UKPC Court claim

TommyG5

Right, thanks for all your help so far guys. Pretty sure the defense is ready to be submitted.

Before I do could you advise on a few modified points 3, 4, 6, 15 (def need more in 15)

Also do defenses need intros or anything at the end.

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


2. The claimant has responded to a Part 18 Request written and sent by the defendant and delivered to SCS Solicitors on the BLANK, however the following questions were not answered:

a. A request to provide the full legal identity of the landowner or occupier.
b. If the contract has been conveyed by the use of signage on site, please provide copies of the
signs on which you rely and confirm these are the signs in situ on the date of the event (December 2013). Please also provide the date these signs were installed, for example, a works schedule, maintenance record or invoice for the work.
c. Were there signs at the entrance to the site on the date in question? Did these meet the
British Parking Association's Code of Practice Appendix B (Entrance signs) or the Independent
Parking Committee’s Schedule 1 (Please indicate)
d. A request to provide a full unredacted copy of the contract with the landowner which demonstrates the claimants authority from the landowner to issue parking charges and litigate in their own name.
e. A request to provide a detailed and itemised breakdown of the losses and or damages suffered by the claimant.

3. Accordingly, 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 Parking Control Ltd. 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 residents and their visitors and an entitlement to peaceful enjoyment.

4. UK Parking Control 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.
(iii) UK Parking Control claim they have a contract with a management company that is not the land owner nor a verified company on companies house. The court is invited to consider whether UKPC is even aware of who their contract is with.

5. 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 it remains the same no matter whether a motorist stays by ten seconds or ten years;
d) The clause is specifically expressed to be a parking charge on the Claimant's current signs.

6. The signage on the site in question is unclear and not prominent on site/around the areas in question or at the entrance to the development, so no contract has been formed with driver(s) to pay £100, or any additional fee charged if unpaid in 28 days. It is clear from UKPC’s own photos that signage was not sufficient or clear. This is in contrast to the Parkingeye Limited v Beavis case where the charges where shown in the largest font on the signage, clarity was vital for the judges decision on ruling in Parkingeye Ltd’s favour.

7. The signage on the site in question is not lit and the parking charge was issued in December late at night (01.00am), so no contract could be or has been formed with driver(s). The signage was not legible as shown in UKPC’s own photos.
8. The markings or lack of in the area do not communicate a 'no parking zone'. Therefore no contract has been made with the driver.

9. The Defendant contends there appears to be nothing legible adjacent to the vehicle to communicate this was private land and terms/restrictions were unlikely to have been seen. The authority for this is Vine -v- London Borough of Waltham Forest; CA 5 Apr 2000.

10. As the POFA restricts liability to the sum of the parking charge itself and the BPA Code of Practice has a ceiling of £100 which at the time, made it a condition that any charge issued must be based upon a GPEOL, the amounts claimed are excessive and unconscionable. It is not believed that the Claimant has incurred additional costs - be it legal or debt collector costs - and they are put to strict proof that they have actually incurred and can lawfully add an extra £60 to the PCN and that those sums formed part of the contract in the first instance.

11. It is not believed that the signage on site at the time included any stated additional costs or surcharges nor even that the £100 was legible on each occasion. No sum payable to this Claimant was accepted nor even known about by any driver; they were not given a fair opportunity to discover the onerous terms by which they would later be bound.

12. It is believed that this Claimant has not adhered to the BPA Code of Practice and is put to strict proof of full compliance. This Claimant has been exposed in the national press - and was recently investigated by the BPA - for falsifying photo evidence, which was admitted by the Claimant. It is submitted that this is not a parking company which complies with the strict rules of their Trade Body, which were held as a vital regulatory feature in ParkingEye v Beavis.

13. This case can be easily distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes and UKPC have not shown any valid 'legitimate interest' allowing them the unusual right to pursue anything more than a genuine pre-estimate of loss.

14. If the driver were 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, and as the Supreme Court in the Beavis case confirmed, such a matter would be limited to the landowner themselves claiming for a nominal sum

15. The Protection of Freedom Act 2012 Schedule 4 has not being complied with. ….The £60 debt recovery charge is against the driver, as UKPC are pursuing this against the registered keeper it is not relevant.

16. The Defendant is willing for the matter to be decided by POPLA (Parking on Private Land Appeals) which will decide the dispute and limits any further costs to this claimant to a pre-agreed parking operator funded cost of £27, with no legal costs. This is the bespoke ADR for BPA members, is available at any time (not just the first 28 days) and has been used to settle private parking court claims on multiple occasions even after proceedings have commenced. POPLA has not been undertaken in this case nor was it mentioned in the recent sparse communications from this Claimant.

17. Save as expressly mentioned above, the Particulars of Claim is denied in its entirety. It is denied that the Claimant is entitled to the relief claimed or any relief at all.

The_Slithy_Tove

Don't use abbreviations like POFA or GPEOL without defining what they mean on first use.

GPEOL is dead following Beavis. So, if you want to use it, you need to demonstrate exactly why the Beavis judgement is not relevant in this case, and therefore why the Claimant can only claim their actual losses (You have in #13, but they need to refer to each other).

In #12, you need to cite specific examples where they have failed to follow the CoP in your case. Otherwise they'll simply rebut by saying that the BPA have given them a clean bill of health.

leeda84

With regards to the planning permission, measure the signs and definitely get in contact with the council to confirm UKPC has not requested planning permission!
The reason being, I recently had a response back from my local council regarding the UKPC entrance sign to my development. I asked the planning officer if UKPC was allowed to erect this sign without planning permission and this was his response:

Various types of advertisements can be erected without gaining advertisement consent from the Local Planning Authority, as per the provisions of The Town and Country Planning (Control of Advertisements) (England) Regulations 2007. In my opinion, this type of advertisement would be considered against the criteria of Schedule 3 Part 1 Class 2A of this legislation, as follows:

Class 2 - Miscellaneous advertisements relating to the premises on which they are displayed
Description 2A. An advertisement displayed for the purpose of identification, direction or warning, with respect to the land or building on which it is displayed.
Conditions and Limitations 2A.—
(1) No advertisement may exceed 0.3 square metre in area.
(2) Illumination is not permitted.
(3) No character or symbol on the advertisement may be more than 0.75 metre in height, or 0.3 metre in an area of special control.
(4) No part of the advertisement may be more than 4.6 metres above ground level, or 3.6 metres in an area of special control.

Based on the dimensions stated of 56cm (w) x 82cm (h), the advertisements would exceed 0.3 square metre in area, thus would require advertisement consent.

The_Deep

GPEOL is dead following Beavis.


Please Explain

beamerguy

leeda84 wrote: »

With regards to the planning permission, measure the signs and definitely get in contact with the council to confirm UKPC has not requested planning permission!
The reason being, I recently had a response back from my local council regarding the UKPC entrance sign to my development. I asked the planning officer if UKPC was allowed to erect this sign without planning permission and this was his response:

Well done, very helpful. The moral is if you enter a UKPC car park, take your tape measure with you.
Or, any car park who these weasels run wild on

bargepole

The_Deep wrote: »

GPEOL is dead following Beavis.


Please Explain

The Beavis judgment(s), in all three hearings, held that there was no quantifiable loss to Parking Eye.

Their parking charge, therefore, did not represent a genuine pre-estimate of loss, and was theoretically a penalty. But, the courts would not strike it down under the penalty doctrine, because there was a legitimate interest in upholding the charge, in order to deter breaches of contract and to maintain availability of spaces in the car park.

This means that it's no longer a valid defence to assert that there was no GPEOL, because there doesn't have to be any.

TommyG5

Ok then, should i remove that part from my defense? or is it ok if i reason that it is different from the beavis case in that beavis was a commercial car park and this a residential, therefore there is no loss?

I will go and do a measure up of the signs then, when I check out there locations tomorrow!

Any other parts that could be added or removed? Dont want to have points in it that will fall flat because i missed something!

The_Deep

is it ok if i reason that it is different from the beavis case in that beavis was a commercial car park and this a residential, therefore there is no loss?

Keep it in

I cannot believe that it was Their Lordships' intention that dishonest companies such as these should profit from this judgement. UKPC is a favourite of many Housing Associations and other down-market accommodations which allow HB tenants.

I believe that Bargepole is wrong in this instance. I cannot see any legitimate interest in upholding the charge. The purpose of PPCs is to facilitate residents' parking requirements. I do not see how interfering with their lease-hold rights to "quiet enjoyment" of their properties achieves this

Not only was Beavis about a commercial car park, PE were paying the land owner £52,000 a year to farm it, they had a strong financial interest in it.

Residential parking is a world away from a free two hour car park with no facility to buy extra time, where turnover was required, within walking distance of a commuter station, and where a large PPC had rent to recoup.

You could find out if the PPC pays the MA, or vice versa

salmosalaris

The_Deep wrote: »

is it ok if i reason that it is different from the beavis case in that beavis was a commercial car park and this a residential, therefore there is no loss?

Keep it in

I cannot believe that it was Their Lordships' intention that dishonest companies such as these should profit from this judgement. UKPC is a favourite of many Housing Associations and other down-market accommodations which allow HB tenants.

I believe that Bargepole is wrong in this instance. I cannot see any legitimate interest in upholding the charge. The purpose of PPCs is to facilitate residents' parking requirements. I do not see how interfering with their lease-hold rights to "quiet enjoyment" of their properties achieves this

Not only was Beavis about a commercial car park, PE were paying the land owner £52,000 a year to farm it, they had a strong financial interest in it.

Residential parking is a world away from a free two hour car park with no facility to buy extra time, where turnover was required, within walking distance of a commuter station, and where a large PPC had rent to recoup.

You could find out if the PPC pays the MA, or vice versa

I'm not sure why you think Bargepole is wrong , he has simply stated that there doesn't necessarily need to be a loss for a liquidared damages clause still to be enforceable .
I also agree with you though that there is no legitimate interest in penalising those who are simply parking in their alloted space and I think the Beavis judgment can be used to support that view . But please forget the fishing licence it is utterly irelevant .
32. ''The true test is whether the impugned provision is a secondary obligation whichimposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation. The innocent party can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance.

The_Deep

salmosalaris wrote: »

I'm not sure why you think Bargepole is wrong , he has simply stated that there doesn't necessarily need to be a loss for a liquidared damages clause still to be enforceable .
.

No, this is what he stated

(There is) no longer a valid defence to assert that there was no GPEOL, because there doesn't have to be any.

Surely that is worth keeping it in and letting a judge rule against it.