Free Traffic Legal Advice
Live cases legal advice => Private parking tickets => Topic started by: BigPoppa on October 15, 2023, 09:50:14 pm
-
Good result! Thanks for the update.
-
It was dismissed due to the Judge agreeing with me that the signs would have been unreadable due to no lighting and it being dark that night.
Also, the judge said that she agreed with me, that even if the signs were readable, I had not parked obstructively as there was enough room for cars to pass by my car and I had not blocked the walkway. Also, there are no marked bays at all in this space but Gladstone's solicitors were aruging that I had breached due to not parking in a marked parking space and I had parked obstructively by blocking the walkway for pedestrians and cars.
-
You’re welcome. One which grounds did the judge actually dismiss the claim? Was it on the fact that if the signs were not visible or they were unreadable and that no contract could have been formed?
Was it because the claimant failed to state a cause of action in the PoC?
Just trying to find out which points in your defence and WS were the triggers for the judges decision on the facts.
-
We won this one guys!! Thank you for all your help everyone especially to @b789
I was awarded 2 lots of £95 for 2 court appearances and my parking costs.
The judge completely agreed that the signs were unreadable especially as it was dark and this location had no lighting. She did not refer to any of the legal arguments in my documents but as I had the opportunity to cross-examine the Gladstones solicitor I asked him about why the particulars of the claim as filed and served did not set out the conduct which
amounted to the breach and he did not have an answer. I also asked him how he expects motorists to read the signs at night without any lighting and he argued that the signs have been approved by the law to which I showed the judge the example of the Beavis case.
Glad to see the back of this! Thanks all once again this forum is a life saver!!
-
Skeleton?? Weight of evidence should not be taken literally.
Keep it simple IMO.
What are your main points in order of priority?
It seems that you've been given a steer by the previous judge, so I'd work with these i.e. consider how best to expand on those in your favour and counter those which appear otherwise. Let's be honest, the facts on the ground and your intentions are the ONLY points on which you have any detailed knowledge. As you say, 'I have not done one of these before' and it shows!
IMO, don't get bogged down in procedural matters. If these were silver bullets I'd take a different view, but IMO they are not.
Was the land controlled; was this brought to the motorist's attention; how; what was conveyed; if not a contract then you were a trespasser(perhaps unwittingly) - it's not a hanging offence, we've all probably done it at some stage on our lives; and trespass cannot give rise to the charge.
-
Thanks @b789 I have added your most recent additional point and re-uploaded it here - https://www.scribd.com/document/741716803/Skeleton-Upload
Let me know what you think.
-
The link above does not work.
An additional point that has come up recently and seen claims struck out is if the Claimants WS has been signed by a paralegal or anyone from the solicitors reperesnting them. The following is an additional point to put in your own WS or in a SWS:
As a preliminary matter, the Defendant wishes to bring to the Court's attention that the Claimant's Witness Statement, signed by [Paralegal or Solicitor's Name] of [Solicitor Firm name] Solicitors, does not comply with CPR 32.4 and Practice Direction 32, which require that a witness statement be made by an individual with direct knowledge of the facts. Furthermore, Practice Direction 32, paragraph 18.2, stipulates that the statement must be in the witness's own words and include details of how the witness has direct knowledge of the matters stated. As [Paralegal or Solicitor's Name] does not have direct involvement in the events in question, the Witness Statement fails to meet these requirements. In light of this non-compliance, the Defendant respectfully requests that the Court strike out the claim pursuant to CPR 3.4(2)(c) due to the Claimant's failure to comply with the relevant rules and practice directions.
-
@b789 I had another copy of the whole bundle in the post today which includes all of my paperwork and theirs.
Here is a link to my skeleton argument - https://file.io/Y8KJaBpJ1Ubn
I have never done one before so it might need some edits. Can you let me know what you think before I submit it, please?
-
That's good to hear. It's possible that the first judge for the resolution hearing was a junior deputy district judge. Hopefully the next judge will be more amenable to questioning the Claimant about the breaches you will be expanding on.
Let us know if the Claimant send a Supplementary WS. They sometimes try that. Also, when you go to court, make sure that you have spare copies of your WS as it is not unknown for the rep for the Claimant to try and say they don't have a copy of it.
It may be worth creating a Skeleton argument. A skeleton argument is a written summary of your case and your main arguments in your case. It should outline the relevant background facts of the case and briefly refer to the law that will be relied on in your arguments.
A Skeleton shout be served no later than two business days before the hearing. It may be worth having a read of this: https://www.judiciary.uk/wp-content/uploads/2022/06/Guide-to-the-Preparation-and-Service-of-Bundles-Skeleton-Arguments-and-Authorities-in-the-Business-and-Propert.pdf
-
Thank you @b789 :)
The hearing is on 19/06 at Birmingham court.
The claimant's current claim is for £170 (£169.09 shown in the first box of the amount claimed on the N1SDT claim form)
I included standard witness costs for loss of earnings and attendance in court of £95 in my WS.
It will be a different judge at the next hearing and I will create a set of notes as bullet points of all the points you have raised and the applicable laws to go in and make a good case.
-
Having gone back through the thread and read your Defence and WS, you have a good chance if you are able to raise some points that should have been expanded on in the WS. When is the hearing? Which court?
It is interesting that the dispute resolution hearing judge pointed out the serious flaw in Gladstone's filing of the claim in that they never set out the conduct that amounted to the alleged breach. The whole point of including the CEL v Chan appeal court judgment (which should have been included in the original defence as a "Preliminary matter" but wasn't) is that it is persuasive and the judge should have thrown the claim out for that breach alone.
Obviously, he knew about it and you should raise this matter as the very first thing at your next hearing. You need to ask the judge to dismiss the claim on that basis. However, if the judge disagrees, then you must raise the following issue as it was mentioned in your defence but not explained very clearly:
Whilst you have admitted being the driver and therefore they are not relying on PoFA to hold you liable as keeper, they did so in the original NtK (even though it was flawed in that respect). According to PoFA 2012 4(5), if they had intended to rely on the Act, the maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper under paragraph 8(2)(c) or (d) or, as the case may be, 9(2)(d) (less any payments towards the unpaid parking charges which are received after the time so specified). The maximum sum they can claim is £100 as shown in the original NtK.
It may be a lot to try and take in but you should make the effort to read and understand what you are going to be arguing.
The claimant's current claim is for £170 (or whatever amount is shown in the first box of the amount claimed on the N1SDT claim form), which exceeds the amount of the unpaid parking charges as stated in the original notice. The claimant’s attempt to claim an unlawful amount constitutes an abuse of process and should not be allowed to proceed. You should respectfully request the judge to dismiss the claim on the basis of the claimant’s contravention of Schedule 4, Paragraph 4(5) of PoFA and thereby CPR 1.1, CPR 3.4(2)(a) and (b) and CPR 27.14 and to award costs to the defendant for having to defend against this improper claim.
CPR Breaches and Abuse of Process:
* CPR 1.1 - The Overriding Objective:
* The claim is not being dealt with justly or proportionately. The excessive amount claimed puts the defendant at a disadvantage, increases unnecessary costs, and is disproportionate to the original charge.
* CPR 3.4 - Power to Strike Out:
* CPR 3.4(2)(a): The claim for £160 (or whatever amount is shown the clim form) has no reasonable grounds, as it exceeds the lawful amount stipulated by PoFA 4(5).
* CPR 3.4(2)(b): The claim represents an abuse of the court’s process by attempting to claim an amount not legally recoverable, thus obstructing the just disposal of proceedings.
* CPR 27.14 - Costs on the Small Claims Track:
* CPR 27.14(2)(g): The claimant’s behaviour in pursuing an excessive and unlawful amount is unreasonable, warranting the claim to be struck out and costs awarded to the defendant.
All the other breaches that you have put in your defence and expanded on in your WS such as no contract formed due to lack of or obscured and unlit signs need to be highlighted with reference to the particular parts of their ATA CoP that have been breached.
Make sure you create a set of notes as bullet points for yourself. Know where every reference to anything is in your WS and you can refer the judge to it. You've already been to court once for this so you now know that it is not quite as daunting as you expected.
Did you include a costs order with your WS? If you win, you should remember to ask for your costs which are up to £95 for loss of earnings and your transport costs and parking etc.
-
@DWMB2 @b789 Have you guys got any thoughts on what would be the main focus points for me at the hearing?
-
Hi all, I'm just giving this one a push for advice on what I should focus on for the next hearing.
Thanks, in advance.
-
Where did you park?
From looking back at your defence and witness statement, the argument that the signage is forbidding and therefore incapable of forming a contract (as it doesn't make an offer to those who are not authorised) doesn't come across particularly strongly. Did you communicate this point in court?
I also wonder whether an argument that the signage was unlit and not visible is undermined by your argument that you did read the signage but found it confusing...
I parked by the entrance but left the walkway clear for pedestrians and no cars were in the site and so I was not blocking anyone. I stayed in the car with the lights on so could easily move if I did block anyone.
Should I focus on this point at the next hearing? - the argument that the signage is forbidding and therefore incapable of forming a contract
-
It was a dispute hearing. I was parked by the entrance and Gladstones had an image of a car that pulled alongside my car. This was someone who had stopped to talk to me whilst I was still in the car. The judge thought it had stopped because I was parked near the entrance but I explained that this person was actually having a conversation with me.
The judge did say that in my favour Gladstone's have not set out the conduct which amounted to the breach in reliance upon which the claimant would be able to bring a claim for breach of contract - Civil Enforcement Limited v Chan (Ref. E7GM9W44) and that as the sign were unlit and it was at night time that I had a point there.
He said on Gladstone's side he did not believe that where I parked was a layby, it was a car park and that I was potentially parked blocking the entrance.
-
Where did you park?
From looking back at your defence and witness statement, the argument that the signage is forbidding and therefore incapable of forming a contract (as it doesn't make an offer to those who are not authorised) doesn't come across particularly strongly. Did you communicate this point in court?
I also wonder whether an argument that the signage was unlit and not visible is undermined by your argument that you did read the signage but found it confusing...
-
Was this a dispute resolution hearing? On what evidence did the judge think you were obstructing other cars?
-
An update.
I went to the court hearing today and the Gladstones solicitors came and spoke to me before the hearing asking if I wanted to talk and settle. I said I wanted the judge to strike out the claim and would not be settling to pay any costs.
We went into the courtroom and the judge asked if we wanted to settle I said I was not willing to pay a fine or costs because the signs are unlit, confusing and cannot form a contract. The judge after asking questions about my parking and asking the Gladstones solicitor what he wanted to do said that we both had a 50/50 chance of winning because the signs were unlit and in darkness when I parked but that he thought the way I parked was obstructing others cars as I parked near the entrance.
It has been adjourned until next month so I have to go to court again.
-
Then, of course make any changes you think will help your defence and rebuttal of their claim.
-
I haven't sent it to the court or the claimant as yet. I just think it is worth adding to highlight that there are no marked bays like a normal car park would have.
-
You can’t change your WS if you’ve already sent it to the court and the claimant/solicitor. You can submit a supplementary WS but don’t get into a ping pong match with the claimant as a judge will not want a back and forth match.
You can raise this point at the hearing if you are contesting it. Make sure you understand your WS and the points you are making.
-
I have had Gladstones paperwork through the post today. It says that the terms and conditions were breached because -
'The photographic evidence shows the vehicle to be parked at the entrance of the site during xxxxxx and xxxxx thus outside of a marked bay causing an obstruction. The vehicle was therefore not authorized to park at the site.'
There are no marked bays in this location. Is it worth changing para 9 to -
I took care to park in a manner that I perceived as compliant with the rules in the immediate vicinity as this layby does not have any marked parking bays and was completely empty of any other vehicles.
-
Thank you both. I will read through it carefully and send it to the courts this week ready for the hearing.
-
As above. It's quite reasonable to draw on good points others have raised in previous witness statements, but it is your statement. Read every point carefully, and make sure you'd be able to explain it if asked to.
-
The only costs you can order is up to £95 for attending plus any travelling expenses and parking.
Should you manage to show that the Claimant has acted unreasonably (a high bar to achieve), you could ask for more costs but you are pushing it if you think you'll get much more, assuming you win the case in a small claims hearing.
You need to try and understand what you have put in your WS as you are likely to be questioned on any part of it. If the Claimant can make you look stupid by showing you have only copied and pasted from an internet forum without understanding what it is you have put in your WS signed with a statement of truth, you run the risk of being the party that has acted unreasonable. Caveat emptor.
-
I haven't had any hearings or reserved costs awarded so I will remove this line. I would like to add costs for the time taken to prepare the papers and appearance at the courts. Can these costs be added anywhere?
-
Again, without trawling back through the thread, have you already had a hearing of someone sorts, such as a set aside for a default CCJ, where a judge has ordered that some costs you previously claimed were to be "reserved" for the outcome of this claim?
If not, then I have no idea what you are referring to in that costs schedule.
-
Thanks.
I have changed para12 from goods to passengers and fixed the headers. I have deleted two from para 37, good spot!
The reserved costs were in the last doc so I thought it was a general figure that is used to claim costs from the other side. Should this be removed completely?
-
Much better. However, I note some contradiction between what you say in para 9 and para 12. Is stopping to "pick up" your daughter "picking up" goods?
There are some formatting errors. Your heading needs fixing and the individual headers on each page need fixing.
Para 37 starts with a random "two". Sort that.
Without going back through the whole thread, what are the "reserved costs"? Was the original claim set aside?
-
Thank you @b789
I have drafted a new WS and attached it. I hope it reads better. Thanks.
[attachment deleted by admin]
-
That's just a POPLA appeal. Not going to impress a judge.
Have a read of this document, the bit about "Witness Statements" is particularly useful:
https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part32/pd_part32
Here is another useful guide:
https://www.wrighthassall.co.uk/knowledge-base/a-guide-to-preparing-witness-statements-for-clients
It is important that you put the correct headers in and sign off with a Statement of Truth.
There are links to 5 exemplar witness statements in this thread over on MSE which you should have a read of and use as a good example:
https://forums.moneysavingexpert.com/discussion/comment/64350585/#Comment_64350585
Here are a few of them to give you a guide:
https://onedrive.live.com/view.aspx?resid=D45076F206E55709%21556&authkey=!AG7jsD4bncg5vdU
https://drive.google.com/file/d/1G9ULcEMg_Z-Y5mbhpwR37T6TBGYFzn1O/view
https://www.dropbox.com/scl/fi/umwm4jzp7csnmfz7hwv92/WS.docx?rlkey=u63ica7muz0zy6mpar1mfzyl0&dl=0
-
A fair bit of the content is there, but turning into a more 'Witness Statement-friendly' format certainly won't hurt. IIRC there are some decent examples linked to in the MoneySavingExpert thread. Things such as numbering each paragraph, including a contents page, etc., anything that makes the document easier to navigate during the hearing. I notice the document you uploaded includes hyperlinks - the judge may be looking at a printout of your witness statement and evidence, so might not be able to click links (and even if they could, probably wouldn't), so where you have used links, include full copies of whatever documents they link to in full, as an exhibit in your evidence.
After a long delay due to family issues and other various tasks in the way I have written my appeal and attached it. I have a court date now which is 02/05. I would welcome any comments before I send it to the courts.
[attachment deleted by admin]
-
Thanks. I will start a new draft and let you see it once ready.
-
A fair bit of the content is there, but turning into a more 'Witness Statement-friendly' format certainly won't hurt. IIRC there are some decent examples linked to in the MoneySavingExpert thread. Things such as numbering each paragraph, including a contents page, etc., anything that makes the document easier to navigate during the hearing. I notice the document you uploaded includes hyperlinks - the judge may be looking at a printout of your witness statement and evidence, so might not be able to click links (and even if they could, probably wouldn't), so where you have used links, include full copies of whatever documents they link to in full, as an exhibit in your evidence.
-
I already did a lot of the work in the letter that I wrote by mistake....Remember you wrote - what you have posted does not read like a defence, but more like a mixture of POPLA appeal and witness statement (indeed, you refer to it as an 'appeal' in the document itself).
I will need to make some tweaks to it but it's mostly there depending if we need to go down that road or not. I'm hoping they drop it here but let's see. If we have to go the whole way them I will keep ploughing through it to the very end!!
-
You would be wise to try and get ahead of things. Rather than waiting to see what happens, have a look at the MSE guide I linked to and see what comes next, you can start drafting things like your witness statements now.
-
OK. I have made the changes and emailed it to CCBC AQ. I have received the auto message saying they have receipt of me email. I will update you with any progress. Thanks.
-
I can make this a separate point number 5 -
The defendant first heard about this parking charge by post on 05/01/23 and feels harassed by the bombardment of ‘debt recovery’ letters.
You seem to have taken out the important bit, and left in the unimportant bit. Your strongest argument (in my opinion), is that the signage at the site was not capable of forming a contract (the 'forbidding signage' argument). That you felt harassed by the debt collector letters is largely irrelevant when considering whether or not the charge is owed.
-
What about if I move point 13 up so that it's now point 4 and change point 3 to this -
The Defendant cannot be held liable due to the Claimant not complying with the ‘keeper liability’ requirements set out in
the Protection of Freedoms Act 2012, Schedule 4.
I can make this a separate point number 5 -
The defendant first heard about this parking charge by post on 05/01/23 and feels harassed by the bombardment of ‘debt recovery’ letters.
-
The wording seems okay, although I do wonder about the order. I'd say the signage being incapable of forming a contract is a stronger one than the PoFA point, yet is only mentioned 13 paragraphs in. You may want to move this up.
I'm not sure the point around feeling 'harassed' is a strong one, and may distract attention from the more meritorious point that they did not comply with PoFA. The parking company could say that they had no choice but to hire a debt collection company to send you letters as you failed to engage in any correspondence with them on the matter.
-
@DWMB2
I will get this email over to the ccbcaq email address today if you don't have any more comments.
Thanks.
-
How about this? -
The facts as known to the Defendant:
2. It is admitted that the Defendant was the registered keeper of the vehicle in question but liability is denied.
3. The defendant first heard about this parking charge by post on 05/01/23 and feels harassed by the bombardment of ‘debt recovery’ letters. The Defendant cannot be held liable due to the Claimant not complying with the ‘keeper liability’ requirements set out in the Protection of Freedoms Act 2012, Schedule 4.
The I have added a line at the end of point 13 -
13. The Claimant’s signs have vague/hidden terms and a mix of small font, such that they would be considered incapable of binding any person reading them under common contract law, and would also be considered void pursuant to Sch2 of the CRA. Consequently, it is the Defendant’s position that no contract to pay an onerous penalty was seen, known or agreed. The defendant denies that the signage at the site is capable of forming a contract.
-
In your defence you say:
The Defendant denies driving the car on 20/12/22.
But in your opening post you say:
I was unaware that I could not park there as I could not see any signs at night.
Lying in court is a serious criminal offence - don't deny driving if you were. You don't need to tell them who was driving (unless directly asked in the hearing), but it's important you don't deny something that is true.
You will be able to expand on the forbidding signage argument in the witness statement, but I wonder if it would be worth making mention in the defence (only a few words perhaps) - you deny that a contract was entered into, but perhaps an additional point that you deny that the signage at the site is capable of forming a contract.
-
Sorry @DWMB2 but this can be very confusing for newbies like me!!
In any case, I have re-read it all again and have drafted the defence attached. Any support would be very welcome.
[attachment deleted by admin]
-
https://forums.moneysavingexpert.com/discussion/comment/64350585/#Comment_64350585 (https://forums.moneysavingexpert.com/discussion/comment/64350585/#Comment_64350585) If you haven't been to court before I'd advise reading it thoroughly.
Did you read the post I linked to, and have you read any other examples of defences? I don't mean for this to sound overly critical, but it would seem that you haven't - what you have posted does not read like a defence, but more like a mixture of POPLA appeal and witness statement (indeed, you refer to it as an 'appeal' in the document itself).
If you look at the example defence on MSE, and other examples there and on PePiPoo, you'll see that the purpose of a defence is to refute each of the elements of their claim as set out in the particulars of claim. It does not get into evidence (so no photos, or links etc.) - evidence is presented separately alongside witness statements. It also shouldn't be written in the first person, so no "I", refer to yourself as "the defendant".
-
Hi All,
Please see my defence attached and let me know your thoughts.
Thanks in advance.
[attachment deleted by admin]
-
That reads more like a letter than a defence, see my post above about looking at other examples.
-
Thanks @DWMB2
I'm not sure if you saw this is my defence here? -
I have drafted the below response -
In the Matter of a Parking Charge Notice on Private Land
Dear Sir/Madam,
I write to formally challenge the parking invoice issued to the driver, herein referred to as the 'Notice,' in relation to the parking incident that occurred on 20/12/22 at Kings Square Shopping Centre, West Bromwich. I assert that this Notice is a matter of contract law, and I contend that no valid contract was established with the driver for the following reasons:
Ambiguity in Signage:
On the date and time of the Notice (22:57 PM), the signage present on the site was inadequately illuminated and not clearly visible to the driver. The driver's vehicle was parked facing the road where no signs were displayed, which further hindered their ability to perceive the signage.
Lack of Signage Awareness:
The driver did not have a reasonable opportunity to observe or comprehend the signage when entering the car park due to its obscured visibility and the angle from which the driver entered.
Absence of Road Markings:
Even during daylight hours, the area where the driver parked lacked both signage and road markings, offering no indication of parking regulations.
Ownership Discrepancies:
There is legitimate doubt regarding the ownership of the land in question, and it is not established that it is owned by the purported parties.
Forbidding Nature of Signage:
The signage at the site unequivocally forbids parking vehicles without a valid permit. It does not extend an invitation to park under any terms, but rather strictly limits parking to permit holders. As such, the terms imposed by the signage cannot apply to vehicles without a permit.
In support of my position, I refer you to relevant case law, notably PCM-UK v Bull et al [B4GF17X2 - 2016], UKPC v Masterson [B4GF26K6 - 2016], and Horizon Parking v Mr. J [C5GF17X2 - 2016]. In these cases, the signage was determined to be forbidding in nature, resulting in a finding of trespass rather than a contractual breach. This establishes that no contractual relationship existed with the driver.
Furthermore, the information provided in the Notice to Keeper which PoFA mandates is grossly incorrect, as the statutory warning is found in paragraph 4(4) of Schedule 4 to the Protection of Freedoms Act (PoFA), not in paragraph 14 as stated in the Notice to Keeper. PoFA mandates that this warning be included in a Notice to Keeper, and in this case, it has not been properly provided. It is essential to note that the statutory period within which the right to enforce against the keeper may be exercised by the creditor is 28 days, commencing from the day following the notice's issuance. Contrary to the 21-day period indicated in the Notice to Keeper, PoFA prescribes a 28-day timeframe.
I have attached photographic evidence depicting the poor visibility of the signage and the absence of road markings, further substantiating my claims.
Additionally, it is a fundamental principle of common law that third parties cannot confer rights or impose obligations upon individuals who are not parties to a contract. In this matter, there was no valid contract established with the driver.
I kindly request the utilisation of impartial and qualified assessors who adhere to legal and equitable standards. I implore you to consider this appeal and refrain from pursuing any further demands on the invoice, as this ongoing matter is causing me undue stress and distress.
I trust that you will conduct a thorough and fair assessment of the facts presented and act in accordance with the principles of law and justice.
Yours faithfully,
-
I'm not sure what the 'letter' you're talking about is for?
Your aim now is to draft a defence. If you haven't already, you should find other examples of successful defences on the PePiPoo and MSE Forums, and the MSE guide to the court process here https://forums.moneysavingexpert.com/discussion/comment/64350585/#Comment_64350585 (https://forums.moneysavingexpert.com/discussion/comment/64350585/#Comment_64350585)
The deadline for your defence is 28 days from the date of service of the claim, which is the fifth day after the date of issue.
I wouldn't recommend waiting until the last minute, in case there are technical issues.
-
Hi I'm just pushing this one back up as I have not had any comments on the letter or when the defence needs to be in by.
I hope someone can reply.
-
Hi All,
I have drafted the below response -
In the Matter of a Parking Charge Notice on Private Land
Dear Sir/Madam,
I write to formally challenge the parking invoice issued to the driver, herein referred to as the 'Notice,' in relation to the parking incident that occurred on 20/12/22 at Kings Square Shopping Centre, West Bromwich. I assert that this Notice is a matter of contract law, and I contend that no valid contract was established with the driver for the following reasons:
Ambiguity in Signage:
On the date and time of the Notice (22:57 PM), the signage present on the site was inadequately illuminated and not clearly visible to the driver. The driver's vehicle was parked facing the road where no signs were displayed, which further hindered their ability to perceive the signage.
Lack of Signage Awareness:
The driver did not have a reasonable opportunity to observe or comprehend the signage when entering the car park due to its obscured visibility and the angle from which the driver entered.
Absence of Road Markings:
Even during daylight hours, the area where the driver parked lacked both signage and road markings, offering no indication of parking regulations.
Ownership Discrepancies:
There is legitimate doubt regarding the ownership of the land in question, and it is not established that it is owned by the purported parties.
Forbidding Nature of Signage:
The signage at the site unequivocally forbids parking vehicles without a valid permit. It does not extend an invitation to park under any terms, but rather strictly limits parking to permit holders. As such, the terms imposed by the signage cannot apply to vehicles without a permit.
In support of my position, I refer you to relevant case law, notably PCM-UK v Bull et al [B4GF17X2 - 2016], UKPC v Masterson [B4GF26K6 - 2016], and Horizon Parking v Mr. J [C5GF17X2 - 2016]. In these cases, the signage was determined to be forbidding in nature, resulting in a finding of trespass rather than a contractual breach. This establishes that no contractual relationship existed with the driver.
Furthermore, the information provided in the Notice to Keeper which PoFA mandates is grossly incorrect, as the statutory warning is found in paragraph 4(4) of Schedule 4 to the Protection of Freedoms Act (PoFA), not in paragraph 14 as stated in the Notice to Keeper. PoFA mandates that this warning be included in a Notice to Keeper, and in this case, it has not been properly provided. It is essential to note that the statutory period within which the right to enforce against the keeper may be exercised by the creditor is 28 days, commencing from the day following the notice's issuance. Contrary to the 21-day period indicated in the Notice to Keeper, PoFA prescribes a 28-day timeframe.
I have attached photographic evidence depicting the poor visibility of the signage and the absence of road markings, further substantiating my claims.
Additionally, it is a fundamental principle of common law that third parties cannot confer rights or impose obligations upon individuals who are not parties to a contract. In this matter, there was no valid contract established with the driver.
I kindly request the utilisation of impartial and qualified assessors who adhere to legal and equitable standards. I implore you to consider this appeal and refrain from pursuing any further demands on the invoice, as this ongoing matter is causing me undue stress and distress.
I trust that you will conduct a thorough and fair assessment of the facts presented and act in accordance with the principles of law and justice.
Yours faithfully,
How does this read? Does anyone know when the defense needs to be in by? @DWMB2 @H C Andersen @andy_foster
-
Thanks @DWMB2
I have filled out MCOL today, how to acknowledge service ('AOS') Does this mean that I have until 17/11 to reply since the date of the claim form is 12/10?
I will draft a defense and upload it here for you guys to have a read.
-
Looking on Google Street View and your images, the signage isn't brilliant, and might not be the most visible at night - although the entrance sign looks reasonably prominent, which might not help you - you'd need to make a convincing argument that it was not visible from the angle you entered.
I think the main point you've got in your favour is as outlined by andy_foster, that the signage is forbidding and therefore unable to create a contract.
-
Are there any other points I should be thinking about?
Thanks.
-
The statutory warning is found in para. 4(4) of Sch. 4 to PoFA, not 14 as the notice to keeper states. This may be considered a typo. However, IMO no such leeway should be given as regards the statutory warning.
PoFA requires this warning to be given in a NTK, and in this case it is not. The statutory period which must elapse before this right [to enforce against the keeper] may be exercised by the creditor is 28 days beginning on the day after that on which the notice is given, NOT 21 days as stated in the NTK.
Thanks, @H C Andersen can you help me draft a defence response?
-
The statutory warning is found in para. 4(4) of Sch. 4 to PoFA, not 14 as the notice to keeper states. This may be considered a typo. However, IMO no such leeway should be given as regards the statutory warning.
PoFA requires this warning to be given in a NTK, and in this case it is not. The statutory period which must elapse before this right [to enforce against the keeper] may be exercised by the creditor is 28 days beginning on the day after that on which the notice is given, NOT 21 days as stated in the NTK.
-
Thanks @andy_foster
Here is the other side of the PCN.
Let me know if you need anything else.
[attachment deleted by admin]
-
For a private parking "penalty" to be enforceable, it would have to be liquidated damages specified in a contract - usually formed by an offer of some valuable right (e.g. the right to park) in exchange for some valuable consideration from the driver. The offer would generally be communicated by adequate signage and accepted by parking and allowing the car to remain parked beyond a reasonable time necessary to read the offer and decide whether or not to accept it. A £100 charge would need to be commercially justified, and displayed prominently as it would be an onerous clause.
From GSV in bright daylight, the signs are "there to be seen" (in bright daylight). I am not convinced that the onerous charge for breach is particularly conspicuous, but IMHO the biggest issue is that the signage is "forbidding" - it does not offer any right to park to any group of which you are a member, so there can be no contract.
The other obvious issue is "keeper liability" - has the PPC complied with the requirements to hold the keeper liable for any debt owed by the unidentified driver? As DWMB2 has said, to determine this, we would need to see both sides of the actual Notice to Keeper (or first PCN).
Personally, I wouldn't want to have to rely solely on a defence of "prove it was me driving" in a civil case (on the balance of probabilities).
-
Thanks for the reply@DWMB2
I have attached the original PCN and I haven't been in touch with them at all so nothing else to add in terms of responses.
I have attached some more images of the area including the signs - https://imgur.com/a/Ftqhm1x
It was nighttime when I was parked there and I could not see the signs as the lighting was not great. My car was facing the road and therefore I did not see any signage about parking there. I have parked there in the past and not had a fine so I think this is a new measure they have taken.
I had to park there in haste because my mother had taken a fall whilst walking up steps at night and as I'm her main driver I came to collect her and had displayed her disabled badge thinking it would be OK.
Here is the Google link - https://www.google.com/maps/place/Shelter+Furniture+Shop/@52.5167494,-1.9943832,3a,75y,53.15h,77.06t/data=!3m6!1e1!3m4!1sgk2Y91qnkUTKFEQQNpY-uA!2e0!7i16384!8i8192!4m15!1m8!3m7!1s0x48709802502e27e3:0x91ce427b3455bbc5!2sKings+Square+Shopping+Centre!8m2!3d52.51719!4d-1.9932703!10e5!16s%2Fg%2F1hc7nn3dd!3m5!1s0x48709802502e27e3:0x11fca1d01122cbb!8m2!3d52.5170092!4d-1.9940263!16s%2Fg%2F11b6hz0klz?entry=ttu
-
I need to fill in the claim form and put up a case to fight the claim.
Before we get into any of the details of the case - it's usually advised not to fill in the paper forms that you have been sent, but to instead conduct the process online, using the 'MCOL' system. There's a guide to that and the whole court process on the MSE Forum, see this link: https://forums.moneysavingexpert.com/discussion/comment/64350585/#Comment_64350585 (https://forums.moneysavingexpert.com/discussion/comment/64350585/#Comment_64350585) If you haven't been to court before I'd advise reading it thoroughly.
What is the best way forward?
On what grounds are you planning to run your defence?
To offer any detailed advice we could do with some more info, including:
- A copy of the original PCN, and any appeal(s) you submitted, alongside their responses
- Photographs of the signage at the site - ideally some closeup showing the contents, and some showing the layout, and whether or not they were 'there to be seen', well-placed or otherwise
- A Google Street View link to whereabouts the vehicle was parked, if available
-
I received the attached County Court claim form today for parking in a location for 19 minutes. It's not a car park and it was from 22.38 pm until 22.57 pm I was unaware that I could not park there as I could not see any signs at night. I did check after I received the fine in the post and they do have signs saying it's a private car park.
I need to fill in the claim form and put up a case to fight the claim.
What is the best way forward?
[attachment deleted by admin]