Skeleton Argument for private parking ticket in residential area Options

[sallypebbles]

Hi all

I got a ticket whilst outside of a visitor's bay but my visitor permit was on show. This was because 13 vistor bays which were included in the lease were out of use - they gave some to residents whist their parking was being constructed, and they blocked others at the same time as they were doing some construction work in 2 peoples gardens.

I am now due in court on Thursday and have the claimant's witness statement - part of it arrived 5 days late (the court order said 14 days before the hearing which they did not meet) and the second part arrived a week late.

Hope this is ok to put! I have annonymised, but was looking for some help.

Red text is where I am not sure I can say what I have, and question marks are where I was going to not touch on that part of the claimant's witness statement, but wanted to check there were no valid points.

NOTE - claimant's evidence include a site plan, which is not where I live! and it also includes a contract with the landowner, which is signed by a company called GEM, on behalf of the landowner. There is only one signature and this is of a project manager which therefore I believe it fake and will not stand in the court.

This is the first part;

This is in a table but won't let me paste it in.. and not sure where I can store a word doc for easy access so I'll do it point by point;

Particulars of Claim;

i) Claimant;

Claimant argues that the Particulars of Claim contained sufficient information for the Defendant to be aware of what the claim relates to;

i) The date of the charge

ii) The Vehicle registration

iii) The Parking Charge notice number

iv) The amount outstanding

v) That it relates to parking charges
vi) That it is a debt

Defendant;

The defendant argues there was no Parking Charge notice numbers included in the claims, as you can see in exhibit XX1, p67-68.

The Claimant did not meet the requirements of Practice Direction 16 7.3 (Exhibit XX1, p52) which states “Where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim”. The defendant requested these details as seen in exhibit LH1, p43 but the claimant failed to respond.

The Particulars of Claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies what the terms of the alleged contract were, or how they were breached. The Particulars are not “clear and concise” as is required by CPR 16.4 1(a). There is no information regarding why the charge arose, what the original charge was, what the alleged contract was nor anything which could be considered a fair exchange of information. It just states “parking charges” which does not give any indication of on what basis the claim is brought.


ii)Claimant;
Claimant refers to paragraph 5.2A of Practice Direction 7E where it states, “the requirement in paragraph 7.3 of Practice Direction 16 for documents to be attached to the particulars of contract claims does not apply to claims started using an online claim form”.

Defendant;

The defendant argues that also in Practice Direction 7E paragraph 5.2 it states that “Detailed particulars of claim must either be –

(1) included in the online claim form but must be limited in size to not more than 1080 characters (including spaces); or
(2) served and filed by the claimant separately from the claim form in accordance with paragraph 6” which was not met by the Claimant. The Claimant only used around 490-500 characters which left plenty of opportunity to add more detail of the claim. ***IS this ok


The Defendant avers that they were the driver


i) Claimant;
Defendant should be presumed to have been the driver pursuant to Elliott v Loake


Defendant;

There are two named drivers insured on the vehicle, as seen in Exhibit XX1, p5-7, and the defendant is unaware who was driving on the occasions mentioned. The Claimant has produced no evidence (as stated in Exhibit XX3, p3 para3.)

There can be no such presumption. Elliott v Loake sets no precedent that a keeper should be assumed to be the driver, and in that case there was forensic and witness evidence that the keeper was driving **I don’t have this in my defence – can I bring new evidence to support this?

Keeper liability was introduced by POFA on 1 October 2012. A registered keeper can only be held liable under 4(1) for a parking charge if the Claimant has complied with 4(2) which provides that the right under 4(1) “applies only if –
(a) the conditions specified in paragraphs 5, 6, 11 and 12 (so far as applicable) are met” Not sure if this paragraph is applicable.


ii) Claimant;
the Defendant is in breach of an obligation in para 5(2) of Sched 12 POFA to name the driver


Defendant;
This is wrong. Para 5(2) of POFA Sched 12 does not say this. There is no such obligation on the keeper (Exhibit LH1, p45).


No Contract

i) Claimant;
The rules of interpretation require simply that the parties knew of their obligations to one another.

Defendant;
?????


ii) Claimant;

The defendant was offered to use the Land and thereafter either follow the rules and park for free or in breach of the rules agree to pay £100. The rules here just so happen to be that to park, they need to park wholly within the confines of a marked bay.

AND

The Claimant believes that a valid contract can be made by an offer in the form of the terms and conditions, i.e. parking within the confines of a marked bay, as set out on the sign, pursuant to Parking Eye Case.

AND

The Claimant refers to the case of ParkingEye v Somerfield (2011) where the judge concluded that although the price is substantial, it is obviously intended to discourage motorists from leaving their cars.


Defendant;

The defendant argues that the offer of using the land was in accordance of the parking plans signed off by residents and the landowner, (exhibit XX1 p3). In this case, 13 of the marked visitor/ “V” bays were either blocked off due to construction work, or temporarily given residential numbers, instead of being assigned as V bays, whilst their actual parking spaces were being constructed. The landowner/Claimant can't take away spaces which were already given - this goes against the requirements for; fair dealing; prominence and; transparency as set out in the Consumer Rights Act 2015 (XX1, p56-58).

The Claimant failed to provide adequate signage/marking for temporary parking whilst the 13 visitor bays on the plan were out of use. The Defendant avers that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease and removing 13 visitors bays was unworkable, unfair and forced drivers to park elsewhere, since no alternative provision was offered. The Defendant argues that their Visitor permit was on show at all times and whilst they were forced out of the visitor bays showing that they were valid residents/visitors. **IS THIS OK?


The Defendant refers to a similar case of Saeed Vs Plustrade (XX1, p8-21). The finding was that the substantial reduction in the car parking spaces available under the lease would be a case of derogation from grant, which could not be upheld as reasonable by the court, which is exactly the same in this case.

The defendant also argues that it is unclear which “Parkingeye Case” the Claimant is referring to, and they have not included this in their evidence so the defendant is unable to argue this point. *IS THIS OK?

[Advertisement]

[ManxRed]

Are you a resident or were you a visitor? I'm assuming you're a resident.

If a resident, then what does it state in your Lease/Tenancy Agreement? The lease has primacy over any purported contract with a third party parking company should the terms specific to parking on site be at odds. There is supporting case law for this.

If you are a tenant on a AST agreement, then have you managed to get a sight of what is in the Landlord's lease (assuming they are the leaseholder)?

This post has been edited by ManxRed: Mon, 15 Jan 2018 - 15:45

[kommando]

NOTE - claimant's evidence include a site plan, which is not where I live! and it also includes a contract with the landowner, which is signed by a company called GEM, on behalf of the landowner. There is only one signature and this is of a project manager

You need to read this

http://forums.pepipoo.com/index.php?showtopic=117947

8 The long and the short of it is that I do not find that this document has been validly executed. As I say, if it had been a validly executed document on behalf of Parking and Property Management Limited, it should have been signed by a director of that company, it should have been signed by two directors, in fact, or it should be signed by one director and witnessed by the second in accordance with s.44 of the Companies Act. Mr Copley is not a director of Premier Ground Rents. As it is, there is no clear evidence. The claimant has not presented any evidence on this point at all. The evidence that the defendant gives me is oral evidence only, but it is more convincing that, in fact, Chaneys are not the agents of Premier Ground Rents Number 4 at all, they are the agents of another management company that deal with cleaning and gardening around the estate, whereas the other agent that is involved and one that is not connected with Ground Rent is Pinnacle.

[Jlc]

PoFA makes no requirement to name the driver. But if they have complied then they can pursue the keeper for the driver's unpaid parking charge regardless of whether the driver was unknown or not named.

[Jlc]

Most courts should be aware of the EvL shenanigans - being a criminal case (rather than civil) does it for some Judges.

[sallypebbles]

Are you a resident or were you a visitor? I'm assuming you're a resident.

If a resident, then what does it state in your Lease/Tenancy Agreement? The lease has primacy over any purported contract with a third party parking company should the terms specific to parking on site be at odds. There is supporting case law for this.

If you are a tenant on a AST agreement, then have you managed to get a sight of what is in the Landlord's lease (assuming they are the leaseholder)?

I live here but at my partners flat (they are new builds). It as a visitor permit and I am not on the lease - Not sure if this makes a difference?

In the lease it does state visitors have to have a pass on show and be in a bay. However it also has the plans of the number of visitor bays, which was not in place at the time.

NOTE - claimant's evidence include a site plan, which is not where I live! and it also includes a contract with the landowner, which is signed by a company called GEM, on behalf of the landowner. There is only one signature and this is of a project manager

You need to read this

http://forums.pepipoo.com/index.php?showtopic=117947

8 The long and the short of it is that I do not find that this document has been validly executed. As I say, if it had been a validly executed document on behalf of Parking and Property Management Limited, it should have been signed by a director of that company, it should have been signed by two directors, in fact, or it should be signed by one director and witnessed by the second in accordance with s.44 of the Companies Act. Mr Copley is not a director of Premier Ground Rents. As it is, there is no clear evidence. The claimant has not presented any evidence on this point at all. The evidence that the defendant gives me is oral evidence only, but it is more convincing that, in fact, Chaneys are not the agents of Premier Ground Rents Number 4 at all, they are the agents of another management company that deal with cleaning and gardening around the estate, whereas the other agent that is involved and one that is not connected with Ground Rent is Pinnacle.

Thank you!! This sounds very hopeful although I need to go in with the attitude that I will lose (£1500!!! for 6 tickets - they separated it out into 3 cases, I have managed to get 2 of them merged) just so I am not disappointed.

The contract in this case was not signed by someone in a level of authority (property manager) let alone 2 authorised signatures, or one with a witness. ALSO, the contract is with "GEM Estate Management company" on behalf of Phoenix Quarter estate company, who are the landowners. Therefore it doesn't even prove that they can act on behalf of Phoenix quarter estate.

Fingers crossed this holds up - thing it is one of my many main arguments.

[sallypebbles]

PoFA makes no requirement to name the driver. But if they have complied then they can pursue the keeper for the driver's unpaid parking charge regardless of whether the driver was unknown or not named.

In PoFA Schedule 4 (2) it states "the creditor” means a person who is for the time being entitled to recover unpaid parking charges from the driver of the vehicle” and "relevant contract” means a contract (including a contract arising only when the vehicle was parked on the relevant land) between the driver and a person who is—
(a) the owner or occupier of the land; or
(b) authorised, under or by virtue of arrangements made by the owner or occupier of the land, to enter into a contract with the driver requiring the payment of parking
charges in respect of the parking of the vehicle on the land;" - which in this case they haven't proved authority/contract? Could this be valid?

They also fail to refer to themselves as the creditor in signage, as required in CoP.

Also in PoFA Schedule 4 (12) they fail to meet the conditions regarding signage;
"The provision made under sub-paragraph (2) may, in particular, include provision—
(a) requiring notices of more than one kind to be displayed on any relevant land;
(b) as to the content or form of any notices required to be displayed" as the signage was few and far between,is small and cluttered with no prominence to the important terms and conditions and does not have more than one kind of sign.


Are these all ok to use?

Most courts should be aware of the EvL shenanigans - being a criminal case (rather than civil) does it for some Judges.

Sorry - what does EvL mean? Would this be relevant in my case?

[kommando]

EvL

Elliott v Loake

[Jlc]

PoFA makes no requirement to name the driver. But if they have complied then they can pursue the keeper for the driver's unpaid parking charge regardless of whether the driver was unknown or not named.

In PoFA Schedule 4 (2) it states "the creditor” means a person who is for the time being entitled to recover unpaid parking charges from the driver of the vehicle” and "relevant contract” means a contract (including a contract arising only when the vehicle was parked on the relevant land) between the driver and a person who is—
(a) the owner or occupier of the land; or
(b) authorised, under or by virtue of arrangements made by the owner or occupier of the land, to enter into a contract with the driver requiring the payment of parking
charges in respect of the parking of the vehicle on the land;" - which in this case they haven't proved authority/contract? Could this be valid?

Yes, they need to have the authority from the landholder.

They also fail to refer to themselves as the creditor in signage, as required in CoP.

Which part of the CoP? (The creditor angle isn't a strong one imho)