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  • FIRST POST
    • solomondid
    • By solomondid 15th Feb 16, 6:13 PM
    • 15Posts
    • 5Thanks
    solomondid
    Appeal Dismissed by IAS - Urgent
    • #1
    • 15th Feb 16, 6:13 PM
    Appeal Dismissed by IAS - Urgent 15th Feb 16 at 6:13 PM
    Hello,

    A little background, I rent an office near Heathrow Airport, always park in provided car park for tenants. We are given parking permits by CPM to display on dashboard, price of which is included in my office rent. In contract with the landlord the words are 'Each user is entitled to, free of charge, use of 1 car parking space allocated to them'. Apart from this theres only charges and explanation for adding more spaces to our license. Tenants then get issues with parking permits by CPM, letter, and a sticker, letter states usual terms to display at windscreen all the time, no mention of fines, or timings as access is 24 hours. Landlord contract states my name, CPM letter only has To Manager, Company Name.

    On two occasions, the permit was resting on the front seat as I also have to display my Engineer on Call sign when I go on call outs. I got issued with Parking Charge Notice both the times and obviously, sent a letter to CPM referring to my tenancy agreement, and pictures of the permit lying on the car seat. They rejected my appeal and referred me to IAS, lodged appeal with IAS and was dismissed, This is the excerpt from the appeal response;

    'Whatever the Operator’s reasons, these are the contractual terms for parking, and by failing to display a permit in the windscreen the Appellant agreed to pay.

    The appeal is dismissed'

    I never signed any contract with CPM, with Landlord theres no mention of them giving out parking management to this company, or no mention of third party management at all.

    I received all communication at my office address, and no letter was sent so far to registered keeper (Which is me as well). I never disclosed who was driving, only used 'I' when I stated about being tenant, and holding permit etc, however my letter had my name and office address.

    May I request your kind suggestions, whether this is still arguable, or have I done any mistakes and what else can I do to get rid of these!

    Any help is appreciated, and I shall be thankful for your advice.

    Regards
Page 2
    • solomondid
    • By solomondid 24th May 16, 7:41 PM
    • 15 Posts
    • 5 Thanks
    solomondid
    Thanks,

    Yes Beavis is mentioned in the latest one.

    Tried landlord/management (Email I sent is posted in my post above) and got no response? Should I write them again to cancel as from very early stage I constantly requested the management to cancel this but they kept saying nothing they can do. Remaining I have detailed out in all my previous posts. If as a tenant I pay the parking charge included in the rent of the office, do I stand good chance in the court? I just want to be sure as I am finding it unfair and totally illegal to find an opportunity and rip the tenants off, and I am determined to defend this in court too, only if wisemen here on the forum think its worth?

    Thanks in advance.
    • solomondid
    • By solomondid 24th May 16, 7:50 PM
    • 15 Posts
    • 5 Thanks
    solomondid
    I would like to mention here that I have read through the post 4 in Newbies, and other relevant links of pepipoo and MSE forums, I did not get close to defending in court, may be I failed to read the right ones, or may none of them have yet been to the court? I am looking for motivation and any strong points in my specific case so I can be at peace ignoring these letters till I get real court papers. Thanks for your help so far.
    • Coupon-mad
    • By Coupon-mad 24th May 16, 8:01 PM
    • 48,414 Posts
    • 61,865 Thanks
    Coupon-mad
    http://forums.moneysavingexpert.com/showthread.php?t=5035663

    Why are we discussing DRP again at all?!
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the trail, top of this page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    DON'T read old advice to ignore, unless in Scotland/NI.

    • solomondid
    • By solomondid 19th Jun 17, 4:31 PM
    • 15 Posts
    • 5 Thanks
    solomondid
    Hello All,

    I just wanted to update with the latest from this PCN.

    I was served a judgement, which I did not receive (received but failed to open and read it in time because of being on a holiday) upon return, I noticed through all letters that a CCJ was delivered in my absence, and was placed on my credit file. I applied for a 'Set Aside' and today I appeared for hearing, the set aside has been granted, and judge considered the fact that there is nothing mentioned in the contract about displaying but shown consideration to the fact that if the tenants are issued with a sticker 'I assume you needed to do something with it' I replied I assumed, according to the contract that it is not mandatory on tenants, and is only mandatory on visitors. Judge then asked me to file 'Defense' stating my reasons, and we are now resetting it to the initial stage where if you lose, you pay their charges plus any fees incurred. I agreed and am given 14 days to send my defense in.

    Anybody had a similar situation, I haven't a clue how to prepare the Defense, I may mention here that I did not use any representation, I appeared on my own in the court. Judge asked me if I understood what I am to do next, I said yes, however, I am now struggling to prepare the defense. Please help.

    Thanks,

    Solomon
    • Redx
    • By Redx 19th Jun 17, 4:35 PM
    • 14,817 Posts
    • 18,628 Thanks
    Redx
    for what its worth, my advice is read through the examples listed in post #2 of the NEWBIES sticky thread, then draft your own defence by finding a near match and adapting it

    then post it on here for critique etc

    ps:- you should have received a reply from the current landholder by now so did they agree that the previous contract still held up or did they agree to a new parking plan with you ?

    if yes, do you have this in writing ?

    my point ?

    you posted letters of what you sent out , but no postings of replies
    Last edited by Redx; 19-06-2017 at 4:39 PM.
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
    • solomondid
    • By solomondid 19th Jun 17, 4:56 PM
    • 15 Posts
    • 5 Thanks
    solomondid
    Hello,

    I was issued with new contract upon renewal, which was exactly same to the old one, not a word added by new landlord. Parking conditions only mention I am allowed one free of charge space, and no mention of displaying the permit etc. However, CPM (Car Park Management) issue the permits which are handed in by the landlord to tenants, so tenants never see or speak to a CPM representative, this permit with a letter mentions we must display it. I requested the landlord to cancel the permits, he did not respond in writing but invited me to office and said even though they have the authority to cancel, he is not going to as he will then have to cancel every other PCN issued recently. I mentioned this fact in my application to set aside, and judge said if you could prove he said that it might give you an edge, as it would then mean it is rather a trap which both parties are acting together in. No new parking plans, same old rules, although they have recently installed new signs which did not exist at the time of issuance, only one sign existed in a very large car park. I am intending to stress on the payments I make every month for availing free parking, does it not hold any significance together with wording in contracts which I signed with landlord to state that I wouldnt know who CPM are, and there is not mention of this in the actual contract with landlord.

    Thanks
    • Redx
    • By Redx 19th Jun 17, 5:15 PM
    • 14,817 Posts
    • 18,628 Thanks
    Redx
    I would say that all of the above is relevant because you have a contract for parking and neither the landholder or the PPC have a mechanism in place to force you to obey any signs nor does the contract say that you must display a parking permit either

    a simple solution would be a whitelist of all vehicles allowed to park , or alternatively there should be a system in place that gives you a sticker parking permit if they both felt that you should obey the parking rules (which should be in the contract as a requirement , yet isnt)

    so yes I believe what you have said above is highly relevant and is why I questioned you about this

    any defence you draft should include stuff like the above and any relevant case law that supports it
    Last edited by Redx; 22-06-2017 at 6:42 PM.
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
    • Coupon-mad
    • By Coupon-mad 19th Jun 17, 5:23 PM
    • 48,414 Posts
    • 61,865 Thanks
    Coupon-mad
    You need to read the NEWBIES thread post #2, which would also have assisted you at the set aside hearing, but at least the set aside was agreed, luckily.

    Anyway that's where all the info about court stage is. Show us your draft defence like all the other residential defences here, there are LOADS. Search the forum for them, easily found & copied.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the trail, top of this page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    DON'T read old advice to ignore, unless in Scotland/NI.

    • solomondid
    • By solomondid 22nd Jun 17, 4:56 PM
    • 15 Posts
    • 5 Thanks
    solomondid
    STATEMENT OF DEFENCE


    1. It is admitted that the Defendant is the registered keeper of the vehicle in question.

    2. The defendant has no liability as they are the Keeper of the vehicle, and Claimant has failed to comply with the strict provisions of PoFA 2012 to hold anyone other than the driver liable for the charges.

    2(i) The driver has not been evidenced on any occasion

    2(ii) There is no presumption in law that the keeper was the driver and nor is a keeper obliged to name the driver to a private parking firm. This was confirmed in the POPLA Annual Report 2015 by the POPLA Lead Adjudicator and barrister, Henry Greenslade, when explaining the POFA 2012 principles of 'keeper liability' as set out in Schedule 4.

    3. The reason for this parking company's presence on this gated site can only be for the sole purpose of deterring parking by uninvited persons, for the benefit of drivers authorised by the landowners, and leaseholder businesses. Instead, contrary to various consumer laws, this Claimant carries out a predatory operation on those very people whose interests they are purportedly there to uphold.

    4. The driver was allowed the right to park by the landowners, relying on a legal ‘Agreement for The Supply Of Property Facilities’ with no written clause or verbal agreements to show any kind of permit on the dashboard whilst parked in the car park belonging to The Vista Centre.

    5. This permission created the prevailing and overriding contract - the only contract - and the business was concluded as agreed, at no cost or penalty.

    6. This charge is unconscionable and offends against the penalty rule which was 'plainly engaged' in the case of ParkingEye Ltd v Beavis




    6.1 The operator makes much of the Beavis case, yet they are well aware that the circumstances of the Beavis case were entirely different. Essentially, that case was about the abuse of a free, time-limited public car park where signage could be used to create a secondary contract arising from a relevant obligation and where there was a 'legitimate interest' flowing from the landowner, in charging more than could normally be pursued for trespass.

    6.2 In this case, we have an authorised user using the car park appropriately and there has been no loss nor detriment caused to the owner. While the courts might hold that a large charge might be appropriate in the case of a public car park, essentially as a deterrent, there is nothing in the case to suggest that a reasonable person would accept that this 'fine' is a conscionable amount to be charged under these circumstances.

    6.3 At the Supreme Court in Beavis, it was held at 14: ''…where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty… ''

    6.4 This is NOT a 'more complex' case by any stretch of the imagination. At 32 in the Beavis decision, it was held that a trader, in this case a parking company: ''...can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''

    6.5 Therefore, any putative contract needs to be assessed on its own merits. Consumer law always applies and no contract “falls outside” The Consumer Rights Act 2015; the fundamental question is always whether the terms are fair:

    Schedule 2: 'Consumer contract terms which may be regarded as unfair':
    ’’A term which has the object or effect of inappropriately excluding or limiting the legal rights of the consumer in relation to the trader or another party in the event of total or partial non-performance or inadequate performance by the trader of any of the contractual obligations…’’
    ''A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation.''

    6.6 This charge is clearly punitive and is not saved from breaching the 'penalty rule' (i.e. Lord Dunedin's four tests for a penalty) by the Beavis case, which does NOT supersede other defences. It turned on completely different facts and related only to that car park with its own unique complexity of commercial justification. This case is not comparable.

    6.7 In this case the specific question is whether a reasonable person would agree to a term where parking in a place that they enjoy rights of way and easements and pay a significant rent for the privilege of peaceful enjoyment would also accept a further unknown/not agreed liability. I would suggest that a court would not accept this is reasonable and indeed my next appeal point shows that a Senior Circuit Judge in a 2016 appeal case supports my view.

    7. I also rely upon the Croydon Court decision in Pace Recovery and Storage v Mr N C6GF14F0 16/09/2016.

    7.1 District Judge Coonan dismissed the claim and refused leave to appeal, stating: ''I have to deal with this on the evidence that is before me now. I have before me a tenancy agreement which gives Mr [N. redacted] the right to park on the estate and it does not say “on condition that you display a permit”. It does not say that, so he has that right. What Pace Recovery is seeking to do is, unilaterally outside the contract, restrict that right to only when a permit is displayed. Pace Recovery cannot do that. It has got to be the other contracting party, Affinity Sutton, which amends the terms of the tenancy agreement to restrict the right to park on a place in circumstances in which a permit is displayed but that is not in this tenancy agreement and you as a third party cannot unilaterally alter the terms of the tenancy agreement.''

    7.2 After the hearing, Mr Charman stated his regret that he had relied on the advice of solicitors. ‘…As you can see from this, we rely on solicitors, which maybe we should not really have done, but we have relied on solicitors who at this point have said, “No, there is not a need” and maybe if they had seen the lease…’ No doubt a lot of other Parking companies who have lost at the hands of Gladstone’s Solicitors will be thinking the same thing.

    8. In the Mr. N appeal it was also held that signs added by a third-party parking firm are of no consequence to authorised visitors to premises where other rights prevail and supersede any alleged new 'parking contract’.

    9. It is denied that the Claimant has authority to bring this claim. The proper Claimant is the landowner. Strict proof is required that there is a chain of contracts leading from the landowner to UK Car Park Management Ltd and that they have a right to unilaterally remove or interfere with the overriding rights enjoyed by the lessee company and extended to permitted drivers who were expressly allowed on site.

    10. The claimant is unable to re-offer a contract to park on more onerous terms that those already specified in the lease, which grants an easement/ right to park for everyone and an entitlement to peaceful enjoyment.

    11. If there was a contract, it is denied that the penalty charge is incorporated into the contract. The leaseholders' lease is missing any reference to parking permit requirements and involvement of UKCPM Ltd. And there is no evidence that the original lease contract and revised lease contract with specific details of UKPC’s role and involvement was shared with the defendant.

    12. Alternatively, even if there was a contract, the provision requiring payment of £397.14 is an unenforceable penalty clause.

    13. Further and alternatively, the provision requiring payment of £397.14 is unenforceable as an unfair term contrary to Regulation 5 of The Unfair Terms in Consumer Contracts Regulations 1999 the Consumer Rights Act 2015.

    14. This charge represents a breach of the well-known and well-established principle of promissory estoppel, i.e. that a promise is enforceable by law, even if made without formal consideration, when party A has made a promise to party B, who then relies on that promise to his subsequent detriment.

    15. This charge represents a breach of the well-known and well-established principle that 'a grantor shall not derogate from his grant'. This rule embodies a general legal principle that, if A agrees to confer a benefit on B, then A should not do anything that substantially deprives B of the enjoyment of that benefit.

    16. UK Car Park Management Ltd are not the lawful occupier of the land.
    (i) UK Parking Control Ltd is not the lawful occupier of the land.
    (ii) 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 of the land, I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no locus stand to bring this case.

    17. The provision is a penalty and not a genuine pre-estimate of loss for the following reasons:

    a) As the Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the locations in question
    b) The amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable;
    c) The penalty bears no relation to the circumstances because parking was pre-paid with the rent as per the agreement between the Landowners, and the Defendant.
    d) The clause is specifically expressed in the contract allowing free use of 1 parking space as an authorised tenant.
    e) The Agreement also mentions following charges for additional parking requirements;
    E1) Additional Space in Front Designated Bays - £75 + VAT / Per Month
    E2) Additional Space in Rear Designated Bays - £65 + VAT / Per Month
    E3) Unallocated Spaces - £55 + VAT / Per Month
    E4) Visitor Parking - £03 + VAT / Per Day

    Therefore, the charge is unconscionable, and disproportionate to any losses suffered by the Claimant, and hence I request the court to kindly consider these factors to save me, and other tenants from these legitimate Ponzi schemes, which sure deserve to be regularised.


    Statement of Truth

    I confirm that the contents of this statement are true to the best of my knowledge and belief.


    Signed
    Date – 22/06/2017
    • solomondid
    • By solomondid 22nd Jun 17, 4:57 PM
    • 15 Posts
    • 5 Thanks
    solomondid
    Here is my defence, with thanks to Coupon-mad, all others who are helpful on MSE. Critics please...
    • mistercesq
    • By mistercesq 22nd Jun 17, 5:20 PM
    • 45 Posts
    • 108 Thanks
    mistercesq
    Hello,

    A little background, I rent an office near Heathrow Airport, always park in provided car park for tenants. We are given parking permits by CPM to display on dashboard, price of which is included in my office rent. In contract with the landlord the words are 'Each user is entitled to, free of charge, use of 1 car parking space allocated to them'. Apart from this theres only charges and explanation for adding more spaces to our license. Tenants then get issues with parking permits by CPM, letter, and a sticker, letter states usual terms to display at windscreen all the time, no mention of fines, or timings as access is 24 hours. Landlord contract states my name, CPM letter only has To Manager, Company Name.

    On two occasions, the permit was resting on the front seat as I also have to display my Engineer on Call sign when I go on call outs. I got issued with Parking Charge Notice both the times and obviously, sent a letter to CPM referring to my tenancy agreement, and pictures of the permit lying on the car seat. They rejected my appeal and referred me to IAS, lodged appeal with IAS and was dismissed, This is the excerpt from the appeal response;

    'Whatever the Operator’s reasons, these are the contractual terms for parking, and by failing to display a permit in the windscreen the Appellant agreed to pay.

    The appeal is dismissed'

    I never signed any contract with CPM, with Landlord theres no mention of them giving out parking management to this company, or no mention of third party management at all.

    I received all communication at my office address, and no letter was sent so far to registered keeper (Which is me as well). I never disclosed who was driving, only used 'I' when I stated about being tenant, and holding permit etc, however my letter had my name and office address.

    May I request your kind suggestions, whether this is still arguable, or have I done any mistakes and what else can I do to get rid of these!

    Any help is appreciated, and I shall be thankful for your advice.

    Regards
    Originally posted by solomondid
    We instructed CPM (as landowners) to manage our site and it was a HUGE mistake. Our story will be on ITV on 6th July at 7:30pm . Perhaps direct your managing agents and landowners to the programme so they can understand exactly what CPM are like and what they have gotten themselves involved in.
    • Coupon-mad
    • By Coupon-mad 22nd Jun 17, 9:04 PM
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    Coupon-mad
    I spotted you said 'UKPC' in a later point in defence, needs changing to UKCPM.

    And here, this isn't quite right, firstly it's not an appeal, it a defence:
    6.7 In this case the specific question is whether a reasonable person would agree to a term where parking in a place that they enjoy rights of way and easements and pay a significant rent for the privilege of peaceful enjoyment would also accept a further unknown/not agreed liability. I would suggest that a court would not accept this is reasonable and indeed my next appeal defence point shows that a Senior Circuit Judge in a 2016 appeal case supports my view.
    Then, because you've referred to a 'Senior Circuit Judge in a 2016 appeal case' your next point MUST be about Jopson v Homeguard, which is the only 2016 Appeal case we know of and have the transcript for. PACE v Mr N is good to cite and quote after Jopson, but PACE v Mr N is not a case heard on Appeal by a Senior Circuit Judge.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the trail, top of this page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    DON'T read old advice to ignore, unless in Scotland/NI.

    • Johnersh
    • By Johnersh 22nd Jun 17, 9:11 PM
    • 193 Posts
    • 311 Thanks
    Johnersh
    Personally (and I know I differ from others here) I don't think you need a defence that long, which adopts the "throw the kitchen sink at it" approach, but it'll do.

    It occurs that there is a primary alternative argument, namely that a permit left visible on the seat was still visible through the windscreen in any event and on that basis it is denied any parking terms were breached.
    • Coupon-mad
    • By Coupon-mad 22nd Jun 17, 9:22 PM
    • 48,414 Posts
    • 61,865 Thanks
    Coupon-mad
    It occurs that there is a primary alternative argument, namely that a permit left visible on the seat was still visible through the windscreen in any event and on that basis it is denied any parking terms were breached.
    Originally posted by Johnersh
    True, I'd missed that and agree it should be at the start, to clarify the dispute and facts.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the trail, top of this page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    DON'T read old advice to ignore, unless in Scotland/NI.

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