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Directions Questionnaire from CSB Law received via email, They’ve asked for Claim to be heard on Papers only
tld2004
post Thu, 2 Nov 2017 - 22:10
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Hi All

My partner (the registered keeper) received a Court Claim Form today for a PCN issued on 30 June 2017 by CSB Solicitors/London Parking Solutions for parking outside our flat whilst bringing shopping in. I have included the Particulars of Claim paragraph below.

No PCN sticker was stuck on the windscreen at the time of the offence, but she received a letter in the post from London Parking Solutions in August chasing payment (indicating that London Parking Solutions obtained registered keeper details from the DVLA within 30 days as she is registered keeper). She ignored the letter as she knew it wasn't a real PCN but presented me with a copy of the Claim Form from Court today.

She did not make any contact with London Parking Solutions, no calls, emails, letters etc - she simply ignored the letter.

Can someone please provide some advice please? Whats the best course of action for defending this?

My partner is registered disabled/Blue Badge holder if it helps?

Many thanks,



Particulars of Claim:

"The claimants claim against the defendant is for non payment of the contractually agreed sum in respect of a parking charge notice issued to the vehicle <vehicle reg> on 30 June 2017 at <address> for the following reason: Parked on the roadway in an area designated as no parking on the roadway or footpath at any time. The terms and conditions to which the defendant agreed to be bound by using the site were clearly displayed in prominent places throughout the site. The claimants claim is inclusive of recovery costs as per the terms and conditions, notice of which was given to the defendant by way of a parking charge notice number <number> and the claimant claims £160.00.
The claimant claims interest under section 69 of the County Courts Act 1984 at the rate of 8% a year from 30/06/2017 to 27/10/2017 on £160.00 and also interest at the same rate up to the date of judgement or earlier payment at a daily rate of £0.03."


This post has been edited by tld2004: Fri, 3 Nov 2017 - 19:54
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post Thu, 2 Nov 2017 - 22:10
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nosferatu1001
post Mon, 20 Nov 2017 - 03:52
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You do not ever use mcol to sub,it your defence

Print, sign, scan to pdf and email.
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tld2004
post Mon, 20 Nov 2017 - 08:25
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Thanks!

I’ve logged into the PCN website to inspect the photo’s, and there is only 7 minutes between the first photo being taken and the last. Should this be mentioned in the defence?

Also, is it really not worth mentioning that the defendant is a blue badge holder and this was the reason for stopping the vehicle on the access way, so she could unload easier because the garage is a short walk from the entrance to the building?
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tld2004
post Mon, 20 Nov 2017 - 16:30
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Hi

Quick question as per the above - PCN received from LPS for vehicle unloading. First and last picture taken by the warden is 7 minutes apart.

Is 7 minutes short enough to say in Court defence that vehicle was unloading and not parked?

If so, should the timestamp on the photo's be stated in the Defence?

This post has been edited by tld2004: Mon, 20 Nov 2017 - 16:33
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ostell
post Mon, 20 Nov 2017 - 16:39
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Sounds like unloading but it all depends.

Post up your PCN so that others can comment, redacting personal and identifying data.
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tld2004
post Mon, 20 Nov 2017 - 16:41
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DEFENCE

Preliminary
1. The Particulars of Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defence. 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 Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct.


Background
3. It is admitted that at all material times the Defendant is the registered keeper of vehicle registration mark <VEHICLE REG> which is the subject of these proceedings. The vehicle is insured with eSure with two of named drivers permitted to use it.

4. It is admitted that on 30 June 2017 the Defendant's vehicle had stopped at <ADDRESS>, for no longer than 20 minutes to accommodate unloading only. The vehicle was not parked. The Claimant is put to strict proof.

5. No evidence has been provided to show a valid Notice to Driver was given to the driver in accordance with Paragraph 7, Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”).

6. It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.

6.1. 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 POFA.

6.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
6.2.1. there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
6.2.2. that it has followed the required deadlines and 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.

6.3. To the extent that the Claimant may seek to allege that any such presumption exist, 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’s 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.

Authority to Park and Primacy of Contract
7. The Defendant avers that there was an absolute entitlement to park vehicle(s) deriving from the terms of the lease, which cannot be fettered by any alleged parking terms.
7.1. The is no agreement within the Defendants’ lease that states the Defendant or lawful users of his/her vehicle having to pay parking penalties to London Parking Solutions or any third party parking management company, when the leasehold agreement permits the parking of vehicles on the land.
7.2. Primacy of contract cannot be amended by private parking company signs unless there has been a variation of the tenancy, which has not been the case.

7.3. The Defendant avers that the operator’s signs cannot:
7.3.1. override the existing rights enjoyed by residents and their visitors
7.3.2. that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease.
The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson vs Homeguard Services Ltd [2016] and of Sir Christopher Slade in K-Sultana Saeed vs Plustrade Ltd [2001] EWCA Civ 2011, in the event that this matter proceeds to trial.

7.4. Accordingly it is denied that:
7.4.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant
7.4.2. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

Alternative Claim – Vehicle was not parked
8. The vehicle was stopped on the access way for the purpose of unloading only, as per Part 6 of The Traffic Management Act 2004, and was not parked. This was found in the Appeal case decided by His Honour Judge Harris QC at Oxford County Court, in Jopson vs Home Guard Services B9GF0A9E.
8.1. In the Jopson appeal in June 2016, the Senior Circuit Judge found that the position was analogous to the right to unload which was the subject of Bulstrode v Lambert [1953] 2 All ER 728. The right of way in that case was: “To pass and re-pass with or without vehicles…for the purposes of obtaining access to the building…known as the auction mart.''
8.2. In the Jopson appeal it was also held as a finding of fact, that stopping to unload was not 'parking'.
8.3. The lease provides use of a private garage at the address, causing no need for the vehicle to be parked on the access way other than for loading/unloading.
8.4. Strict proof is required that the vehicle was parked for a period longer than 20 minutes and was not unloading.

Alternative Claim – No offer to park
9. The signage forbids parking and makes no offer to park, meaning no contract can be formed without an offer. This has been well documented from several other cases, particularly PCM-UK v Bull et all B4GF26K6 [2016], UKPC v Masterson B4GF26K6 [2016] and Horizon Parking v Mr J C5GF17X2 [2016].
9.1 The Court will be referred to these cases in the event that this matter proceeds to trial.

Alternative Claim – No standing to bring a Claim
10. It is believed that the Claimant has no standing to bring this claim nor is entitled to any sums sought. The proper Claimant is the landowner. The Claimant has failed to establish their legal right to bring a claim either as the landholder or the agent of the landholder. Strict proof is required that there is a chain of contracts leading from the landowner to London Parking Solutions. The Defendant claims that the Claimant does not have the authority to issue charges on this land in their own name and that they have no locus standi to bring this case.

10.1. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landowner can pursue a case under the tort of trespass, not this Claimant, and as the Supreme Court in the Beavis case confirmed, such a matter would be limited to the landowner themselves claiming for a nominal sum.

Alternative Claim - Failure to set out clearly parking terms
11. The Defendant relies upon ParkingEye Ltd v Barry Beavis [2015] UKSC 67 insofar as the Court were willing to impose a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.

11.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate:

11.1.1. At the time of the material events the signage was deficient in number, distribution, wording, lighting, and free of foliage to reasonably convey a contractual obligation;

11.1.2. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee’s ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and

11.1.3. The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3

12. The Defendant avers that the residential site that is the subject of these proceedings is not a site where there is a commercial value to be protected. The Claimant has not suffered loss or pecuniary disadvantage. The penalty charge is, accordingly, unconscionable in this context, with ParkingEye distinguished.

13. It is denied that the Claimant has any entitlement to the sums sought.

14. It is admitted that interest may be applicable, subject to the discretion of the Court on any sum (if awarded), but it is denied that interest is applicable on the total sums claimed by the Claimant.

Signed by the Defendant
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peterguk
post Mon, 20 Nov 2017 - 16:42
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When was the court summons received?

This post has been edited by peterguk: Mon, 20 Nov 2017 - 16:44


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Jlc
post Mon, 20 Nov 2017 - 16:44
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Context is everything. But 7 minutes could be considered 'parking' - whilst there is a grace period for the driver to have the opportunity to study the contract on offer and decide whether to leave or stay then the contract can be accepted by conduct even if the signs are not read. Grace periods (10 minutes) will not usually apply where parking is not allowed. The signs need to be clear and obvious of course.

In private parking it's the signs that matter - there's no statutory unloading exceptions.

Although, there are some potentially relevant cases - see Jopson v HomeGuard for example.


--------------------
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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peterguk
post Mon, 20 Nov 2017 - 16:45
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Linked to your other thread involving LPS?

http://forums.pepipoo.com/index.php?showtopic=116732&hl=


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ManxRed
post Mon, 20 Nov 2017 - 16:45
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There was a Warden taking pictures? Did he/she not mitigate the PPC's/landholder's loss by warning the driver? If not, why not?

The PPC needs to explain this.


--------------------
Sometimes I use big words I don't understand in an effort to make myself sound more photosynthesis.
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tld2004
post Mon, 20 Nov 2017 - 16:45
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Thanks

I've just posted up the draft defence.

Others provided help on here last week re: the draft defence, but I have two outstanding questions:

1. Should I state that wardens photo's are only 7 mins apart - vehicle was not parked, but unloading only.
2. One of the users of this vehicle is Disabled Blue badge holder, hence unloading, as our garage on site is a short walk to the entrance.

Should these two points be stated in the defence to strengthen the case for unloading only.
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Jlc
post Mon, 20 Nov 2017 - 16:49
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QUOTE (tld2004 @ Mon, 20 Nov 2017 - 16:45) *
I've just posted up the draft defence.

Others provided help on here last week re: the draft defence, but I have two outstanding questions:

You should have used your original post - here.

QUOTE (tld2004 @ Mon, 20 Nov 2017 - 16:45) *
1. Should I state that wardens photo's are only 7 mins apart - vehicle was not parked, but unloading only.

It may have even been a 'self ticketing' operation.

QUOTE (tld2004 @ Mon, 20 Nov 2017 - 16:45) *
2. One of the users of this vehicle is Disabled Blue badge holder, hence unloading, as our garage on site is a short walk to the entrance.

Reasonable adjustment under the Equality Act 2010 is what you need.


--------------------
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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tld2004
post Mon, 20 Nov 2017 - 16:56
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QUOTE (Jlc @ Mon, 20 Nov 2017 - 16:49) *
QUOTE (tld2004 @ Mon, 20 Nov 2017 - 16:45) *
I've just posted up the draft defence.

Others provided help on here last week re: the draft defence, but I have two outstanding questions:

You should have used your original post - here.

QUOTE (tld2004 @ Mon, 20 Nov 2017 - 16:45) *
1. Should I state that wardens photo's are only 7 mins apart - vehicle was not parked, but unloading only.

It may have even been a 'self ticketing' operation.

QUOTE (tld2004 @ Mon, 20 Nov 2017 - 16:45) *
2. One of the users of this vehicle is Disabled Blue badge holder, hence unloading, as our garage on site is a short walk to the entrance.

Reasonable adjustment under the Equality Act 2010 is what you need.


Thanks JLC, what do you mean by "Self ticketing"?

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peterguk
post Mon, 20 Nov 2017 - 17:00
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QUOTE (tld2004 @ Mon, 20 Nov 2017 - 16:56) *
QUOTE (Jlc @ Mon, 20 Nov 2017 - 16:49) *
QUOTE (tld2004 @ Mon, 20 Nov 2017 - 16:45) *
I've just posted up the draft defence.

Others provided help on here last week re: the draft defence, but I have two outstanding questions:

You should have used your original post - here.

QUOTE (tld2004 @ Mon, 20 Nov 2017 - 16:45) *
1. Should I state that wardens photo's are only 7 mins apart - vehicle was not parked, but unloading only.

It may have even been a 'self ticketing' operation.

QUOTE (tld2004 @ Mon, 20 Nov 2017 - 16:45) *
2. One of the users of this vehicle is Disabled Blue badge holder, hence unloading, as our garage on site is a short walk to the entrance.

Reasonable adjustment under the Equality Act 2010 is what you need.


Thanks JLC, what do you mean by "Self ticketing"?




People get paid for sending in pictures of vehicles parked where they are not wanted.


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tld2004
post Mon, 20 Nov 2017 - 17:04
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No, we’ve seen them operate on the site.

They use young lads in beaten up old Ford Fiesta’s who take photo’s from the driving seat so they don’t have to get out the car and then speed off when anyone appears.
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Jlc
post Mon, 20 Nov 2017 - 17:21
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'Self-ticketing' is normally by residents themselves (often with a 'kick back' incentive). Not that it probably helps or hinders here either way.

This post has been edited by Jlc: Mon, 20 Nov 2017 - 17:22


--------------------
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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SchoolRunMum
post Mon, 20 Nov 2017 - 17:40
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QUOTE
Should I state that wardens photo's


NEVER describe these people as 'wardens'. This is not about parking management nor traffic wardens.


QUOTE (tld2004 @ Mon, 20 Nov 2017 - 18:04) *
They use young lads in beaten up old Ford Fiesta’s who take photo’s from the driving seat so they don’t have to get out the car and then speed off when anyone appears.

Add that to your defence and use it to state that the operation is unprofessional and predatory, as well as allowing no grace periods nor adhering to disability law (Equality Act - requirement for reasonable adjustments), all of which are individual breaches of the IPC Code of Conduct.

You need to get your threads merged into one. This is very difficult and no-one is going to spend time looking back at a second thread for background - and we NEED the background!

Hit the report button to ask for the 2 threads to be merged and please, no starting another later on.
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tld2004
post Mon, 20 Nov 2017 - 21:16
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Thanks guys

I have amended the Defence and attach it below:

Few points to note:

  • Is point 3 good enough?
  • I couldn't find a defence para on breach of the Equality Act. Does someone have one?


Can someone please review the below asap, I want to send it off tomorrow.

Thanks



Preliminary
1. The Particulars of Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defence. 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 Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct.

Background
3. The Claimant’s operation is unprofessional and predatory, with their staff having been seen operating on site in the past using young men to photograph parked cars from the road in order to issue tickets without exiting their own vehicle, and not adhering to The Equality Act 2010 by targeting elderly disabled drivers, all of which are individual breaches of the IPC Code of Conduct.

4. It is admitted that at all material times the Defendant is the registered keeper of vehicle registration mark XXXXXXX which is the subject of these proceedings. The vehicle is insured with eSure with two of named drivers permitted to use it, one of which is registered disabled and a Blue Badge holder.

5. It is admitted that on 30 June 2017 the Defendant's vehicle had stopped at XXXXXXXXXXX, for no longer than 20 minutes to accommodate unloading only as the Defendant is disabled. The vehicle was not parked.

6. No evidence has been provided to show a valid Notice to Driver was given to the driver in accordance with Paragraph 7, Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”).

6.1. 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 POFA.

6.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
6.2.1. there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
6.2.2. that it has followed the required deadlines and 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.

6.3. To the extent that the Claimant may seek to allege that any such presumption exist, 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’s 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.

Authority to Park and Primacy of Contract
7. The Defendant avers that there was an absolute entitlement to park vehicle(s) deriving from the terms of the lease, which cannot be fettered by any alleged parking terms.

7.1. There is no agreement within the Defendants’ lease that states the Defendant or lawful users of his/her vehicle having to pay parking penalties to London Parking Solutions or any third party parking management company when the leasehold agreement permits the parking of vehicles on the land.

7.2. Primacy of contract cannot be amended by private parking company signs unless there has been a variation of the tenancy, which has not been the case.

7.3. The Defendant avers that the operator’s signs cannot:
7.3.1. override the existing rights enjoyed by residents and their visitors.
7.3.2. that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease.

7.4. Accordingly it is denied that:
7.4.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant
7.4.2. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson vs Homeguard Services Ltd [2016] and of Sir Christopher Slade in K-Sultana Saeed vs Plustrade Ltd [2001] EWCA Civ 2011, in the event that this matter proceeds to trial.

Alternative Claim – Vehicle was not parked
8. The vehicle was stopped on the access way for the purpose of unloading only, as per Part 6 of The Traffic Management Act 2004, and was not “parked”. This was found in the Appeal case decided by His Honour Judge Harris QC at Oxford County Court in Jopson vs Home Guard Services B9GF0A9E.

8.1. In the Jopson appeal in June 2016, the Senior Circuit Judge found that the position was analogous to the right to unload which was the subject of Bulstrode v Lambert [1953] 2 All ER 728. The right of way in that case was: “To pass and re-pass with or without vehicles… for the purposes of obtaining access to the building… known as the auction mart.''

8.2. In the Jopson appeal it was also held as a finding of fact, that stopping to unload was not “parking”. The Judge also confirmed that the concept of “parking”, as opposed to “stopping”, is that of “leaving a car for some duration of time beyond that needed for getting in or out of it, loading or unloading it. Merely to stop a vehicle cannot be to park it; otherwise traffic jams would consist of lines of parked cars”.

8.3. The vehicle was stopped on the access way because the Defendant is registered disabled, and stopping on the access way was to provide ease of access to the building only.

8.4. The lease provides use of a private garage at the address, causing no need for the vehicle to be “parked” on the access way other than for ease of unloading due to the Defendant’s disability.

8.5. Strict proof is required that the vehicle was not unloading.

Alternative Claim – Breach of The Equality Act 2010
9. The Claimant has failed to make reasonable adjustments in accordance with The Equality Act 2010 as the Defendant is registered disabled and in possession of a Blue Badge.

Alternative Claim – No offer to park

10. The signage forbids parking and makes no offer to park, meaning no contract can be formed without an offer. This has been well documented from several other cases, particularly PCM-UK v Bull et all B4GF26K6 [2016], UKPC v Masterson B4GF26K6 [2016] and Horizon Parking v Mr J C5GF17X2 [2016].

10.1. The Court will be referred to these cases in the event that this matter proceeds to trial.


Alternative Claim – No standing to bring a Claim
11. It is believed that the Claimant has no standing to bring this claim nor is entitled to any sums sought. The proper Claimant is the landowner. The Claimant has failed to establish their legal right to bring a claim either as the landholder or the agent of the landholder. Strict proof is required that there is a chain of contracts leading from the landowner to London Parking Solutions. The Defendant claims that the Claimant does not have the authority to issue charges on this land in their own name and that they have no locus standi to bring this case.

11.1. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landowner can pursue a case under the tort of trespass, not this Claimant, and as the Supreme Court in the Beavis case confirmed, such a matter would be limited to the landowner themselves claiming for a nominal sum.

Alternative Claim - Failure to set out clearly parking terms
12. The Defendant relies upon ParkingEye Ltd v Barry Beavis [2015] UKSC 67 insofar as the Court were willing to impose a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.

12.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate:
12.1.1. At the time of the material events the signage was deficient in number, distribution, wording, lighting, and free of foliage to reasonably convey a contractual obligation;
12.1.2. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee’s ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and
12.1.3. The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3.

13. The Defendant avers that the residential site that is the subject of these proceedings is not a site where there is a commercial value to be protected. The Claimant has not suffered loss or pecuniary disadvantage. The penalty charge is, accordingly, unconscionable in this context, with ParkingEye distinguished.

14. It is denied that the Claimant has any entitlement to the sums sought (apart from properly incurred Court fees) as any added solicitors fees are made up numbers, and are an attempt at double recovery by the Claimant, which would not be recoverable in any event.

15. It is admitted that interest may be applicable, subject to the discretion of the Court on any sum (if awarded), but it is denied that interest is applicable on the total sums claimed by the Claimant.

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


This post has been edited by tld2004: Mon, 20 Nov 2017 - 21:32
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nosferatu1001
post Tue, 21 Nov 2017 - 09:22
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You mus tinclude that assisted boarding / alighting is legally distinct from "parking", as defined under the TMA2004, (you cannot park on double yellow normally, you CAN allow people to board or alight) and therefore the vehcile was never "parked" as under any common definition of the word. This is its own defence point.
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tld2004
post Tue, 21 Nov 2017 - 11:46
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Thanks again Nosferatu!

I have included this point. Below is the "Alternative Claim" parts of the Defence only (to save uploading everything again).

Is this better? I was to submit tonight as time is running out...


Alternative Claim – Vehicle was not parked
8. The vehicle was stopped on the access way for the purpose of unloading only, as per Part 6 of The Traffic Management Act 2004, and was not “parked”. This was found in the Appeal case decided by His Honour Judge Harris QC at Oxford County Court in Jopson vs Home Guard Services B9GF0A9E.

8.1. In the Jopson appeal in June 2016, the Senior Circuit Judge found that the position was analogous to the right to unload which was the subject of Bulstrode v Lambert [1953] 2 All ER 728. The right of way in that case was: “To pass and re-pass with or without vehicles… for the purposes of obtaining access to the building… known as the auction mart.''

8.2. In the Jopson appeal it was also held as a finding of fact, that stopping to unload was not “parking”. The Judge also confirmed that the concept of “parking”, as opposed to “stopping”, is that of “leaving a car for some duration of time beyond that needed for getting in or out of it, loading or unloading it. Merely to stop a vehicle cannot be to park it; otherwise traffic jams would consist of lines of parked cars”.

8.3. The vehicle was stopped on the access way because the Defendant is registered disabled, and stopping on the access way was to provide ease of access to the building only.

8.4. The lease provides use of a private garage at the address, causing no need for the vehicle to be “parked” on the access way other than for ease of unloading due to the Defendant’s disability.

8.5. Strict proof is required that the vehicle was not unloading.

Alternative Claim – Assisted boarding/alighting
9. As the Defendant is disabled and was alighting and unloading the vehicle, the vehicle was not “parked” as defined by Section 86 (8) (b) of the Traffic Management Act 2004.

Alternative Claim – Breach of The Equality Act 2010
10. The Defendant had only stopped the vehicle on the access way to alight and unload because of their disability.
10.1. The Claimant has failed to make reasonable adjustments in accordance with The Equality Act 2010 as the Defendant is disabled.


Alternative Claim – No offer to park
11. The signage forbids parking and makes no offer to park, meaning no contract can be formed without an offer. This has been well documented from several other cases, particularly PCM-UK v Bull et all B4GF26K6 [2016], UKPC v Masterson B4GF26K6 [2016] and Horizon Parking v Mr J C5GF17X2 [2016].

11.1. The Court will be referred to these cases in the event that this matter proceeds to trial.


Alternative Claim – No standing to bring a Claim
12. It is believed that the Claimant has no standing to bring this claim nor is entitled to any sums sought. The proper Claimant is the landowner. The Claimant has failed to establish their legal right to bring a claim either as the landholder or the agent of the landholder. Strict proof is required that there is a chain of contracts leading from the landowner to London Parking Solutions. The Defendant claims that the Claimant does not have the authority to issue charges on this land in their own name and that they have no locus standi to bring this case.

12.1. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landowner can pursue a case under the tort of trespass, not this Claimant, and as the Supreme Court in the Beavis case confirmed, such a matter would be limited to the landowner themselves claiming for a nominal sum.

Alternative Claim - Failure to set out clearly parking terms
13. The Defendant relies upon ParkingEye Ltd v Barry Beavis [2015] UKSC 67 insofar as the Court were willing to impose a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.

13.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate:
13.1.1. At the time of the material events the signage was deficient in number, distribution, wording, lighting, and free of foliage to reasonably convey a contractual obligation;
13.1.2. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee’s ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and
13.1.3. The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3.



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nosferatu1001
post Tue, 21 Nov 2017 - 12:22
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No, it is its own point, not linked to Jopson, because you are arguing the definitiono f what they are alleging. Your vehicle was never "parked" according to the TMA2004 meaning of the word, and absent anything else you should expect to be able to rely on this - it is a legitimate expectation
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