CPM Court Claim Notice

NRS1973

"You also need to be very firm with the MA, if they bring in a new PPC (which I advise against - better to install bollards in your bays) then the contract they sign must include clauses that say the PPC cannot bring proceedings against a leaseholder or tenant and must agree to cancel any ticket mistakenly given to a leaseholder or tenant (or their identified genuine visitors). Get a copy of that contract"

They're bringing in Parking&Property Management, which I've explained to the MA that is like 'jumping from the pan into the fire'. These guys are equally as pathetic as the company that they've just got rid of, if not worse. I'll take your advice on board and attempt to get a copy of the contract. I'll also force and argue the point about 'not bringing proceedings against a leaseholder. Will let you know if I have any luck.

As for my defense statement, is it satisfactory to be posted/emailed to the court?

Thanks again.

Coupon-mad

As for my defense statement, is it satisfactory to be posted/emailed to the court?

Errrmmm... my reply says pretty clearly at the start:

Bin that defence and start again.

safarmuk

My site manager said it's because they've been causing a lot of stress to residents, especially with regards to answering calls or letters, along with not regularly patrolling and basically 'doing as they please'.

I've spoken to the MA, who told me that partly the reason for changing companies, was the lack of professionalism within CPM

He did say that he would provide me a letter to state that he was not impressed with their conduct, and that he was against residents being targeted.

You are missing a trick here with regard to the new PPC coming in. Do you have all the above in writing? If not try to get it, one way is to put this in an email and ask them to confirm it is as discussed.

Then I do not see why given the views the site manager has expressed above why an earth he would not put in place with the new PPC, protections for residents in the contract as I have suggested (e.g. restrictions on who the PPC can take to court and a genuine ticket cancellation process) and then provide those protections in writing to residents.

You also haven't got back to us on your lease - what does it say about parking rights?

I think whilst you defend this claim properly as Coupon Mad suggests you also protect yourself for the future otherwise you will be back here in due course defending another claim this time from PPM.

Additionally that letter from the MA saying CPM should not be suing you is gold dust. Get it, if the agent is going against the wishes of their principle then this is important information for the DJ to see.

Also another question it would be useful to know the answer to, who is the Freeholder or the Freeholders representative that you spoke to who said they could do nothing?

NRS1973

safarmuk wrote: »

You are missing a trick here with regard to the new PPC coming in. Do you have all the above in writing? If not try to get it, one way is to put this in an email and ask them to confirm it is as discussed.

Then I do not see why given the views the site manager has expressed above why an earth he would not put in place with the new PPC, protections for residents in the contract as I have suggested (e.g. restrictions on who the PPC can take to court and a genuine ticket cancellation process) and then provide those protections in writing to residents.

You also haven't got back to us on your lease - what does it say about parking rights?

I think whilst you defend this claim properly as Coupon Mad suggests you also protect yourself for the future otherwise you will be back here in due course defending another claim this time from PPM.

Additionally that letter from the MA saying CPM should not be suing you is gold dust. Get it, if the agent is going against the wishes of their principle then this is important information for the DJ to see.

Also another question it would be useful to know the answer to, who is the Freeholder or the Freeholders representative that you spoke to who said they could do nothing?

Thanks for everyone's help so far. I'll request the letter from the MA on the points raised here. The freeholder said that they have a Managing Company (Burnt Oak Broadway) and Ringley (the MA) who deal with all the issues for the site.

The lease states nothing in particular about parking, except highlights no commercial vehicles. There is no mention of visitor permits, as the site has no visitor parking spaces as such. It also states that the parking space belonging to the flat is highlighted in the plan and the lease, thereby belonging to the leaseholder.

I have also re-written the defence letter and will put that up as a separate post for your advice.

Thanks again.

NRS1973

Hi all

Here is my revised defence. I can't thank you (all the forum members/experts) enough for your help with this. Here goes:

My Defence: - please note I have this in Word, Times New Roman, 12 (1.5 lines spaced)

In the County [FONT=&quot]Court[/FONT] Business Centre Between:
UK Car Park Management Limited
Vs
XXXX
Claim Number: XXXX
I deny I am liable for the entirety of the claim for each of the following reasons:
The Claim Form issued on the 19th October 2017 by UK Car Park Management was not correctly filed under The Practice Direction as it was not signed by a legal person but signed by a “Helen Cook” (Claimant’s Legal Representative)”.
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. This Claimant has not complied with pre-court protocol (as outlined in the new Pre Action Protocol for Debt Claims, 1 October 2017). As an example as to why this prevents a full defence being filed at this time, a parking charge can be for trespass, breach of contract or a contractual charge. All these are treated differently in law and require a different defence. The wording of any contract will naturally be a key element in this matter, and a copy of the alleged contract has never been provided to the Defendant. Furthermore, 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 at all material times the Defendant is the registered keeper of vehicle registration mark XXX, which is the subject of these proceedings. The vehicle is insured with XXXX with X named drivers permitted to use it.
4. It is admitted that on 18/09/2016 the Defendant's vehicle was parked at Aura, Burnt Oak Broadway, Edgware, London HA8 5AQ.
5. It is denied that the Defendant was the driver of the vehicle. 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 or lawful users of his/her 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 XXXX, whose lease 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.
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.
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. If, which is denied, the Claimant was entitled to issue a parking ticket for which a charge is payable, It is denied that the amounts claimed by the Claimant are permitted by the terms of the contract or in law.
10.1. The signage refers to the amount of the charge being X. If the costs of enforcement are notional or predictable, these should appear on the sign if they are to be capable of agreement.
10.2. Legal costs are not recoverable in the small claims track pursuant to Part 27 CPR other than HMCTS costs.
10.3. The correspondence from agents appointed by the Claimant appears to have unilaterally and arbitrarily applied additional charges without explanation or entitlement. These are not actual costs or costs incurred by the Claimant. It is averred that debt recovery agencies work on a no win/no fee basis and that no enhanced costs have been incurred at all. The Claim for such costs is an abuse of process and a breach of the indemnity principle.
11. For the reasons aforesaid, it is denied that the Claimant has any entitlement to the sums sought.

12. 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.


I hope that this one is right now.

nosferatu1001

If the lease states the space belongs to the leaseholder, and no caveats are given, then the pariking company is an aggressive trespasser operating a business from your space.

NRS1973

Should I put that in the defence in some form?

Coupon-mad

Yes, as you OWN the space, your Dad's defence can certainly say that. You told us:

My father is the keeper of a vehicle which received a parking ticket (CPM) whilst the car was parked in a private car parking space (block of flats) for a flat that is owned by me.

So I would have as #6:

6. It is denied that the Defendant or lawful users of his/her 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 XXXX, whose lease permits the parking of vehicle(s) on land.

6.1 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 car parking space belongs to the Defendant's son under his leasehold title, and it formed part of the purchase of the flat.

6.2 In the lease, no caveats exist and the Defendant's son will provide a Witness Statement to confirm that he and his visitors enjoy the unfettered right to exclusive use of the space that he owns, and confirming that, as resident owner, he never agreed to any third party monitoring his land nor did he authorise the Claimant to charge for parking on his land.

6.3 Even if there is a basic contract between the Claimant and the Managing Agent of this site, neither party has title to this particular parking space and any 'parking charges' agreement must by definition be limited to the communal land, if at all. No third party (neither the Claimant nor the Managing Agent) has standing to vary the existing lease agreements, to which the Claimant is not a party.

6.4 The Defendant and the resident owner aver that the Claimant is an aggressive trespasser, operating an unlawful business from the space by issuing unrecoverable penalties without the owner's authority. The Claimant's conduct is tortious, causing private nuisance to the Defendant and his family, and the actions of the Claimant have caused, and continue to cause, a substantial and unreasonable interference with the use/enjoyment of that land. The lawful occupier is considering a claim against the Claimant, and the Court's attention is drawn to the case in January 2013 of R.L.Davey v UK Parking Control Ltd, where the parking company at a residential location were held to be liable for the costs of an injunction sought be a beleaguered resident owner, and the parking company's conduct was held to constitute trespass.*



* https://www.consumeractiongroup.co.uk/forum/showthread.php?377246-UKPC-liable-for-trespass-**SUCCESS**

System

What is an "aggressive trespasser" in legal terms?

NRS1973

Thank you for all the prompt replies. I've amended the defence to incorporate the suggested paragraph as highlighted. Can I take it that the rest of the defence is satisfactory to be printed and submitted?

Thanks in advance again.