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  • FIRST POST
    • Nielken
    • By Nielken 5th Jul 17, 1:01 PM
    • 6Posts
    • 2Thanks
    Nielken
    CPMS LTD County Court Claim form received
    • #1
    • 5th Jul 17, 1:01 PM
    CPMS LTD County Court Claim form received 5th Jul 17 at 1:01 PM
    Hi all, first time poster, long time reader / user.

    I've been through the forums and looked for an example similar to mine but the situation is frankly bizarre.

    A few months ago I parked at my sister in laws inside a gated residence car park, they have a space but don't have a car. She just told me to park anywhere on the left which I'm guessing now was somewhat inaccurate.

    Either way, when I returned to the car a couple of days later there were two PCNs for 'parking in thew wrong bay' each with a charge of £100.

    Having not received a ticket for years I was of the impression to ignore them and they'd go away (Now potentially outdated information)

    I received a follow up letter from them which I subsequently ignored too.

    Today I received a Claim Form in the 'County Court Business Centre' issued two days ago.

    I've never had anything like this or been through anything like this so want to get advice as well as sanity check my thoughts having read the forums.

    My opinion on being fined for parking in the wrong space of a residential car park which is nowhere near occupied, inside a private gate is somewhat poor. Unfortunately my wife has binned any previous correspondence and the tickets from them as she assumed it was a scam.

    My understanding is that I will now need to acknowledge receipt of the form and subsequently form a defence, potentially turning up at court to contest the issue.

    I'm going to attend the site tomorrow, taking pictures and videos of any signage (I cannot remember noticing anything standout but then wouldn't have been looking as it wasn't a 'pay for' car park. In addition if required I could get a letter from the tenant if you feel it would be beneficial.

    I cannot remember receiving any picture evidence of my vehicle in the letter they sent me, in addition to the space markers being small bronze plates situated on the curb making them hard to read if parked or on approach.

    Any help would be appreciated, I'm a little concerned about the court piece as we will be trying to get a mortgage in 12 months and the last thing I want is something like this over me, yet I'm also loathed to pay £225 for the supposed 'offence' of parking in a residential gated community in the wrong bay!

    Thank in advance everybody and apologies if I've missed anything glaringly obvious.

    Niel
Page 1
    • Umkomaas
    • By Umkomaas 5th Jul 17, 2:21 PM
    • 13,585 Posts
    • 21,297 Thanks
    Umkomaas
    • #2
    • 5th Jul 17, 2:21 PM
    • #2
    • 5th Jul 17, 2:21 PM
    'Court' will have no impact on your mortgage, unless you lose and then fail/refuse to pay any costs awarded against you within the timescale set by a judge. So get that issue firmly 'parked' (excuse the pun!).

    Your first priority is to acknowledge service of the court papers to gain yourself a further 14 days (33 in total from the 'Date of Issue' shown on the court papers) to develop your defence. Do not send a defence in at this stage - certainly do not put anything into the defence box when acknowledging service.

    For further advice on dealing with a county court claim, please read the NEWBIES FAQ sticky, post #2. We will help you through this once you have a better understanding, from reading the sticky, of how to manage things from here on.
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • Nielken
    • By Nielken 10th Jul 17, 12:50 PM
    • 6 Posts
    • 2 Thanks
    Nielken
    • #3
    • 10th Jul 17, 12:50 PM
    Potential defence
    • #3
    • 10th Jul 17, 12:50 PM
    Hi,

    I have now completed the first stage in acknowledging the case and need to formulate my defence, about three weeks out so plenty of time to go. The points below I have taken from what I felt was the closest recent defence to something similar. As I mentioned I was visiting my sister in law and left the car in a space for two days.

    There are apparently little bronze plates which mark each space on the curb, these are absolutely not clear though. I have been unable to get pictures at the moment as she moved out two weeks ago, her ex-flatmate still lives there so I can get in to get pictures if absolutely necessary .

    Any suggestions for other things to include relative to the facts would be appreciated, as mentioned this was in a private, coded residential parking area, the claimant (CPMS) is issuing these PCNs because they said I parked in the wrong space.

    1.I contend that the Claimant has no authority to bring a claim.

    The Claimant does not own the land where the vehicle was parked, nor do they have any interest in the land. It, therefore lacks the capacity to offer parking.

    2(a) The Claimant doesn't have a proof of a chain of contracts leading from the landowner to the Claimant which show that they have a right to unilaterally remove or interfere with the overriding rights of the property.

    2(b) Alternatively, even if a contract could be established, the provision requiring payment of £100.00 per ticket (x2) is an unenforceable penalty clause and an unfair term contrary to the Consumer Rights Act 2015 and the Unfair Terms in Consumer Contracts Regulations 2008

    2© Furthermore, Paragraph 4, Schedule 4 of the Protection of Freedoms Act 2012, makes it clear the keeper can only be liable for the amount on the Notice to Keeper. The Notice to Keeper sent by the Claimant stated the charge was "£100, reduced if paid within 14 days".
    *** Not sure if to include this as I no longer have the originals and cannot be sure of the reduced offer amount, I also don't fully understand the purpose of it in the defence as it sounds like an admission of guilt . ***

    3.The claimant’s notices attempt to make a forbidding offer, which isn’t an offer at all, therefore no contract exists.

    The Claimant's notices state parking restrictions apply - Read signage within on entry. Parking is permitted for vehicles therefore there is no offer of a contract for those visiting residents.

    3(a) Furthermore, the notices on site are confusing and contradictory
    *** This I cannot be sure of as I currently cannot read the interior signage,
    I don't remember it being perticularly clear however
    . ***

    4. The presence of the Claimant on the land will have supposedly been to prevent parking by uninvited persons, for the benefit of the actual leaseholders. Instead, a predatory operation has been carried out on those very people whose interests the Claimant was purportedly there to uphold.

    5. There can be no ‘legitimate interest’ in penalising residents for using parking spaces, under the excuse of a scheme where ostensibly and as far as the landowner is concerned, the parking firm is contracted for the benefit of the residents. It is unconscionable, contrary to the requirement of good faith and ‘out of all proportion to any legitimate interest’ to fine residents or their visitors for using the parking spaces provided.

    I believe that the Claimant is abusing the Court process by using the threat of action and the threat of damaging my credit rating to alarm me into making a payment that is not owed.

    The Court is invited to strike out the claim as having no reasonable prospect of success.

    I believe that these facts stated in this defence are true.


    Thanks again for helping with this. Seems like they have moved to issuing court proceedings as a way to keep the money coming in but I must admit at first was pretty concerning!
    • Nielken
    • By Nielken 10th Jul 17, 1:16 PM
    • 6 Posts
    • 2 Thanks
    Nielken
    • #4
    • 10th Jul 17, 1:16 PM
    • #4
    • 10th Jul 17, 1:16 PM
    Also potentially these but I wasn't sure about all the 'legal speak' as to what would apply for me?

    Notwithstanding that the Claimant claims no right to pursue the Defendant as the registered keeper under The Protection of Freedoms Act 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 it cannot identify the driver. This distinguishes the case from Elliott vs Loake(1982) in which there was irrefutable evidence of the drivers identity. The Protection of Freedom Act 2012 Schedule 4 has not being complied with and the claimant may not quote reasonable assumption. PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, "There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and operators should never suggest anything of the sort"(2015).

    The claimant may try to rely upon ParkingEye Ltd v Beavis [2015] UKSC 67, ('the Beavis case') yet such an assertion is not supported by any similarity in the location, circumstances nor signage. Absent any offer or agreement or even any licence to park without a permit, the Beavis case does not assist the claimant and in fact, supports my defence. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landowner can pursue a case under the tort of trespass, not this Claimant. As the Supreme Court in the Beavis case held, ParkingEye would not have been able to recover any sum without agreement on the charge and any issue of trespass would be limited to the landowner themselves claiming for a nominal sum. The amount claimed is an extravagant and unconscionable penalty. Even if all the conditions had been met to disengage the penalty, the Supreme Court in ParkingEye v Beavis was only prepared to accept a charge (£85) that was sufficient to act as a disincentive and that was worth collecting. The Supreme Court had previously stated that £135 would be unacceptable ( ParkingEye v Somerfield).
    In summary this case differs to 'the Beavis case' as:
    i) The Private Parking Charge has not followed an "effectively binding" code of practice.
    ii) The Claimant has no commercial justification
    iii) The Claimant did not follow the IPC or BPA Code of Practice
    iv) The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question
    v) The amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable.
    • Coupon-mad
    • By Coupon-mad 10th Jul 17, 2:04 PM
    • 48,068 Posts
    • 61,518 Thanks
    Coupon-mad
    • #5
    • 10th Jul 17, 2:04 PM
    • #5
    • 10th Jul 17, 2:04 PM
    Include it all, even the parts you have queried in red.

    But from your latest post, remove these:

    iv) The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question
    v) The amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable.
    and instead have:

    iv) The defendant's vehicle was parked with full authorisation by the resident, whose lease grants rights of way and unfettered rights to park on the land is already allowed, under the terms agreed at the time that the resident signed for the property.*
    v) The amount claimed is a charge and evidently disproportionate and to any loss suffered by the Claimant disregards the pre-existing rights of residents and their legitimate visitors.
    vi) The signage is inadequate as notice of any 'contractual' terms, not only because the signs are sporadically placed and the £100 onerous 'charge' buried in small print, but also because it makes no offer/grants no licence to park to non-permit holders. Even if the signs are held as capable of making such an offer, it is impossible for this claimant to re-offer a parking licence (on more onerous terms) that has already been granted free to residents by the landowner.




    * is that true? What does her lease say, or is she a tenant, renting the property? What does her AST say, or what info came in any letter or email about parking?
    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.

    • Nielken
    • By Nielken 12th Jul 17, 9:22 AM
    • 6 Posts
    • 2 Thanks
    Nielken
    • #6
    • 12th Jul 17, 9:22 AM
    • #6
    • 12th Jul 17, 9:22 AM
    * is that true? What does her lease say, or is she a tenant, renting the property? What does her AST say, or what info came in any letter or email about parking?
    She was a tenant living there yes but I believe they get allocated a space, the issue here is that I was apparently parked in the wrong space. They have these tiny little bronze plates which say which space is which that are mounted on the curb. Also my sister in law didn't tell me to park in a specific space......

    So, I'll make the changes you suggested and remove the first bit as I think that could become contentious.

    Do I need to try and get back into the parking area to take pictures of signage etc or no?

    Thanks again

    • Coupon-mad
    • By Coupon-mad 12th Jul 17, 3:28 PM
    • 48,068 Posts
    • 61,518 Thanks
    Coupon-mad
    • #7
    • 12th Jul 17, 3:28 PM
    • #7
    • 12th Jul 17, 3:28 PM
    Yes, as this is a defended claim, photos can be key.

    Angle them to show the signs are in small font, sparse, covered by convenient foliage(!) or similar (we must play the damn PPCs at their own game).

    Also, take a ruler or tape measure to hold next to the words to show how tiny the font size is, as you will be comparing it to the (clear) Beavis case sign.
    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.

    • Nielken
    • By Nielken 20th Jul 17, 6:31 PM
    • 6 Posts
    • 2 Thanks
    Nielken
    • #8
    • 20th Jul 17, 6:31 PM
    • #8
    • 20th Jul 17, 6:31 PM
    So I've put together the defence and made all the alterations, anything else I should include before submitting the below and does all the language stack up?

    Thanks again.

    1. I contend that the Claimant has no authority to bring a claim.

    The Claimant does not own the land where the vehicle was parked, nor do they have any interest in the land. It, therefore lacks the capacity to offer parking.

    2(a) The Claimant doesn't have a proof of a chain of contracts leading from the landowner to the Claimant which show that they have a right to unilaterally remove or interfere with the overriding rights of the property.

    2(b) Alternatively, even if a contract could be established, the provision requiring payment of £100.00 per ticket (x2) is an unenforceable penalty clause and an unfair term contrary to the Consumer Rights Act 2015 and the Unfair Terms in Consumer Contracts Regulations 2008

    3.The claimant’s notices attempt to make a forbidding offer, which isn’t an offer at all, therefore no contract exists.

    The Claimant's notices state parking restrictions apply - Read signage within on entry. Parking is permitted for vehicles therefore there is no offer of a contract for those visiting residents.

    3(a) Furthermore, the notices on site are confusing, contradictory and unobvious to visitors to residents.

    4. The presence of the Claimant on the land will have supposedly been to prevent parking by uninvited persons, for the benefit of the actual leaseholders. Instead, a predatory operation has been carried out on those very people whose interests the Claimant was purportedly there to uphold.
    5. Notwithstanding that the Claimant claims no right to pursue the Defendant as the registered keeper under The Protection of Freedoms Act 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 it cannot identify the driver. This distinguishes the case from Elliott vs Loake (1982) in which there was irrefutable evidence of the drivers identity. The Protection of Freedom Act 2012 Schedule 4 has not being complied with and the claimant may not quote reasonable assumption. PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, "There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and operators should never suggest anything of the sort"(2015).

    The claimant may try to rely upon ParkingEye Ltd v Beavis [2015] UKSC 67, ('the Beavis case') yet such an assertion is not supported by any similarity in the location, circumstances nor signage. Absent any offer or agreement or even any licence to park without a permit, the Beavis case does not assist the claimant and in fact, supports my defence. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landowner can pursue a case under the tort of trespass, not this Claimant. As the Supreme Court in the Beavis case held, ParkingEye would not have been able to recover any sum without agreement on the charge and any issue of trespass would be limited to the landowner themselves claiming for a nominal sum. The amount claimed is an extravagant and unconscionable penalty. Even if all the conditions had been met to disengage the penalty, the Supreme Court in ParkingEye v Beavis was only prepared to accept a charge (£85) that was sufficient to act as a disincentive and that was worth collecting. The Supreme Court had previously stated that £135 would be unacceptable ( ParkingEye v Somerfield).
    In summary this case differs to 'the Beavis case' as:
    i) The Private Parking Charge has not followed an "effectively binding" code of practice.
    ii) The Claimant has no commercial justification
    iii) The defendant's vehicle was parked with full authorisation by the resident.
    iv) The amount claimed is evidently disproportionate and disregards the pre-existing rights of residents and their legitimate visitors.
    v) The signage is inadequate as notice of any 'contractual' terms, not only because the signs are sporadically placed and the £100 onerous 'charge' buried in small print, but also because it makes no offer/grants no licence to park to non-permit holders. Even if the signs are held as capable of making such an offer, it is impossible for this claimant to re-offer a parking licence (on more onerous terms) that has already been granted free to residents by the landowner.

    6. There can be no ‘legitimate interest’ in penalising residents for using parking spaces, under the excuse of a scheme where ostensibly and as far as the landowner is concerned, the parking firm is contracted for the benefit of the residents. It is unconscionable, contrary to the requirement of good faith and ‘out of all proportion to any legitimate interest’ to fine residents or their visitors for using the parking spaces provided.

    I believe that the Claimant is abusing the Court process by using the threat of action and the threat of damaging my credit rating to alarm me into making a payment that is not owed.

    The Court is invited to strike out the claim as having no reasonable prospect of success.

    I believe that these facts stated in this defence are true.
    • Coupon-mad
    • By Coupon-mad 20th Jul 17, 6:35 PM
    • 48,068 Posts
    • 61,518 Thanks
    Coupon-mad
    • #9
    • 20th Jul 17, 6:35 PM
    • #9
    • 20th Jul 17, 6:35 PM
    I can't see this in the defence and I would have it there, saying these are simply impossible to see and fail Lord Denning's 'red hand rule':

    They have these tiny little bronze plates which say which space is which that are mounted on the curb.
    But I would spell KERB correctly!
    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.

    • Nielken
    • By Nielken 21st Jul 17, 1:59 PM
    • 6 Posts
    • 2 Thanks
    Nielken
    Ha ha ha yes I shall spell it correctly Normally I'm quite good at things like that!

    Before I file it I need to go back and check and take pictures - make sure they don't change anything etc.

    Thanks again for all your assistance.

    Kindest regards

    Niel
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