Gladstone LBC (UKCPM)

Duns89

Hi All,

I have been issued with a ‘letter before claim’ from Gladstones this week and just want to ensure I reply appropriately and as I should be without putting myself into bother later. If anyone could help it would be greatly appreciated;

Myself
I am over 18
I am in England
I own and am the registered keeper of the vehicle
I rent my flat from my brother who owns the flat and the allocated parking bay which I have been using since I moved here almost 2 years ago
The car park is gated with digit lock and fob access to the vehicle gate
We were told by the management company that CPM would manage the parking after we had all started parking - I have seen no contact just an email agreement between them.

Scenario
Back in February I was issued a PCN from CPM on my windscreen while I was parked within my brothers bay. My permit was displayed within the car in the front side window and this is how it how it had been displayed for over a year without problem (CPM state the permit should be displayed clearly within the front windscreen).

I responded to the ticket within a week with photographic evidence that my permit was displayed and they should remove the debt.

I received a response stating I was in breach of their requirements to park with photo evidence of the car but only of the front, rear and close up of the front windscreen, no side photos which would prove I had displayed a permit. To my understanding BPA code of conduct states cars should be thoroughly checked for a permit - clearly this was not done.

They highlighted IAS to appeal this further which I did but again was met with agreement of CPM that I was in breach.

I have also spoken with the management agent who says the do not get involved with car parking tickets

Since then I have ignored DRP letters until I received a claim before court this week

I have never been told about POPLA or requested one (once I knew about POPLA was well after IAS and I thought I could no longer request this route).

I am suggesting I write back to this LBC using the Daniel San & LOC posts forums.moneysavingexpert.com/showthread.php?p=73208118#post73208118, forums.moneysavingexpert.com/showthread.php?p=72358831#post72358831, and the guidelines set out in the Pre-action protocol.

I will form a draft over the weekend to send, I expect I should not mention my circumstances, or the fact I have not had the opportunity to use POPLA, I expect this is now not an option to use?

Also I have another 2 tickets issued over that weekend but they have managed to send letters from DRP to the wrong address who has no relation to me after getting it from the DVLA (DVLA has my correct address). I do not know how I stand if I do not receive the LBC due to the address being incorrect. Should I try and chase this? I have had some letter given to me from a neighbour.

Thanks in advance for any help. Enjoy the weekend.

Umkomaas

I have never been told about POPLA or requested one (once I knew about POPLA was well after IAS and I thought I could no longer request this route).

POPLA was never available to you. CPM are members of the IPC (therefore IAS), not the BPA (POPLA).

They highlighted IAS to appeal this further which I did but again was met with agreement of CPM that I was in breach.

Unsurprising and totally predictable. Unfortunately CPM now have that to wave in front of a judge. It is why we do not recommend an IAS appeal in 99% of cases.

I am suggesting I write back to this LBC using the Daniel San & LOC posts forums.moneysavingexpert.com/showthread.php?p=73208118#post73208118, forums.moneysavingexpert.com/showthread.php?p=72358831#post72358831, and the guidelines set out in the Pre-action protocol.

One of the best fight-backs we’ve had on here for a long time.

Also I have another 2 tickets issued over that weekend but they have managed to send letters from DRP to the wrong address

If DRP have the wrong address, I wouldn’t concern myself about it, as long as the PPC have the correct address. But for safety, just ask the neighbour if he wouldn’t mind keeping anything addressed to you and let you have it. Slip him a bottle.

Duns89

Thanks Umkomaas. I am going to reply with the below it seems a fairly standard reply on here, however I am going to request for the evidence (12. below highlighted red, I'm unsure if I should highlight this more?) as I know they do not have a side photo of the car which would proved I was displaying a permit and would also prove they have not abided by the BPA code of conduct point 20.5b stating the car should be thoroughly inspected for a permit. I know you state they are not part of the BPA but their letters and signage shows the BPA logo. Slightly misleading?

Thanks

Your Refxxxxxx

Dear Sirs,

I am in receipt of your Letter Before Claim of xxxxx 2017.
Your letter contains insufficient detail of the claim and fails to provide copies of evidence your client places reliance upon.

Your client must know that on 01 October 2017 a new protocol is applicable to debt claims and must be complied with.

Your letter lacks specificity and breaches both the requirements of the previously applicable Practice Direction - Pre-Action Conduct (paragraphs 6(a) and 6(c)) and the new Pre-Action Protocol for Debt Claims (paragraphs 3.1(a)-(d), 5.1 and 5.2. Please treat this letter as a formal request for all of the documents / information that the protocol now requires your client to provide. Your client must not issue proceedings without complying with that protocol. I reserve the right to draw any failure of the Claimant to comply with the protocol to the attention of the court and to ask the court to stay the claim and order your client to comply with its pre-action obligations, and when costs come to be considered.

As solicitors you must surely be familiar with the requirements of both the Practice Direction applicable pre-1 October and the Protocol which applies thereafter (and your client, as a serial litigator of small claims, should likewise be aware of them). As you (and your client) must know, the Practice Direction and Protocol bind all potential litigants, whatever the size or type of the claim. Its express purpose is to assist parties in understanding the claim and their respective positions in relation to it, to enable parties to take stock of their positions and to negotiate a settlement, or at least narrow the issues, without incurring the costs of court proceedings or using up valuable court time. It is astounding that a firm of Solicitors are sending a consumer a vague and unevidenced 'Letter before Claim' in complete ignorance of the pre-existing Practice Direction and the new Protocol.

Nobody, including your client, is immune from the requirements and obligations of the Practice Direction and now the Protocol.

I require your client to comply with its obligations by sending me the following information/documents:

1. an explanation of the cause of action
2. whether they are pursuing me as driver or keeper
3. whether they are relying on the provisions of Schedule 4 of POFA 2012
4. what the details of the claim are; where it is claimed the vehicle was parked, for how long, how the monies being claimed arose and have been calculated
5. Is the claim for a contractual breach? If so, what is the date of the agreement? The names of the parties to it and provide to me a copy of that contract.
6. Is the claim for trespass? If so, provide details.
7. Provide me a copy of the contract with the landowner under which they assert authority to bring the claim, as required by the IPC code of practice section B, clause 1.1 “establishing yourself as the creditor”
8. a plan showing where any signs were displayed
9. details of the signs displayed (size of sign, size of font, height at which displayed)
10. Provide details of the original charge, and detail any interest and administrative or other charges added
11. Provide a copy of the Information Sheet and the Reply Form
12. Provide me with evidence of which the claimant wishes to use to disprove the fact the car was parked legally, including photos showing the front, rear and side of the car in line with code of conduct.

If your client does not provide me with this information then I put you on notice that I will be relying on the cases of Webb Resolutions Ltd v Waller Needham & Green [2012] EWHC 3529 (Ch), Daejan Investments Limited v The Park West Club Limited (Part 20) – Buxton Associates [2003] EWHC 2872, Charles Church Developments Ltd v Stent Foundations Limited & Peter Dann Limited [2007] EWHC 855 in asking the court to impose sanctions on your client and to order a stay of the proceedings, pursuant to paragraphs 13 ,15(b) and (c) and 16 of the Practice Direction, as referred to in paragraph 7.2 of the Protocol.

Until your client has complied with its obligations and provided this information, I am unable to respond properly to the alleged claim and to consider my position in relation to it, and it is entirely premature (and a waste of costs and court time) for your client to issue proceedings. Should your client do so, then I will seek an immediate stay pursuant to paragraph 15(b) of the Practice Direction and an order that this information is provided.

safarmuk

I have also spoken with the management agent who says the do not get involved with car parking tickets

If the Management Agent contracted the PPC then this avenue of trying to alleviate themselves of any responsibility is not open to them, they are responsible for the actions of their agents. I would get your brother (the leaseholder) to contact the MA and tell them if they don't instruct UK CPM to discontinue and cancel the ticket then he will issue proceedings against the MA, the PPC and the Freeholder (you need to find out who this is - the person your brother pays ground rent to will give you the clue).

If you search for "Hairrays" thread you will find three LBCs (to the Freeholder, MA and PPC) that you can tailor should you wish, after sending these "Hairray" got his PCN cancelled.

When using those letters you must tailor them to what your brothers lease says.

The car park is gated with digit lock and fob access to the vehicle gate

In which case your parking facilities seem quite secure, why an earth do you need a PPC at all?

Going forward you could tell the MA that you want your bay opted out of the scheme and that you no longer want it monitored - problem solved regarding any future tickets. I would then have your brother install a folding lockable bollard to keep your space secure. Costs less than a PCN ...

The_Deep

I would suggest that they are urinating windwardly here, what does your brother's lease say about parking? Any mention of permits.

Is there a possible counter-claim here, misuse of data, infringement of leasehold rights, trespass? If so perhaps you should mention it.

Have you read this?

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

Duns89

I am currently putting together a statement of defense against CPM / Gladstones for parking in my brother's car parking bay for not displaying a permit (which actually was). If someone could maybe give it a once over, I've checked the forums and think this should suit. Any help would be greatly appreciated.

Quick overview;
- Brothers flat (in larger residential block) I rent, parking space is within lease
- Permit was displayed as courtesy albeit in the side window not the front (they do not have photos of the side of the car which I have asked for - never received).
- They have since been kicked off the site due to complaints
- I appealed through IAS which was not successful (I know better now).
- Within the claim form they say; I am the driver (has not been disclosed), mis-spelling of the town.
- I recall they probably got my address from appeal to CPM.



Statement of Defence

In the County Court Business Centre
Claim Number: XXXXX

Between:

XXXXXX

Preliminary
1. The Particulars of Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.

2. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct.
Background
3. It is admitted that at all material times the Defendant is the registered keeper of vehicle registration mark XXXX which is the subject of these proceedings. The vehicle is insured with XXXXX with 2 other named drivers permitted to use it.

4. It is admitted that on XXXXXX the Defendant's vehicle at XXXXX where the defendant has been a resident since the building was completed for habitation.

5. It is denied that the Defendant was the driver of the vehicle as the claim accuses. The Claimant is put to strict proof.
5.1. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA")
5.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
5.2.1. there was a 'relevant obligation'; either by way of a breach of contract, trespass or other tort; and
5.2.2. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
It is not admitted that the Claimant has complied with the relevant statutory requirements.

5.3. To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.

Authority to Park and Primacy of Contract
6. It is denied that the Defendant was in breach of any parking conditions and was not permitted to park in circumstances where an express permission to park had been granted to the Defendant permitting the above mentioned vehicle to be parked by the current occupier and leaseholder of XXXXX, whose tenancy agreement permits the parking of vehicle(s) on land. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms. The lease terms provide the right to park a vehicle in the relevant allocated bay, without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle or the requirement to display a parking permit. A copy of the lease will be provided to the Court, together with witness evidence that prior permission to park had been given.
6.1This Claimant was not at this location when the Defendant began residing the flat, arriving some months later. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by the later appearance of this Claimant who offered no contract to residents. A copy of the lease will be provided to the Court and if the Claimant is unaware of the primacy of contract of the leaseholders, this is due to their own negligence and lack of due diligence before starting enforcement at this location.
6.2 Whilst a 'permit' was provided by the Claimant ( which was displayed by The Defendant displayed in his vehicle merely as a courtesy to assist the Claimant) there was no alteration to the lease and the Claimants were to manage parking so non-residents during the construction period of the development could not park in lease owned parking bays when access was available to all. Instead the claimant provides no service that is for the comfort and convenience of the residents; indeed the industry is made up of rogue operators whose modus operandi is to issue predatory, unfair tickets, then sue people. On 2nd February 2018 in the second reading debate about private parking firms, the House of Commons unanimously concluded: ''we need to crack down on these rogue companies. They are an absolute disgrace to this country. Ordinary motorists and ordinary residents should not have to put up with this''.

7. The Defendant avers that the operator's signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial.

7. Accordingly it is denied that:
7.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant
7.2. there was any obligation (at all) to display a permit; and
7.3. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

Alternative Defence - Failure to set out clearly parking terms
8. In the alternative, the Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to consider the imposition of a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.
8.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate.
8.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;
8.1.2. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee's ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and
8.1.3. The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3
8.2. The Defendant avers that the residential site that is the subject of these proceedings is not a site where there is a commercial value to be protected. The Claimant has not suffered loss or pecuniary disadvantage. The penalty charge is, accordingly, unconscionable in this context, with ParkingEye distinguished.

9. It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking parking management. The Claimant has provided no proof of any such entitlement.

10. It is denied that the Claimant has any entitlement to the sums sought.

11. It is admitted that interest may be applicable, subject to the discretion of the Court on any sum (if awarded), but it is denied that interest is applicable on the total sums claimed by the Claimant.

STATEMENT OF TRUTH
I confirm that the contents of this Defence are true.

Thanks for any help!!!

System

CPM state the permit should be displayed clearly within the front windscreen

Just a small detail. Where is this information?

1. Was it on the signs in the car park
2. Was it on the permits they issued
3. Was it on the instructions they issued with the permits?
4. Did you or your brother sign anything when the permits were issued.

Rather than Spurling you might want to consider Thornton if their advice was after the event.

The_Deep

This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors.

Parking Eye, CPM, Smart, and another company have already been named and shamed, as has Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each year). They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

Hospital car parks and residential complex tickets have been especially mentioned.

The problem has become so rampant that MPs have agreed to enact a Bill to regulate these scammers. Watch the video of the Second Reading in the HofC recently.

http://parliamentlive.tv/event/index/2f0384f2-eba5-4fff-ab07-cf24b6a22918?in=12:49:41

and complain in the most robust terms to your MP. With a fair wind they will be out of business by Christmas.

Duns89

They show this on the signs within the car park, unsure if this was on the letter issued with the permit also (I expect it probably was).

My brother signed nothing, the permits were posted to the appropriate plot number without even an address or name on the envelope or letter. The crazy thing is that obviously the parking management will be paid via the management fee for the apartments.

I was also thinking Pace v Mr N [2016] C6GF14F0 [2016] , Link Parking v Ms P C7GF50J7 [2016] might be good arguments with the lease?

The advise is on the signs so don't think it will work? Is the alternative defense needed?

System

I expect it probably was

Never assume. A judge won't and will want facts such as a pic of the sign showing the wording.

Pace v Noor is OK but so too is Link v Blaney as it shows the approach that UKCPM will take.

However the key is whether the terms on the permits can or have changed the terms of your brother's lease. (Search for primacy of contract). If your brother had parking as part of his lease/rental agreement then UKCPM can't offer parking especially since

We were told by the management company that CPM would manage the parking after we had all started parking

So you need to check if the place where you parked was within your brother's gift to offer you, or whether it was a communal area where is was within the gift of UKCPM to offer along with their terms.

If it is the latter, there are still other defences but they will need more work.

Once the facts are in place, then you can select a template that is relevant and not "spray and pray"

Duns89

Never assume. A judge won't and will want facts such as a pic of the sign showing the wording.

. True, I'll try and find this.

However the key is whether the terms on the permits can or have changed the terms of your brother's lease. (Search for primacy of contract). If your brother had parking as part of his lease/rental agreement then UKCPM can't offer parking especially since

. Yes it is part of the lease. It clearly states we have ' the right to park one vehicle not exceeding two and one half tonnes gross unladen weight in the parking space'. This is highlighted on the conveyance plan within the lease so not a gift if I am understanding correctly?

The worst thing is I actually did display the permit, however CPM decided not to take any photos which would show this fact. They only take photos to try and punish you.