County Court Claim AM Parking Services Ltd

JimmyChan · 28 February 2017 at 12:39AM

After batting away numerous PCNs over a number of years using this site for parking in my own space and surrounding roads I now have a County Court Claim sent to me. I have acknowledged the claim. I would be very grateful is some eyes could look over my defence.

Preamble: I owned the registered leasehold of a property with both the flat & parking space demised to me. One day signs (“contracts to park”) went up around the estate and a permit to park was posted under my door (no other information given). I then kept getting PCNs in my own space & on the public highways around the estate (they are public I have checked). This PCN (which the claim is for) I received a “Notice to Owner” I then appealed to parking company (in time of course) but received nothing more. Fast forward to over year since I sold the leasehold and I received a LBC, which I responded to asking for more detail, then I received the claim. Due to their lack of information I don’t know if the PCN was for parking in my own space or for parking on the public highway.

My defence:

It is admitted that the defendant was the registered keeper of the vehicle noted at the date of alleged breach. However, the claimant has no cause of action against the defendant on the following grounds: -

Notwithstanding that the claimant claims no right to pursue the defendant as the registered keeper under The Protection of Freedoms Act 2012 (PoFA 2012); the Claimant has failed to meet the conditions of the Act and has never acquired any right to pursue the Defendant in this capacity if they cannot identify the driver.
The Claimant alleges the driver breached “the terms of parking” but no terms are given nor is any valid breach established.
The place of the alleged breach is given as “land at Coriander Drive Maidstone Kent”, there are many registered parcels of land in and around Coriander Drive as well as registered leaseholds on parts of these parcels of land, therefore strict proof is required as to the exact site of the breach.
AM Parking Services Ltd are not the lawful occupier of any land around Coriander Drive. Absent a contract with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier, I have reasonable belief that they do not have authority to issue charges on this land in their own name and that they have no right to bring action regarding this claim.
The Defendant owned at the time of the alleged breach the registered leasehold for one of the above-mentioned parcels of land. Which included a parking space as part of the property which had been demised to the Defendant.
The leasehold held by the Defendant at the time of the alleged breach, with no amendments mentions no terms which must be followed in order to park on the leased section of land. Nor does it mention the Claimants authority to operate a parking scheme on the leased section of land.
Coriander Drive has been adopted by Kent County Council and is marked as a “Publicly Maintainable Highway” in the Kent County Council Highways Gazetteer under the Unique Street Reference Number of 24202170. Signs have been placed alongside the public road stating it is a private road, this makes it impossible to identify where the public highway ends and where the private land starts (and therefore there is no way to know what land the “terms” apply).
PoFA 2012 only allows the recovery of the parking charge stated on the Notice to Keeper and not court fees, damages, indemnity costs or legal representative’s costs.
No contract, terms and conditions or sum payable were ever accepted by any driver.
The Defendant believes that his personal details have been obtained unlawfully by the Claimant and asks that the Court does not to assist the Claimant to benefit from a wrongdoing. (Ex turpi causa non oritur action).

Any help will be gratefully received.

Half_way · 28 February 2017 at 12:47AM

Have you at any point taken this up with the management company?
if not why not? you should be demanding that they put an immediate stop to this.

please read these, courtesy of lynzer on pepipoo and then get back here with your thoughts and findings http://www.thebridesmother.co.uk/Media/residential-parking.pdf

Template letters http://www.thebridesmother.co.uk/Media/Templates.pdf

note: do not use templates as is use them as something to base your own things on.
and report back

As ever the lease is critical and you should be engaging with the management company to put a stop to this, you need to show you are being reasonable by trying to keep this out of court

JimmyChan · 28 February 2017 at 12:51AM

I wrote to the management company and their reply was, "All parking enforcement agencies are with the council I am afraid you will need to speak to them directly." Which is why I don't think they have any contract at all to operate on the land.[FONT=&quot]
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pappa_golf · 28 February 2017 at 1:12AM

post the letters to the management co and ask ??????

JimmyChan · 28 February 2017 at 1:21AM

I have replied to their email asking for clarification if they were in contract with AM Parking Service Ltd at the time and have heard nothing back since. So I was assuming I was going to hear nothing from them in the two weeks I have to file my defence.

Coupon-mad · 28 February 2017 at 1:31AM

Ex turpi causa non oritur actio (not 'action').

And you need a statement of truth at the end. Are you setting it out as recommended by bargepole in his threads under the hearing 'Small Claim?' in the NEWBIES thread, 1.5 line spaced and Times New Roman font 12, with headings as shown by bargepole?

I would also search the forum for 'Jopson defence derogation from grant' and read and grab the best bits from the defences you find which support your primacy of contract. The Jopson case was an appeal heard by a Senior Circuit Judge, and so it is persuasive on the lower courts. Then there is Pace v Mr N and Saeed v Plustrade.

I think your defence should state that this claimant appears to be trying to hold you liable for a parking charge on the tenuous basis that you were:

- registered keeper of the vehicle on the material day, and

- because they had slipped permits under your door one day with no explanation.

Make the unfairness and lack of any 'agreed contract' clear to the Judge. Here's one someone wrote, based on others:

http://forums.moneysavingexpert.com/showthread.php?t=5606584

You might want to go for something in between. Which solicitor is it, Gladstones like that one?

pappa_golf · 28 February 2017 at 2:11AM

I then kept getting PCNs in my own space & on the public highways around the estate (they are public I have checked)

popcorn time?

JimmyChan · 1 March 2017 at 1:01AM

Thank you Coupon-mad I have been reading the link provided and spent the evening reading up on Court procedures (don't worry I will read up on the case law you provided tomorrow) and so I have created some preliminary matters if you will indulge me:

1) The claimant failed to include a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the Claimants contractual authority to operate there as required by the Claimants Trade Association's Code of Practice A7.1 which says that If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges.

2) The particulars of claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached. Indeed, the particulars of the claim are not clear and concise as is required by CPR 16.4 1(a).

3) The Claimant has not complied with the pre-court protocol:

a) When requested for concise details of the claim (in line with Para 6(a) & Para 6(c)), such as a specific location, a contract with the land owner and how the claimed amount had been arrived at, they either ignored the request or stated it would only be provided in their clients witness statement if the matter went to court.

b) When requested that we consider using ADR, as Para 8 suggests, by using the claimants own Trade Association’s recommended ADR (Parking on Private Land Appeals) it was dismissed with no satisfactory answer. Due to the above I would refer the court to Para 11 & 14(c) on the unreasonableness of dismissing ADR.

c) I'd refer the court to Para 4 on non-compliance and sanction, and I'd also point out that there can be no reasonable excuse for the Claimant's failure to follow the Pre-action Conduct process.

4) I have an email from the Managing Agent for private land the parking charge was issued on which states “All parking enforcement agencies are with the council” which shows they have no standing in order to bring a claim.

On the basis of the above, we request the court strike out the claim for want of a
cause of action

pappa_golf · 1 March 2017 at 1:03AM

I then kept getting PCNs in my own space & on the public highways around the estate (they are public I have checked)

and have you checked this out at all?

JimmyChan · 1 March 2017 at 1:18AM

Coriander Drive has been adopted by Kent County Council and is marked as a “Publicly Maintainable Highway” in the Kent County Council Highways Gazetteer under the Unique Street Reference Number of 24202170. Signs have been placed alongside the public road stating it is a private road

You can then look on Google Maps hxxps://goo.gl/maps/HAYjj51mMYD2 and see the private parking signs along the public highway.

Coupon-mad · 1 March 2017 at 1:35AM

https://goo.gl/maps/HAYjj51mMYD2

Those signs on odd walls are woeful and if it's adopted highway then it's the Council's remit, as you say:

Coriander Drive has been adopted by Kent County Council and is marked as a “Publicly Maintainable Highway” in the Kent County Council Highways Gazetteer under the Unique Street Reference Number of 24202170. Signs have been placed alongside the public road stating it is a private road.

Can you ask the Council in writing/by email, for a boundary map showing which area is public highway and ask whether Council CEOs issue PCNs and enforce any traffic order on part/all of Coriander Way.

Good start to the defence BTW.

County Court Claim AM Parking Services Ltd

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