desperate help in preparing defence vs UK CPM LTD

lee_ca

Hello Guys and thank you so much to whoever can help.
I am trying to prepare a defence for a family member who is being taken to County Court by UK Car Park Management Ltd via Gladstone Solicitors. I have 2 weeks to submit the defence which would be until 5th November 2017.
UKCPM have submitted their defence papers which I can PM if required.
The story is that this family member lives in a flat with his family of 4 with one parking permit. He uses his car for the family but also to support his family by working as a taxi driver and so it has markings on the car indicating it is a taxi.
He received a PCN despite being parked in his designated parking space (with his permit displayed) in November and December of 2016 due to what is claimed to be a breach in contract as a “commercial vehicle” cannot be parked in the car park. A commercial vehicle is described as “a vehicle used for carrying goods or fayre-carrying passengers”
I feel the contract he signed agreeing to the car parking terms and conditions is unfair as it does not take into account that a car maybe used for dual purposes and I am not sure if this can be used as a defence (i.e. unfair contract). To prevent further PCNs the solution long term has been simple and that has been to cover up his taxi signs when he parks.

He has already paid £440 to this dreadful company as he ignored another PCN alongside these ones which he assumed was part of this current claim but in actual fact a separate claim had been made. As a result he had a judgement automatically made against him (he thought he had already responded to letters/appealed but in fact it was to this current claim and with no response an automatic payment order was made against him). To make matters worse he is on fairly low income so this was a massive blow to him and his family.


I appreciate to those who have read this far and any advice would also be appreciated!
Thanks
Lee

Browntoa

Have you read any of the "newbies" thread ?

Template letters and replies in there

lee_ca

many thanks, I will have another look.

lee_ca

I have another read and I am struggling to find anything that would help in this particular case: i.e. getting a parking ticket in ones own residential space, despite displaying a valid badge as the car is deemed to breach a signed contract as it is a "commercial vehicle".
any help at all?

safarmuk

Firstly, you need to realise your case is not different to other Residential Parking cases on this forum, ignore the "Commercial Vehicle" point for one minute. You were parking your car in your allocated space full stop. What you can and cannot do in your allocated space is defined in the lease (assuming you own the flat) or the Tenancy Agreement (if you rent the flat) supported by the Landlords lease and if you break that agreement it is a matter for the Freeholder.

So lets get back to basics.

Firstly, do you have a picture of the CPM signs? If so host it on a web hosting service (e.g. tinypic, dropbox etc.) and post a broken link here (e.g. hxxp instead of http) and one of the regulars will make it live for you. Does this sign say in it's terms and conditions anything about "commercial vehicles"?

Secondly, if you own the flat do you have your lease? If so read it all and pick out any clauses about parking and post them here so we can review. If you don't have your lease you need to get it. If you have a tenancy agreement same question.

Thirdly, on the PoC you have received, you cannot PM them to anyone. Again print them, redact all personally identifiable information, re-scan, host the redacted file as above and post a broken link

Fourthly, if you are an owner have you contacted the Management Agent (the entity you pay service charge to) or the Freeholder (the entity you pay ground rent to)? If you rent have you contacted your landlord about this? This is paramount, if you can give us the location (e.g. postcode) we might be able to determine who the Freeholder is for you if you do not know. Once you have this information and your lease information you will need to be complaining very forcefully to these people (search for the threads by "hairray" and "danielsan" for ideas)

He has already paid £440 to this dreadful company as he ignored another PCN alongside these ones which he assumed was part of this current claim but in actual fact a separate claim had been made. As a result he had a judgement automatically made against him (he thought he had already responded to letters/appealed but in fact it was to this current claim and with no response an automatic payment order was made against him).

I presume you mean he got a default judgement against him as he did not defend - did he pay it in time to avoid a CCJ being put on his credit record? Depending on the circumstances he could have asked for a set aside for this default judgement but again whether that would have succeeded depends on the circumstances that we do not currently know about.

Time is of the essence for you here, please get back with the information above as soon as you can and then we can help more.

Also bear in mind there is no cut and paste defence for this, you will need to do some research and leg work in complaining to try and get this resolved in your favor - but many posters here do achieve this (when they put in the work).

lee_ca

thank you so much for your reply safarmuk

Firstly, do you have a picture of the CPM signs? If so host it on a web hosting service (e.g. tinypic, dropbox etc.) and post a broken link here (e.g. hxxp instead of http) and one of the regulars will make it live for you. Does this sign say in it's terms and conditions anything about "commercial vehicles"?

please see this link which is the car parking firm's evidence it has pictures there which is the same as now.
hxxps://drive.google.com/file/d/0B4Jcy5dszERtVHgzdC11bzhRTEU/view?usp=sharing

This is a link from a picture taken today:
hxxps://drive.google.com/file/d/0B4Jcy5dszERtUXJNUEFkVW1Wd2s/view?usp=sharing

Secondly, if you own the flat do you have your lease? If so read it all and pick out any clauses about parking and post them here so we can review. If you don't have your lease you need to get it. If you have a tenancy agreement same question.

The family member do not own the flat but are council tenants. Below is a exerpt from the tenancy agreement:
hxxps://drive.google.com/file/d/0B4Jcy5dszERtTll5bEI2RGpGaGM/view?usp=sharing

Thirdly, on the PoC you have received, you cannot PM them to anyone. Again print them, redact all personally identifiable information, re-scan, host the redacted file as above and post a broken link

see here: hxxps://drive.google.com/file/d/0B4Jcy5dszERtVHgzdC11bzhRTEU/view?usp=sharing

Fourthly, if you are an owner have you contacted the Management Agent (the entity you pay service charge to) or the Freeholder (the entity you pay ground rent to)? If you rent have you contacted your landlord about this? This is paramount, if you can give us the location (e.g. postcode) we might be able to determine who the Freeholder is for you if you do not know. Once you have this information and your lease information you will need to be complaining very forcefully to these people (search for the threads by "hairray" and "danielsan" for ideas)

I believe they first contacted the council, they were then directed to the landlord Hyde Marlet and they were simply directed to the tenancy agreement again.

See email here: hxxps://drive.google.com/file/d/0B4Jcy5dszERtbUFYdVVGREZnWlk/view?usp=sharing

“ He has already paid £440 to this dreadful company as he ignored another PCN alongside these ones which he assumed was part of this current claim but in actual fact a separate claim had been made. As a result he had a judgement automatically made against him (he thought he had already responded to letters/appealed but in fact it was to this current claim and with no response an automatic payment order was made against him).
”
I presume you mean he got a default judgement against him as he did not defend - did he pay it in time to avoid a CCJ being put on his credit record? Depending on the circumstances he could have asked for a set aside for this default judgement but again whether that would have succeeded depends on the circumstances that we do not currently know about.

yes i think they paid on time.

thanks again everyone!!!

safarmuk

please see this link which is the car parking firm's evidence it has pictures there which is the same as now.

https://drive.google.com/file/d/0B4Jcy5dszERtVHgzdC11bzhRTEU/view?usp=sharing

This is a link from a picture taken today:

https://drive.google.com/file/d/0B4Jcy5dszERtUXJNUEFkVW1Wd2s/view?usp=sharing

The family member do not own the flat but are council tenants. Below is a exerpt from the tenancy agreement:

https://drive.google.com/file/d/0B4Jcy5dszERtTll5bEI2RGpGaGM/view?usp=sharing

PoC

https://drive.google.com/file/d/0B4Jcy5dszERtVHgzdC11bzhRTEU/view?usp=sharing

I believe they first contacted the council, they were then directed to the landlord Hyde Marlet and they were simply directed to the tenancy agreement again.

See email here:

https://drive.google.com/file/d/0B4Jcy5dszERtbUFYdVVGREZnWlk/view?usp=sharing

Links made live for review and comment. OP hopefully further opinions will be forthcoming soon.

safarmuk

So, after a quick look at this I have a few more questions.

The parking space, is this an allocated space or do you have rights to park in the car park in a space on a first come first served basis?

I think you need the help of either @Jonersh or @LoadsofChildren123 on this thread because this could come down to a legal argument which I believe mainly would be around the lease saying "no commercial vehicles" and whether any breach of this can be enforced by a 3rd party (e.g. the PPC) by way of a PCN (an alleged debt). Your tenancy agreement says you cannot do it but does not specify any financial implication of doing so.

On another note:

Why did the HA not give you permission to park your taxi? It is clearly used as both a taxi and a private motor vehicle for the family surely.

What did the council say, did they defer to the management agent? If so have they asked for the Council to re-house them as a result of this situation

Finally, I think you need to contact your MP about this - and quickly - you can get his email from a google search. Send him/her an email explaining the problem and how unfair it is and ask him/her to take up your case with the council to get this stopped. It might well do the trick.

lee_ca

So, after a quick look at this I have a few more questions.

The parking space, is this an allocated space or do you have rights to park in the car park in a space on a first come first served basis?

its allocated spacing according to the flat number.

I think you need the help of either @Jonersh or @LoadsofChildren123 on this thread because this could come down to a legal argument which I believe mainly would be around the lease saying "no commercial vehicles" and whether any breach of this can be enforced by a 3rd party (e.g. the PPC) by way of a PCN (an alleged debt). Your tenancy agreement says you cannot do it but does not specify any financial implication of doing so.

is that a matter of hoping they see this thread or can I message them?

On another note:

Why did the HA not give you permission to park your taxi? It is clearly used as both a taxi and a private motor vehicle for the family surely.

What did the council say, did they defer to the management agent? If so have they asked for the Council to re-house them as a result of this situation

I believed they deffered the family member to the landlord and the response was as you saw in the email.

Finally, I think you need to contact your MP about this - and quickly - you can get his email from a google search. Send him/her an email explaining the problem and how unfair it is and ask him/her to take up your case with the council to get this stopped. It might well do the trick.

by this do you mean a change in clause in the contract or related to the current dispute taken to court?
Currently the family member simple covers up/removes the markings on his car as to not display any Taxi company and this has not led to any further tickets but in the long run yes I agree this needs to be taken up with the MP as i'm sure other people ar falling foul of this stupid clause also.

Coupon-mad

is that a matter of hoping they see this thread or can I message them?

No, don't message people.

So, what did you make of the 'own space' defence - written by Johnersh - already in the NEWBIES thread and in what way isn't it suitable for your case? If it's not exactly right, use it but adapt it and show us your draft, please.

safarmuk

is that a matter of hoping they see this thread or can I message them?

No, leave it to us, hopefully they will see it.

its allocated spacing according to the flat number.

Your tenancy agreement makes no reference to an allocated space, in fact clause 2 which has the "commercial vehicle" clause just refers to "garden, driveway, paved or grassed areas around your home" .,,
Clause 1 on the other hand says "you and any person living in your home must not park a vehicle anywhere on our property except on a parking area we have set aside or in a garage that you rent with the property".

So the first thing we need to think about is does your allocated bay fall under clause 1, clause 2 or both.

I believed they deffered the family member to the landlord and the response was as you saw in the email.

The landlord is a housing association right?

by this do you mean a change in clause in the contract or related to the current dispute taken to court?
Currently the family member simple covers up/removes the markings on his car as to not display any Taxi company and this has not led to any further tickets but in the long run yes I agree this needs to be taken up with the MP as i'm sure other people ar falling foul of this stupid clause also.

I mean with respect to the current claims against you. You must write to your MP tomorrow, in that email you must explain (and I am paraphrasing here - you need to be more detailed and lay it on thick) the tenant has been given a council flat and the right to park a car at that flat, the tenant makes an honest living driving a taxi which is also his personal vehicle and he is being penalised because the councils HA has said no "commercial vehicles" can be parked there, this is being enforced by a PPC who are taking me to court as a result. Tell him the council won't help and nor will the HA and now you are asking him to intervene to help you before as this is to the detriment of a hard working constituent who is only trying to have a home and earn an honest living.

OP - some questions:
1) When the relative moved in was the tenancy agreement you have shown us the tenancy agreement they signed
2) When did the UK CPM signs change to say "no commercial vehicles"
3) When did the relative move in and when did the problems first start
4) Were UK CPM in place when the relative moved in

@CM - this thread is actually different. That's why I want Jonersh and LOC123 to look at it. The problem is the OP's relative drives a taxi and their is a "no commercial vehicle" point in clause 2 of the tenancy agreement. CPM have also amended their standard signs to say "No commercial vehicles" and have ticketed this resident as a result which they are pursuing to court. Already they got a default judgement on an earlier ticket(s) to the tune of nearly £500 ...