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Gemini Parking PCN claimform - Olympic Park


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why all the blanked out stuff in the parking contract?

and no proof its paid this year either?

 

please don't hit Quote...just type we know what we said earlier..

DCA's view debtors as suckers, marks and mugs

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

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all the cases they mention have zero relation to parking matters

 

use the custom google search after click our top squares logo

and type each cases name in and read.

 

else see the parking prankster site.

please don't hit Quote...just type we know what we said earlier..

DCA's view debtors as suckers, marks and mugs

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

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the majority of their signs just say permit parking only and make no offer of a contract for random people to park.

You need to work out exactly where all these signs are located and the liklidood that the ones that mention paying to park and especially being charged £100 for doing it wrong actually are.

 

If you take council controlled on street parking as being the gold standard then this lot will need the correct sign at every place where public parking is permitted and where it is permit only then they cant and aren't offer you a contract to park in the first place.

 

Also you find out who actually owns the land as they have a contract with a management co who may or may not have the necessary chain of authority to enter into a contract with the parking bandits.

 

The judge may assume that such authority exists but by doing your homework and stating that the parking co has failed to show they have the necessary agency they cant offer you anything.

 

What about the planning aspect?

you need to bone up on that, the parking pranksters blog of dec 2017 called the great private car park approval [problem] and follow the link near the bottom of that article to a paper on the subject.

You will copy that into your evidence and use it

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Thank you both once again for the directions. I'll be back when I've done my homework!

 

When I had no response to my CPR request I started looking for any evidence of planning consent for any signage and found none. I'll continue to dig to make sure I'm not missing anything.

Edited by jonnymango
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then you can state that they dont have it and thus are a bunch of criminals and you cnat enter into a compactthit is only created by criminality.

again you will need to look this up and ram it down the judges throat as it is often lied about by parking co's and misunderstood by the judiciary

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So I gather from the Parking Prankster Blog. My only concern is whether they have got wise and made sure all of their signage is less than 0.3sqm and so given deemed consent. Trip back there with a tape measure coming up.


That and the POFA errors in the NTK could be key - stating that "the overdue charge will increase to £160 in the first instance of further action"  implying potential further costs, where if I'm reading things right it should state the maximum costs they may seek to recover?

 

 

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then you havent read the 2007 ACT have you? the deemed consent only applies to certain classes of sign

also if they are that small then they fail the ATA size test and cant be good enough to offer a fair contract as they will be illegible from a moving vehicle etc.

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Well there we go then..


They're not gov't related (1), identifying, warning or directional, relating to a business, religious, educational, cultural etc institution, hotel, pub, etc (2), temporary (3), illuminated (4) or otherwise(5) on business premises or forecourt (6) thereof. They're not flags (7), not on hoardings (8) or highway structures (9). They're not for Neighbourhood Watch(10) or directing peopple to a residential development (11). They're not inside(12), and they've certainly not been there for ten years (13). No consent has expired(14), they're not on balloons (15) or telephone kiosks(16)

 

So unless they have applied for planning they are there illegally, so copied from elsewhere..

It's a criminal offence to breach the legislation. 

Town and Country Planning (Control of Advertisements)(England) Regulations 2007 (as amended). Regulation 30 makes it a criminal offence to display advertisements without the relevant consent.

If there was a contract between the PPC and the driver, it was illegal at its formation because it was incapable of being created without an illegal act (the erection of the un-consented signs which the PPC relies on as having made a contractual offer). 

Where a contract is illegal when formed, neither party will acquire rights under it, regardless of whether or not there was an intention to break the law; the contract will be void and treated as if it had never been entered into. As such, the asserted contract cannot be enforced

This allows Defendants to run a defence of Ex dolomalo non oritur actio

 

Also  that Gemini are operating with disregard to the AOS CoPs and therefore not entitled to obtain keeper details from the DVLA under the DVLA's own terms. Ergo they have no right to to obtain my details either.

 

Am I getting warmer?

 

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Yep, that means you can sue them for obtaining and PROCESSING your keeper details unlawfully but it would be wise to do this as a separate action.

 When you submit your WS you could send them a letter before action demanding £250 in this regard just so they know that it is a 2 way street. Thjey will of course deny that they are in the wrog but then they will have to persuade a judge twice

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  • 1 month later...

Good evening all.

 

EricsBrother could I trouble you to review the attached witness statement please.

I know I have left this rather late as I was still waiting for the local authority to confirm that the signage has no consent, but I believe I need to get this statement to the court asap now as the hearing is on the 13th

 

Please excuse the long post and edit from view of necessary but when I try to upload as a pdf I am getting a message that

/srv/consumeractiongroup.co.uk/public/htdocs/uploads/monthly_2019_09 could not be created. 

Please contact us for assistance:

 

The Claim:

 

1.     The Claimant‘s witness statement alleges that the Defendant is “liable for a parking charge relating to the parking of a vehicle on the Relevant Land in a manner so as to incur the same pursuant to the Contract (ie the Sign)”

 

2.     The Defendant has only been identified by the DVLA as the Keeper of the vehicle, the claimant has not produced any evidence to identify the Driver at the time of parking and the Keeper has not identified the driver.

 

3.     Particulars of Claim states the “Driver of vehicle YXXXXXXA (the vehicle) parked in breach of the terms of parking stipulated on the signage (the ‘Contract’). This is therefore a Breach Of Contract claim against an unidentified person, ‘the driver’, for which the amount charged for the breach must be a genuine pre-estimate of the loss suffered by the party to the contract.

 

4.     As a Breach of Contract claim the claimant  can only claim the amount they lost because of the breach, and no more. 

 

5.     As the reason for the issue of Parking Charge Notice (PCN) was “No Permit” the claimant has not suffered any financial loss for the unavailability of the permit only parking space. However, the amount claimed is £177.73, plus £25 Court Fee, plus, £50 Legal Representative costs, a total of £252.73. Clearly the amount claimed is not a genuine pre-estimate of the loss suffered by the parking company, and is therefore an unenforceable penalty.

 

 

 

The Signage:

 

6.     The defendant refused to respond to a CPR31.14 request to provide, among other things, evidence of planning or advertisement consent for the signage which they allege forms the basis of the contract.

 

7.     Logan Close, E20 falls under the planning jurisdiction of the London Legacy Development Corporation (LLDC). Searches of their planning portal using the terms advertisement, and/or sign, signs, or signage and ‘Logan Close’ return 357 results. Not one of these results is for the erection of signage relating to parking controls in Logan Close.

 

8.     It can therefore be assumed, in the absence of LLDC yet confirming to me, that advertisement consent for the Private Parking Company’s (PPC) signage has not been sought or approved.

 

9.     It is widely known that PPCs erect signage without obtaining advertisement consent on the basis that some Local Authorities will see them as having ‘Deemed Consent’ under Schedule 3, Part 2, Class 2 of the Town and country Planning Control (Control of Advertisements) (England)  Regulations 2007 No. 783– ‘Miscellaneous advertisements relating to the premises on which they are displayed -2A. An Advertisement displayed for the purpose of identification, direction or warning, with respect to the land or building on which it is displayed.’

 

10.  The conditions and limitations for Class 2 states – (1) No advertisement may exceed 0.3 square metres in area. A condition which the PPC’s take as the go-ahead to clutter the public realm with a proliferation of signs generally falling just below this size, as many of the signs in Logan Close are.

 

11.  Clearly a sign larger than 0.3 square metres requires ‘Express Consent’, and erecting signage without advertisement consent.

 

12.  Advertisements do not become immune from consent until 10 years after installation, there is no such thing as retrospective advertisement consent, and display of an unauthorised advert is a criminal offence under s.224 of The Town and Country Planning Act 1990

 

13.  Several signs in Logan Close which the defendant is relying upon to establish and enforce a contract measure 70x55cm, an area of 0.385 square metres. Clearly therefore these signs require advertisement consent which has not apparently been granted, and are therefore erected illegally, and knowingly so.

 

14.  The importance of this is two fold. 

 

a.   The Claimant claims in their own words that the “Signage on site is the contractual document”. If there was a contract between the PPC and the driver, it was illegal at its formation because it was incapable of being created without an illegal act (the erection of the un-consented signs which the PPC relies on as having made a contractual offer). 
Where a contract is illegal when formed, neither party will acquire rights under it, regardless of whether or not there was an intention to break the law; the contract will be void and treated as if it had never been entered into. 

 

As such, the asserted contract cannot be enforced under the legal doctrine of ‘ex turpi causa non oritur actio’, that no action may be founded on illegal or immoral conduct, which is clearly the case here.

 

b.   The British Parking Association Approved Operator Code of Practice requires their member PPC’s to operate according to the Law. In the case of the BPA the CoPs state: “2.4    When there is relevant legislation and related guidance, this will define the overall standard of conduct for all AOS members. All AOS members must be aware of their legal obligations and implement the relevant legislation and guidance when operating their businesses......”   and: “4.3    Under the Code you must keep to all therequirements laid down by law.” 

 

All member PPC’s have an overriding duty to comply with the law in creating and enforcing its contract with a motorist (or, by extension under the Protection of Freedoms Act 2012, with a vehicle’s keeper), and in communicating the terms of that contract.

In the judgment in Cavendish Holdings BV v. Talal El Makdessi; ParkingEye Limited  v. Beavis [2015] UKSC 67 the judge drew attention to the BPA CoP.  At [111] is stated: “.....while the Code of Practice is not a contractual document, it is in practice binding on the operator since its existence and observance is a condition of his ability to obtain details of the registered keeper from the DVLA. In assessing the fairness of a term, it cannot be right to ignore the regulatory framework which determines how and in what circumstances it may be enforced.”

 

Therefore, by erecting illegal signage the defendant is in breach of the BPA CoP and so not entitled to obtain registered keeper details from the DVLA, something which the Claimant relies solely on to be able assert Keeper Liability. Not only are they not entitled to do so under the BPA CoP, but by having done so they have obtained the Keepers details unlawfully.

 

Notice to Keeper and the Protection of Freedom Act 2012:

 

15.  The Notice to Keeper fails to be POFA 2012 compliant on several counts and therefore the Claimant does not have the legal right to enforce the charge against the Keeper, nor to force the Keeper to name the Driver who is the subject of the claim.

 

a.    The NTK does not explicitly name the creditor, only asserting that “ the driver became liable for a parking charge at Logan Close that we [the claimant] are authorised by our client to manage”. This only identifies the Claimant acting on behalf of a client and does not identify the ‘creditor’ as required under POFA 2012 and fails to create Keeper Liability

b.    The NTK does not state the period the car was parked, only the time of issue the PCN.

c.    The NTK does not repeat the information from the PCN about when the parking charge was due to be paid nor the details of any discount offered for early payment.

d.    The NTK fails to specify the maximum additional costs the claimant may seek to recover, merely stating that “the overdue charge will increase to £160 in the first instance of further action”.

 

16.  The keeper has not identified the driver and the Claimant has not provided any evidence as to the identity of the driver, therefore the Claimant has no legal right to pursue the keeper.

 

 

In summary:

 

·       the Claimant is claiming £253 from ‘The Driver’ for a Breach of Contract for which there was no financial loss. – An unenforceable penalty.

·       The signage which the Claimant asserts forms the contract is illegal as it is larger than could possibly be granted Deemed Consent and no evidence of Advertisement Consent has been produced. – Therefore the contract is null and void

·       The Driver has not been identified, by the Claimant nor the Keeper.

·       The  NTK issued by the Claimant fails to comply with the strict conditions of the POFA 2012 therefore the Claimant has no legal right to pursue the Keeper

·       There is no legitimate claim against the defendant.

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6. cant be right

 

dx

please don't hit Quote...just type we know what we said earlier..

DCA's view debtors as suckers, marks and mugs

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

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Morning Dx, what makes you say that?

The words in my point 1 "liable for a parking charge relating to the parking of a vehicle on the Relevant Land in a manner so as to incur the same pursuant to the Contract (ie the Sign)”, are straight from the Claimant's witness statement point 3, and in the Particulars of Claim  'parked in breach of of the terms of parking stipulated on the signage (the 'Contract')

 

Other than this point is everything else ok?

 

I have just noticed in their witness statement an explicit reference to being in Breach of Contract..

"in view of the defendant not paying the charge within the 28 days allowed they are in breach of contract".

Should I amend my point 3?

 

Thanks

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Bear in mind that the case they cite in their WS at 10:

"10. Notwithstanding the above, the Criminal Case of Elliott v Loake 1983 Crim LR 36 held that the
Registered Keeper of a vehicle may be presumed to have been the driver unless they sufficiently
rebut this presumption. The Court is therefore invited to conclude it more likely than not that
the Registered Keeper (i.e. the Defendant) was the driver."

 

It's Criminal, and has been kicked into touch as not applicable. there is reports on Prankster where these cases have been rubbished by the judge as not applicable

 

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Hi Brassnecked, are you saying I should highlight their use of that case as being not applicable because it was a criminal case?

 

thanks

 

Also, should my witness statement begin with on the morning of ****  the defendant inadvertantly parked in a permit only parking space early on a Sunday morning presuming it was a pay by phone space as that is what the entrance signage states, no mention of permits,, and unaware of the hours of operation being 24/7 due to the minute size of the wording on the signage not being visible from the vehicle. ? Or just stick to defending myself on the basis of the claim being illegitimate for all the reasons stated?

 

 

So the case of Excel v M. X C8DP5C7T. Manchester County Court - 25/05/2017  the Judge in his closing remarks stated that using EvL does not bear any weight in the Small Claims Court as it was a Criminal case, and that the legal burden is on the Claimant to prove the balance of probabilities. AnD EvL has been discredited in numerous other cases since.

 

I should include that in my WS?

 

 

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In point 6 under signage you say 'the defendant' instead of the claimant.

In point 3 you have included your VRN This is a no-no on a public forum.

My time as a Police Officer and subsequently time working within the Motor Trade gives me certain insights into the problems that consumers may encounter.

I have no legal qualifications.

If you have found my post helpful, please enhance my reputation by clicking on the Heart. Thank you

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Gick, thank you for spotting that error, which is presumably what DX was referring to.

 

And thanks to whoever edited out my reg, thought I'd made sure there was nothing like that left in there.

 

Mrs O'Frog - good point! I'll stick with my current approach then

 

I am adding in to 'The Claim' section: 

 

The Claimant is quoting Elliot vs Loake in order to assert that the Keeper can reasonably be assumed to be the Driver. This case reference has repeatedly been discredited in use in the Small Claims. In the case of Excel v M. X C8DP5C7T. Manchester County Court - 25/05/2017  the Judge in his closing remarks stated that using EvL does not bear any weight in the Small Claims Court as it was a Criminal case, and that the legal burden is on the Claimant to prove the balance of probabilities. 

 

 

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I am thinking of adding a section as follows:

 

The Contract:

 

  1. 1. The Claimant claims Breach of Contract. For there to be a contract with the driver there must be an offer, consideration and acceptance .
    In this situation the vehicle was parked in a bay with signage stating “Permit Holders Only. All vehicles must clearly display and valid permit within the windscreen of the vehicle” There is no offer to accept other than to display a permit for the bay the vehicle was parked in, and the signage for that bay is therefore ‘forbidding signage’, not an invitation to park on certain terms. It disallows other parking and could be construed as only applying to permit holders, not others who are forbidden from parking. If this is the case, it only offers to permit holders. This notice forbids any parking at all except by permit holders and is not an offer at all. It does not make a contractual offer, so there can be no breach of contract. This therefore means this is a landowner issue for trespass, and the agreement between PPC and landowner does not allow for the Claimant to collect for trespass issues.

 

  1. 2. In the case of C5GF17X2 Horizon Parking v Mr J. Guildford 23/11/2016 where the defendant was parked in an area for permit holders only District Judge Glen dismissed the claim “because the notice is a prohibition and claimants are not entitled to pursue for trespass, they are not the landowner.”

 

  1. 3. In the case of C8GF4C12 ES Parking Enforcement v Ms A. Manchester 29/11/2016 District Judge Iyer stated that the signage was forbidding, there was no mention of the word 'contract' on them. The word 'breach' was on the signage. As a result of this, the only person that could bring a claim was the landowner for trespass.
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also:

 

In the case of B4GGF26K6 – PCM(UK) -v- Mr Bull (& 2 others) 21/4/16 District Judge Glen stated in refeence to the “ No Parking at any time” sign that “This notice is an absolute prohibition against parking at any time, for any period, on the roadway. It is impossible to construct out of this in any way, either actually or contingently or conditionally, any permission for anyone to park on the roadway. All this is essentially saying is you must not trespass on the roadway. If you do we are giving ourselves, and we are dressing it up in the form of a contract, the right to charge you a sum of money which really would be damages for trespass, assuming of course that the claimant had any interest in the land in order to proceed in trespass.

 

and to add in the Summary:

  • The signage for the bay the vehicle was parked in (“Permit Holders Only”) is a ‘forbidding sign’ and does not constitute an offer of a contract to park, so there can be no contract to be in breach of, and the Claimant cannot claim against the Defendant for trespass.
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Just discovered this was supposed to have been sent by last Friday.

No sympathy expected, just advice at to course of action...

 

Do I get this off to the court today and hope that he Judge will still consider it?

 

Then turn up, take a verbal beating from the Judge and hope it goes my way, if not because of being an idiot, pay the sum immediately and have the CCJ removed from the register? 

 

Or do I contact Gladstones and offer to pay up the full amount of their claim as a result of being an idiot?

Will they be rubbing their hands with glee either way?

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you are a litigant in person certain leeway is given

please don't swear.

 

dx

 

please don't hit Quote...just type we know what we said earlier..

DCA's view debtors as suckers, marks and mugs

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

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Apologies, please delete my already censored profanity!

 

Dx, would you review my proposed additional statements in posts 118- 120 and let me know if you think all of this is good to go?

thanks in advance

Edited by jonnymango
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