Letter from solicitors re ticket 2 years ago Options

[oldredhen]

I'd really appreciate some guidance as to whether anything can be done now about a ticket received 2 years ago. This was for parking on DYL on a private industrial estate patrolled by UKCPM. The ticket was unsuccessfully appealed and has dragged on with queries etc, last heard from debt recovery agency end of 2016, then a letter from solicitor beginning of 2017 and then nothing again until just this month, "Letter before claim" from the solicitor.

I can give further details (a lot of them!) but thought I would just keep it to a brief idea of the situation. Are there any grounds for continuing to fight against a private company's ticket now it's gone this far down the line? Many thanks.

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[oldredhen]

Thank you so much SchoolRunMum, that is exactly what I was wondering but was having difficulty in finding out. And yes, I think that's the post I read too.

Non-attendance is not definite but given the circumstances I wanted to check.

Thank you again for the supportive message.

[oldredhen]

We've received the notice of allocation to local court, so I'm just preparing the WS.

One quick question, should I be appending the lease to this? It only shows the right to pass and repass on the private road in the industrial estate (no parking allocation), but I was going to rely on Jopson v Homeguard as one of my lines of defence due to loading at a business premises. If so, should it be the whole lease, or only the page that applies (maybe use a highlighter pen on the lines that apply?) plus the front page detailing who it is between? Thanks.

[Redivi]

Include the relevant pages in the evidence packs

Take the full copy with you on the day

[oldredhen]

Just received notification of court date, which is not until the end of the summer, but documents, including WS, must be received no later than a date in the first week of next month (March). First draft of WS is below, and I'd be really grateful for comments on this.

IN THE COUNTY COURT AT (city)
CLAIM NUMBER XXX
BETWEEN
XXX (CLAIMANT)
AND
C Bloggs (DEFENDANT)

WITNESS STATEMENT

1. I, C Bloggs, of XXX [name of company], am the Defendant in this matter. Attached to this statement is a paginated folder of documents referred to in the statement below.

2. I am a partner of the business which is known as “A, B, C and D Bloggs T/A XXX”, a non-limited partnership.

3. I have requested the following documents from the Claimant but have received nothing in response:

i) A copy of the written agreement for the debt as per the Pre Action Protocol for Debts – in this case, a copy of the document referred to in the initial Letter Before Claim, which seems to be a Parking Charge Notice;
ii) Proof that the Claimant had an agreement to operate on the land in question at that date; and
iii) A copy of the sign that they are relying on, as there is none in the place they refer to now.

4. In the absence of any supporting documentation as referred to above, I have assumed that this relates to a Parking Charge Notice from the Claimant in relation to a vehicle registered to the business, a van registration AB12CDE, a copy of which I fortunately still hold. This is shown as Exhibit XX1.

5. The V5C for this vehicle states that the registered keeper for this vehicle is A & B Bloggs T/A XXX, because when the vehicle was purchased I and my wife D were not yet partners, which became the case in October 2015. The front page of this document is shown as Exhibit XX2. This is a company vehicle and as such is insured as a trade vehicle for anyone to drive with the appropriate permission. I have attached a copy of the current fleet insurance certificate to show this (Exhibit XX3), which clearly states “Persons or Classes of Persons Entitled to Drive: Any person driving with the Policyholder’s permission”.

6. I am not responding as the Driver. The Driver is not known, for reasons which are stated below.

7. The Claimant states in the Particulars of Claim that “The driver of the vehicle registration AB12CDE (the ‘Vehicle’) incurred the parking charge(s) on 18/10/2016 for breaching the terms of parking on the land at XX...”. No parking charge was incurred on this date and no proof has been supplied that this was the case. The Parking Charge Notice referred to (Exhibit XX1), to which it is assumed this claim relates, shows an event which occurred on a different date, 16th October 2016, shown by the date and time stamp of the photograph on this Notice. This Parking Charge Notice also states “…the driver became liable for a parking charge at XXX that we are authorised to manage on the 16th October 2016…”. The Claimant is therefore clearly wrong when they state that the vehicle incurred the parking charges on 18th October. I therefore deny any liability to the Claimant whatsoever and request that this claim is therefore struck out.

8. If the above error is allowed to stand, then I continue to deny any liability for this claim as follows:

9. The location is a private industrial estate on which two of the four partners of the business own freehold land and a freehold building for the conduct of their business. The use of the roadways is covered by a Lease of Easements, the relevant parts of which are attached as Exhibit XX4.

10. The vehicle in question was parked partly on the business forecourt (there is no pavement in front of the business, the land is owned to the roadway) and partly on the road to allow for the loading of another large vehicle on the business forecourt, which can be seen in the photographs on the Parking Charge Notice in Exhibit XX1. The vehicle in question had been temporarily moved to this position as there is no further room on the forecourt while another vehicle is being loaded. Therefore the principle of “loading” and not “parking” is applied in this situation

11. The lease to the roadways allows the right to pass and repass. No parking is offered in the lease. However, a short distance away is a courtyard surrounded by other businesses, on which there are a number of parking spaces. These are probably the spaces referred to in the signs which forbid parking on roadways, but which state “You must park wholly within a marked bay”. In order to park in these spaces, you have to apply for and pay a rent to the management company for each designated space. These spaces are in high demand (some are used as additional exterior storage space by the businesses involved) and are all already taken (and have been for some years). The business is on a waiting list for the use of one of these spaces but there are none currently available; I have attached an email from the Estate Management Company to confirm this (Exhibit XX5). There is therefore no access to any parking on the estate apart from on the forecourt of the business, which is very small, and the movement of the vehicle to a parking space was contractually not available and therefore impossible.

12. On 16th October 2016, a lorry arrived at the premises to be loaded with XXX. The small forecourt has space for about 3-4 vehicles to park, which spaces are usually taken by the workers’ vehicles. The van is normally parked on the forecourt in front of the shutter doors. One of the workers would have jumped into the vehicle and temporarily moved it out of the way, so that the lorry could be positioned in front of the shutter doors, to allow for efficient loading by the forklift. The van was temporarily left in front of the lorry, immediately in front of the shutter door area of the business. The person who actually moved the van is not known, as it would have been a simple case of moving the vehicle a very short distance.

13. The loading of the lorry by forklift from inside the warehouse to the lorry took about 30 minutes. During this time there would have always been a person available to speak to, albeit maybe temporarily inside on the forklift. As I confirmed that the lorry had been loaded, I noticed a person taking photos of the van outside the premises. I approached them to ask why this was, and received a very rude reply as to the parking of the vehicle where it should not be. When I pointed out that this was due to loading, the person refused to enter into discussion.

14. An email from the management company confirms that the Claimant's agent observed the vehicle for 30 minutes, yet at no time did the agent approach it to request that the vehicle be moved. It seems that the agent waited for a moment when no-one was immediately in sight to approach the vehicle to take photographs. He was immediately seen and spoken to but refused to engage in discussion. This seems to have a parallel with the case of VCS v Ibbotson, where the judge ruled that there was a duty of the Claimant to mitigate loss, which could have easily been done if the agent had requested that the vehicle was moved. Instead, he acted in a predatory way to ensure that there was a loss on my part.

15. I attempted to get the Management Company to intervene to get this parking charge cancelled, both by writing and emailing, but they stated that as they had handed the parking management over to this company, “there does not appear that there is much we can do”.

16. The sum of £160 stated in the particulars of claim, being addressed to the registered keeper as the driver is not known, is not the sum claimed on the original parking charge notice, which was £100 (see Exhibit XX1). The POFA, at Section 4(5), states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

17. The reason that there are no signs in place as shown in the original parking charge notice is because XX Parking affixed these signs to private property without any permission. In the case of the sign shown in the parking charge notice, this was removed by the property owner as it had damaged his wall, and it has not been replaced to date. I thus am unable to confirm what this sign said. Looking back on Googlemaps at the appropriate time, it is impossible to read the small writing lower on the sign. As stated, I have requested copies of this sign but none have been provided. There are newer versions of the sign in place in other places on the estate, but they are clearly different to the one that the Claimant is referring to that was in place at the time.

18. However, the signs do clearly state “No parking on roadways at any time”. I take this to mean that there is no offer and thus no contract can be formed, as the action is forbidden.

19. I can confirm that the Management Company has not approached me or the company to seek damages for breach of the lease, if in fact there has been any.

20. I can confirm that I have had no correspondence from the Claimant to prove that the Claimant has an assignment from the Management Company to have the right to issue proceedings in their own name for a breach of contract, if they do in fact believe this to be the case.


Exhibits:

XX1: Copy of Parking Charge Notice
XX2: V5C
XX3: Fleet insurance certificate
XX4: Lease to roadways usage
XX5: Email confirming waiting list for parking spaces

I believe that the facts stated in this Witness Statement are true.

Signed:

Date:


In the defence I quoted Jopson v Homeguard regarding loading and right to pass and repass; should I include a copy or an extract with this WS? I could insert the quote reference in point 11 and append the exhibit at that point.

Should I attach POFA section 4(5) to assist the judge? (Point 16)

Should I attach a printout of the appropriate old googlemap showing the old sign, which was opposite the business, and a photo of the new sign, to show they are different? (Point 17) I don't know what the old sign says in the small print but it's mainly the large print I am relying on anyway ("No parking on the roadways at anytime (sic)"), which can be seen on both old and new signs, so this point may not be too relevant. (It did however really annoy people that their property (not only this one) had had a drill taken to it without so much as a by your leave...)

Anything else I should, or should not, include at this point? I do intend to produce a Skeleton Defence later, which may be a more appropriate place to include some things.

Thanks in advance.

[nosferatu1001]

Are you accepting they are compliant with pofa? You have not asserted they are not, so I presume that the limits on liability are all that you're after?

[oldredhen]

Thank you Nos

I believe the original PCN to be POFA compliant (shown in post 11) addressed to "A&B Bloggs T/A partnership name", "To whom it may concern" but after the first appeal was sent (based on loading not parking, before I got to this forum) by C Bloggs as a partner of the business, the next letter came addressed to "A&B Bloggs T/A C Bloggs Partnership name, Dear Mr C Bloggs" then the overdue letter came addressed to C Bloggs, partnership name. At no time was a driver admitted, the partner was dealing with business correspondence in the business's name.

C Bloggs is now the defendant in the case, the partnership name is not mentioned on the County Court papers.

So yes, want to keep them to the limit they can ask for on keeper liability.

[Ollyfrog]

I think a pretty high-up-the-list point of defence should be that the defendant is neither the driver nor the keeper of the vehicle. I think it should be shouted loud and clear at the beginning.

See what others say.

[nosferatu1001]

But as a company, they can be liable (law f agency) for contracts entered into by their employees.

[Ollyfrog]

I'm perhaps missing something or confused, but I thought that they had messed up and not named the correct company - they're trying to claim from C Bloggs T/A xxxx, a company that doesn't even exist and therefore cannot be the keeper, driver or even the driver's employer? (A & B Bloggs T/A xxxxxx was the keeper/employer)

This could be brain fog though - more caffeine may be required!

[oldredhen]

Thanks both

This has already been discussed in posts 27-36 Page 2 and Posts 59-60 Page 3, it's all a bit technical here! The business is a non-ltd partnership so I think all partners are the keepers. Even though only 2 are mentioned on the V5C. But it may not be the main tree to bark up...might even be the wrong one...I think the main point is it's loading, not parking, and may come down to whose word they believe. Or that it's trespass or breach of lease or no contract offered.

Defence has already been submitted, this is now at Witness Statement stage. I just wondered if all points were covered properly, necessary documents referred to, whether I should remove or adjust any points etc.

[Sheffield Dave]

But as a company, they can be liable (law f agency) for contracts entered into by their employees.

They don't appear to be suing a company, but an individual who happens to be a partner in a partnership.

Although I have no idea what the law is on non-limited partnerships, and whether/when individual partners can be jointly liable for things.

[oldredhen]

Sheffield Dave, you have it exactly.

I also have no idea about the liability question.

The first point of the defence pointed out that the Claimant had issued this to the Defendant despite having the registered keeper's details as not including the defendant's name, and the defendant never having admitted to or responding as the driver, they were merely responding as the admin person at the business.

I've still got to get the WS done though, and would be grateful for any comments. I was wondering about including photos of the road and building just to show the limits of the business forecourt. Thoughts?

I'm not sure about point 11, including about the parking that is available to others, as the PCN has been issued for "No parking on Access Roads/Roadways"; does it muddy the issue a little? It's just that the signs refer to parking in marked bays, but this is not applicable in this instance, and I wanted to make that clear. But if others think it's unnecessary, I'll leave it out.


Sheffield Dave, you have it exactly.

I also have no idea about the liability question.

The first point of the defence pointed out that the Claimant had issued this to the Defendant despite having the registered keeper's details as not including the defendant's name, and the defendant never having admitted to or responding as the driver, they were merely responding as the admin person at the business.

I've still got to get the WS done though, and would be grateful for any comments. I was wondering about including photos of the road and building just to show the limits of the business forecourt. Thoughts?

I'm not sure about point 11, including about the parking that is available to others, as the PCN has been issued for "No parking on Access Roads/Roadways"; does it muddy the issue a little? It's just that the signs refer to parking in marked bays, but this is not applicable in this instance, and I wanted to make that clear. But if others think it's unnecessary, I'll leave it out.

[emanresu]

and whether/when individual partners can be jointly liable for things.

That would be part of the partnership agreement which they don't have. So best check the wording of it/

[Ollyfrog]

Also, I thought the C Bloggs they are claiming against wasn't even a partner of the business at the time, so therefore would have no more liability than the office cat as long as they were not the driver. They can't just assume retrospective liability.

[oldredhen]

Sorry Ollyfrog, that's not quite correct.

C Bloggs was not a partner when the van was purchased, so is not named on the V5C. But he was a partner when the van got the PCN. The first PCN was addressed to the first two partners/business name, as they were the only two named on the V5C along with the business name. When C Bloggs responded as the admin person, but not admitting who was the driver, the next PCN came addressed to him/company name, and they've taken this forward as just addressed to him.

[ostell]

So C Blogs is not a registered keeper and therefore they have the wrong defendants.

[Ollyfrog]

Yes, I agree Ostell, which takes me back to my earlier post:

I think a pretty high-up-the-list point of defence should be that the defendant is neither the driver nor the keeper of the vehicle. I think it should be shouted loud and clear at the beginning.

[nosferatu1001]

Yep, and needs doing clearly and succinctly
Their PoC should say somehting like 2as the driver and / or keeper"... so you have to ACCEPT or DENY it (or state you cannot accept or deny and require them to prove)
Not driver - say so
Not keeper - say so
Merely an admin

As I said, they may them try to claim "still liable uner law of agency" but you correctly have to point out that thta was not pleaded, at all.

[oldredhen]

Does anyone know whether the claimant can raise another claim to the registered keeper for this alleged debt if it is dismissed due to the defendant being neither the registered keeper or driver? That is, would it be possible to start all over again with another claim to the right person? In other words, the fact that it may be the wrong person wouldn't nullify the whole thing for good, they can just start again.

I know this has been raised before in this thread, and nosferatu's opinion was they wouldn't likely try (post #66), so I assume that means it is possible.

If that's so, I would rather concentrate on killing it first time round on contract/loading, as stated before.

But maybe I should anyway reiterate all possible reasons the judge could use to dismiss it.

And comments welcomed on the WS as it stands. Thanks.

[nosferatu1001]

Yes of course they can. Whether they will or not is unknown - having lost (if they do) they are already down a few hundred quid, so the maths says "no"

You use all reasons.