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Court date coming up - Checking my plan of action!, Court date coming up - Checking my plan of action!
mushmush
post Thu, 12 Jul 2018 - 13:18
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As it says;

Ive got a court date coming up in mid august and 14 days prior need to submit witness statements and skeleton arguments etc.

I was being helped by BMPA but that has disapeared and my attempt to contact padi has not bourne fruit so I'm here hoping people can just give me some pointers to make sure im on the right track. If surmised the outline of the issue below;

Their is a carpark serving a block of flats, and 90% of the car park is owned by the block of flats and is for use by the residents, with numbered spaces. Spare spaces are un numbered and some marked visitor, some not (due to faded / missing markings).
10% of the car park is a seperate free hold, and this area is not marked visibly seperate, but these spaces are policed by VCS who ticket anyone parking in them.

The whole car park is gated and only accessible with a key or code, or by someone in the flats admitting you using their system.

I have taken photographs and a diagram etc. The signposts from VCS do not refer specifically to which parking spots are covered, or explain the layout of the carpark or explain the supposed separation (which I have only found out from speaking to residents, but no one can actually get details of who owns this strip of land in the car park, or why it is separate - managers of the flats have no idea and have issues with it too).

The signposts are also not visible if someone is parked in the space directly infront of the signpost, or at night if a vehicle blocks the light, they are also not visible unless you walk up to them - also one used to be 80% covered by ivy but has since been trimmed back.

Their are 5 tickets being pursued in a single case - do I need to check the DVLA to find out how many times my data has been accessed and if so, why?

My defence arguments are;

1. a)Their is not, and can be no contract. As per the sign present in the obscured location on site (photograph item 1 in annex). The sign is forbidding, and does not constitute an 'open offer' to contract to park anywhere the sign may pertain to within the car park.
The wording of the contract on offer does not constitute a genuine offer to park, as there is no conceivable way of complying on entry to the parking area. The wording prohibits UN-authorised parking ( parking without a permit) and the terms below cannot apply as the opening statement specifically forbids parking without a permit, thus the act of 'parking' would be a trespass against the land owner, for which only they could bring a case for trespass, and not breach of contract. (As per UKP V Masterson, B6QZ4H3R, Para 6 – 9. 2016). The terms and conditions on offer therefore can only apply to persons who comply with the opening statement regarding Permits for Parking.

b) The signage indicates that to be permitted to park within the area pertained to a 'valid parking permit' must be displayed. No indication or method for obtaining such permit is indicated or visible within the car park area, or indicated on the sign. Furthermore the claimant would beyond doubt be aware of this, and therefore know that many drivers would be simply unable to do so. This renders any contract, implied or otherwise invalid under the doctrine of impossibility of performance. (As Per PACE Recovery and Storage v Lengyel. C7GF6E3R, Para 15, 2017)


2. The Claimant has not established at any point that the Defendant was the driver of the vehicle on the dates in question, and as such cannot pursue the registered keeper for breach of contract as they have not demonstrated the Keeper is subject to contract. Furthermore Keeper liability could not be triggered as the Claimant has not followed the procedure set out in the Protection Of Freedoms Act 2012, Schedule 4 Para 8 or 9, allowing such a transfer of liability to take place. (Also as per Vehicle Control Services Ltd V Quayle, 2017).

3. The Signage within the car parking area is insufficient to reasonably allow anyone to view and read it, as its location is situated directly behind a single parking spot and is poorly lit at night, and would be wholly obscured when a vehicle parks in front of it. This would mean is is reasonable to assume that any person parking may not have had reasonable chance to view, the signage and thus enter into contract.
4. The car park Is a an enclosed, security gated car park for residents of an apartment building called “*******”. The car parks entrance pillars are labelled as such. After this case was filed, it was ascertained that the claimants are claiming the role of managing a small area within the defined, gated car park. Their is no clear delineation between this area, and these spaces, and the remainder of the un managed car park. (As per the diagram) Their is a singular notice issued by the claimant behind one of the spaces in this area, which is wholly obscured when a vehicle is parked in front of it. These spaces within the shared car park and in a separate ownership to that of the rest of the enclosed car park area.

5. Each Apartment has a dedicated number marked behind its parking spot, and no residents at concept are in possession of parking permits, as each uses the parking bay allocated to their Apartment. The un marked spaces are spread throughout the car park area and there is no discernible patten to their location.

6. Their is no internal signposting showing which parking pays within the security gated ***** car park, which would allow a reasonable person to determine which non-apartment reserved spaces were in separate ownership and managed separately.

7. The fact that the enclosed car park forms a discrete area with a single point of access via a security operated gate which requires a resident to grant access or provide a regularly changed security key code, means that it would be reasonable for a visitor to assume with the lack of clear demarcation that it was all a singular car park, and as such without specific knowledge they could not reasonably be expected not to utilize the area managed by the claimant.

8. The location of the sign within the gated car park is totally obscured when the parking space in front of it is in use, thus rendering it ineffective as a vehicle and its occupant would not be able to view it, or reasonably assume its presence, and thus accept any contract on offer, subject to it not being an invalid offer (as per para 1, 2 & 3 above).

9. Given the above points it would be unreasonable to assume that a contract could be formed by a reasonable visitor to this car park.



Based on this should I continue to create my witness statements? Or have I missed something major?

Thanks In advance and hopefully my experience should help others,.
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post Thu, 12 Jul 2018 - 13:18
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Redivi
post Thu, 12 Jul 2018 - 13:41
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Are you a resident ?
Were you visiting a resident ?
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kommando
post Thu, 12 Jul 2018 - 15:02
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QUOTE
Their are 5 tickets being pursued in a single case - do I need to check the DVLA to find out how many times my data has been accessed and if so, why?


If they are relying on POFA 2012 for keeper liability then for each and every PCN they must have accessed the DVLA. No individual access for each of the 5 tickets means the non DVLA access tickets fail for keeper liability.

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Eljayjay
post Thu, 12 Jul 2018 - 15:25
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If you are the leasehold owner of one of the properties, you need a copy of your lease.

If you are renting one of the properties, you need your tenancy agreement and, on the assumption that your landlord is its leasehold owner, you need a copy of his/her head lease.

If you were visiting a resident, the same document(s) will be needed.

If you have trouble obtaining a copy of the head lease from the property's leasehold owner, you can obtain a copy from the Land Registry by completing a form OC2 and paying a fee.

Did you receive a letter before claim/letter of claim - they are the same thing - before you received the claim itself? If you did, did you reply to it? And, if you did reply to it, what was your reply?
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mushmush
post Yesterday, 10:55
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QUOTE (kommando @ Thu, 12 Jul 2018 - 16:02) *
QUOTE
Their are 5 tickets being pursued in a single case - do I need to check the DVLA to find out how many times my data has been accessed and if so, why?


If they are relying on POFA 2012 for keeper liability then for each and every PCN they must have accessed the DVLA. No individual access for each of the 5 tickets means the non DVLA access tickets fail for keeper liability.



They have not really communicated or references POFA 2012 in any of the notices given to me, just constantly said "contract".

I have tried contacting DVLA for this information anyway but was told I had to pay for each detail - how do I go about forcing DVLA to reveal the info?

QUOTE (Eljayjay @ Thu, 12 Jul 2018 - 16:25) *
If you are the leasehold owner of one of the properties, you need a copy of your lease.

If you are renting one of the properties, you need your tenancy agreement and, on the assumption that your landlord is its leasehold owner, you need a copy of his/her head lease.

If you were visiting a resident, the same document(s) will be needed.

If you have trouble obtaining a copy of the head lease from the property's leasehold owner, you can obtain a copy from the Land Registry by completing a form OC2 and paying a fee.

Did you receive a letter before claim/letter of claim - they are the same thing - before you received the claim itself? If you did, did you reply to it? And, if you did reply to it, what was your reply?



I cannt get these details as it was an ex partner who rented the flat - the flat was up for sale this summer too - the managing agents have not provided any details and told me to stop asking, and my ex has not got a copy of the documents - They have confirmed verbally that the car park is in split ownership but their is as said above, no obvious boundary. (she has also moved back to poland pre-brexit escape!)

I received a letter before claim - months before the claim. I replied to politely explaining the situation and how they based the claim. It was responded to with another letter removing the early payment discount and stating the debt still stands.
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The Rookie
post Yesterday, 11:01
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QUOTE (mushmush @ Mon, 16 Jul 2018 - 11:55) *
They have not really communicated or references POFA 2012 in any of the notices given to me, just constantly said "contract".

You need to understand this a LOT better.

The Driver enters (if anyone does) a contract with the parking company. The keeper of the car can only be liable for any charges if the parking company have met the requirements of PoFA, you should already know this before preparing the defence. If the driver hasn't been named they are taking action against the keeper, if they have failed to meet the requirements of PoFA they have no cause of action against the keeper!


--------------------
There is no such thing as a law abiding motorist, just those who have been scammed and those yet to be scammed!

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Eljayjay
post Yesterday, 11:09
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Although you say that you cannot get the tenancy agreement and the head lease, as I have already explained, the head lease can be obtained from the Land Registry by completing a form OC2 and paying the appropriate fee.

This post has been edited by Eljayjay: Yesterday, 11:10
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Jlc
post Yesterday, 11:22
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QUOTE (mushmush @ Mon, 16 Jul 2018 - 11:55) *
I have tried contacting DVLA for this information anyway but was told I had to pay for each detail - how do I go about forcing DVLA to reveal the info?

Try now. Under GDPR they shouldn't be charging for this information...


--------------------
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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The Rookie
post Yesterday, 12:00
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QUOTE (Jlc @ Mon, 16 Jul 2018 - 12:22) *
QUOTE (mushmush @ Mon, 16 Jul 2018 - 11:55) *
I have tried contacting DVLA for this information anyway but was told I had to pay for each detail - how do I go about forcing DVLA to reveal the info?

Try now. Under DPA 2018 they shouldn't be charging for this information...

FTFY


--------------------
There is no such thing as a law abiding motorist, just those who have been scammed and those yet to be scammed!

S172's
Rookies 1-0 Kent

Council PCN's
Rookies 1-0 Warwick
Rookies 1-0 Birmingham

PPC PCN's
Rookies 8-0 PPC's
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mushmush
post Yesterday, 12:14
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QUOTE (Jlc @ Mon, 16 Jul 2018 - 12:22) *
QUOTE (mushmush @ Mon, 16 Jul 2018 - 11:55) *
I have tried contacting DVLA for this information anyway but was told I had to pay for each detail - how do I go about forcing DVLA to reveal the info?

Try now. Under GDPR they shouldn't be charging for this information...



I have responded to their query pointing this out now thank you, and I will post up their response.
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ostell
post Yesterday, 12:14
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QUOTE (mushmush @ Mon, 16 Jul 2018 - 11:55) *
I have tried contacting DVLA for this information anyway but was told I had to pay for each detail - how do I go about forcing DVLA to reveal the info?


Did you use this address: SubjectAccess.Requests@dvla.gsi.gov.uk ? I understand there chould be no charge anyway using this address.
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mushmush
post Yesterday, 12:16
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QUOTE (Eljayjay @ Mon, 16 Jul 2018 - 12:09) *
Although you say that you cannot get the tenancy agreement and the head lease, as I have already explained, the head lease can be obtained from the Land Registry by completing a form OC2 and paying the appropriate fee.


I have managed to confirm by ringing the agents again that the lease allows parking in the "shared enclosed car park area as outlined on the plan".
The plan is not accurate enough to disertain the boundary where I parked, between a thin strip of land about 8m x 2.5 m within the car park, which VCS claim to manage, this strip of land is owned by a 3rd party.
This strip is unregistered land at the Land registry, and would appear to be quite literally an old randsom strip.
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ostell
post Yesterday, 12:21
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So ask them for their contract with the landowner that permits them to charge.
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mushmush
post Yesterday, 12:27
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QUOTE (ostell @ Mon, 16 Jul 2018 - 13:21) *
So ask them for their contract with the landowner that permits them to charge.



I have in writing in Feburary 2018 and they did not respond. Instead I got another Letter before Action.

I am now at the witness statement stage before court as above - I am just seeking feedback on my arguments - VCS have at no point responded EVER to any letter or request for information from me. Literally 0 Response other than stating their case (contractual parking) and sending payment demands.
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nosferatu1001
post Yesterday, 13:05
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Thats their normal form
Youll then get a crazy large WS from them, which likely discloses a series of new basis for their claim.
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ostell
post Yesterday, 13:27
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But if you have details that the land is unregistered then that needs to go in as it is not possible for them to have a contract with an unknown entity.
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cabbyman
post Yesterday, 16:09
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Unregistered land does not mean the landowner is unknown. It means that the land hasn't changed hands since compulsory registration was introduced to that area. The freeholder will still have a perfectly valid title.

This post has been edited by cabbyman: Yesterday, 16:10


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Cabbyman 8 PPCs 0
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ostell
post Yesterday, 16:20
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Cabbyman, I agree but in a rapidly changing area of development it is strange.
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