UKPC - SCS Claim form recieved

Gunner84

Thanks guys, I will have it signed, make it a PDF and attach as advised when the time comes.


Could anyone kindly advice and critique my defence in post #37 if anyone gets a chance.

Thanks for all of your kind assistance.

Coupon-mad

DEFENCE

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 XXZZZ which is the subject of these proceedings. The vehicle is insured with [provider] with [number] of named drivers permitted to use it.

4. It is disputed that on [date] the Defendant's vehicle was parked at [location]. The street address signposted on the location used by UKPC as photographic evidence does not match those stated on notice to keeper or particulars of claim. It is unknown to the Defendant as to whether the address photographed can be considered within the boundaries of the address stated on these documents. Unsure of how to word this or whether to leave it out entirely. They have stated 2 street names on the notice to keeper. The parking spaces are within the same gated development, but parked on a street name that is not shown on any documentation from UKPC.

5. The Defendant is unable to identify the driver for the [dates]. 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 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 tenancy agreement, which cannot be fettered by any alleged parking terms. The tenancy agreement contract terms provide the right to use, in common with others, any shared rights of access, stairways, communal parts, paths and drives. Visitor parking spaces are, by definition, communal drives. This is detailed without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle or the requirement to display a parking permit.
6.1 There is no mention on the tenancy agreement of any potential parking charges, or contractual agreements with a private parking company. A copy of the tenancy agreement will be provided to the Court, together with witness evidence that prior permission to park had been given by both the occupier and leaseholder.
6.1.1 The tenant had been issued with a UKPC guest parking permit which they had received upon moving in to the property from the active property management company in November 2011, containing no expiry date, and having received no correspondence suggesting impending invalidity of said permit. Since the tenancy agreement makes no mention of their existence, these were displayed in good faith in cooperation with other residents and the property management company and demonstrate compliance. A copy of the visitor pass will be provided to the Court.

7. The Defendant avers that the operator 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 or tenancy agreement. There is a large body of case law to support this. 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 similar cases should the matter proceed 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, in so far 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 throughout the site.
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. Signage on site is not clearly legible or visible from the bays marked as visitor parking. One of the two nearest signs is mounted on the side of a neighbouring apartment block, in excess of 8 feet above ground level, parallel with the first floor apartments. Clear photographic evidence will be provided to the court.
8.1.2. The largest wording present on the signage states !!!8220;NO UNAUTHORISED PARKING!!!8221;. This signage is forbidding, and does not constitute an offer of a contract. The defendant will rely on the judgements of DDJ Ellington in UKPC v Masterson B4GF26K6[2016].
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.

The defence looks good.

Remind us of any questions still unanswered?

Gunner84

Coupon-mad wrote: »

The defence looks good.

Remind us of any questions still unanswered?

These were my main questions before sending.


Questions.

1. I have tried to represent the guest passes we were handed by the previous property management, but not rely on them. Have I represented his in a way that makes sense?
2. How do I represent my uncertainty that the keepers car location can be considered correct, despite it being within the development?
3. Have I properly addressed the beavis comparisons? I don't believe it applies here at all, but is my argument comprehensive enough?
4. I have gone in to some detail about sign legibility. Particularly because one of the two closer signs is at a ridiculous height. The other is on a wall curved away from visibility from the parking space. So you can see one, and you have to really seek it out. Was this the correct place for this within the defence? I'm unsure if i should be saving this for later?
5. Site entrance says "permit holders only". My visitor displayed one. They deemed in invalid. Surely if they see there as being a contract with the keeper, they would have to acknowledge that permit as valid. If it is not valid, it does not apply to her vehicle. Would the "No Unauthorised Parking" sign not unequivocally be trespassing in this case? Surely they can't have their cake and eat it. Shes either a valid permit holder (so its valid), or shes not (so its trespassing?)
6. Any feedback on the cases referenced, or if I should add more at this stage and i'd be incredibly grateful.
7.The signage mentions marked bays. There is no visible markings on the visitors bays. How and where do i work this in to the defence to our advantage?
8. My tenancy agreement is with the leaseholder of the individual flat. He cannot provide me his lease as its "archived", so I can't really anchor my tenancy agreement to his leasehold documents. Is my tenancy agreement enough for primacy of contract? Or is his inability to assist me somewhat undermining my rights?


Additionally, could you specifically help me address point four. Which i have detailed below along with my query in red.


4. It is disputed that on [date] the Defendant's vehicle was parked at [location]. The street address signposted on the location used by UKPC as photographic evidence does not match those stated on notice to keeper or particulars of claim. It is unknown to the Defendant as to whether the address photographed can be considered within the boundaries of the address stated on these documents. Unsure of how to word this or whether to leave it out entirely. They have stated 2 street names on the notice to keeper. The parking spaces are within the same gated development, but parked on a street name that is not shown on any documentation from UKPC.

Coupon-mad

4. It is disputed that on [date] the Defendant's vehicle was parked at [location]. The street address signposted on the location used by UKPC as photographic evidence does not match those stated on notice to keeper or particulars of claim. It is unknown to the Defendant as to whether the address photographed can be considered within the boundaries of the address stated on these documents. Unsure of how to word this or whether to leave it out entirely. They have stated 2 street names on the notice to keeper. The parking spaces are within the same gated development, but parked on a street name that is not shown on any documentation from UKPC.

I wouldn't leave that out as it could have legs at a hearing. Depends on the Judge, but IMHO it's not a fanciful point.

The rest looks OK to me, do NOT save anything for later, you must address it all now.

[Deleted User]

Something like this, perhaps?

At all material times the defendant's car was parked at X in a gated community, not at locations y and z, referred to in the parking charge notices sent to the defendant and in the particulars of claim.

It is denied that the defendant parked his car on y or z street on [date] or at all.

Gunner84

Thanks John. I will go for something like that.

Would anybody be able to answer or assist with a couple of the questions written above in blue? Also, I am a named driver on her car. Should I mention "the tenant is a named driver on the vehicles insurance, and whilst it is impossible to determine who was driving, firmly believes this does not constitute "unauthorised parking." Or something to that effect.

Coupon-mad

"the tenant is a named driver on the vehicles insurance, and whilst it is impossible to determine who was driving, firmly believes this does not constitute "unauthorised parking."

Maybe:

There is more than one driver named on the vehicle's insurance policy, namely the tenant and authorised family/friends who would only ever be legitimately parked at the location, not trespassers. Whilst it is impossible to determine who was driving on one single occasion and the balance of probabilities is not tipped one way or the other, the Defendant firmly believes parking by legitimate tenants/visitors does not constitute "unauthorised parking". This suggests an act of trespass not pleaded by the Claimant, and not able to be recovered from a party not in possession, in any case.

Can you re-type your questions in black, the blue is hard to wade through!

Gunner84

Coupon-mad wrote: »

Maybe:



Can you re-type your questions in black, the blue is hard to wade through!

No problem at all. Here is the revised defence, that aside from redacted details, is ready to go if you guys with the expertise on here think its good enough.

DEFENCE

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 XXZZZ which is the subject of these proceedings. The vehicle is insured with [provider] with [number] of named drivers permitted to use it. “
3.1 There is more than one driver named on the vehicle's insurance policy, namely the tenant and authorised family/friends who would only ever be legitimately parked at the location, not trespassers. Whilst it is impossible to determine who was driving on one single occasion and the balance of probabilities is not tipped one way or the other, the Defendant firmly believes parking by legitimate tenants/visitors does not constitute "unauthorised parking". This suggests an act of trespass not pleaded by the Claimant, and not able to be recovered from a party not in possession, in any case.

4. At all material times the defendant's car was parked at X in a gated community, not at locations y and z, referred to in the parking charge notices sent to the defendant and in the particulars of claim.
It is denied that the Defendants vehicle has been parked on y or z street on [date] or at all. The court will be provided with an area map and photographs to demonstrate this. The Defendant avers that the Claimants photographic evidence will also confirm this.

5. The Defendant is unable to identify the driver for the [dates]. 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 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 tenancy agreement, which cannot be fettered by any alleged parking terms. The tenancy agreement contract terms provide the right to use, in common with others, any shared rights of access, stairways, communal parts, paths and drives. Visitor parking spaces are, by definition, communal drives. This is detailed without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle or the requirement to display a parking permit.
6.1 There is no mention on the tenancy agreement of any potential parking charges, or contractual agreements with a private parking company. A copy of the tenancy agreement will be provided to the Court, together with witness evidence that prior permission to park had been given by both the occupier and leaseholder.
6.1.1 The tenant had been issued with a UKPC guest parking permit which they had received upon moving in to the property from the active property management company in November 2011, containing no expiry date, and having received no correspondence suggesting impending invalidity of said permit. Since the tenancy agreement makes no mention of their existence, these were displayed in good faith in cooperation with other residents and the property management company to demonstrate compliance for peaceful communal living. A copy of the visitor pass will be provided to the Court.
6.1.2 The Defendant and tenant have made contact with both the Claimant and property management via telephone and email to ascertain information on the cycle of issuance of the “permits”. Since the permits themselves contain no expiry or validity dates, neither have been able to demonstrate a predictable system for the tenants and their visitors to abide to. Such ambiguity would allow for a repeat of this dispute in the future. To avoid this and to narrow the dispute, the Defendant suggests the Claimant provide a clear explanation of their system for provision of these “permits” for the tenants.

7. The Defendant avers that the operator 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 or tenancy agreement. There is a large body of case law to support this. 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 similar cases should the matter proceed 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, in so far 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 throughout the site.
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. Signage on site is not clearly legible or visible from the bays marked as visitor parking. One of the two nearest signs is mounted on the side of a neighbouring apartment block, in excess of 8 feet above ground level, parallel with the first floor apartments. Another parallel to this, completely broken with no visible text. Clear photographic evidence will be provided to the court.
8.1.2. The largest wording present on the signage states “NO UNAUTHORISED PARKING”. This signage is forbidding, and does not constitute an offer of a contract. The defendant will rely on the judgements of DDJ Ellington in UKPC v Masterson B4GF26K6[2016].
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.

Questions.

1. I have tried to represent the guest passes we were handed by the previous property management, but not rely on them. Have I represented his in a way that makes sense, and in the right place?
2. Have I properly addressed the beavis comparisons? I don't believe it applies here at all in the claimants favour, but is my argument comprehensive enough?
3. I have gone in to some detail about sign legibility. Particularly because one of the two closer signs is at a ridiculous height. The other is on a wall curved away from visibility from the parking space. So you can see one, and you have to really seek it out. Was this the correct place for this within the defence? I'm unsure if i should be saving this for later?
4. Site entrance says "permit holders only". My visitor displayed one. They deemed in invalid. Surely if they see there as being a contract with the keeper, they would have to acknowledge that permit as valid. If it is not valid, it does not apply to her vehicle. Would the "No Unauthorised Parking" sign not unequivocally be trespassing in this case? Surely they can't have their cake and eat it. Shes either a valid permit holder (so its valid), or shes not (so its trespassing?) I haven't mentioned the entrance sign at all. Should i?
5. Any feedback on the cases referenced, or if I should add more at this stage and i'd be incredibly grateful.
6. The signage mentions marked bays. There is no visible markings on the visitors bays. How and where do i work this in to the defence to our advantage?
7. My tenancy agreement is with the leaseholder of the individual flat. He cannot provide me his lease as its "archived", so I can't really anchor my tenancy agreement to his leasehold documents. Is my tenancy agreement enough for primacy of contract? Or is his inability to assist me somewhat undermining my rights?
8. I'd like to put their awful photos in to a position to work against them. They are so poor i am considering referencing the photo doctoring court case and putting them to strict proof. Should i? Where should i work it in?
9. 10. What other, if any, documents should i attach along with the PDF defence? I checked the newbie thread thoroughly, but also had read a couple of contrasting things. I have loads of photos, maps, emails, tenancy agreement. All of it.

If anyone could kindly help me with these, tomorrow is the 28th day since issue, but i think service date was 26th. Either way i am down to the wire i think. Also, 6.1.2 is information i got across, but am totally unsure about the whole wording of that point.

Very grateful. You guys deserve a medal for helping so many people fight this.

nosferatu1001

Service date of the Claim Form is as it tells you - 5 days from issue
You have 33 days to ensure the court receives it.

Coupon-mad

I am not comfortable with this one, as ''loss'' as an argument just gets battered by PE v Beavis:

7.3. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

I would instead suggest at that point as (c) after the intro sentence 'Accordingly it is denied that':

7.3 the mere handing of a parking pass to the Defendant - with no paperwork mentioning any obligation to display it, nor mention of any charge for various dubious 'contraventions', nor even signposting residents to terms on the sporadic signs - could by any reasonable interpretation bind the tenant to pay £100 that the Defendant knew nothing about.


Then maybe an extra point 8, I suggest:



Misleading Omission - breach of the CPUTRs 2008 and the CRA 2015
8. The Defendant avers there was a failure to disclose the commercial intent of the parking pass. Appropriate prominence was not given to terms which might operate disadvantageously to the consumer. As a directly relevant analogy, the Defendant was also handed a key fob to enter the site, a front door key and a key to the bin store, all of which can also be interpreted as 'passes' to exercise rights to use the facilities/property, and none of these items 'permitting' use of the site, came with the pitfall or trap of an unexpected penalty.

8.1 The fact there 'were some signs up' does not help the Claimant in this case because they lacked prominence and failed to give 'adequate notice' (POFA 2012 words) of the parking charge itself. Signs are everywhere in shared blocks of flats and one does not expect to be fined for not noticing one unremarkable sign above another. There are signs at the entrance, there are signs at the bin store, and there are various signs on the wall (some of which the Defendant now finds were from UKPC and intended for residents, not just ''unauthorised'' trespassers, as was taken to be the case from the capital letters).

8.2 Communicating any onerous contractual obligation/charge remains at all times within the Claimant's control, and starts at the point of handing over a 'permit' even if they allow third parties (e.g. letting agents) to supply them. It cannot reasonably be argued that a parking charge is somehow 'to be expected' despite the parking pass being handed over to the Defendant in a pile of items and papers, with no penalty/contractual context whatsoever.

8.3 The Consumer Protection from Unfair Trading Regulations 2008 says:

''A 'misleading omission' is a commercial practice that:

- omits material information
- hides material information
- provides material information in a manner which is unclear, unintelligible, ambiguous or untimely, or
- fails to identify its commercial intent, unless this is already apparent from the context,

and as a result causes or is likely to cause the average consumer to take a transactional decision they would not have taken otherwise.''


8.4 J Spurling Ltd v Bradshaw [1956] EWCA Civ 3 is an English contract law and English property law case on exclusion clauses and bailment. It is best known for Denning LJ's red hand rule comment where he said:

''I quite agree that the more unreasonable a clause is, the greater the notice which must be given of it. Some clauses which I have seen would need to be printed in red ink on the face of the document with a red hand pointing to it before the notice could be held to be sufficient''.

8.5 It is averred any unexpected penalty foisted upon tenants where the context of one 'pass' over another, was never fairly communicated by the Claimant, fails the tests of transparency and good faith, contrary to the CPUTRS 2008 and the Consumer Rights Act 2015.

8.6 The doctrine of good faith was explored in ParkingEye Ltd v Beavis at the Supreme Court, where it was stated at 35: ''The nature of the duty to act in good faith as described in the Regulations was discussed by Lord Bingham in paragraph 17 of his speech in Director General of Fair Trading v First National Bank Plc [2002] 1 A.C. 481...'':

''The requirement of good faith in this context is one of fair and
open dealing. Openness requires that the terms should be
expressed fully, clearly and legibly, containing no concealed
pitfalls or traps. Appropriate prominence should be given to
terms which might operate disadvantageously to the customer.
Fair dealing requires that a supplier should not, whether
deliberately or unconsciously, take advantage of the consumer's
necessity, indigence, lack of experience, unfamiliarity with the
subject matter of the contract, weak bargaining position or any
other factor listed in or analogous to those listed in Schedule 2
to the Regulations. Good faith in this context is not an artificial
or technical concept; nor, since Lord Mansfield was its
champion, is it a concept wholly unfamiliar to British lawyers.
It looks to good standards of commercial morality and practice.''