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HX Car park management con artists PCN
parkingcompanies...
post Mon, 2 Oct 2017 - 20:22
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Evening all. I've received a PCN from the above company. A driver was photographed (he thinks by a little man in a dark silver BMW 3 series touring) in a "No stopping area" on a Shell garage forecourt. The length of the stop according to the photographs is 7 minutes! The amount payable is for £60 rising to £100 after 14 days

Initial thoughts are;

1) Ignore

2) Send them a letter telling them I wont be naming the driver but they can pay me a £100 administration fee to find out who the driver was along with a fee schedule for dealing with the matter.


Thoughts?

TIA

ETA The stop was actually 7 minutes according to the photo time stamps.

This post has been edited by parkingcompaniesFOAD: Mon, 2 Oct 2017 - 21:04
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post Mon, 2 Oct 2017 - 20:22
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ostell
post Tue, 23 Jan 2018 - 09:06
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When you acknowledge put absolutely noting in the defence.
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nosferatu1001
post Tue, 23 Jan 2018 - 09:59
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We mean literally nothing

Do it ONLINE, not the form.

MSE forum, NEWBIES thread (on page 1, dead easy to find, DO NOT use a phone to go there, laptop please) post 2 has everything you need to know about court claims. Read, READ, READ IT thoroughly.

Literally nothing you sent them was useful, you cannot bind them to a fee schedule. Thats FOTL rubbish.
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parkingcompanies...
post Wed, 31 Jan 2018 - 18:46
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Ok I've Done the AOS and read the thread on MSE. I can't believe the hoops I'm having to jump through here for pulling over on a Petrol Station forecourt. What the actual...

Most of the Defenses seem to be centred around Overstaying, Not paying e.t.c none of which apply to this. The Driver never even left the Vehicle.
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peterguk
post Wed, 31 Jan 2018 - 19:06
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QUOTE (parkingcompaniesFOAD @ Wed, 31 Jan 2018 - 18:46) *
Most of the Defenses seem to be centred around Overstaying, Not paying e.t.c none of which apply to this. The Driver never even left the Vehicle.


Your DEFENCE will be based on your circumstances, not an interweb template.

You went and took photos of the signage? Good. Start with the location and contents of the signs. Was it dark? f so, were they lit? etc...


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parkingcompanies...
post Wed, 31 Jan 2018 - 20:17
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No, It was light. I have Some photos of the actual signs and I have Photos that they took at the Time of the Offence. What can clearly be seen is that there was no markings on the floor, now the area is clearly marked with double yellows. Could it be argued that they must have realised the area was not marked clearly enough, they've realised that now hence adding the Double yellows?
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ostell
post Wed, 31 Jan 2018 - 20:26
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That would be good to argue that they realised there error
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parkingcompanies...
post Mon, 5 Feb 2018 - 21:36
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Where is best to post the draught defence, Here or MSE?
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peterguk
post Mon, 5 Feb 2018 - 21:47
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QUOTE (parkingcompaniesFOAD @ Mon, 5 Feb 2018 - 21:36) *
Where is best to post the draught defence, Here or MSE?


Or post your draft defence here and MSE.


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parkingcompanies...
post Mon, 5 Feb 2018 - 22:27
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I can't seem to work out how to start a new post on MSE. I've found a similar case and tweaked it, here goes;

I assert that I am not liable to the Claimant for the sum claimed, or any amount at all, for the following reasons:

1. I was, at the relevant date, the registered keeper of the vehicle in question. On the material date, I stopped on the forecourt for a very brief period of time. I did not see any nearby signage and there were no Yellow markings in this area prohibiting this.

2. I subsequently received a Notice to Keeper from the Claimant, alleging that a charge of £100 was due to them. I did not send an appeal to the Claimant. or a further appeal to the Independent Appeals Service (IAS), the allegedly independent body appointed by the Claimant’s trade body, the Independent Parking Committee (IPC). My research revealed that the IAS, far from being independent, is a subsidiary of the IPC, which in turn is owned and run by the same two Directors who also run Gladstones Solicitors, the individuals in question being John Davies, and William Hurley. Such an incestuous relationship is incapable of providing any fair means for motorists to challenge parking charges, as well as potentially breaching the SRA Code of Conduct. As such, the Claimant does not come to this matter with clean hands.

3. The Claimant’s signage with the largest font at this site states “NO STOPPING AT ALL”. It is submitted that if these notices are attempting to make a contractual offer, then as they are forbidding they do not fulfil the basic requirement of a contract, which is that each party to the contract must offer valuable consideration to the other party, on clear terms capable of acceptance. In this case neither the Claimant, nor their principal the landowner, is offering anything to motorists. The notices cannot, therefore, reasonably be construed as having created a contractual relationship between the Claimant and the Defendant.

It should be noted that since the date of the Alleged offence the Signage and Markings at the site have been improved. This would indicate an Admission by the Claimant that the signage and Markings were inadequate and deliberately misleading.











The above point was recently tested in the County Court at High Wycombe, in the case of Parking Control Management (UK) Ltd v Bull & 2 Others (B4GF26K6, 21 April 2016), where District Judge Glen dismissed all three claims, stating in his judgment 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 with Mr Samuels’ first analysis that essentially the £100 was a part of the core consideration for the licence and was not a penalty for breach. The difficulty is that this notice does not say that at all. 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.”


While this is a County Court decision and therefore not binding, it is on all fours with the present case and may be considered as persuasive. A full transcript of the Approved Judgment for the above case will be provided in the event that this case proceeds to a hearing.

4. The Driver of the needed to stop away from the main forecourt because of a mechanical problem so as not to cause disruption to other motorists. The driver chose the area as a place of refuge.

5. In the alternative, if it was held that the signage was contractually valid, it would be impossible for a motorist to have read the terms and conditions contained therein from a moving or stopped vehicle, and if the vehicle is stopped, the ‘contravention’ according to the Claimant is already committed.

6. The above point was recently tested in several cases regarding Hayes and Harlington station. There a similar situation arises as the vehicles were charged for briefly stopping but the signs are far away from vehicles and high up

In all cases it was ruled that no contract was entered by performance as the signage could not be read from a vehicle. No transcripts are available but as PCM UK were the claimant in all cases they will be fully aware of the cases; C3GF46K8, C3GF44K8, C3GFY8K8 ,


7. The IPC code of conduct states that a grace period must be allowed in order that a driver might spot signage, go up to it, read it and then decide whether to accept the terms or not. A reasonable grace period in any car park would be from 5-15 minutes from the period of stopping. This grace period was not observed and therefore the operator is in breach of the industry code of practice. Additionally no contract can be in place by conduct until a reasonable period elapses.

8. Thus the signage is simply a device to entrap motorists into a situation whereby the Claimant sends them invoices for unwarranted and unjustified charges, for which motorists can have no contractual liability due to the terms and conditions not having been sufficiently brought to their attention. This activity is bordering on, if not actually crossing the boundary of, a criminal offence of Fraud By False Representation.


Additionally, the contract fails informational requirements for contracts established in the Consumer Contracts (Information, Cancellation And Additional Charges) Regulations 2013, enacted 13 June 2014.
Any alleged contract would be a distance contract for services as defined in The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.

The regulations define three types of contracts; distance contracts, on premises contract and off-premises contracts.

The definitions concern themselves with how a contract is concluded (and in particular if face to face contact occurs during this process) and not where the contract is eventually performed. Thus, if a consumer books a hair styling appointment over the web, that is a distance contract even though they go to the salon for the actual styling. If they re-book at the salon, that will be an on-premises contract. If they meet their stylist in Tesco, arrange for an appointment and immediately phone the salon to confirm, that will be an off-premises contract. All these contracts are performed on-premises, but concluded in different ways.

The regulations define an on-premises contract as:
“on-premises contract” means a contract between a trader and a consumer which is neither a distance contract nor an off-premises contract;
Thus a contract cannot be on-premises if it is a distance contract.

The regulations define a distance contract as:
“distance contract” means a contract concluded between a trader and a consumer under an organised distance sales or service-provision scheme without the simultaneous physical presence of the trader and the consumer, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded;

• This is clearly an organised service-provision scheme (for parking)
• The contract is clearly concluded without the simultaneous physical presence of the trader and the consumer.
• There is clearly the exclusive use of one means of distance communication (signage) up to and including the time at which the contract is concluded.

This is therefore a distance contract.

None of the exemptions in regulation (6) apply. No vending machine or automated premises was used to conclude the contract. Any contract would be concluded by parking and walking away.

Regulation 13 lists information to be provided before making a distance contract. The contract fails to provide the required information listed in Schedule 2. As per 13(1) the contract is therefore not binding.

Alternatively if the contract is on or off-premises, the information rules still apply and the contract is not binding as per either 9(1) or 10(1).

Additionally, the charge of £100 is a penalty and unfair consumer charge. The leading case on this matter is ParkingEye v Beavis [2015] UKSC 67. In that case it was ruled that the penalties rule was engaged but the charge was not unfair because the motorist had the bargain of 2 hours of valuable free parking in exchange for the risk of paying £100 for overstaying. The risk was clearly brought to the attention of the consumer in a huge font. Here, there is no valuable consideration on offer and no bargain for the consumer, and the charge is hidden in small print. It is submitted that no motorist would agree to pay £100 instantly on stopping and this is therefore and unfair consumer term in breach of the Consumer Rights Act 2015..


9 In addition to the £100 ‘parking charge’, for which liability is denied, the Claimant’s legal representatives, Gladstones Solicitors, have artificially inflated the value of the Claim by adding costs of £50 which I submit have not actually been incurred by the Claimant, and which are artificially invented figures 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.


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southpaw82
post Mon, 5 Feb 2018 - 22:31
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Try here. The facts will have to be changed to fit your circumstances.


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Any comments made do not constitute legal advice and should not be relied upon. No lawyer/client relationship should be assumed nor should any duty of care be owed.
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ostell
post Mon, 5 Feb 2018 - 22:35
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Edit item 1 to make life easier
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parkingcompanies...
post Mon, 5 Feb 2018 - 22:47
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QUOTE (ostell @ Mon, 5 Feb 2018 - 22:35) *
Edit item 1 to make life easier


My option 1? what should I edit?

QUOTE (southpaw82 @ Mon, 5 Feb 2018 - 22:31) *
Try here. The facts will have to be changed to fit your circumstances.


The defence you've linked to is a Parking issue. This was a "Stopping issue". Shall I start again with it?
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Redivi
post Mon, 5 Feb 2018 - 22:52
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Yes

Your original version looks more like a witness statement

It also wants a logical order

I would start by attacking the claim form itself

Gladstones don't see any of their clients' documents before they issue a roboclaim so their claims are always lacking in any detail

You therefore want to make Point #1, the failure to disclose any cause of action in breach of CPR 16.4

Point #2 is similar that there are no facts that enable you to write a defence

Then dispute that HX can't bring a claim anyway and it must prove that it either owns the land or its contract with the land-owner provides the authority to issue claim

Moving on you can talk about the inadequate and forbidding signs as separate points including that their replacement shows that HX knew them to be inadequate

Follow up that, even if a contract had ever existed, it was frustrated when the vehicle could not be immediately removed

Finally invite the court to strike out the claim for disclosing no cause of action or order Gladstones to provide further and better particulars of claim

I personally wouldn't mention the IAS and IPC appeal process unless the claim form implies you are at fault for not using it
If it does, say that it is only available to a driver that has been disclosed, not the registered keeper

In case it hasn't been mentioned, you never say in a defence that you were driver unless it's obvious and/or to your advantage
It's up to HX to show you were driving
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southpaw82
post Mon, 5 Feb 2018 - 23:16
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QUOTE (parkingcompaniesFOAD @ Mon, 5 Feb 2018 - 22:47) *
QUOTE (southpaw82 @ Mon, 5 Feb 2018 - 22:31) *
Try here. The facts will have to be changed to fit your circumstances.


The defence you've linked to is a Parking issue. This was a "Stopping issue". Shall I start again with it?

It was more to give you an idea of how to set it out. What you’ve copied from elsewhere is more asking to a written submission, not a defence.


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Any comments made do not constitute legal advice and should not be relied upon. No lawyer/client relationship should be assumed nor should any duty of care be owed.
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parkingcompanies...
post Mon, 5 Feb 2018 - 23:20
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Thanks. If I cant mention who was driving or deny knowledge of who was driving then how can I use the mechanical issue though?

Particulars of claim:

The Driver of the Vehicle xxxxxx (the 'vehicle') incurred the parking charge(s) on xx/xx/xxxx for breachingthe terms of parking on the land at Site xxxx xxxxxxxx xxxxxx xxx xxx
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 £2.60 pursuant to s69 of the county courts act 1984 at 8% pa, continuing to judgement at £0.04 per day.

This post has been edited by parkingcompaniesFOAD: Tue, 6 Feb 2018 - 19:21
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Redivi
post Tue, 6 Feb 2018 - 09:23
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You don't have to be driving to know about the mechanical issue
The driver would have told you later

You don't have to go as far as denying knowledge of the driver
If you know it was somebody else or could have been, state the fact and how certain you are

If it was you, say that you neither admit nor deny that you were driving

Remove that address from the Particulars of Claim
Gladstones will easily recognise the case

You see what I mean about a Gladstones roboclaim that provides no details to disclose a cause of action or enable a defence, why it should be the first point in your defence and why you should ask the court to strike out the claim

This post has been edited by Redivi: Tue, 6 Feb 2018 - 09:25
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Jlc
post Tue, 6 Feb 2018 - 09:38
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I'd avoid these bits:

QUOTE (parkingcompaniesFOAD @ Mon, 5 Feb 2018 - 22:27) *
...the Independent Appeals Service (IAS), the allegedly independent body appointed by the Claimant’s trade body, the Independent Parking Committee (IPC). My research revealed that the IAS, far from being independent, is a subsidiary of the IPC [It's not relevant to the claim]

This is therefore a distance contract. [Not it's not]

In addition to the £100 ‘parking charge’, for which liability is denied, the Claimant’s legal representatives, Gladstones Solicitors, have artificially inflated the value of the Claim by adding costs of £50 which I submit have not actually been incurred by the Claimant, and which are artificially invented figures in an attempt to circumvent the Small Claims costs rules using double recovery. [Challenge any additional costs that are not in the contract, but the £50 is a fixed charge allowed under small claims]

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. [The court won't do this]



--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information

Private Parking - remember, they just want your money and will say almost anything to get it.
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Redivi
post Tue, 6 Feb 2018 - 10:00
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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. [The court won't do this]

Very true

I may, however, make such a request if I have to deal with a Hayes and Harlington Station claim
Gladstones knows from a DPA claim it defended that its client is operating outside the terms of its contract
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parkingcompanies...
post Tue, 6 Feb 2018 - 19:25
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QUOTE (Redivi @ Tue, 6 Feb 2018 - 09:23) *
You don't have to be driving to know about the mechanical issue
The driver would have told you later

You don't have to go as far as denying knowledge of the driver
If you know it was somebody else or could have been, state the fact and how certain you are

If it was you, say that you neither admit nor deny that you were driving

Remove that address from the Particulars of Claim
Gladstones will easily recognise the case

You see what I mean about a Gladstones roboclaim that provides no details to disclose a cause of action or enable a defence, why it should be the first point in your defence and why you should ask the court to strike out the claim


Thanks, I've done that. Been trying to do it all day but wouldn't let me on my phone.

I Don't really know what you mean about disclosure of a cause of action e.t.c. Fancy having to jump through hoops like this for such a trivial matter. Words fail me.
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nosferatu1001
post Tue, 6 Feb 2018 - 19:46
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They haven’t said what action or yiurs gave them cause to raise the claim. For example, trespass on land of x at yntime causing z damage.
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