PCM Windscreen PCN claimform - Sailsbury village - REsidential Permit fallen on Floor **WON**

[apahtan]

Hows this for the ParkingEye vs Beavis case:

The Defendant would like to point out that this car park can be fully distinguished from the details, facts, and location in the Beavis (2015) case. It is denied that at a residential site with residents parking with full authorisation at their own home, the claimant as a third party firm incentivised to issue penalties, have any overriding 'legitimate interest' (like there was in the Beavis case) nor complex contractual arrangement that can disengage Lord Dunedin's penalty rule.

Do you think that I should keep the points in my previous post or are they 'speculative' e.g. the unfair terms?

[apahtan]

Just going through all my documents. I don't believe I have received an NTK...

The first I knew of this was the TRACE debt recovery letters.

Edited March 4, 2019 by apahtan

[ericsbrother]

as far as "speculative" goes I would leave it in but be prepared to accept it is a dead end because the specific contract the parking co has with the landowner will decide this. However, the wording on the signage often means that there is no geinuine offer of terms to park and so any claim for monies due becomes an unlawful penalty.

No if it says permit holders only or no unauthorised parking or anything of that ilk then that is not a genuine offer of a parkig contract as you (or they) cannot perform to the contract and the signage is prohibitive in nature. the permit itself shows you are authorised and the fact it fell on the floor would be "de minimis" because the parking co should know who is and isnt issued with a permit and should operate a whitelist or at least consult their own lists of permits issued.

Now have the parking co sent a copy of the nTK in their documents? If they havent ask for it if you havent already.

I wopuld be tempted to start your WS by stating that their contract dates form 2004 and they ahve provided no evidence it was ever renewed, etc and say that you belive they have no locus standi in this matter. This wil put them to show that they do have an up to date agreement etc and there are other cases where the judge has decided that an open ended agreement still needs to be ratified where the parking co is going to sue motorists. there are examples on the Parking Prankster's blogspot, you should quote them ( parking co v smith, anytown CC feb 2012 case ref: 12xy34zz for example) and take a screenshot of the short report as  part of your bundle. that will be persuasive evidence and may mean that the claim falls at the first hurdle as the judge has agreed they have no right to make a claim.

Now what do the signs say the ATA is? if the signs are old it will say independent Parking committee and then you have them  as will and John have told the world that they are nowt to do with THEIR IPC and they will take action against anyone who sullied their good name. again, this can be found online so copy the page and add it to your bundle and reference it in your WS. This is not going to be a killer blow but bear in mind the above bit about open ended contracts, if they cant get their signs corrected regarding their obligations to be a member of a trade association righ then it is likely that they have not got a current contract/agreement. also, is the agreement with the management co or the landowner? usually the management co and that means the dotn have a contract because  the maagement co cant assume the rights of the owner to act as agents in such a situation and you require proof that the agents have the authority to employ a third party to do the work. some judges will just wave this through, others will be minded that the agents dont have the authority unless it is shown to them so a coin toss chnace with that.

your point 5 and 6 can be strengthened by stating that the signage isnt an offer of a contract to park but prohibitive in nature ( already mentioned) as the only way of being able to agree to its terms is to break them. The signge being prohibitive also menas that anyone not authorised to park there is a tre4spasser and that is a matter for the landowner as a separate issue and nothing to do with the parking co. You cna then say that  a contract which can only be formed by breaking it is an unfair contract under s62 of the CRA 2015 and thus not binding. Always quote the legislation where possible as no-one is going to look it up for you on the day.

 

point 8 could be a red herring if the parking co has a contract with the landowner and that trumps your lettings agency contract as they are also third parties employed not by the landowner so equally dodgy in this respect. however, if you can show that they are expressing the cntent of the lease or other agreement then it will trump the parking co's contract so look carefully into this and get the qwording absolutely spot on or you will just trip yourself up

[apahtan]

53 minutes ago, ericsbrother said:

and there are other cases where the judge has decided that an open ended agreement still needs to be ratified where the parking co is going to sue motorists. there are examples on the Parking Prankster's blogspot, you should quote them ( parking co v smith, anytown CC feb 2012 case ref: 12xy34zz for example) and take a screenshot of the short report as  part of your bundle. that will be persuasive evidence and may mean that the claim falls at the first hurdle as the judge has agreed they have no right to make a claim.

Sorry if I'm being dense, but I cant find a case where a judge required an agreement to be ratified on Parking Prankster, although I'm still looking.

Quote

Now what do the signs say the ATA is? if the signs are old it will say independent Parking committee and then you have them  as will and John have told the world that they are nowt to do with THEIR IPC and they will take action against anyone who sullied their good name. again, this can be found online 

Again, struggling to understand what you mean (sorry!). Not sure what I'm looking for, but, in the witness statement they refer to International Parking Community and in their own evidence bundle they have a sign which shows the Independent Parking Committee. I thought this was the so-called silver bullet? This would be enough to win the case...

 

Quote

is the agreement with the management co or the landowner? 

The agreement is with the freeholder although the parking is on a public road (I think). 

Quote

point 8 could be a red herring if the parking co has a contract with the landowner and that trumps your lettings agency contract as they are also third parties employed not by the landowner so equally dodgy in this respect. however, if you can show that they are expressing the content of the lease or other agreement then it will trump the parking co's contract so look carefully into this and get the qwording absolutely spot on or you will just trip yourself up

The lease doc has no mention of parking at all. However, the estate agents are the ones who hand out the parking permits...

[apahtan]

Updated the witness statement, please criticise. Red to show changes. Also still can't find relevant judgements about the need to ratify old contracts

Honestly, my WS seems like a jumble of arguments and some of the points I feel don't fully make sense to me. I've looked at other WS online and they are more legalese, it makes my head hurt. Also, I've read different things about what should be in a witness statement. It feels more like a defence that a statement of facts...

 

 

I, defendant, OF 1 Street, Postcode WILL SAY AS FOLLOW:

 

1.    The defendant is the recorded keeper of vehicle with registration of CARREG.

 

2.       Exhibited to this Witness Statement are the following documents which the defendant wishes to rely upon:

 

                                 i.            The sign (‘the alleged Contract’)

                               ii.            The parking permit

                             iii.            Definition of the terms ‘within’ as defined by the Oxford English Dictionary

                             iv.            A letter from the claimant discussing the appeals rejection

                               v.            A copy of the lease agreement the defendant was provided through the lettings agency – which supplied the parking permit

                             vi.            Protection of Freedoms Act 2012, Schedule 4

 

3.       The claimant’s document GSL1 purporting to be a contract with the freeholder of the relevant land dates from 2004. There is no evidence that the contract was ever renewed and the defendant believes that the claimant has no locus standi in this matter. [JUDGEMENT CASE]

 

4.       The claimant claims in paragraph 18 of the Witness Statement that ’signage (…) has been audited and approved by the International Parking Community (“the IPC”)’. However, under the supposed contract, shown in Figure 1 which the claimant claims the defendant entered into, the contract terms mention the “Independent Parking Committee”. The claimant cannot claim to be a member of an organisation which was no longer in existence. In documentation received by the defendant, the claimant has also claimed that they were a member of the International Parking Community.

 

5.       If the claimant cannot update the relevant signage regarding their membership to an accredited trade organisation, it is possible that the claimant may not have a current agreement with the landowner.

 

6.       Specifically, the claimant obtained the registered keeper details without following proper protocol as under the contract terms, the Independent Parking Committee is not a member of a Governmental Accredited Trade Organisation as required by Section 56, Schedule 4 of the Protection of Freedoms Act 2012. Therefore, details for the registered keeper were obtained unlawfully.

 

7.       The claimant claims in paragraph 11 of the Witness Statement that ‘The terms of the signage on the land are unambiguous in nature’. The defendant wholly disagrees with this statement. As can be seen in Figure 1 of the contract, the signage mentions ‘A valid parking permit (must be displayed) within the windscreen’. Figure 3 shows the definition of the word ‘within’ as defined by the Oxford English Dictionary is ‘inside’. That is, the permit must be placed inside the windscreen. This is physically impossible, therefore, this contract cannot be adhered to even with a permit as the claimant claims. Figure 4 shows an appeals rejection letter from the claimant. The wording used to place the permit is ‘affix to the windscreen’. Once again, this shows that the claimants own staff recognise the wording used in the signage as inappropriate.

 

8.       Furthermore, the signage of the contract is contradictory in nature. The signage mentions that ‘Parking is permitted for (valid permit holders only)’ which implies that parking without a valid permit is prohibited and so is not an offer of a contract. However, the signage later states any individual parking ‘agree(s) to pay consideration in the form of a parking charge in the sum of £100…’. This contradicts the claimants statement that the signage is unambiguous as this now implies an offer of contract.

 

9.       The signage is prohibitive as the only way to agree to the terms of the contract is to break them. Anyone not authorised to park is a trespasser and that is a separate matter for the landowner. A contract which can only be formed by breaking it is an unfair contract under section 62 of the Consumer Regulations Act 2015 (Figure 7) and thus not binding.

 

10.   It is also denied that the claimant has complied with Schedule 4, POFA 12 schedule 4 9(5) as the no Notice to Keeper was issued. Schedule 4 paragraphs 9(5) specify the time limits for serving a Notice to Keeper. If this is not complied with then the registered keeper cannot be held to account for the alleged debt of the driver. This paragraph clearly instructs the claimant that where no notice to the driver has been served (e.g. ANPR is used), the notice to keeper must be served no later than 14 days after the vehicle was parked. I have attached a copy of the POFA 12 schedule 4 as Figure 6.

 

11.   Since I have a permit, I am authorised to park. The fact that the permit was not displayed “within” the windscreen is de minimis as the claimant should know who has been issued permits.

 

12.   Also the claimant purports the debt has risen by virtue of the matter being passed to the company’s legal representatives, namely Gladstone’s Solicitors. In the case of Parking Eye v Somerfield Stores Ltd [2011] at Para 419 HHJ Hegarty QC states: It seems to me that, in the present case, it would be difficult for ParkingEye to justify, as against any motorist, a claim for payment of the enhanced sum of £135 if the motorist took the point that the additional £60 over and above the original figure of £75 constituted a penalty. It might be possible for ParkingEye to show that the additional administrative costs involved were substantial, though I very much doubt whether they would be able to justify this very large increase on that basis. On the face of it, it seems to me that the predominant contractual function of this additional payment must have been to deter the motorist from breaking his contractual obligation to pay the basic charge of £75 within the time specified, rather than to compensate ParkingEye for late payment. Applying the formula adopted by Colman J. in the Lordsvale case, therefore, the additional £60 would appear to be penal in nature; and it is well established that, in those circumstances, it cannot be recovered, though the other party would have at least a theoretical right to damages for breach of the primary obligation.’ The defendant asks the court to put the claimant to strict proof of the costs of £50 that have been incurred (that is the original PCN amounts to £60, they have added £50 as extra costs), and not double charging for legal services as has been the case in Gladstone’s Solicitors history amongst the courts, by issuing template claims against unaware motorists hoping to recover costs.

 

13.   The Defendant would like to point out that this car park can be fully distinguished from the details, facts, and location in the Beavis (2015) case. It is denied that at a residential site with residents parking with full authorisation at their own home, the claimant as a third party firm incentivised to issue penalties, have any overriding 'legitimate interest' (like there was in the Beavis case) nor complex contractual arrangement that can disengage Lord Dunedin's penalty rule.

 

[dx100uk]

have you moved since getting this ticket?

 

[apahtan]

No, I haven't moved.

I've dug up some information from the estate agent, this is not in the lease but posted online as a guide for student accommodation:

Certain areas of Hatfield require parking permits to park on the street if you are a resident in that street. Look out for signs on the street and take appropriate action. ...
As a resident you will receive parking permits by Parking Control Management Limited with maps and instructions on the areas affected. This year, the permits will be delivered to our offcie and you will be able to collect once we advise you that we have received them.

 

[Peterbard]

Just my two-penneth.

 

I would say the second part of the sign was an invitation to treat rather than one half of an enforceable agreement or contract.

But I dont think that matters. They must be pursuing a contractual breach of the parking permits T and Cs, because they ask  for a penalty payment.

it is not like a uIual ticket which must be displayed on say, council land, because you already had authority to park  under your previous agreement,.All they need to do is verify the fact. 

Why would you seek a further agreement for the same consideration. Even with no badge on display you ae still parking legally, unless they say that failing to display terminates the tenancy agreement.

[ericsbrother]

to try and clarify what i said about the signage, they MUST belong to an ATA and they do, they belong to the International Parking community but their signs say they belong to the Independent Parking committee,  a private company that isnt a n accredited trade association so that calls into doubt the validity of their signage as being an offer of a contract. now you seem to want tio correct their homework for them rather than sticking the knife in over points like this so you need to alter point 5 and state that you belive that as they claim to belong to an organisation that does not exist the rest of the signage is not a valid offer of terms as the POFA has a requirment that they cannot fulfil before they are able to create a liability for the supposed debt.

 

as for the other points regarding the name change of the IPC you ahve to look at all of the blogs for the past 3 years or so.

 

Now about the street where you were parked- i believe that John De Havilland is still the landlord for all of the old aerodrome land but he ay have donated some of it to the old Hatfield Poly (now uni) so you should try and find out who the landowner actually is and whether they signed up the parking cowboys (probably not). I would ask JdeH myself but he doesnt like me.

now wth regared to the liabulity created by the adherence to the POFA as it is your parking permit and effectively your residence then arguing you werent the driver is not going to impress so hammer home the unlawful nature of their conduct negating any liability as lord scarmand said that people may not profit from criminality by way fo a criminal compact. now yours is not a matter of criminality as regard to the non use of the POFA but you havent gone into their lack of planning permission for their signage which is a criminal offence so look ar the parking pranksters blog for dec 2016 and read  and copy the material provided by the link at the botton of the article. use both  in your evidnece and add tit to your stuff. again you say i believe they do not ahve planning consent etc and force them tio provide evidence they do. they willa grue that it is demeerd conssnt but the ATA guidance for size of sigsn wll mean that any sign that doesnt nedd planning is too small to pass the siganeg test. quite anything from the BPA as well as being the accepted code of practice as the iPC's code is just pants and they break their own rule at will.

 

pont 12 relies on what capacity they are chasing you. if they rely on  crating a keeper liability ( they ahev by virtue of the way they have progressed this demand) then they cnat add anuthing to the original invoice. if they had issued a NTD (screen ticket) then they can add their costs if this is quantified on the sign offering the rest of the contract as being a contractual matter as well. you need to ake the point that they have used para 9 for their NTK so they cant now decide that there is expressly  driver liability from the outset

flesh otu point 11 as suggested earlier on by saying they ahve a list of all the permit holders detaisl so they know that the veicle has an associated permit and there isnt an actual requirement to display it in any particular method so their claim is unjustified and  the breach of the offered terms would be "de minimis" as they have other methods of mitigating thier actions such as referring to the list of permit holders and their vehicles so any expense on their action is entirely due to their own incompetence.

point 8 is still too weak, you need to say that there isnt a geinuine offer of a contarct to aprk, it is prohibitive in nature and thus the claim is an unlawful penalty charge. again you need to read more about this so abck to the prankster's blog adn website. In the latter you will find plenty of reference cases and compelling  or persuasive case law. you need to read it all carefully even if it takwes you time to do so. refer to anything that appears to help and include it in your evidence bundle. there is a lot there you are missing but you also need to understand what it mansa s you are going to talk about it on the day (possibly) so us telling you what the  relevant info is wont help you fi you cant convey whay it is importnat to your defence to others.

magna carta? did she die in vain?

now get reading all of the pranksters blogs fro the last 4 years and use any that you think apply to your case and look out for the ones specifially flagged up.

[Peterbard]

Grief Eric, your scaring me to death and I dont have to attend.

Your knowledge on this is obviously far superior to mine in this area, however I would advise the OP to just state his case honestly and openly, perhaps use his LIP leeway to its best effect. I have no doubt he is in the right and I would expect the Judge to know the law.

 

No offence 

[ericsbrother]

yes, judges do gibe some allowance for Lip's but you still have to show them your evidence and do so at the time  documents have to be submitted by. turning up on the day with everything committed to memory wont help you regardless of how flawless that memory is.

i like to try adn get a logical flow to things so whe you are asked about a particular point you ahvent got round to yet it is easy to locate and then follow up on. the best laid plans often start to fall apart becsue the first thing you are asked is right at the bottom of your list and you do well to recover quicky fro that but all of the paperwork in a good order means you can jsut refer to say page 6  para 11 and then get yourself composed realy for the next question.

The Op's Ws is still a bit bitty and lacking in the subsatnce to the arguments. Basically you can throw the kitchen sink in as well jsut in case the judge decides to wander off topic a bit becuase of a minor point you havent really covered. i have had that on land onwership before

[apahtan]

Updated the ATA bit:

1.       If the claimant cannot update the relevant signage regarding their membership to an accredited trade organisation, it sheds doubt on whether the claimant may have a current agreement with the landowner. The claimant belongs to the International Parking Community, however, the signs as shown in figure X and even in the claimants’ own evidence bundle show that they belong to the Independent Parking Committee, this is a private company that is not an accredited trade association, which calls into doubt the validity of the signage as an offer of contract. As the signage claims the claimant belongs to an accredited trade association which does not exist, the rest of the signage is not a valid offer in terms of the Protection of Freedoms Act 2012 requirement that they cannot fulfil before they are able to create a liability for the supposed debt.

2.       Specifically, the claimant obtained the registered keeper details without following proper protocol as under the contract terms, the Independent Parking Committee is not a member of a Governmental Accredited Trade Organisation as required by Section 56, Schedule 4 of the Protection of Freedoms Act 2012. Therefore, details for the registered keeper were obtained unlawfully.

2 hours ago, ericsbrother said:

now wth regared to the liabulity created by the adherence to the POFA as it is your parking permit and effectively your residence then arguing you werent the driver is not going to impress so hammer home the unlawful nature of their conduct negating any liability as lord scarmand said that people may not profit from criminality by way fo a criminal compact. now yours is not a matter of criminality as regard to the non use of the POFA but you havent gone into their lack of planning permission for their signage which is a criminal offence so look ar the parking pranksters blog for dec 2016 and read  and copy the material provided by the link at the botton of the article. use both  in your evidnece and add tit to your stuff. again you say i believe they do not ahve planning consent etc and force them tio provide evidence they do. they willa grue that it is demeerd conssnt but the ATA guidance for size of sigsn wll mean that any sign that doesnt nedd planning is too small to pass the siganeg test. quite anything from the BPA as well as being the accepted code of practice as the iPC's code is just pants and they break their own rule at will.

@ericsbrother when you said parking pranksters blog, dec 2016 - the relevant case I found was this one: Graham Park Way 

It had a lot of similarities towards the way the signage is shown. I don't know if you were referring to that, but I think its not material relevant to the PoFA point you mentioned.

With respect to planning permission, I can find nothing to show that it was granted. The homes were built ~2009. I have called the council today and they have said that Bovis are the landowner.

 

[Peterbard]

Its clear that the parking company are there to enforce a penalty against those who seek to park when they have no right to do so.

Not against residents who have a perfect contractual right to park.

Admittedly they would not know about the resident's rights, if he failed to display his permit, but once this was demonstrated they should have withdrawn. There would be no offence left for them to [pursue.

They are there to enforce a parking restriction, not an untidy dashboard(sorry).

[apahtan]

Updated again. Once again, thanks for all your input, I know the deadline is closing and I'm feeling the pressure. 

Once again @ericsbrother, I am sorry but I need your help!

1. I can't find relevant info for lack of planning permission and criminality...
2. I believe I have included other points
3. Their agreement with the landowner claims they must be a member of an ATA, but if the signage is incorrect does that mean that agreement doesn't hold?

 

1.    I am the recorded keeper of vehicle with registration of CARREG.

 

2.       Exhibited to this Witness Statement are the following documents which I wish to rely upon:

 

                                 i.            The signage

                               ii.            Schedule 4 of the Protection of Freedoms Act 2012

                             iii.            The parking permit

                             iv.            Definition of the terms ‘within’ as defined by the Oxford English Dictionary

                               v.            Protection of Freedoms Act 2012, Schedule 4

 

Cannot find any judgements to show that old contracts need to be renewed

3.       The claimant’s document GSL1 purporting to be a contract with the freeholder of the relevant land dates from 2004. There is no evidence that the contract was ever renewed, and I believe that the claimant has no locus standi in this matter. [JUDGEMENT CASE]

 

Mentioning differences in IPC and validity of contract as ericsbrother mentioned

4.       The claimant (PCM UK) claims in paragraph 18 of the Witness Statement that ’signage (…) has been audited and approved by the International Parking Community’. Similarly, the signs as shown in Exhibit A1 and even in the claimants’ own evidence bundle show that they belong to the Independent Parking Committee. This is a private company that is not an accredited trade association, which calls into doubt the validity of the signage as an offer of contract. The claimant cannot claim to be a member of an accredited trade association which was not in existence at the time the breach of contract took place.

 

5.       If the claimant cannot update the relevant signage regarding their membership to an accredited trade organisation, it sheds doubt on whether the claimant may have a current agreement with the landowner. As the signage claims the claimant belongs to an accredited trade association which does not exist, the rest of the signage is not a valid offer in terms of the Protection of Freedoms Act 2012 requirement which PCM UK cannot fulfil before they are able to create a liability for the supposed debt.

 

Found a document from 2018 saying that the Independent Parking Committee is not on the ATA for DVLA

6.       In addition, I believe PCM UK lack planning consent for the signs. Planning consent is required to update the signs, which have not been changed since 2016 when the Independent Planning Committee changed names to United Trade and Industry Limited and ceased to be an Accredited Trade Association as of May 2018 according to Page 8 of the Release of Information from DVLA’s Registers (Exhibit A5).

 

Help needed for this point. BPA doesn’t list any size guidelines.

7.       According to the British Parking Association, signage needs to be of such size that planning permission is required.

 

8.       Specifically, the claimant obtained the registered keeper details without following proper protocol as under the contract terms, the Independent Parking Committee is not a member of a Governmental Accredited Trade Association as required by Section 56, Schedule 4 of the Protection of Freedoms Act 2012 (Exhibit A2). Therefore, details for the registered keeper were obtained unlawfully.

 

Tried to incorporate @ericsbrothers point – not sure

9.       Due to the unlawful nature of PCM’s conduct, any liability is negated as Lord Scarman said that people may not profit from criminality by way of a criminal conduct. Although PCM UK’s behaviour was not criminal, it was unlawful.

 

10.   The claimant claims in paragraph 11 of the Witness Statement that ‘The terms of the signage on the land are unambiguous in nature’. I wholly disagree with this statement. As can be seen in Exhibit A1, the signage mentions ‘A valid parking permit (must be displayed) within the windscreen’. Exhibit A3 shows the definition of the word ‘within’ as defined by the Oxford English Dictionary is ‘inside’. That is, the permit must be placed inside the windscreen. This is physically impossible, rendering it impossible to adhere to the contract as PCM UK even based on the conditions that PCM UK claim.

 

11.   Furthermore, the signage of the contract is contradictory in nature. The signage mentions that ‘Parking is permitted for (valid permit holders only)’ which implies that parking without a valid permit is prohibited and so is not an offer of a contract. However, the signage later states any individual parking ‘agree(s) to pay consideration in the form of a parking charge in the sum of £100…’.

 

Found parking prankster case that has similar issues with PCM signage

12.   The Claimant’s signage with the largest font at this site states “PARKING IS PERMITTED FOR: VEHICLES FULLY DISPLAYING A VALID PARKING PERMIT”. It is submitted that if this notice is attempting to make a contractual offer, then as it is forbidding it does not fulfil the basic requirement of a contract, which is that each party to the contract must offer valuable consideration to the other party, on clear terms capable of acceptance. In this case neither the Claimant, nor their principal the landowner, is offering anything to motorists. The notices cannot, therefore, reasonably be construed as having created a contractual relationship between the Claimant and the Defendant.

 

13.    The above point was recently tested in the County Court at High Wycombe, in the case of Parking Control Management (UK) Ltd v Bull & 2 Others (B4GF26K6, 21 April 2016), where District Judge Glen dismissed all three claims, stating in his judgment that:

 

“If the notice had said no more than if you park on this roadway you agree to pay a charge then it would have been implicit that PCM was saying we will allow you to park on this roadway if you pay £100 and I would agree with Mr Samuels’ first analysis that essentially the £100 was a part of the core consideration for the licence and was not a penalty for breach. The difficulty is that this notice does not say that at all. 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.”

 

While this is a County Court decision and therefore not binding, it is on all fours with the present case and may be considered as persuasive.

 

14.   In addition, the Consumer Rights Act 2015 rules that if signage has multiple interpretation the interpretation most favourable to the consumer applies. It is clear from this the signage with the largest font should apply.

 

15.   Additionally, the contract fails informational requirements for contracts established in the Consumer Contracts (Information, Cancellation And Additional Charges) Regulations 2013, enacted 13 June 2014.

 

16.   Any alleged contract would be a distance contract for services as defined in The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. 

 

17.   The signage is prohibitive as the only way to agree to the terms of the contract is to break them. Anyone not authorised to park is a trespasser and that is a separate matter for the landowner. A contract which can only be formed by breaking it is an unfair contract under section 62 of the Consumer Regulations Act 2015 (Figure 7) and thus not binding.

 

18.   The claimant has indicated they are pursuing the registered keeper of the vehicle according to paragraph 9 of the witness statement. Therefore, the claimant cannot now decide there is driver liability from the outset.

 

19.   It is also denied that the claimant has complied with Schedule 4, PoFA 12 schedule 4 9(5) (Exhibit A2) as no Notice to Keeper was issued. Schedule 4 paragraphs 9(5) specify the time limits for serving a Notice to Keeper, nor has the claimant provided any evidence that a Notice to Keeper was sent. If this is not complied with then the registered keeper cannot be held to account for the alleged debt of the driver. This paragraph clearly instructs the claimant that where no notice to the driver has been served (e.g. ANPR is used), the notice to keeper must be served no later than 14 days after the vehicle was parked.

 

20.   Since I have a permit, I am authorised to park. The permit was visible from outside the vehicle as it had fallen into the passenger footwell. The fact that the permit was not displayed “within” the windscreen is “de minimis” as the claimant should know who has been issued permits and PCM UK should have other methods of obtaining permit details such as referring to the list of permit holders, meaning any expense on their action is due to their own incompetence.

 

21.   Also the claimant purports the debt has risen by virtue of the matter being passed to the company’s legal representatives, namely Gladstone’s Solicitors. In the case of Parking Eye v Somerfield Stores Ltd [2011] at Para 419 HHJ Hegarty QC states: It seems to me that, in the present case, it would be difficult for ParkingEye to justify, as against any motorist, a claim for payment of the enhanced sum of £135 if the motorist took the point that the additional £60 over and above the original figure of £75 constituted a penalty. It might be possible for ParkingEye to show that the additional administrative costs involved were substantial, though I very much doubt whether they would be able to justify this very large increase on that basis. On the face of it, it seems to me that the predominant contractual function of this additional payment must have been to deter the motorist from breaking his contractual obligation to pay the basic charge of £75 within the time specified, rather than to compensate ParkingEye for late payment. Applying the formula adopted by Colman J. in the Lordsvale case, therefore, the additional £60 would appear to be penal in nature; and it is well established that, in those circumstances, it cannot be recovered, though the other party would have at least a theoretical right to damages for breach of the primary obligation.’ I asks the court to put the claimant to strict proof of the costs of £60 that have been incurred (that is the original PCN amounts to £100, they have added £60 as extra costs), and not double charging for legal services as has been the case in Gladstone’s Solicitors history amongst the courts, by issuing template claims against unaware motorists hoping to recover costs.

 

22.   I would like to point out that this car park can be fully distinguished from the details, facts, and location in the Beavis (2015) case. It is denied that at a residential site with residents parking with full authorisation at their own home, the claimant as a third party firm incentivised to issue penalties, have any overriding 'legitimate interest' (like there was in the Beavis case) nor complex contractual arrangement that can disengage Lord Dunedin's penalty rule.

[apahtan]

Updated. Will probably post this today . Added in paragraph 8 as PCMs contract with freeholder states they will operate in accordance with BPA and AOS Code of Practice

I, defendant, OF 1 Street, Postcode WILL SAY AS FOLLOW:

 

1.       I am the recorded keeper of vehicle with registration of CARREG.

 

2.       Exhibited to this Witness Statement are the following documents which I wish to rely upon:

 

                                 i.            Exhibit A1: The signage

                               ii.            Exhibit A1.2: A contract between the claimant and the landowner

                             iii.            Exhibit A2: Schedule 4 of the Protection of Freedoms Act 2012

                             iv.            Exhibit A3: Definition of the terms ‘within’ as defined by the Oxford English Dictionary

                               v.            Exhibit A4: The parking permit that I own

                             vi.            Exhibit A5: Section 62 of the Consumer Rights Act 2015

                            vii.            Exhibit A6: Release of information from DVLA’s registers, page 8

 

3.       The claimant’s document GSL1 purporting to be a contract with the freeholder of the relevant land dates from 2004. There is no evidence that the contract was ever renewed, and I believe that the claimant has no locus standi in this matter.

 

4.       I do not believe that this operator has any proprietary interest in the land such that it has no standing to make contracts with drivers or to pursue charges for breach in its own name. I contend that they merely hold an agreement to maintain signs and to issue 'tickets' as a deterrent to car park users. I put the operator to strict proof otherwise because it cannot be assumed that any agent on site has any more than a bare licence.
I require an unredacted, contemporaneous copy of the landowner contract (including the User Manual which forms a vital part of that contract). This is required so that I may see the definition of services provided by each party to the agreement, as well as any exclusions (e.g. exempt vehicles, users, days or times) as well as defined grace periods; the land boundary and the areas or specific bays enforced; the various contraventions and confirmation of the agreed ‘charge’ which may or may not be £100.
Regarding Part A, Section 7.3 of the BPA Code of Practice, I require evidence of full compliance:
“The written authorisation must also set out:

 

                                 i.            The definition of the land on which you may operate, so that the boundaries of the land can be clearly defined

                               ii.            Any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation

                             iii.            Any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement

                             iv.            Who has the responsibility for putting up and maintaining signs

                               v.            The definition of the services provided by each party to the agreement.''

 

 

5.       The claimant (PCM UK) claims in paragraph 18 of the Witness Statement that ’signage (…) has been audited and approved by the International Parking Community’. Similarly, the signs as shown in Exhibit A1 and even in the claimants’ own evidence bundle show that they belong to the Independent Parking Committee. This is a private company that is not an accredited trade association, which calls into doubt the validity of the signage as an offer of contract. The claimant cannot claim to be a member of an accredited trade association which was not in existence at the time the breach of contract took place.

 

6.       If the claimant cannot update the relevant signage regarding their membership to an accredited trade organisation, it sheds doubt on whether the claimant may have a current agreement with the landowner. As the signage claims the claimant belongs to an accredited trade association which does not exist, the rest of the signage is not a valid offer in terms of the Protection of Freedoms Act 2012 requirement which PCM UK cannot fulfil before they are able to create a liability for the supposed debt.

 

7.       In addition, I believe PCM UK lack planning consent for the signs. Planning consent is required to update the signs, which have not been changed since 2016 when the Independent Planning Committee changed names to United Trade and Industry Limited and ceased to be an Accredited Trade Association as of May 2018 according to Page 8 of the Release of Information from DVLA’s Registers (Exhibit A6).

 

8.       Breach of BPA code, therefore nullifying any agreement with the landowner.

According to the contract provided by the claimant (Exhibit A1.2), the freeholder specifies that the operation run by PCM UK “will be operated in accordance with the BPA (British Parking Association) and AOS (Approved Operator Scheme) Code of Practice.”

As mentioned above, the contract which the claimant has provided fails to comply with Section 7.3 of the BPA code of practice. In addition, the signage used fails to comply with Section 18.7 “You should display the … AOS logos at all sites. This will help the public to see that you are a legitimate operator.” The signage refers to an organisation which is not an accredited trade association. Since the claimant fails to adhere to the terms and conditions of their agreement with the landowner, the claimant has no locus standi in this matter.

 

 

9.       The Court’s attention is drawn to the case of Andre Agassi v S Robinson (HM Inspector of

Taxes). Whilst not wholly aligned to the issues in this case it has been produce because of the principle it extols that no one should profit from their unlawful conduct. The Court’s attention is drawn in particular to paragraph 20 of the Transcript of that case “It is common ground that, whatever costs may be recoverable by a litigant in respect of profession services such as those provided by Tenon to the appellant, they cannot include the cost of any activities which are unlawful”. Paragraph 28 continues - “cannot on any view recover the cost of activities performed by Tenon which it was not lawful for them to perform.” In this case it was not lawful for the Claimant to have in place its signs upon which it relies for the formation of an asserted contract with the Defendant.

 

10.   The claimant claims in paragraph 11 of the Witness Statement that ‘The terms of the signage on the land are unambiguous in nature’. I wholly disagree with this statement. As can be seen in Exhibit A1, the signage mentions ‘A valid parking permit (must be displayed) within the windscreen’. Exhibit A3 shows the definition of the word ‘within’ as defined by the Oxford English Dictionary is ‘inside’. That is, the permit must be placed inside the windscreen. This is physically impossible, rendering it impossible to adhere to the contract as PCM UK even based on the conditions that PCM UK claim.

 

11.   Furthermore, the signage of the contract is contradictory in nature. The signage mentions that ‘Parking is permitted for (valid permit holders only)’ which implies that parking without a valid permit is prohibited and so is not an offer of a contract. However, the signage later states any individual parking ‘agree(s) to pay consideration in the form of a parking charge in the sum of £100…’.

 

12.   The Claimant’s signage with the largest font at this site states “PARKING IS PERMITTED FOR: VEHICLES FULLY DISPLAYING A VALID PARKING PERMIT”. It is submitted that if this notice is attempting to make a contractual offer, then as it is forbidding it does not fulfil the basic requirement of a contract, which is that each party to the contract must offer valuable consideration to the other party, on clear terms capable of acceptance. In this case neither the Claimant, nor their principal the landowner, is offering anything to motorists. The notices cannot, therefore, reasonably be construed as having created a contractual relationship between the Claimant and the Defendant.

 

13.    The above point was recently tested in the County Court at High Wycombe, in the case of Parking Control Management (UK) Ltd v Bull & 2 Others (B4GF26K6, 21 April 2016), where District Judge Glen dismissed all three claims, stating in his judgment that:

 

“If the notice had said no more than if you park on this roadway you agree to pay a charge then it would have been implicit that PCM was saying we will allow you to park on this roadway if you pay £100 and I would agree with Mr Samuels’ first analysis that essentially the £100 was a part of the core consideration for the licence and was not a penalty for breach. The difficulty is that this notice does not say that at all. 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.”

 

While this is a County Court decision and therefore not binding, it is on all fours with the present case and may be considered as persuasive.

 

14.   In addition, the Consumer Rights Act 2015 rules that if signage has multiple interpretation the interpretation most favourable to the consumer applies. It is clear from this the signage with the largest font should apply.

 

15.   Additionally, the contract fails informational requirements for contracts established in the Consumer Contracts (Information, Cancellation And Additional Charges) Regulations 2013, enacted 13 June 2014.

 

16.   Any alleged contract would be a distance contract for services as defined in The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. 

 

17.   The signage is prohibitive as the only way to agree to the terms of the contract is to break them. Anyone not authorised to park is a trespasser and that is a separate matter for the landowner. A contract which can only be formed by breaking it is an unfair contract under section 62 of the Consumer Rights Act 2015 (Exhibit A5) and thus not binding.

 

18.   The claimant has indicated they are pursuing the registered keeper of the vehicle according to paragraph 27 of the witness statement. Therefore, the claimant cannot now decide there is driver liability from the outset.

 

19.   It is also denied that the claimant has complied with Schedule 4, PoFA 12 schedule 4 9(5) (Exhibit A2) as no Notice to Keeper was issued. Schedule 4 paragraphs 9(5) specify the time limits for serving a Notice to Keeper, nor has the claimant provided any evidence that a Notice to Keeper was sent. If this is not complied with then the registered keeper cannot be held to account for the alleged debt of the driver.

 

20.   In addition, the claimant obtained the registered keeper details without following proper protocol as under the contract terms, the Independent Parking Committee is not a member of a Governmental Accredited Trade Association as required by Section 56, Schedule 4 of the Protection of Freedoms Act 2012 (Exhibit A2). Therefore, details for the registered keeper were obtained unlawfully.

 

21.   Since I have a permit (Exhibit A4), I am authorised to park. The permit was visible from outside the vehicle as it had fallen into the passenger footwell. The fact that the permit was not displayed “within” the windscreen is “de minimis” as the claimant should know who has been issued permits and PCM UK should have other methods of obtaining permit details such as referring to the list of permit holders, meaning any expense on their action is due to their own incompetence.

 

22.   Also, the claimant purports the debt has risen by virtue of the matter being passed to the company’s legal representatives, namely Gladstone’s Solicitors. In the case of Parking Eye v Somerfield Stores Ltd [2011] at Para 419 HHJ Hegarty QC states: It seems to me that, in the present case, it would be difficult for ParkingEye to justify, as against any motorist, a claim for payment of the enhanced sum of £135 if the motorist took the point that the additional £60 over and above the original figure of £75 constituted a penalty. It might be possible for ParkingEye to show that the additional administrative costs involved were substantial, though I very much doubt whether they would be able to justify this very large increase on that basis. On the face of it, it seems to me that the predominant contractual function of this additional payment must have been to deter the motorist from breaking his contractual obligation to pay the basic charge of £75 within the time specified, rather than to compensate ParkingEye for late payment. Applying the formula adopted by Colman J. in the Lordsvale case, therefore, the additional £60 would appear to be penal in nature; and it is well established that, in those circumstances, it cannot be recovered, though the other party would have at least a theoretical right to damages for breach of the primary obligation.’ I asks the court to put the claimant to strict proof of the costs of £60 that have been incurred (that is the original PCN amounts to £100, they have added £60 as extra costs), and not double charging for legal services as has been the case in Gladstone’s Solicitors history amongst the courts, by issuing template claims against unaware motorists hoping to recover costs.

 

23.   I would like to point out that this car park can be fully distinguished from the details, facts, and location in the Beavis (2015) case. It is denied that at a residential site with residents parking with full authorisation at their own home, the claimant as a third party firm incentivised to issue penalties, have any overriding 'legitimate interest' (like there was in the Beavis case) nor complex contractual arrangement that can disengage Lord Dunedin's penalty rule. In fact, I own a parking permit which was visible from out of the vehicle. One of the key points of the Beavis case was the charge was necessary to deter overstaying. Therefore, as there is no ‘legitimate interest’ on the part of the claimant, this charge is an unenforceable penalty.

Edited March 5, 2019 by apahtan

[ericsbrother]

point 19- is that true or is it that the communication failed to fulfil the requirement of the pofa to be considered a valid ntk?

point 22,  again the pofa is clear on this, only the original sum in the ntk may be demanded. if they are not relying on para 9 of the pofa to create a keeper liability then they cannot lawfully obtain the keeper details from the dvla' kadoe system.

the charing the aditional extras os not limited to gladdys, they all do it but as gladdys and bwl are the most oft used sols in these matters they will be aware that it is an abuse of process

[apahtan]

Thanks for the additional info! Should I post this special delivery as it needs to get to Gladdys/Court by the 7th

[ericsbrother]

1st will do, get a pop from the post office counter. it is deemed delivered 2 days after posting so no need to spend money on special

[apahtan]

For cases that I have mentioned, should I include the whole transcript or the front page? I will bring the full transcript to the hearing

[dx100uk]

just the front they can look it up themselves if they want too

and ofcourse the 'bit' you relate too.

[ericsbrother]

I disagree, the whole transcript has to included in your evidence bundle, some judges are very particular on that as they woild not like the opposition using it as an excuse for an adjournment. Copy of the POFA and the like can just be taken with you and the same goes with the 2007 planning act for the signage planning permission argument.

Now as they will put in a witness statement that the person who wrote it wont be there you can attack the for not having someone to cross examine if you find flaws in their testimony. Again, the judge wont g for an adjournemtn but may well decide that their WS isnt admissable if you find enough propblems. That will give them nothing to talk about and you win the day. happens quite a lot when people prepare and ask the right questions. when you get their WS we can help you pick out the suspect bits and go on the attack

[apahtan]

Summary of Witness Statement:

1.       Parking charge issued due to contravention of T&Cs – no valid permit on display

2.       Paragraph #5: Signage quote: “Vehicles fully displaying a valid parking permit within the windscreen of the vehicle, providing …”

3.       Defendant raises issue with the authority by which my Company has issued the above charge. Document GSL1 – copy of contract with Landowner

4.       Goes on to mention that Company has authority to enforce parking charges. Quotes Beavis and VCS vs HMRC “made it clear that a contracting party need not show they have a right to do what they have promised in the performance of a contract, nor is the agreement between Operator and Landowner of any relevance.”

5.       Quotes Lord Justice Lewison in VCS vs HMRC 2013

6.       Paragraph #11: Defendant suggests there was no contract, this is not agreed with. Terms of signage are unambiguous in nature…

7.       Rules of interpretation require simply that the parties knew of their obligations to one-another. The Defendant was offered to use the Land and thereafter either follow the rules and park for free or in breach of the rules and agree to pay £100.

8.       Quotes Alder v Moore – court concluded that one should consider obligations imposed by the agreement, not the terminology used.

9.       Principles in the case are same as Parking Eye (vs Beavis), except the rule breached was that motorists must leave within 2 hours.

10.   #Paragraph 18 – Signage (…) has been approved by the International Parking Committee.

11.   Quoted a letter I sent, where I mentioned their stupidity !

12.   #Para 26: Company is an Accredited Operator of International Parking Committee and goes on to quote the code.

13.   Para 27: In view of Defendant not paying charge within the initial 28 days or the further 28 days allowed after the NtK has been sent, the charge has become overdue and £60 added.

 

 

a)       Already included Beavis transcript + Beavis sign in my exhibits

b)      Can I be sued as both the driver and the keeper – because it doesn’t seem to concretely mention what they are suing me as.

c)       The contract they have – attached – mentions “The scheme will be operated in accordance with the BPA (British Parking Association) and AOS (Approved Operator Scheme) Code of Practice. Could this provide a line of defence – i.e. they were not following their own contract, therefore have no authority?

[ericsbrother]

to answer your questions, b and c,

 

They have to say in waht capacity they are suing you. You may have a liability as the driver (if they win all of the other points) but to create a keeper liability they have to follow the protocols of the POFA and use the correct wording on their letters and the correct time frame.

 

Yes they have to follow the code of their ATA (the BPA) as that ACOP is binding on them otherwise they fail to fulfil the requireemtn sof the POFA. As they are members of the IPC then to strictly adhere to the BPA CoP may mean they arent following the IPC one so you need to look at bothe and write down all of the difference and be prepared to ask which of the clashing points they have applied. I wouild suggest that they ended their contract when they changed to the IPC and you want to see the new version.

 

Now they signed their deal with Bovis Homes in 2004 so what evidence is there that (1) Bovis still own the land where you parked as they usually sell it on and (2) the contract is still in force. It doesnt have an idication of how long it is in place so is it unfair to assume it is only for a week or a year?

 

The most important thing about this is that they have written that their interest is very limited and they cant actually sue you for not showing a permit as the comtrcat isnt for parking management it is for enforcing 2 particular points that are not an offer of parking so no contract can be formed between the motorist and PCM. Bags of previous cases on this so look some up and dos creen shots of what you find. parking pranksters blogspot and web site will be first port of call.

[apahtan]

On 18/03/2019 at 08:52, ericsbrother said:

 as the comtrcat isnt for parking management it is for enforcing 2 particular points that are not an offer of parking

Just to clarify - the contract they've shown says "We will require PCM UK to undertake the management and/or enforcement of parking on the land specified above"

The contract explicitly says that they are required to manage parking?

[dx100uk]

and the date of that?