Assistance needed!

I've read the multitude of threads re parking tickets on this site and am hoping for the same useful advice from the regulars as I'm a bit confused re the best course of action

On 08/06/2016 at Gateway Plaza, Barnsley I received a parking charge notice on my windscreen. The ticket stated it was issued for the reason of: No Ticket Displayed. The enforcement company is SIP Parking Limited

I did some brief research online and decided to ignore the ticket. I did not appeal or make any contact with SIP

On 14/07/2016 I received a NTK. The NTK did not mention Schedule 4 of the Protection of Freedoms Act 2012 (PoFA)

On 15/08/2016 I received a final reminder. This also did not mention PoFA

I have today (23/09/2016) received a Letter Before Claim from Gladstones Solicitors which has had the desired effect of finally making me concerned re the charge.

The letter requests a payment of £150.

The letter refers to the 'Practice Direction for Pre-Action Conduct under the Civil Procedure Rules and in particular paragraph 13-16 of the same which concerns the Court's powers to impose sanctions for any failure to comply.'

The letter stipulates I have 14 days to pay or reply. Please advise!

May be worth noting that on this occasion, I simply forgot to pay.

I used the car park on dozens of occasions previously and paid using one of the mobile phone apps but on this occasion when I was called in to work early, I forgot.

Thanks in anticipation for your advice

have you still got the paperwork, esp the NTK? If so post it up with identifying details like address, vehicle reg and ref number redacted and we can advise.

Please see attached documents. Thanks in anticipation for the help!

NTK1.pdf

TICKET1.pdf

FINAL2.pdf

SOL2.pdf

Hi and welcome to CAG.

Gladstones are notorious for starting claims and equally notorious for screwing them up.

It is very likely that they will start legal action but all is not lost. As the parking company are members of the IAS, they do not follow PoFA and as such, they can only chase the driver but what they do is assume the driver is also the keeper which gives them the idea that they can go after you, the keeper.

I doubt there is anything you can do at this moment except (if you choose) to write them a letter stating that any court action will be fully defended. I don't think Gladstones will take much notice as they tend to go after the flimsiest of cases and cost the paring company hundreds. As it is, the amount they are claiming is wrong as all they can claim for is the cost of the ticket, fixed fees and fixed solicitor costs.

What I would suggest you do is go back to the site and take pictures of the signs then post them up here. Ericsbrother will be able to pull them apart

The NTK is not compliant with the POFA as they dont say what the charge is for

-ie it must specify exacty why they are claiming,

not just that the vehicle was parked and they want a few quid and they fail to claim keeper liability under POFA so they can only take issue with the driver.

I would respond to Gladdys (not SIP) and say that

"this matter should be taken up with the driver at the time as there is no keeper liability whatsoever in this matter and any action will be vigourously defended as being vexatious".

This may not dissuade them but at least they will know that you are no mug and it will cost them money to make fools of themselves in public.

I suspect that you will get another letter claiming that they have the right to assume that you were the driver at the time under case law that was superceded dacades ago by 2 lots of statute law.

They know that this is cobblers but again, they are hoping you will be frightened into paying.

If they were honest people,

why has a contractual charge gone up from £100 to £150 without any credit agreement in place?

because they think that if you are going to pay them £100 you will pay them £150.

They keep the amount under £200 as they know that people will risk court if it is over that amount.

One parking co used to charge £1000 but they got destroyed in court and lost 2 higher court appeals as well and banned from accessing the DVLA database to boot.

There is no merit in their claims but Gladstoneas are the IPC and IAS in another frock so they have to look tough or they will lose all of their memebsr, who are at the bottom of the pile in the parking world and most of them wouldnt be accepted back by the BPA so they would go out of business.

Thanks for the advice! I'll draft up a letter now and see what happens

just the one liner in inverted commas will suffice, adding any detail invites further correspondence.

Today received a latter dated 24th November 2016 which reads:

'We are aware you were the driver of the vehicle as per the attached Forum Post, the relevant section is highlighted

In view of the above we will be issuing a claim against you within 14 days from the date of this letter in the absence of payment.

We will be seeking our Client's costs on an indemnity basis.'

Any suggestions as what to do now?

And Gladstones - if you are reading this - you failed to attach any Forum Post! Also, I will happily defend the case in court...

It means nothing in court, just another threat to get you to pay up before they lose money trying to look big. Anyway, the parking co missed their boat, they failed to show keeper liability and now want to claim that employing someone who is able to read and use a computer suddenly creates one.

That is why the Gladdys/IPC are a joke. Are theyr genuinely that stupid or just deliberately trying to rewrite the law as it doesnt fit in with their fairy tales.

Right, court papers were received yesterday and they're requesting £230.

What should I do now?

Am I likely to lose even more if I try defend the matter?

you cant lose more,

they have added unlawful costs to this sum in the hope you dont defend or if you do then you dont know that these costs cant be claimed.

The most you owe is the original sum becasue you werent the driver so you cant consider any other term that it not in the paperwork they sent and that has to spell out exactly what they are claiming

so a vague "we may add other amounts that we fell like" isnt a contractual condition that is enforceable under the consumer contracts legislation!

You need to acknowledge the claim,

either by going online to moneyclaimonline or by ticking the correct box on the form and sending it back.

You then have an extra 14 days to submit a defence.

this only need to be bullet points at the moment such as

" no contractual obligation by the defendant to the claimant and then when they pay the next fee you will have time to submit a full version of what points you want to use and the vague bullet point will cover just about anything.

AS for them saying that they know that you were the driver because of the posts here,

they still have to prove it and they cant.

If they want to argue that point in a court they will risk whatever evidence they do actually have that such a contract exists being completely ignored bcause they made this accusation without proof. It is noise to make you give up

post up the wording of the prticulars of claim,

generally these are too vague to mean anything and can be worth a request to strike out in itself. That means they have to pay more money to try again.

you will also need to send gladdys a CPR 31.14 request for documents

and the ones you want to see are the contract between their client and the landowner that assigns the right to enter into contracts with the public and to make civil claims in their own name.

This last bit is important,

some parking co's forget this and thus cant sue anyone as they have no interest in the matter (only landowner can in those cases)

can you fill this out please:

http://www.consumeractiongroup.co.uk/forum/showthread.php?465231-Received-a-Court-Claim-From-A-Private-parking-Speculative-invoice-How-To-Deal-With-It-HERE***Updated-Aug-2016***

and here is the CPR you require:

to the solicitors

[Your address]

.

[Their address [solicitors]

.

[Date]

.

Dear Sir or Madam,

.

Re: (Claimant's name) v (Your name) Case No:

.

CPR 31.14 Request

.

On (date) I received the Claim Form in this case issued by you out of the (Name) county court.

.

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim.

.

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of [each of the following / the] document(s) mentioned in your Particulars of Claim:

.

1. the contract between [parking company name] and the landowner that assigns the right to enter into contracts with the public and make claims in their own name,.

.

2.proof of planning permission granted for signage etc under the Town and Country Planning Act 2007

.

3.copies of the notice to driver, notice to keeper and any other correspondence from [insert Claimant Name] & [insert Solicitors Name} to the defendant that they intend to rely upon in court.

.

You should ensure compliance with your CPR 31 duties and ensure that the document(s) I have requested are disclosed at your earliest convenience..

.

Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy.

.

Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

.

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

.

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

.

If you are unable to comply with this request within 14 days and believe that you will never be able to comply with this request please confirm in your response.

.

You are reminded that as this case is yet to be allocated to a track, CPR31:14 does apply, a refusal to comply because you 'think' at this stage you dont have too will be used against you in any filed defence.

.

Yours faithfully

.

TYPE YOUR NAME DO NOT SIGN IT

Name of the Claimant: SIP PARKING LTD, PETER HOUSE, OXFORD STREET, MANCHESTER, M1 5AN

Date of issue: 16 JAN 2017

Particulars of claim:

1.The driver of the vehicle registration XXXXXXX (the 'Vehicle') incurred the parking charge(s) on 08/06/2016 for breaching the terms of parking on the land at Gateway Plaza Barnsley.

2.The Defendant was driving the Vehicle and/or is the Keeper of the Vehicle.

3.AND THE CLAIMANT CLAIMS £150 for Parking Charges/Damages and indemnity costs if applicable,

together with interest of £6.22 pursuant to s69 of the County Courts Act 1984 at 8% pa,

continuing to Judgment of £0.03 per day.

Amount claimed:: 231.22

The Claim Form provides Gladstones' address as the address for sending documents and payments

At what stage should I send the CPR and can the defence be typed and printed or MUST it be on the form provided?

no you do it via the mcol website on the claimform...BUT NO YET!!

the FIRST thing you need to do is:

pop up on the MCOL website detailed on the claimform.

.

register as an individual

note the long number given

then log in

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select respond to a claim and select the AOS box.

.

then using the details required from the claimform

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defend all

leave jurisdiction unticked.

click thru to the end

confirm and exit MCOL.

the as in post 12

get that CPR running TOMORROW.

for all intent and purpose you can ignore the paper claimform its solely for reference

we would also like to see the signage at the site as this time Gladdys have actually decide the money is owed for a breach of contract rather than just parking charges, which could be anything or nothing.

The signs will determine if they have asked for the right thing, if they got it wrong then no cause for action.

We will also be looking at getting the claim struck out for not creating a keeper liability under the POFA

check with council about planning permission for the signage, if they dont have it then dont argue to toss with the council people about deemed consent, it doesnt apply but mostly the lower echelons of the planning dept dont know about what does apply and the higher ones dont care.

Just knowing that tey dont is enough for teh moment, you will have to write an essay on the 16 types of signs with deemed consent later.

Please see attached.

Interestingly, signage clearly states a ticket is not required to be displayed if an electronic ticket is purchased.

The received notice states reason for issue was 'NO TICKET DISPLAYED.' Contradictory?

sup sign.pdf

Also, ericsbrother, I need to clarify something with you that I cannot post publicly as Gladstones have monitored this post previously. I can't PM you as I haven't made 30 posts yet - is there a way around this?

PM to me i'll fwd if ness

OK, what the sign says is that if you dont have a ticket you agree to pay them £x, which is a contractual obligation The POC says they are suing you for breaching a contract. There is no bit that says park here under these terms and if you dont do as we say then that is a breach of contract and we can sue you for damages.

Basically the claim is a duff one and you need to do a bit of reading to find other cases (esp at a higher court) that differentiat between the 2. There are plenty of parking claims that fell flat on this point but like all individual cases they dont set a precedent and recently we have seen some pretty unbelievable determinations from the lower division judges so belt and braces on contract law.

Now, need to see the paperwork they sent at ther very beginning (screen ticket)

Also, read para 8 of the POFA and see if you think that the wording of the NTK complies with the exact phrase used in the legislation. If it doesnt then this is something to use

As requested, see screen ticket attached

I,like the bit where it says if paid within 28 days then it is £100 but if you dont pay it by then aparrently you owe them nothing as there isnt a tariff for in excess of that time.

If they then fail to create a keeper liability then they are stuffed

Also they use PO box number on ticket and sign so again not POFA compliant.

In short, they are on to a loser with this as long as any defence makes these point succinctly and with other examples as many judges hate making decisions that could be seen to be setting a precedent.

By the end of this week you need to put together a couiple of lines of your defence and that would include

no cause for action by plaintiff against defendant as no keeper liability created under the POFA.

The sum claimed is supposedly for a breach of a contractual obligation when no such obligation exists

The signage is not an offer of a contract but an invitation to treat.

The terms offered are an unfair contract under the consumer contracts regs.

The amount claimed does not represent the original charge expressed to the driver, which was zero so is purely made up of monies that are thus unenforceable penalty charges.

That is probably more than you need at this point

but I would use it so they have to scramble about and either rewrite the whole claim and spend £100 resubmitting it or they will have to argue black is indeed white but they forgot to say so

dont forget,

you are being written to as the KEEPER of the vehicle as they dont know who the driver is.

They can only sue you in that capacity,

they arent allowed to assume that you were driving at the time.

However, if they dont follow the POFA they have no cause for action against you as the keeper (no liability unless POFA requirements met)

and as they have failed to identify the driver their claim is doomed to fail as long as your defence doesnt offer any suggestion as to who was driving at the time.

Where people have fallen down is by using a template from elsewhere on the web that says the defendant neither admits nor denies being the driver at the time.

This is asking for trouble as a judge will invariably want to avoid having their court time wasted and once this question has been decided in their mind will then proceed to ignore the other parts of the claim and defence that hang on this fact.

The claim may well be defective in this respect but for most judges contract law is bread and butter so getting on to something they are comfortable with and ignore the actual exact wording or lack of substance to it and get stuck into the offer/acceptance bit.

With your ticket any claim should be dismissed for the reasons already stated

but with the above in mind the judge may decide the ticket says nothing is owed but the INTENTION is clear, even if SIP cant write in english.

Now, that will lead the judge down a path that has no real return from

so it is important to have other points to keep them focussed so they dont misdirect themselves.

You also have to be able to take the reins on this and not let the soliciotr for SIP dictate the course of things.

If they want to introduce new evidence or arguments that are not in ther paperwork object to it or ask for a stay on proceedings so you can consider the matter and write up a response.

Judges again hate having to allocate more time for a piddling little parking matter so will make a decision whether to allow or deny this addition.

If it is denied then you can get a pretty good feel for how the rest is going.

This is why you want to be all encompassing in the defence submitted on the claim form return and as detailed as possible in the witness statement,

if you narrow the arguments at the beginning you will have little room for manoeuvre later on.

As ever, thank you for the continued support...

Unfortunately, due to the timing of this claim landing and work commitments, I haven't been able to give it as much of my time as I would wish. Furthermore, I go on holiday in the next couple of days and ideally need to submit my defence beforehand

ericsbrother, given your previous post, should I submit the following on the defence form?

1. No cause for action by claimant against defendant as no keeper liability created under the Protection of Freedoms Act 2012

2. The sum claimed is for a breach of contractual obligations. No such obligation exists

3. The signage displayed in the car park is not an offer of a contract but an invitation to treat

4. The terms offered are unfair under the consumer contracts regulations

5. The amount claimed does not represent the original charge expressed to the driver, which was zero, so is purely made up of monies that are thus unenforceable penalty charges

6. The sum claimed is not reflective of the damages suffered by the claimant

My plan is to thoroughly research each point on my return and begin gathering evidence of previous decisions to strengthen my argument. I presume then that my next submission will need to be much more detailed?

I'm wondering whether you could help me with one thing - you state that 'the sum claimed is supposedly for breach of a contractual obligation.' How have we come to that conclusion when the POC states 'parking charges for breaching the terms of parking...' Are we saying that due to the claimant alleging breaches that there is in fact, in their mind, a contract in place?

so far so good.

You need to find supporting case law for each thing you argue or at least other cases where the matters were the deciding point. Judges like precedent,it keeps them out of trouble if they follow it.

The wording on the POC must match the cause of action

so if for example they claim that you agreed to pay them £100 for parking

then it is a claim for monies due under a contract.

If the signage says you can park here for free but these conditions apply and disobey them you pay £100 then disobey and that is a breach of contract.

If the signs say you pay £100 to park here but you can have the first hour on us then overstep that hour and you owe the £100 as a contractual consideration.

It is a matter of matching the wording of the offer of parking to what they claim will happen.

In this case they havent said,

they just say they are suing for parking charges ( and then try and muddy it by saying breach).

That implies that it is a contractual sum.

If the signage then says different you cannot possibly owe anything as there is no agreed payment for the performance of the contract.

Gladdys use a template and they cant be bothered to tweak it to fit the supposed event.

They hope that the punter is ignorant of the differences in the 2 terms and when it does get to court they will try and lie their way through when they get rumbled.

A good judge will stop them in their tracks,

a poor one will accept this change of the reason for claim.

Thanks for clarifying. Makes more sense now. No wonder people just pay up - this whole area is overwhelmingly confusing and needs the Govt to come in and tidy up

Re my defence - submit what I've written above now, yes? Case law etc. comes in later on the witness statement, right? Sorry if I seem daft, I'm just trying to not slip up

I'm also considering approaching the landowner - or is it too late?

you add the other stuff as separate pages to your evidence bundle.

Number them and anotate or index them so they are easy to find.

I once did a presentation at an employment tribunal that hinged on rather complicated mileage claims figures but the pages got out of order so a recess was ordered to allow me to reshuffle them.

Even then I think the panel were still puzzled as they had never seen a claim for paying below the min wage before and were struggling with the difference between taxable pay and non-taxable recoverable expenses.

You may be lucky and the judge has come across this sort of claim before so has boned up on the POFA etc.

You should include a copy of it in your evidence bundle.

It states things about the signage and letters that must be followed

so even things like using a PO box number and not a proper address where documents may be served is a no-no under the POFA so limits liability.

If you can show that the parking co is just plain slapdash in other areas of their business you get the benefit of the doubt when you ca show they failed to follow the protocols in this case.

As for approaching landowner,

generally it will get you no response,

they are often companies that dont want to get involved because they think you might sue them for allowing a buch of cowboys loose in their yard.

It is worth finding out who actually owns the land and whether there are limitations applied to it.

I found with one claim on this forum that the Landowner had gone bust before signing the agreement with the parking co and the authority had been removed for them to do anything by a deed from the bank.

That means that the parking co can sue the person who signed the doc for fraud but they have no claim against the motorist.

What you will probably find is that the agrement is signed by a managaing or estate agent and they will not be able to prove their right to make claims in ther own name has been properly assigned.

This point is important,

they may well have an agreement to manage parking

but not the critical bit that allows them to sue for money to keep for themselves

and they wont have the right to sue on behalf of anyone else, regardless of what they say.

Same goes for trespass, only landowner can sue.