Gladstone LBC (UKCPM)

Umkomaas

The crazy thing is that obviously the parking management will be paid via the management fee for the apartments.

Unlikely that any fee is paid to UKCPM. The only way they feed is from penalties imposed on residents (and the odd fly-parker).

System

How much time do you want to spend on this. For example with paras 1, 2, 5.1 you are identifying a breach of the Civil Procedure Rules and, if true, you want to draft up an order for the court to sanction them for such a breach.

However you should invite the other party to rectify the breach so you could send them a letter and attach a copy to your defence to show you have invited them to sort it. If they don't, you can at the Allocation/DQ stage say that

a) There is a breach of the CPR/PD
b) They have been invited to sort it and haven't.
c) They haven't applied for relief so you'd ask the court, based on the evidence, to strike the case out.

Saves them, you and the court the hassle of 6 months faffing around with a case that has no merit.

Duns89

However you should invite the other party to rectify the breach so you could send them a letter and attach a copy to your defence to show you have invited them to sort it. If they don't, you can at the Allocation/DQ stage say that

Sounds sensible, I expect they don't really want to spend much time on this (and Gladstones are really slow at doing anything) and I would rather not spend too much time and the judge is probably bored of seeing these cases. How does that leave the claim form? I have till 13th July to submit (I've been away so only saw this recently and it is with the extension of time).

Their particulars of claim basically say; 'The driver of the vehicle registration xxxxx, incurred the parking charge on xxxxxx for breaching the terms of parking on the land xxxxxx. The was defendant driving the vehicle and/or is the keeper of the vehicle. Then it states the fine and other costs.
So I believe this is not to the CPR etc?

Coupon-mad

. 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?

You are misunderstanding this, I think, from IamEmanresu:

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.

Google legal meaning gift which doesn't mean a present/gift.

Duns89

So I've read regarding 'gift' found out a bit further and I'm slightly unsure.

From my understanding of gift is that it is a transfer of property without compensation.

- Our car park is owned by the freeholder of the land and a management company runs the land via the fees we pay.
- Our management company have allowed for CPM who have since been removed from operation here to ticket the parking.
- My brother owns the parking space within the lease as his boundary documents.
- I park within the space with allowance from my brother.
- The roads are in the ownership of freeholder but are run by the management company.

From my understanding of this CPM do not have any real control over the area?

Apology in the delay replying, I understand I am tying my hands with time a little here so further help would be very helpful.

Coupon-mad

- My brother owns the parking space within the lease as his boundary documents.
- I park within the space with allowance from my brother.

If he owns the space, why is he agreeing to a permit regime on his owned land? Makes no sense whatsoever and is fairly naive to accept a permit and risk of a fine when he is the owner of that space. Why should he? Answer - he shouldn't!

The MA can (with agreement of the residents) allow a PPC to infest the common/shared outside area but not someone's owned space. He needs to inform the MA and the PPC, that his own parking space is not common land, and he has primacy of contract and has never agreed to the scum ex-clamper to set foot near cars in his owned bay and that any such conduct is trespass.

You can get your brother to provide a WS in due course (and hopefully he can attend the hearing with you) confirming and showing proof that he owns the bay, and stating that he has never authorised the Claimant to operate a business on that land, nor does he require his visitors to display a permit, but if they choose to, he is happy that it is on a side window or back window, or not displayed at all because there is no relevant obligation to display anything on his land, and the PPC is trespassing.

To find a defence example wording, try these keywords:

defence landlord Tenant Act consensus derogation from grant

also try:

defence DJ Skelly Union Jack

and use what you find, adapt it and show us your draft defence, like others here do.

Duns89

OK.....Perfect thanks for the help!!!! I'll get right on it!!!!

Duns89

So I have put together my statement using bits through the forum as you have advised. My thoughts are that there is a lease which has no statement regarding the parking management and that the is a right to park with no restrictions. And obviously that the lease cannot be changed unless most of us were consulted which has not and the leases have not been changed physically. I think the 'wholly unreasonable and vexatious' is relevant also. I'm hoping this is not too much and throwing too many things. Maybe a judge would get bored with this and think it overkill?

I don't provide any evidence at this point? This comes later with the witness statement from what I've read?

Appreciate your help........Hopefully at the end of all this I can out something together for future reference....


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. The Defendant further notes the Claimant's failure to engage in pre-action correspondence in accordance with the pre-action protocol and with the express aim of avoiding contested litigation.

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. The Defendant is unable to identify the driver for the [date]. 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.

6) It is denied that any "parking charges or indemnity costs" (whatever they might be) as stated on the Particulars of claim are owed and any debt is denied in its entirety.

7. The claimant has not provided enough details to file a full defence. In particular, the full details of the contract which it is alleged was broken have not been provided.
The Claimant has disclosed no cause of action to give rise to any debt.

Authority to Park and Primacy of Contract

8. It is not admitted that the Claimant has contractual or other lawful authority to make contracts with residents at this location, and/or to bring proceedings against the Defendant. The Claimant is put to strict proof. Further, and in the alternative, the Defendant avers that the Claimant requires the permission of the owner of the relevant land - not merely another contractor or site agent not in possession - in order to commence proceedings.

9. It is denied that the Defendant or lawful users of their vehicle were in breach of any parking conditions or were 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 [ADDRESS], 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.

10. The Defendant avers that the operators signs cannot
(i) override the existing rights enjoyed by residents or leaseholders 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.

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

12.1 The Defendant avers that there has been no variation of the resident's lease under the Landlord and Tenant Act 1987. The Defendant understands that for such a variation to have been agreed by the residents, 75% of the parties must have consented and not more than 10% must not have objected to any proposed material change (which this most certainly is).

12.2 Due process has not been followed and the Claimant is put to strict proof, including proving delivery of the requisite notices and the consensus obtained for the introduction of this unwelcome nuisance. Onerous terms cannot be foisted upon residents merely by a third party putting some signs up and beginning a predatory charging regime - even with the authority of a site agent - since this would be a derogation from grant.

12.3 The Defendant will provide a witness statement from the resident, confirming that the Defendant was authorised by the resident to park on site, was legitimately and properly parked in a visitors' bay and could not be described as ''unauthorised'' (i.e. a trespasser). In any case, a parking operator firm not in possession of the land, cannot recover such damages.

12.4 In D7GF307F - UKCPM v Mr D - before Deputy District Judge Skelly on 1st February 2018 at Clerkenwell, a similar thin excuse of an argument from a private parking firm inflicting a nuisance on residents & visitors was dismissed. When not sitting as a Judge, DDJ Skelly is a barrister specialising in property law. The managing agents were named as a party to the lease, and there was a clause which said that they could make regulations for the 'comfort and convenience' of lessees. However, this could not excuse a change as intrusive and onerous as to override the grant of free resident/visitor parking, effectively restricting and charging for a right previously enjoyed, without the required consensus and deed of variation. It would be like the agents suddenly stipulating that residents had to hang a Union Jack out of the window whenever they were at home; clearly unreasonable and not in the interests of the consumer.

13. This Claimant permitted in a predatory parking regime targeting residents and their visitors and has unilaterally attempted to foist upon residents a change of rules, in complete disregard to any existing rights and grants; the Claimant being a stranger to the various residents' Agreements. No variation of residents' Agreements has taken place and any such variation would be solely a matter between the landowner and the resident, in any case.

Alternative Defence - Failure to set out clearly parking terms

14. 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.

15.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate.

15.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;
15.1.2. 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
15.1.3. 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
15.2. 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.

16. 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.

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

18. 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.

19. It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, the Defendant is keeping careful note of all wasted time/costs in dealing with this matter and should the case continue to trial (or in the event of the Claimant filing a Notice of Discontinuance) the Defendant will seek further costs, pursuant to Civil Procedure Rule 27.14(2)(g).

20. How can there be a legitimate interest in penalising residents for using parking spaces, under the excuse of a scheme where ostensibly and as far as the landowner is concerned, the parking firm is contracted for the benefit of the residents. It is contrary to the requirement of good faith and of all proportion to any legitimate interest to fine residents for using the parking spaces provided.

21. The presence of the Claimant on the land will have supposedly been to prevent parking by uninvited persons, for the benefit of the actual leaseholders. Instead, a predatory operation has been carried out on those very people whose interests the Claimant was purportedly there to uphold.

22. The Defendant respectfully suggests that parking companies using the small claims track as a form of aggressive, automated monetary demands against motorists, alleging 'debts' for parking on free resident parking areas is not something the Courts should be seen to support.

23. The Defendant denies the claim in its entirety, voiding any liability to the Claimant for all amounts due to the aforementioned reasons. The Defendant asks that the court gives consideration to exercise its discretion to order the case to be struck out under CPR Rule 3.4, for want of a detailed cause of action and/or for the claim having no realistic prospects of success.

24. If the court is not minded to make such an order, then when Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because it is expected that the Claimant will use its witness statement to provide the sort of detail which should have been disclosed much earlier, and the Defendant should have the opportunity to consider it, prior to serving evidence and witness statements in support of this defence.

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

Coupon-mad

#4 needs the words 'was parked' I think.

Also, swap round your last 2 points and re-word to suit, like here where it ends by asking for a strike out for abuse of process, which might catch the Judge's eye:

https://forums.moneysavingexpert.com/discussion/comment/74503811#Comment_74503811

I don't provide any evidence at this point? This comes later with the witness statement from what I've read?

That's correct.

Your defence and your research & preparation looks very good! :T

Duns89

#4 needs the words 'was parked' I think.

True.....I need to have a second run through tomorrow for spelling / wording etc but felt it was mostly there.

Also, swap round your last 2 points and re-word to suit, like here where it ends by asking for a strike out for abuse of process, which night catch the Judge's eye:

I like it.....the original fine was £100 but would be reduced on early payment to £60. Is it worth putting something like 'alleged contractual parking charge of £100 reduced to £60 trying to force the defendant to pay quickly without thought of legality/contract'. Might show the inflation even wider......would probably need rewording, legal/writing is not my strong point ha.

Coupon I must say I have only gotten here through the help of others including your advise and knowledge of previous cases. If I had more time I'm sure certain aspect could have been avoided but you live and you learn.