PCM Ltd county court claim form on a residential estate

Mannimango

Hi Half-way, yes residents are aware of the situation. I have contacted the managing agent who have contracted out PCM to request they cancel the charges. Let's see what they say. I was reading the thread by Sam84, and the judge ruled in favour of the PCM citing that either the managing agent or the landowner could hold the contract with the operator. Interesting! I have purchased land registry details in any case, which has no mention of the managing agent (no surprises there).

Mannimango

The link below is an excerpt to my AST. I'm guessing 6.5 (page 1), 15 (page 8) , 1 (page 10) are all pertinent in my case? I've replaced the ww with xx's.

hxxps://xxx.dropbox.com/s/td0ziydaknsrihn/Tenancy.pdf?dl=0

Mannimango

Is there a character limit to posts? I am trying to post my defence for critique, but it is not letting me do it.

Coupon-mad

Yes, you may have to split it into two posts.

Mannimango

[FONT=&quot]Defence Statement


Preliminary Matters.

(1). The claimant failed to include a copy of their written contract as per Practice Direction
16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the Claimants contractual authority to operate there as required by the Claimants Trade Association's Code of Practice B1.1 which says that if you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the ‘Creditor’ within the meaning of the Protection of Freedoms Act 2012 (where[/FONT] [FONT=&quot]applicable) and in any event to establish you as a person who is able to recover[/FONT] [FONT=&quot]parking charges. There is no prescribed form for such agreement and it need not necessarily be as part of a contract but it must include the express ability for an operator to recover parking charges on the landowner’s behalf or provide sufficient[/FONT] [FONT=&quot]right to occupy the land in question so that charges can be recovered by the operator directly. This applies whether or not you intend to use the keeper liability provisions.

(2). The particulars of claim do not meet the requirements of Practice Direction 16 7.5 as
there is nothing which specifies how the terms were breached. Indeed, the particulars
of the claim are not clear and concise as is required by CPR 16.4 1(a).

(3). The Claimant has not complied with the pre-court protocol.
3.1. No Letter of Claim was sent to the Defendant and no initial information was sent to
the Defendant.
3.2. I'd refer the court to Para 4 on non-compliance and sanction, and I'd also point out
that there can be no reasonable excuse for the Claimant's failure to follow the
Pre-action Conduct process.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot](4). On 20th April, 2016, the landowner sent instructions to the managing agent dealing with PCM (UK) Ltd to cease all ticketing on their land as they were issuing tickets out of their jurisdiction. PCM (UK) Ltd. continued to issue parking charges well beyond this date, despite direct and explicit instructions to the contrary.[/FONT]

On the basis of the above, we request the court strike out the claim for want of a
cause of action

Mannimango

[FONT=&quot]Statement of Defence

I am XXXXX, defendant in this matter. It is admitted that the Defendant was the
authorised registered keeper of the vehicle in question at the time of the alleged
incident.

[/FONT]
[FONT=&quot]The Defendant denies liability for the entirety of the claim for the following reasons.

(5). The identity of the driver of the vehicle on the date in question has not been
ascertained.
5.1. The Claimant did not identify the driver
5.2. The Defendant has no liability, as they are the Keeper of the vehicle and the Claimant
must rely upon the strict provisions of the Protection of Freedoms Act 2012 in order to
hold the defendant responsible for the driver’s alleged breach.[/FONT]
[FONT=&quot]5.3. The Protection of Freedom Act 2012 Schedule 4 has not been complied with. The registered Keeper was unaware of the 5 PCNs and the keeper can only be held liable if the Claimant has fully complied with the strict requirements including ‘adequate notice’ of the £100 charge and the prescribed Notice to Keeper letters in time/mandatory wording.

(6) The claimant has not provided enough details in the particulars of claim to file a full
defence. In particular, the full details of the contract which it is alleged was broken
have not been provided.
6.1. The Claimant has disclosed no cause of action to give rise to any debt.
6.2. The Claimant has stated that a parking charge was incurred.
6.3. The Claimant has given no indication of the nature of the alleged charge in the
Particulars of Claim.
The Claimant has therefore disclosed no cause of action.

[/FONT]
[FONT=&quot](7). The Particulars of Claim contains no details and fails to establish a cause of action
which would enable the Defendant to prepare a specific defence. It just states “parking charges” which does not give any indication of on what basis[/FONT] [FONT=&quot]the claim is brought.

[/FONT]
[FONT=&quot]There is no information regarding why the charge arose, what the original charge
was, what the alleged contract was nor anything which could be considered a fair
exchange of information.

[/FONT]
[FONT=&quot]The Particulars of Claim are incompetent in disclosing no cause of action.

[/FONT]
[FONT=&quot](8). On the 20th September 2016 a poorly pleaded private parking
charge claim by Gladstones was struck out by District Judge Cross of St
Albans County Court without a hearing due to their ‘roboclaim’ particulars being[/FONT]
[FONT=&quot]incoherent, failing to comply with CPR. 16.4 and ‘providing no facts that could
give rise to any apparent claim in law.’[/FONT]

[FONT=&quot][/FONT]
(9). On the 27th July 2016 DJ Anson sitting at Preston County Court ruled that the very
similar parking charge particulars of claim were efficient and failing to meet CPR 16.4
and PD 16 paragraphs 7.3 – 7.6. He ordered the Claimant in that case to file new
particulars which they failed to do and so the court confirmed that the claim be
struck out.


(10) The Claimant has not complied with the pre-court protocol.
10.1. No Letter of Claim was sent to the Defendant and no initial information was sent to
the Defendant.
10.2. I'd refer the court to Para 4 on non-compliance and sanction, and I'd also point out
that there can be no reasonable excuse for the Claimant's failure to follow the Pre-
action Conduct process.

Mannimango

[FONT=&quot](11). The defendant wrote to the claimant on xxxxx asking for:
a) Full particulars of the parking charges
b) Who the party was that contracted with PCM (UK) Ltd.
c) The full legal identity of the landowner
d) A full copy of the contract with the landholder that demonstrated that PCM (UK) Ltd. had
their authority.
e) If the charges were based on damages for breach of contract and if so to provide
justification of this sum
f) If the charge was based on a contractually agreed sum for the provision of parking
and If so to provide a valid VAT invoice for this 'service'.
g) To provide a copy of the signs that PCM (UK) Ltd. can evidence were on site and which
contended formed a contract with the driver on that occasion, as well as all
photographs taken of the vehicle in question.

The claimant has not responded.

(12). Withholding any relevant photos of the car, particularly the windscreen and
dashboard, and the signage terms, despite being asked for by the Defendant at the
outset, is against the SRA code as well as contrary to the ‘overriding objective’ in the[/FONT]
[FONT=&quot]pre action protocol.[/FONT]

[FONT=&quot][/FONT]
[FONT=&quot]As Gladstones are a firm of solicitors whose Directors also run the IPC Trade Body[/FONT]
[FONT=&quot]and deal with private parking issues every single day of the week there can be no
excuse for these omissions.

The Defendant asks that the court orders Further and Better Particulars of Claim and
asks leave to amend the Defence.


(13). PCM (UK) Ltd. is not 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 rights to bring action regarding this claim.
13.1. The Claimant is not the landowner and is merely an agent acting on behalf of the
landowner and has failed to demonstrate their legal standing to form a contract.
13.2. The claimant is not the landowner and suffers no loss whatsoever as a result of a
vehicle parking at the location in question
13.3. The Claimant is put to proof that it has sufficient interest in the land or that there are
specific terms in its contract to bring an action on its own behalf. As a third party
agent, the Claimant may not pursue any charge.

(14).
14.1. The Claimant has at no time provided an explanation how the sum has been
calculated, the conduct that gave rise to it or how the amount has climbed from £100 [/FONT]
[FONT=&quot]to £150. This appears to be an added cost with apparently no qualification and an
attempt at double recovery, which the POFA Schedule 4 specifically disallows.
14. 2. The Protection of Freedom Act Para 4(5) states that the maximum sum that may be
recovered from the keeper is the charge stated on the Notice to Keeper.

(15). The signage was inadequate to form a contract with the motorist
15.1. The signage on this site is inadequate to form a contract. It is barely legible, making it
difficult to read.[/FONT]
[FONT=&quot]15.2. In the absence of ‘adequate notice’ of the terms and the charge (which must be in[/FONT]
[FONT=&quot]large prominent letters such as the brief, clear and multiple signs in the Beavis case) [/FONT]
[FONT=&quot]this fails to meet the requirements of Schedule 4 of the POFA.[/FONT]

[FONT=&quot][/FONT]
[FONT=&quot](16) The driver did not enter into any 'agreement on the charge', no consideration flowed
between the parties and no contract was established. The Defendant denies that the driver would have agreed to pay the original demand of £100 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.

(17).
17.1. The Claimant has sent threatening and misleading demands which stated that
further debt recovery action would be taken to recover what is owed by passing the
debt to a ‘local’ recovery agent (which suggested to the Defendant they would be
calling round like bailiffs)
17.2. The Defendant also disputes that the Claimant has incurred £50 solicitor costs.[/FONT]
[FONT=&quot]17.3. The Defendant has the reasonable belief that the Claimant has not incurred £50 costs[/FONT]
[FONT=&quot]to pursue an alleged £100 debt.[/FONT]
[FONT=&quot]17.4. Not withstanding the Defendant's belief, the costs are in any case not recoverable.
17.5. The Claimant described the charge of £50.00 "legal fees" not "contractual costs".[/FONT]
[FONT=&quot]CPR 27.14 does not permit these to be recovered in the Small Claims Court.

(18). The Defendant would like to point out that this car park can be fully distinguished
from the details, facts and location in the Beavis case. This site does not offer a free
parking licence, nor is there any comparable 'legitimate interest' nor complex
contractual arrangement to disengage the penalty rule, as ParkingEye did in the
unique case heard by the Supreme Court in 2015. Whilst the Claimant withheld any
photos of the signs on site, the Defendant contends these are illegible with terms
hidden in small print, unlike the 'clear and prominent' signs which created a contract
Mr Beavis was 'bound to have seen'. [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot](19). [/FONT][FONT=&quot]Primacy of contract applies, and the lease gives residents the right to park which cannot be unilaterally overridden by a third party. [/FONT]
(20). There is a large body of case law which establishes this. In Saeed v Plustrade Ltd [2001] EWCA Civ 2011 it was found the managing agent could not reduce the amount of parking spaces available to residents.

[FONT=&quot](21). In Jopson v Homeguard [2016] B9GF0A9E, on appeal HHJ Charles Harris QC found that the parking company could not override the tenant's right to temporarily stop near the building entrance for loading/unloading. The judge awarded £3,000 in costs against the parking company under the 27.14(2)g unreasonableness provision for refusing the cancel the charge and bringing the claim to court.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot](22). In Pace v Mr Noor [2016] C6GF14F0 [2016] it was found that the parking company could not override the tenant's right to park by requiring a permit to park.[/FONT]

[FONT=&quot](23). In Link Parking v Ms Parkinson C7GF50J7 [2016] it was also found that the parking company could not override the tenant's right to park by requiring a permit to park.[/FONT]

[FONT=&quot](24). In Pace v Mr Noor [2016] C7GF51J1, PACE came back again, this time claiming that clause 6.3 of the lease allowed the terms of the lease to be varied. The judge ruled that this clause required a month's notice to be given, and as this had not occurred, the point was moot. The claim, and 7 others relying on this, were dismissed.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot](25). If the lease does not give primacy of contract, then the contract is established at the time the permits are given to the residents by the management. The signage is there only to create contracts with non-residents. This contract cannot be unilaterally altered.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot](26). The above point was recently tested in the County Court at High Wycombe, in the case of Parking Control Management (UK) Ltd v Bull & 2 Others (B4GF26K6, 21 April 2016), where District Judge Glen dismissed all three claims, stating in his judgment that:[/FONT]

[FONT=&quot](27). “If the notice had said no more than if you park on this roadway you agree to pay a charge then it would have been implicit that PCM was saying we will allow you to park on this roadway if you pay £100 and I would agree with Mr Samuels’ first analysis that essentially the £100 was a part of the core consideration for the licence and was not a penalty for breach. The difficulty is that this notice does not say that at all. This notice is an absolute prohibition against parking at any time, for any period, on the roadway. It is impossible to construct out of this in any way, either actually or contingently or conditionally, any permission for anyone to park on the roadway. All this is essentially saying is you must not trespass on the roadway. If you do we are giving ourselves, and we are dressing it up in the form of a contract, the right to charge you a sum of money which really would be damages for trespass, assuming of course that the claimant had any interest in the land in order to proceed in trespass.” [/FONT]

[FONT=&quot] [/FONT]






I believe the facts stated in this defence are true.

Coupon-mad

Good stuff!

The only thing I would add is to this:

(20). There is a large body of case law which establishes this. In Saeed v Plustrade Ltd [2001] EWCA Civ 2011 it was found the managing agent could not reduce the amount of parking spaces available to residents, nor charge for them, or this would constitute a matter of 'derogation from grant' which the courts could not support.

Mannimango

Brilliant, thanks Coupon-mad. I made sure I read it 20 times before posting, as well as follow all your advice from recent cases!

Mannimango

Hello, I just need a quick bit of advice before I submit my intial defence for Monday.

1. All correspondence to date has been sent to the wrong address. Should I state the correct address in my letter to the Northampton CC?

2. Should I send a copy of my defence to Gladstones, or is a single copy to Northampton sufficient?

Many thanks