Heath Parade, Graham Park Way is a well known scam site. There is a lay-by which appears to be part of the the public highway but is not. There are signs but they are far too small to be read from a vehicle. The PCM UK parking attendant lurks nearby and when a car stops races out to get a photo. A PCN is issued even if the driver gets out, gets close enough to the sign to read it, realises no parking is allowed and immediately leaves.
This scam is actively supported by William Hurley, John Davies of the IPC/Gladstones Solicitors and
Bryn Holloway of the IAS, and Gladstones are now assisting PCM-UK in taking motorists to court.
The Prankster suggests a defence on the following lines.
DEFENCE STATEMENT
Site Information
The site appears to be a layby and part of the public highway and there is no information close enough to be read by an approaching driver to suggest it is private land or otherwise restricted.
The parking warden “Mrs Sunglasses” lurks nearby continuously. When a vehicle enters the layby she approaches from the rear, takes a photograph and leaves without attempting to contact the driver. A parking charge is issued even if the driver gets out of the car, gets close enough to the sign to read it, then immediately departs.
It is clear that the signs are so high and the writing so small it cannot be read from a vehicle or even by a pedestrian until right by the sign. Here is Ms Sunglasses standing underneath one of the signs.
“Mrs Sunglasses” is on site so often she even appears on Google Streetview.
It is clear then that this is nothing more than a scam. If the parking company genuinely wished to prevent parking “Mrs Sunglasses” could remain on site and politely ask drivers to leave immediately. They would also use large signs which can be seen from inside vehicles.
Defence
I assert that I am not liable to the Claimant for the sum claimed, or any
amount at all, for the following reasons:
1.
I was, at the relevant date, the registered keeper of the vehicle in
question. On the material date, I stopped in the layby for a very brief period
of time. I did not see any nearby signage prohibiting this.
2.
I subsequently received a Notice to Keeper from the Claimant, alleging
that a charge of £100 was due to them. I did not send an appeal to the Claimant.
or a further appeal to the Independent Appeals Service (IAS), the allegedly
independent body appointed by the Claimant’s trade body, the Independent
Parking Committee (IPC). My research revealed that the IAS, far from being
independent, is a subsidiary of the IPC, which in turn is owned and run by the
same two Directors who also run Gladstones Solicitors, the individuals in
question being John Davies, and William Hurley. Such an incestuous relationship
is incapable of providing any fair means for motorists to challenge parking
charges, as well as potentially breaching the SRA Code of Conduct. As such, the
Claimant does not come to this matter with clean hands.
3.
The Claimant’s signage with the largest font at this site states “No Customer Parking At Any Time”. A
further sign with much smaller writing and higher up states “The loading bay is only for authorised
vehicles actively loading & unloading when delivering to the commercial
tenants of Heath parade”. It is submitted that if these notices are
attempting to make a contractual offer, then as they are forbidding they do 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.
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. A full transcript of the Approved Judgment for the above case will
be provided in the event that this case proceeds to a hearing.
5.
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.
6.
In the alternative, if it was held that the signage was contractually valid,
it would be impossible for a motorist to have read the terms and conditions
contained therein from a moving or stopped vehicle, and if the vehicle is
stopped, the ‘contravention’ according to the Claimant is already committed.
7.
The above point was recently tested in several cases regarding Hayes and
Harlington station. There a similar situation arises as the vehicles were
charged for briefly stopping but the signs are far away from vehicles and high
up
In all cases it was ruled
that no contract was entered by performance as the signage could not be read
from a vehicle. No transcripts are available but as PCM UK were the claimant in
all cases they will be fully aware of the cases; C3GF46K8, C3GF44K8, C3GFY8K8 ,
8.
The IPC code of conduct states
that a grace period must be allowed in order that a driver might spot signage,
go up to it, read it and then decide whether to accept the terms or not. A
reasonable grace period in any car park would be from 5-15 minutes from the
period of stopping. This grace period was not observed and therefore the
operator is in breach of the industry code of practice. Additionally no
contract can be in place by conduct until a reasonable period elapses.
9.
Thus the signage is simply a device to entrap motorists into a situation
whereby the Claimant sends them invoices for unwarranted and unjustified
charges, for which motorists can have no contractual liability due to the terms
and conditions not having been sufficiently brought to their attention. This
activity is bordering on, if not actually crossing the boundary of, a criminal
offence of Fraud By False Representation.
Additionally, the contract fails informational requirements for contracts established in the Consumer Contracts (Information, Cancellation And Additional Charges) Regulations 2013, enacted 13 June 2014.
Any alleged contract would be a distance contract for services as defined in The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.
The regulations define three types of contracts; distance contracts, on premises contract and off-premises contracts.
The definitions concern themselves with how a contract is concluded (and in particular if face to face contact occurs during this process) and not where the contract is eventually performed. Thus, if a consumer books a hair styling appointment over the web, that is a distance contract even though they go to the salon for the actual styling. If they re-book at the salon, that will be an on-premises contract. If they meet their stylist in Tesco, arrange for an appointment and immediately phone the salon to confirm, that will be an off-premises contract. All these contracts are performed on-premises, but concluded in different ways.
The regulations define an on-premises contract as:
“on-premises contract” means a contract between a trader and a consumer which is neither a distance contract nor an off-premises contract;
Thus a contract cannot be on-premises if it is a distance contract.
The regulations define a distance contract as:
“distance contract” means a contract concluded between a trader and a consumer under an organised distance sales or service-provision scheme without the simultaneous physical presence of the trader and the consumer, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded;
• This is clearly an organised service-provision scheme (for parking)
• The contract is clearly concluded without the simultaneous physical presence of the trader and the consumer.
• There is clearly the exclusive use of one means of distance communication (signage) up to and including the time at which the contract is concluded.
This is therefore a distance contract.
None of the exemptions in regulation (6) apply. No vending machine or automated premises was used to conclude the contract. Any contract would be concluded by parking and walking away.
Regulation 13 lists information to be provided before making a distance contract. The contract fails to provide the required information listed in Schedule 2. As per 13(1) the contract is therefore not binding.
Alternatively if the contract is on or off-premises, the information rules still apply and the contract is not binding as per either 9(1) or 10(1).
Additionally, the charge of £100 is a penalty and unfair consumer charge. The leading
case on this matter is ParkingEye v Beavis [2015] UKSC 67. In that case it was
ruled that the penalties rule was engaged but the charge was not unfair because
the motorist had the bargain of 2 hours of valuable free parking in exchange
for the risk of paying £100 for overstaying. The risk was clearly brought to
the attention of the consumer in a huge font. Here, there is no valuable
consideration on offer and no bargain for the consumer, and the charge is
hidden in small print. It is submitted that no motorist would agree to pay £100
instantly on stopping and this is therefore and unfair consumer term in breach
of the Consumer Rights Act 2015..
1 In order to issue parking charges, and to pursue
unpaid charges via litigation, the Claimant is required to have the written
authority of the landowner, on whose behalf they are acting as an agent, in
this case Peel Land & Property Ltd. No evidence of such authority was
supplied by the Claimant at any time, and the Claimant is put to strict proof
of same, in the form of an unredacted and contemporaneous contract, or chain of
authority, from the landowner to the Claimant.
1 In addition to the £100 ‘parking charge’, for which
liability is denied, the Claimant’s legal representatives, Gladstones
Solicitors, have artificially inflated the value of the Claim by adding costs
of £50 which I submit have not actually been incurred by the Claimant, and
which are artificially invented figures in an attempt to circumvent the Small
Claims costs rules using double recovery. The Court is invited to report Gladstones
Solicitors to the Solicitors’ Regulation Authority for this deliberate attempt
to mislead the Court, in contravention of their Code of Conduct.
1 The Court is invited to dismiss this Claim, and to
allow such Defendant’s costs as are permissible under Civil Procedure Rule
27.14.
Counterclaim
It is not possible that a valid parking charge exists for the following reasons
The signage cannot be safely read while driving. There can therefore be no meeting of minds and no contract by performance
The signage is forbidding and makes no offer to the motorist. There can therefore be no contract.
Even if there was a contract the signage fails informational requirements for contracts established in the Consumer Contracts (Information, Cancellation And Additional Charges) Regulations 2013, enacted 13 June 2014, and so any contract would be non-bindng on the consumer
Even if there were a binding contract the charge would be a penalty and unfair consumer term as it is not a genuine pre-estimate of loss and is not saved by the case law in ParkingEye v Beavis.
There was therefore no valid reason to apply for my keeper data from the DVLA.
Additionally the operator contract with the DVLA only allows them to obtain data for parking contraventions and not for briefly stopping.
My name and address information (together with other information) is classified as personal data within the meaning of s1(1) of the Data Protections Act (DPA). You are misusing this data by attempting to claim a charge is do when there is no possibility a lawful reason exists. Additionally you may only obtain and use this data from the DVLA for parking, and not for stopping.
This is therefore a breach of data principle 1 (data must be used lawfully) and 2 (data must only be used for the purpose provided).
The case of Vidal-Hall v Google Inc [2014] EWHC 13 (QB) provides authority that misuse of personal data is a tort and that damages may be non-pecuniary. The case of Halliday v Creation Consumer Finance Ltd [2013] All ER (D) 199 provides authority that a reasonable sum for compensation would be £750.
The case of VCS v Phillip, claim number C9DP2D6C Liverpool 07/12/2016, while not binding, concerns a motorist sent a parking charge for briefly stopping at Liverpool Business Park. The signage there has the equivalent forbidding wording to the signage in this case. The judge ruled that no contract could exist and therefore data had been wrongly obtained from the DVLA. This is therefore a persuasive case that a DPA breach occurs when a parking charge is not legitimately pursued, and that a sum of at least £250 is compensation for pursuing a purported parking charge when there is no reasonable prospect of success.
I therefore claim £250.
Happy Parking
The Parking Prankster
