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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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parkingcompanies...
post Tue, 6 Feb 2018 - 20:19
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Is this better? Thanks for everyones help so far!

1)Inadequate PoC which do not comply with civil procedure rules/ practice directions.
The Claimant has provided no details to disclose a cause of action (in breach of CPR 16.4) to eneable a defence and therefore the defendant has no case to answer and respectfully requests the court to strike out the claim.

2) Signage which makes no offer therefore cannot form a contract.
The Claimants 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.
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, according to the Claimant the offence is already committed.

3) Failure to comply with IPC code of practice.
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.

4)
The Defendant Neither admits or denies driving the Vehicle at the relevant time. If the Claimant avers that the Defendant was the driver then the Claimant would be required to prove that point. If the Claimant is claiming against the Defendant as the keeper of the Vehicle under the provisions of the Protection of Freedoms Act 2012 it is denied that the Claimant is entitled to do so.
5)
The Driver of the vehicle 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.
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nosferatu1001
post Wed, 7 Feb 2018 - 07:44
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Have you reviewed other defences?

5) is not a legal argument. Youre claiming that no contract was intended to be entered into, as the vehicle was broken down and was not parked. Alternatively, even if the PPC can claim there was a contract, it could not be performed and was thus frustrated, because of the breakdown.
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parkingcompanies...
post Wed, 7 Feb 2018 - 22:03
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Yes, many although I'm getting conflicting advice. So drop the mechanical issue entirely you think?

1)
Inadequate Particulars of Claim which do not comply with civil procedure rules/ practice directions.
The Claimant has provided no details to disclose a cause of action (in breach of CPR 16.4) to enable a defence and therefore the defendant has no case to answer and respectfully requests the court to strike out the claim.

2)
The Driver of the vehicle 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 for a matter of minutes, to resolve a temporary emergency issue with the vehicle.

3)
Signage which makes no offer therefore cannot form a contract.
The Claimants 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.
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, according to the Claimant the offence is already committed.

4)
Failure to comply with International Parking Community code of practice.
The IPC code of practice states;
a) 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.
b) "14.1 You must not use predatory or misleading tactics to lure drivers into incurring parking charges. Such instances will be viewed as a serious instance of non-compliance and will be dealt with under the sanctions system as defined in schedule 2 to the Code."
In this instance the ticketer hides in a BMW and tickets cars immediately, within minutes, which is just the sort of 'predatory' practice banned by the IPC CoP.
5)
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")
Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that: (i)there was a "relevant obligation" either by way of a breach of contract, trespass or other tort; and
(ii)that it has followed the required deadlines and mandatory 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

To the extent that the Claimant may seek to allege that any such presumption exists, 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.

6)
The Claimant "Gladstones solicitors" were mentioned in a Parliamentary debate on 02/02/2018 circa 13:06hrs where an MP named and shamed them. And I quote "We need to crack down on these rogue companies, they"re an absolute disgrace to this country, ordinary motorists, ordinary residents should not have to put up with this and I wholeheartedly support the bill today"
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southpaw82
post Wed, 7 Feb 2018 - 22:40
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QUOTE (parkingcompaniesFOAD @ Wed, 7 Feb 2018 - 22:03) *
1)
Inadequate Particulars of Claim which do not comply with civil procedure rules/ practice directions.
The Claimant has provided no details to disclose a cause of action (in breach of CPR 16.4) to enable a defence and therefore the defendant has no case to answer and respectfully requests the court to strike out the claim.


In my view, that should not appear in a defence. You would normally have to make an application and pay a fee to argue for a strike out. In small claims you may get away with suggesting it but that should be done via separate letter, not in a defence..

QUOTE
4)
Failure to comply with International Parking Community code of practice.
The IPC code of practice states;
a) 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.
b) "14.1 You must not use predatory or misleading tactics to lure drivers into incurring parking charges. Such instances will be viewed as a serious instance of non-compliance and will be dealt with under the sanctions system as defined in schedule 2 to the Code."
In this instance the ticketer hides in a BMW and tickets cars immediately, within minutes, which is just the sort of 'predatory' practice banned by the IPC CoP.


You don’t say why this is relevant.

QUOTE
6)
The Claimant "Gladstones solicitors" were mentioned in a Parliamentary debate on 02/02/2018 circa 13:06hrs where an MP named and shamed them. And I quote "We need to crack down on these rogue companies, they"re an absolute disgrace to this country, ordinary motorists, ordinary residents should not have to put up with this and I wholeheartedly support the bill today"


Irrelevant to a defence.


--------------------


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 Wed, 7 Feb 2018 - 23:07
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They told me to do all that on MSE forum. If I don't send this tommorow I will miss the deadline, and to cap it all off the F******* MCOL wont let me log on now. Might just pay the bloody thing.
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southpaw82
post Wed, 7 Feb 2018 - 23:15
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QUOTE (parkingcompaniesFOAD @ Wed, 7 Feb 2018 - 23:07) *
They told me to do all that on MSE forum.

Well, you have a choice to make then. None of it is fatal to your defence but nobody in my firm would do it.


--------------------


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 Wed, 7 Feb 2018 - 23:26
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All I know is this is the 3rd solid night I've spent on the defence and I'm out of time.
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southpaw82
post Wed, 7 Feb 2018 - 23:28
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QUOTE (parkingcompaniesFOAD @ Wed, 7 Feb 2018 - 23:26) *
All I know is this is the 3rd solid night I've spent on the defence and I'm out of time.

You have to file something, however imperfect I or anyone else may consider it to be.


--------------------


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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peterguk
post Wed, 7 Feb 2018 - 23:32
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QUOTE (parkingcompaniesFOAD @ Wed, 7 Feb 2018 - 23:07) *
If I don't send this tommorow I will miss the deadline


How come?

QUOTE (parkingcompaniesFOAD @ Mon, 22 Jan 2018 - 22:22) *
a County court claim form has arrived.


Did it arrive on 22nd, or some time earlier?


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parkingcompanies...
post Wed, 7 Feb 2018 - 23:45
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The Issue date is 8th Jan
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lamilad
post Wed, 7 Feb 2018 - 23:54
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QUOTE (parkingcompaniesFOAD @ Wed, 7 Feb 2018 - 23:45) *
The Issue date is 8th Jan

If that's the case your deadline is 10th Feb - 33 days from issue. However, as the court is closed on Saturday your deadline moves to Monday 4pm.

Don't submit via MCOL, it destroys your formatting. Send by email
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parkingcompanies...
post Thu, 8 Feb 2018 - 00:03
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QUOTE (lamilad @ Wed, 7 Feb 2018 - 23:54) *
QUOTE (parkingcompaniesFOAD @ Wed, 7 Feb 2018 - 23:45) *
The Issue date is 8th Jan

If that's the case your deadline is 10th Feb - 33 days from issue. However, as the court is closed on Saturday your deadline moves to Monday 4pm.

Don't submit via MCOL, it destroys your formatting. Send by email


I was going to post it recorded delivery tomorrow but if email is an option I'll do that instead. Can't see an Email address though...

Thanks for your help.
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emanresu
post Thu, 8 Feb 2018 - 07:44
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CODE
but if email is an option I'll do that instead. Can't see an Email address though...


You want this page for email addresses

https://courttribunalfinder.service.gov.uk/...ess-centre-ccbc

Use the one for Claim responses & directions:


--------------------
Where there is a claim - there is a counterclaim.
Are Parking companies misusing your personal data or interfering with your lease? Counterclaims are only £25. Makes them sit up and take notice. For leaseholds, join in the Managing agents too. Since the purpose of these claims is to frighten you, give them something to be frightened of.
Subject Access Requests to the DVLA?Find out who accessed your data and when. Try SubjectAccess.Requests@dvla.gsi.gov.uk. [Apologies if it does not work]
Double Dip / ANPR FaultsThe BPA Report on ANPR Double Dips is here. Ideal case for a counterclaim (see above).
Daily Court List. See who is doing what and where here
Printing and posting Witness Statements. Easy and cheap way DoxDirect
What is court like. A District Judge's view
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Redivi
post Thu, 8 Feb 2018 - 08:53
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Yes; that's the one

Send your defence as a pdf with a copy to another email

The cynic in me strongly suspects that Moneyclaim doesn't provide emails because the administration of short simple and uniformly formatted defences takes higher priority than the administration of justice
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nosferatu1001
post Thu, 8 Feb 2018 - 12:12
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I didnt say to drop it! I even gave you a reqwording to show how there is a legal reason why this means youre not liable.
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parkingcompanies...
post Thu, 8 Feb 2018 - 20:26
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QUOTE (nosferatu1001 @ Thu, 8 Feb 2018 - 12:12) *
I didnt say to drop it! I even gave you a reqwording to show how there is a legal reason why this means youre not liable.


Apologies, I missed that. It's not exactly easy for someone to understand who's not from a Legal background. Quite why I'm expected to have to respond in this manner is beyond me, It's not exactly fair justice - but then it's in MCOL best interest for these scum companies to keep putting in their claims.

What should really be happening is I write whats happened in plain English, The Judge looks at it and writes back to Mr Gladstones saying "You're having a f****** laugh Son" and throws the entire thing in the Bin.

Anyway, I digress.
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nosferatu1001
post Thu, 8 Feb 2018 - 21:05
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No, mcol give no cares about this.

You’re expected to form a coherent defence. Whining or complaining doesn’t help. This is a legal process.
No one looks at it until the hearing. Also, you will write what happened in plain English - that’s your witness statement, which is usually sent so it arrived before 14 days of the hearing
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parkingcompanies...
post Thu, 8 Feb 2018 - 21:36
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Chopped about and Mechanical issue wording added to section 3;

I was Just about to mail it and then read that it needs printing, signing and scanning to PDF, is that true?


Statement of Defence


I am xxx, defendant in this matter. It is admitted that the Defendant was the
authorised registered keeper of the vehicle in question at the time of the alleged
incident.
The Defendant denies liability for the entirety of the claim for the following reasons:


1.
The Claimant has provided Inadequate Particulars of Claim which do not comply with civil procedure rules/ practice directions. The Claimant has provided no details to disclose a cause of action (in breach of CPR 16.4) to enable a defence and therefore the defendant has no case to answer and respectfully requests the court to strike out the claim. 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 Driver of the vehicle strayed 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 for a matter of minutes, to resolve a temporary emergency issue with the vehicle.

3.
The Claimants Signage at the site makes no offer therefore cannot form a contract.
The 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.




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, according to the Claimant the offence is already committed. Alternatively, even if the Claimant can claim there was a contract, it could not be performed and was thus frustrated, because of the breakdown.



4.
The Claimant has Failed to comply with the International Parking Community code of practice.
The IPC code of practice states;
a) 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.
b) "14.1 You must not use predatory or misleading tactics to lure drivers into incurring parking charges. Such instances will be viewed as a serious instance of non-compliance and will be dealt with under the sanctions system as defined in schedule 2 to the Code."
In this instance the ticketer hides in a BMW and tickets and photographs cars immediately, within minutes, which is just the sort of 'predatory' practice banned by the IPC CoP.


5.
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")
Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that: (i)there was a "relevant obligation" either by way of a breach of contract, trespass or other tort; and (ii)that it has followed the required deadlines and mandatory 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

To the extent that the Claimant may seek to allege that any such presumption exists, 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.

6.
HX Car Park Management are not the lawful occupier of the land. I have the
reasonable belief that they do not have the authority to issue charges on this land in
their own name and that they have no rights to bring action regarding this claim.
1. The Claimant is not the landowner and is merely an agent acting on behalf of the
landowner and has failed to demonstrate their legal standing to form a contract.
2. The claimant is not the landowner and suffers no loss whatsoever as a result of a
vehicle parking at the location in question
3. The Claimant is put to proof that it has sufficient interest in the land or that there are
specific terms in its contract to bring an action on its own behalf. As a third party
agent, the Claimant may not pursue any charge

7.
The Claimant’s representatives, "Gladstones solicitors" were mentioned in a Parliamentary debate on 02/02/2018 circa 13:06hrs where an MP named and shamed them. And I quote "We need to crack down on these rogue companies, they"re an absolute disgrace to this country, ordinary motorists, ordinary residents should not have to put up with this and I wholeheartedly support the bill today"


8.
The Claimant’s representatives, “Gladstones Solicitors”, have artificially inflated the value of the Claim from £100 to £237.60. I submit the added costs 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 robo-claim litigation model, in an attempt at double recovery, circumventing the Small Claims costs rules. Further, “Gladstones Solicitors” appear to be in contravention of the Solicitors Regulation Authority Code of Conduct.


"I believe the facts contained in this Defence Statement are true."

Signed

This post has been edited by parkingcompaniesFOAD: Thu, 8 Feb 2018 - 21:37
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nosferatu1001
post Thu, 8 Feb 2018 - 21:49
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Yes, of course it must be signed - otherwise it is not verified.
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parkingcompanies...
post Thu, 8 Feb 2018 - 22:08
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Ok Thanks, will get it sent in the morning.
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