EPS ANPR PCN - ignored LOC now Claimform - - 29 sec stay! - Shoulder of Mutton , Birmingham ***Claim Discontinued***

[dx100uk]

read what is says in my last post carefully....

 

 

dx

 

[kfdh1962]

completed small claims direction questionnaire, these are being sent off today.

 

i have redacted personal details other than my name and address on solicitors copy , assuming that is okay to do having already told them all communication to me needs to be to be in writing. 

 

have attached the information sent to me via gladdy's,

 

there were one or two other camera images but just showed more of the same within the times on the PCN

 

 

 

CPR Retur n.pdf

[lookinforinfo]

Thank you for posting up their PCN. They have made a major blunder by sending you the wrong PCN. This one is meant for people who have hired  their car.

They have given you 21 days to pay the amount rather than 28 days. And they are pursuing you under s14 when it should be section 9 [f]  of Schedule 4.

 

The PCN is not compliant with PoFA  which means that the keeper is not liable to pay the amount -only the   driver is liable. But in this case as you are being pursued for the wrong section of the Act I would think that even if you were the driver you would not be liable. 

 

I cannot think why they would even begin a case against you when you just drove around their car park but I would threaten them with breaching your GDPR which these days can be a couple of thousand pounds.

 

In their contract, non patrons  have a grace period of 5 minutes. By not stopping there you were surely a non patron.

 

[kfdh1962]

are these points you highlight things to include in the witness statement ?

 

i sent back the completed questionnaire with copies to gladdy's all recorded delivery last week , no updates on MCOL yet 

 

Edited November 21, 2022 by dx100uk
unnecessary previous post quote removed

[dx100uk]

If it gets that far, yes 

 

Dx

[kfdh1962]

hi 

i received a copy of paperwork just a day or 2 ago from Northampton county courts  , i don't have that to hand right now but essentially it was giving the claimant until November 27th to pay a fee of £27 and provide all the information requested by the courts otherwise risk case being struck out.

 

i will post up exact wording and details later , have been laid up with the flu so not got around to this over the last few days  

 

[dx100uk]

Should also have a date for witness statement exchange too ??

 

Dx

[kfdh1962]

DX , there was  date ref exchange which i think it was December 12th or 13th but will check that date when i get home later and confirm 

Edited November 16, 2022 by dx100uk
unnecessary previous post quote removed

[dx100uk]

well thats the most important bit!!

dont leave your ws to the last minute

 

100's of relevant threads here already.

[kfdh1962]

so paperwork was confirming receipt of allocation to small claims track , hearing date confirmed for March 2023, all documents to be relied on in the hearing witness statements etc to be delivered to courts and other parties by December 13th 2022

[dx100uk]

contract says 5 mins grace period.

 

who signed the contract on behalf of EPS please and whats the date?

 

you have redacted too much.

 

dx

 

[kfdh1962]

the contract document already redacted on the copy i received , i didn't make any further redactions. I am not able to determine who signed for either the client or EPS

 

the dates alongside the redacted signature are showing as 03 July 2019 for client and 19 july 2019 for EPS

[kfdh1962]

i am currently working on my witness statements taking some guidance from those on other threads were there are some similar issues to reference, and will share that for comment in due course 

 

thinking back to a previous comment from lookingforinfo , where it was mentioned that the PCN is incorrect in that they had quoted section 14 instead of section 9 and only provided 21 days.

 

how is that categorised ? non compliant PCN, then detail the pcn issues i.e wrong section , insufficient time periods etc 

 

 

[lookinforinfo]

I have just looked over the contract with the Shoulder of Mutton. It looks as if the pub did not use a solicitor when the agreement was drawn up as it so biased in favour of EPS.

One interesting thing is that initially the contract is for 48 months which in my book means 2 years. yet further down in the agreement  point 2,2 it states that the agreement is for four years.

 

Another interesting point for Judges to ponder is  in point 1 .A    " PCN -parking charge notice means a rate set at a level to deter motorists from parking at the site in breach of the enforcement policy". That sure sounds like a penalty to me.

It then carries on to say that any  vehicle that does not comply with the enforcement policy is considered  a nuisance [to the extent of trespassing]. Strange that he should call those motorists as trespassing since only the land owner can pursue the motorist not his monkey.

 

The other thing about thee contract as dx100uk pointed out is that as the signatories have been redacted we do not know who signed the document or indeed if anyone signed it. You should know who signed it so that the Court as well as yourself can be assured as far as possible that the contract is valid.  

It is doubtful in any case since the length of term of the contract is incorrect, does the contract include a penalty clause and shouldn't the

 "Parking Management Agreement " come before the contract was signed, not after.  It begs the question as to whether the Shoulder of Mutton signee [if there ever was one] was even  shown  the lower part of the agreement.

[brassnecked]

The clause Enforcement Charges appears to be an attempt to go behind POFA by stating the registered "owner" shall be liable for a £60 Administration Charge, that's killed by Beavis anyway as the £100 is deemed to factor in all recovery costs, other problem with that is the Owner might not be the Keeper, especially if vehicle is lease, that implies the Finance company is liable for the PCN and Unicorn Feed tax if its a PCP vehicle.

Looks like that contract was dreamed up by a Muppet.

[Gick]

Sorry LFI 48 months is 4 years according to all calendars that I have seen. 

[dx100uk]

[lookinforinfo]

Thanks Gick you spotted my deliberate mistake. just checking that people do read my  posts.

 

Honestly?  You caught me bang to rights. Put he cuffs on and I'll come quietly Guv.

[kfdh1962]

to brassnecked's point , the vehicle was a PCP vehicle on the date in question , and so the registered keeper and owner at that time are not one and the same. The owner at that time would have been black horse finance 

Edited December 2, 2022 by kfdh1962

[brassnecked]

Might be useful for a WS if that Registered Owner could be used against them by bringing the contract into disrepute LFI and FTM Dave might have some thoughts on that.

 

[kfdh1962]

 

 

 

 

 

 

i haven't been able to spend much time on this over the last few days due to a serious family illness , which is likely to consume a lot of time over the coming days also, but with my impending deadline i need to try and get this completed. 

 

Looking at some other threads and the WS and comparing similar issues in my case i have drafted the following which i would appreciate some input on from the very knowledgeable people here

 

 

IN THE COUNTY COURT                                                Claim No.: xxxxxxx

 

Between

 

 

EURO PARKING SERVICES LIMITED

(Claimant)

 

- and –

 

 

xxxxxxxxxxxxxx

(Defendant)

 

 

_______________________

WITNESS STATEMENT

¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯

 

1. I, xxxxxxxxx of xxxxxxxxxx am the Defendant in this claim. I represent myself as a litigant in-person, with no formal legal training. Everything in the following statement is true to the best of my knowledge and belief.

 

2. In my statement I shall refer to exhibits within the evidence section supplied in this bundle, referring to page and reference numbers where appropriate.

 

3. I was registered keeper of the vehicle in question in this case.

 

4. I received a Parking Charge Notice (PCN) Notice to Keeper (NTK) Issue date 23/02/2021. (Exhibit XX01). The PCN states: “ Contravention Reason: PARKING FOR PATRONS ONLY WHILST ON THE PREMISES. The PCN then goes on to state that the driver of the vehicle is liable to the Parking Charge. Following several months of a number of intimidating letters from the Claimant including mention of additional costs, debt collection, court proceedings, CCJs and effects on employment. I received an N1 Claim Form on 08/07/2022.

 

 

 

NO KEEPER LIABILITY

 

5. The Particulars of Claim do not clarify in what capacity they believe I am liable but state that the Defendant is “liable as the driver or keeper” of the vehicle. This appears to be “fishing” for liability.

 

5.1.  To transfer liability of the alleged debt from the driver to the keeper, in their PCN the Claimant must include the wording at Schedule 4 s9 [2][f] this "(if all the applicable conditions under this Schedule are met)" but they have not. That in itself makes it non-compliant.

 

 

 

INCORRECT PCN , PoFA schedule 4 Non-compliance

 

6. The PCN NTK  (exhibit XX-01)issued by is pursuing the driver/keeper under section 14  Section 4 of PoFA. The vehicle is not a hire car and so the PCN should have been issued under section 9 of schedule 4. The time identified for payment states 21 days  is provided for the driver/keeper to make the requested payment. The required time period provided for payment should be 28 days. The PCN is non compliant with the requirements under PoFA

 

 

 

LOCUS STANDI

 

7. The Order for Parking Management Services between Euro parking Services (hereby known as EPS) and The Shoulder of Mutton Pub dated 02/07/22 with a defined period of 4 years thus covering the date of the alleged offence. (exhibit XX-02).

 

7.1. Definition of "Relevant contract” from PoFA 2 [1] means a contract (including a contract arising only when the vehicle was parked on the relevant land) between the driver and a person who is— (a)the owner or occupier of the land; or (b) authorized, under or by virtue of arrangements made by the owner or occupier of the land, to enter into a contract with the driver requiring the payment of parking charges in respect of the parking of the vehicle on the land. In the contract the Claimant is unable to distinguish whether the client is the land owner, the legal occupier or the managing agent.  The Claimant is put to strict proof of the person/company who signed as the client and whether or not they are the landowner, and if not the landowner then the Claimant is put to strict proof that the signee had permission to sign on behalf of land owner

 

7.2. According to Companies Act 2006, Section 44, a contract to be valid requires a director from each company to sign and then two independent witnesses must confirm those signatures.

 

7.2.1. The fact that no witness signatures are present means the deed has not been validly executed. Therefore, there can be no valid contract established between Euro Parking Services and the motorist in any event.

 

7.2.2  The names and positions and signatures on the Order for Parking Management services, for both the “client” and EPS, have been redacted.  The Claimant is put to strict proof of who actually signed the document and that they are directors of the client company and EPS.

 

 

7.3 The order for parking management services (exhibit XX-02) defines a free stay period, against which it states that non patrons have a grace period of 5 minutes, and that parking charges will only apply if that term is breached.  Therefor, even if a valid contract existed (which it does not) , no breach would have occurred as the EPS PCN identifies the time period of the alleged breach to be29 seconds.

 

7.5.  The contract is governed by the law of England and Wales so is unlawful since it contains a notification that extra charges of £60 can be charged.  This is contrary to Schedule 4 of the Protection of Freedoms Act 2012 and the Parking (Code of Practice) Act 2019.

 

 

ILLEGAL SIGNAGE

 

8. After receiving the claim form I subsequently submitted my CPR 31.14 request, in which I requested copies of the claimant's planning permission granted for car park signage etc  under the Town and Country Planning Act 2007. That proof was not provided with the claimant simply stating that it could be provided if required. Surely if the claimant had such permission there is no reason not to supply the information requested, other than to avoid exposing that no such permission exists.  The Claimant is put to strict proof that such planning consent for the site in question.

 

8.1. After checking Sandwell Councill’s website for details of planning permission, I have found out that there is NO planning permission granted for car park signage or ANPR/CCTV for the Shoulder of Mutton Pub therefore making them illegal as lack of planning permission is a criminal offence under the Road Traffic Acts 1962 and 1991 and no contract can be performed where criminality is concerned.

 

8.2.  The Claimant is supposed to comply with the law and the IPC Code of Conduct and they have done neither.  The new government Private Parking Code of Practice draws attention as well to s14.1 [g]  "g) responsibility for obtaining relevant consents e.g. planning or advertising consents relating to signs."

 

 

INADEQUATE SIGNAGE

 

9.1. In the information provided by the claimant they have provided prints of the car park signage rather than actual pictures, however these images provide no real context or picture of what the motorist actually sees when approaching the land in question. The signage in general is not complaint with the requirements of the BPA Code 2012 or with Schedule 4 of the Protection of Freedoms Act 2012 both in respect to placement and visibility both in daylight or after dark.

 

 

9.2  I would like to draw the courts attention to the attached photos which show the reality for the motorist and what a they (exhibit XX_04). When approaching along the Birmingham Road from the direction of the Market PlaceTraffic island (as the driver did) the photos I have provided taken in broad daylight clearly show that there is no signage at all at the entrance to the car park, and so there is no indication on approach that this is private parking land. The absence of the required entrance signage meant that the driver did not know the terms or restrictions at the time they committed themselves to enter the car park. In the BPA guidance to members states that a specific sign should be placed at the entrance to the site which will summarise the enforcement regime and notify the driver that specific terms and conditions will apply on site. It further states that any such entrance sign should be visible to the driver as they approach and before they enter any site.

 

9.3 I Use the terms “entrance” and “car park” loosely. As well as an absence of entry signage, there is no boundary fencing or barriers that would indicate the land belonged to the Shoulder of Mutton Pub, nor were there any clearly marked spaces to identify it as a car park and not simple hard standing. With an absence of appropriate signage , boundary fencing and clearly marked spaces, to the casual observer (an/or  a stranger to the area ) it is not clear that this is a private car park nor is it clear which business (if any) that the land belongs to (see exhibit XX-05).

 

9.4  Additional signage and lighting around the car park is also inadequate. Placing a small number of signs where they are difficult to spot shows that EPS Parking's objective is not to sensibly manage a car park, but rather to find excuses to send out as many of their PCNs as possible.

 

9.5 At the time of the incident 6:18pm and it was dark. Any signs present were not clearly visible due poor placement and lack of lighting. Signs 1, 2 and 3 indicated on the site plan (exhibit XX-06) were  too far away from the position of the to be clearly visible. Those signs were not illuminated in any way, there was no direct lighting on them , and no  indirect lighting on the car park. Lighting from adjacent buildings does not sufficiently illuminate the areas where these signs are placed.

 

9.6. The large “patrons only” sign is mounted on an external wall of the pub. As well as not being visible when approaching from the direction from Marketplace island it’s placement on the wall makes it difficult for the driver to see from within the car depending on the vehicles position on the car park.  From the picture (Exhibit XX-07) you can see that the lower edge of this sign is approximately 8 feet from ground level. The car in question stopped parallel to this sign at a distance of around 10 feet away and this sign was not visible to the driver from inside the car due to the height at which it was mounted

 

 

9.7.  The vehicle parked on the site in question because they needed to access a cashpoint and spotted the adjacent Barclay’s bank ATM as they drove towards it. The driver had to reason to not abide by parking rules, and they would have followed what was written on any sign - but there were no entrance signs for the driver to see, nor were any other signs visible before entering the site from their direction of travel .

 

 

 

ABUSE OF PROCESS

 

10. The Claimant seeks recovery of the original £100 parking charge plus an additional £60 described as “contractual costs and interest” or “debt collection costs”. No further justification or breakdown has been provided as required under Civil Procedure Rule 16.4.

 

10.1. PoFA Schedule 4, paragraph 4(5) states that “The maximum sum which may be recovered from the keeper is the amount specified in the notice to keeper” which in this case is £100.

 

10.2. Unless the Claimant can clearly demonstrate how these alleged additional costs have been incurred this would appear to be an attempt at double recovery

 

10.3. Previous parking charge cases have found that the parking charge itself is at a level to include the costs of recovery ie: Parking Eye Ltd vs Beavis (2015) UKSC 67 which is the authority for recovery of the parking charge itself and no more, since that sum (£85) was held to already incorporate the costs of an automated private parking business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages. It is indisputable that an alleged “parking charge” penalty is a sum which the Supreme Court found is already inflated to more than comfortably cover all costs. The case provides a finding of fact by way of precedent, that the £85 (or up to a Trade Body ceiling of £100 depending on the parking firm) covers the costs of the letters. Since 2019, many County Courts have considered claims in excess of £100 to be an abuse of process leading to them being struck out ab initio. An example, in the Caernarfon Court in VCS v Davies, case No. FTQZ4W28 on 4th September 2019, District Judge Jones-Evans stated ''Upon it being recorded that District Judge Jones-Evans has over a very significant period of time warned advocates [...] in many cases of this nature before this court that their claim for £60 is unenforceable in law and is an abuse of process and is nothing more than a poor attempt to go behind the decision of the Supreme Court v Beavis which inter alia decided that a figure of £160 as a global sum claimed in this case would be a penalty and not a genuine pre-estimate of loss and therefore unenforceable in law and if the practice continued, he would treat all cases as a claim for £160 and therefore a penalty and unenforceable in law it is hereby declared [...] the claim is struck out and declared to be wholly without merit and an abuse of process.''

 

10.4. In Claim numbers F0DP806M and F0DP201T, Britannia vs Crosby the courts went further in a landmark judgement in November 2019 which followed several parking charge claims being struck out in the area overseen by His Honour Judge Iain HamiltonDouglas Hughes GC, the Designated Civil Judge for Dorset, Hampshire, Isle of Wight & Wiltshire. District Judge Taylor echoed earlier General Judgment or Orders of District Judge Grand, stating ''It is ordered that the claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in ParkingEye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998...''

 

10.5. On 07/02/2022 a new Code of Practice was published by Sir Greg Knight MP, designed to prevent these “rogue” traders from ripping people off with inflated charges and extra charges, which have been deemed unfair. (https://www.gov.uk/government/publications/private-parking-code-of-practice/privateparking-code-of-practice) .

10.5.1. Section 9 of the new CoP, regulates the matter of recovery costs: “The parking operator must not levy additional costs over and above the level of a parking charge or parking tariff as originally issued.”

10.5.4. The Minister Neil O’Brien, who’s foreword I have attached (Exhibits D&E) also goes on to state “And there will be no wriggle-room for rogue companies who continue to flout the rules. If they fail to follow this Code, they will effectively be banned from issuing parking charges indefinitely” (Exhibit E)

10.5.5. The publication of this Code therefore marks the start of an adjustment period in which parking companies will be expected to follow as many of these new rules as possible. The Code will then come into full force before 2024, when the single appeals service is expected to be in operation. This indicates that the new CoP should be adhered to now, where possible, but clearly EPS are choosing to ignore these new rules, and continuing to go about their business as normal, regardless of the law. (Exhibit E)

 

 

 

CONCLUSION

 

11. I invite the Court to dismiss this Claim in its entirety, and to award my costs of preparation for this hearing, such as are allowable pursuant to CPR 27.14 (see Section 04 – Schedule of Costs)

 

 

STATEMENT OF TRUTH

 

I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

 

[FTMDave]

Ar a first glance - that is damn excellent.

 

Tomorrow is a Bank Holiday where I'm based so I'll have a proper look in the morn.

[FTMDave]

Your WS is magnificent.

 

But a few tweaks to suggest.

 

The fleecers are legally challenging the government Code of Practice about the £100 limit/Unicorn Food Tax they always add on, so you need to cut out "and the Parking (Code of Practice) Act 2019" in (7.5).  The whole of the last (10.5) section needs to go too.

The only change I would make would be to break off (7.3) into its own section, at the same point in the WS, entitle it GRACE PERIOD, and expand on it, as this is one of your aces.  Something like -

0.0  The order for parking management services (exhibit XX-02) defines a free stay period, against which it states that non patrons have a grace period of 5 minutes, and that parking charges will only apply if that term is breached.  Therefore, even if a valid contract existed (which it does not), no breach would have occurred as the EPS PCN identifies the time period of the alleged breach to be 29 seconds.

0.0  The government Code of Practice, set up under the Parking (Code of Practice) Act 2019, allows (Table B.1) a 5-minute consideration period while the motorist reads the signs and decides if they wish to accept the contract offered and park. 

The Code is currently subject to legal challenge regarding (a) the amount of parking charges and (b) the addition of debt collecting costs.  The rest of the Code is not under any legal challenge, including the consideration period.
 

0.0  The Claimant is a member of the British Parking Association, whose Code of Practice states (para 13): "The driver must have the chance to consider the Terms and Conditions before entering into the ‘parking contract’ with you. If, having had that opportunity, the driver decides not to park but chooses to leave the car park, you must provide them with a reasonable consideration period to leave, before the driver can be bound by your parking contract. The amount of time in these instances will vary dependant on site size and type but it must be a minimum of 5 minutes".

0.0  The Claimant is also a member of the International Parking Community who in their Code of Practice states (para 13.1) "Motorists must be allowed a sufficient Consideration Period so they may make an informed decision as to whether or not to enter or remain on the Private Land" which common sense suggests should be longer than a ridiculous 29 seconds.

0.0  Even if none of the four documents above existed, a breach of 29 seconds would be legally "de minimis".

 

I would also beef up your (11) and add at the end "A court claim for a stay of 29 seconds, contrary to numerous Codes of Practice and even the Claimant's own contract with the landowner, is vexatious".

 

If you want to look up the stuff I've quoted above, it's in

 

https://www.gov.uk/government/publications/private-parking-code-of-practice/private-parking-code-of-practice#annex-b-consideration-and-grace-periods

 

https://theipc.info/brandings/2/resources/documents/Code_of_Practice_v8.pdf

 

https://www.britishparking.co.uk/write/Documents/AOS/AOS_Code_of_Practice_January_2020_v8(2).pdf

 

 

Edited December 8, 2022 by FTMDave
Extra info added

[Nicky Boy]

Suggestion for a revised Section 9.1...

The claimant has provided prints of the car park signage rather than actual pictures. These images provide no real context or picture of what the motorist actually sees when approaching the land in question.

The Claimant claims accreditation by both The IPC and The BPA, so compliance with both Codes of practice is required to form any contract. (Insert Beavis reference?)
The signage is not complaint with the requirements of the IPC and BPA Codes of Practice or with Schedule 4 of the Protection of Freedoms Act 2012 both in respect to placement and visibility both in daylight or after dark. (Not sure that POFA applies here?)

The IPC Code of Practice:
Part E Schedule 1:
"Signs should, where practicable, be placed at the entrance to a site."
"If parking enforcement takes place outside of daylight hours you should ensure that signs are illuminated or there is sufficient other lighting."

The BPA Code of Practice:
Appendix B, "Mandatory entrance signs"
"A standard form of entrance sign must be placed at the entrance to the parking area."
"Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times."

 

Any thoughts from the regulars on this?

Edited December 8, 2022 by Nicky Boy

[FTMDave]

Superb spot by Nicky Boy that these charlatans are in the BPA as well as the IPC.

 

I've amended my suggestions above accordingly.