UKPC court papers received

Coupon-mad

HermanMunster wrote: »

To update on this, been working in the background with Salmosalaris who has been brilliant. Got discontinued a couple of days before the hearing was scheduled but too late to have the hearing removed from the court list, so I went anyway and was awarded full costs for the claimant's unreasonable behaviour.

Defence and witness statements, and how I won the costs, to follow soon in case they are of use to anyone else in a similar position.

Fantastic result, HermanMunster. :T

The above would be useful as a forum resource!

HermanMunster

As promised, this was the defence statement. Massive credit to Salmosalaris for help with this. Hope there some useful info in there for anyone else in a similar position.

Court Claim No: xxxxxxxxxxx Date: xxxxxxxxxxxxxxx
IN THE COUNTY COURT AT xxxxxxxxxxxx

BETWEEN:

UK Parking Control Ltd
Claimant

-and-

xxxxxxxxxxxx
Defendant


DEFENCE STATEMENT

The defendant in this matter is xxxxxxxxxxx of xxxxxxxxxxxx. He was the Registered Keeper of vehicle xxxxxxxxx on the material dates but does not admit to being the driver. Indeed, he has no recollection of who was the driver as the events occurred over 3 years ago and the vehicle was driven by more than one driver at that time.

The letter before action from the Claimant’s solicitor failed to provide sufficient information to understand the Claimant’s position, failed to specify how the amount of £xxx was calculated, made no attempt to settle the issue without proceedings or via Alternative Dispute Resolution, and no attempt to reduce the costs of resolving the dispute(Exhibit 1). This was acknowledged by the Defendant, further information was requested from the solicitor, and an offer made to use Alternative Dispute Resolution with POPLA (Exhibits 2 and 3). No reply was received as required by the Practice Direction on pre action conduct (Exhibit 4). Following the subsequent receipt of the claim and prior to allocation, a request for similar information under part 18 of the Practice Direction was made to the Claimant’s solicitor (Exhibit 5). Their reply was inadequate, incomplete, evasive, and did not comply with paragraph 3 of the Practice Direction part 18 by failing to include a statement of truth, in fact one was refused (Exhibits 6 and 7). The Defendant considers this conduct highly unreasonable.

The Defendant denies liability for the entirety of the claim for the following reasons and requests the court strike out the claim by an order of its own volition as having no merit or prospect of success.

1. The vehicle was fully authorised and permitted to park by the landowner by virtue of the Defendant’s tenancy agreement with the managing agents xxxxxxxxxxxxxxx (on behalf of the landowner) from xxxxxxxxx to xxxxxxxxxxxx (Exhibits 8-10). This makes no mention of the requirement to display the Claimant’s permit which is no more than an aid to identify tenants. The tenancy agreement overrides the alleged (but denied) contract with UKPC Ltd. The driver did not require the permission of the Claimant to park and did not enter a contract to do so with them.

2. The Claimant has provided no evidence of any contraventions occurring. The vehicle was displaying the only permit ever provided by xxxxxxxxxxxxxxx, the same permit that had been displayed for the previous eleven and a half months (Exhibits 11 and 12). There was no breach of the alleged (but denied) contract with the Claimant. The Claimant’s own photographs demonstrate that the permit was correctly displayed (Exhibit 12). The Claimant would have seen the same car parked for the previous eleven and a half months and would have no reason to believe it was abusing the facility. The Claimant alleges that the permit displayed was no longer valid but there was no indication on the signage or the permit itself or in any other form to indicate that it was no longer valid at the site at the material times, and no alternative permit was issued. To attempt to impose such a term is a breach of the Unfair Terms in Consumer Contracts Regulations 1999 and therefore cannot be binding (Exhibit 13)

3. The contract to park is with the landowner, the xxxxxxxxxxxx (as made clear in the xxxxxxx parking policy) (Exhibits 14 and 15), and any claim should be in their name. The Claimant has provided no evidence that it has the authority of the landowner to offer contracts for parking or litigate in their name as required by the British Parking Association code of practice and without such they have no locus standi to bring such a claim. The Claimant’s solicitor has refused to provide evidence that such a contract exists (Exhibit 6). It was revealed however that the Claimant was authorised to operate by the xxxxxxxxxxxxxx on behalf of the landowner and yet there is no evidence that this party has the authority of the landowner to confer the necessary rights on the Claimant (Exhibit 6).

4. The Claimant has no legitimate interest in enforcing a charge against a vehicle that was fully authorised to park as it did. The charge is also disproportionate. The case can clearly be differentiated from that of Parking Eye v Beavis [2015] UKSC 67 where the Supreme Court judged that a charge of £85 (not £100), that would otherwise clearly be an unenforceable penalty (as the penalty rule was engaged), was lawful on that particular car park only because Parking Eye had a legitimate interest in enforcing it for the common good against those who abused the car park and that this objective disengaged the penalty rule (Exhibit 16). This is not the case here as the vehicle had every right to park. The charge remains an unenforceable penalty; the penalty rule is clearly not disengaged in this situation. The Claimant is simply seeking to impose a charge for its own profit. Additionally as the xxxxxxxxx parking policy indicates that on xxxxxxxx land parking charges of £10 are used to deter contraventions it is difficult to see how a charge ten times greater is necessary to achieve the same effect, it is clearly disproportionate (Exhibit 15).

5. The Claimant is claiming damages of £ 100 for breach of contract. The sign however (which forms the basis of the alleged contract) states that a parking charge of £90 is payable for failure to comply (Exhibit 17). There is no contract formed by which the Defendant is liable to pay £100 or indeed anything at all.

6. The signage is completely inadequate to bring clearly to the attention of motorists that £90 is payable for breach of contract and therefore to bind them to such a term. Unlike in Parking Eye v Beavis [2015] UKSC 67 where the Supreme Court allowed the charge due to the clarity of the sign (Exhibit 18), in this case the term requiring payment of £90 for breach is buried and hidden in amongst other wording and is written in a tiny font (Exhibits 12, 17 and 19). The term is unenforceable. The court is reminded of Lord Denning’s “red hand rule” in J Spurling Ltd v Bradshaw [1956] EWCA Civ 3 for such an onerous obligation (Exhibit 20). Additionally the Claimant suggests that the charge is due because a valid permit was not displayed but the signage makes no reference to what constitutes a valid permit which the Defendant believes was displayed. With such uncertainty of terms the charge is unenforceable.

7. If the Claimant considers that the vehicle was not authorised to park then there is no valid contract with the motorist anyway. Any valid contract requires a genuine offer and as the signage states “No unauthorised parking” it is clearly forbidding, in contrast to positively phrased signage used by other parking companies in which a genuine offer is made (Exhibit 21). There cannot be a genuine offer of what is prohibited and consequently there is no contract by which the Defendant can possibly be bound.

8. The Claimant has provided no evidence that there were ample signs to form a contract with the driver such that the driver would be bound by them. The only entrance sign at the xxxxxxxxxx car park clearly states “parking for residents and their visitors” and makes no mention of the requirement to contract with UKPC or display any permit (Exhibit 22). There were no UKPC entrance signs as required by the British Parking Association Code of Practice and the sign’s layout and wording does not follow that prescribed by the same code to which the Claimant must adhere (Exhibit 23).

9. The Claimant has provided no evidence that debt collection costs of £60 for each ticket have been incurred (£xxx in total) (Exhibit 24) and the Defendant does not believe they have or that he is liable for them as they are clearly an arbitrary penalty. This is corroborated by the judgment in Parkingeye Ltd v Somerfield Stores Ltd [2012] EWCA Civ 1338 (Exhibit 25). It is common knowledge that debt collection companies are paid on collection of debt and probably for a far smaller percentage of the debt than claimed here (Exhibit 26).

10. The Defendant does not believe that the Claimant is entitled to claim £70 in legal representatives costs as the Particulars of Claim are nothing more than a mass produced template that do not require the input of a solicitor (Exhibit 27).

11. The Defendant does not believe the Claimant is entitled to claim the £60 court fee. The reason this matter has resulted in the issue of a claim is due entirely to the failure of the Claimant’s solicitor to respond when the Defendant acknowledged their letter before claim and requested further information (Exhibit 2).

12. As the Claimant has adduced no evidence as to the identity of the driver and admitted they do not know the identity of the driver they are seeking to invoke the provisions of schedule 4 of The Protection of Freedoms Act 2012 (POFA) and hold the Defendant liable as keeper. The Claimant however has failed to comply with the strict statutory requirements of the Act and consequently cannot rely on its provisions (Exhibit 28). The Defendant cannot be liable for this charge.

a. There is no relevant obligation to pay parking charges arising as part of a relevant contract as required by paragraph 1.1.a. for each individual alleged contravention. The signage does not convey terms and conditions which could bind the motorist (Exhibits 12, 17, 19 and 22). For there to be a relevant obligation by way of a parking charge, as described in paragraphs 2.1.2 and 2.1.3, adequate notice must be given to drivers. The vague terms and conditions on the signage and the notice given that a £90 parking charge applies for breach is in tiny font that is in stark contrast to that on the signage discussed by the Supreme Court in the case of Parking Eye v Beavis [2015] UKSC 67 (Exhibit 18). It was because of the clarity of terms on that sign that the charge was deemed enforceable. Without a relevant obligation arising from a relevant contract (that can only be conveyed by signage), the Claimant’s demand is unenforceable for each and every one of the parking charges which must be treated as individual occurrences for the purposes of keeper liability.

b. There is no relevant contract that could generate a relevant obligation unless the Claimant has been authorised by the landowner to enter into contracts with motorists as required by paragraph 2. Without authority to enter into a contract with the driver the Claimant does not meet the condition required of paragraph 5.1.a, and therefore paragraph 4, to recover unpaid parking charges from the keeper. The Claimant has provided no evidence that it has such authority without which their demand is unlawful (Exhibit 6). The Claimant is put to strict proof by producing the operational contract or contracts with the landowner that demonstrates that they had such authority on the material dates.

d. Each Parking Charge Notice is not fully compliant with the following terms of paragraph 7 of schedule 4 of the Protection of Freedoms Act 2012 and therefore cannot be relied upon as a Notice to Driver under that Act and the Claimant consequently cannot rely on the provisions of the Act:

7 (2)(a) – fails to specify the relevant land or period of parking

7(2)(b) – fails to describe the circumstances in which the requirement to pay parking charges arose and other facts that made those charges payable

7(2)(c) – fails to inform the driver that the parking charges have not been paid in full and specify the total amount of the unpaid parking charge at a time specified in the notice and no later than the time the notice was issued.

7(2)(e) – fails to identify the creditor.

7(4)(a) – fails to specify the period of parking, therefore cannot be shown to have been given after the period of parking to which the notice relates.

(Exhibits 29-31)


e. Each Notice to Keeper is not fully compliant with the following terms of paragraph 8 of schedule 4 of the Protection of Freedoms Act 2012 and therefore cannot be relied upon as a Notice to Keeper under that Act and the Claimant consequently cannot rely on the provisions of the Act:

8(2)(a) - fails to specify the relevant land or period of parking.

8(2)(c) – fails to repeat the information required of the Notice to Driver under paragraph 7(2)(b) and (c), the required information under that paragraph having not been given in the Notice to Driver.

8(2)(g) – fails to inform the keeper of any discount offered for prompt payment.

8(2)(h) – fails to identify the creditor.

(Exhibits 29-30 and 32)


f. Paragraph 11 stipulates that unless the Claimant made an application for the defendant’s personal details as registered keeper to the DVLA for each and every period of parking for which they believed parking charges were payable (i.e. for each of the tickets issued) then again they cannot rely on the provisions of the Act and hold the defendant liable for those parking charges. The Claimant has stated that they hold no correspondence between themselves and any other third party containing the defendant’s personal details, other than those protected by Legal Professional Privilege under the Data Protection Act 1998 (Exhibit 24). The Claimant is put to strict proof that they made such an application for each and every alleged contravention.

g. Paragraph 4.5 makes plain that the maximum charge that can possibly be recovered utilising the provisions of the Act is £100 (although this is disputed as the sign stated £90) for each of the alleged contraventions and not £160-00 as it is the parking charge of £100 that appears on the Notice to Keeper, the maximum allowed by the British Parking Association code of practice. The Act makes provision to recover unpaid parking charges only and not arbitrary supplements (Exhibit 28).

I believe the contents of this statement to be true

HermanMunster

Accompanied by a contents sheet listing the evidence exhibits:

Court Claim No: xxxxxxxxxxxx Date: xxxxxxxxxxxxxx
IN THE COUNTY COURT AT xxxxxxxxxxxxxxxx

BETWEEN:

UK Parking Control Ltd
Claimant

-and-

xxxxxxxxxxxxxxx
Defendant

DEFENCE BUNDLE

Contents

• Witness Statement – xxxxxxxxxxxxxx

• Defence Statement

• Exhibit 1 – “Letter Before Action” from SCS Law

• Exhibit 2 – Response to “Letter Before Action”

• Exhibit 3 – POPLA FAQs and Advice

• Exhibit 4 – Practice Direction – Pre-action Conduct and Protocols

• Exhibit 5 – Part 18 request for further information

• Exhibit 6 – Response to Part 18 request from SCS Law

• Exhibit 7 - Practice Direction 18 – Further Information

• Exhibit 8 – Assured shorthold tenancy agreement between xxxxxxxxxxxxxxx and xxxxxxxxxxxxx for xxxxxxxxxxxxxx

• Exhibit 9 – Letter from xxxxxxxxxxxxx confirming residence of xxxxxxxxxxxx at xxxxxxxxxxx between xxxxxxxxxx – xxxxxxxxxxxxx

• Exhibit 10 – Confirmation of rental payment to xxxxxxxxxxxxxx for month of xxxxxxxxxxxx for xxxxxxxxxxxx

• Exhibit 11 – Permit xxxxxxxxx issued by xxxxxxxxxxxxxx for xxxxxxxxxxxxxxx residents’ parking

• Exhibit 12 – Photographs by UKPC of permit xxxxxxxxx displayed in windscreen of vehicle xxxxxxxxx at the material dates and times – as provided by the Claimant in response to part 18 request

• Exhibit 13 – Unfair Terms in Consumer Contracts Regulations 1999

• Exhibit 14 – Response to Freedom of Information Request confirming xxxxxxxxxxxxxx are the landowner at the material location

• Exhibit 15 – xxxxxxxxxxxxxxxxxxxxx parking Terms and Conditions

• Exhibit 16 - Parking Eye v Beavis [2015] UKSC 67

• Exhibit 17 – Wording of sign as provided by the Claimant in response to Part 18 request

• Exhibit 18 – Copy of ParkingEye sign from Parking Eye v Beavis [2015] UKSC 67 for comparison of clarity

• Exhibit 19 – Photographs of signs at the material location

• Exhibit 20 - J Spurling Ltd v Bradshaw [1956] EWCA Civ 3

• Exhibit 21 – Copy of Combined Parking Solutions sign demonstrating a genuine offer for comparison

• Exhibit 22 – Photographs of xxxxxxxxxxxxx residents’ parking area entrance

• Exhibit 23 – British Parking Association Code of Practice

• Exhibit 24 – Responses to Subject Access Request from UKPC

• Exhibit 25 - Parkingeye Ltd v Somerfield Stores Ltd [2012] EWCA Civ 1338

• Exhibit 26 – Debt Recovery Plus Ltd debt recovery instruction form

• Exhibit 27 – Particulars of Claim issued by SCS Law

• Exhibit 28 – Protection of Freedoms Act 2012 – Schedule 4 pp 136-147

• Exhibit 29 – List of highways maintainable at public expense produced under section 36 of the Highways Act – xxxxxxxxxxx parish of xxxxxxxxxxxxx

• Exhibit 30 – Plan illustrating adopted highway xxxxxxxxxxxxxxxx

• Exhibit 31 – Notices to driver – as provided by the Claimant in response to part 18 request

• Exhibit 32 – Notices to keeper – as provided by the Claimant in response to part 18 request

• Exhibit 33 – Extract from social media illustrating unreasonable behaviour by UKPC. hxxp://www.tracykiss.com/product!reviews/my!ukpc!parking!charge/

• Exhibit 34 – Article from The Telegraph illustrating fraudulent activity by UKPC. hxxp://www.telegraph.co.uk/news/uknews/crime/11858473/Parking-firm-UKPC-admits-faking-tickets-to-fine-drivers.html

HermanMunster

And this witness statement:

Court Claim No: xxxxxxxxxxxx Date: xxxxxxxxxxxxxxx
IN THE COUNTY COURT AT xxxxxxxxxxxxx

BETWEEN:

UK Parking Control Ltd
Claimant

-and-

xxxxxxxxxxxxxxxxx
Defendant


Witness statement of xxxxxxxxxxxxx
of
xxxxxxxxxxxxxx
xxxxx
xxxxxxxxx
xxxxxxxx

1. I am the Registered Keeper of vehicle xxxxxxxxxxx and Defendant in this case.

2. I was resident in xxxxxxxxxxxxxxxxx from xxxxxxxxxxxx to xxxxxxxxxxxx under an initial 6 month assured shorthold tenancy agreement which converted to a monthly periodic tenancy under the same terms on xxxxxxxxxxxx.

3. Rent was paid on a monthly basis by salary deduction to xxxxxxxxxxxxxxxx, including the month of xxxxxxxxxxxxx.

4. Under sections 2.3 and 3 of the tenancy I had use of the residents’ car parking at xxxxxxxxxxx with no requirement to enter into a contract with any 3rd party.

5. I was issued with parking permit number xxxxxxxxx by xxxxxxxxxxxxxx on xxxxxxxxxx for the duration of my residence in xxxxxxxxxxxxx.

6. The only entrance sign at the xxxxxxxxxxxx residents’ car park clearly states “parking for residents and their visitors” and makes no mention of the requirement to contract with UKPC, display any permit, or to refer to any further terms and conditions. There are no UKPC entrance signs as required by the British Parking Association Code of Practice

7. Notwithstanding the above, the issued parking permit number xxxxxxxxx was clearly displayed in the windscreen of my vehicle xxxxxxxxxx for the duration of my residence in xxxxxxxxxxxxx.

8. At no time have I been given any reason to believe that parking permit number xxxxxxxx was not valid, nor was I issued with any other resident’s parking permit for xxxxxxxxxxx.

9. My vehicle xxxxxxxxx was parked in the same location in the residents’ parking at xxxxxxxxxx on a regular basis from xxxxxxxxx to xxxxxxxxx as allowed under the terms of my tenancy agreement. I was working in xxxxxxxxxx during that time, which is a 2 minute walk from xxxxxxxxxxxxx, so the vehicle would often be parked in that location for a number of days at a time. Parking permit xxxxxxxxxxx was clearly displayed in the windscreen of the vehicle xxxxxxxxxxx throughout this time.

10. On no occasion between xxxxxxxxxx and the issue of Parking Charge Notice (PCN) number xxxxxxxxxxxxxxx on xxxxxxxxxxxx was any question raised regarding the validity of my parking permit nor the right to park vehicle xxxxxxxxxxx in the residents’ parking at xxxxxxxxxxxx.

11. I was not the only driver of vehicle xxxxxxxxx at the time in question. These events occurred over 3 years ago, and the vehicle was parked in the same location on many occasions, so I do not recall who was driving at the material times or whether or these were separate occasions.

12. The location where the vehicle in question was parked did not require me to walk past it when leaving my accommodation at xxxxxxxxxx. The PCN(s) placed on the windscreen of my vehicle were identified when I came to move out of the residence on xxxxxxxxxxxx.

13. Since the vehicle was parked in the residents’ parking area in which it was entitled to be, with the issued permit clearly on display, I chose to research the background of UK Parking Control Ltd (UKPC) to try to establish their authority and why the PCN(s) might have been issued. I became aware of the reputation for unreasonable behaviour and bullying tactics employed by UKPC and could establish no reason why I should have been issued the PCN(s) in question, and so I chose to ignore the PCN(s) and all further correspondence from UKPC which I consider to be a speculative invoice.

14. I subsequently received the “Notices to Keeper” from UKPC which I continued to ignore as I considered the debt did not exist.

15. There were a number of further demands from UKPC and various debt collection agencies, all of which I continued to ignore as I considered the debt did not exist and there was no cause of action against me.

16. The first correspondence I received from SCS Law, dated xxxxxxxxxx, demanded payment of the sum of £xxxx and was intended to be a letter before claim for the purpose of the Practice Direction on Pre-action Conduct. This letter was not compliant with the Practice Direction on Pre-action Conduct as it failed to provide sufficient information to understand UKPC’s position, failed to specify how the amount of £xxxx was calculated, made no attempt to settle the issue without proceedings or via Alternative Dispute Resolution, and no attempt to reduce the costs of resolving the dispute.

17. I replied to SCS Law on xxxxxxxxxxxxx explaining that they had failed to provide sufficient information for me to understand the basis of the claim, requesting this information and offering to use Alternative Dispute Resolution with POPLA, in an attempt to resolve the matter without the need for court proceedings and to reduce costs.

18. I received no further pre-action correspondence from SCS Law to clarify the issues. I subsequently received the Claim Form issued from the County Court Business Centre on xxxxxxxxxxxxxx

19. The next correspondence I received from SCS Law was the Particulars of Claim dated xxxxxxxxxx, after proceedings had been initiated. It continued to fail to explain the basis of the claim given that the vehicle clearly displayed a permit on each of the material dates, I was afforded use of the car park by virtue of a tenancy agreement, and the tenancy agreement that grants use of the car park is with another party and stipulates no such requirement to contract with UKPC Ltd or display their permit anyway.

20. Prior to allocation, a request for information under part 18 of the Practice Direction was made to the Claimant’s solicitor dated xxxxxxxxx. Their reply of xxxxxxxxxx was inadequate, incomplete, evasive, contained the incorrect claim number, and did not comply with paragraph 3 of the Practice Direction part 18 by failing to include a statement of truth, in fact one was refused.

21. On xxxxxxxxxxx the part 18 request was resubmitted. The same inadequate, incomplete, and evasive response was returned on xxxxxxxxxxxx, this time with the correct claim number and a statement of truth.

22. On xxxxxxxxxxx xxxxxxxxxxxxxxxxxx confirmed in response to a Freedom of Information request that the xxxxxxxxxxxxxx owns the land in question.

23. On xxxxxxxxxxxxx I submitted a Subject Access Request under the Data Protection Act 1998 to UKPC requesting all information they hold pertaining to my personal data and vehicle xxxxxxxxxxx, including all information between themselves and any third party.

24. I received a response to the Subject Access Request dated xxxxxxxxxx containing copies of correspondence previously sent to me from UKPC, and copies of photographs of vehicle xxxxxxxxxx showing the issued permit clearly on display in the windscreen.

25. On xxxxxxxxxx I sent a follow-up letter to my Subject Access Request to ensure that no correspondence between UKPC and any third parties containing my personal data had been withheld.

26. I received an undated response to the follow-up letter to my Subject Access Request in which UKPC confirmed that they hold no further correspondence between themselves and any third party containing my personal data, except for that between themselves and their legal representative, SCS Law, protected by legal professional privilege.

27. I believe that the facts stated in this witness statement are true