PCN from CPM

Akumo

[FONT=&quot]In the County Court Business Centre
Between:
UK Car Park Management
V
XXXXXXXXXXX
[/FONT][FONT=&quot]
Claim Number: XXXXXXXX

I, XXXXXXXXXXXXX, deny I am liable to the Claimant for the entirety of the claim for each of the following reasons:[/FONT]
[FONT=&quot]
[/FONT]

1. [FONT=&quot]The car was being loaded with personal belongings taken from a property that I was living in. Evidence for this can be seen in the tenancy agreements.[/FONT]
2. [FONT=&quot]There is no process or procedure put in place by either UK CPM or by the Housing Association in order to account for tenants either moving into or out of a property.[/FONT]
3. [FONT=&quot]This Claimant has not complied with pre-court protocol (as outlined in the new Pre Action Protocol for Debt Claims, 1 October 2017). As an example as to why this prevents a full defence being filed at this time, a parking charge can be for trespass, breach of contract or a contractual charge. All these are treated differently in law and require a different defence. The wording of any contract will naturally be a key element in this matter, and a copy of the alleged contract has never been provided to the Defendant.[/FONT]
4. [FONT=&quot]There was no compliant ‘Letter before County Court Claim’, under the Practice Direction.[/FONT]
5. [FONT=&quot]This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The badly mail-merged documents contain very little information.[/FONT]
6. [FONT=&quot]The Schedule of information is sparse of detailed information.[/FONT]
7. [FONT=&quot]The Claim Form Particulars were extremely sparse and divulged no cause of action nor sufficient detail. The Defendant has no idea what the claim is about - why the charge arose, what the alleged contract was; nothing that could be considered a fair exchange of information.[/FONT]
8. [FONT=&quot]The Claim Form Particulars did not contain any evidence of contravention or photographs. These documents, and the ‘Letter before County Court Claim’ should have been produced, pursuant to paragraph 6 of the Practice Direction – Pre Action Conduct. This constitutes a deliberate attempt to thwart any efforts to defend the claim or to “take stock”, pursuant to paragraph 12 of the Practice Direction. Again, this totally contradicts the guidance outlined in the new Pre-Action Protocol for Debt Claims (2017), the aims of which are:[/FONT]
   1. [FONT=&quot]‘early engagement and communication between the parties, including early exchange of sufficient information about the matter to help clarify whether there are any issues in dispute[/FONT]
   2. [FONT=&quot]enable the parties to resolve the matter without the need to start court proceedings, including agreeing a reasonable repayment plan or considering using an Alternative Dispute Resolution (ADR) procedure[/FONT]
   3. [FONT=&quot]encourage the parties to act in a reasonable and proportionate manner in all dealings with one another (for example, avoiding running up costs which do not bear a reasonable relationship to the sums in issue) and[/FONT]
   4. [FONT=&quot]support the efficient management of proceedings that cannot be avoided.’[/FONT]
9. [FONT=&quot]The [/FONT][FONT=&quot]Defence[/FONT][FONT=&quot] therefore asks the Court to strike out the claim as disclosing no cause of action and having no reasonable prospect of success as currently drafted.[/FONT]
10. [FONT=&quot]Alternatively, the Defendant asks that the Claimant is required to file Particulars which comply with Practice Directions and include at least the following information;[/FONT]
    1. [FONT=&quot]Whether the matter is being brought for trespass, breach of contract or a contractual charge, and an explanation as to the exact nature of the charge[/FONT]
    2. [FONT=&quot]A copy of any contract it is alleged was in place (e.g. copies of signage)[/FONT]
    3. [FONT=&quot]How any contract was concluded (if by performance, then copies of signage maps in place at the time)[/FONT]
    4. [FONT=&quot]Whether keeper liability is being claimed, and if so copies of any Notice to Driver / Notice to Keeper[/FONT]
    5. [FONT=&quot]Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter[/FONT]
    6. [FONT=&quot]If charges over and above the initial charge are being claimed, the basis on which this is being claimed[/FONT]
    7. [FONT=&quot]If Interest charges are being claimed, the basis on which this is being claimed.[/FONT]
11. [FONT=&quot]Once these Particulars have been filed, the Defendant asks for reasonable time to file another [/FONT][FONT=&quot]defence[/FONT][FONT=&quot].[/FONT]
12. [FONT=&quot]The Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012. Absent such a notice served within 14 days of the parking event and with fully compliant statutory wording, this Claimant is unable to hold me liable under the strict ‘keeper liability’ provisions.[/FONT]

[FONT=&quot]
[/FONT]

[FONT=&quot] Schedule 4 also states that the only sum a keeper can be pursued for (if Schedule 4 is fully complied with, which it was not, and if there was a 'relevant obligation' and relevant contract' fairly and adequately communicated, which there was not) is the sum on the Notice to Keeper. They cannot pluck another sum from thin air and bolt that on as well when it is believed that neither the signs, nor any NTK mentioned a possible additional £256.90 for outstanding debt and damages.[/FONT]

[FONT=&quot]The Claimant has added unrecoverable sums to the original parking charge. It is believed that the employee who drew up the paperwork is remunerated and the particulars of claim are templates, so it is simply not credible that £50 'legal representative’s (or even admin) costs’ were incurred.[/FONT] [FONT=&quot]

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 the interests of the landowner. Strict compliance with the BPA Code of Practice (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. As far as I can ascertain, based upon the very vague particulars of claim and complete lack of evidence and photographs, and without having been furnished with the alleged signage 'contract', none of this applies in this material case.
[/FONT][FONT=&quot]
In the absence of any proof of adequate signage that contractually bound the Defendant then there can have been no contract and the Claimant has no case.[/FONT]

1. [FONT=&quot]The Claimant is put to strict proof that at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs.[/FONT]
2. [FONT=&quot]In the absence of strict proof I submit that the Claimant was committing an offence by displaying their signs and therefore no contract could have been entered into between the driver and the Claimant.[/FONT]
3. [FONT=&quot]Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case:[/FONT]
   1. [FONT=&quot]Sporadic and illegible (charge not prominent nor large lettering) of site/entrance signage - breach of the POFA 2012 Schedule 4 and the BPA Code of Practice and no contract formed to pay any clearly stated sum.[/FONT]
   2. [FONT=&quot]It is believed the signage was not lit and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Consumer Rights Act 2015 in requiring a huge inflated sum as 'compensation' from by an authorised party using the premises as intended.[/FONT]
   3. [FONT=&quot]No promise was made by the driver that could constitute consideration because there was no offer known nor accepted. No consideration flowed from the Claimant.[/FONT]
   4. [FONT=&quot]The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.[/FONT]
   5. [FONT=&quot]BPA CoP breaches - this distinguishes this case from the Beavis case:[/FONT]
      1. [FONT=&quot]The signs were not compliant in terms of the font size, lighting or positioning.[/FONT]
      2. [FONT=&quot]The sum pursued exceeds £100.[/FONT]
      3. [FONT=&quot]There is / was no compliant landowner contract.[/FONT]

[FONT=&quot]No standing - this distinguishes this case from the Beavis case:
It is believed Civil Enforcement do not hold a legitimate contract at this car park. As an agent, the Claimant has no legal right to bring such a claim in their name which should be in the name of the landowner.[/FONT]

[FONT=&quot]
[/FONT]
[FONT=&quot]The Beavis case confirmed the fact that, if it is a matter of trespass (not breach of any contract), a parking firm has no standing as a non-landowner to pursue even nominal damages.[/FONT]

[FONT=&quot]The charge is an unenforceable penalty based upon a lack of commercial justification. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim.[/FONT]

[FONT=&quot]
The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has:[/FONT]

• [FONT=&quot]Failed to disclose any cause of action in the incorrectly filed Claim Form issued on 4th December 2017.[/FONT]
• [FONT=&quot]Sent a template, well-known to be generic cut and paste 'Particulars' of claim relying on irrelevant case law (Beavis) which ignores the fact that this Claimant cannot hold registered keepers liable in law, due to their own choice of non-POFA documentation.[/FONT]

[FONT=&quot]
[/FONT][FONT=&quot]
The vague Particulars of Claim disclose no clear cause of action. The court is invited to strike out the claim of its own volition as having no merit and no reasonable prospects of success.
I confirm that the above facts and statements are true to the best of my knowledge and recollection.[/FONT]

Akumo

Hi KeithP

I have reformatted it, hopefully it makes more sense now and is easier to read.

Thank you.

Akumo

Hi

So I have contacted the Housing Association today, no luck getting hold of the Housing Officer, the person I spoke to went through to head office and said that I shall have to contest the claim, they don't want any involvement in it.

Another poster stated that as I was loadnig a vehicle that this does not come under parking regulations. Does this change what I should be writing in my defence at all?

Johnersh had given some pointers, if I have misunderstood what changes he suggested I make then then being told that I have misundersrtood would be nice.

As I have not had any feedback on what I have re-written and reformatted I take it that this is either perfectly good as a defence or completely useless and is not worth commenting on.

Any help advice or guidance is much appreciated as my defence will need to be in on Friday 5th January.

Thanks in advance

Akumo

Coupon-mad

Only reason for no reply recently is Christmas/New Year, people were busy with real life and are now playing catch-up.

Some posts are missed entirely, it's completely normal and expected (surely) at this time of year, and in August, for the forum to be quiet when most of us take holidays.

Akumo

Apologise Coupon-Mad, I certainly did not mean to offend or upset anyone, after all the help that you and everyone else provides within this forum is most helpful.

It is just that I have not been through this process before, and was getting concerned and nervous with the deadline now approaching.

Regards

Akumo

Akumo

Having had another look at the paper work that came through,

The parking charge notice states for the:

observed time: 14:21
Time of issue: 14:32

Two photographs have been taken:
The first at 14:22:01
The second at 14:22:04

As far as I can tell there is no photographic evidence as proof that I was there for more than the 3 seconds within which the pictures were taken.

Of course the parking charge notice was stuck on the windscreen but there is no evidence that the car was not driven somewhere and then reparked in that same location later.

This then also falls outside of the BPA guidelines in which they state according to section 13.4 that there should be a minimum of 10 minutes as a grace period.

Regards

Akumo

nosferatu1001

Loading or unloading is NOT parking. Absolutely not.
Jopson entirely falls within what your defence should be written argh d. This was at the court of appeal so persuasive on lower courts.

Akumo

Sorry Nosferatu, why Argh?

But thank you for the reference.

I have carried out another search on the forum and come to the following conclusion that all my defence actually needs is to reference the Jopson case, so this would consist of ( I have included a couple of additional points as well):


IN THE COUNTY COURT

CLAIM No: CXXXXXX

BETWEEN:

UK Car Park Management (Claimant)

-and-

Mr XXXXXXXXXX (Defendant)

Claim Number: XXXXXXXX[FONT=&quot]
[/FONT]
[FONT=&quot]


[/FONT]I, XXXXXXXXXXXXX, deny I am liable to the Claimant for the entirety of the claim for each of the following reasons:

1. [FONT=&quot]The car was being loaded with personal belongings taken from a property that I was living in. Evidence for this can be seen in the tenancy agreements.[/FONT]
2. [FONT=&quot]There is no process or procedure put in place by either UK CPM or by the Housing Association in order to account for tenants either moving into or out of a property at this location nor for any business making deliveries to residence and tenants of this particular block of flats.[/FONT]
3. [FONT=&quot]This has already been put forward and judged on in case law in the instance of Jopson V Homeguard.[/FONT]
4. [FONT=&quot]Where in Jopson was unable to load or unload her vehicle due to lack of egress from the car park due to, amongst other things the size of the car parking spaces.[/FONT]
   1. [FONT=&quot]This case goes beyond the rights of owners and tenants and extends to visitors and delivery vehicles having a need to load or unload directly in front of communal areas.[/FONT]
   2. [FONT=&quot]It was also established in this case that the ruling of ParkingEye v Beavis (2015) does not apply to residential parking, and therefore the doctrine prohibiting an operator from imposing a penalty is still relevant.[/FONT]
5. Therefore, the charge in question is likely to be such a penalty unless there is found to be commercial justification (which, in a residential car park, is impossible) or it is found to be a genuine pre-estimate of loss (which is similarly implausible in a residential car park where the right to park is bestowed upon residents).
6. The Supreme Court found that £85 was not a genuine pre-estimate of loss in the Beavis case as there was no direct loss to the parking company. Therefore, commercial justification for charging residents and their visitors to park in their own spaces is untenable and unconscionable.
7. There can be no legitimate interest in issuing charges to residents or their permitted visitors, and so the Beavis ‘test’ is not satisfied. Any such charge should be deemed a penalty.
8. [FONT=&quot]This Claimant has not complied with pre-court protocol (as outlined in the new Pre Action Protocol for Debt Claims, 1 October 2017). As an example as to why this prevents a full defence being filed at this time, a parking charge can be for trespass, breach of contract or a contractual charge. All these are treated differently in law and require a different defence. The wording of any contract will naturally be a key element in this matter, and a copy of the alleged contract has never been provided to the Defendant.[/FONT]
9. [FONT=&quot]There was no compliant ‘Letter before County Court Claim’, under the Practice Direction.[/FONT]

"I believe the facts contained in this Defence Statement are true."

nosferatu1001

Typo. Already ��

Akumo

OK, so on the Tenancy agreement signed when we moved in and all subsequent Tenancy agreements there is no reference to parking arrangements.

However a parking bay was allocated for the flat that we had moved into.

Googling the tenancy agreement for the Housing Association brings up the following wording for parking:

20. Parking
a) You must not park any vehicle or trailer on our property, except in a garage or other marked parking space that you rent with the property.
b) If we own a private parking area on the estate the property is on, we may allow you to use a parking space on which you can park a private car or motorcycle only. The vehicle must have a current MOT certificate, be insured, and be fit for use on a public road. It must also be a reasonable size and weight for the parking area. The vehicle must stand on its own wheels and not be on a trailer, ramps, blocks or any other form of support.
c) You must get our prior written permission if you, or any member of your household or visitors, want to park any other type of vehicle, or more than one vehicle in the parking area. We can withdraw our permission at any time by giving you seven days’ notice in writing.
d) If you are allocated a parking space in the parking area, you must use only the space that is allocated to you.
e) You can carry out minor repairs in the parking area, but you must not break up vehicles, carry out repairs which you will be paid for, or use spray equipment or power tools.
f) You must clean up any oil, which has leaked or spilled, from your vehicle.
g) You must not put caravans, vehicles, trailers, boats or parts from any of these in the property’s garden without our written permission.
h) You must keep vehicles that are not in a roadworthy condition in a garage and insured or we may remove them and we will charge you for the cost of removal.
i) Any vehicle parked in any part of the estate must be done so in accordance with the parking arrangements in force at that time.
j) By signing this agreement you authorise us to remove any vehicle or other object that is left anywhere on our property and breaks these conditions, or which we believe has been abandoned or is dangerous. You will be charged to cover our expenses for removing and disposing of any items.