRunMum
post Mon, 2 Oct 2017 - 18:00
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QUOTE (Trixie2 @ Mon, 2 Oct 2017 - 13:47) *
I am unsure how to add the NHS policy on third party fines. I went through the policy but couldn't find anywhere it said that. Are you able to point me in the right direction please?


https://www.gov.uk/government/publications/...king-principles

Contracted-out car parking
NHS organisations are responsible for the actions of private contractors who run car parks on their behalf.

NHS organisations should act against rogue contractors in line with the relevant codes of practice, where applicable.

Contracts should not be let on any basis that incentivises additional charges, eg ‘income from parking charge notices only’.

That is EXACTLY what happens in most paying NHS car parks at the moment - the machine tariffs go to the hospital (usually) and the scammers make their dirty money only from fines. Not allowed, but they ignore that. Point it out to the Judge.
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Trixie2
post Mon, 2 Oct 2017 - 18:17
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So how would they enforce car park regulations without fines?
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Trixie2
post Mon, 2 Oct 2017 - 19:56
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Thanks so much for your help so far. Does this read OK to stick on the end?

2.23. I’d further like to point out that this claim breaches the Department of Health guidance, which states there should be no incentive for private firms to fine people who stay in hospital car parks. Health Secretary, Jeremy Hunt, announced that hospitals should waive fines if visitors or patients overstay through no fault of their own. Despite the Guidance being issued in August 2014, the Claimant has continued to issue penalty notices and pursue them to the point of ruining people’s credit rating.

Also, I'm just filling out the N244 form and I wondered what I write for question 3, which is what am I asking the court to do. I've written 'seeking to set aside judgement' as suggested in their guidance. But it also asks me to write why. Should I write because the papers were not served at the correct address? Or should I write an old address? Not sure what to do. Thanks so much.

Also, am I right in presuming I don't need to include all my photos etc? I can just write on the form what I'm going to rely on and bring it to the hearing?

This post has been edited by Trixie2: Mon, 2 Oct 2017 - 20:15
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SchoolRunMum
post Mon, 2 Oct 2017 - 21:02
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QUOTE (Trixie2 @ Mon, 2 Oct 2017 - 19:17) *
So how would they enforce car park regulations without fines?

LOL! You sound like them!

Barriers or gates that open with a ticket at the exit - that's what a Hospital I know does.

Polite signs help, not threatening ones with fines.

Loads of workable alternatives that don't fleece people. It's a Hospital for Gawd's sake, people don't go there as a destination of choice!

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