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UK CPM v TBR1 - Residential permit 'own space' argument. Gladstones issued claim.
TBR1
Posts: 8 Forumite
Hello everyone,
I've spent a fair amount of time lurking on the forum prior to posting this and wish to thank all of you that have posted invaluable information in prior threads that I have used up to this point.
I have just received a claim form from the County Court Business Centre (UK CPM instructing Gladstones) and have completed an acknowledgement of service. The claim has arisen from a PCN issued for my vehicle being parked in a space allocated to an apartment I reside in without a valid permit being displayed. I should note I park in the same space everyday.
I am hoping that some of you with better parking law based minds than I may be able to review the defence below and give me your thoughts. The defence is based on one of the links in the excellent Newbies thread and, as per the guidance, I have tailored it to the facts of my case.
Since the initial UK CPM appeal process I have made clear that my vehicle was parked in a space of which I had exclusive parking rights borne from a lease and lease of easement. These points were ignored and I received generic correspondence back citing Beavis. Responded asking them to address my points, my queries were ignored. Progressed the matter to the IPC, same result. Various letters from Debt Recovery Plus then followed and were not responded to.
Letter before claim then received from Gladstones, to which I replied and provided a copy of the lease. After no reply from them for four months I receive a letter that simply says "Whilst we have noted the content of your letter we fail to see the relevance of the lease you have presented as you are not a party to it." before continuing with the usual, pay within 14 days or we are instructed to issue proceedings. I responded explaining that my rights derive from the lease albeit I am not the legal leasehold owner (the leaseholder does not live at the apartment and they are currently holding it on trust with me enjoying a beneficial interest). In any event the lease says authorised users includes occupiers of the property. The leaseholder is willing to provide evidence that they have granted me all rights under the lease and relevant permissions etc.
Regarding the new Pre-Action Protocol for Debt Claims, the original LBC predates it, however their later response, my reply and the issue of the claim all post-date it. I did draw it to their attention pre-issue and ask for further information on the debt but this letter was ignored.
The terms of the lease and lease of easement do not require the displaying of a permit. I can't currently post the extracts as I am a new user and cannot submit links. When I'm able to post links I'll also show the original PCN and signs.
Now for 'my' defence (all credit to MSE user Johnersh) as drafted so far:
IN THE COUNTY COURT BUSINESS CENTRE
Preliminary
1. The Particulars of Claim lack specificity to the point where the Defendant is prejudiced and unable to prepare a full and complete Defence.
2. The Defendant reserves the right to seek from the Court permission to:
a. Serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings; or
b. Limit the Claimant only to the unevidenced allegations in the Particulars.
3. 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.
4. The Defendant further notes the Claimant's failure to engage in meaningful pre-action correspondence in accordance with the pre-action protocol and with the express aim of avoiding contested litigation.
Background
5. It is admitted that at all material times the Defendant was the registered keeper of vehicle registration mark [REG123] which is the subject of these proceedings. The vehicle was insured with [INSURER] with a number of family members being permitted to use it.
6. It is admitted that on [DATE] the Defendant's vehicle was parked in allocated space number 123 at the [ADDRESS].
7. It is not admitted that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.
a. 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").
b. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
i. there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
ii. 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.
c. 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
8. It is denied that the Defendant or lawful users of his 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 leaseholder of [APARTMENT ADDRESS], whose lease and lease of easement provide an exclusive right for the leaseholders or other occupiers of [APARTMENT ADDRESS] to park in space 123.
9. 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.
10. The lease and lease of easement terms provide the right to park a vehicle in the relevant allocated bay, without limitation as to type of vehicle, ownership of vehicle or the requirement to display a parking permit.
11. A copy of the lease and lease of easement will be provided to the Court, together with witness evidence from the leaseholder that prior permission to park had been given. Copies of the above were provided to the Claimant prior to the issue of this claim.
12. 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.
13. The leaseholder will provide evidence to the effect that they have not consented to or been notified of any variation of their lease or lease of easement since acquiring legal interests in the respective titles, nor were they made aware of any prior amendments that would otherwise be relevant to this claim.
14. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) (Claim no. 9GF0A9E in the Oxford County Court) 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:
a. there was any agreement as between the Defendant or driver of the vehicle and the Claimant
b. there was any obligation (at all) to display a permit; and
c. 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
15. 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.
a. The Defendant avers that the parking signage in this matter was, without prejudice to his primary defence above, inadequate.
i. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;
ii. 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
iii. 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.
b. 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 despite multiple requests by the Defendant to the Claimant and their solicitors.
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.
[Standard statement of truth and sign off etc]
All suggestions, tips and pointers will be gratefully received!
Key documents below:
Claim form:
hxxps://i.imgur.com/Y1CERoA.jpg
Key terms from the apartment lease
hxxps://i.imgur.com/k12OaGb.jpg
Key terms from the separate parking space lease of easement
hxxps://i.imgur.com/0Sha28A.jpg
Schedule 3 as referred to in above parking space lease of easement
hxxps://i.imgur.com/RQI2ZCh.jpg
I've spent a fair amount of time lurking on the forum prior to posting this and wish to thank all of you that have posted invaluable information in prior threads that I have used up to this point.
I have just received a claim form from the County Court Business Centre (UK CPM instructing Gladstones) and have completed an acknowledgement of service. The claim has arisen from a PCN issued for my vehicle being parked in a space allocated to an apartment I reside in without a valid permit being displayed. I should note I park in the same space everyday.
I am hoping that some of you with better parking law based minds than I may be able to review the defence below and give me your thoughts. The defence is based on one of the links in the excellent Newbies thread and, as per the guidance, I have tailored it to the facts of my case.
Since the initial UK CPM appeal process I have made clear that my vehicle was parked in a space of which I had exclusive parking rights borne from a lease and lease of easement. These points were ignored and I received generic correspondence back citing Beavis. Responded asking them to address my points, my queries were ignored. Progressed the matter to the IPC, same result. Various letters from Debt Recovery Plus then followed and were not responded to.
Letter before claim then received from Gladstones, to which I replied and provided a copy of the lease. After no reply from them for four months I receive a letter that simply says "Whilst we have noted the content of your letter we fail to see the relevance of the lease you have presented as you are not a party to it." before continuing with the usual, pay within 14 days or we are instructed to issue proceedings. I responded explaining that my rights derive from the lease albeit I am not the legal leasehold owner (the leaseholder does not live at the apartment and they are currently holding it on trust with me enjoying a beneficial interest). In any event the lease says authorised users includes occupiers of the property. The leaseholder is willing to provide evidence that they have granted me all rights under the lease and relevant permissions etc.
Regarding the new Pre-Action Protocol for Debt Claims, the original LBC predates it, however their later response, my reply and the issue of the claim all post-date it. I did draw it to their attention pre-issue and ask for further information on the debt but this letter was ignored.
The terms of the lease and lease of easement do not require the displaying of a permit. I can't currently post the extracts as I am a new user and cannot submit links. When I'm able to post links I'll also show the original PCN and signs.
Now for 'my' defence (all credit to MSE user Johnersh) as drafted so far:
IN THE COUNTY COURT BUSINESS CENTRE
Claim No. XYZ123
B E T W E E N: -
UK CAR PARK MANAGEMENT LIMITED
TBR1
__________________________________________
DEFENCE
__________________________________________
Claimant
-and-TBR1
Defendant
__________________________________________
DEFENCE
__________________________________________
Preliminary
1. The Particulars of Claim lack specificity to the point where the Defendant is prejudiced and unable to prepare a full and complete Defence.
2. The Defendant reserves the right to seek from the Court permission to:
3. 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.
4. The Defendant further notes the Claimant's failure to engage in meaningful pre-action correspondence in accordance with the pre-action protocol and with the express aim of avoiding contested litigation.
Background
5. It is admitted that at all material times the Defendant was the registered keeper of vehicle registration mark [REG123] which is the subject of these proceedings. The vehicle was insured with [INSURER] with a number of family members being permitted to use it.
6. It is admitted that on [DATE] the Defendant's vehicle was parked in allocated space number 123 at the [ADDRESS].
7. It is not admitted that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.
a. 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").
b. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
i. there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
ii. 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.
c. 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
8. It is denied that the Defendant or lawful users of his 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 leaseholder of [APARTMENT ADDRESS], whose lease and lease of easement provide an exclusive right for the leaseholders or other occupiers of [APARTMENT ADDRESS] to park in space 123.
9. 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.
10. The lease and lease of easement terms provide the right to park a vehicle in the relevant allocated bay, without limitation as to type of vehicle, ownership of vehicle or the requirement to display a parking permit.
11. A copy of the lease and lease of easement will be provided to the Court, together with witness evidence from the leaseholder that prior permission to park had been given. Copies of the above were provided to the Claimant prior to the issue of this claim.
12. 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.
13. The leaseholder will provide evidence to the effect that they have not consented to or been notified of any variation of their lease or lease of easement since acquiring legal interests in the respective titles, nor were they made aware of any prior amendments that would otherwise be relevant to this claim.
14. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) (Claim no. 9GF0A9E in the Oxford County Court) 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:
a. there was any agreement as between the Defendant or driver of the vehicle and the Claimant
b. there was any obligation (at all) to display a permit; and
c. 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
15. 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.
a. The Defendant avers that the parking signage in this matter was, without prejudice to his primary defence above, inadequate.
i. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;
ii. 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
iii. 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.
b. 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 despite multiple requests by the Defendant to the Claimant and their solicitors.
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.
[Standard statement of truth and sign off etc]
All suggestions, tips and pointers will be gratefully received!
Key documents below:
Claim form:
hxxps://i.imgur.com/Y1CERoA.jpg
Key terms from the apartment lease
hxxps://i.imgur.com/k12OaGb.jpg
Key terms from the separate parking space lease of easement
hxxps://i.imgur.com/0Sha28A.jpg
Schedule 3 as referred to in above parking space lease of easement
hxxps://i.imgur.com/RQI2ZCh.jpg
0
Comments
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When you win, screw them for every penny you can get.I'd rather be an Optimist and be proved wrong than a Pessimist and be proved right.0
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I agree with the above. They may well have offended against the provisions of the DPA, kerching, harassed you, kerching, and acted unreasonably, kerching, not to mention trespass, and, depending on the wording of your lease, interfered your leasehold right to quiet enjoyment of your property. CPM know this, but continue to chance their arm in court.
Read this
http://parking-prankster.blogspot.co.uk/2016/11/residential-parking.htmlYou never know how far you can go until you go too far.0 -
You CAN post a link - just a dead one. Host at tinypic and "break" the link by changing http to hxxp. A regular can then change it
Ensure ALL PERSONAL INFO IS REMOVED. Reference no, VRM, etc.0 -
Whilst we have noted the content of your letter we fail to see the relevance of the lease you have presented as you are not a party to it
Could you explain why they said this. Are you the leaseholder? Are you a tenant (See Link v Blaney) or are you a lodger.When you win, screw them for every penny you can get.
Seems a bit prematureThis is a system account and does not represent a real person. To contact the Forum Team email forumteam@moneysavingexpert.com0 -
Defence looks good to me.
The OP is the beneficial owner - the legal leaseholder holds it on trust for him/her (this was in a previous post).
The legal leaseholder is willing to put this in writing (they'd need to make a witness statement).
The important question here is what the lease says about the freeholder's right to impose new regulations and whether, if there is such a right, what that right extends to, and whether they went through a proper process to introduce new regulations (eg did you all get notice, or did signs just suddenly go up? Why didn't you get a permit?).
I assume you've read Daniel san and hairray's threads which contain lots of detailed information on these points.
It will come down to the wording in the lease so can you perhaps post a link to it on here, or at least find the relevant clause and put it in a post so we can see what it says?Although a practising Solicitor, my posts here are NOT legal advice, but are personal opinion based on limited facts provided anonymously by forum users. I accept no liability for the accuracy of any such posts and users are advised that, if they wish to obtain formal legal advice specific to their case, they must seek instruct and pay a solicitor.0 -
Iam - the rest of that para said what interest they have, ie beneficial trust.0
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Iam - the rest of that para said what interest they have, ie beneficial trust.It will come down to the wording in the lease so can you perhaps post a link to it on here
LOC123 will confirm that what people think and what their legal position is, will come down to the paperwork.
Seen too many defences go down in flames when the reality of the paperwork meets the court system
(See Link v Blaney or Indigo v Welsh nurses)This is a system account and does not represent a real person. To contact the Forum Team email forumteam@moneysavingexpert.com0 -
IamEmanresu wrote: »LOC123 will confirm that what people think and what their legal position is, will come down to the paperwork.
Seen too many defences go down in flames when the reality of the paperwork meets the court system
(See Link v Blaney or Indigo v Welsh nurses)
I will read into those cases now, thank you.Loadsofchildren123 wrote: »Defence looks good to me.
The OP is the beneficial owner - the legal leaseholder holds it on trust for him/her (this was in a previous post).
The legal leaseholder is willing to put this in writing (they'd need to make a witness statement).
The important question here is what the lease says about the freeholder's right to impose new regulations and whether, if there is such a right, what that right extends to, and whether they went through a proper process to introduce new regulations (eg did you all get notice, or did signs just suddenly go up? Why didn't you get a permit?).
I assume you've read Daniel san and hairray's threads which contain lots of detailed information on these points.
It will come down to the wording in the lease so can you perhaps post a link to it on here, or at least find the relevant clause and put it in a post so we can see what it says?
Thank you for your reply. I have indeed gleaned a lot of information from the threads you referred to above. Please see the following:
Key terms from the apartment lease
hxxps://i.imgur.com/k12OaGb.jpg
Key terms from the separate parking space lease of easement
hxxps://i.imgur.com/0Sha28A.jpg
Schedule 3 as referred to in above parking space lease of easement
hxxps://i.imgur.com/RQI2ZCh.jpg
Regarding the freeholder's right to impose new regulations, the only relevant clause I could identify was clause 9 from the tenant covenant schedule. I'd be angling an argument on this one on the basis that complying with regulations "for orderly use and enjoyment of the Common Parts and Estate Common Parts" does not cover parking spaces when assessed against the definitions referred to in the same document, do you agree? Failing that, can the regulation be considered to ensure orderly use and enjoyment?
The legal owner is happy to confirm the position regarding occupier status in a witness statement and provide any other assistance needed. The scheme appeared to be in force at the time of the leaseholder's purchase. The legal owner was given a permit with the purchase paperwork but no other relevant documentation. I do have a permit, however it was not on display at the time of the PCN being issued.
(original post updated with the above links and claim form too)0 -
Well it doesnt permit them to bind you to a contract with a third party
It doesnt permit them to REDUCE YOUR GRANT by requiring you to contract with a third party over something you already have rights to
And so on.0 -
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