Set aside CCJ sent to old address for own space parking

dan0116

Does anyone have any comments on the above defence or is it fine to submit?

Fruitcake

For point 8 I suggest you make the statement that no such vote took place and put the scammers to proof that the contrary is true rather than just say you can't remember it happening. I believe the L & T Act also states there must be a majority of those that vote of I think 10%, so again I would suggest you quote that part as well and again put the scammers to proof there was a majority of the residents balloted in favour of introducing the scammers.

For point 9, state that the signs are forbidding.

For 10.1.3, replace "not admitted" with "denied", and put them to proof to the contrary where applicable.

You do not appear to have an inadequate signage point.

I think what you do have is very good and should win. You have the most important points there, and it shows you have done your homework properly.

It might help to include the abuse of process points in a separate post, plus anything else where you have referred to other defence points, just to ensure it has the most up to date information. It's always best to get the more experienced regulars to cast an eye over it.

Have you considered a counterclaim just in case the scammers chicken out and withdraw the claim?

Have you complained to the landowner and your new MP? (I haven't read back through the thread so apologies if you have already done so).

The_Deep

Are you considering a counter claim for harassment? Have you read this?

https://www.consumeractiongroup.co.uk/topic/324523-ukpc-liable-for-trespass-success/

dan0116

Hi all,

Please could you comment on my witness statement below? i have submitted my defence, which I posted earlier in this thread.

At point 15 i'd like to attach a number of judgements which strike out claims for abuse of process due to the £60 debt recovery charge. Can I submit these as "evidence exhibits"? they're all pretty much the same judgement but I don't really have the facts of each claim. I think the point is more that the claims have been thrown out due to the £60 and the facts of the claims are irrelevant. Is it a good idea to attach a few of these judgements do you think?

Also are there any other obvious pieces of  evidence I am missing?

Thanks very much for everyone's help.

1.       I am xxx, of xxxx, the Defendant in this matter. I will say as follows:

 

2.       I am not liable to the Claimant for the sum claimed, or any amount at all and this is my Witness Statement in support of my defence as already filed.

 

3.       Between xx/xx/xxxx to xx/xx/xxxx I was a bona fide resident of the xxx, and I attach the following as evidence of this:

 

a.       Exhibit A – an Assured Shorthold Tenancy Agreement between me and my two housemates at the time of the tenancy, and our landlord xxx;

 

b.       Exhibit B – a Letter from xxx, letting agents for the property as noted on page 30 of Exhibit A, confirming that my housemates and I were tenants during that time.

 

4.       Between xx/xx/xxxx to xx/xx/xx xxx, my landlord, was the leaseholder for both Apartment xxx and car parking space xx and xxA, . I attach the following as evidence of this:

 

a.       Exhibit C - Title Deed xxxx - xxx;

 

b.       Exhibit D - Title Deed xxxx - parking space xx and xxa.

 

c.       Exhibit E - Lease - parking space xx and xxa at xxx

 

5.       There is no reference in any of these documents to the requirement of residents to display a parking permit when parked in their allocated parking space. The operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. I will rely upon the judgment on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) on this point, attached at Exhibit F - JOPSON-V-HOMEGUARD-2906J- Claim no 9GF0A9E

 

6.       I also attach a further judgement from District Judge Coonan in Pace Recovery v Mr N. (206) in support of this point at Exhibit G - Pace Recovery vs Mr N - Claim no C6GF14F0

 

7.       During my tenancy my vehicle was issued with four PCNs by the claimant while parked in parking spaces xx and xxa. the reason for the issue of the PCNs given by the Claimant was “Parked in a residents' parking area without clearly displaying a valid residents' parking permit”.

 

8.       Upon receipt of the first parking charge notice xxx from the Claimant, I made them aware of the fact I was a resident of the location in question through their internal appeals process, however they have elected to pursue this matter via litigation. This is despite an initial offer from the Claimant to reduce the charge in relation to this PCN from £90 to £15. I attach the following as evidence of this which was provided to me by the Claimant on xx/xx/xxxx at my request:

a.       Exhibit H - xxx appeal for PCN xxx;

b.       Exhibit I - UKPC response to xxx appeal for PCN xxx.

9.       Whilst I was the Registered Keeper of the vehicle concerned, xxx, there is no evidence of the driver on each of the PCN issue dates and as these events occurred between four and six years ago, it is impossible to expect a keeper to recall who might have been driving. The insurance on this vehicle covered a number of friends and family members, who I have no obligation to name to a private parking firm. It remains the burden of the Claimant to prove their case that I was the driver.

10.   I deny that I was the driver at the time of the supposed events, and therefore put the Claimant to strict proof that any contract can exist between the Claimant and me as the keeper of the vehicle.

11.   Upon receipt of a parking charge notice from the Claimant, I supplied them with this evidence, however they have elected to pursue this matter via litigation.

12.   It is my position that, under the doctrine of promissory estoppel, the Claimant has no standing, or cause of action, to litigate in this matter.

13.   At various points in my defence already filed, including points 10, 15, 16, and 19, I refer to the Protection of Freedoms Act 2012, Schedule 4, which I attach at Exhibit J.

 

14.   At various points in my defence already filed, including points 16, and 19, I refer to the Consumer Rights Act 2015 – Schedule 2 (the 'grey list' of terms that may be unfair) and in particular paragraphs 6, 10 and 14, which I attach at Exhibit K.

 

15.   From section 16 onwards of my defence already filed I refer to a number of judgements made in various courts in England and Wales attached at…

 

16.   I invite the Court to dismiss this claim in its entirety, and to award my costs of attendance at the hearing, such as are allowable pursuant to CPR 27.14.

Coupon-mad

At point 15 I'd like to attach a number of judgements which strike out claims for abuse of process due to the £60 debt recovery charge. Can I submit these as "evidence exhibits"? they're all pretty much the same judgement but I don't really have the facts of each claim.

Yes, you can just use the ones in the new 'template defence' thread.  Brown Trout replied there with a single document people can use as exhibits, with a Warwick, a Skipton and the 6-page Southampton Approved Judgment.  

Commentary on all of them and what the cases mean, can be found within the template defence that you can download and copy some wording abut the appended Judgments into your WS.

Is it a good idea to attach a few of these judgements do you think?

100% yes, for any parking firm who have spuriously added £60, which is why we now advise to attach them to defences, which is new for us!

I didn't notice that your WS expanded at all on 2 significant defence points:

- signage being unclear and only aimed at deterring non-authorised trespassers

- no landowner authority from the leasehold owner (you?) or freeholder.

And re this, are you SURE you want to use the word 'deny'?  To a Judge?

10.   I deny that I was the driver at the time 

Do you understand what this means when the Judge asks you?

12.   It is my position that, under the doctrine of promissory estoppel, 

Why doesn't your WS briefly mention the set aside and the unfair costs you have been put to by this Claimant (that are hopefully 'reserved' after the set aside)?

Finally, you need a Summary Costs Assessment, signed and dated like in other threads, showing all your costs.

dan0116

Thanks very much for your comments Coupon-mad. I've amended for everything you've highlighted and will re-post my witness statement and costs summary below in case anyone has any comments, or you have any further. I can't thank you enough for the help on this thread.

Coupon-mad said:

At point 15 I'd like to attach a number of judgements which strike out claims for abuse of process due to the £60 debt recovery charge. Can I submit these as "evidence exhibits"? they're all pretty much the same judgement but I don't really have the facts of each claim.

Yes, you can just use the ones in the new 'template defence' thread.  Brown Trout replied there with a single document people can use as exhibits, with a Warwick, a Skipton and the 6-page Southampton Approved Judgment.  

Commentary on all of them and what the cases mean, can be found within the template defence that you can download and copy some wording abut the appended Judgments into your WS.

Is it a good idea to attach a few of these judgements do you think?

100% yes, for any parking firm who have spuriously added £60, which is why we now advise to attach them to defences, which is new for us!

Great, thanks. I've now added the bundle of judgements and an overview at paragraph 15. The abuse of process story seems to be an moving feast that changes every time i visit the forum. Thanks on behalf of everyone on here for your time in promoting this as it seems like it's really gaining traction in tainting these parking firms and their spurious claims. Long may it continue. 

Here is my paragraph 16:

16. From section 16 onwards of my defence already filed I refer to a number of judgements made in various courts in England and Wales. These judgements deal with similar cases where the Claimant knew, or should have known, that an exaggerated ‘parking charge’ claim where the alleged ‘debt’ exceeds the £100 Trade Association ‘ATA’ Code of Practice ceiling is disallowed under the CPRs, the Beavis case, the POFA and the CRA,  I attach three examples of these judgements demonstrating that several court areas continue to summarily strike out private parking cases that include an extravagant and unlawful costs sum at Exhibit L - Example judgements.

Coupon-mad said:

I didn't notice that your WS expanded at all on 2 significant defence points:

- signage being unclear and only aimed at deterring non-authorised trespassers

- no landowner authority from the leasehold owner (you?) or freeholder.

And re this, are you SURE you want to use the word 'deny'?  To a Judge?

10.   I deny that I was the driver at the time 

Do you understand what this means when the Judge asks you?

12.   It is my position that, under the doctrine of promissory estoppel, 

I've added the unclear signage point at paragraph 9. 
Regarding landowner authority I've added paragraph 5 and 8 which note that UKPC are not a party to my lease and that there has not been a valid variation to allow them to impose parking restrictions.
I've changed the deny wording and removed the promissory estoppel point as you're correct, I certainly don't understand the terminology well enough to talk about it.

Coupon-mad said:

Why doesn't your WS briefly mention the set aside and the unfair costs you have been put to by this Claimant (that are hopefully 'reserved' after the set aside)?

Finally, you need a Summary Costs Assessment, signed and dated like in other threads, showing all your costs.

I've pulled together a costs summary which I'll post shortly for comment and added this paragraph 13 in respect of the set aside etc. My costs were not reserved at the set aside hearing unfortunately as the judge deemed that it was fair for the initial judgement to have been issued to my old address despite me having not lived there for over a year before the judgement was issued. Is there any chance of getting that £255 fee back if it is deemed the original claim never had a basis or is that a lost cause now?

13.       Upon receipt of a parking charge notice from the Claimant, I supplied them with the information that I was a resident, however they have elected to pursue this matter via litigation. Initially they pursued a claim using incorrect address details for me and I was issued with a judgement in default. I only became aware of this over a year after it was issued, and it has subsequently been set aside due to the judge deeming that my defence would have a reasonable chance of success. I submit that the Claimant has already wasted considerable court time pursuing this claim. I have also incurred significant costs, including a £255 set aside fee, in relation to this claim which I believe has no basis in law.

dan0116

My full witness statement is here for anyone who wishes to crib anything or has any comments.

IN THE COUNTY COURT AT xxx

Claim No.: xxxx

Between

UK Parking Control Limited
(Claimant)

-and-


xxx
(Defendant)


WITNESS STATEMENT

 

1.       I am xxx, of xxx, the Defendant in this matter. I will say as follows:

 

2.       I am not liable to the Claimant for the sum claimed, or any amount at all and this is my Witness Statement in support of my defence as already filed.

 

3.       Between xx/xx/xxxx to xx/xx/xxxx I was a bona fide resident of the xxx with access to parking spaces xx and xxA of the attached residents’ car park. Access to this car park was by way of a key fob only provided to residents. I attach the following as evidence of this:

 

a.       Exhibit A - Assured Shorthold Tenancy - xxx – an Assured Shorthold Tenancy Agreement between me and my two housemates at the time of the tenancy, and our landlord xxx;

 

b.       Exhibit B - xxx – a Letter from xxx, letting agents for the property as noted on page 30 of Exhibit A, confirming that my housemates and I were tenants during that time.

 

4.       Between xx/xx/xxxx to xx/xx/xx xxx, my landlord, was the leaseholder for both xxx and car parking space xx and xxA, I attach the following as evidence of this:

 

a.       Exhibit C - Title Deed xxx;

 

b.       Exhibit D - Title Deed xxx.

 

c.       Exhibit E - Lease - parking space xx and xxa at xxx

 

5.       There is no reference in any of these documents to the requirement of residents to display a parking permit when parked in their allocated parking space and the only persons with access to park in the car park would be residents with a key fob to enter. My vehicle, at all material times, was parked in accordance with the terms granted by the lease. The operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Claimant, or Managing Agent, in order to establish a right to impose unilateral terms which vary the terms of the lease, must have such variation approved by at least 75% of the leaseholders, pursuant to s37 of the Landlord & Tenant Act 1987 which I attach at Exhibit F - Landlord and tenants act.

 

6.       I will rely upon the judgment on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) on this point, attached at Exhibit G - JOPSON-V-HOMEGUARD-2906J- Claim no 9GF0A9E

 

7.       I also attach a further judgement from District Judge Coonan in Pace Recovery v Mr N. (206) in support of this point at Exhibit H - Pace Recovery vs Mr N - Claim no C6GF14F0

 

8.       In this case the Claimant has taken over the location and runs a business as if the site were a public car park, offering terms with £90 penalty on the same basis to residents and their permitted guests, as is on offer to the general public and trespassers. However, residents are granted a right to park/rights of way and to peaceful enjoyment, and parking terms under a new and onerous 'permit/licence' cannot be re-offered as a contract by a third party. This interferes with the terms of leases and tenancy agreements, none of which is this parking firm a party to, and neither have they bothered to check for any rights or easements that their regime will interfere with (the Claimant is put to strict proof).

 

9.       Further the signs erected by the Claimant refer to “NO UNAUTHORISED PARKING”. The Claimant’s signs have vague terms and a mix of small font, such that they would be considered incapable of binding any person reading them under common contract law, and would also be considered void pursuant to Schedule 2 of the CRA. Consequently, I submit that no contract to pay an onerous penalty was entered into by me with the Claimant, whether express, implied, or by conduct. Clearly as a resident I was authorised to park. These signs also do not make it clear what the penalty for “unauthorised parking” is. I attach a photograph of the signage provided by the Claimant to me at my request on xx/xx/xxxx at Exhibit I - No unauthorised parking sign

 

10.   During my tenancy my vehicle was issued with four PCNs by the claimant while parked in parking spaces xx and xxa. the reason for the issue of the PCNs given by the Claimant was “Parked in a residents' parking area without clearly displaying a valid residents' parking permit”.

 

11.   Upon receipt of the first parking charge notice xxx from the Claimant, I made them aware of the fact I was a resident of the location in question through their internal appeals process, however they have elected to pursue this matter via litigation. This is despite an initial offer from the Claimant to reduce the charge in relation to this PCN from £90 to £15, presumably as it was apparent to them that a resident should not be required to pay a £90 penalty for parking in their own allocated space. I attach the following as evidence of this which was provided to me by the Claimant on xx/xx/xxxx at my request:

 

a.       Exhibit J - xxx appeal for PCN xxx;

 

b.       Exhibit K - UKPC response to xxx appeal for PCN xxx.

 

12.   Whilst I was the Registered Keeper of the vehicle concerned, xxx, there is no evidence of the driver on each of the PCN issue dates and as these events occurred between four and six years ago, it is impossible to expect a keeper to recall who might have been driving. The insurance on this vehicle covered a number of friends and family members, who I have no obligation to name to a private parking firm. It remains the burden of the Claimant to prove their case that I was the driver. I therefore put the Claimant to strict proof that any contract can exist between the Claimant and me as the keeper of the vehicle.

 

13.   Upon receipt of a parking charge notice from the Claimant, I supplied them with the information that I was a resident, however they have elected to pursue this matter via litigation. Initially they pursued a claim using incorrect address details for me and I was issued with a judgement in default. I only became aware of this over a year after it was issued, and it has subsequently been set aside due to the judge deeming that my defence would have a reasonable chance of success. I submit that the Claimant has already wasted considerable court time pursuing this claim. I have also incurred significant costs, including a £255 set aside fee, in relation to this claim which I believe has no basis in law.

 

14.   In relation to parking on private land, it is settled law from the Supreme Court, that a parking charge must be set at a level which includes recovery of the costs of operating a scheme.  However, this Claimant is claiming a global sum of £150 for each of the PCNs in question. This figure is a penalty, far exceeding the £85 parking charge in the ParkingEye Ltd v Beavis case. 

 

15.   From section 16 onwards of my defence already filed I refer to a number of judgements made in various courts in England and Wales. These judgements deal with similar cases where the Claimant knew, or should have known, that an exaggerated ‘parking charge’ claim where the alleged ‘debt’ exceeds the £100 Trade Association ‘ATA’ Code of Practice ceiling is disallowed under the CPRs, the Beavis case, the POFA and the CRA,  I attach three examples of these judgements demonstrating that several court areas continue to summarily strike out private parking cases that include an extravagant and unlawful costs sum at Exhibit L - Example judgements.

 

16.   At various points in my defence already filed, including points 10, 15, 16, and 19, I refer to the Protection of Freedoms Act 2012, Schedule 4, which I attach at Exhibit M - POFA 2012 Schedule 4.

 

17.   At various points in my defence already filed, including points 16, and 19, I refer to the Consumer Rights Act 2015 – Schedule 2 (the 'grey list' of terms that may be unfair) and in particular paragraphs 6, 10 and 14, which I attach at Exhibit N - CRA 2015 - schedule 2.

 

18.   I invite the Court to dismiss this claim in its entirety, and to award my costs of attendance at the hearing, such as are allowable pursuant to CPR 27.14. I Have attached a Summary Costs Assessment at Exhibit [O]

 

 

dan0116

Is this costs schedule fair? It doesn't include any costs in relation to the set aside hearing which I'm assuming I can't now claim given they weren't reserved?
Are all of my costs in the correct category? I won't have any travel costs as i can walk to the court.
I should also add that in reality I think I've probably spent more like 20 hours researching these forums in preparation for all of this. Can I add that to the below or is 7 more reasonable?

In the County Court at xxx

Claim No.: xxx

Between

UK Parking Control Limited

(Claimant)

-v-

xxx

(Defendant)

DEFENDANT'S SCHEDULE OF COSTS

Ordinary Costs

Loss of earnings/leave, incurred through attendance at Court xx/xx/xxxx £95.00

Sub-total £95.00 ======

Further costs for Claimant's unreasonable behaviour, pursuant to Civil Procedure Rule 27.14(2)(g)

Research, preparation and drafting of documents (7 hours at Litigant in Person rate of £19 per hour) £133.00

Land registry document requests: £13.00

Stationery, printing, photocopying and postage: £2.26
Sub-total 148.26 ======

£ 243.26 TOTAL COSTS CLAIMED

D_P_Dance

I love it when people claim for unreasonable behaviour.  If more people did, then perhaps judges might allow a few more.  

Coupon-mad

Don't head it SCHEDULE OF COSTS. 

I now say SUMMARY COSTS ASSESSMENT - sign & date it like a solicitor would (look up a Summary Costs Assessment form on Google, and you will see it is a certain document, and we are trying to emulate it).

Is there any chance of getting that £255 fee back if it is deemed the original claim never had a basis or is that a lost cause now?

You might get a different Judge than the set aside one, and yes they MIGHT award the costs from the first hearing and/or the £255 fee if you convince the Judge with a list of how their claimant's conduct has been 'wholly unreasonable' from start to finish.  So, add the £255 and your costs for the first CCJ hearing under the unreasonableness costs that you wish to claim in full, 'on the indemnity basis' to return you to the position you were in pre-litigation.

If you don't ask you don't get.  

However, reaching that high bar of unreasonableness is a hard one to meet, very hard.  I convinced a Judge once about it and she was with me (StubbornGoat's thread, with £1500 costs being sought!) but she didn't grant the indemnity costs on the technicality/excuse that the costs assessment was only filed 48 hrs before (which is fine in fact but she thought it was an ambush).