PePiPoo Helping the motorist get justice Support health workers

Welcome Guest ( Log In | Register )

Defence proofread - submission date 27th Dec!
MerryChristmas
post Tue, 25 Dec 2018 - 11:12
Post #1


Member


Group: Members
Posts: 41
Joined: 25 Dec 2018
Member No.: 101,587



Hello, Merry Christmas all!

I am very sorry to spring this onto you all, is anyone available to read my defence before this needs to be submitted on 27th Dec. I have filed an AOS already.

Case background

I have received a court claim on 22nd Nov, regarding 6 PCN's. The driver was had parked on the staff bays repeatedly (I am sure there are more than these 6 PCN's that were issued). Correspondence regarding PCN's were all ignored following advice that the company cannot sue as the land is private property. (Stupid I know, to not appeal, or action)

POC:
Claim for the monies outstanding from the Defendant to the sum of £XXX.00, in relation to unpaid parking charge notices issued for parking on private land at ___________ University. Signage clearly displayed throughout the car park sets out the terms and conditions of parking that had been breached by the defendant. Notice under protection of Freedoms Act 2012 has been given under Schedule 4 making the defendant liable. Despite repeated requests, the Defendant has failed to pay the parking charges. The defendant will be provided with separate detailed particulars within 14 days after service of the claim.

Separate Detailed Particulars:
jumpshare.com/v/28u68iZMm3MdHXYWJBHT
jumpshare.com/v/aI2bcx2re14uVqymBaJN
jumpshare.com/v/nHjl39ZeWByHq8crev3A?b=ySf4TpVHvcPjdva0YvNz

Sign:
i64.tinypic.com/24o4nfa.jpg


Defence


Date

In The County Court
Claim No: XXXXXXX
Between
XXXXXXX (Claimant)

-and-

XXXXXXX (Defendant)

____________
DEFENCE
____________

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

2. The facts are that the vehicle, registration XXXX, of which the Defendant was the registered keeper, was parked on the first five material dates in a marked bay allocated to Staff at University XXXXXX.

3. The Defendant was not parked on the sixth material date at XXX on 25/01/2017 at XXXXXXXXX, as the defendant had only started parking at said car park, when working at the premises of XXXXXX in August 2017 with a valid display permit. The claimant is put to strict proof that the defendant had parked in a reserved bay for XXX visitors only, as the defendant had a valid parking permit for alternative bays in the same car park.

4. The Particulars of Claim state that the Defendant was the registered keeper and/or the driver of the vehicle(s). These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the contraventions listed in the particulars of the claim are not concise and have repetitive dates.

5. It is accepted that the Defendant entered into contractual agreement with the Claimant, whether express, implied, or by conduct.

6. The Claimant is put to strict proof that it has sufficient prorpietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

7. It is not believed that the Claimant has incurred additional costs and they are put to strict proof that they have actually incurred and can lawfully add an extra sums. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £75. The claim includes an additional £85, for which an explanation of debt collection fees was given, and appears to be an attempt at double recovery.

8.No evidence has been supplied by this claimant as to who parked the vehicle. Under the Protection of Freedoms Act 2012 there is no presumption in law as to who parked a vehicle on private land nor does there exist any obligation for a keeper to name a driver. I choose to defend this claim as the registered keeper, as is my right.

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

Name
Signature
Date

Comments & Questions
Will it be weak to my case to admit the allegation of parking at the site?

Are there any points that I can use against their T's & C's of their signs to argue that the contract is not legally binding?

I have received the following advice - "If it's permit parking then your defence is as you do not have one then there is no offer to park which breaks the contractual chain as you cannot accept the terms and conditions as you do not have a permit, only permit holders can be bound by the terms on the signage, get some photos of the signs too to back yourself up". Is it true?

Many thanks for your help!!!!!

This post has been edited by MerryChristmas: Thu, 27 Dec 2018 - 15:21
Go to the top of the page
 
+Quote Post
5 Pages V  « < 3 4 5  
Start new topic
Replies (80 - 88)
Advertisement
post Tue, 25 Dec 2018 - 11:12
Post #


Advertise here!









Go to the top of the page
 
Quote Post
MerryChristmas
post Sun, 28 Apr 2019 - 18:20
Post #81


Member


Group: Members
Posts: 41
Joined: 25 Dec 2018
Member No.: 101,587



QUOTE (southpaw82 @ Sun, 28 Apr 2019 - 18:47) *
QUOTE (MerryChristmas @ Sun, 28 Apr 2019 - 13:36) *
I want to make a reference for the signs that the Supreme Court accepted (Beavis case) had the £85 in a box is a very large font. I did not submit this as evidence with my witness statement, is it possible to bring this point up without showing evidence?

An assertion without evidence is worthless. I can't recall whether the Supreme Court was required to make a finding on whether the signs were prominent or whether that was admitted. You might want to check that.


The parking prankster said that it was found:

"In the Beavis case the penalty charge was present in huge letters in the largest font on the signage and with high contrast black on yellow, and was therefore found to be transparent and obvious to the motorist. There can be no doubt of the £85 charge.

The Beavis judgment relies on the signage being obvious and the amount of the penalty being known to the consumer so they could make their decision whether to park and risk a huge penalty. Here are a few of the references to signage from the judgment:

Para 100: “The charge is prominently displayed in large letters at the entrance to the car park and at frequent intervals within it” and “They must regard the risk of having to pay £85 for overstaying as an acceptable price for the convenience of parking there.”

Para 108: “But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85”"

This post has been edited by MerryChristmas: Sun, 28 Apr 2019 - 18:27
Go to the top of the page
 
+Quote Post
Sheffield Dave
post Sun, 28 Apr 2019 - 18:28
Post #82


Member


Group: Members
Posts: 2,053
Joined: 20 May 2013
Member No.: 62,052



So if I've got this right, they have a submitted a total of 7 witness statements. 6 of these are straightforward "I am enforcement officer Joe Bloggs; on this date I saw a car without a permit and slapped a ticket on it". The seventh is a weird document which is headed 'witness statement' but appears nothing like a witness statement, and is more a repeat of their particulars of claim?

How are they introducing evidence that appeared after the event? Normally there would be a witness statement saying something to the effect of "I am Johnny Blaggs; I am a bigwig in company XXX; on this date my company sent a NtK to the defendant - see exhibit 1". Although I don't know enough about court procedure to say how much it harms their case if that is missing.
Go to the top of the page
 
+Quote Post
southpaw82
post Sun, 28 Apr 2019 - 18:36
Post #83


Member


Group: Members
Posts: 33,610
Joined: 2 Apr 2008
From: Not in the UK
Member No.: 18,483



QUOTE (MerryChristmas @ Sun, 28 Apr 2019 - 19:20) *
QUOTE
An assertion without evidence is worthless. I can't recall whether the Supreme Court was required to make a finding on whether the signs were prominent or whether that was admitted. You might want to check that.


The parking prankster said that it was found:

"In the Beavis case the penalty charge was present in huge letters in the largest font on the signage and with high contrast black on yellow, and was therefore found to be transparent and obvious to the motorist. There can be no doubt of the £85 charge.

The Beavis judgment relies on the signage being obvious and the amount of the penalty being known to the consumer so they could make their decision whether to park and risk a huge penalty. Here are a few of the references to signage from the judgment:

Para 100: “The charge is prominently displayed in large letters at the entrance to the car park and at frequent intervals within it” and “They must regard the risk of having to pay £85 for overstaying as an acceptable price for the convenience of parking there.”

Para 108: “But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85”"


Sounds like it was an agreed fact to me. The court didn’t make a finding one way or the other, it just proceeded on that basis. The case (in that court at least) wasn’t about whether a contract was formed, it was about whether the charge amounted to an unlawful penalty (it didn’t).


--------------------
Moderator

Any comments made do not constitute legal advice and should not be relied upon. No lawyer/client relationship should be assumed nor should any duty of care be owed.
Go to the top of the page
 
+Quote Post
MerryChristmas
post Sun, 28 Apr 2019 - 19:02
Post #84


Member


Group: Members
Posts: 41
Joined: 25 Dec 2018
Member No.: 101,587



QUOTE (Sheffield Dave @ Sun, 28 Apr 2019 - 19:28) *
So if I've got this right, they have a submitted a total of 7 witness statements. 6 of these are straightforward "I am enforcement officer Joe Bloggs; on this date I saw a car without a permit and slapped a ticket on it". The seventh is a weird document which is headed 'witness statement' but appears nothing like a witness statement, and is more a repeat of their particulars of claim?

How are they introducing evidence that appeared after the event? Normally there would be a witness statement saying something to the effect of "I am Johnny Blaggs; I am a bigwig in company XXX; on this date my company sent a NtK to the defendant - see exhibit 1". Although I don't know enough about court procedure to say how much it harms their case if that is missing.


Yes you're right with the witness statements. However, the seventh IS a weird document but titled "Particulars of Claims" with a heading "The Statement of Case". They have sectioned off each 'pcn', and have subsections under each detailing what has happened. For example, "On 25 February 2017, 31 days after the contravention date, (1st) Parking applied to the DVLA for the registered keeper details". Towards the end, they have another heading "Claimant statement" where they have a paragraph stating that by my own admission from my defence, I am fully aware of T&C's because I have reviewed them, and then obviously entered a contract.

QUOTE (southpaw82 @ Sun, 28 Apr 2019 - 19:36) *
QUOTE (MerryChristmas @ Sun, 28 Apr 2019 - 19:20) *
QUOTE
An assertion without evidence is worthless. I can't recall whether the Supreme Court was required to make a finding on whether the signs were prominent or whether that was admitted. You might want to check that.


The parking prankster said that it was found:

"In the Beavis case the penalty charge was present in huge letters in the largest font on the signage and with high contrast black on yellow, and was therefore found to be transparent and obvious to the motorist. There can be no doubt of the £85 charge.

The Beavis judgment relies on the signage being obvious and the amount of the penalty being known to the consumer so they could make their decision whether to park and risk a huge penalty. Here are a few of the references to signage from the judgment:

Para 100: “The charge is prominently displayed in large letters at the entrance to the car park and at frequent intervals within it” and “They must regard the risk of having to pay £85 for overstaying as an acceptable price for the convenience of parking there.”

Para 108: “But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85”"


Sounds like it was an agreed fact to me. The court didn’t make a finding one way or the other, it just proceeded on that basis. The case (in that court at least) wasn’t about whether a contract was formed, it was about whether the charge amounted to an unlawful penalty (it didn’t).


Mmm... yes. Since this wasn't found, and the judgements around this case was not focused on forming contracts, I guess I can't really use it as evidence or as a test for the signage of my case.
Go to the top of the page
 
+Quote Post
MerryChristmas
post Sun, 28 Apr 2019 - 19:19
Post #85


Member


Group: Members
Posts: 41
Joined: 25 Dec 2018
Member No.: 101,587



Hello, I know this is a bit late, but will be entirely grateful for anyone to proofread my arguments for tomorrow. Also, I've read that I should have the law gazette article and case law, I can't seem to find this, can anyone link me?

Right of Audience
Laura Garland who has presented the witness statement and represent the Claimant is not present.

Ask judge (Sir or Madam):

Is it possible to disregard the witness statement, or at least regard it with suspicion, because I have been denied the opportunity to examine the witness.

Can representatives of the claimant explain their right of audience to the judge. Can I clarify whether the representatives from The Claimant is it a local representative, a remote representative, or a remote employee of the PPC?

POFA not complied with
Sent date not put on NTK, only date issued - there can be several days difference
They have not invited the payment or the identity of the driver
Do not show the periods of timing parked

4. Evidence of failure to comply with schedule 4 of the Protection of Freedoms Act 2012:
8 (2)(a) ©, (e), (f) & (i)
Schedule 4 para 8 to be printed, and to highlight the following:
(a) specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;
© state that a notice to driver relating to the specified period of parking has been given and repeat the information in that notice as required by paragraph 7(2)(b), © and (f);
(e) state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—
(i) to pay the unpaid parking charges; or
(ii)if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;
(f) warn the keeper that if, at the end of the period of 28 days beginning with the day after that on which the notice to keeper is given—
(i) the amount of the unpaid parking charges (as specified under paragraph © or (d)) has not been paid in full, and
(ii) the creditor does not know both the name of the driver and a current address for service for the driver,
i) specify the date on which the notice is sent (if it is sent by post) or given (in any other case).

Particular of Claims
Dates
Contraventions listed in the Particulars of Claim are not concise and have two dates for one event, and fail to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, para 7.5.

The claimant has made changes to the particulars of claims provided within the bundle without notification, as the PoC found within the bundle is different to the one first sent to me. The claim for PoC has a different date.


6th PCN - Signage unclear


Signage unclear for PCN 18 May 2017

The Claimant states on Page 11 of their Statements of case “The signage clearly states, “To park in this car park you must clearly display a valid CEH Visitors Permit...” I strongly argue that this was not clear as the letters were small, and could not be seen from the parking distance as it was only the fifth line of the sign. The sign had clearly stated in big, bold capital letters “RESERVED FOR CEH VISITORS ONLY”. I had briefly parked there as I was visiting the CEH building at the time, I did not realised that this was a parking for permit holders only.

Forbidden signage
No contract was formed - no offer
There was no offer. Can the claimant explain what they had offered me?
a)No offer
Then there couldn’t have been a contract.
b) Offer: park for £75 without permit
This was not the intent of the sign, the sign was forbidding non-permit holders, and not offering them expensive parking. For example, are there any big signs along the entrance of anyone car park here for £75 per day?

Because I didn't enter into a contract as an offer was not made, I was, at worst, trespassing - which is a matter between me and the land owner and not the operator of parking enforcement.

Case examples
CS036 PCMUK v Bull et al B4GF26K6 (forbidding signage) - judge found that no contract was formed, because there was no offer between the Claimant and defendant.



Debt-Collection fees
Claiming for debt-collector fees which were not written in the signs
If there was a contract, it's what's on the signs (the contract) that counts, not what they write in their later letter.

On both the signage it says, “A parking charge notice (PCN) of £75 may be issued for failing to comply with the above conditions”, and further below it says “If not paid First Parking LLP will take action to recover the full amount including any further costs that may be incurred”.

I strongly argue that The Claimant has not incurred the (£85) per ticket in debt recovery.

For a debt of £75, is The Claimant employing the services of a debt collector with the agreement that if after writing a handful of letters, and the debt collector fails to recover any money, the PPC will pay the debt collector £85 anyway?

These debt recovery costs of £85 will only amount to just the cost of couple of computer-generated letters.
Go to the top of the page
 
+Quote Post
ostell
post Sun, 28 Apr 2019 - 19:44
Post #86


Member


Group: Members
Posts: 17,088
Joined: 8 Mar 2013
Member No.: 60,457



Forbidding signage, not forbidden
Go to the top of the page
 
+Quote Post
MerryChristmas
post Mon, 29 Apr 2019 - 07:43
Post #87


Member


Group: Members
Posts: 41
Joined: 25 Dec 2018
Member No.: 101,587



Hi all, I'm a little nervous. Are there any pointers for before the hearing?
Go to the top of the page
 
+Quote Post
MerryChristmas
post Mon, 29 Apr 2019 - 10:27
Post #88


Member


Group: Members
Posts: 41
Joined: 25 Dec 2018
Member No.: 101,587



Hi all, I've just come out of the hearing and wanted to give you a quick update. I can provide more details later.

They had quashed one of the PCN's because in their PoC's they had written the wrong dates.

However, for the other five PCN's the judge concluded that there was a contract formed and I am liable to pay the PCN's. Moreover, the debt collection fees are perfectly reasonable because existing contracts will be in place between the debt collectors and the claimant.

In total, they had won 940 pounds.

The claimant tried to claim their travel expenses (250 miles driven) and hotel expenses, but the judge didn't allow it as they were not a witness.

P.S. I cried in the courtroom and definitely made the two guys from first parking feel really awkward and terrible

This post has been edited by MerryChristmas: Mon, 29 Apr 2019 - 10:49
Go to the top of the page
 
+Quote Post
Sheffield Dave
post Mon, 29 Apr 2019 - 18:55
Post #89


Member


Group: Members
Posts: 2,053
Joined: 20 May 2013
Member No.: 62,052



QUOTE (MerryChristmas @ Mon, 29 Apr 2019 - 10:27) *
Hi all, I've just come out of the hearing and wanted to give you a quick update. I can provide more details later.

They had quashed one of the PCN's because in their PoC's they had written the wrong dates.

However, for the other five PCN's the judge concluded that there was a contract formed and I am liable to pay the PCN's. Moreover, the debt collection fees are perfectly reasonable because existing contracts will be in place between the debt collectors and the claimant.

In total, they had won 940 pounds.

The claimant tried to claim their travel expenses (250 miles driven) and hotel expenses, but the judge didn't allow it as they were not a witness.

P.S. I cried in the courtroom and definitely made the two guys from first parking feel really awkward and terrible

That's really bad luck. Was it ever explained what the contract offered you? And did they offer any proof that they had paid the debt collectors any money? Did your arguments fall on deaf ears or did you not get an opportunity?
Go to the top of the page
 
+Quote Post

5 Pages V  « < 3 4 5
Reply to this topicStart new topic
1 User(s) are reading this topic (1 Guests and 0 Anonymous Users)
0 Members:

 



Advertisement

Advertise here!

RSS Lo-Fi Version Time is now: Thursday, 28th March 2024 - 18:26
Pepipoo uses cookies. You can find details of the cookies we use here along with links to information on how to manage them.
Please click the button to accept our cookies and hide this message. We’ll also assume that you’re happy to accept them if you continue to use the site.
IPS Driver Error

IPS Driver Error

There appears to be an error with the database.
You can try to refresh the page by clicking here