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County Court Claim, is it too late?

mnkut
mnkut Posts: 104 Forumite
edited 12 November 2017 at 8:20PM in Parking tickets, fines & parking
Hi all

This is in regards to a family friend who received a ticket from UK Car Park Management for parking without displaying permit (even though they own a permit)

They received a **Judgement for the claimant (dated 15th August) on 27th August via Gladstones. Stating the individual did not respond to the Claim form.

They no longer live at the address it was posted too. And have no discovered the letter (and following debt enforcement letters) which is why they did not act in time.

Initially when they received the ticket over a year ago, they went to CAB. Where the CAB agent called UKPCM and attempted to cancel the ticket over the phone. Although they were not successful in this instance. No written appeals have been made to date.

They are registered disabled due to mental illness and this is causing them severe undue stress.

As their support in this matter, I'm just not sure if it's too late? :(
Let me know if you need any further info to assess
Thanks so much
«1

Comments

  • Coupon-mad
    Coupon-mad Posts: 130,606
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    Same as this one:

    http://forums.moneysavingexpert.com/showthread.php?t=5742961

    Not too late. Johnersh explains here (taken from another thread):

    http://forums.moneysavingexpert.com/showthread.php?p=73397703#post73397703

    and quite possibly the person you describe might be able to get help with court fees:

    https://www.gov.uk/get-help-with-court-fees

    No-brainer to try. We succeed almost every time and the only recent one I recall that was refused to be set aside, is now being appealed by a poster who won a similar case at a full hearing and wants to right the wrong of the flawed decision by a Judge not to set his/her CCJ aside.

    HTH
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top of this/any page where it says:
    Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
  • Umkomaas
    Umkomaas Posts: 41,255
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    a ticket from UKPCM
    the CAB agent called UKPCM
    Don’t recognise the PPC.

    Could you provide the precise name please? It could be UKCPM, or Parking Control Management (UK) Ltd, and there’s a few others with similar possible letter permutations.
    Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .

    I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.

    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.

    Private Parking Firms - Killing the High Street
  • mnkut
    mnkut Posts: 104 Forumite
    Umkomaas wrote: »
    Don’t recognise the PPC.

    Could you provide the precise name please? It could be UKCPM, or Parking Control Management (UK) Ltd, and there’s a few others with similar possible letter permutations.

    Apologies! The typo from my end definitely didn't help either.
    I have edited my OP
  • mnkut
    mnkut Posts: 104 Forumite
    edited 12 November 2017 at 10:33PM
    I'm new to the legal remit of private parking (more experience with POPLA)

    I feel may be getting witness and defence statement confused?!
    Here's what I've been doing so far - please let me know if I'm going majorly off-piste.

    IN THE COUNTY COURT - Claim No.: *********

    Between

    UK CAR PARK MANAGEMENT LTD (Claimant)

    -and-

    ****** (Defendant)
    ____________________________
    WITNESS STATEMENT
    __________________________

    I, xxxxxxx of xxxxxxxx am the defendant in this case.

    The facts in this statement come from my personal knowledge. Where they are not within my own knowledge there are true to the best of my information and belief

    1. The defendant was not living at the address which the Judgement for Claimant was served, therefore has only now become aware of the claimant’s intentions. Thus the immediate filing of this witness statement.

    2. The Claimant did not receive any response to their communications made to the defendant for over a year, this should have proved enough to the Claimant that the Defendant no longer resides at the address they have obtained. As in the case of Marshall Rankine v Maggs, it is incumbent on a Claimant to take reasonable steps to ascertain a defendant's last known residence, requiring the claimant to serve within a 4 month period. Failure to do so, led the claimant's appeal to be dismissed.

    3. Whilst the defendant was the Registered Keeper of the vehicle concerned, there is no evidence of the driver and as this event has been resurrected from one year ago, it is impossible to expect a keeper to recall who might have been driving. Especially during a time where the defendant was experiencing severe mental and physical health issues.

    4. The Defendant denies being the driver at the time of the supposed event, and therefore puts UK Car Park Management to strict proof that any contract can exist between the Claimant and themselves. The defendant was registered unfit to drive by medical authorities.

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

    a. The driver has not been evidenced on any occasion.
    b. There is no presumption in law that the keeper was the driver and nor is the 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 the barrister, Henry Gleenslade, when explaining the POFA 2012 principles of ‘keeper liability’ as set out in Schedule 4.

    6. At the time in 2016, the defendant had a number of carers which all had insurance of their own allowing them to drive the vehicle, which was at all times an authorised vehicle with a permit for the location.!I have no obligation to name!the driver (even if I knew which driver parked on this occasion) to a private parking firm. It remains the burden of the Claimant to prove their case.

    7. The Defendant denies that the Claimant has the authority to bring a claim. The Claimant does not own the land where the vehicle was parked, nor does he have any interest in the land. He therefore lacks the capacity to offer parking.

    8. There was no requirement upon me as keeper to respond to what appeared to be junk mail, and in any event was not a matter where a registered keeper could be in any way legally liable as the law stood at that time. No adverse inference can be drawn from my lawful decision to ignore the colourful letter, impersonating a parking ticket yet with no basis in law.

    9. 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 actio). The defendant’s DVLA data was supplied for the single strict purpose of enquiring who was driving, not for storing for 1 year then serving a county court claim.

    10. The defendant is no more liable now than I was then, but this unwarranted harassment and baseless litigation has caused my already ailing health significant alarm and distress, such that I intend to report UK Car Park Management to the Information Commissioner for misuse of my data, obtained from the DVLA in 2012.!

    11. 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 and their invited guests. Instead a predatory operation has been carried out on those very people whose interests the Claimant was purportedly there to uphold.

    12. In the case of Saeed v Plustrade Limited [2001] EWCA Civ 2011 parking restrictions and a change which caused detriment to tenants and their visitors were held to be in breach of the well-known and well established principle that ‘a grantor shall not derogate from his grant’

    13. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and interests of the landowner. Strict compliance with the BPA(CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to!park!free. None of this applies in this material case.!

    a. In Beavis it was held that the purpose of a parking charge must not be to penalise drivers. Justification must depend on some other ‘legitimate interest in performance extending beyond the prospect of pecuniary compensation flowing directly from the breach in question’. The true test was held to be ‘whether the impugned provision is a secondary obligation which imposes detriment on the contract-breaker out of all proportion to any legitimate interest […..] in enforcement of the primary obligation’!

    b. There can be no ‘legitimate interest’ in penalising residents or their visitors 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 allocated parking spaces.
  • Coupon-mad
    Coupon-mad Posts: 130,606
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    5. At the time in 2016, the defendant had a number of carers which all had insurance of their own allowing them to drive the vehicle, which was at all times an authorised vehicle with a permit for the location. I have no obligation to name the driver (even if I knew which driver parked on this occasion) to a private parking firm. It remains the burden of the Claimant to prove their case.

    Is the PCN from many months ago, or even 2016? If so, then see this by Johnersh:

    http://forums.moneysavingexpert.com/showthread.php?p=73393735#post73393735

    http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2006/20.html&query=marshall+and+rankine+and+maggs&metho%20%20d=boolean

    http://adrianzuckerman.co.uk/files/File/cjq2009_1editorsnote_-_new_provisions_for_service.pdf

    Use the above to leave the Judge in no doubt that good service has not been effected, again as explained by Johnersh, convince the Judge about that, and the CCJ MUST be set aside (no wriggle room):

    http://forums.moneysavingexpert.com/showthread.php?p=73397703#post73397703

    HTH
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top of this/any page where it says:
    Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
  • mnkut
    mnkut Posts: 104 Forumite
    Coupon-mad wrote: »
    Is the PCN from many months ago, or even 2016? If so, then see this by Johnersh:

    http://forums.moneysavingexpert.com/showthread.php?p=73393735#post73393735

    http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2006/20.html&query=marshall+and+rankine+and+maggs&metho%20%20d=boolean

    http://adrianzuckerman.co.uk/files/File/cjq2009_1editorsnote_-_new_provisions_for_service.pdf

    Use the above to leave the Judge in no doubt that good service has not been effected, again as explained by Johnersh, convince the Judge about that, and the CCJ MUST be set aside (no wriggle room):

    http://forums.moneysavingexpert.com/showthread.php?p=73397703#post73397703

    HTH

    This is fantastic!
    I have included this in the post above now - have also enhanced further. If anybody would mind giving it a look over.
  • Coupon-mad
    Coupon-mad Posts: 130,606
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    edited 12 November 2017 at 11:04PM
    obtained from the DVLA in 2012.

    Do you mean 2016?

    I like that version - it looks much stronger now. I would just add something like this about the Jopson case (appeal):
    At all times, a carer using the car to collect me or drop me off at my home was legitimately stopped and it is averred that if there was any short period where a predatory parking operator employee found the car without a permit, this can only have been during the minutes taken for the carer to accompany me indoors and fetch the permit, to display it in the particular vehicle before it was left in that place.

    The residents have rights of way and easements flowing from their Tenancy Agreement and this Claimant has no standing and no right to disregard the rights of residents and their visitors. In this regard, I rely upon the transcripts in the (Gladstones solicitors) cases of:

    - PACE v Noor - C6GF14F0
    - and the persuasive Appeal decision from 2016 by His Honour Charles Harris QC: Jopson v Home Guard - B9GF0A9E.

    The cases support the view that penalties which ignore the rights of residents make life in a block of flats ''unworkable'' and it was found in each case that the signs - such as they are - were of no consequence and created no new contract terms capable of unilaterally varying the grant under a residential lease. Indeed the parking restrictions foisted upon residents and visitors were a matter of derogation from grant and I believe my case is on all fours with those cases.

    Are you able to look at the tenancy agreement to see what it says about permits/parking charges?

    Even a silent AST (as regards parking) is good, because it doesn't create any obligation to display a permit, and doesn't support parking charges - any modern lease has implied rights to peaceful enjoyment, whether stated or not.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top of this/any page where it says:
    Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
  • System
    System Posts: 178,077
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    @mnkut

    How did this one end up?
  • Quentin
    Quentin Posts: 40,405 Forumite
    The op hasn't logged in here for some months

    Maybe a pm might alert him/her to your post here
  • System
    System Posts: 178,077
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    The op hasn't logged in here for some months

    Maybe a pm might alert him/her to your post here

    Just working through the 2000 posts in the last year where people haven't come back for one [unknown] reason or another [unknown] reason.

    Just take it that a) I know when they last logged in and b) I won't be presumptive enough to PM people.
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