UK CPM / Glad overstay Claim Form

LewiiiD

Good morning,

Having spent some time going through other threads about set asides etc and the pro's / con's of doing it, I've decided to fight the CCJ and will be submitting a N244 form this morning. I have taken some information from other threads and have come up with my Draft Order and Witness Statement.

Can someone have a once over for me. I plan on submitting this before the end of play today.
I don't know which court the default judgment was given at, would it be Northampton or should I just say IN THE COUNTY COURT.... etc.


Thanks again, Lewis

[FONT=&quot]
[/FONT]
[FONT=&quot]
[/FONT]
[FONT=&quot]IN THE COUNTY COURT[/FONT]
[FONT=&quot]CLAIM. **********[/FONT]
[FONT=&quot]BETWEEN:


[/FONT]

[FONT=&quot]UK Car Park Management[/FONT]

[FONT=&quot]Claimant[/FONT]
[FONT=&quot]AND[/FONT]

[FONT=&quot]************
[/FONT]

[FONT=&quot]Defendant[/FONT]

[FONT=&quot]_____________________________________________________________________________________________


DRAFT ORDER[/FONT]

[FONT=&quot]_____________________________________________________________________________________________


IT IS ORDERED THAT:

Upon reading the Defendant's application dated 19/12/17.

It is ordered that:

1. The judgment dated 22/11/17 be set aside.

2. The Defendant shall file and serve its Defence by 4pm following 14 days after the date on which the judgement is set aside.

3. The Claimant do pay the Defendant's costs of this application to the sum of £255.

4. The Claimant has permission to file and serve a reply if so required.

[/FONT]
[FONT=&quot]_____________________________________________________________________________________________


[/FONT]

[FONT=&quot]IN THE COUNTY COURT[/FONT]
[FONT=&quot]CLAIM. ***********[/FONT]
[FONT=&quot]BETWEEN:


[/FONT]

[FONT=&quot]UK Car Park Management[/FONT]

[FONT=&quot]Claimant[/FONT]
[FONT=&quot]AND[/FONT]

[FONT=&quot]************[/FONT]

[FONT=&quot]Defendant[/FONT]

[FONT=&quot]_____________________________________________________________________________________________


WITNESS STATEMENT[/FONT]

[FONT=&quot]_____________________________________________________________________________________________

[/FONT]

[FONT=&quot]I am ***** ***** and I am the Defendant in this matter.

[/FONT]
[FONT=&quot]This my supporting Statement in support of my application dated 19/12/17 to:[/FONT]
[FONT=&quot]
· Set aside the Default Judgement dated 22/11/17 as it was not properly served at my current address;
· Order for the Claimant to pay the Defendant £255 as reimbursement for the set aside fee;
· Order for the original claim to be dismissed.

1. Default Judgement
1.1. I understand that the Claimant obtained a Default Judgement against me as the Defendant on 22/11/17. However, this claim form has not been served at my current address and I thus was not aware of the Default Judgement, and was only made aware when I was doing a routine check on my credit file on the 18/12/17. I understand that this Claim was served at an OLD ADDRESS:************************. However, I moved to a new address in February 2017 and I currently reside at*******************. In support of this I can provide confirmation from Reigate and Banstead County Council showing my updated details for the purposes of paying Council tax.[/FONT]
[FONT=&quot]1.2 I have a court hearing scheduled with UK Car Park Management at Horsham County Court on the 22/02/18 following a similar Parking dispute which would lead to believe UK Car Park Management would have had the correct address for myself to serve the Court Papers relating to this case ***********

1.3. I have also never received any previous documentation from the Claimant in this matter and I thus was never able to properly challenge the Claimant’s claim.

1.4. On the 18/12/17 I contacted the County Court Business Centre to find out details of the Default Judgement. The court papers contain no details of the alleged incident and I do not know what the Default Judgement relates to.

1.5. On 18/12/17 I attempted to contact the Claimant using information given to me by County Court Business Centre. I was not able to get through to a member of the Claimant’s staff to discuss, nor have I received a response to my numerous answer phone messages left on the Claimant’s legal department answer-phone. This means as the Defendant, I still do not have any details of the incident the Claimant alleges has taken place, other than the summary of charges now owed, which is shown on the Court papers.

1.6. I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they held the Defendant’s current and correct contact details. According to publicly available information my circumstances are far from being unique. The Claimant’s persistent failure to use correct and current addresses results is an unnecessary burden for individuals and the justice system across the country.

1.7. On the basis provided above I would suggest that the Claimant did not fulfil their duty to use the Defendant’s current address when bringing the claim.

1.8. Considering the above I was unable to defend this claim properly. I thus believe that the Default Judgement against me was issued incorrectly and thus should be set aside.



2. Order dismissing the Claim

2.1. I further believe that the original Claim by the Claimant has no merit and should thus be dismissed. I understand that the Claimant is a Parking Company which seeks to claim for “Parking Charge Notices” which the Claimant believes are due as a result of an alleged breach of contract for parking by a motorist.

2.2. If the Claimant has obtained details of the vehicle for which the Defendant is the Registered Keeper, and used those details to make a claim for a “Parking Charge Notice’’, I thus dispute the claim in its entirety as I do not know the wording of the contract nor do I know the means by which the contract was alleged to come into force.

2.3. If the Claimant can evidence that the alleged incident relates to a vehicle for which the Defendant is the Registered Keeper, any Notice to Keeper served by the Claimant would have needed to comply with the requirements of Schedule 4 of the Protection of Freedoms Act 2012. Otherwise, the Claimant is required to prove the driver of the vehicle they claim was involved in the alleged incident. I submit that the Claimant cannot provide such evidence and further submit that the Claimant does not include ‘Protection of Freedoms Act 2012’ wording on the Parking Charge Notices they issue and therefore cannot hold the Defendant automatically liable for the alleged incident merely for being the Registered Keeper of a vehicle.

2.4. A requirement of the Protection of Freedoms Act 2012 is that this any Notice to Keeper served by the Claimant must be served within 14 days of the date of the alleged incident. Since I have not received any documentation from the Claimant prior to finding out about the Default Judgement, I submit the Claimant will not have complied with the requirements of the Act and thus cannot claim this charge against me as the Registered Keeper in any case.

2.5. I further submit that the Claimant’s claim is without merit due to substantial issues in law. This is for the following main reasons:
2.5.1. Lack of Standing by Claimant: The Claimant is unlikely to be the landowner of the car park in question, and will have no proprietary interest in it. This means that the Claimant, as a matter of law, will have no locus standi to litigate in their own name. Any consideration will have been provided by the landholder, and only they would have been able sue for any damages or trespass.
2.5.2. No Loss Suffered by Claimant: Their claim is presumably based on damages for alleged breach of contract. It is a fundamental principle of English Law that a party who suffers damages through breach of contract can only seek through court action to be put back in the same position, as they would have been if the breach had not occurred. In order to do so, they must demonstrate their actual, or genuine, pre-estimate of loss. I submit that no loss has been suffered by the Claimant as a result of any alleged breaches of contract on the part of any motorist of the vehicle of which I am the Registered Keeper. I further submit that any loss to the landholder (which would be the only party able to claim such losses) would be at most a few pounds.
2.5.3. Claimed charge is an Unenforceable Penalty: I further submit that the Parking Charge that the Claimant claimed, given it is not based on any loss suffered due to the alleged breach, is nothing but an unenforceable penalty.
2.5.4. No contract with the claimant: Any contract must have offer, acceptance and consideration both ways. There would not have been consideration from the Claimant to the motorist; the fee for parking benefits the landowners, not the Claimant. Therefore, there is no consideration from the motorist to [name of claimant].

2.6. On this basis I believe that the Claimant has not provided any reasonable cause of action and thus the claim should be dismissed in its entirety.
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[FONT=&quot]2.7. In order to make informed decisions and statements in my defence as keeper of the vehicle, I will require copies of all paperwork and pictures of all signs from the Claimant. This should be sent to my current address at *****************

[/FONT]

[FONT=&quot]This statement is true to the best of my knowledge and belief.

[/FONT]


[FONT=&quot]Signed______________________[/FONT]
[FONT=&quot]Dated 19-12-2017[/FONT]

Castle

I would go more stronger on UK CPM not using your correct address because, according to your very first post in September, they've had your current address since 15th March.

LewiiiD

Yeah I see your point. Maybe add to points 1.6 and 1.7 then?

Aside from that the rest is okay??

Coupon-mad

Nope, remove ALL mention of 'no loss' (read the ParkingEye v Beavis case to know why):

2.5.2. No Loss Suffered by Claimant: Their claim is presumably based on damages for alleged breach of contract. It is a fundamental principle of English Law that a party who suffers damages through breach of contract can only seek through court action to be put back in the same position, as they would have been if the breach had not occurred. In order to do so, they must demonstrate their actual, or genuine, pre-estimate of loss. I submit that no loss has been suffered by the Claimant as a result of any alleged breaches of contract on the part of any motorist of the vehicle of which I am the Registered Keeper. I further submit that any loss to the landholder (which would be the only party able to claim such losses) would be at most a few pounds.

2.5.3. Claimed charge is an Unenforceable Penalty: I further submit that the Parking Charge that the Claimant claimed, given it is not based on any loss suffered due to the alleged breach, is nothing but an unenforceable penalty.

Remove all of that.

LewiiiD

Apologies for the lateness in replying. Travelling home for Xmas over the last few days.
Quick update regarding the CCJ - after much debate and discussion with the misses I hate to say this but we went ahead and just paid up.

We’re in the process of a house move and just couldn’t take the gamble with the set aside case and subsequent CCJ if we lost.

Still have every intention on giving it to them in Feb and will aim to claw back as much compensation as possible from that case.

Thanks again for all your help and guidance as ever. Will post again with WS and SA documents regarding the original case.

Think my luck has run out. 3 tickets I got and 2 have gone to court! ��

System

just couldn’t take the gamble with the set aside case and subsequent CCJ if we lost.

A little bit of research would have told you that if you did lose (small chance) you had 1 month to pay AND if you paid within that month it would not affect your credit.

You blinked first....

KeithP

17. You would be wise to edit your post to remove your claim number.

21. ...signs [STRIKE]and[/STRIKE] as they were not [STRIKE]invisible[/STRIKE] visible at the point of parking.

LewiiiD

[FONT=&quot]Keith P - Thanks for pointing those out. Had to delete and re-post as formatting went crazy.......



Update regarding the original parking claim. UK CPM Witness Statement has been received. I don't have access to a scanner but could take photos and upload if people wanted to see theirs. It seems like a fairly generic piece and nothing too specific to my case.
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[FONT=&quot]I am attending court on the 22nd of this month so need to get my WS submitted asap. Work has been incredibly busy but i've managed to write a first draft of my WS. If anyone is able to take a look over it would be greatly appreciated.

[/FONT]

[FONT=&quot]1. [/FONT][FONT=&quot]I am the Defendant in this matter. I am an unrepresented consumer who has never attended the county court before. In this statement I will refer to the documents contained in exhibit marked Witness Statement Evidence, by page number, and Claimant’s Accredited Trade Organisation (ATA) (International Parking Community) Accredited Operator Scheme Code of Practice, by section numbers.[/FONT]

[FONT=&quot]2. [/FONT][FONT=&quot]The facts in this statement come from my personal knowledge. Where they are not within my personal knowledge, they are true to the best of my information and belief.[/FONT]

[FONT=&quot]3. [/FONT][FONT=&quot]The vehicle was parked in a Visitor Space outside of my partner’s residential address in Pembroke Park. A Visitor Permit was displayed. The vehicle was parked on 08/02/17 at approximately 10:30pm when it was cold and dark.[/FONT]

[FONT=&quot]4. [/FONT][FONT=&quot]There was no signage on entering the residential car park (except the statement “Resident’s Parking Only”)(Exhibit 1 page 2) and there was no illuminated signage visible at night. (Exhibit 2 page 3)[/FONT]

[FONT=&quot]5. [/FONT][FONT=&quot]I returned to my vehicle in the early evening of the 09/02/17. Drove to work and thought nothing of it (No PCN was attached to the vehicle).[/FONT]

[FONT=&quot]6. [/FONT][FONT=&quot]The first knowledge of any parking infringement was from the first letter I received from UK CPM undated sometime in late February/early March – this was a Parking Charge Notice (PCN) demanding a payment of £60 for an alleged “Overstay”. This figure rising to £100 if not paid within 14 days. Two very poor quality photos were attached showing the vehicle in question. No reference to how the alleged charge had been calculated was included.[/FONT]

[FONT=&quot]7. [/FONT][FONT=&quot]A second letter from UK CPM was received dated 15/03/17 titled “Formal Demand”. The figure now quoted was £100.[/FONT]

[FONT=&quot]8. [/FONT][FONT=&quot]The first letter received from DRP dated 19/04/17 – this demanded a payment of £149, with no reference as to how the alleged debt had arisen or how the charge had been calculated. There was also inclusion of the text “a parking operator, like our client, took a motorist to court for a parking charge – and won. The Supreme Court ruled that the parking charge was lawful” with no reference to the case name or number. (Exhibit 3)[/FONT]


[FONT=&quot]9. [/FONT][FONT=&quot]My own research has found it likely the Supreme Court case was in reference to Beavis V Parking Eye (UKSC67 2015) (Exhibit 4) – which has since been found inapplicable to Residential Parking (Jopson v Homeguard B9GF0A9E 2016) (Exhibit 5).[/FONT]

[FONT=&quot]10. [/FONT][FONT=&quot]I received a second letter from DRP dated 04/05/17 titled “Notice of Intended Court Action – Unpaid Parking Charge £149”. There was no reference as to how the alleged debt had arisen or how the charge had been calculated. This letter included the text “Supreme Court ruling in November 2015, where the court ruled that the parking charge was lawful” – with no reference again to court case name or number. (Exhibit 6)[/FONT]

[FONT=&quot]11. [/FONT][FONT=&quot]I received a third letter from DRP dated 19/05/17 headed “Final settlement offer of £126.65 to avoid court action”. Once again there was no reference to how the figure had been calculated or indeed what this alleged debt was for. (Exhibit 7)[/FONT]

[FONT=&quot]12. [/FONT][FONT=&quot]By this point I had been told at various points over the previous 4 months that I owed the Claimant £60, £100, £149, £126.65 with no explanation throughout as to how these fees had been calculated.[/FONT]

[FONT=&quot]13. [/FONT][FONT=&quot] I received two letters from Gladstones Solicitors dated 20/06/17 & 26/06/17. These letters alleged I owed the Claimant £149 – an increase from £126.65 – with no reference as to what the debt was for or how it had been calculated. These two letters once again reference the Beavis V Parking Eye court case and states “the law is now clear”(Exhibit 8). The law is indeed clear - as Jopson v Homeguard states – the Beavis case is inapplicable to residential car parking (Exhibit 5). [/FONT]

[FONT=&quot]14. [/FONT][FONT=&quot]The two letters received from Gladstones dated 20/06/17 & 26/06/17 had included a telephone number for DRP but none for Gladstones.[/FONT]

[FONT=&quot]15. [/FONT][FONT=&quot]I received a third letter from Gladstones dated 17/08/17 titled “Letter Before Claim” – the alleged debt had again increased from £149 to £160. There was no reference as to how the fee had been calculated. The debt was simply referred to as “Parking charges” with no reference as to how the charges had allegedly arisen. There was two different telephone numbers listed upon the letter. (Exhibit 9).[/FONT]

[FONT=&quot]16. [/FONT][FONT=&quot]At this point I had now been told I allegedly owed the Claimant £60, £100, £149, £126.65, £149 and £160. There was no explanation as to how these fees were calculated or why they varied.[/FONT]

[FONT=&quot]17. [/FONT][FONT=&quot]I received a Claim Form dated 06/09/17 from Northampton County Court with claim number XXXXXX. The receipt of this claim form led me to research this matter further. [/FONT]

[FONT=&quot]18. [/FONT][FONT=&quot]The Particulars of Claim (“PoC”) of the Claim Form were sparse and lacking in detail (Exhibit 10). [/FONT][FONT=&quot]The PoC do not meet the requirements of Practice Direction 16 7.5 as there is nothing that specifies what the terms of the alleged contract were, or how they were breached. The Particulars are not “clear and concise” as is required by CPR 16.4 1(a). There is no information regarding why the charge arose, what the original charge was, what the alleged contract was nor anything that could be considered a fair exchange of information. It just states “parking charges” which does not give any indication of on what basis the claim is brought. The claimant also failed to provide a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). Furthermore, no indication is given as to the Claimant’s contractual authority to operate the car park, another thing that is required by the Claimant’s compulsory ATA Code of Practice - paragraph B1.1 states as follows:[/FONT]
[FONT=&quot]1.1 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 applicable) and in any event to establish you as a person who is able to recover 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 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.

[/FONT]
[FONT=&quot]19. [/FONT][FONT=&quot]I found out that UK CPM were members of the IPC – there is no reference to IPC membership on their signage. (Exhibit 11)[/FONT]

[FONT=&quot]20. [/FONT][FONT=&quot]The sign displays the British Parking Association’s (“BPA”) Approved Operator Scheme (“AOS”) roundel logo – however upon researching this online it was found that the Claimant is not a member of the BPA’s AOS. Upon contacting the BPA it was found the Claimant ceased to be a BPA AOS member in December 2015 and were given a three-month period to remove the AOS logo from their signage. (Exhibit 24)[/FONT]


[FONT=&quot]21. [/FONT][FONT=&quot]Having arrived late at night, I had not studied the Claimant’s signs as they were not visible at the point of parking.[/FONT]

[FONT=&quot]22. [/FONT][FONT=&quot]It is clearly incumbent on the Claimant, if it accuses drivers of parking offences, to install and maintain clear signage informing drivers that they operate in the residential car park, and about what terms apply to the parking. There was no such signage at the entrance of the car park operated by the Claimant (This lack of signage at the entrance goes against the terms of the Code of Practice of the Claimant’s Accredited Trade Organisation (ATA), Part E Schedule 1 which states as follows:

Entrance Signs should:
a) Make it clear that the motorist is entering onto private land
b) Refer the motorist to the signs within the car park which display the full terms and conditions.
c) Identify yourself (where you are a limited company. This should be by reference to your full company name, your company number and the jurisdiction within your company if registered).

I should emphasise that compliance with the Code is a compulsory condition of the Claimant’s membership of its ATA (and without membership the Claimant would not be allowed to request keeper details from the DVLA which allow it to pursue private parking charges). Compliance has also been held by the Supreme Court to be compulsory if a private parking company like the Claimant wishes to recover what is effectively a penalty charge (rather than a lower sum designed to reflect its actual loss) (case of Parking Eye v Beavis, paragraphs 96 and 111).[/FONT]

• [FONT=&quot]In addition to the lack of entrance signage, the signs within the area operated by the Claimant were small and not easy to read from a car (another breach of the Code of Practice). I refer to the photographs in Exhibit 11. Part E, Schedule 1 of the Code of Practice of the Independent Parking Committee (of which the Claimant is a member), clearly states that “Text should be of such a size and in a font that can be easily read by a motorist having regard to the likely position of the motorist in relation to the sign". The signage is not as per the code.
  
  [/FONT]
• [FONT=&quot]The signage is incapable of forming, as claimed, a contract with drivers. (unlike other signs held as capable of doing so – see for example the sign in the Parking Eye v Beavis and Wardley case, a copy of which is at page 16 of XX1).[/FONT]

[FONT=&quot]25. [/FONT][FONT=&quot]I was aware that I had the right to park in the Resident’s car park as a Visitor – The only condition of parking understood by the tenant and myself was that a permit must be displayed (which it was). [/FONT]


[FONT=&quot]26. [/FONT][FONT=&quot]There is no mention on the parking permit about the restrictions in place at Pembroke Park and for how long you could park for. [/FONT]

[FONT=&quot]27. [/FONT][FONT=&quot]I had not entered into any contract with the Claimant and had no prior contact with them, neither had I any awareness as to their “conditions”. [/FONT]

[FONT=&quot]28. [/FONT][FONT=&quot]I discounted the Claimant - based upon the fraudulent display of membership to a professional body they are not a part of - as a “cowboy” organisation.[/FONT]

[FONT=&quot]29. [/FONT][FONT=&quot]To that regard I had no contact with the parking company UK CPM, DRP or Gladstones Solicitors prior to receiving the Claim Form. [/FONT]

[FONT=&quot]30. [/FONT][FONT=&quot]The Defendant is at a serious disadvantage in this case as is an inexperienced litigant in person whereas the Claimant is a well funded, serial litigant. [/FONT]

[FONT=&quot]31. [/FONT][FONT=&quot]The Claimant has issued vague and incoherent PoC such as the Defendant does not have enough information to efficiently defend this claim (Exhibit 10), I therefore reserve my position to add further points to my defence once I have seen the Claimant’s court bundle containing their evidence and witness statement.[/FONT]

[FONT=&quot]I believe that the facts stated in this Witness Statement, XXXX are true. [/FONT]
[FONT=&quot]Signed:[/FONT]
[FONT=&quot]Dated:[/FONT]
[FONT=&quot]Defendant[/FONT]

[FONT=&quot]

[/FONT]

Coupon-mad

DRP

Should be written in full the first time with (DRP) after it, then you can use the acronym later.

Beavis V Parking Eye

is stated in two places. Needs changing to ParkingEye Ltd v Beavis, and should be italicised.


This conflates two different meanings of the word contract:

The claimant also failed to provide a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). Furthermore, no indication is given as to the Claimant!!!8217;s contractual authority to operate the car park, another thing that is required by the Claimant!!!8217;s compulsory ATA Code of Practice - paragraph B1.1 states as follows:
1.1 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 !!!8216;Creditor!!!8217; within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover 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!!!8217;s behalf or provide sufficient 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.

A 'copy of their written contract' is NOT the landowner 'contract'. It means the contract terms (the sign). Personally I would remove the above from your WS, as it adds nothing and isn't really part of a WS.

26. There is no mention on the parking permit about the restrictions in place at Pembroke Park and for how long you could park for.

Have you given an exhibit number to a copy of a visitor's permit? Mention that exhibit here.

How about your gf provides her own WS and a copy of her tenancy agreement as an exhibit, to show what it says about the right to park for residents & visitors. or to show in the alternative, that tenants are not informed of any 'contract' or 'relevant obligation' to do anything at risk of £100 fine, anywhere in their agreement.

How come the exhibits look like they jump from #11 to #24?

LewiiiD

CM - thanks for coming back to this thread. Your help so far has been great.

I've made the adjustments you suggested and have included evidence of the parking permit itself. Regarding the g.f and her WS ill try and sweet talk her into providing something. She has actually moved out of the residential estate now having become so fed up with the situation there. So finding the tenancy agreement might be an issue. Unfortunately she has had more issues than I have with them and currently has 6 CCJ's from them. We will be looking into each one once this case is closed.

The exhibits are a little all other the place atm. I was working along side my SA at the same time. Ill amend etc once I have the finished WS.

I've managed to scan UKCPM's WS. Can someone make the link live. I'll post my WS/ SA / Evidence into the same location once they are more complete.

https://www.dropbox.com/sh/7gh8wy331nkat1e/AADEeJso4SC71HwqPd4B9wiBa?dl=0

Thanks again.