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Homeguard/14 Services - Court papers recieved


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Hi all,

 

Bit of background...

.i live on a new build housing estate which has allocated parking/parking permit scheme.

 

Homeguard, trading as 14 Services

(not sure what the other 13 are, but making my life a misery seems to be no.1)

were brought in to manage the parking.

 

In the last 18 months i have had no less than 30 tickets for parking without a valid permit.

I would add at this point that i have not used anyones space, or parked in an unsafe manner...

..my property does not have an allocated bay so i tuck my car out of the way

where it is not obstructing anyone.

 

I've had numerous correspondence relating to these tickets,

which based on the advice contained here i have ignored.

These have included Notice to Keeper letters, solicitors letters and collection agents letters.

 

Just before Christmas i recieved court papers, and filed a defence based on research here.

 

The basis of my defence was that Homeguard had not proven right of litigation on behalf of the landowner,

that the damages requested (some £900) were a punitive damage

and not pre liquidated damages as there is no cost to park on the estate,

and that they had not provided evidence that they were pursuing me as driver,

not registered keeper

(i indicated that i was not the driver and that, as i'm not required by law to provide further details

i have elected not to do so).

 

I have had today a response to defence almost an inch thick prepared by Gladstones solicitors

denying my defence on all points.

 

It appendages their contract with the landowner

which states that they are authorised to take all action neccessary to recover amounts

related to tickets issued so they do have right of litigation..

..so thats that as far as that defence is concerned i guess.

 

Other appendages include copies of the tickets and notice to keepers etc,

and a letter from a 3rd party company which is who Homeguard are ACTUALLY contracted to,

who is in turn contracted to the land owner.

 

This letter is prejudicial in that it goes into details not factually relevant to the claim

and implies that my vehicle has caused problems with access for emergency services.

...which is absolutely false!).

 

They have indicated on the court papers that they would allow mediation,

and i have the option for this too but i don't see that it will achieve anything.

 

They are claiming the right to pursue me as keeper,

and for the full sum allegedly owed and not amounting to a claim for damages

under the Protection of Freedoms Act 2012 para.4 which defines a parking charge as being:

 

(a) in the case of a relevant obligation arising under the terms of a relevant contract,

means a sum in the nature of a fee or charge,

and

(b) in the case of a relevant obligation arising as a result of trespass or other tort, means a sum

in the nature of damages.

 

They are relying on case law to support this

- Export Credits Guarantee Department and Universal Oil Products Co and Others (1983) which found:

 

'A sum of money payable under a contract which is not triggered by a breach of contract

falls outside the penalties jurisdiction.'

 

Now to my laymans eyes, it would seem that they are claiming that as there is no breach of contract,

they are free to claim damages?

 

But surely there is an implied contract being entered into by parking on the scheme,

and failing to adhere to its terms (not displaying a valid permit) is by nature a breach of contract?

 

i've gone as far as i can with this under my own steam, and as i cant afford to engage a solicitor

i'm looking for any assistance you knowledgable people can afford me on how to proceed.

 

If its a non starter then so be it, but i'd hate to not go down fighting.

 

Thanks in advance,

 

L

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The first ticket they've attached dates back to 2nd Feb 2013 and the last attached is from 2nd April 2013. There have been many more between then and now, but these are the ones they have stated in the claim.

 

**edit** the 5 attached notices to keeper date from May 1st 2013 to 12th June 2013.

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Just looking at the dates on the Notice to Keepers.

 

Notice one - Sent 1st May 2013....relates to a ticket issued 21st Jan 2013

Notice two - Sent 24th May 2013....relates to a ticket issued 2nd Jan 2013

Notice three - Sent 12th June 2013....relates to a ticket issued 11th March 2013

Notice four - Sent 12th June 2013....relates to a ticket issued 18th March 2013

Notice five - Sent 12th June 2013 ... relates to a ticket issued 2nd APril 2013

 

I think i read somewhere that the NTK has to arrive within a defined period from issue of ticket? These seem to have taken a really long time to be sent out.

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In that case a complaint to the DVLA they should not have had your details released to them, They have probably applied for one issued after they joined the IPC now they are trying it on with charges issued before they were members of an ATA. They are in a probation period with the DVLA so I would complain to the DVLA as Gladstone solicitors have actually set up the IPC they should know better.

 

If they were screen tickets they have 56 days to issue a NTK if they were not they have 14 days!

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Forgive my ignorance.....but what are ATA and IPC?

I'm assuming this is a letter to DVLA complaints (If there is such a department) directly?

The dates on the notice to keepers are not POFA section 8 compliant, so is this worth appending to my stated defence (and is it possible to add stuff post submission?)

Apologies for all the questions but i'm beginning to feel like i've bitten off more than i can chew with this.

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In order to be able to issue charges for parking a company have to be members of an ATA = Accredited Trade Association there was until recently only one the BPA, The IPC = Independent Parking Committee is a new one set up by these Gladstone solicitors.

 

The DVLA will give an ATA the keepers details, however it seems that this bunch have asked for your details for charges issued before they had the right to do so. If they wish to use POFA 2012 to try and gain a judgement against the keeper, they need to be compliant with all the requirements. They have fallen at the first hurdle as they had no authority to gain your details before 01/08/13.

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Wow! Thanks so much! That seems like a pretty major error on their part, even to my untrained eyes! Although their signage etc states that they are members of the BPA.....and this is also stated in their contract with the estate management service theyre contracted to. Does this mean that they're within their rights to obtain my details before their IPC membership?

I have to return the court directions questionnaire next week......is it worth enclosing an appendment to my defence with this? And presumably this would also need to be served to Gladstones at the same time?

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I haven't actually heard of this bunch until now, but having googled them it seems they may have been members of the BPA AOS previously, can you post up a picture of the signs they have erected on site.

 

With £900 at stake you really have no option but to defend, just because they have written saying your defence is invalid does not mean it is.

 

If you don't have an allocated bay were are you supposed to park?

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[ATTACH=CONFIG]48697[/ATTACH]

 

Clearly shows the BPA logo and approved operator scheme logo, but as f16 says, no record of them on the BPA website membership list.

 

If i lose this case, they are going to try it on with the other 20 or so tickets i've not paid so i really need to push this as far as i can lol

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I haven't actually heard of this bunch until now, but having googled them it seems they may have been members of the BPA AOS previously, can you post up a picture of the signs they have erected on site.

 

With £900 at stake you really have no option but to defend, just because they have written saying your defence is invalid does not mean it is.

 

If you don't have an allocated bay were are you supposed to park?

 

Sign above.

Incidentally, these are set at heights of between 7 and 12 ft from ground level so not easily read when spotted.

They were erected some time ago and when first put up, there were still previous signs from the developer being displayed which stated that the are was residents only parking for a couple of months. I'm a resident.

Not really that relevant but it gives the idea of the mess this has caused on my estate - i'm not the only one being chased....there are several other tenants in the same boat. One was ticketed in his designated bay while displaying a permit.....he's had court papers also.

There is literally nowhere to park within a 15minute walk of the estate.....its farcical! the road through the estate has broken up double yellows so most people park on those.

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Ticket No. 1 102 days

Ticket No.2 144 days

Ticket No.3 131 days

Ticket No. 4 85 days

Ticket No. 5 70 days

Should be 56 days. They are out of time

 

I thought they were a bit over the limits set out on POFA too. So what my best approach with this now?

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Then they may only chase the driver, not the registered keeper and as so much time has elapsed you are not in a position to help them identify the driver at the time.

As they have claimed a contractual right from the landlord that allows them to recover monies, does it say they can keep the money or are they acting on behalf of the landlord? important point this as the LL can claim for trespass and recover damages but no damage done by your parking and so no loss to LL.

Importantly, why dont you have a parking permit? more than 1 vehicle or another reason. Hav a look at the lease and the planning application to see what it says about parking and who owns what and what rights go with the property and what stay with the freeholder. These bandits may have a contract but it may not apply to anywhere.

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Then they may only chase the driver, not the registered keeper and as so much time has elapsed you are not in a position to help them identify the driver at the time.

As they have claimed a contractual right from the landlord that allows them to recover monies, does it say they can keep the money or are they acting on behalf of the landlord? important point this as the LL can claim for trespass and recover damages but no damage done by your parking and so no loss to LL.

Importantly, why dont you have a parking permit? more than 1 vehicle or another reason. Hav a look at the lease and the planning application to see what it says about parking and who owns what and what rights go with the property and what stay with the freeholder. These bandits may have a contract but it may not apply to anywhere.

Their contract states that they keep money recovered I believe.... I'm not at home as I write this so I don't have it to hand unfortunately or I'd check to be sure.

Only certain properties on the estate have allocated parking and unfortunately mine isn't one of them, and no allocated space equals no permit. Since my car will not disappear when I park it and

It's too large to pocket I park it as considerately as possible where it's not in anyone's way. Most of the tickets I have had we're issued late at night or in the small hours of the morning, which given the claim by the estate managers that they brought in parking measures due to badly parked cars restricting access to building traffic and emergency services seems an odd time to be doing it.... They don't build houses here at night and it's largely not a problem during the day because most residents are at work.... Go figure!

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Also measure the signs. Min is 450mm x 450mm. In view of the times the tickets are timed, I'm wondering if homeguards operative is one of the residents???

I think I'm right in saying the signage should be readable from your driving position day or night.

More advice will follow

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Is this a new build new build or a regeneration new build? The reason I ask it is unusual for planning permission to be granted for a new build if at least one car parking space for each dwelling is provided if there was no alternative parking. It may be worth checking the planning permission. Also check if the council have adopted the roads, after a new build is finished the local authority often adopt the roads.

It is going to mean a bit of work but you are going to have to go from the beginning. The first thing to determine is where are you supposed to park?

Edited by esmerobbo
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Is this a new build new build or a regeneration new build? The reason I ask it is unusual for planning permission to be granted for a new build if at least one car parking space for each dwelling is provided if there was no alternative parking. It may be worth checking the planning permission. Also check if the council have adopted the roads, after a new build is finished the local authority often adopt the roads.

It is going to mean a bit of work but you are going to have to go from the beginning. The first thing to determine is where are you supposed to park?

 

It's a regeneration build, on the site of an old rubber mill. Planning was granted with limited parking... I know this because in the course of my employment I did some work for the architect that designed the site and he said that he included parking in the plans but was told to minimise it by the planning committee as they didn't want an influx of additional vehicles into the centre..... Apparently the words used were 'if they can't park, they'll get rid of their cars', which is ludicrous really! The simple fact is that anyone without an allocated bay is not supposed to park on the estate at all

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Ludicrous beyond belief. How many dwellings? how many spaces? What about "visitors" spaces? ....or did the planning committee decide that the inhabitants should be hermits?

I think the answer to this is in A. the "contract" B. The signs. C. compliance by homeguard to the regs

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Ludicrous beyond belief. How many dwellings? how many spaces? What about "visitors" spaces? ....or did the planning committee decide that the inhabitants should be hermits?

I think the answer to this is in A. the "contract" B. The signs. C. compliance by homeguard to the regs

Not sure of the exact number of dwellings on the scheme but in the part I live in there are six blocks of eight flats and I would guess at twenty spaces for them. No visitor parking is catered for at all.

When I moved into my flat I knew there was no allocated space but at the time it was possible to park on the road through the estate. However after around six months this was double yellowed without warning. Fortunately they made a mess of it and the lines aren't continuous and so they are unable to enforce them but it's a limited space and usually at capacity.

 

I'm thinking that I'll add the following to my defence:

 

Notice to keeper letters served out of time under POFA regulations, so I am not liable as keeper. Due to the delay in their arrival, it is unreasonable to expect me to provide driver details assuming I was ever required to do so.... Which I wasn't. Homeguard have failed to identify the driver and as they are not entitled to pursue me as keeper, the claim has no merit on this point and should be dropped accordingly. In addition, they are not listed on the BPA list of approved operators, and were not IPC registered at the time of issue of either the tickets or the notices to keeper so appear to have obtained my details unlawfully.

 

Claimed sum is punitive, and claimants assertion that it is not, (based on the case example Gladstones have included in their evidence) relies on their being no breach of contract triggering the claim. The tickets were all issued for failure to display a permit.... Displaying a permit is one of the terms on their signage. In the absence of further signage detailing terms of contract (there are none on site and no evidence of any supplied) the sign quoted in the claim must be taken as the terms of contract. Failing to display a valid permit would therefore be a breach of the implied contract and therefore claimant is only entitled to pre-liquidated losses.

 

The letter confirming their contract and right of litigation with the estate management company contains details not pertinent to the subject, includes details of vehicles not relevant to the claim, and other information which is a thinly veiled attempt at prejudicing my defence by implying that my vehicle was an obstruction to emergency services etc.....which it wasn't in any way. If it was, the council highways enforcement officer that they tried to get to tow it away on the basis that it was an abandoned vehicle (yes really!) wouldn't have been so reasonable when I explained the situation on the estate... He agreed it was not an obstruction and declined to get involved further.

 

Does this hold water?

 

Also:

 

Claimant has declared a claim for interest on the main sum, and 70 pounds legal costs, when I thought the maximum that could be claimed is 50? Should I mention this as well?

Edited by Cable_Guy
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guidance for signs is that they should be of a size to be readable when entering the site from the drivers position and quite a few claims by parking companoes have been knocked back because the signage meant that a defence of ignorance (cant read the signs or inadequate signage) was allowed. This is down to interpretation but always worth using when appropriate.

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I think ericsbrother "guidance" for signs should be mentioned and it would be worth checking. 1. The size of the signs min 450 x 450 mm. 2. Size of lettering. 3. Readable from driving position. 4. Incorrect use of BPA logo surely is illegal therefore voids the contract.

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