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£2000 of tickets - Permit expired without us knowing or being informed, Need help - have appealed but told to contact debt recovery or IAS
alfxlon
post Thu, 11 May 2017 - 15:32
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Hi Everyone,

I’d be really grateful if someone could help with this as it’s getting really stressful – 12 tickets each at £160 and mounting. I’ve trawled through the other threads to find exact answers but I’m still unclear what to.

Basically I park my car in my friend’s apartment car park (with permit displayed). My friend who owns the space is also named insured driver. Neither of us really use the car or see it that often as we both cycle or use public transport.

Anyway, I needed to use the car recently but found a load of tickets on it (from private parking management company). I had no idea what they were for so I phoned up the debt collection company who eventually told me it was because my permit had expired. We had no idea this had happened because our existing permit had no expiry date written on it. Also they never wrote to him telling him they’d expired the permit or issued him with a new one. Because my place (where vehicle is registered) is a building site at the moment I’m living at a forwarding address, all the notices came through late to me so was delayed in appealing.

Anyway for each of these tickets I get a separate correspondence. They’re now coming from a debt collection agency (TRACE) and now letters from solicitors Gladstone’s requesting payment (with increasing costs).

I wrote to the PCN company with the letter of appeal (see below) and they wrote back saying they are unable to process my appeal as my case is with one of their external debt collection agencies and I’d need to contact them. They say I can appeal through IAS (see response letter below).

My question is, what’s the best thing to do now? Should I appeal through IAS? Other options? £2000 plus seems excessive especially as they didn’t inform us or provide new permit!!

Would really appreciate any help

many thanks


<I anonymised the letter – I’m Mr C and registered Keeper. Mr S is owner of the car space and permit and insured driver on vehicle>

Dear Sir / Madam

Vehicle Registration Number: XYZ
Ticket References:
PCM Ref Date of Issue PCN ticket Description Reason later established by calling TRACE Debt recovery
PM1 07/10/2016 Parked without clearly displaying a valid PCM UK Ltd Permit No permit displayed
PM2 05/11/2016 Parked without clearly displaying a valid PCM UK Ltd Permit Displaying expired permit
PM3 07/11/2016 Parked without clearly displaying a valid PCM UK Ltd Permit Displaying expired permit
PM4 12/11/2016 Parked without clearly displaying a valid PCM UK Ltd Permit Displaying expired permit
PM5 15/11/2016 Parked without clearly displaying a valid PCM UK Ltd Permit Displaying expired permit
PM6 19/11/2016 Parked without clearly displaying a valid PCM UK Ltd Permit Displaying expired permit
PM7 22/11/2016 Parked without clearly displaying a valid PCM UK Ltd Permit Displaying expired permit
PM8 03/12/2016 Parked without clearly displaying a valid PCM UK Ltd Permit Displaying expired permit
PM9 13/12/2016 Parked without clearly displaying a valid PCM UK Ltd Permit Displaying expired permit
PM10 11/01/2017 Parked without clearly displaying a valid PCM UK Ltd Permit Displaying expired permit
PM11 17/01/2017 Parked without clearly displaying a valid PCM UK Ltd Permit Displaying expired permit
PM12 29/01/2017 Parked without clearly displaying a valid PCM UK Ltd Permit Displaying expired permit

We are writing to appeal the above parking charges. Owing to the circumstances explained below we believe that the tickets have been unfairly issued because of administration issues of the parking management company (Parking Control Management (UK) Ltd) and other circumstances beyond our control.

We can confirm that ‘Mr S’ is resident owner in the building (address of building where tickets were issued managed by PCM) and owner of the parking space occupied by the vehicle (Registration XYZ). He is fully paid-up in terms of his building service charges which include financial contribution to the management of the car park and entitlement to a valid parking permit. ‘Mr C’ is the registered owner of the vehicle and we are close friends. ‘Mr S’ is a named insured driver on the vehicle (see attached evidence).

We note that all of the parking tickets except the first relate to “displaying an expired permit”. This information was only recently established (18/4/17) by contacting the debt recovery agency, TRACE as this information isn’t stated on any of the parking control notices or correspondences relating to the charges.

We can truthfully inform you that we had no awareness that the permit had expired. This is owing to three administration issues caused by the parking management company as follows:

1. The permit supplied by the parking management company that was displayed in the vehicle has no expiry date written on it (see photocopy evidence of permit supplied).
2. ‘Mr S’ received no correspondence from the parking management company informing him of the expiry of the existing permit.
3. ‘Mr S’ has not been supplied with a new permit.

As ‘Mr S’ pays for parking facilities through his service charge, we feel it’s reasonable to expect the parking management company to make adequate arrangements to inform him of the decision to invalidate his existing permit (given there was no expiry date on the permit) and provide him with a new one. This is something the parking management company failed to do. As a result neither of us was aware that the parking management company had invalidated the displayed permit and required us to display a new one.

It is relevant to inform you that the vehicle is rarely used or viewed by either of us as we generally cycle and / or use London public transport. Because of this, there became a build-up of tickets on the vehicle without us noticing. However, we note that not all of the tickets have been recovered from the vehicle as some appear to have been removed without our knowledge (we are not in possession of these tickets). A comprehensive list of ticket numbers has subsequently been established by phoning the number on debt recovery letters received at the registered owners address, ‘Mr C’, at <registered vehicle address>. However, these letters were received late owing to the property being under renovation and the charge notices arriving delayed (and in bulk) at ‘Mr C’s forwarding address at <Mr C’s forwarding address>.

Given the circumstances detailed above, I would be grateful if you could retract the charges relating to displaying an expired permit. In relation to the first charge (PM1), the permit had fallen down the dash and wasn’t displayed (as shown in the photographic evidence). This was our fault and we are happy to pay this charge however, owing to the same issues described above, we request that that the initial charge of £60 is applied as part of this appeal?

Can I also ask that you supply ‘Mr S’ with a valid permit as he is still not in receipt of one and unable to use the space which has been paid for. Also, please note that the car has now been sold (as we have nowhere to park) and ‘Mr C’ is no longer the registered owner of the vehicle.

I look forward to hearing from you

Yours Sincerely

‘Mr S’ & ‘Mr C’


Dear Mr C

Thank you for your correspondence regarding above Parking Charge Notice (PCN).

We are unable to process your appeal as your case is with one of our external debt collection agencies. You will now need to contract them regarding your case, all contact details for them can be found on previous correspondence they have sent you.

Debt Recovery Plus Ltd - <Telephone number>
Trace Debt Recovery Uk Ltd - <Telephone number>

The Independent Appeals Service (www.IAS.org) provides an Alternative Dispute Resolution scheme for disputes of this type. Debt Recovery Companies will not engage with the IAS Non-Standard Appeals Service at this stage

Yours Sincerely
PCM Appeals Team
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whjohnson
post Thu, 9 Aug 2018 - 15:12
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"........4. Premium commercial parking vs residential parking re, Parking Eye Vs Bevis – I need to get my head around this case better. So their contract with landowner allows them to dish out penalty charges but not at a premium??........."


Beavis was about a PPC paying the landholder to ensure a high turnover of cars in and out. It was a retail shopping complex and they didn't want people leaving their cars all day which would mean that genuine shoppers would have nowhere to park.

Your case is different insomuch that yours is a residential space and thus not expected to be used in the same way. You can leave your car there for as long as you wish and that unlike the Beavis carpark thing, you don't have to purchase a parking ticket to do so.

This post has been edited by whjohnson: Thu, 9 Aug 2018 - 15:14
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Eljayjay
post Thu, 9 Aug 2018 - 16:28
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alfxlon

I am drafting something for you. Give me an hour.
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Eljayjay
post Thu, 9 Aug 2018 - 17:42
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I thought that I should give you a progress report.

Below is what I have drafted so far. Would you like me to continue?


In the County Court at <location of court>


Claim No. <claim number>


Claimant: <name of parking company>


Defendant: <your name>


Statement of Legal Arguments by the Defendant rebutting the Claimant’s Witness Statement


Witness statement of <your name>


1.1 I, <defendant’s name> of <address>, am the Defendant in this case. My home is a flat. I am the leasehold owner of the flat which I purchased on 15 January 2010.

1.2 Being a leasehold property, of course, my rights and obligations where I live are governed by my lease. In the same way, the lease governs the rights and obligations of the other parties to the lease.

1.3 Under my lease, the other parties to it have granted me the exclusive right to use an allocated parking space. That is the sole purpose of the land.

1.4 There is nothing in my lease which would enable the other parties to authorise a stranger, such as the Claimant, to use my allocated parking space for the purposes of its business.

1.5 It was never intended that a parking company, such as the Claimant, would be able to offer all-comers parking in my allocated parking space, but that is what the Claimant does.

1.6 It is perverse that the Claimant asserts that the parking scheme exists for my benefit. I derive no benefit whatsoever from the scheme. If a trespasser were to park in my space, the Claimant would not move the vehicle to clear the space for my use and it would not offer me part of its parking charge to compensate me for having to pay for parking elsewhere. The parking scheme is a purely predatory arrangement intended to fill the Claimant’s coffers.

1.7 The numbering of the paragraphs which follow the numbering of the Claimant’s witness statement.

2.1 The Claimant commenced its use of my allocated parking space for its business purposes three years after I purchased my lease.

2.2 The Claimant failed to apply due diligence not only to my lease and my rights under it, but also to the lack of rights of its client.

2.3 In its bundle, the Claimant includes, as its first exhibit, an agreement with its client, a “Manager”. The Manager is, of course, not I. The Manager does not, therefore, own the parking rights relating to the relevant land. The Manager is not a party to the lease. The agreement does not state that the Manager is acting on behalf of the freeholder. Furthermore, given that the freeholder has never indicated to me that it has sanctioned either the Manager or the Claimant or, indeed, anyone else to use my parking space for any purpose, I do not believe that the Manager is acting on behalf of the freeholder.

2.4 In any event, my lease has primacy of contract over any agreement between the Claimant and the Manager and, as mentioned in paragraph 1.4, there is nothing in my lease which permits any of the other parties to it to authorise a stranger to use my allocated parking space for its business purposes.

2.5 The only possible way that the Claimant would be able to charge for parking in my allocated parking space would be if I had agreed to transfer the whole or part of my parking rights to it. I have never agreed to this.

2.6 The agreement and the Claimant’s other exhibits have no relevance insofar as my allocated parking space and my rights to park in it are concerned.

3 I paid for parking in my allocated parking space when I purchased my lease. My lease does, of course, oblige me to pay service charges and ground rent, but it places me under no obligation whatsoever to pay anything more for parking. The Claimant’s assertion that I am “liable for a parking charge relating to the parking of a vehicle on the Relevant Land” is, therefore, entirely spurious.

4 My lease says everything that needs to be said about my rights to park in my allocated parking space. In effect, my lease is my parking permit. The Claimant’s signage and permit are irrelevant.

5.1 In the criminal case of Elliott v Loake, there was forensic evidence that the registered keeper was the driver of the vehicle. In addition, the registered keeper of the vehicle admitted that only he could have been driving the vehicle. It does not provide a precedent for presuming that the registered keeper of a vehicle is its driver. involved not housing manager an exhibit ’s bundle consisted of a witness statement and five exhibits. and my relationships with the other parties to the lease

5.2 Furthermore, I am not the registered keeper of the vehicle.

6.1 See paragraph 5.2. In order to pursue the registered keeper for parking charges, a parking company must obtain the registered keeper’s details from the DVLA. It would have been impossible for the Claimant to have obtained my details from the DVLA as the registered keeper of the vehicle.

6.2 The Claimant is not, therefore, able to pursue me for parking charges as the registered keeper pursuant to Schedule 4 of the Protection from Freedoms Act 2012.

7 See paragraph 6.2.

8 See paragraph 6.2.

9 I have never entered into a contract with the Claimant. I had no need. I had and still have a pre-existing right to park in my allocated parking space.

10 In Parking Eye v Beavis, Beavis acknowledged that Parking Eye had a valid contract with the owner of the land to operate a parking scheme on the land. I do not accept that the Claimant had or has any right to use my allocated parking space for the purpose of its business.

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nosferatu1001
post Thu, 9 Aug 2018 - 18:27
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1) summarise the flaws in their WS. It's what I said already. Point out that the WS was clearly not written by anyone with direct knowledge, because if so they would know the defendant is NOT the rk, as stated on x date

Point out you are confused why the C is claiming something that has never been said.
2) witness summons.
3)it's not a skelly so much as a full claim. It's a real mishmash. You just state this orally.
4) there is no commercial reason to require a high turnover. So it's a penalty and the penalty rule wasn't lifted.
5) question their witness on standing to sign
6) adduce in the witness statement
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Eljayjay
post Thu, 9 Aug 2018 - 19:02
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alfxlon

Here is my full draft. It is just a draft and I notice that nosferatu1001 has made some recent comments which may well be worthy of inclusion. On reading through it myself, I have found that it says nothing about non-derogation from grant and nothing about tortious interference with your lease which must go in.

I think the IPC v BPA matter may give the Manager grounds for claiming breach of contract, but probably not you.

Anyway, over to you and others to polish or scrap.



In the County Court at <location of court>


Claim No. <claim number>


Claimant: <name of parking company>


Defendant: <your name>


Statement of Legal Arguments by the Defendant rebutting the Claimant’s Witness Statement


Witness statement of <your name>


1.1 I, <defendant’s name> of <address>, am the Defendant in this case. My home is a flat. I am the leasehold owner of the flat which I purchased on 15 January 2010.

1.2 Being a leasehold property, of course, my rights and obligations where I live are governed by my lease. In the same way, the lease governs the rights and obligations of the other parties to the lease.

1.3 Under my lease, the other parties to it have granted me the exclusive right to use an allocated parking space. That is the sole purpose of the land.

1.4 There is nothing in my lease which would enable the other parties to authorise a stranger, such as the Claimant, to use my allocated parking space for the purposes of its business.

1.5 It was never intended that a parking company, such as the Claimant, would be able to offer all-comers parking in my allocated parking space, but that is what the Claimant does.

1.6 It is perverse that the Claimant asserts that the parking scheme exists for my benefit. I derive no benefit whatsoever from the scheme. If a trespasser were to park in my space, the Claimant would not move the vehicle to clear the space for my use and it would not offer me part of its parking charge to compensate me for having to pay for parking elsewhere. The parking scheme is a purely predatory arrangement intended to fill the Claimant’s coffers.

1.7 The numbering of the paragraphs which follow the numbering of the Claimant’s witness statement.

2.1 The Claimant commenced its use of my allocated parking space for its business purposes three years after I purchased my lease.

2.2 The Claimant failed to apply due diligence not only to my lease and my rights under it, but also to the lack of rights of its client.

2.3 In its bundle, the Claimant includes, as its first exhibit, an agreement with its client, a “Manager”. The Manager is, of course, not I. The Manager does not, therefore, own the parking rights relating to the relevant land. The Manager is not a party to the lease. The agreement does not state that the Manager is acting on behalf of the freeholder. Furthermore, given that the freeholder has never indicated to me that it has sanctioned either the Manager or the Claimant or, indeed, anyone else to use my parking space for any purpose, I do not believe that the Manager is acting on behalf of the freeholder.

2.4 In any event, my lease has primacy of contract over any agreement between the Claimant and the Manager and, as mentioned in paragraph 1.4, there is nothing in my lease which permits any of the other parties to it to authorise a stranger to use my allocated parking space for its business purposes.

2.5 The only possible way that the Claimant would be able to charge for parking in my allocated parking space would be if I had agreed to transfer the whole or part of my parking rights to it. I have never agreed to this.

2.6 The agreement and the Claimant’s other exhibits have no relevance insofar as my allocated parking space and my rights to park in it are concerned.

3 I paid for parking in my allocated parking space when I purchased my lease. My lease does, of course, oblige me to pay service charges and ground rent, but it places me under no obligation whatsoever to pay anything more for parking. The Claimant’s assertion that I am “liable for a parking charge relating to the parking of a vehicle on the Relevant Land” is, therefore, entirely spurious.

4 My lease says everything that needs to be said about my rights to park in my allocated parking space. In effect, my lease is my parking permit. The Claimant’s signage and permit are irrelevant.

5.1 In the criminal case of Elliott v Loake, there was forensic evidence that the registered keeper was the driver of the vehicle. In addition, the registered keeper of the vehicle admitted that only he could have been driving the vehicle. It does not provide a precedent for presuming that the registered keeper of a vehicle is its driver. involved not housing manager an exhibit ’s bundle consisted of a witness statement and five exhibits. and my relationships with the other parties to the lease

5.2 Furthermore, I am not the registered keeper of the vehicle.

6.1 See paragraph 5.2. In order to pursue the registered keeper for parking charges, a parking company must obtain the registered keeper’s details from the DVLA. It would have been impossible for the Claimant to have obtained my details from the DVLA as the registered keeper of the vehicle.

6.2 The Claimant is not, therefore, able to pursue me for parking charges as the registered keeper pursuant to Schedule 4 of the Protection from Freedoms Act 2012.

7 See paragraph 6.2.

8 See paragraph 6.2.

9 I have never entered into a contract with the Claimant. I had no need. I had and still have a pre-existing right to park in my allocated parking space. I have no obligations to the Claimant. When it comes to my allocated parking space, I regard the Claimant as nothing more than a serial trespasser on the make.

10 See paragraph 9.

11 See paragraph 9.

12 See paragraph 9.

13 The Claimant has no right to grant “a contractual licence to all (which) allows anyone permission to be on the Land”. This results in the Claimant not simply being a serial trespasser but a serial trespasser who encourages others to trespass in my allocated parking space. The offer, acceptance and consideration relating to my right to park in my allocated parking space came when the parties to my lease signed it and I paid the purchase price.

14 See paragraph 9.

15 See paragraphs 9 and 13.

16 If the Claimant had applied due diligence prior to entering into its fatally flawed contract with the Manager, it would have discovered that parking in my allocated parking space was governed by a lease. My lease, which I have included in my bundle makes it very clear that I do have a right to park in my allocated parking space. It is the Claimant which has failed to provide evidence of its purported right to use my parking space for the purposes of its business.

17 As mentioned in paragraph 1.6, it is perverse that the Claimant asserts that the parking scheme exists for my benefit. I derive no benefit whatsoever from the scheme. If a trespasser were to park in my space, the Claimant would not move the vehicle to clear the space for my use and it would not offer me part of its parking charge to compensate me for having to pay for parking elsewhere. The parking scheme is a purely predatory arrangement intended to fill the Claimant’s coffers. The Claimant had and has no right to manage the space or to issue its so-called parking permits. Before the Claimant commenced using my allocated parking space for the purpose of its business, it should have heeded the terms of my lease. I was under no obligation to notify the Claimant of the terms of my lease. It is noteworthy here that Section 13 of the Supply of Goods and Services Act 1982 “In a relevant contract for the supply of a service where the supplier is acting in the course of a business, there is an implied term that the supplier will carry out the service with reasonable care and skill”.

18 The Claimant’s signs are irrelevant. They would only be of relevance if the Claimant had been authorised validly to use my allocated parking space for the purposes of its business; however, as mentioned in paragraph 1.4, there is nothing in my lease which would enable the other parties to authorise a stranger, such as the Claimant, to use my allocated parking space for the purposes of its business.

19 See paragraph 18.

20 See paragraph 9.

21 See paragraph 9.

22 See paragraph 9.

23 See paragraph 9.

24 The Claimant implies that the only way to submit particulars of claim is via the MCOL online facility which “only allows the Claimant to insert brief details of the Claim”. Although the online facility does restrict the length of particulars of claim, defences and counterclaims, it is not the only way of submitting any of these documents.

25 Given that I am not the registered keeper of the vehicle, I could not possibly have been sent any valid “notices in accordance with the Act” (i.e. Schedule 4 to the Protection of Freedoms Act 2012). Insofar as all of the Claimant’s correspondence is concerned, I must confess my naivety – I thought that the parking scheme was such an obvious scam that the Claimant would never issue a formal claim against me. I particularly regret my failure to respond to the Claimant’s letter before claim because I now realise that this would have provided me with an opportunity to request information and documents from the Claimant which, if the Claimant was able to provide, could perhaps have enable us to narrow the issues between us. Frankly, however, being somewhat wiser now, I am convinced that the Claimant would not have been able to provide that information and those documents.

26 As there is no contract between the Claimant and myself, there has been no breach of contract.

27 It is interesting that the Claimant is an “Accredited Operator of the International Parking Community (IPC)”. The agreement with the Manager on which it places great reliance states very clearly that “The scheme will be operated in accordance with the BPA (British Parking Association) and AOS (Approved Operator Scheme) Code of Practice”. The IPC and the BPA are rival trade associations. The Claimant has cut its ties with the BPA and is no longer subject to its AOS.

28 When pursuing the registered keeper, as opposed to the driver, Schedule 4 to the Protection of Freedoms Act 2012 does not allow the parking charge to be increased over and above the sum of £100 originally claimed.

29 In paragraph 29 of the Claimant’s witness statement, the Claiamnt wriggles yet again from the keeper to the driver.

30 See paragraph 26.

This post has been edited by Eljayjay: Thu, 9 Aug 2018 - 19:05
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alfxlon
post Thu, 9 Aug 2018 - 19:24
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Thanks for this Eljayjay...

Edited this post as I saw you've pretty much done the skeleton argument...this is looking great!!


Quick question..I have an issue when I want to present evidence that relates to the fact that i've seen their witness statement in advance of submitting mine (I can't submit more evidence in the skeleton argument.)

So I was thinking, I could also carry on the chronological story in my witness statement i.e.

"on 6th August 2018 I received the Claimant's witness statement"
"The claimant's witness statement states it is pursuing me as registered keeper. However, I can confirm I have never been registered keeper <DVLA evidence>"
"the claimant's witness statement contained the contract with the landowner that is signed by a housing officer, however....(as per your points above)
" The claimant's contract with the landowner requires them to be part of BPA and apply the code of practice - I can confirm that this code of practice wasn't carried out - (see code of practice evidence).

etc etc

what do you think?

This post has been edited by alfxlon: Thu, 9 Aug 2018 - 19:42
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alfxlon
post Thu, 9 Aug 2018 - 20:00
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ignore my last message...i think i'm getting it now. They are assuming the right that was originally granted to me as their own i.e. to use the parking space for their purposes . Its not about them regulating or maintaining order... it's them using a right that's exclusively mine to make money out of people. They clearly can't do that.

I get it (finally )... thanks Eljayjay! this is brilliant - i can work with this. I really appreciate your help.

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southpaw82
post Thu, 9 Aug 2018 - 20:40
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QUOTE (alfxlon @ Thu, 9 Aug 2018 - 20:24) *
(I can't submit more evidence in the skeleton argument.)

True but you can submit an additional witness statement with the evidence exhibited to it. If you ensure the claimant has a copy in advance of the hearing and explain to the court why you did so (i.e. to respond to their evidence) there shouldn’t be an issue.


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alfxlon
post Thu, 9 Aug 2018 - 20:49
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great..thanks for clarifying Southpaw. I'll do it as additional WS as you suggested.

right..I'm calling it a night, give someone else a chance.

I'll get working on the additional WS and skeleton argument and give everyone an update shortly.
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Eljayjay
post Thu, 9 Aug 2018 - 23:42
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I am really glad that the penny has dropped with regard to what a residential case is all about in my opinion.

southpaw82’s post answers your question for you.
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The Rookie
post Fri, 10 Aug 2018 - 19:36
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QUOTE (Eljayjay @ Thu, 9 Aug 2018 - 20:02) *
5.1 In the criminal case of Elliott v Loake, there was forensic evidence that the registered keeper was the driver of the vehicle.

Not true.

In EvL he stated that the car wasn’t at the scene of the accident and that only he had been driving it, as they could prove the car was at the scene (forensically) then he had to have been driving it.

It would be better to say that his own testimony meant he had to have been driving it.

This post has been edited by The Rookie: Fri, 10 Aug 2018 - 19:42


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Albert Ross
post Fri, 10 Aug 2018 - 21:25
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QUOTE
The contract states that "the scheme will be operated in accordance with the BPA (British Parking Association) and AOS (Approved Operator Scheme) Code of Practice. It goes on to "give authority to proceed with legal action to recover unpaid charges for unauthorised parking on the land specified above in accordance with BPA/AOS code of practice"


Is or was Version 1 of the BPA AOS Code of Practice available in 2010.

Is the Housing Association one which receives Public Funding; and therefore obligated to provide the contract with a FOI request, especially given that this could then give right to a Family Life...


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henrik777
post Mon, 13 Aug 2018 - 08:26
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QUOTE (Albert Ross @ Fri, 10 Aug 2018 - 22:25) *
Is or was Version 1 of the BPA AOS Code of Practice available in 2010.


Came in with PoFA October 2012. The amendment in 2013 probably covered that.
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alfxlon
post Sun, 2 Sep 2018 - 12:53
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Hi Everyone

Just wanted to provide quick update and ask two questions:

Handed the WS to the court last Friday. Hearing is on 17th September so now working on the Skelton argument which is the hardest of the three I feel (Defence, WS, Skeleton). Thanks to ElJayJay i've been doing a a fair bit of cutting and pasting from his doc and i'll post up shortly. Few quick questions before I do:

1. In the skeleton I don't want to rehash points i've already made in the Defence Document (and to a certain extent, the WS)...Otherwise it's just going to become really repetitive and tedious for the judge to read - is this the right approach or should the Skeleton Argument contain every single point i.e. even if covered pretty thoroughly in the Defence??

2. Has anyone developed a decent rebuttal for the VCS v HMRC case and the point ? I've tried searching here and on MSE but can't find anything

The flaw in the reasoning is that it confuses the making of a contract with the power to
perform it. There is no legal impediment to my contracting to sell you Buckingham Palace.
If (inevitably) I fail to honour my contract then I can be sued for damages. On the stock
market it is commonplace for traders to sell short; in other words to sell shares that they
do not own in the hope of buying them later at a lower price.


thanks
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kommando
post Sun, 2 Sep 2018 - 13:19
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Skeleton is the bare bones, ie like an executive summary of a full report, 1 to 2 pages typically.
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sputnik365
post Sun, 2 Sep 2018 - 17:33
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Others disagree but the fact is the permit had not expired so if it was me I would include that.
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Albert Ross
post Sun, 2 Sep 2018 - 18:10
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Double Recovery

The Space regardless of permit is owned by the Driver, or at least one of them.
Ownership is a prior purchase for a premium creating primacy of contract issues primarily.
Secondly; a further charge for what is already paid would amount to a Double Recovery.

I am sure some others could put flesh on that [Skeleton] Argument


--------------------
The owl of Minerva spreads its wings only with the falling of the dusk.
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Eljayjay
post Sun, 2 Sep 2018 - 18:28
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Insofar as VCS v HMRC is concerned, you have uncovered the relevant part of the judgement.

Generally, VCS v HMRC is cited by the parking companies to show that they can enter into a contract with someone to provide parking without owning the land and without even having the permission of the owner or occupier of the land.

That is very true, I could enter into a contract with you to let you park your car next Saturday on Horse Guards Parade for 50p for the day. Recognising a bargain, you accept the offer and you pay me the 50p.

So, we now have a contract. The is an offer, there is an acceptance, and there is your 50p as consideration.

Your problem comes when you are arrested and your car is impounded. My problem comes when you sue me for breach of contract because, incredibly, I do not own the parking rights at Horse Guards Parade and, therefore, I do not have any consideration for your 50p.

And that is what the judgement says except that it talks about traders offering shares for sale which they do not own. The difference is that traders can buy the shares by the time they need to cough them up. So, that does not cause any problems.

But it also talks about Buckingham Palace being offered for sale. Now, that would cause a problem because any person offering to sell that to anyone else is almost certainly not going to acquire the right to sell it by the agreed completion date.

So, the bit of the judgement quoted below actually works against the parking companies not in their favour...

The flaw in the reasoning is that it confuses the making of a contract with the power to
perform it. There is no legal impediment to my contracting to sell you Buckingham Palace.
If (inevitably) I fail to honour my contract then I can be sued for damages. On the stock
market it is commonplace for traders to sell short; in other words to sell shares that they do
not own in the hope of buying them later at a lower price. In order to perform the contract
the trader will have to acquire the required number of shares after the contract of sale is
made.

The parking company in your case did not have the right to offer parking to you and did not acquire that right by the time a parking ticket was affixed to your vehicle. So, they had no consideration for their parking charge.

This post has been edited by Eljayjay: Sun, 2 Sep 2018 - 20:23
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alfxlon
post Sun, 2 Sep 2018 - 19:53
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Brilliant...thanks everyone for your help. I promised myself i'd get my skeleton out there before the end of today (really busy with work next week and the week after so limited time) so here it is... As always I'd be very grateful for critical eye and constructive feedback. I've still got the sections on conduct and contract, consumer contract regs etc but will get those out ASAP. Thanks in advance to ELjayjay for some nice copy and paste jobs in to this.....

here goes:


In the County Court at XX

Between

PCM (Claimant)

and

Mr S (Defendant)


_________________________

SKELETON ARGUMENT ON BEHALF OF MR S (DEFENDANT)
<DATE>
_________________________



INTRODUCTION

1. This skeleton argument is presented by the Defendant (Mr S) to assist the Court.

2. The Court is asked to dismiss the Claimant’s (PCM) case because (i) an Act of Law (POVA 2012) is being misused to underpin claim, (ii) contractual primacy dictates authority to bring claim does not exit, (iii) persistent unlawful and vexatious conduct.

3. For the purposes of brevity, Mr S will use the structure in his original Defence addressing the new information provided by PCM in their WS (date) and present his skeleton argument below.


ISSUES

4. As per Mr S’ Defence the following are areas of dispute (a-e) with additional areas (f-g):

A. Particulars of the Claim – Breach of Civil Procedure Rules
B. The Defendant’s Association with the Vehicle
C. Primacy of Contract
D. Authority to Bring Claim
E. The Money’s Claimed
F. The Unfair Terms in Consumer Contract Regulations 1999
G. Conduct


A. PARTICULARS OF CLAIM – BREACH OF CIVIL PROCEDURE RULES

(See PCM WS Paragraphs 24-25)

5. See Mr S’ original Defence (REF).


B. THE DEFENDANT’S ASSOCIATION WITH THE VEHICLE

(See PCM WS Paragraphs 5-8)

6. PCM are perusing Mr S as registered keeper pursuant to Schedule 4 of the Protection from Freedoms Act 2012 (PCM WS Paragraphs 5-8) despite having full knowledge that Mr S was not the registered keeper - See PCM bundle, (i) DVLA Response (PCM WS - Page 15) and (ii) Notice To Keeper (PCM WS – Page 16). Both documents identify Mr C as the registered keeper.

7. PCM are therefore not able to pursue Mr S for parking charges pursuant to Schedule 4 of the Protection from Freedoms Act 2012. To knowingly persist with this approach, despite being guided to this fact numerous times, is vexatious and unlawful.


C. PRIMACY OF CONTRACT

(See PCM WS Paragraphs 9-17)

8. PCM’s description of the way the Land is managed (see WS paragraph 13 and 15) is categorically wrong. PCM have no right to grant “a contractual licence to all (which) allows anyone permission to be on the Land”, because this right already belongs exclusively to Mr S. In doing so, PCM have not only identified themselves as a serial trespasser, but a serial trespasser who encourages others to trespass in pursuit of their own business purposes.

9. Contrary to the description provided in PCM’s WS (paragraph 13 and 15), the Court may conclude that the land is in fact managed as follows: The Landowner and Landlord (XX) sold the exclusive rights to parking bay 22 to Mr S on 10th January 2010 for a premium sum of money. The lease predates all ‘’alleged” contracts relating to the parking space and remains unchanged to this present day. No third party parking company is party to, or detailed in the lease which holds absolute contractual primacy. The lease contains a number of restrictions relating to the use of the parking space, all consistently observed. The lease however, contains no requirement to (i) display a permit, (ii) pay parking charges to anyone (including premium charges to a third party parking company) (iii) enter in to a contract with a third party to access rights previously enjoyed.

10. To unilaterally and retrospectively impose PCM’s additional requirements / restrictions without formal agreement with Mr S (i.e. through a deed of variation) represents a Derogation of Grant.


11. Similar examples of case law relating to Derogation of Grant in relation to parking are demonstrated in (i) Appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of (ii) Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. The case of PACE v Mr (N Redacted), case C6GF14F0 hearing at Croydon crown court also has remarkably similar circumstances.


D. AUTHORITY TO BRING CLAIM

(See PCM WS Paragraphs 20-21)

12. PCM were put to strict proof to evidence their authority to bring claim. This requirement has not been met.

13. PCM have disclosed a contract between between an alleged “authorising” officer of the Housing Association (XX), a “Housing Officer” by the name of Christina Opoku. However, as the owner of this exclusive right, Mr S is the only person who can grant such authority.

14. Accordingly, to prove authority to bring Claim, PCM need to show proof that Mr S transferred his exclusive parking rights either (i) to Ms Opoku, or (ii) back to the Lessor (L&Q). In the case of the latter, PCM would also need to prove that the Lessor had assigned authority to Ms Opoku as a contractual authority (i.e. named signatory). PCM have failed to do this on both counts.

15. The title “Housing Officer” implies a relatively junior role to assume signatory authority normally held by a company director. One would expect PCM, if acting reputably, to check Ms Opoku’s authority to sign away parking rights of this magnitude i.e. granting a third party the right to charge premium fees and take court action against residents for accessing privileges previously enjoyed without such stress.

16. The Court is guided to the fact that Mr S’ allocated parking space is granted within his lease in an identical way to his own private roof terrace. The Court is asked whether it would be reasonable for Ms Opoku, in a similar manner, to sign those rights away to a third party as well.


E. THE MONIES CLAIMED

(See PCM WS Paragraphs 22-23)

17. PCM have not suffered loss or pecuniary disadvantage. The penalty charge is, accordingly, unconscionable. PCM have failed to prove otherwise.

18. PCM rely on Parking Eye v Beavis [2015] to establish the amount of £100 as justifiable. The case relates to a municipal metered car park that was allegedly abused by users of a nearby busy railway station. Here The judge […] held that the term did not cause a significant imbalance in the parties' rights and obligations because the charge was no greater than that which a motorist could expect to pay for overstaying in a municipal car park. (see paragraph 34 and also 37, 38).

19. Mr S’ case is quite different as it relates to a locked and secure gated residential car park where residents have their own parking space. This distinction is supported by a ruling in the Court of Appeal, Jopson v Homeguard [2016] B9GF0A9E where it was established that ParkingEye v Beavis [2015] does not apply to residential parking.

20. In their WS, PCM are reasoning a charge of a £100 (using the supreme court ruling of £85 as a benchmark) but this differs from submitted claim of £160. This remains somewhat confusing. Perhaps this relates to Schedule 4 to the Protection of Freedoms Act 2012 which does not allow the parking charge to be increased over and above the sum of £100 originally claimed if pursuing the registered keeper, as opposed to the driver. However, this remains unclear and somewhat vexatious.

<TBC>
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Eljayjay
post Sun, 2 Sep 2018 - 21:33
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alfxlon

Your friend's case is not a run-of-the-mill parking case dependent on things like signage and POFA2012.

Your friend's case is a residential case where his lease is of paramount importance. It is that point which your friend has to emphasis in any statement of legal arguments. Your friend does not have to go through all of the other stuff mentioned in your defence and witness statement. Doing so distracts from the paramount importance of your friend's lease.

It is a bit like having to read the whole of your car's manual to find out how to open the door.

So, my suggestion is that your friend keeps the statement of legal arguments short and says something along the following lines after a short introduction giving a bit of background (taking up, say, point 1 to 3)...


4. Both the statement of defence and the Defendant's witness statement include a number of points which would aid the defence if this case concerned a run-of-the-mill parking case involving an individual who had parking on private land where he or she had no pre-existing right to park, and on which the Defendant will rely in the event that the Court disagrees with this statement of legal arguments.

5. In the circumstance of this case, however, the Defendant was parked in a parking space outside his leasehold flat.

6 The lease governs the behaviours, relationships, rights and obligations of the parties to it. The Claimant is not a party to the lease and derives no rights from it.

7. The lease governs parking at the development where the Defendant resides.

8. The lease grants the Defendant the exclusive right to park a vehicle in the Defendant's own allocated parking space.

9. When the Defendant parks outside his home, he always parks in his allocated parking space.

10. The lease does not oblige the Defendant to display a parking permit.

11. The lease by granting the Defendant an exclusive right to park in his allocated parking space put the Defendant in a privileged position of being able to enjoy the benefit of that allocated parking space and without having to pay for parking on an ongoing basis.

12. According to the Claimant, however, another party to the lease has agreed to allow the Claimant to use the Defendant's allocated parking space for the purposes of its business.

13. The Claimant now allows anyone to use the parking space provided that the driver either displays a parking permit issued by the Claimant or pays a parking charge to the Claimant.

14. The Defendant has, therefore, been deprived of two benefits: the exclusive use of an allocated parking space; and the ability to park in that space without charge.

15. The party to the lease who came to an agreement with the Claimant has, therefore, acted contrary to the long-established legal principle of non-derogation from grant which is implied in every lease.

16. The principle of non-derogation from grant was summarised by Lord Denning, Master of the Rolls, in Molton Builders Ltd v City of Westminster (1975) (30 P&CR 182, at p 186). The broad principle expounded by Lord Denning was that “…if one man agrees to confer a particular benefit on another, he must not do anything which substantially deprives the other of the enjoyment of that benefit: because that would be to take away with one hand what is given with the other…”.

17. Lord Denning’s words are particularly apt in many parking cases involving leaseholders with allocated parking spaces. If Lord Denning had been deciding such a case, he may have changed his words to say “if a lessor or other party to a lease agrees to confer the exclusive right to park in an allocated parking space on a lessee, the lessor or other party must not then enter into an arrangement allowing a parking operator to rent out the space to any Tom, Dick or Harry at an exorbitant charge for the purposes of the parking operator’s business because that would not just substantially deprive, it would entirely deprive the lessee of the enjoyment of that benefit in two ways: the lessee, who would have paid a higher purchase price for a property with a parking space, would have been deprived of the exclusive use of that space and he would be treated no differently to Tom, Dick or Harry insofar as the parking operator’s terms are concerned”.

18. It is, of course, perverse that a private car park intended for the exclusive use of the Defendant and his fellow residents should have been turned by the Claimant into a public car park where, according to your Claimant’s parking scheme, Tom, Dick and Harry can now park on terms no different from those available to that defined group.

19. In essence, the notion that one of the parties to the Defendant's lease could be able to allow a parking operator to use the Defendant's allocated parking space for the purpose of is business without the Defendant's consent is as ridiculous as the notion that one of the parties to the Defendant's lease could be able to allow a property letting agent to rent out the Defendant's flat for the purposes of its business. In both situations, the Defendant would be substantially deprived of the enjoyment of benefits to which he had a right.

This post has been edited by Eljayjay: Sun, 2 Sep 2018 - 21:38
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