UKPC court claim - badly need help

Dontpay

Guys,
Any comments/ improvements to be done on my defence ?

Coupon-mad

Dontpay wrote: »

Also quick question:
I checked MCOL site online and found that Date of service of 28/10/2016.... whilst I received the letter dated 20th Oct, I thought the Date of service will be 5 days from 20th Oct.. which is 25th Oct. and thereby calculated my 28th day to be on 21st Nov... I am now confused about this 28 days calculation.
Should i take my Date of service as 25th Oct or 28th Oct ???

I see what you are saying but I would take it as 25th; you cannot afford to miss the deadline.

We will take a look now and comment on your defence. I reckon you should submit it tomorrow before 4pm (so it is deemed filed tomorrow).

Sorry like a lot of others there I work during the week and I was busy on 17th - and the forum was equally busy with new threads, hence your query was missed.

Coupon-mad

Defence:

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

2. The defendant has no liability as they are the Keeper of the vehicle, and the Private Parking Company has failed to comply with the strict provisions of PoFA 2012 to hold anyone other than the driver liable for the charges.

2(i) the driver has not been evidenced on any occasion.

2(ii) There is no presumption in law that the keeper was the driver and nor is a 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 barrister, Henry Greenslade, when explaining the POFA 2012 principles of 'keeper liability' as set out in Schedule 4.

3. The signage displayed [STRIKE]clearly[/STRIKE] only makes an 'offer of parking' to permit holders, and therefore only permit holders can be potentially bound by the contractual terms conveyed (and only if the terms were clear and prominent as adequate notice of the charge, which is denied). The only clear large lettering was 'NO UNAUTHORISED PARKING' and it is submitted that the presence of the vehicle was certainly not 'unauthorised'.

4. The car park has a security gate which can be opened only by authorised people. In this case, it is my belief as registered keeper that the car was parked inside the premise with permission from the security & reception staff for loading/Unloading heavy items during [STRIKE]that[/STRIKE] the time of the alleged incidents.

5. The reason for this parking company's presence on this gated site can only be for the sole purpose of deterring parking by uninvited persons, for the benefit of drivers authorised by the leaseholder businesses. Instead, contrary to various consumer laws, this Claimant carries out a predatory operation on those very people whose interests they are purportedly there to uphold.

6. The driver was allowed the right to load/unload by the leasehold business, relying on an express verbal agreement with the on duty security/reception staff.

7. This permission created the prevailing and overriding contract - the only contract - and the business was concluded as agreed, at no cost or penalty.

8. Loading or unloading with the permission of the landholder is not 'parking' and signs cannot override existing rights enjoyed by landowners and their visitors, as was found in the Appeal case decided by His Honour Judge Harris QC at Oxford County Court, in [STRIKE]a similar[/STRIKE] case number B9GF0A9E: 'JOPSON V HOME GUARD SERVICES’ which also adduced a business car park decision, analogous to this present case.

8(i) In the Jopson appeal in June 2016, the Senior Circuit Judge found that the position was analogous to the right to unload which was the subject of Bulstrode v Lambert [1953] 2 All ER 728. The right of way in that case was: “To pass and re-pass with or without vehicles…for the purposes of obtaining access to the building…known as the auction mart.''

8(ii) In the Jopson appeal it was also held as a finding of fact, that stopping to unload was not 'parking'.

8(iii) In the Jopson appeal it was held that ParkingEye Ltd v Beavis [2015] UKSC 67 had no application to a situation involving drivers with a right and expectation to be entitled to park under the grants flowing from a lease.

8(iv) In the Jopson appeal it was also held that signs added later by a third party parking firm are of no consequence to authorised visitors to premises where other rights prevail and supersede any alleged new 'parking contract’.

9. The right of the on site businesses to allow authorised vehicles to load/unload pre-dates the arrival of this Claimant. [STRIKE]and the Jopson Appeal case found that signs added later by a third party parking firm are of no consequence to authorised visitors to premises where other rights prevail and supersede any alleged new 'parking contract’. [/STRIKE]

10. In any event, the signs make no offer to authorised visitors engaged in permitted loading/unloading for which no 'parking permit' was ever required (neither before the arrival of this Claimant onsite, nor after).

[STRIKE]11. There is no clear mentioning of loading/unloading rules on the sign board. Photograph evidence of sign boards are available to be provided upon request.[/STRIKE]

[STRIKE]12.[/STRIKE] 11. Also there are no clear markings of Single/Double yellow lines in those loading/unloading areas. The double yellow line markings are unclear and rubbed off and in any event, loading and unloading activity is a specific exemption, allowed on yellow lines. [STRIKE]There are photograph evidence to prove the same.[/STRIKE]

[STRIKE]13.[/STRIKE] 12. 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 and that they have a right to unilaterally remove or interfere with the overriding rights enjoyed by the lessee company and extended to permitted drivers who were expressly allowed on site.
[STRIKE]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 everyone and an entitlement to peaceful enjoyment.[/STRIKE]

[STRIKE]14. If there was a contract, it is denied that the penalty charge is incorporated into the contract. The leaseholders' lease is missing any reference to parking permit requirements and involvement of UKPC. And there is no evidence that the original lease contract and revised lease contract with specific details of UKPC’s role and involvement was shared with the defendant.[/STRIKE]

[STRIKE]15[/STRIKE] 13. Alternatively, even if there was a contract, the provision requiring payment of £1400 (correct amount to be edited before submission) is an unenforceable penalty clause.

[STRIKE]16.[/STRIKE] 14. Further and alternatively, the provision requiring payment of £1400 is unenforceable as an unfair term contrary to [STRIKE]Regulation 5 of The Unfair Terms in Consumer Contracts Regulations 1999[/STRIKE] the Consumer Rights Act 2015.

15. This charge represents a breach of the well-known and well-established principle of promissory estoppel, i.e. that a promise is enforceable by law, even if made without formal consideration, when party A has made a promise to party B, who then relies on that promise to his subsequent detriment.

16. This charge represents a breach of the well-known and well-established principle that 'a grantor shall not derogate from his grant'. This rule embodies a general legal principle that, if A agrees to confer a benefit on B, then A should not do anything that substantially deprives B of the enjoyment of that benefit.

17. On the one hand the security/reception staff verbally allowed access and opened the gate, to enable loading/unloading on more than one occasion (the vehicle could not have entered without such express permission and this is proved by the very fact that the gate was opened to allow the entry of the vehicle). Landholders cannot allow or promise this on the one hand, then on the other hand, take away this permission or promise, in allowing a third party to disallow and/or seek to charge for the permitted action by a driver.

17(i) In 'Saeed v Plustrade Limited [2001] EWCA Civ 2011' a tenant was granted a right in common with others to park on such part of the forecourt as might from time to time be specified by the landholder, who later proposed to reduce the availability of parking and to charge for it. On appeal it was held that the landholder was only entitled to change the location of spaces, not to reduce their number, nor to unreasonably restrict parking previously offered, nor to charge for it. Such restrictions would interfere with easements enjoyed under the lease.



[STRIKE]17. 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.

18. 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 a permission was obtained from the security staff for temporary loading/unloading and no loss or damage for the Claimant because of this
d) The clause is specifically expressed to be a parking charge on the Claimant's current signs.[/STRIKE]


Statement of Truth:

I confirm that the contents of this statement are true to the best of my knowledge and belief.

Dontpay

@Coupon-mad: Many thanks for your comments. I had submitted my defence. Will now wait to hear from them.
Meanwhile I got an email today from UKPC today (below). Please let me know what should i respond.

email content:
Our client notes that you intend to rely partially on a leasehold agreement to defend the claim.
In order for our client to consider its position in relation to this, please provide us with a copy of your leasehold agreement as soon as possible.
You are furthermore invited to disclose any documentation you deem relevant to the claim.

Coupon-mad

Interesting. They seem jumpy on these claims now we have the Jopson case! Ha! Surely that came from the solicitors?

Start your response: 'Dear Sirs' and put the Claim number and 'UKPC' in the heading.

Respond and say you are the registered keeper of the car, not a party to the lease (after all, it is between two companies), however you may be able to obtain a copy as evidence before a hearing and if so, it will be supplied with your witness statement in due course.

Say that in any event, you are advised that a covenant for quiet enjoyment is a standard feature in modern leases and is implied where not expressly provided. Say that your understanding is that the on-site company in question has benefited from easements and/or covenants, undoubtedly including a pre-existing 'right of way' to pass and re-pass into/out of the car park, with or without vehicles. The company is entitled to rely upon those rights which are/were an integral part of the rented property as offered at the time of leasing the building and UKPC cannot remove or vary those rights.

As such, the onus was on UKPC to have already considered this issue and the effect their new parking regime would have on existing onsite businesses and their employees. If they failed to check the existing lease(s) and covenants/rights of way before signing a landowner agreement which would or could adversely affect lessee rights, that was very clearly a failing by UKPC and not something for a third party registered keeper of a car to address for them.

Then turn the tables on them and ask for their landowner agreement, using their own words back at them:

I note that your client intends to rely partially on authority from a landowner agreement to progress the claim. In order for me, as an unrepresented litigant in person to consider my position in relation to this, please provide me with a copy of your client's landowner agreement as soon as possible and any emails or letters relating to any prior investigations made as regards the leases already in existence at this location.

then say something like:

I suggest no due diligence took place whatsoever and UKPC merely arrived with a standard contract of their own and put signs up, without any regard to lessee rights of way. This is wholly unacceptable and conflicts with the existing rights and easements, as was found to be the case in Jopson v Homeguard, decided on appeal in June 2016 by His Honour Charles Harris QC. I also rely on Saeed v Plustrade Ltd [2001] EWCA Civ 2011 and Bulstrode v Lambert [1953] 2 All ER 728 , both of which support rights of way and reinforce the view that a covenant of non-derogation from grant is implied within a lease.

It is not disputed that the driver was verbally authorised to enter by company staff who expressly opened the gate to allow the vehicle to enter and for loading/unloading to take place, as had been perfectly acceptable conduct in the past, before the arrival of UKPC. If a lessee company cannot now allow vehicles to enter for the purposes of delivering items or loading/unloading then the company's position would be unworkable.

I am advised that UKPC did not amend the lease and in any case, your client could not have done so, since they were never a party to that agreement.

Finish by saying (using their words back at them again):

In addition to sending me the landowner agreement and any correspondence regarding UKPC's due diligence as regards investigating the on-site lessee's rights prior to enforcement commencing, you are also invited to disclose any and all documentation your client deems relevant to the claim.

Furthermore, your client is hereby invited to discontinue the claim immediately in view of the persuasive Jopson appeal case and other decisions upon which I intend to rely in my defence. I have transcripts of these cases, which UKPC will be aware are in the public domain.

This letter can be considered a 'drop hands offer' and is open to your client for a period of 14 days from today's date, to be accepted by confirming in writing to me my postal address that all/any claims and PCNs relating to this vehicle have been dropped. Furthermore, UKPC must take note that any future PCNs issued to this vehicle at this location will be considered harassment and a matter of trespass, for which reasonable damages for distress will be claimed.

yours faithfully,

Dontpay

Many thanks @Coupon-mad. I will respond accordingly.

Also, one of my colleagues had a similar ticket which he contested and won.
Speaking to him, I understand he had the following points highlighted (this went to an intermediate 3rd party and not go to court).
1. There were no timings mentioned in the ticket, i.e.how long the car was parked for.
2. There are multiple sign boards in the area, one of the Company itself and the other of UKPC.

Do you think I can update my defence with these couple of points even though it has been submitted (given that my colleague had won the challenge) or should I wait till the hearing?

Coupon-mad

Neither now (this is not a time to try to 'update' a defence) nor waiting for the hearing.

Bring points about signage into your Witness Statement and skeleton argument, prior to the hearing. This is a stage explained by bargepole in his post about what happens when. It expands on your defence and provides your evidence.

You've mentioned signs in your defence so you can expand on that with photo evidence and the fact there are company signs up too which causes enormous confusion and indeed supports the view that the parking is offered already by the landowner, and residents are supported by lease rights.

Dontpay

@Coupon-mad : Many thanks...One more thing.. I have received the N180 questionnaire now.. should I opt for the Mediation Service or say that I am not interested in it and would like to discuss this in court ?

Many thanks once again for all your help.

Redx

the bargepole thread explains what to do , for good reason , follow his advice to the letter

and the simple answer is "no" , see you in court

Coupon-mad

Dontpay wrote: »

@Coupon-mad : Many thanks...One more thing.. I have received the N180 questionnaire now.. should I opt for the Mediation Service or say that I am not interested in it and would like to discuss this in court ?

Many thanks once again for all your help.

That question is covered by bargepole. You are best reading his advice post. NO to Mediation.