Court Claim Defence Help Options

[Justice74]

Hi Everyone

I have 5 days left to submit my defence, but don't worry, I haven't been sitting on my todd, I submitted an SAR and got back the results, have a witness statement, and submitted my AOS with plenty of time. Just trying to put together my final defence.

I have been posting on MSE, which has gone a bit quiet at present, but also would be nice to get some other opinions here.

So the basic premise is that I was attending a client on several occasions where I would park in their private car park run by UK Car Park Management (UK CPM) at the time, who were employed by a management company. This all happened over a year ago. Unfortunately now, the management company and car parking company have changed hands.

They would buzz me in, and then bring me down a permit which was a hand written one on a card which I would hang on my rear view mirror.

On one occasion, they buzzed me in, but then couldn't come down as they had to attend to urgent matters.

I went upstairs, grabbed the permit and came straight back down. Someone must have been waiting in the bushes because I was gone no more than a few mins during which time they photographed my car.

I appealed to UK CPM, then for one reason or another (namely the comments online saying it was a waste of time + confusion over whether I should declare myself as keeper or driver), I didn't make an official appeal through ICS.

Received several further letters demanding payment, then a debt recovery company, followed by Gladstones, who finally issued a letter before claim, then court claim.

So that's where I'm at.

The Subject Access Request (SAR) contains photos of my vehicle with no permit in the window, all taken within a minute of each other. They also supplied a very grainy poor quality image of the sign which is completely unreadable.

So three potential arguments I can see. I welcome any more relevant ones, because I feel way pout of my depth here with the law and cases. Ideally I would just stick to the truth, and argue my point, but it seems you have to come up with all sorts of other arguments.

1. Rules surrounding visitor parking
I've looked through several cases including Jopson and Homeguard which refers to the rules surrounding visitor parking and permits in the lease. This is however a problem since the management company and parking firm no longer operate at the location. So getting hold of the lease may be difficult.

2. Poor signage. Since they have no clear photo of the sign in the SAR, could I argue this point? And if so how best to go about it?

3. Finally, would be to focus on the key issue for me. The fact that I followed the rules as best I could by going to get the permit.

The main argument I can think of is they didn't follow their own CoP, which states:
"15.1 Drivers should be allowed a sufficient amount of time to park and read any signs so they may make an informed decision as to whether or not to remain on the site.”
They don't clarify what sufficient time is, but I can refer to BPA's guidance:
"13.2 If the parking location is one where parking is normally permitted, you must allow the driver a reasonable grace period in addition to the parking event before enforcement action is taken. In such instances the grace period must be a minimum of 10 minutes."


Any thoughts appreciated

Thanks

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[nosferatu1001]

You state that you performed the contract and they didnt allow sufficient time to allow the driver to compelte the necessary tasks
They KNEW at the time that visitors were required to collect a permit

[Justice74]

I read about the Jopson case, but that was based on resident parking rights in the lease. I was a visitor, so not sure how that helps plus I don’t think can get a copy of the original lease as everything has changed hands. Been searching forums, but can't find any statute on visitor parking permits. And I don’t think I can argue poor signage as there is an image of a sign in the adjacent parking bay, albeit illegible, so my defence is pretty short. What do you think?t:


In the county court
Claim XXXXXXX
Defendent: XXXXXXXX
Claimant: UK Car Park Management


Defence:

The driver had on several occasions prior, visited Mr XXX at Flat XX, XX Apartment Blocks. Each time the driver had been let in through the gates, and been issued with a parking permit which had the date and vehicle registration hand written, and was hung on the rear view mirror.

On the date of the alleged parking offence, the driver was let in the gate, around XXXam but then informed that Mr XX (a resident of the building) could not come down to the vehicle to supply the permit. Mr XX requested that the driver come up to retrieve the permit as he was attending urgent matters. The driver returned and displayed the permit clearly in front of the vehicle in a matter of minutes (no more than 5 minutes). A photograph was taken during this period.
The defendant refutes the accusation of illegal parking and makes the following arguments:


1. The driver was not given sufficient time to decide whether or not to park onsite. Having arrived around XX:XXam on XXst XX XXXX, the driver exited the vehicle and was deciding whether or not to obtain a permit and remain in the car park.
UK Car Park Management (UK CPM) was a member of International Parking Community (IPC) trade association at that time, whose Code of Practice to which they must adhere states:
"15.1 Drivers should be allowed a sufficient amount of time to park and read any signs so
they may make an informed decision as to whether or not to remain on the site.”

Whilst “sufficient time” is not specified, we can take some best practice guidance from the only other private parking trade association, the British Parking Association (BPA):
“13.2 If the parking location is one where parking is normally permitted, you must allow the driver a reasonable grace period in addition to the parking event before enforcement action is taken. In such instances the grace period must be a minimum of 10 minutes. “
2. The driver was not given sufficient time to obtain a permit once deciding to remain. The necessity to display a permit is not in dispute, however the driver must be permitted sufficient time to obtain a permit which is not in their possession, but is retained by the resident. An original copy of the permit proves that other vehicles have made visits to the building, requiring the permit to be returned to and retained by the resident, not the driver.
There is no reference in the Code of Practice on obtaining a permit, so again we can only refer to the best practice of point 13.2 from above that a grace period of at least 10 minutes should apply. Which in this case UK CPM did not permit before taking enforcement action i.e. the photos.
3. Signage does not make reference to code of practice nor the rules obtained within. Whilst the sign did request a parking permit, it did not specify the terms with which to obtain one, or the time frame to obtain one, and therefore no contract can be formed with the driver or keeper. If there is no time allowed to obtain a permit, the sign should request that the driver not leave the vehicle until the permit holder brings it to the vehicle.

In summary UK Car Park Management did not allow any time to complete any necessary tasks to fulfil a contract. Furthermore, they are not adhering to their own, nor any industry best practice guidance or Code of Practice, which is a requirement of the KADOE (Keeper of a Vehicle at the Date of an Event) Contract they entered into when retrieving the keepers details from the DVLA. Thus , there is a breach of the Data Protection Act 2018.
The claimant has no cause of action in this matter, and the Court is invited to dismiss the claim in its entirety.

'I believe the facts stated in this Defence are true’





Do I even need to put all that blurb about what actually happened on that particular day i.e. every other day the resident brought me the permit? If the argument is based on lack of time to obtain a permit, then all that stuff is irrelevant. Does it help or harm my argument? Does the judge even want to see it?
Got until Tuesday to submit my defence. Any thoughts gladly appreciated. I know you're all busy. Worst case I'l just submit this as it is. Better than nothing.

[nosferatu1001]

Nothing in law about visitors permits, however they HAVE to allow time to collect htem, they will be aware of the arrangements as it was long standing at the time, etc.

[Justice74]

So I've tried to add a few more items. Presumably the idea of having multiple arguments is that if one fails, you can use others. But equally, I wonder if a single concise well thought out argument is better than a bunch of weaker arguments. So here is my first brief one:


1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The parking charge is unwarranted because the driver was not given sufficient time to decide whether or not to park onsite. Having arrived around XX:XX on XXXXXXX, the driver exited the vehicle and was deciding whether or not to obtain a permit and remain in the car park and visit a resident.

At that time, UK Car Park Management (UK CPM) was a member of International Parking Community (IPC) trade association, whose Code of Practice to which they must adhere states:
"15.1 Drivers should be allowed a sufficient amount of time to park and read any signs so
they may make an informed decision as to whether or not to remain on the site.”

Whilst “sufficient time” is not specified, we can take some best practice guidance from the only other private parking trade association, the British Parking Association (BPA):
“13.2 If the parking location is one where parking is normally permitted, you must allow the driver a reasonable grace period in addition to the parking event before enforcement action is taken. In such instances the grace period must be a minimum of 10 minutes. “

3. The driver was not given any time to actually obtain the required permit. The necessity to display a permit is not in dispute, however the driver must be permitted sufficient time to obtain a permit (which is not in their possession), from the resident, which in this case took less than 5 minutes. An original copy of the permit proves that other vehicles have made visits to the building, requiring the permit to be returned to and retained by the resident, not the driver.
There is no reference in the Code of Practice on obtaining a permit, so again we can only refer to the best practice of point 13.2 from above that a grace period of at least 10 minutes should apply as reasonable guidance. Which in this case UK CPM did not allow before taking enforcement action i.e. photos of the vehicle without a permit.

4. Signage does not make reference to code of practice nor the rules obtained within. Whilst the sign did request a parking permit, it did not specify the terms with which to obtain one, or the time frame to obtain one, and therefore no contract can be formed with the driver or keeper. If there is no time allowed to obtain a permit, the sign should request that the driver not leave the vehicle until the permit holder brings it to the vehicle.

5. Since UK Car Park Management did not allow any time to complete any necessary tasks to fulfil a contract and follow their rules, they are not adhering to their own, nor any industry best practice guidance or Code of Practice. This is a requirement of the KADOE (Keeper of a Vehicle at the Date of an Event) Contract they entered into when retrieving the keepers details from the DVLA. Thus , UK CPM are in breach of the Data Protection Act 2018. Vidal-Hall v Google Inc [2014] EWHC 13 (QB) provides authority that misuse of personal data is a tort and that damages may be non-pecuniary.


The claimant has no cause of action in this matter, and the Court is invited to dismiss the claim in its entirety.

STATEMENT OF TRUTH
I believe the facts stated in this Defence are true


Or this slightly longer one, which I wonder is a bit long winded? What do you think?:





DEFENCE
________________________________________

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. 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.

3. It is admitted that at all material times the Defendant is the registered keeper of vehicle registration mark XXXXX which is the subject of these proceedings. The vehicle is insured with XXXX with X named drivers permitted to use it.

4. The parking charge is unwarranted because the driver was not given sufficient time to decide whether or not to park onsite. Having arrived around XXXX on XXXXXXX, the driver exited the vehicle and was deciding whether or not to obtain a permit and remain in the car park and visit a resident.
At that time, UK Car Park Management (UK CPM) was a member of International Parking Community (IPC) trade association, whose Code of Practice to which they must adhere states:

"15.1 Drivers should be allowed a sufficient amount of time to park and read any signs so
they may make an informed decision as to whether or not to remain on the site.”
Whilst “sufficient time” is not specified, we can take some best practice guidance from the only other private parking trade association, the British Parking Association (BPA):

“13.2 If the parking location is one where parking is normally permitted, you must allow the driver a reasonable grace period in addition to the parking event before enforcement action is taken. In such instances the grace period must be a minimum of 10 minutes. “

5. The driver was not given any time to actually obtain the required permit. The necessity to display a permit is not in dispute, however the driver must be permitted sufficient time to obtain a permit (which is not in their possession), from the resident, which in this case took less than 5 minutes. An original copy of the permit proves that other vehicles have made visits to the building, requiring the permit to be returned to and retained by the resident, not the driver.
There is no reference in the Code of Practice on obtaining a permit, so again we can only refer to the best practice of point 13.2 from above that a grace period of at least 10 minutes should apply as reasonable guidance. Which in this case UK CPM did not allow before taking enforcement action i.e. photos of the vehicle without a permit.

6. Signage does not make reference to code of practice nor the rules obtained within. Whilst the sign did request a parking permit, it did not specify the terms with which to obtain one, or the time frame to obtain one, and therefore no contract can be formed with the driver or keeper. If there is no time allowed to obtain a permit, the sign should request that the driver not leave the vehicle until the permit holder brings it to the vehicle.

7. Since UK Car Park Management did not allow any time to complete any necessary tasks to fulfil a contract and follow their rules, they are not adhering to their own, nor any industry best practice guidance or Code of Practice. This is a requirement of the KADOE (Keeper of a Vehicle at the Date of an Event) Contract they entered into when retrieving the keepers details from the DVLA. Thus , UK CPM are in breach of the Data Protection Act 2018. Vidal-Hall v Google Inc [2014] EWHC 13 (QB) provides authority that misuse of personal data is a tort and that damages may be non-pecuniary.

8. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.
9. The Claimant is put to strict proof that under terms of the lease at the time, that there was an absolute entitlement to park for the residents and their visitors which cannot be fettered by any alleged parking terms. Signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease.

10. The defendant avers that at the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation.

11. The Claimant, or their legal representatives, has added an additional sum of £60 to the original £100 parking charge, for which no explanation or justification has been provided. Schedule 4 of the Protection Of Freedoms Act, at 4(5), states that the maximum sum which can be recovered is that specified in the Notice to Keeper, which is £100 in this instance. It is submitted that this is an attempt at double recovery by the Claimant, which the Court should not uphold, even in the event that Judgment for Claimant is awarded.

The claimant has no cause of action in this matter, and the Court is invited to dismiss the claim in its entirety.

STATEMENT OF TRUTH
I believe the facts stated in this Defence are true

This post has been edited by Justice74: Tue, 11 Dec 2018 - 08:31

[Justice74]

Next stumbling block.

I did end up receiving the directions questionnaire. Have filled it in. One question though, where it asks for the location of the court proceedings.

If I put my home court, it will be somewhere probably in SE London or thereabouts. So I thought I'd be specific and search for local county courts.

I wasn't intending on reading about the courts themselves, but I just happened to see that all my local courts got 1 star and had many reviews. From what people have written it sounds like a horrendous ordeal to deal with these local courts. Entering wrong information, demanding incorrect payments, generally being nonchalent and rude.

So now that I've gone down this path as recommended on this site, am I now to not only battle the claimant parking company but the courts themselves aswell??

It seems almost a nationwide problem. Presumably everyone else who fought a parking ticket had the same issue. Have I got a poor chance of success if I go with a really bad court. Sadly my most local one has the worst reviews of all!

The only one I can find within any reasonable distance seems to be Kingston Upon Thames. Although it only has 5 reviews, so not much to go on. I'll go fruther afield if it increases my chances of success.

Can I even specify which court. Maybe I just have to put "home court", which fills me with dread!

Thanks

[nosferatu1001]

Yes, you specify the court, however they can simply look at your postcode and decide on a different one.

[Justice74]

Hi again guys

Well it was back in mid January that I returned my Directions Questionnaire so I'm sure I will be hearing back something over the coming weeks.

Anyway, part of my defence will be a written statement from the client I was visiting at the time to explain why I had to go and retrieve a permit in the first place.

I am not in regular contact with him, and he is rather busy and not the most reliable communicator. I've got a feeling he will move house rather soon after which I may struggle to get any statement from him. Hence why I am addressing this now.

So basically I was just going to get a typed letter from him, signed at the bottom.

Is there a specific way this letter should be written or constructed, and would it carry more weight if hand written? Given how busy he is, this might be a long shot anyway.

Someone mentioned to me a while back that a witness statement should be written in prescribed form. Not entirely sure what it means anyway. Or can he just literally write a statement with his name and address on there?

Or can it even be an e-mail?

Thanks

[ManxRed]

Ten seconds Googling:

https://www.justice.gov.uk/courts/procedure...ness-statements

[Justice74]

Ah yes. I was too busy searching the forums and didn't come up with anything. Completely slipped my mind to search google. Thanks for that.

I find it a bit confusing that I can be classed as a witness, but anyway, that form is clearly setup for a claimant or defendant to use where it says "the claimant in this claim". But presumably this is a format I should use for third party statements aswell?

So in that section , i would just change it for something like: "a witness in this claim" right?

[Justice74]

Success!!!

I waited it out, and yesterday received a Notice of Discontinuance. Not sure why now, when my court case is in May 2020. I would have thought they would have dragged it out until the last minute.

So in summary, for anyone else whom this may help:
I received a parking charge notice from a private parking company when i was working at a clients house, and went a few mins to collect the parking permit back in May 2017. I appealed, made no difference. Started getting chased by none other than Gladstone Solicitors. I asked for a Subject Access Request, to reveal that they only had photos taken 30 seconds apart. I had done nothing wrong, but even if I had, they had no proof in any case. I think my argument was sound. Surely I am allowed time to actually obtain a ticket.
Maybe they knew this was a lost cause, and hoped, like in so many other cases, that they could intimidate me.
Thanks to all those who offered advice and helped me, though thankfully it went no further.
Anyone affiliated with these companies and it's practices, are low life parasites. How can you live with yourselves. It causes so much anguish and wasted time, which is a crime when life is so precious. All in the name of profit.
Something must be done to rid ourselves of these thieves.

Anyway, rant over.

[ostell]

Was this from the claimant or the court? If the claimant then check with the court. Quick phone call