UKCPS/? PCN nov 2015 Claimform - Driver-passengers observed leaving site - WEST QUAY RETAIL HULL

[Gily]

Thank you guys.

Where can I read about EB advice? I could not find any post regarding.

One more question dx mentioned -

When I send the form to PPC does it need to be signed by me?

Thank you

[dx100uk]

No it does not need signing

Only the court copy

 

Most ppc claim threads have input from Eric

[ericsbrother]

mediation is pointless and generally you will get a response saying it has been declined by the plaintiff when the allocation is done.

 

I would generally say no to mediation as it is relevant in things like disputes with a builder where it is agreed that work has been done but you are using the courts to get a remedy, not a straightforward yes or no.

 

The parking co will then have to pay another £25 for the hearing fee

and it is at this point that many decide to drop out

when they see that there is an intelligible defence.

 

Often their lawyers try and persuade them to continue but that is really only in the lawyers interests, isnt it Gladstones?

[Gily]

Hello

Can I ask one more question?

It asks for my full name and the problem is my middle name is wrong on the V5 ( I did not bother changing it when I first received the V5). So which name to write on the form?

Thank you?

[ericsbrother]

you write what your name is, having it wrong elsewwhere is of no interest to a civil court.

[Gily]

Little update. I've just received a letter stating the claim has now been transferred to my local court. I thought UKCpS will give up at that point.

[ericsbrother]

OK, check to see if they have paid the allocation fee,

if they havent then ask for the claim to be struck out.

 

In the meanwhile start getting all of your evidence together,

 

show that they are not compliant with PoFA to create keeper liability,

content of signage,

size and location of signage,

 

if you havent already,

proof they have the authority from the LANDOWNER (not third party) to make contracts, make claims in their own name,

have planning permission for the signage etc.

 

You havent told us what correspondence you received and when, the dates are critical.

 

If you binned it then say so as then the POFA defence goes out the window.

[lidrs]

I found your correspondence very interesting.

 

I recently parked in the same place in Hull and got a ticket for the same reason.

 

Noticed the very new blue signs (were yellow or orange before).

 

Wondered how you got on at the Council regarding planning permission for the signs.

 

Have they got one?

 

I bet not as West Quay Retail Park does not exist in City plans.

 

I would appreciate if you could share your findings and experience, as this would help my case.

 

If we work together we have better chance against them.

 

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?468330-UKCPS-claim-form-received

[Gily]

Hello lidrs. I haven't found any info regarding planning permission.

 

I rang city council and they could not give me any information.

 

They said it is private land and I can get a ticket if I don't obey with the rules.

 

I rang the court and my case is still not allocated, both party returned the questionnaire for now.

 

Do you recall if the old signage was the same company?

Is the reason for you ticket OBSERVED LEAVING SITE?

[Gily]

I found your correspondence very interesting. I recently parked in the same place in Hull and got a ticket for the same reason. Noticed the very new blue signs (were yellow or orange before). Wondered how you got on at the Council regarding planning permission for the signs. Have they got one? I bet not as West Quay Retail Park does not exist in City plans.

I would appreciate if you could share your findings and experience, as this would help my case.

If we work together we have better chance against them.

 

Hello lidrs. I have not found any info regarding planning permission for the signage.

 

 

I rang the city council and they could not say anything apart from it is private land and I can get a ticket if I don't obey with the rules.

 

I don't know about the old signage.

Do you recall if it was the same company?

Is the reason for your ticket observed leaving site?

[Gily]

Hi guys.

I have received my date in the court for mid October.

I am not sure what would be my witness statement and who will write it.

 

today I have received a letter from UKCPS offering REDUCED OFFER TO SETTLE OUTSTANDING PARKING CHARGE.

The amount now is 125 ( 175 on the court claim).

 

The strange thing is that UKCPS should pay the hearing fee till 19 sept but their offer to me is valid till 26 sept.

That's mean if I decide to pay in the last moment they should have already paid the hearing fee.

Or does this mean they will not go to the court and just hope I feel the same and accept their offer.

 

I will post again for some help when I start writing the witness statement.

Thank you very much.

[ericsbrother]

They are hoping you asre dumb or scared enough to pay them as they will still make a profit that way.

 

The witness statement is your statement of what went on and why you arent liable.

If you refer to other cases or laws then you need to print out copies of the details as judges can look up statutes but they wont thank you for referring to Smith v Jones if you dont then show what it is all about and in waht court it was heard etc and the outcome. Obvious cases you should quote are mostly listed on the parking opranksters blog.

 

As for planning permission,

get back on to the council and ask again but ask the correct question, the chapter and verse is on other thread on this forum so pull your finger out.

 

Also keep an eye on the status of the fee payment.

If UKPCS dont pay the allocation fee

ask for the claim to be sttuck out immediately

 

. The courts service usually remind the claimant to pay up and give a coupe of days grace but you want to be on the phone to them (after you have submitted a request in writing on the 20th) and demand that it be put to the judge.

That will seriously hamper UKPCS's chances of ressurecting the claim and you have a good chance that you can force them to pay full costs if they do try again.

[Gily]

Hello guys

 

Some update:

I found out the PPC do not have advertising consent for their signage.

That's good but can I use this argument when I have not mention that point in my first defence?

 

The UKCPS paid the hearing fee unfortunately.

I have spent so many hours reading relevant info how to defend that case and I think it is not worth it.

 

I will post my defence if ericbrother or anybody would like to have a look and give opinion.

I want to compare UKCPS signage vs Beavis one but not sure how to include it so the outcome of this case will not be used against me.

 

Thanks

 

Defence statement

 

1. The Defendant denies any liability whatsoever to the Claimant for all of the following reasons, any one of which is fatal to the Claimant’s case:

 

I)The Claimant has not identified the driver.

II) The Claimant has no legal capacity to bring the claim

III) The Claimant had no capacity to offer a contract to the motorist

IV) The signage did not form a contract with the motorist

V) No Consideration Passed from either the Claimant or the motorist

VI) The Claimant has disclosed no cause of action to give rise to any debt

VII) The Claimant did not offer a genuine contract and the amount claimed was intended as a penalty.

VIII) Disproportionate and unconscionable Legal fees

IX) There was no legitimate interest in enforcing a charge

 

2. The Claimant has provided insufficient details in the Particulars to enable the defender to file a complete defence. In particular, no photographic evidence of the alleged contravention has been provided; and full details of the contract which it is alleged was broken have never been provided.

 

3. The Defendant has no liability, as they are the Keeper of the vehicle and the Claimant must rely upon the strict provisions of the Protection of Freedoms Act 2012 in order to hold the defendant responsible for the driver’s alleged breach. The Notice to Keeper issued by the Claimant does not follow the requirements of POFA Schedule 4 and in particular; Para 8 (2) (a) and (b) where the period of parking is not specified. The notice to Keeper continuously states that the liability for the charge lies with the keeper. The claimant is put to strict proof that the keeper is liable under the POFA schedule 4.

 

4. The defendant has no recollection if they were the driver or a passenger on the day and puts the claimant to strict proof. The signs on site show the driver may be bound by certain conditions, if brought to their attention. However the claimant appears to want to bind the passengers too though offers no consideration to them nor is able to offer a contractual benefit to them either.

 

5. The Claimant has no legal capacity to bring the claim. The claim form states that the private land is ‘managed by the Claimant’. The Claimant was not therefore the Land-owner. Neither has it claimed to be an Agent. The Defendant has the reasonable belief that it was merely a contractor. The Claimant has not explained what authority the Operator had to acquire a chose in action to assign to the Claimant. ParkingEye v Sharma (3QT62646 Brentford County Court) examined the contract and dismissed the claim for the reason that the Claimant had no ownership of, or proprietary interest in, the land; it followed that the Claimant, acting as an agent, had no locus standi to bring court proceedings in its own name. The claimant is put to strict proof that they have a valid contract with the landowners. If they do not have a proprietary interest in the land they have no basis to demand money.

 

6. The Claimant had no capacity to offer a contract to the motorist. The claimant is put to strict proof they are entitled to enter in to a contract. Any contract must have offer, acceptance and consideration both ways. There is no consideration from The Claimant to the motorist; the gift of parking is the landowner’s, not that of the Claimant. There is no consideration from motorist to The Claimant.

 

7. The terms at the car park are not clear at all. The signage at the car park is contradictory and confusing so cannot form a contract. The defendant refers to the Consumer Rights Act 2015 which supports a consumer’s position in that the signage failed to make any obligation and/or risk of penalty prominent.

 

Precedent for such an implied contract being improperly formed on the basis of UKCPS’s inadequate signage has been clearly judged upon previously. The Defendent cites the 14/4/2014 UKCPS -v- Gaskell case (3QZ55265) at Cardiff (see Exhibit )where at #43 the Judge states "As to the first question posed [under paragraph 16 above] "(a) was this defendant contractually bound?" therefore repeat my conclusion that the signs in this case were not sufficiently prominently and clearly positioned and displayed to sustain the contention that the defendant consented to, or willingly assumed, the risk of his attracting the parking charge levied. Therefore the defendant in the particular circumstances was not contractually bound.” UKCPS have continued to use similar small and confusing signs since this ruling in 2014.

 

Another case the Defendant would like to refer to is A0QZ7658 UKCPS v Mr X (04/07/2014 Bradford) where the Claim was dismissed. The judge concluded the Signage was gibberish.

 

8. The boundaries of the car park are not clearly defined. The 'site' is not clearly demarcated by signs or by prominently displayed maps.

 

9. There is no consideration from the Defendant to the Claimant in a free car park. Even if it were not free, any consideration would be due to the land-owner with whom the motorist would have intended to deal.

 

10. The signs were not visible from a reasonable distance and the words were unreadable. There being no clear signage at the entrance to the car park clearly indicating such conditions and contract to the driver of a moving vehicle.

 

11. The Particulars of Claim state that ‘By parking on this land the driver contractually agrees to pay a charge of £100.’ No Consideration Passed from either the Claimant or the motorist. The Operator had no standing to offer a contract; there was no meeting of minds nor any consideration passed. The elements of offer, acceptance and consideration both ways that are fundamental to a contract were not present and therefore no contract could possibly have existed. The Defendant was, at the most, granted a licence to park. Whatever the conduct was that the Claimant alleges, a breach of a licence would be trespass, not a breach of contract. It could only be pursued by the land-owner.

 

12. It is the responsibility of the claimant to mitigate their losses, in this instance they failed to do so and thus invalidated their claim. I refer the court to the case of Vehicle Control Services -v- Ibbotson heard at SPiers Morganhorpe County Court in 2012 (Case number 1SE09849) where District Judge made it clear that by watching someone leave the site, the parking company is not mitigating any alleged losses, and cannot claim for damages (see Exhibit).

 

13. Disproportionate and unconscionable Legal fees. The Defendant has the reasonable belief that the Claimant has not incurred £50 costs to pursue an alleged £100 debt. The Protection of Freedoms Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper. The Claimant cannot recover additional charges. The Defendant also has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have actually been incurred.

 

The judgment in VCS v Ibbotson (2012) makes clear that only the costs that directly result from the parking may be included, not an arbitrary proportion of normal business costs. I therefore request that the Claimant justify these fees.

 

The court is invited to strike out the claim as having no prospect of success.In the case of VCS v Ibbotson at SPiers Morganhorpe County Court, District Judge McIlwaine ordered the cessation of other cases and made further directions to the claimant as a result of contempt of court.

 

I believe the facts stated in this defence are true.

 

Thank you for reading.

[dx100uk]

war and peace is no good.

 

you've already filed your defence

can you post up THEIR POC verbatim.

 

the defence you filed [verbatim]

 

I take it the above is you witness statement?

[Gily]

hello dx

It is my full defence and I am still confused about my witness statement. How can I do my defence into the witness statement.

From your comment I think I am on the wrong train.

I wrote something like witness statement saying what happened on that day but that's all.

 

What do you mean war and peace?

 

Their POC is on the claim form. I have not received any other POC from them.

 

I have to post everything on Monday. Please help.

 

Thank you.

[dx100uk]

please do as asked

 

type up their poc please

type up the defence you filed

 

no your WS is not a copy of your defence.

[Gily]

Their POC is in post 6 as an attachment.

My defence is almost same as the one I just posted. I just add some more references.

Thank you.

[dx100uk]

third time of asking

I will not ask again

I will simply unsubscribe from your thread.

 

can you post up THEIR POC verbatim.

 

the defence you filed [verbatim]

 

not a what I might have filed.

 

you are poss appearing in court here

its not a walk in the park that some might portray

 

if you get it wrong or have already done it wrong by including a whole load of waffle

that bears not resemblance to the accusations in their poc in your defence

and then you continue that in your WS you'll be up a tree with no paddle

 

nuff said

[dx100uk]

what date is the hearing?

and what date have you got to file your WS by...i'd wait till the last minute

and hope they file first

don't file early......I e don't blink first.

 

in their poc

they accuse you+passenger of leaving the area of the private car park

 

they failed to respond to your CPR 31:14

so:

have failed to prove they have a written contract with the land owner to issue court claims in their own name.

failed to prove they have planning permission for their signs

failed to prove you entered into any contract forbidding you to leave the land.

failed to prove they can charge any additional legal costs

in issuing a court claim they have no right issue in the first place

[Gily]

Thank you dx for your responses.

I think I am done and going to court is not what I am looking forward.

I am gonna give them a ring today and pay the stupid ticket once and for all.

I have to send the documents on monday as I am going away for a week.

I am still unsure what I have to send.

I wish I had appealed this when I had chance but....

[honeybee13]

Gilly, dx needs the POCs typed up please. They're not very easy to read on that attachment, plus he likes to put them next to your defence to make sure all the points are answered.

 

I expect there are other reasons.

 

HB

[Gily]

Their POC

 

1.Claim against XXXXX for outstanding parking charge issued to vehicle XXX on the land named WEST QUAY RETAIL HULL.

 

2.This land is managed by UKCPS Ltd and vehicles parked at the site are subject to parking restrictions which are set out on signs at the site and form a contract between the driver of the vehicle and UKCPS Ltd

 

3.Mrs Xxx or a driver parked the vehicle on Xxxx at 14:55

DRIVER-PASSENGERS OBSERVED LEAVING SITE

 

4.or the keeper who may have been the driver

or alternatively has chosen not to name the driver

and is therefore responsible for payment as required under Schedule 4 of the Protection of Freedom Act 2012

By parking on this land a driver contractually agrees to pay a charge of £100.

 

5.The amount remains unpaid and stands at £100 plus an additional £50 incurred in collection fees whereby the remaining £50 becomes a commercially justifiable figure.

[Gily]

My defence submitted on McOL

 

 

Claimant: UKCPS Ltd

Defendant: Mrs ****

 

1. The Defendant denies any liability whatsoever to the Claimant

for all of the following reasons, any one of which is fatal to the

Claimant’s case:

I) The Claimant has not identified the driver.

II) The Claimant has no legal capacity to bring the claim

III) The Claimant had no capacity to offer a contract to the

motorist.

IV) The signage did not form a contract with the motorist.

V) No Consideration Passed from either the Claimant or the

motorist.

VI) The Claimant has disclosed no cause of action to give rise to

any debt.

VII) The Claimant did not offer a genuine contract and the amount

claimed was intended as a penalty.

VIII) Failure to mitigate losses.

IX) Disproportionate and unconscionable Legal fees.

X) There was no legitimate interest in enforcing a charge.

 

The Claimant has provided insufficient details in the Particulars

to enable me to file a complete defence. In particular, no

photographic evidence of the alleged contravention has been

provided; and full details of the contract which it is alleged

was broken have never been provided.

 

2. If the claimant is intending to pursue this claim against the

defendant on the basis that the defendant is the registered keeper

then the claimant has failed to show that the conditions for

recovering the charge under Schedule 4 of the Protection of

Freedoms Act 2012 have been met.

 

3. The defendant has no recollection if they were the driver or a

passenger on the day and puts the claimant to strict proof. The

signs on site show the driver may be bound by certain conditions,

if brought to their attention. However the claimant appears to

want to bind the passengers too though offers no consideration to

them nor is able to offer a contractual benefit to them either.

 

4. The Claimant has no legal capacity to bring the claim. The

claim form states that the private land is ‘managed by the

Claimant’. The Operator was not therefore the Land-owner. Neither

has it claimed to be an Agent. The Defendant has the reasonable

belief that it was merely a contractor. The Claimant has not

explained what authority the Operator had to acquire a chose in

action to assign to the Claimant.

 

5. The Claimant had no capacity to offer a contract to the

motorist. The claimant is put to strict proof they are entitled to

enter in to a contract. Any contract must have offer, acceptance

and consideration both ways. There is no consideration from The

Claimant to the motorist; the gift of parking is the landowner’s,

not that of the Claimant. There is no consideration from motorist

to The Claimant.

 

6. The terms at the car park are not clear at all. The signage at

the car park is contradictory and confusing so cannot form a

contract. The defendant refers to the Consumer Rights Act 2015

which supports a consumer’s position in that the signage failed to

make any obligation and/or risk of penalty prominent.

 

7. The boundaries of the car park are not clearly defined.

 

8. The signs were not visible from a reasonable distance and the

words were unreadable. There being no clear signage at the

entrance to the car park clearly indicating such conditions and

contract to the driver of a moving vehicle.

 

9. The Particulars of Claim state that ‘By parking on this land

the driver contractually agrees to pay a charge of Ј100.’ No

Consideration Passed from either the Claimant or the motorist. The

Operator had no standing to offer a contract; there was no meeting

of minds nor any consideration passed. The elements of offer,

acceptance and consideration both ways that are fundamental to a

contract were not present and therefore no contract could possibly

have existed. The Defendant was, at the most, granted a licence to

park.

 

10. It is the responsibility of the claimant to mitigate their

losses, in this instance they failed to do so and thus invalidated

their claim, (as in VCS v Ibbotson ( 2012).

 

11. Disproportionate and unconscionable Legal fees. The Defendant

disputes that the Claimant incurred Ј50 in collection fees. The

judgment in VCS v Ibbotson (2012) makes clear that only the costs

that directly result from the parking may be included, not an

arbitrary proportion of normal business costs. I therefore request

that the Claimant justify these fees.

 

The court is invited to strike out the claim as having no prospect

of success. In the case of VCS v Ibbotson at SPiers Morganhorpe County

Court, District Judge McIlwaine ordered the cessation of other

cases and made further directions to the claimant as a result of

contempt of court.

 

I believe the facts stated in this defence are true.

Edited September 24, 2016 by honeybee13
Name removed.

[dx100uk]

that's magic

you're far from done

don't pay them

a private parking co has no legal rights whatsoever

to dictate where someone does or doesn't walk.

[Gily]

hi dx.

Can you advice me what to write in my witness statement and what supportive documents to send pleaseeee.

I have no much time really and I was about to ring them but I was waiting for your reply.

I can send you my witness statement so you can check it if it is in the right direction.

I still don't know where this full defence stays. Should I send it to anybody or keep it for myself.

You are my last hope.

Thank you.