Letter before Claim - Wright Hassall/ZZPS

marty1888

Umkomaas wrote: »

‘..... with or without a permit being displayed’ ?

Good point.

marty1888

There may be some duplication here and will no doubt require some re-arrangement but is this an acceptable defence?

Defence:

The Defendant denies any liability whatsoever to the Claimant.

1. The Claimant has no locus standi in this case.

i) The Claimant has not acquired the alleged debt as a valid Assignment from the Operator (Local Car Park Management) and has no legal capacity to bring the claim

ii) The Claimant has provided no evidence that there was a valid assignment of debt and as such is put to strict proof that a Deed of Assignment signed by the original creditor, pursuant to s136 of the Law of Property Act 1925 exists. Absent such evidence the Claimant has no locus in this matter.

iii) The Particulars of Claim state that the alleged debt was purchased by the Claimant on the 25/11/17, Assignment notice sent 26/11/17. The Claimant is put to strict proof that the Operator’s contract provided for parking charges to be so assigned, to the registered keeper.

iv) The Claimant is also put to strict proof that the Operator had sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf as required in the British Parking Association’s Legislation Guidance to Operators.

v) The Operator had no standing to offer a contract; there was no meeting of minds nor any consideration passed. None of the elements that are fundamental to a contract were present and therefore no contract could possibly have existed. The Defendant was, at the most, granted a licence to park. Whatever the conduct was that the Claimant alleges, a breach of a licence would be trespass, not a breach of contract. It could only be pursued by the landowner.

vi) Whether there was a contract or a licence, only the Landowner has standing to bring a claim, not the Claimant nor the operator.

vii). Champerty and Maintenance
Even if there was a valid Deed of Assignment, the Claimant has no interest in, or privy to any purported original contract and it is submitted that such an assignment would be Champertous. The sole purpose is to enable the Claimant to instigate legal proceedings, which is a chose in action, and on that basis the Claim should be struck out by the Court, as was the case in MIL Collections v Stephen Bowker, Case No B1QZ7N32, Oldham CC 15/01/2016.
and 22 Sept 2016, Ipswich CC Case No C8QZ57G1 MIL -v- Paul Cook
The Claimant has not explained what authority the Operator had to acquire a chose in action to assign to the Claimant.
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. ParkingEye v Gardam (3QT60598) similarly examined the contract and found the Sharma judgment persuasive. The Defendant also refers the court to ParkingEye 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. It follows therefore that if a debt exists, it is down the claimant prove its authority.

viii).The Defendant disputes the claimant incurred £50 ‘administrative and collection fee’. MIL Collections bought some photographs of the Defendant's car in a carpark for the express reason of attempting to force the Defendant to pay money to them. It is absolutely outrageous that they are also adding a fee of £50 for the privilege.
The judgment in VCS v Ibbotson (2012) makes 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 Versicherung 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 merely “Not Clearly Displayed a Valid Permit”. 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 just 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 .


(ix) Both the original £100 and the additional £50 debt are penalties. The claimant has provided no evidence of the loss or damage to the PCC or landowner caused by the Defendant’s parking, or any legitimate interest in enforcing the rules of the carpark.

(x) The provision requiring payment of £150 is an unenforceable penalty clause. Following Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915] AC 847, clauses designed to punish a party for breach of contract may only be upheld if they represent a genuine pre-estimate of loss. 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 parking overstay; (b) the amount claimed is evidently disproportionate to any loss suffered by the Claimant; (c) the penalty bears no relation to the circumstances because it remains the same no matter whether a motorist overstays by ten seconds or ten years; and (d) the clause is specifically expressed to be a penalty on the Claimant's signs.

(x) Further and alternatively, the provision requiring payment of £150 is unenforceable as an unfair term contrary to Regulation 5 of The Unfair Terms in Consumer Contracts Regulations 1999. This is a term which falls within Schedule 1, paragraph (e) of the Regulations being a term "requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation". The term was not individually negotiated and causes a significant imbalance in the parties' respective rights and obligations, because the charge is heavily disproportionate in respect of a short overstay and is imposed even where consumers are legitimately using the carpark for its designated purpose.

2. It seems that the sole grounds upon which this Claimant has issued proceedings is that the Defendant was the registered keeper or driver of a vehicle and they allege, with no evidence, no contract, and no cause of action, that they have ‘purchased a debt’.

3. For the avoidance of doubt on the relevant date, I was responsible for the vehicle mentioned in the Particulars. The claim purports to relate to an alleged ‘parking charge notice’ (PCN) issued by another company regarding an alleged but unproven and vaguely stated breach of contract where the originating parking company was made aware by a timely appeal (that they unreasonably refused and in addition failed to provide a POPLA appeal code which is in breach of BPA code of practice of which Local Car Park Management are an approved operator) that the driver was parked without valid permit or authority. The appeal and their response will be produced in evidence.

4. This Claimant is wantonly and officiously intermeddling in a matter in which it has no prior interest; this is frivolous litigation with no evidence nor any particulars that could give rise to a claim in law.

Judges across the country have agreed with this view. MIL cases struck out by the courts include 22 Sept 2016, Ipswich CC Case No C8QZ57G1 MIL -v- Cook, where DJ Spencer suggested that the witness statement supplied by this Claimant provided no evidence and could actually have been boiled down to a single sentence - "We bought some photographs". The judge said "This is the problem with MIL, you buy all these supposed debts and rush them to court and can't even be bothered to provide remotely sufficient evidence as to why, in this instance, Mr Cook owes you hundreds of pounds."

5. The Claimant is put to strict proof that any assignment they might plead conformed to the Law of Property Act 1925 and was properly executed in respect of the alleged debt before proceedings were issued. It is specifically denied, given the absence of any Schedule of Assignment, that the letter produced by them purporting to have originated from their assignor represents proper notice.

6. It therefore follows that without any true assignment the Claimant has no cause of action and these proceedings have no basis whatsoever and are wholly unreasonable and vexatious; the purported assignment being a false instrument.

7. In the alternative, it is the Defendant's case that this Claimant had no prior interest in the underlying transaction whether by way of privity, civil wrong or tort and as it represents a bare chose in action, that the Claimant’s case savours of maintenance. This offends against public policy and may well constitute an abuse of process as established in the cases of Simpson -v-Norfolk and Norwich Hospital NHS Trust [2011] EWCA Civ 1149 and Giles –v- Thompson [1993] UKHL 2.

8. The car park in question , although accessible to all during normal working hours (7am to 10pm), has a lockable security gate which can be opened only by authorised personnel outside of this time, of which the defendant is a keyholder with unrestricted 24 hour access. In this case, it is my belief that as a keyholder the car was parked inside the premises with permission from my employer and leaseholder during the time of the alleged incident and cannot be parked illegally on the premises at any point.

9. 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.

10. The driver was allowed the right to park by his employer, who are a leasehold business, with express permission from Group Business Services staff as supported by an accompanying letter which will be submitted in evidence stating so.

11. This permission created the prevailing and overriding contract - the only contract.

12. New signage 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 case number B9GF0A9E: 'JOPSON V HOME GUARD SERVICES’ which also adduced a business car park decision, analogous to this present case.

(i) 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.

(ii) 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’.

13. The right of the on site businesses to allow authorised vehicles to park pre-dates the arrival of this Claimant.

14. 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.

15. Alternatively, even if there was a contract, the provision requiring payment of £150 is an unenforceable penalty clause.

16. Further and alternatively, the provision requiring payment of £150 is unenforceable as an unfair term contrary to the Consumer Rights Act 2015.

17. 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.

18. 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.

19. 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.

20(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.



It is therefore denied that:
a. Any ‘debt’ exists or existed
b. This purported debt was assigned at all
c. Any notice was provided of the purported assignment save for a deceptive letter produced by the Claimant themselves, intending that it be accepted as having originated from their alleged assignor
d. The alleged assignor had locus standi at the location on the date in question
e. Any signage relied upon comprised a contractual offer
f. There was any contravention by the driver
j. Any ‘administrative & collection fee’ of £50 was incurred or is due.

Statement of Truth:

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

The_Deep

I have not read the thread, are you lodging a counter-claim or asking for CPR27.14(2)(g) costs?

marty1888

The_Deep wrote: »

I have not read the thread, are you lodging a counter-claim or asking for CPR27.14(2)(g) costs?

No. Should I?

marty1888

Supporting letter will state:

To whom it may concern,

This is to certify that Marty1888 is an employee of COMPANY NAME and was so on the XX XXXXX XXXX.

As such, Marty1888 has full authority to park in XXXXX or any of the bays allocated to any XXXXXXX employee at XXXXXXXXX XX12 3XX, with or without a valid permit being displayed.

In addition, he is also a keyholder to the external lockable security gate which permits unretricted access 24/7.

Yours sincerely,

XXXXX XXXXXXX
Job Title

Coupon-mad

The supporting letter is a Witness Statement so it must contain a Statement of Truth, and it doesn't get filed yet. No attachments or evidence accompany the defence. That WS (amended to include a statement of truth) will accompany your own WS and evidence later, so you will be filling in your DQ N180 soon, saying you will be filing two Witness Statements.

Some of what you have found is old, remove this lot (all pre-Beavis, and mean nothing now):

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. ParkingEye v Gardam (3QT60598) similarly examined the contract and found the Sharma judgment persuasive. The Defendant also refers the court to ParkingEye 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. It follows therefore that if a debt exists, it is down the claimant prove its authority.

The_Deep

marty1888 wrote: »

No. Should I?

That is entirely up you, I would.

marty1888

I've been looking through this again and MIL Collections have been chasing this since September 2017 but only purchased the 'alleged debt' on the 25/11/2017.

Are they allowed to do that?

Castle

marty1888 wrote: »

I've been looking through this again and MIL Collections have been chasing this since September 2017 but only purchased the 'alleged debt' on the 25/11/2017.

Are they allowed to do that?

Back in September 2017, MIL were only acting as a debt collector to Local Car Park Management; (the "debt" still belonged to LCPM). When that didn't work out they bought the debt off LCPM.

marty1888

Updated now. Anything else I should add or remove?

Defence:

The Defendant denies any liability whatsoever to the Claimant.

1. The Claimant has no locus standi in this case.

i) The Claimant has not acquired the alleged debt as a valid Assignment from the Operator (Local Car Park Management) and has no legal capacity to bring the claim

ii) The Claimant has provided no evidence that there was a valid assignment of debt and as such is put to strict proof that a Deed of Assignment signed by the original creditor, pursuant to s136 of the Law of Property Act 1925 exists. Absent such evidence the Claimant has no locus in this matter.

iii) The Particulars of Claim state that the alleged debt was purchased by the Claimant on the 25/11/17, Assignment notice sent 26/11/17. The Claimant is put to strict proof that the Operator’s contract provided for parking charges to be so assigned, to the registered keeper.

iv) The Claimant is also put to strict proof that the Operator had sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf as required in the British Parking Association’s Legislation Guidance to Operators.

v) The Operator had no standing to offer a contract; there was no meeting of minds nor any consideration passed. None of the elements that are fundamental to a contract were present and therefore no contract could possibly have existed. The Defendant was, at the most, granted a licence to park. Whatever the conduct was that the Claimant alleges, a breach of a licence would be trespass, not a breach of contract. It could only be pursued by the landowner.

vi) Whether there was a contract or a licence, only the Landowner has standing to bring a claim, not the Claimant nor the operator.

vii). Champerty and Maintenance
Even if there was a valid Deed of Assignment, the Claimant has no interest in, or privy to any purported original contract and it is submitted that such an assignment would be Champertous. The sole purpose is to enable the Claimant to instigate legal proceedings, which is a chose in action, and on that basis the Claim should be struck out by the Court, as was the case in MIL Collections v Stephen Bowker, Case No B1QZ7N32, Oldham CC 15/01/2016.
and 22 Sept 2016, Ipswich CC Case No C8QZ57G1 MIL -v- Paul Cook
The Claimant has not explained what authority the Operator had to acquire a chose in action to assign to the Claimant.

viii).The Defendant disputes the claimant incurred £50 ‘administrative and collection fee’. MIL Collections bought some photographs of the Defendant's car in a carpark for the express reason of attempting to force the Defendant to pay money to them. It is absolutely outrageous that they are also adding a fee of £50 for the privilege.
The judgment in VCS v Ibbotson (2012) makes 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 Versicherung 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 merely “Not Clearly Displayed a Valid Permit”. 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 just 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 .

(ix) Both the original £100 and the additional £50 debt are penalties. The claimant has provided no evidence of the loss or damage to the PCC or landowner caused by the Defendant’s parking, or any legitimate interest in enforcing the rules of the carpark.

(x) The provision requiring payment of £150 is an unenforceable penalty clause. Following Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915] AC 847, clauses designed to punish a party for breach of contract may only be upheld if they represent a genuine pre-estimate of loss. 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 parking overstay; (b) the amount claimed is evidently disproportionate to any loss suffered by the Claimant; (c) the penalty bears no relation to the circumstances because it remains the same no matter whether a motorist overstays by ten seconds or ten years; and (d) the clause is specifically expressed to be a penalty on the Claimant's signs.

(x) Further and alternatively, the provision requiring payment of £150 is unenforceable as an unfair term contrary to Regulation 5 of The Unfair Terms in Consumer Contracts Regulations 1999. This is a term which falls within Schedule 1, paragraph (e) of the Regulations being a term "requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation". The term was not individually negotiated and causes a significant imbalance in the parties' respective rights and obligations, because the charge is heavily disproportionate in respect of a short overstay and is imposed even where consumers are legitimately using the carpark for its designated purpose.

2. It seems that the sole grounds upon which this Claimant has issued proceedings is that the Defendant was the registered keeper or driver of a vehicle and they allege, with no evidence, no contract, and no cause of action, that they have ‘purchased a debt’.

3. For the avoidance of doubt on the relevant date, I was responsible for the vehicle mentioned in the Particulars. The claim purports to relate to an alleged ‘parking charge notice’ (PCN) issued by another company regarding an alleged but unproven and vaguely stated breach of contract where the originating parking company was made aware by a timely appeal (that they unreasonably refused and in addition failed to provide a POPLA appeal code which is in breach of BPA code of practice of which Local Car Park Management are an approved operator) that the driver was parked without valid permit or authority. The appeal and their response will be produced in evidence.

4. This Claimant is wantonly and officiously intermeddling in a matter in which it has no prior interest; this is frivolous litigation with no evidence nor any particulars that could give rise to a claim in law.

Judges across the country have agreed with this view. MIL cases struck out by the courts include 22 Sept 2016, Ipswich CC Case No C8QZ57G1 MIL -v- Cook, where DJ Spencer suggested that the witness statement supplied by this Claimant provided no evidence and could actually have been boiled down to a single sentence - "We bought some photographs". The judge said "This is the problem with MIL, you buy all these supposed debts and rush them to court and can't even be bothered to provide remotely sufficient evidence as to why, in this instance, Mr Cook owes you hundreds of pounds."

5. The Claimant is put to strict proof that any assignment they might plead conformed to the Law of Property Act 1925 and was properly executed in respect of the alleged debt before proceedings were issued. It is specifically denied, given the absence of any Schedule of Assignment, that the letter produced by them purporting to have originated from their assignor represents proper notice.

6. It therefore follows that without any true assignment the Claimant has no cause of action and these proceedings have no basis whatsoever and are wholly unreasonable and vexatious; the purported assignment being a false instrument.

7. In the alternative, it is the Defendant's case that this Claimant had no prior interest in the underlying transaction whether by way of privity, civil wrong or tort and as it represents a bare chose in action, that the Claimant’s case savours of maintenance. This offends against public policy and may well constitute an abuse of process as established in the cases of Simpson -v-Norfolk and Norwich Hospital NHS Trust [2011] EWCA Civ 1149 and Giles –v- Thompson [1993] UKHL 2.

8. The car park in question , although accessible to all during normal working hours (7am to 10pm), has a lockable security gate which can be opened only by authorised personnel outside of this time, of which the defendant is a keyholder with unrestricted 24 hour access. In this case, it is my belief that as a keyholder the vehicle was parked inside the premises with permission from my employer and leaseholder during the time of the alleged incident and cannot be parked illegally on the premises at any point.

9. 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.

10. The driver was allowed the right to park by his employer, who are a leasehold business, with express permission from Group Business Services staff as supported by an accompanying letter in the form of a second witness statement which will be submitted in evidence stating so.

11. This permission created the prevailing and overriding contract - the only contract.

12. New signage 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 case number B9GF0A9E: 'JOPSON V HOME GUARD SERVICES’ which also adduced a business car park decision, analogous to this present case.

(i) 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.

(ii) 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’.

13. The right of the on site businesses to allow authorised vehicles to park pre-dates the arrival of this Claimant.

14. 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 Local Car Park Management 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.

15. Alternatively, even if there was a contract, the provision requiring payment of £150 is an unenforceable penalty clause.

16. Further and alternatively, the provision requiring payment of £150 is unenforceable as an unfair term contrary to the Consumer Rights Act 2015.

17. 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.

18. 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.

19. 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.

20(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.



It is therefore denied that:
a. Any ‘debt’ exists or existed
b. This purported debt was assigned at all
c. Any notice was provided of the purported assignment save for a deceptive letter produced by the Claimant themselves, intending that it be accepted as having originated from their alleged assignor
d. The alleged assignor had locus standi at the location on the date in question
e. Any signage relied upon comprised a contractual offer
f. There was any contravention by the driver
j. Any ‘administrative & collection fee’ of £50 was incurred or is due.

Statement of Truth:

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