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Residential private parking on non marked bay court claim, Private Parking fine Court Claim
modi
post Sat, 11 Sep 2021 - 16:05
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Hi All

we need a advise regarding Court claim received from Gladstone.

We are the leaseholder of residential block. There is a marked parking bays and non marked space where other residents parked too.

In the past I have contacted property manager and get it cancelled the parking tickets from UKCPM. 2 months before I received a letter from Gladstone about the letter before action and I thought tickets were cancelled so did not give attention but we received court claim letter dated 08/09/2021.

I have try to contact property manager but it seems she is on annual leave.

what option we have, can we disagree and returned back on court address ?

I am in process to find and attached all the communication we have regarding this.

All feedbacks welcome.



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post Sat, 11 Sep 2021 - 16:05
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ostell
post Sun, 12 Sep 2021 - 15:01
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In your wife's name I hope
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nosferatu1001
post Sun, 12 Sep 2021 - 19:35
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Op you MUST FOLLOW INSTRUCTIONS!

Your wife, as defendant, must have acknowledged in HER name. You CANNOT change it to your name. Cannot. No arguments. If you have done so you must EMAIL MCOL and tell them you screwed up, and it was "name of registered keeepr" that meant to acknowledge.

You were also told to wait until day 5. Please now, with no argument s, give us
Date of issue (1)
Date yiu acknowledged. (2)

Because you have 28 days plus (2 - 1) , instead of the five days extra you could have had.
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modi
post Thu, 23 Sep 2021 - 18:08
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Hi All

We need your help to submit our defence. please see attached images of parking tickets received and also image of sign and actual area where car was parked.

PCNs
https://ibb.co/5rsZbM6
https://ibb.co/wRG7XZX
https://ibb.co/3CDdGzQ
https://ibb.co/QQTmjYq
https://ibb.co/QktN1sn

GLADSTON LETTER
https://ibb.co/VS7PQJK
https://ibb.co/W2pv80L
https://ibb.co/pdbVxH4

CURRENT IMAGES OF AREA WHERE PCN RECEIVED
https://ibb.co/Xkf7tRN
https://ibb.co/hVBxMf3
https://ibb.co/3FkgYDy

We are a resident of particular area, I have checked our lease, nothing mentioned about parking or restrictions. we have asked for parking space but property management advised that when space becomes available they will let us know, basically they have sold the spaces to rental companies and other residents. few occasions I called management company and they cancelled the tickets. during the pandemic for 3 months, they did not give a ticket but they started again in June 2020. I have read other similar cases where they claim that parking do not have right. We do not know how to right in legal language.

we appreciate your advise here.
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ostell
post Thu, 23 Sep 2021 - 19:00
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After seeing the readable sign then part of your defence would be

The signage in the car park is of a “forbidding” nature. It is limited to cars displaying a valid permit only and therefore the terms cannot apply to cars without a permit because the signage does not offer an invitation to park on certain terms. The terms are forbidding. This means that there was never a contractual relationship. I refer you to the following case law: PCM-UK v Bull et all B4GF26K6 [2016], UKPC v Masterson B4GF26K6[2016], Horizon Parking v Mr J C5GF17X2 [2016] – In all three of these cases the signage was found to be forbidding and thus only a trespass had occurred and would be a matter for the landowner.
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nosferatu1001
post Fri, 24 Sep 2021 - 00:27
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You've not answered my questions above. Do so.
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modi
post Fri, 24 Sep 2021 - 11:00
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Dear nosferatu1001

many thanks for your reply and it was in a bit of rush.

see below:
A claim was issued against you on 08/09/2021

Your acknowledgment of service was submitted on 12/09/2021 at 15:36:09

Your acknowledgment of service was received on 13/09/2021 at 01:13:54



Dear ostell

Thanks for your time and reply, yes the same I was thinking too.

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nosferatu1001
post Fri, 24 Sep 2021 - 22:06
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Finally.

32 days to file the defence from date of issue
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modi
post Sat, 25 Sep 2021 - 11:01
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Dear nosferatu1001


Thanks for the update. I will appreciate if you can help me to submit my defence. can you please guide me to relevant defence format ?


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modi
post Sat, 25 Sep 2021 - 11:35
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Dear Ostell

Thank you for the case reference - Have read of this https://www.dropbox.com/s/16qovzulab1szem/G...kinson.pdf?dl=0 and include the arguments in your defence. Also as the keeper POFA does not allow them to claim more than the original PCN.

It seems the case is matching with our situation, can we add as reference in our defence ?

I can see defendant only put out 5 points.

I will appreciate if you can direct me to similar sample defence.



This post has been edited by modi: Sat, 25 Sep 2021 - 11:50
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ostell
post Sat, 25 Sep 2021 - 11:42
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Do not identify the driver!! Get editing

Wilkinson is only part of your defence to kill the excess charge

Look at other defences that are around
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nosferatu1001
post Sat, 25 Sep 2021 - 11:59
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MSE forum newbies thread, as I hope I've said, has a template.
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modi
post Sat, 25 Sep 2021 - 12:01
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Thanks Ostell

Please see attached, I planning to correct some points. Mainly in regards to lease, I checked mine and does not say anything about parking, They have sold 2 spaces to private car rental companies. even they have permission to build multi-storey car park but instead they have only built underneath of flats and rest on common road.
There are many car parked everyday outside of yellow lines as you can see in my previous post.

https://forums.moneysavingexpert.com/discus...omment_72977032
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modi
post Sun, 26 Sep 2021 - 10:58
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I am preparing our defence. just want to confirm that deadline to submit our defence on website will be 09/10/2021 ?

A claim was issued against you on 08/09/2021

Your acknowledgment of service was submitted on 12/09/2021 at 15:36:09

Your acknowledgment of service was received on 13/09/2021 at 01:13:54
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nosferatu1001
post Sun, 26 Sep 2021 - 20:12
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33 days from the date of issue
If that date is a weekend then it's the following Monday at 4pm.
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modi
post Thu, 7 Oct 2021 - 16:51
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Hello Everyone

Need your advise on below Defence and require your suggestion if any, Mainly the point no. 16 & 17, do i need to add any further at this stage related to my case ?

They have used 2 different wording - Parking on Access Roads / Roadways, Parking outside of a designated area.

Do i need add any Google Maps or other evidence ?



qqqqqqqqqqqqqqIN THE COUNTY COURT
Claim No.: xxxxxxxx
Between
Excel Parking Services Limited
(Claimant)
-and-
(Defendant)
__________
DEFENCE
__________

1. The Defendant denies that the Claimant is entitled to relief in the sum
claimed, or at all. It is denied that the driver of the vehicle entered into any
contractual agreement, whether express, implied, or by conduct, to pay a ‘parking
charge’ to the Claimant.

2. In relation to parking on private land, it is settled law from the
Supreme Court, that a parking charge must be set at a level which includes recovery
of the costs of operating a scheme. However, this Claimant is claiming a global sum
of £160. This figure is a penalty, far exceeding the £85 parking charge in the
ParkingEye Ltd v Beavis case.

3. The global sum claimed is unconscionable and it was not shown in
large lettering on any consumer signs, and it is averred that the charge offends against
Schedule 2 of the Consumer Rights Act 2015 (‘the CRA’), where s71(2) creates a duty
on the Court to consider the fairness of a consumer contract. The court’s attention is
drawn (but not limited to) parts 6, 10, 14 and 18 of the list of terms that are likely to
be unfair.

4. Even if the Claimant had shown the global sum claimed in the largest
font on clear and prominent signs - which is denied - they are attempting double
recovery of costs. The sum exceeds the maximum amount which can be recovered
from a registered keeper, as prescribed in Schedule 4, Section 4(5) of the Protection of
Freedoms Act 2012 (‘the POFA’). It is worth noting that in the Beavis case where the
driver was known, the Supreme Court considered and referred more than once to the
POFA.

5. Claims pleaded on this basis by multiple parking firms have routinely
been struck out ab initio in various County Court areas in England and Wales since
2019. Recent examples are appended to this defence; a February 2020 Order from
District Judge Fay Wright, sitting at Skipton County Court (Appendix A) and a
similar Order from Deputy District Judge Josephs, sitting at Warwick County Court
(Appendix B).

6. Applications by AOS member parking firms to try to reach the usually
low threshold to set aside multiple strike-out orders have been reviewed by more than
one area Circuit Judge, including His Honour Iain Hughes QC, occasioning District
Judge Grand at Southampton to hear submissions from a barrister on 11th November
2019. The court refused to set aside the Orders and, tellingly, no appeal was made.

7. The Judge found that the claims - both trying to claim £160, with some
ten or more similar cases stayed - represented an abuse of process that ‘tainted’ each
claim. It was held to be not in the public interest for a court to let such claims proceed
and merely disallow £60 in a case-by-case basis, thus restricting and reserving the
proper application of the relevant consumer rights legislation only for those relatively
few consumers who reach hearing stage. That Judgment is appended (Appendix C).

8. The CCBC and/or the allocated Court Judge is invited to read the
Appendices at the earliest opportunity. The Defendant avers that parking firm claims
which add a duplicitous ‘costs’ sum to the parking charge are now easily identified to
be unlawful. Such claims are against the public interest, requiring no further
assessment, and listing such cases for trial should be avoided. The Court is invited to
exercise its case management powers pursuant to CPR 3.4 to strike out this claim,
which is entirely tainted by abuse of process and breaches of the CRA.

9. Should this claim continue, the Claimant will no doubt try to mislead
the court by pointing to their Trade Association ‘ATA’ Code of Practice (‘CoP’) that
now includes a hastily-added clause 'allowing' added costs/damages. The Defendant
points out that the CoP is a self-serving document, written in the parking firms’
interests. Further, the ‘admin fee’ model was reportedly invented by a member of the
British Parking Association Board, Gary Osner, whose previous firm, Roxburghe (UK)
Limited, folded after being declared ‘unfit’ by the Office of Fair Trading who refused
to renew their consumer credit licence due to ‘unfair and misleading’ business
practices. Mr Osner states in an article that has been in the public domain since 2018:
''I created the model of ‘admin fees’ for debt recovery because ticket value was so low
that nobody would make any money. Parking is business and business is about money,
after all.''

10. The two competing ‘race to the bottom’ ATAs have engineered a veil
of legitimacy to protect this industry for too long. They are not regulators and have
failed consumers so badly, that Parliament is currently working on replacing them
with a new CoP overseen by the Secretary of State, following the enactment of the
Parking (Code of Practice) Act 2019. Many courts have now recognised that a
predatory parking firm Claimant using unfair and predatory business practices and
inflating their claims with false ‘admin fees’, is not the ‘innocent party’ in a dispute.
In stark contrast to the BPA Board member’s mindset, the will of Parliament as set out
in the new 2019 Act is very much consumer-focussed, aiming for: ''good practice...in
the operation or management of private parking facilities as appears to the Secretary
of State to be desirable having regard to the interests of persons using such facilities.''

11. In the alternative, the defence is prejudiced and the court is invited to
note that, contrary to the Pre-Action Protocol for Debt Claims, the Letter Before
Claim omitted evidence of any breach and failed to append the wording of the sign or
consumer notice. Further, the Particulars of Claim are embarrassing and incoherent,
lacking specificity re the location of the event and status of the contracting parties and
failing to detail any conduct or liability that could give rise to a cause of action. There
is insufficient detail to ascertain the nature, basis and facts of the case but the sum
claimed includes unrecoverable costs/damages and is clearly an abuse of process.

12. The court is invited to note that the Beavis case would not have passed
had it been pleaded in damages by ParkingEye, and the penalty rule applies to charges
that are penal or unconscionable in their construction. The Supreme Court held at
[14] ‘‘where a contract contains an obligation on one party to perform an act, and
also provides that, if he does not perform it, he will pay the other party a specified
sum of money, the obligation to pay the specified sum is a secondary obligation which
is capable of being a penalty.’’ And at [99] ‘‘the penalty rule is plainly engaged.’’

13. Unlike in this case, ParkingEye demonstrated a commercial
justification for their £85 parking charge which included all operational costs and was
constructed in such a way and offered on such ‘brief and clear’ signs with terms set in
the interests of the landowner, that they were able to overcome the real possibility of
the charge being struck out as penal and unrecoverable. The unintended consequence
is that, rather than persuade courts considering other cases that all parking charges are
automatically justified, the Beavis case facts and pleadings set a high bar that other
claims fail to reach. Unusually for this industry, it is worth noting that ParkingEye do
not add false ‘debt letter costs/damages’ to their parking charges and as a
consequence, their own claims have escaped any reports of being summarily struck
out.

14. This Claimant has failed to plead their case, or to set out their terms or
construct their contractual charges in the same way as in Beavis and the penalty rule
remains firmly engaged. Paraphrasing from the Supreme Court, deterrence is likely to
be penal if there is a lack of an overriding legitimate interest in performance
extending beyond the prospect of compensation flowing directly from the alleged
breach. The intention cannot be to punish drivers nor to present a motorist with
concealed pitfalls or traps, nor to claim an unconscionable total sum.

15. Should this poorly pleaded claim not be summarily struck out for any/
all of the reasons stated above, the Defendant sets out this defence as clearly as
possible in the circumstances, insofar as the facts below are known.

16. In regard to the Parking charge notice issued by the xxx ' Parking Outside of A Designated Area / Parking on Access Roads/Roadways.
In fact, the defendant’s car was parked primarily outside of yellow lines but not across parking bays and did not constitute a negative impact
on other car park users. Further, the court is invited
to note that the above communication was merely a residents’ update not
something that could fall under the POFA definitions of a ‘relevant contract’or
‘relevant obligation’ and it fails to set out any boundaries or definitions and does
not even mention any specific penalty charge.


17. The claimant has failed to meet the keeper liability requirements
as stated in POFA . Specifically they failed to comply with Schedule 4 Paragraph
9 (2) (a) period of parking to which the notice relates and further, re 9 (2) (f) the
mandatory warning of keeper liability not given in the prescribed format and the
purported NTK in fact misstates the position and misleads a keeper regarding
the period of time as set out in the act.

18. The Claimant’s signs have vague/hidden terms and a mix of small
font, such that they would be considered incapable of binding any person reading
them under common contract law, and would also be considered void pursuant to
Schedule 2 of the CRA. Consequently, it is the Defendant’s position that no contract
to pay an onerous penalty was entered into with the Claimant, whether express,
implied, or by conduct.

19. The Beavis case is fully distinguished and a more relevant list of
binding Court of Appeal authorities which are on all fours with a case involving
unclear terms and a lack of ‘adequate notice’ of an onerous parking charge, would
include:

(i) Spurling v Bradshaw [1956] 1 WLR 461 and (ii) Thornton v Shoe Lane Parking Ltd
[1970] EWCA Civ 2, both leading examples of the ‘red hand’ rule - i.e. that an unseen/
hidden clause cannot be incorporated after a contract has been concluded; and
(iii) Vine v London Borough of Waltham Forest: CA 5 Apr 2000, where the Court of Appeal
held that it was unsurprising that the appellant did not see the sign ''in view of the absence of
any notice on the wall opposite the southern parking space''.

20. Further and in the alternative, the Claimant is put to strict proof that it
has sufficient proprietary interest in the land, or the necessary landowner authorisation
to issue PCNs under these circumstances and to pursue keepers by means of civil
litigation.
It is not accepted that the Claimant has adhered to the landholder's definitions, exemptions,
grace period, other terms (or instructions to cancel charges due to a surge of complaints) and
there is no evidence that the freeholder authorises this particular Claimant (Companies
House lists their company number as 02878122). Any purported landowner 'contract'
which fails to properly identify the two contracting parties and/or which is in any way
redacted (including the signatories, which in some parking claims have been revealed not to
be that of the landowner) should be disregarded, along with any undated and/or
unsubstantiated records, documents, boundary maps or aerial views, or photos which are
capable of manipulation.

21. For any or all of the reasons stated above, the Court is invited to
dismiss this claim.

22. In the matter of costs. If the claim is not struck out, the Defendant
seeks:
(a) standard witness costs for attendance at Court, pursuant to CPR 27.14, and
(b) the Court to reserve, assess and award the Defendant’s Summary Costs Assessment, to be
filed and served at Witness Statement stage in anticipation of a typical late Notice of
Discontinuance (‘NoD’) from this Claimant.

23. At NoD stage, or at a hearing if the case proceeds that far, the Court
will be taken to facts to support a finding of wholly unreasonable conduct by this
Claimant. Pursuant to CPR 46.5, whilst indemnity costs cannot exceed two thirds of
the applicable rate if using legal representation, the Defendant notes that LiP costs are
not necessarily capped at £19 ph. The Defendant will ask for a fairly assessed rate for
the hours spent on this case, referencing Spencer & anor v Paul Jones Financial
Services Ltd.

24. In summary, the Claimant's Particulars disclose no legal basis for the
sum claimed. This Claimant knew, or should have known, that an exaggerated
‘parking charge’ claim where the alleged ‘debt’ exceeds the £100 ATA CoP ceiling is
disallowed under the CPRs, the Beavis case, the POFA and the CRA, The Judge in
the instant case is taken to the Appendices, demonstrating that several court areas
continue to summarily strike out private parking cases that include an extravagant and
unlawful costs sum.

Statement of Truth

I believe that the facts stated in this Defence are true.

o[]
Defendant’s signature: …………………………….…………………………….
Defendant’s name: …………………………….…………………………….
Date: …………………………….…………………………….
Appendix A attached: Order to strike out a similar claim; abuse of process (Skipton)
Appendix B attached: Order to strike out a similar claim; abuse of process (Warwick)
Appendix C: Judgment and reasoning for refusal to set aside Order (Southampton)
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ostell
post Thu, 7 Oct 2021 - 21:33
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The statement of truth has changed substantially. Do a search
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modi
post Fri, 8 Oct 2021 - 09:47
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Thanks Ostell for your reply.

Yes I saw on MS website, I will get this changed. anything else ?

A claim was issued against you on 08/09/2021 so what is the last day to submit defence and also where ? in MCOL website or other address ?
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DWMB2
post Fri, 8 Oct 2021 - 09:50
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QUOTE (modi @ Fri, 8 Oct 2021 - 10:47) *
also where ? in MCOL website or other address ?

You email a PDF - the MSE Forum has a guide to the steps


--------------------
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modi
post Fri, 8 Oct 2021 - 10:06
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Thanks again Ostell

Shall I use MSE Defence template or above with changes ?

Also for sending defence to the given email address, I am bit confuse about date,

A claim was issued against you on 08/09/2021
Your acknowledgment of service was submitted on 12/09/2021 at 15:36:09
Your acknowledgment of service was received on 13/09/2021 at 01:13:54

33 days from the date of issue
If that date is a weekend then it's the following Monday at 4pm.

It means 10/10/2021 but it is on sunday so 11/10/2021 by 4pm, is that correct ?
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nosferatu1001
post Fri, 8 Oct 2021 - 16:53
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I'd use the MSE template, adding in at para 2 and 3 a BRIEF BACKGROUND TO THE CLSIM ie if it's residential,,pay and display, and overstay due to ... or whatever.

Yes, that's why I said it's the following Monday...
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