Gladstones CCC - UKCPM

AOneVS

So, in terms of bundle... does that start with front page (case number etc), then contents page starting with Witness Statement followed by exhibits then the rest of the documentation? And all of this is dropped off at court and emailed to solicitors? I'll get there in the end!

AOneVS

I'm pretty happy with how the WS is looking. However, I was thinking of bolstering point 4 regarding the lease and could do with some help on the wording:

[FONT=&quot]4. My vehicle received a Notice to Driver on xth xxx 2016, PCN number nnnnnn (Exhibit 3). The vehicle was parked on a private estate. The lease, dated 15th April 2011 (Exhibit 4) does not contain any right for the freeholder to recover any set penalty if the leaseholder parking terms are breached. According to the Managing Agent, parking control was introduced in 2013. There has been no variance to the terms of the lease.
[/FONT]

Loadsofchildren123

Technically your WS isn't in the bundle, the bundle is a separate thing -
it is your additional docs which are separate to the WS. But I don't really think it matters if you put it all in together, and perhaps it is more convenient to do this. Then just refer to it as "my WS and my bundle of documents".

Yes to an index, it is helpful to the court and anything that helps the judge navigate his way around the documents and to see what it is that is in the bundle is good.

Loadsofchildren123

AOneVS wrote: »

I'm pretty happy with how the WS is looking. However, I was thinking of bolstering point 4 regarding the lease and could do with some help on the wording:

You say "any set penalty..." - do you mean "any penalty at all, let alone a set charge...."

Loadsofchildren123

Add at the end "If the freeholder is not entitled to impose and recover a set penalty, then it cannot have granted this right to the Claimant and the Claimant cannot exercise it".

The case where the judge said that if X contracts to sell me Buckingham Palace, he obviously has no right to do that, but it's still a binding contract (the name of the case is not imprinted on my brain sadly) goes against the first part of this, but not the second. You can contract rights you don't have, but as they don't actually exist then you can't actually exercise them (ie X couldn't then actually sell me Buck Pal).

System

the name of the case is not imprinted on my brain sadly

VCS v HMRC

Explained here https://www.cch.co.uk/content/case-report-vehicle-control-services-ltd-v-revenue-and-customs-commissioners-2013-ewca-civ

The Court of Appeal held (at para. 30) that "VCS is in business to make money. But it does not follow that VCS expected to make money by being paid by the landowner. What it obtained under the contract . . . was the right to exploit the opportunity to make money from the motorists. The fruits of that exploitation cannot . . . be described as payment by the landowner . . . Whether as occupier or merely as service provider, one of the rights that VCS acquired under the contract was the right to enforce parking restrictions and keep the proceeds". Thus, the monies that VCS collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services. - See more at: https://www.cch.co.uk/content/case-report-vehicle-control-services-ltd-v-revenue-and-customs-commissioners-2013-ewca-civ#sthash.51n7SRq9.dpuf

This is a clearer explanation than the one Gladstones use.

The Buck Pal analogy was a reference to the now outlawed "naked shorting" where it was common practice to sell shares you didn't own with the idea that you covered the contract later in the trading period. Clearly the analogy breaks down when you know the seller can't acquire Buck Pal to meet the "contract" so in effect fraud.

Aside from the poor analogy the nature of the way a PPC operates is clear. They need a lease or a licence (most common) to operate. Some judges started to accept that the presence of signs was an indication there was a licence but it still needs to be challenged.

AOneVS

Ok, so I made a mistake with the timing, which means I've got another week before the WS etc is due.

Studying the lease in more detail, I came across this under 'TENANTS COVENANTS 1'

The Tenant covenants with the Landlord and covenants separately with the Estate Management Company as follows:

3.7 To pay on demand all proper costs and expenses... properly incurred by the Landlord and/or the Estate Management Company:
3.7.3 In connection with the enforcement or remedying of any breach of the covenants on the part
of the Tenant contained in this lease.

:eek:

Does that give them the right to 'recover any set penalty if the leaseholder parking terms are breached'??

safarmuk

properly incurred by the Landlord and/or the Estate Management Company:

IMO (bear in mind I am not a legal expert) ... no. My reasoning is that it is not the Landlord or Estate Management Company who are incurring the cost that they are trying to recover from you, it is a third party (the PPC). Your "contract" with the PPC is via the signage (which they *keep* claiming), not the lease.

This kind of clause could reasonably be expected to relate to estate costs, such as repairs, maintenance etc. If you didn't pay them then it would be reasonable for them to try to enforce the agreements and obligations in the lease.

Note also the use of the word "proper".

Remember, from my experience you cannot read a lease in bits of isolation. It is a document that flows and in isolation any single term could be turned as you wish it to be read. However when read overall that clause may become far clearer. This is what I saw on another thread regarding what the PPC sent the IAS.

Loadsofchildren123

You are right to wonder about this - originally your WS said this:
"The lease does not contain any right for the freeholder to recover any set penalty if the leaseholder parking terms are breached." and, as you rightly point out, this is not quite true given the other clause you've now found. This point was relevant to you arguing that if the freeholder didn't have those rights then how can the PPC have acquired them.


Can we just go back to basic facts for a minute - my fault, but I comment on quite a few threads and I've lost track and if you can provide this information it will save me (and others) going back over the full thread:
- Are you tenant or leaseholder?
- What are the parking rights granted in your lease/tenancy?
- Were you properly parked according to those rights (not sure you were as I think you were parked in the V area, and you are saying that no parking controls were in place in the V area as there were no signs about V parking, only parking with residents' permits)?


I agree that the intention of the clause is as safarmuk says, and also that the construction of clauses is generally skewed if you don't read them as part of the whole document.


And yes, this clause applies to costs incurred by the landlord/EMC, not by the PPC. But it ties in with your general point which I've repeated at the start of this post.

safarmuk

I think at a minimum we need to see:
* The whole of section 3.7
* The sections on parking, demised property and demised rights and finally;
* To understand what the "covenants" are

3.7.3 refers specifically to "covenants"

To give an example if your lease said "you must always reverse park into your bay so that you never leave backwards for safety reasons and if you don't you can be charged £60" and you did not do that then that would be a covenant that could be enforced ... and possibly it could be enforced by a 3rd Party if the Freeholder assigned that enforcement to them. But I doubt your lease (or any lease) is that specific but until we see it we are speculating.