County Court Claim - PCM and Gladstones Sollicitor Options

[da_tnt]

Hi,

Back in October 2017, the following vehicle was parked in a restricted area of a residential development for about half an hour to accept a delivery of beds. Note that the registered keeper owns a flat in the development and have a secure underground parking. The driver needed to be close to the entrance to help with the unloading of bulky items.

The parking is managed by Parking Control Management. The driver has not seen a parking warden and did not get a PCN on the windscreen. Later on, a PCN was sent by post with pictures that seem to have been taken from far away from a CCTV? The PCN is for £100 and would go up to £160 after 28 days. The PCN is issued to the registered keeper of the vehicle.

I have ignored all correspondence regarding this until I received a County Court Claim Form dated 10/08/18. I have acknowledged the claim this morning (13/08) and I am planning to post here my draft defence for some advice. In addition to the £160, the claim adds £50 legal fees, £25 court fees and approx £8.95 interest.

I have attached the original ticket, the claim form, some pictures from the ticket and google maps. I will try and take a closer picture of the signage and post it here.

I am thinking to start with the following items:
1. The Claimant has no standing to bring a case.
2. The signage is not adequate and does not offer a contract with the motorist.
3. Falsified solicitor costs
4. Claimant failed to meet Notice to Keeper obligations
5. Not sure if I can include : "Claim not correctly filed under The Practice Direction"

As I have thrown away all correspondence, I was planning on asking them to send a copy of all correspondence by email.

















Any ideas would be welcome, I will now do more research on previous cases to finish my draft

Thanks

This post has been edited by da_tnt: Mon, 13 Aug 2018 - 19:05

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[cabbyman]

Jopson v Homeguard (2016) is probably of use to you.

http://nebula.wsimg.com/f6d657adf7df70d27e...p;alloworigin=1

And in summary:

https://padi.zendesk.com/hc/en-us/articles/...Homeguard-2016-

[da_tnt]

thanks, I will read both links.

[ostell]

And edit your post so that the identity of the driver is not apparent.

The sign is also a forbidding sign. There is no offer of parking so there can be no contract to park and therefore no breach. After forbidding parking is perverse to claim that there was a breach of the parking contract. The only claim would be by the landholder for trespass.

As they are claiming from the registered keeper then the maximum they can claim is the the amount of the original PCN. POFA 4(5)

They are permitted to claim £50 for solicitors, but no more.

The claim does not give a cause of action

THey ahve no defined who thay are claiming from.

They are claiming that they are agents of the landowner and you put them to proof of that.

[Eljayjay]

I suspect that you have possibly broken a term in your lease, but I bet that none of the other parties to your lease has made an issue of it.

In any event, as cabbyman said, Jopson v Homeguard could come to your aid.

As ostell said, the signage is forbidding. The parking company cannot say in one breath "No parking..." and, in the next breath, say "Parking Charge of £100".

If you can, post your lease here in its entirety (but after redacting your personal details).

If you cannot do that, let us know and I shall tell you some of the things for which you need to search in the lease.

[da_tnt]

thanks for the info, I will use this in the draft. Not sure if I can post the lease as it is too long, I will have a read through.
I have edited my post above.

[nosferatu1001]

Use Tinypic or similar to host the pictures.
Easy

[da_tnt]

ok i had so much work that i only managed to start my defence now and I should submit it shortly (running out of time). I cannot make it any more specific and I was wondering if it is worth risking and issuing it as is (it's either this or no defence).

In the County Court Business Centre

Between:
Parking Control Management (UK) LTD
vs
xxxxxxxxxx

Regarding claim number xxxxxxxxxx

I xxxxxxxxxxxx deny that I am liable to the claimant for the entirety of this claim for each of the following reasons:
1. The Claimant has no standing to bring a case.
2. The signage is not adequate and does not offer a contract with the motorist.
3. This Claimant has not complied with pre-court protocol
4. Claim not correctly filed under The Practice Direction
5. Falsified solicitor costs
6. Claimant failed to meet Notice to Keeper obligations


1. The claimant has no standing to bring a case.

a. The particulars of claim state that “the driver of the vehicle incurred the parking charge on 30/10/2017 for breaching the terms of parking on the land at xxxxx”; They are therefore acting as agents of the landowner.

b. It is believed Parking Control Management (UK) LTD do not hold a legitimate contract at this car park. As an agent, the Claimant has no legal right to bring such a claim in their name which should be in the name of the landowner.

2. The claimant claims that the defendant is in breach of the T&Cs in which drivers are allowed to park in condition with. But the signage does not offer a contract and is also poorly light.

a. The signage at the sign entrance is sparse, with no mention of the terms and conditions of the car park or the penalty of breaching the terms, violating POFA 2012 Schedule 4 and the BPA Code of Practice.

b. The small print on the signage does not allow the driver of any vehicle to read the terms and conditions of the car park until they are already in the car park and have been photographed by the Automatic Number Plate Recognition camera. There is no opportunity to make a decision not to enter the car park after reading the signs.

c. The alleged contract is unfair, not agreed by the driver, and contrary to the Consumer Rights Act 2015 in requiring a huge inflated sum as 'compensation'.

d. No promise was made by the driver that could constitute consideration because there was no offer neither known nor accepted. No consideration flowed from the Claimant.

e. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. As far as I can ascertain, based upon the very vague particulars of claim and complete lack of evidence and photographs, and without having been furnished with the alleged signage none of this applies in this material case.

f. The wording of the signage forbids parking, then there is no offer to park and therefore no contract In PCM-UK v Bull et all B4GF26K6 [2016], residents were parking on access roads. The signage forbade parking and so no contract was in place. A trespass had occurred, but that meant only the landowner could claim, not Parking Control Management (UK) LTD


3. This Claimant has not complied with pre-court protocol (as outlined in the new Pre Action Protocol for Debt Claims, 1 October 2017) by;

a. Not providing a copy of the alleged contract to the Defendant. This prevents a full defence being filed at this time as a parking charge can be for trespass, breach of contract or a contractual charge. All these are treated differently in law and require a different defence. The wording of any contract will naturally be a key element in this matter.

b. Failing to issue a compliant notice to keeper within 14 days under Schedule 4 of the Protection of Freedoms Act 2012 such that Claimant is unable to hold the Defendant liable under the strict !keeper liability provisions.

c. Issuing a sparse, mail-merged and non-compliant Letter before County Court Claim; under the Practice Direction. This constitutes a deliberate attempt to thwart any efforts to defend the claim or to take stock, pursuant to paragraph 12 of the Practice Direction. Again, this contradicts the guidance outlined in the new Pre-Action Protocol for Debt Claims (2017).

d. A Schedule of information sparse of detailed information.

4. The Claim Form issued on 10/08/2018 by Parking Control Management (UK) LTD was not correctly filed under The Practice Direction as;

a. It was not signed by a legal person but signed by Parking Control Management (UK) LTD (claimants legal representative).

b. It failed to disclose any cause of action in the incorrectly filed Claim Form issued on 10/08/2018.

c. The Claim Form Particulars were extremely sparse and divulged no cause of action nor sufficient detail. The Defendant has no idea what the claim is about - why the charge arose, what the alleged contract was; nothing that could be considered a fair exchange of information.

d. The Claim Form Particulars did not contain any evidence of contravention or photographs.

e. The Defence therefore asks the Court to strike out the claim as disclosing no cause of action and having no reasonable prospect of success as currently drafted.

Alternatively, the Defendant asks that the Claimant is required to file Particulars which comply with Practice Directions and include at least the following information:

i. Whether the matter is being brought for trespass, breach of contract or a contractual charge, and an explanation as to the exact nature of the charge

ii. A copy of any contract it is alleged was in place (e.g. copies of signage)

iii. How any contract was concluded (if by performance, then copies of signage maps in place at the time)

iv. Whether keeper liability is being claimed, and if so copies of any Notice to Driver / Notice to Keeper

v. Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter

vi. If charges over and above the initial charge are being claimed, the basis on which this is being claimed

vii. If Interest charges are being claimed, the basis on which this is being claimed.

Once these particulars have been filed, the Defendant asks for reasonable time to file another defence.

5. The claim includes a sum of £50, described as “Legal representative’s costs”. The Claimant is known to be a serial litigant. Given a standard working week, the claimant’s legal representative can spend no more than a few minutes per claim, hardly justifying the £50. Since these are fully automated, no intervention is required by a solicitor, and the Claimant is put to strict proof to show how this cost has been incurred. The Claimant maintains case notes for each person who has accessed the case, and it is suggested this would be sufficient. The Claimant cannot rely on Nossen’s Letter Patent (1969) to justify the charge, as this is part of their everyday routine, and no expert services are involved. The £50 is not valid because it is not incurred by the claimant.

6. The Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012. Absence of such a notice served within 14 days of the parking event and with fully compliant statutory wording, this Claimant is unable to hold the defendant liable under the strict keeper liability! provisions. Additionally, the Claimant has been known in other cases to specifically state during the appeal period, that they would not be relying on the Protection of Freedoms Act 2012, waiving their right to seek keeper liability. The Defendant is not therefore liable for the claim and invites the court to strike it out. In any case, there is no such obligation in law and this was confirmed in the POPLA Annual Report 2015 by parking expert barrister and Lead Adjudicator, Henry Greenslade, who also clarified the fact that a registered keeper can only be held liable under the POFA Schedule 4 and not by presumption or any other legal argument.


Thanks

[nosferatu1001]

If you submit no defence you lose, automatically.

See what others suggest.

[Eljayjay]

As I understand the situation, this relates to a leaseholder parking in an area where he should not have parked in accordance with the terms of his lease.

It is the lease which governs the behaviours, relationships, rights and obligations of the parties to it.

The lease is of PARAMOUNT IMPORTANCE and yet I can see absolutely no mention of in your defence.

I shall try to find time to give you some appropriate wording tomorrow.

[da_tnt]

Thank you, i will try and also do couple sentences in the lease tomorrow

[emanresu]

The pics look as if they have been taken with a drive-by system. New one for them.

[da_tnt]

below are some extracts of what i think are the relevant pages in the lease, please let me know if we can use them or if i need to dig more.





I have found another section about obstruction in the lease. but the parking sign clearly says we can use the space for loading and unloading which i was doing with the bed delivery (it may have took 20-30 min by the time we went up take off the packaging and came back).



also what do you think of this section in the defence

f. The wording of the signage forbids parking, then there is no offer to park and therefore no contract In PCM-UK v Bull et all B4GF26K6 [2016], residents were parking on access roads. The signage forbade parking and so no contract was in place. A trespass had occurred, but that meant only the landowner could claim, not Parking Control Management (UK) LTD

[da_tnt]

The sign is also a forbidding sign. There is no offer of parking so there can be no contract to park and therefore no breach. After forbidding parking is perverse to claim that there was a breach of the parking contract. The only claim would be by the landholder for trespass.

I have added this - section 1 f

They are permitted to claim £50 for solicitors, but no more.
As they are claiming from the registered keeper then the maximum they can claim is the the amount of the original PCN. POFA 4(5)

As I only have 122 lines in the defence and i don't have much space left, Iwill remove the section on the solicitors and instead add the wording on claim on registered keeper so maximum they can claim is original amount.

The claim does not give a cause of action

THey ahve no defined who thay are claiming from.

I don't know what you mean or what I should do with those two satements.

[nosferatu1001]

NO, you have more than that!

You havent found *other* defences and seen you create a PDF and EMAIL it to the court. You do NOT use MCOL.

Well in ordewr to sue you I have to say what you did that gave rise to the Action ie suing you. They dont do that. For example "you trod on my foot" is a cause of action.

They havent said who they are claiming from - the driver, owner, keeper. They are all seperate legal identities, and there is nothing that says they are all the same real life person.

[da_tnt]

You havent found *other* defences and seen you create a PDF and EMAIL it to the court. You do NOT use MCOL.

oK understood, I will email the pdf once it is sorted, I was thinking of doing this this afternoon once I receive feedback on the letter above.

I was also thinking is it worth adding as item 1

"the registered keeper is a leaseholder in the development and has a dedicated underground parking space. The communal space or access road where the sign is displayed can be used for loading and unloading. In this occasion a bed delivery was planned and the lease clearly identifies the legitimate use of the space for loading and unloading."

[nosferatu1001]

You have 33 days from date of issue whcih is 10.08.2018
So why rush?
EMail is instant.

This is not a "letter". It is a FORMAL LEGAL DOCUMENT.

Yes that is a good first item.

[kommando]

You need to sign a printed copy of the defence and then scan it to a pdf before sending.

[nosferatu1001]

Or better

Sign a VERY white piece of paper. Scan it in. Add it to the bottom of your defence document, and then convert to PDF. Stops the PDF potentially balloooning from a poor scan.

[da_tnt]

ok thanks, I will wait for few comments on the text above before i submit by email. what about all the other sections I need to fill in about income etc...