UKPC vs Resident - Taking me to court :(

beamerguy

Half_way wrote: »

Interesting case on the parking prankster blog involving UKPC in a residential area ( own space) here
http://parking-prankster.blogspot.co.uk/2016/11/ukpc-hit-for-352-for-discontinuing.html

Very good, I like this bit ...

"The judge awarded my full costs of around £350, told their guy to go back and "tell [his] masters such behaviour won't be accepted in future"

Sounds like a court "red card".
A point to be raised in similar cases UKPC try to scam people with.

Guess UKPC have been UKPC'd ? or medically "self harm"

rebecca91

Hi all, I have written a defense, and if possible wondering if someone would be able to just skim read and say if to remove anything?

Much appreciated in advanced!
This is only my skeleton defense at this stage, although I have written out defense ready for nearer the time.

Also on a side note, UKPC and the solicitors have failed to send over information asked for within 7 days stated in my Request for Documents CPR 31.14.







1-The Defendant was the registered keeper of the vehicle XXXXXX at the location set about in the claim.


2-The defendant has not admitted they were the driver of the vehicle at the time of the charges

2 i)The defendant has no liability as they are were the keeper of the vehicle, and the Private Parking Company has failed to comply with the strict provisions of PoFa to hold anyone other than the driver liable for the charges.
ii) There is no presumption in law that the keeper was the drier 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’ set out in schedule 4.


3-The claimant has no standing to bring a case


4-The claimant has no capacity to form a contract with the Defendant


5-The Defendant has never had any obligation to comply with any sign placed by the claimant


6-Even if a contract had been formed, it would be void as in breach of the Unfair Terms in Consumer Contract Regulations


7-In relation to each of the paragraphs contained within the Particulars of Claim, the Defendant comments are as follows;


-In relation to Paragraph 1, while the Defendant accepts the Claimant is a parking management company, they are put to strict proof that they have the authority to manage the parking at the locations stated. The Defendant requests a non-redacted copy of the contract giving them the authority to manage parking at the location. This evidence is required as the Claimant has not explained what authority it has to bring the claim.

Parkingeye v Sharma (3QT62646 Brentford County Court) examined the contract and dismissed the claim for the reason that the Claimant had no ownership of, or proprietary interest in the land. It followed that the Claimant, acting as an agent had no locus standi to bring court proceedings in its own name. Parking v Gardam (3QT60598) similarly examined the contract and found the Sharma judgement persuasive. The Defendant also refers the court to ParkingEve v Somerfield (2012) (EWCA Civ 1338 case A3/2011/0909) that examined ParkingEye contracts. This stated that any debt was due to Somerfield and that ParkingEye did not have the authority to issue proceedings.


8-Regarding paragraph 2 and 3 of the Particulars of Claim, the Defendant admits they were at the time the registered keeper of the vehicle and requests that the Claimant provide evidence to substantiate this claim for both charges, not just one.


9-Regarding paragraph 4, the claimant is put to strict proof that all of their signs comply with the British Parking Association's terms and conditions. Signage locations and layout of signs at the time are needed as stated in the BPAs signage to form a contract.
-Further to paragraph 4 (4.1 and 4.2), strict proof is needed to demonstrate that the Defendant was ‘the driver’ on both occations. The charges state that the driver has breached the terms of the agreement.


10-Regarding paragraph 6, the Claimant has not explained what loss and/or damages they have incurred and are put to strict proof of any actual loss and/or damages. Furthermore, as the space in question is a private parking spot for my private vehicle as stated in my tenancy agreement (With no mention of a parking permit needed), I would like proof of the loss/damages incurred by me parking in my private space. Furthermore, given that the Claimant does not own the land, they have not incurred any damages.


11-Further or alternatively, even if the Claimant could offer a contract, the Defendant disputes that any sign constituted and offer and submits that it clearly threatened punitive sanctions. The Defendant refers the court to 3YK50188: Civil Enforcement Ltd v McCafferty (Luton County Court appeal that was decided by Mr Recorder Gibson QC (21 February 2014)


12-The Defendant also refers the court to the tests suggested by the House of Lords in Dunlop Pneumatic Type v New Garage & Motor Co. Ltd, and Lordsvale Finance plc v Bank of Zambia to determine if the sum is a penalty or a genuine pre-estimate of damages. The Defendant also refers the court to decisions involving similar facts to the present case.
O.B Services v Thurlow (Worcester County Court 2011)
Excel Parking Serveices v Hetherington-Jakeman (2008)


13-The Defendant further asserts that the Claimant has ignored the Government’s clear intention as expressed in the Department for Transport Guidance on the Recovery of Parking Charges:

“Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken.

For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver”


The judgement in VCS v lbbotson (2012) makes it clear that only the costs that directly result from the parking may be included, not an arbitrary proportion of normal business costs. A Retailer v Ms. B & MS. K (1UC71244) citing R+V Versichering AG v Risk Assurance and Reinsurance Solutions SA (2006 EWHC 42) and Aerospace Publishing Ltd v Thames Water Utilities Ltd (2007 EWCA Civ 3) dismissed a claim for the costs of security staff dealing with shoplifters who had deliberately attempted to cause a loss to the claimant, not a resident parking in their own designated space. The court stated that the claimant had to establish that the conduct caused significant disruption to its business. Security people. Far from being diverted from their usual activities, were in fact actively engaged in them and doing what they were paid to do. Neither could any administrative or security costs be claimed. The amounts spent by the claimant would have been identical if the defendants had stayed at home or limited their shop-lifting to other establishments.


14-The Defendant has a tenancy agreement that does not mention a parking permit needed. Wording in the agreement states that I have a parking space with my flat while living there. UKPC are put to strict proof that they can override my contract.


15-The management company who have employed UKPC to monitor the carpark have told UKPC to remove all charges which has been refused. UKPC are put to strict proof they are able to override instructions such as these from a management company.
The Defendant sent a request for information under ‘Request for documents under CPR 31.14’ to XXXX Solicitors and UKPCs point of contact outlined in the Letter before action. The Defendant gave a seven (7) day time limit to reply. No reply has been received and it has now been more than 7 days.


16-The defendant denies the claim for £XXXX and costs.

Guys_Dad

Why is point 14 not point 1?
What is pre-estimate of damages doing in this (points 10-13)?????

And suitably expanded to take into account the good information on Prankster's web site?

Your main plank of defence should be the lease overrides any subsequent alterations and that the landowner has asked for the charge to be cancelled. Have you any written proof of that, by the way? If not, get it and include it in your defence.

You seem to be basing your defence on technical points in the main rather than the solid actual points you have that should win.

Summary:- I have a lease that allows me to park. No mention of permits in lease. Subsequent terms that can't override my lease. My landowner has requested that PPC cancels. Unless there is anything in the contract with landowner , PPC can not ignore that request. Produce contract with landowner to show that you can ignore their request.

Lots of work to do I am afraid.

rebecca91

Hi GuysDad, thank you for your advice, I will get re-writing. May I ask - This is not my full defense if I am right?

Is it not more bullet points and then near the time of the court case I will submit more information on each point?

On the note of pre-estimate - Is that not worth putting in due to them stating in their own defense that they have made a loss?

Regards

Guys_Dad

rebecca91 wrote: »

Hi GuysDad, thank you for your advice, I will get re-writing. May I ask - This is not my full defense if I am right?

Is it not more bullet points and then near the time of the court case I will submit more information on each point?

On the note of pre-estimate - Is that not worth putting in due to them stating in their own defense that they have made a loss?

Regards

You could ask them to summarise their losses if you like (I wouldn't) but demand that they prove that these were incurred after the landowner instructed them to cancel. But do get proof that the landowner did, indeed, do that as if not, they can deny it.

beamerguy

Assume you read this by the Parking Prankster

RESIDENTIAL PARKING
http://parking-prankster.blogspot.co.uk/2016/11/residential-parking.html

Difficult to understand how UKPC think they can win ?

If the management company told them to cancel, that's it, the management company is right. The only cost to UKPC is their plain stupidity. Doubt UKPC could provide any agreement signed by the management company to over ride their instructions.
This could well be a case of UKPC using the court as a cash cow and wasting the courts time.

It is these points that must headline your defence, give the judge something to get his/her teeth into

rebecca91

Thank you GuysDad Really really helpful!

Beamerguy, I know it seems weird to me. I think my main points are;

Tenancy agreement overriding parking signs
Management company requesting removal of all charges (I have email proof)
No enterance signage on the main enterance. There are 2 enterances. 1 has an enterance sign that works with the requirements, the second (and main one) does not have an enterance sign.

I'll need to re-write this out I feel and put those as my main points.


May I ask, once this is submitted, I assume I need to then write a fuller defense nearer the time to go in depth into this defense?

Regards guys

beamerguy

rebecca91 wrote: »

Thank you GuysDad Really really helpful!

Beamerguy, I know it seems weird to me. I think my main points are;

Tenancy agreement overriding parking signs
Management company requesting removal of all charges (I have email proof)
No enterance signage on the main enterance. There are 2 enterances. 1 has an enterance sign that works with the requirements, the second (and main one) does not have an enterance sign.

I'll need to re-write this out I feel and put those as my main points.


May I ask, once this is submitted, I assume I need to then write a fuller defense nearer the time to go in depth into this defense?

Regards guys

Don't wish to be picky but you spell "entrance" <<< like this

You have the confirmation email which UKPC ignored so UKPC need to provide proof they can overide the Management company.
HEADLINE to get the judge intriqued and ask UKPC the same

The MANAGEMENT company can give you that answer

The signs, go and take pictures for your proof.

I guess UKPC are back on the "funny stuff" again

PS: As these bods have spies on here, do not respond to a PM offering advice if they have less than 1000 posts to their credit. If in doubt ask on the forum

rebecca91

Hi beamerguy, thats a great point, thanks for the notice. As a teacher i should have spotted it

I will make amendments now and send off in the next few days (Still have 2 weeks to send)

Regards everyone and thank you !

Fruitcake

rebecca91 wrote: »

Thank you GuysDad Really really helpful!

Beamerguy, I know it seems weird to me. I think my main points are;

Tenancy agreement overriding parking signs
Management company requesting removal of all charges (I have email proof)
No enterance signage on the main enterance. There are 2 enterances. 1 has an enterance sign that works with the requirements, the second (and main one) does not have an enterance sign.

I'll need to re-write this out I feel and put those as my main points.


May I ask, once this is submitted, I assume I need to then write a fuller defense nearer the time to go in depth into this defense?

Regards guys

I wouldn't mention the entrance with signage. Just state that there is no sign at the main entrance and here is a photo' to prove it.
Get a pictures of the entrance quick before one appears. Make sure you time stamp the images or take a picture with a newspaper showing the date and banner headline.