Debt recovery first letter received - advice please Options

[helencooke01]

Hi, new to the forum and hoping someone might be able to give me some advice/guidance.

I’ve checked on the stickies and FAQs and can’t find anything that is 100% relevant to my situation.

I received a debt collection letter from Trace, acting on behalf of Parking Control Management (UK) Ltd. There was hardly any information in the letter but the main gist was that I owed PCM £160 and, as I had not responded to any previous correspondence, Trace were now pursuing this debt. I immediately phoned Trace as I had no idea where the parking infraction had occurred etc. as this was the first correspondence I had received.

Trace advised that PCM had sent me 2 letters, and they told me where the infraction had occurred and the times. I advised that I had not received the 2 letters from Trace but that I knew that my husband had parked in Whittle Square etc and I would therefore be willing to pay the initial £60 fine. Trace told me to email them this information and they would review and possibly allow me to pay the initial £60 fine. I emailed Trace the same day.

7 weeks after my email to Trace they replied and said they did not accept my explanation that I had not received the letters, and that I still owed the £160 and had 7 days to pay.

I haven’t paid the £160 and have since received a Letter before Claim from Gladstones on 4th October. I have submitted an appeal on their website and have received no response. I have also submitted an appeal on the IPC website which has been closed (despite PCM not responding adequately to my queries).

My question is – what should I do? Should I just give up and pay the £160? Or should I let Gladstones take it to court? PCM have admitted that they do not have proof of posting, they can only prove that they print the letters, but that they assume I have received them both.

I have plenty of further correspondence/information that I can post to this thread if anyone is able to assist?

Thanks

Helen

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[helencooke01]

Ah of course - I got confused by the wording on the letter from the court as it states 'the defendant has filed a defence, a copy of which is enclosed '.

Thanks

Helen

[helencooke01]

Hi

Quick question - I am just completing the Directions Questionnaire and was going to enter 1 person as Witness (myself).

I just want to check that this is okay as I have been pursued in this matter as the Registered Keeper but I was not the driver and I was not present.
The driver has no wish to appear in court, is it okay for me to go alone? Would I have to provide a Witness Statement from the driver?

Thanks

Helen

[ostell]

There is no need to provide a witness statement from the driver. To do so is counterproductive as you will be identifying the driver and they can then chase the now identified driver.

There is no reason why you can not go alone, though you may have someone present to hold your hand, so to speak.

[helencooke01]

Hi

Gladstones know that I was not the driver, I have informed them if this a number of times. Does that make any difference?

Thanks

Helen

[cabbyman]

They are basically saying that either (1) they don't believe you or (2) they have satisfied the requirements of PoFA to transfer liability to the keeper.

Your statement given under oath that you were not the driver is sufficient evidence for point (1).

Your defence and supporting evidence should be enough to convince the court on point (2).

[helencooke01]

Thanks - I didn't receive any communication about the PCN until a debt recovery letter - though PCM maintain they sent the required NTKs and these were included in the SAR information they sent me. They are therefore pursuing me as the registered keeper even though I told them I wasn't driving.

So the question I am still not clear on is how I proceed when I get to Witness Statement stage? Can I write it based on the information provided to me by the driver?

Thanks

Helen

[helencooke01]

Hi

Just to give an update, I've received confirmation that the case is being moved to my local court.

Thanks

Helen

[helencooke01]

Hi

I've today received a Notice of Allocation to the Small Claims Track. The case will be heard on 18th July at my local court.

In the paperwork the following dates are listed:
- 30th May - PCM to file and serve a reply to defence with full particulars of claim
- 6th June - defendant to send copies of all the documents to be relied upon at the hearing
- 20th June - PCM to pay the court fee
-20th June - PCM and the defendant to send copies of Witness Statements

So I guess my first course of action is to get together all of my documentation such as the relevant section of POFA, photos of other cars parked in the same location, photos of inadequate signage/bay markings etc. Do I also need to include all correspondence between myself and PCM, the SAR response etc?

I have also read some conflicting guidance on MSE regarding submitting the documentation at the same time as the Witness Statements - should I do this or should I stick to the timetable prescribed by the court?

Thanks

Helen

[ostell]

Your witness statement is the chance to add photos etc as exhibits.

[helencooke01]

Hi, thanks - so what documents do I need to submit by 6th June?

Helen

[helencooke01]

Hi

As I haven't received a response to this I'm going to follow the same course of action as a similar incident on the MSE forum where the defendant was given different dates to send the evidence and Witness Statements.

I'm therefore going to get all my evidence together in 1 pack and have that to the court by 6th June, I'll then deliver my Witness Statements by 20th June.

One query on getting my evidence together - I have referenced POFA 2012 and the IPC Code of Practice in my defence. Do I need to include the whole of these documents in my evidence or just the relevant section? I don't want to print out 100s of pages if I don't need to, but equally I don't want to have my evidence dismissed by the judge as I haven't included the whole document.

Thanks

Helen

[Redivi]

I would send everything at the same time

Regarding the documents :

Relevant pages in the evidence packs
Take a full copy of the document on the day so text can be read in context

Not the whole of POFA, just Schedule 4

[helencooke01]

Thanks Redivi, that makes sense.

I've finished my first draft of the WS, would be grateful for any thoughts, feedback etc.

Thanks

Helen
__________________________________

List of Exhibits to be referenced:
HP1 - Protection of Freedoms Act (PoFA) 2012, Schedule 4, Paragraph 9
HP1a – Appeal to IPC and response
HP 2 – Photo gallery showing different cars parked in the same area
HP 3 - IPC code of conduct B15.1
HP 3a – Grace period information for council car parks
HP3b – Vine vs London Borough of Waltham Forest case transcript
HP4 – ParkingEye vs Beavis Sign
HP5 – Photo showing bay markings elsewhere in Whittle Square
HP 6- Photos showing no raised kerb or yellow lines, same surface treatment in parking area, a different parking area with same surface treatment and no marked bays
HP 7 – Photos showing new vs old entry signage and new vs old parking area signage
HP 8 – Photos showing further alterations to the site
HP 9 - The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5)

____________________________________

IN THE COUNTY COURT AT XXXXX

CLAIM No. XXXXX


Between:

Parking Control Management (UK) Limited (Claimant)

- and -

Mrs XXXXX (Defendant)

__________________________________________________ __________________________________
WITNESS STATEMENT – Mrs XXXXX
__________________________________________________ __________________________________

1. Preliminary

1.1 I, XXXXX, of XXXXX am the Registered Keeper in this case. I am unrepresented, with no experience of Court procedures. If I do not set out documents in the correct way, I trust the Court will excuse my inexperience.

1.2 Attached to this statement is a paginated bundle of documents marked HP1, HP2 etc., to which I will refer.

1.3 The facts in this statement come from my personal knowledge. Where they are not within my own knowledge, they are true to the best of my information and belief.

1.4 The claim refers to a parking incident involving vehicle XXXXX on 9th May 2018 at the location of Whittle Square, Gloucester.

1.5 I am not liable to the Claimant for the sum claimed, or any amount at all, and this is my Witness Statement in support of my Defence already submitted.

2. Sequence of Events

2.1 On 9th May 2018 my husband parked my vehicle XXXXX in the parking complex at Whittle Square, Gloucester, near Domino’s Pizza.
2.2 The vehicle was parked in an area commonly used for parking, behind another parked car. The vehicle was in no way contravening any Highway Regulations, and was parked safely without obstructing or obscuring any vehicular traffic. As such, I believe that my husband parked my vehicle responsibly and legitimately within a designated parking bay.
2.3 My husband was parked for less than 10 minutes before returning to my car and leaving Whittle Square.

2.2 Almost 3 months after this occurred, I received correspondence from Trace Debt Recovery UK Limited (letter dated 24 July 2018) demanding “OUTSTANDING PAYMENT” for “parking charges”. I Immediately contacted Trace to ascertain to what the letter referred, as this was the first communication I had received and the letter was very vague.
2.3 Communications with Trace, Parking Control Management (UK) Limited and Gladstones ensued and despite my efforts at mediation and offering to pay the initial £60 charge this was rejected. An appeal to IPC was also rejected despite my assertion that PCM (UK) Ltd had failed to comply with the Protection of Freedoms Act (POFA) 2012. See Exhibit HP 1, Exhibit HP1A.
2.4 The distinctly threatening and aggressive correspondence continued as the Claimant has pursued an entirely unreasonable and vexatious process designed to deny any reasonable opportunity for explanation or appeal process, which has led to the Court action now. I respectfully suggest that parking companies using the Small Claims track as a form of aggressive, automated monetary demand against motorists is not something the Court should be seen to support.

3 The Parking Bay

3.1 On entering Whittle Square, my husband looked for an available parking space close to Domino’s Pizza. He identified the area in question as suitable for parking based on the points listed below.

3.2 There is no raised kerb to restrict access to this area from the highway. See Exhibit HP2

3.3 There are no road markings, such as yellow lines, adjacent to this area to indicate this is not a parking bay. See Exhibit HP2

3.4 The area in question is in common usage as a parking bay and indeed my husband parked behind another vehicle. Over the past few months I have recorded numerous vehicles using this parking space, to demonstrate it is in common use as a parking bay. See Exhibit HP2

4. Grace Period

4.1 My husband was parked for, according to PCM, a period of 8 minutes. Interestingly the photos provided in PCM’s SAR response cover just over a period of 1 minute. The Penalty Charge Notice appears to be in contravention of the IPC Code of Practice which states that a grace period must be allowed for a driver to locate signage, go up to it, read it and then decide whether to accept the terms or not. See Exhibit HP3, Exhibit HP3a.


4. Inadequate Signage

4.1 On entering Whittle Square, my husband did not see any signage from my vehicle clearly indicating the parking restrictions. When my husband parked my car, there were no signs adjacent to the space, or in the vicinity that could possibly be read from my vehicle. I believe that in the case of “Vine vs London Borough of Waltham Forest” the Court of Appeal ruled that a person cannot be presumed bound by terms and conditions on signage that they have not seen. In this case, which was found in favour of the motorist, the signage was deemed insufficient because there was no signage directly adjacent to the Appellant’s parking bay and the only signage that was displayed could not have been seen from within the vehicle when parking, as in the case here. See Exhibit HP3, Exhibit HP3b

4.2 The signage in place at Whittle Square is difficult to read. A key factor in the case of “ParkingEye vs Beavis” was that the relevant signs were “large, prominent and legible so that any reasonable user of the car park would be aware of their existence and nature” and that “the charge is prominently displayed in large letters and at frequent intervals within it”. That is not the case here. See Exhibit HP4

4.3 The signage does state that “Vehicles must park fully within the confines of a marked bay”. My normal understanding of a “marked bay” would be the use of white painted lines to indicate the bay, as in the adjacent area. See Exhibit HP 5

In this case, the “bays” appear to be defined using contrast paving, but the use of the same colour and style of paving for the whole of this area, as indicated in Exhibit HP6, did not in any way suggest to my husband that he had parked in anything other than a parking bay.

4.4 Upon later investigation, I believe the signage and operating practice of the Claimant in use at Whittle Square fails the Claimant’s own accredited parking operator scheme (The Independent Parking Committee (IPC)), on the basis that the signage on entering the site “should make it clear that the motorist is entering onto private land” and include a very large “P” to alert the motorist to the fact that the signage relates to parking restrictions. There is no “P”, however sized, on the signage in use. See Exhibit HP 7

4.5 The IPC guidelines state that text on signage ‘should be of such a size and in a font that can be easily read by a motorist having regard to the likely position of the motorist in relation to the sign.’ The text on the signage, particularly that which refers to ‘contractual terms’ and a ‘parking charge’ is very small. This, coupled with the fact that the sign is mounted at least 7ft off the ground, makes it very hard to read and impossible to read from a vehicle.
4.6 Having visited the site numerous times recently I have noted that the signage both at the entry to Whittle Square and in place around the location have changed since 9th May 2018. There is additional and revised wording and images. It is my belief that this is an attempt to redress the deficiencies and ambiguous nature of the previous signage. See Exhibit HP7. Further alterations include the addition of steel bollards to restrict vehicular access and the addition of painted markings to identify emergency access. See Exhibit HP8

4.7 The IPC guidelines (14) state ‘You must not use predatory or misleading tactics to lure drivers into incurring parking charges. Such instances will be viewed as a serious instance of non-compliance’. The fact that there is no signage around this area and that it is known that other motorists use this area as a legitimate parking bay (see Exhibit HP2), I would question that the Claimant is deliberately obscuring this fact to generate spurious Parking Charge Notices solely for financial gain.

5 Declaration

I invite the Court to dismiss this claim in its entirety, and to award my costs of attendance at the hearing, such as are allowable pursuant to CPR 27.14.

Statement of Truth

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


Signature

Date

[ostell]

First comment is use "the driver". If the driver is identified they may then come after them. Let them prove who the driver was.

Was it really a Penalty charge? (4.1)

4.1 a period of 8 minutes, Interestingly however the photos provided


There is a prtion of the Beavis judgement where the judges commented that if the PPCs want to claim then the have to abide by their own PoC as though it was law. I can't remmebr exactly where it is but as you are saying that they have not abided by their CoP this should be a strong point.

This post has been edited by ostell: Wed, 22 May 2019 - 11:00

[ManxRed]

There is a prtion of the Beavis judgement where the judges commented that if the PPCs want to claim then the have to abide by their own PoC as though it was law. I can't remmebr exactly where it is but as you are saying that they have not abided by their PoC this should be a strong point.

CoP (Code of Practice)!

[helencooke01]

First comment is use "the driver". If the driver is identified they may then come after them. Let them prove who the driver was.

Was it really a Penalty charge? (4.1)

4.1 a period of 8 minutes, Interestingly however the photos provided


There is a prtion of the Beavis judgement where the judges commented that if the PPCs want to claim then the have to abide by their own PoC as though it was law. I can't remmebr exactly where it is but as you are saying that they have not abided by their CoP this should be a strong point.

Thanks. Gladstones/PCM are aware that I was not the driver; I have made this clear to them but as I didn't receive any communications from them prior to the debt recovery letter they are pursuing me as the keeper. Based on the SAR I sent to PCM they did send me the Notice to Driver and then Notice to Keeper letters but neither of these was received.
I've included a section in my Defence/Witness Statement that they have failed POFA as Notice was not 'given' to me, as I didn't receive the letters, but am not confident that will be upheld.

Thanks, I've amended to read 'Parking Charge'.
Also thanks to your comment I noticed that my numbering was wrong so I've now corrected it!

I will try to find the relevant section of Beavis to see if I can use it to strengthen my WS, thank you for this.

Helen

[helencooke01]

Hi

Today I have received a Particulars of Claim and Reply to Defence from Gladstones.

On reading through it there are a few issues I can see but the first one I wanted to ask is this:
On the Notice of Allocation to the Small Claims Track the judge has ordered that:
By 30th May the claimant must send to the court and the defendant
- Reply to defence
- Full particulars of claim
- Copies of all the documents he intends to rely upon at the final hearing.

I have received the first 2 items but not any documents that would be relied upon (e.g. photographic evidence). Is this normal and is it okay for Gladstones to not comply with the judge's orders? Do I need to do anything at this point?

Particulars of Claim
I have noticed a few errors/issues which I have listed below, again do I need to do anything with these or should I highlight them in court? Or is it not really relevant?
1 - they list exhibit/attached photographs that ARE NOT attached to the email/documentation
2 - they refer to 'other vehicles parked correctly within close proximity' - there is no photographic proof to back up this assertion (and no photos of this were included in the SAR) - should I challenge it?
3 - they are claiming interest from 28 days after the charge until the date of issue of this claim (05 August 2016) - the date of the 'contravention' was 09 May 2018??
4 - they are claiming costs pursuant to CPR 44.5 - is this normal and what does it mean?

Reply to Defence
1 - they state that their Particulars of Claim listed on the Claim Form contain the relevant information, but they did not contain the PCN number or any statement that the Claim relates to a debt (information which they state is included)
2 - they refer to sending correspondence on 3rd Jan 2019 - I received nothing anywhere around this date so not sure to what they are referring
3 - they have argued that a grace period does not apply because my husband left the car and could not be seen reading any signage (although they have no proof of this in their SAR photographic evidence). However the signage is not even visible when you are driving your car past it so it would be necessary to leave the car to read the sign. This is even stated in the IPC guidance - 'spot signage, go up to it, read it', so I feel they are contradicting themselves here somewhat

Am I able to flag any of these up? I don't see how they could easily be contained within my witness statement so do I just need to flag them up in court?

Thanks

Helen

[ostell]

I would suggest that you supply to the court and Gladstones an addendum to your defence following the receipt of the Full Particulars of Claim ordered by the court and make your observations there.

[helencooke01]

Hi Ostell

Thanks, I will do this over the weekend.

What should I do about the fact that Gladstones have not sent me any of the evidence they intend to rely upon in court? It should have been received by yesterday and can only assume they have messed up and not included it.

Should I highlight this or leave it and hope it helps me when we get to court?

Thanks

Helen