UKPC/DCB Legal Windscreen PCN PAPLOC now Claimform - 1 to 21 The Martletts, Crawley, West Sussex, RH10 1ER **Claim dismissed, counterclaim dismissed**

[FTMDave]

OK, I will have a look when time permits.

Is the weekend too late?  Unfortunately I have a lot on at work tomorrow and Friday.

[Intrepid]

Unfortunately yes, I intend to send it via post today.

While I am grateful for any comments I also have full confidence in what I have prepared and have posted it up in the hope that it may help others in future.

So I would say read it and comment if you're interested and at a time that suits you.

I may be able to work around any criticisms/improvements at the hearing.

[jk2054]

pers id say you can gain an extra 2 days and email not post.

up to you though

[lookinforinfo]

The aim when responding to their WS should be either get them to abandon their claim or give the Judge a heads up on the type of people that run these parking scams. In your case as you have a counterclaim  the aim is to go for the second choice.

if we look at

Point 6 "My Company operates in accordan ce with the Code ". Really? The DVLA banned them in 2018.

Point 9 they said the contract was included as Exhibit 1 . Exhibit 1 was not included and yet Joel Little signed the WS that he had told the truth.

Point 11 They then claim that they don't need a contract to run the car park which contradicts PoFA 2012 Schedule 4  Section 2 Relevant contact [2] (b)

authorised, 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;

one wonders therefore whether they didn't intend to provide their contract

Point 12 Their entrance sign does not form a contract is is just an offer to treat

Point 13 they also ahe another signthat atates NO Unauthorised Parking. Not only is that sign unable to offer a contracy because it is prohibitive it also means that anybody who ignores that sign and parks there is a trespaaser which can only be treated by the landowner.

Point 14  the driver did not accept the contract because there was no contract

Point 16  no plan of the land provided despite the claim that that it has been.

Point 18 The driver is not liable to pay the PCN

Point 21 under PoFA Schedule 4 S8{2][f ]if payment is not withinn 28 days the keeper then becomes liable to pay the PCN so why is UKPC trying to pursue the driver as well. Only the keeper is now responsible under PoFA. And under what Law does the fact that the keeper does not admit n or deny being the driver mean that they were the driver?

 

This is as far as I have managed to get and I see that you are wanting to send off your WS. I would hope that you might reconsider as in the past you have been perhaps to quick off the mark and sometimes  taking a bit more time can reap rewards too.

The WS harps on about contratual costs when there was no contract! Plus their PCN does not comply with PoFA. I am tryying to get the Judge to confirm that they should be pursuing the keeper not the driver, who thay have no idea who was driving, and then once accpeted that the keeper is the one liable if they feel there was a contract ;which there isn't] then because the PCN is non compliant, the keeper is not liable either. But that still needs more work.

[Nicky Boy]

Intrepid,

Just a suggestion on something else to throw in.

As the claim appears to be based upon "the use or enjoyment of land" as per

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part16/pd_part16

Other matters to be included in particulars of claim

7.1 Where a claim is made for an injunction or declaration relating to any land or the possession, occupation, use or enjoyment of any land the particulars of claim must –

(1) state whether or not the injunction or declaration relates to residential premises, and

(2) identify the land (using a plan where necessary).

7.3 Where a claim is based upon a written agreement:

(1) a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing, and

(2) any general conditions of sale incorporated in the contract should also be attached (but where the contract is or the documents constituting the agreement are bulky this practice direction is complied with by attaching or serving only the relevant parts of the contract or documents).

(And the potentially significant one)...
7.5 Where a claim is based upon an agreement by conduct, the particulars of claim must specify the conduct relied on and state by whom, when and where the acts constituting the conduct were done.

 

As far as I can see, their POC is deficient in respect of the above.

If it's not mentioned in their POC's, thet can't rely on it in their WS!

[FTMDave]

I knock off work at 21:15 UK time today if that is not too late to have a read through.

[Intrepid]

Attached below is the Skeleton Argument for Counterclaim.

UKPC - Counterclaim - Skeleton Argument - Redacted.pdf

[honeybee13]

What are your thoughts on their counterclaim, Intrepid?

HB

[Intrepid]

I think if you walk blindfolded across a minefield, eventually you are bound to tread on a mine.

If you issue as many PCNs as UKPC do eventually you are going to land one on someone with sufficient knowledge and resources not to be intimidated by the litigation process.

What started out as a claim for £160 has real potential to blow up in their face to the tune of almost £2000, and that is just the starting point before anyone else were to get hold of a successful judgment.

If I were them I would already have paid this. UKPC have had their access to the KADOE database suspended twice. I don't know how many chances they will get before access is permanently withdrawn and that will be the end of their business.

Edited February 29 by Intrepid

[lookinforinfo]

You could have added that when signs say "NO Unauthorised Parking" firstly as it cannot form a contract, then the contract between the land owner and the parking company does not apply in relation to an an unauthorised parked vehicle.  Secondly that motorist can still be taken to Court for trepass but that can only be done by the landowner not his monkey. And that could have been an extra club in your arsenal. Don't know if you can add that now.

[Intrepid]

DCBL sent the missing exhibits which contain UKPC's contract and the land plan.

Attached below.

UKPC - Claimant - Witness Statement Exhibit 1, 4 Redacted.pdf

[honeybee13]

The contract they sent seems to expire in 2021?

ETA: the date of infringement was 7/12/2021, contract expiry date is 20/08/2021.

HB

[Intrepid]

Unless I am mistaken I cannot see any actual evidence at page 15 that the contract was extended beyond 20.08.21.

The ticket was issued 7.12.21 and the claim was issued 24.03.23.

[honeybee13]

Maybe I read it wrong, I was looking at Exhibit 1.

HB

[lookinforinfo]

. Intrepid there is nothing pleases me  more than our members getting money off the rogues. However I feel that your over aggressive way of going about it including the speed with which you are doing it may count against you.

By counterclaiming you have prevented them from withdrawing their claim prior to Court which, had they done so and it quite likely that they would have, that would have strengthened your case.  So bad could have been their their case that you might not have had to take them to Court  -just the threat might have been enough for them to come to a settlement. Telling them that they hadn't included their contract would have led to them losing the case on that alone if they still hadn't included it before the Court case.

You may not now win your case for breach of GDPR as their contract refers to their parking area as 1-21 The Martletts. Even though we know it refers to the Pedestrian precinct, UKPC appear to also name their car park that too, instead of Parkside. Perhaps to distinguish it from the NCP car park on the other side of the street.

 Another reason for not counterclaiming is that  the contact had already expired .With  some Judges that would have been enough on its own to grant you the GDPR breach regardless of the Martletts address had you sued after the case.   Other Judges would accept that as the signage etc was still in place that the contract was continuing. Whether you can claim now that the contract was over as part of the breach is debatable as it was not included in your counter claim. 

 

I do hope that you go on to win your case against them but you now have a bit of an uphill struggle  though I am still hoping for a successful outcome for you.

.

[dx100uk]

Contract Expiry Date: 20/08/2021

[lookinforinfo]

I understand that dx but I have seen at least one case where a Judge ruled that as the parking company still had all their signs up and running the car park and therefore with the landlord's approval that the contract had been renewed even though it was not on show nor did we know the revised terms if any. Judge lottery.

Their rules, not ours.

I should have added that there is no evidence of savil having permission from the landowner to be able to sign on their behalf.

Edited March 2 by lookinforinfo

[Intrepid]

@lookinforinfo I understand your points but I disagree for the following reasons:

1. I am aware of UKPC's strategy to discontinue almost all of their claims, I don't want them to be able to walk away that easily, partly because it's a considerable time and effort to deal with these people and a hearing gives me an opportunity to raise the issue of costs.

2. Part of me is hopeful that some judges are waiting for the opportunity to hit them with the whacking stick provided the opportunity and which is few and far between because UKPC so often run away from scrutiny.

3. If UKPC withdrew their claim I think it is ambiguous as to whether they had reasonable cause. Withdrawal of a claim isn't an admission it is meritless, only a judge can decide that. If they withdraw they can still argue later they had reasonable cause but for any number of reasons didn't continue their claim, I can say they didn't but it will be hard for me to prove. If on the other hand a judge has dismissed their claim, it is beyond doubt they had no reasonable cause to acquire my data.

4. If I counterclaim, the Claimant pays the hearing fee, if I sue at my own initiative the costs of issuing my claim and paying the hearing fee will be much greater.

5. Claims for breach of GDPR have been deliberated in part on the delay between becoming aware of the breach and issuing a claim, I therefore have no issue with the timing of a counterclaim.

I too am aware of judge lottery, if I had sat on my hands until the hearing, all that would likely have happened is the judge will ask the other side to provide me with a copy of the missing exhibits and then ask both parties if they are happy to proceed, it is very unlikely to kill the claim dead.

Court's have lost my witness statements in the past and just barreled on without a care. I'm not interested in litigating based upon how the theoretical justice systems works (ask the post masters how that went). I am more interesting to continue as things are likely to happen.

Thank you all for the useful comments, I will certainly bring them up at the hearing on the basis that I was not given sight of the contract until very late in the proceedings.

Edited March 2 by Intrepid

[Intrepid]

As I have said before UKPC are walking a tight rope, they have already had two suspensions from the KADOE database and if I am successful a copy of the judgement will go to the DVLA and ICO to whom I will make it clear that UKPC have been unlawfully accessing data on a speculative basis.

Taking into account the fact UKPC made over £3 million in profit last year, I wouldn't risk a permanent exclusion for the sake of £1000 but I doubt DCBL have the brains to offer such sound advice to their client.

I predict the DVLA wont give a monkeys, integrity is simply too much hard work for most organisations and their agents aren't paid enough to care.

[FTMDave]

Well, it all depends what you want to achieve.  Your choice.

The forum would have done things very differently at virtually every stage.

We all hope you give UKPC an absolute hammering though.

[Intrepid]

I am not being critical of your process, it certainly helps a lot of people, particularly those that just want UKPC and others to get off their back and don't necessarily want to argue their case in front of the bench. I'm not sure the process is that different (baring the counterclaim) save for moving argument to a Skeleton instead of a Witness Statement.

Like most things in life there are lots of different ways to get the same result.

I would still like to know which arguments you consider out of date, if and when you have the time. Skeleton Arguments are flexible and advocates can focus on the points of more value and steer away from those with less value if necessary at a hearing.

[lookinforinfo]

You remind me of an old boss of mine when engaged in a discussion with one of his friends who was insisting that he was right and my boss said "Even if you were right, you were wrong".

At the end of the day you were parked in their car park without a permit which Judges do take into consideration. I understand you argument that there is no cost to raising a counterclaim. In this case perhaps the cost could be in losing the claim if indeed there is a claim.

Going to Court and winning requires especially in private  parking cases, an overwhelming amount of evidence to counter balance the often duplicitous WSs from th rogues. And that is best done at the end when all the evidence you have gathered from your  own understanding of the situation plus what you can garner from their PCN, Claim form and WS.

From all of that you have now learned is that the UKPC signage at the entrance is poor and their signs inside their car park are really too far away from where many cars are parked to be even noticed. That is a strong point in your favour for the charge to be thrown out on its own.

The "NO Unauthorised Parking "signs are prohibitive, cannot form a contract and suggest that you were a trespasser, ruling out UKPC involvement in any litigation against you which could have brought your claim back into the frame again had you raised it.

However it appears that 1-21 the Martletts is the name of the car park as well as the precinct., so that could remove the main spar of your argument. There is still the question of whether there is a current contract which could have swung the case back in your favour had you included it in your claim.

I don't know if you can drop your counter claim at this stage nor even if you would want to. Certainly if they also withdrew their case you would be no further forward in finding out if your chances of winning your GDPR case  were viable.

[Intrepid]

There is a cost to bringing a counterclaim, it is the cost of the issue fee. The hearing fee is paid by the Claimant.

Given the stage of the claim (WSs exchanged) I am not sure what further evidence one could expect there is to be gathered, or how it would affect the counterclaim, alternatively an early withdrawal could result in no evidence being exchanged.

I believe I have covered prohibitive signage, would it be unfair to suggest you may not have read or understood the skeleton in defence of the claim? I have read before some judges have been quick to dismiss the argument of prohibitive signage, it may very much depend on the circumstances such as pay and display vs permit. Consideration is old and nuanced and largely fallen out of favour, but even if a judge were wrong no litigant is likely to argue otherwise. Given parking claims are often set for 30 minutes that isn't sufficient time to go back through centuries of contract law when there may be easier points to leverage and decide the case.

I don't believe location is the main spar of the argument. There are eight elements to the argument in total, the strongest of which is probably, no locus standi (having confirmed UKPC's contract was expired and in the absence of evidence to the contrary), no clear signage and the inclusion of an unenforceable penalty sum. I'm not sure why you consider the location to be the only point relevant to the counterclaim or why it needed to be included.

A failure of their claim, save for perhaps a strike out for abuse of process in my view is a lock in that UKPC had no reasonable cause to request my personal data. You haven't addressed my earlier point that a withdrawal by UKPC of its claim isn't admission of no reasonable cause, in my view only a judgment can show that definitively.

As to your last point, if UKPC withdraw, the counterclaim survives so I am in the same position as issuing a separate claim except a separate claim is added costs and riskier in my view. Also if UKPC withdraw with no counterclaim there is no opportunity to bring to the attention of the Court their unreasonable behaviour without making an application. My understanding is an application solely for the assessment of costs on the SCT would not be looked upon favourably and would be an even greater uphill struggle.

I am open to a full explanation as to why it would have been better for UKPC to withdraw and how it would strengthen a later claim for a breach of the UK GDPR but right now I just don't see it. UKPC often withdraw before WS exchange so no contract would have been seen, they didn't even serve it on time, it took an SRA complaint to spur them into action.

I understand we view some things differently, your extensive knowledge of parking claims has been very helpful and I should have said earlier despite the fact I have done some things differently I have no prior experience of parking claims and all of the contributions have been incredibly helpful (including the counter points).

I understand a withdrawal is generally considered a victory for most, this is probably where we fundamentally differ.

[brassnecked]

As always its your call the Team can indicate possibilities but final say is yours .

[lookinforinfo]

Let's look at it from the current position.

If you parked in their car park without a Permit they had a reasonable cause to apply to the DVLA for your details. This is regardless of whether the site was poorly marked or named. Maybe there would be a  case if the contract had expired though as the arrangement  still appears to be runnng it is difficult to presume the outcome. It is hard to believe that both parties would not have noticed that the contract had terminated so the expectation would be that some agreement to continue would be in place. Similarly I would have thought that  UKPC would have some form of corroboration that Savillles did have the ability to sign per pro on behalf of the land owner which could have been produced in Court .

I understand that there is no cost to you adding a counterclaim as opposed to waiting until after the case and taking out a case then when most of the facts are known. Now that much has come out since you commencec your counter claim there is a danger that the Judge may decide that you claim was vexatious or frivolous as indicated by UKPC and ask that you pay their costs.

I admire your bravery in taking them on and will give you all the help I can for you to succeed against them but I have my doubts that you will get the result you want. I hope I am wrong but will be among the first to congratulate you should you  win.