private parking help

london2587

Like others I have received a small claims after ignoring NTK – stupid I know after reading from the newbies thread. MA have introduced PPC in our development sometime ago.

AOS done (I had been abroad and having personal matters).

I have 5 days to fill defence but want to get it in asap

I have received 4 x NTO which ignored so expecting more court claims coming through.

Info:

parking in own resident bay
unable to view or validate permit on NTO
PPC Ace security is member of IPC
I have not received Letter Before Claim. Is this a requirement?

My lease ‘has power to impose or vary regulations ‘
the company may any time or times during the term in the interest of good estate management impose such regulations of general application regarding the Block or the flats Parking Spaces or garages therein as it may in its absolute discretion think fit in addition to or in place of the regulations (but so that any such regulations shall not conflict with the Lease) an the Company shall have power in its absolute discrection to revoke amend or add to such regulations or additions thereto or substitutions therefor

AOS done (I had been abroad and having personal matters).

POC – incurred the parking charges on xxxxxxx for breaching the terms of parking on the land.

Ive read in some threads solicitors reads these forum so given minimum info. Please let me know if you need for information from me.

I thank everyone here for given such great advice and hope to here your thoughts

london2587

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 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 admitted that on [date] the Defendant's vehicle was parked at [location]

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 !!!8216;relevant obligation!!!8217; 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 [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.

7. The Defendant avers that the operator!!!8217;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.

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 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!!!8217;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 inJ 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. 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.



Should I add this

c) Pace V Lengyel (from May 2017) showed that the Claimant's signs (including the one shown by the Claimant in this case) fail to enter into contract with the driver as implied by the Claimant. No where on the sign does it inform the reader that by parking in the car park, he/she is entering into a contract with the Claimant. The words “contract’ or “agreement’ do not appear at all within the sign. The phrase “Terms and Conditions” are not synonymous with a contract. Furthermore the opening words of the sign appear to be design more to ward off trespassers than to enter into a contract with the driver.
d) As the signs failed to enter the Driver into a contract with the Claimant then any costs claimed on a contractual basis cannot be valid.

The_Deep

Most of these residential parking claims are scams and have and will fail in court, read these

http://parking-prankster.blogspot.co.uk/

https://www.parkingcowboys.co.uk/residential-parking/

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

This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of contracts for alleged parking offences.

Parking Eye, CPM, Smart, and a smaller company have already been named and shamed, as has Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each year). They nearly always lose) and have been reported to the regulatory authority by an M.P.

The problem has become so rampant that MPs have agreed to enact a Bill to regulate these scammers. Watch the video of the Second Reading in the HofC recently.

http://parliamentlive.tv/event/index/2f0384f2-eba5-4fff-ab07-cf24b6a22918?in=12:49:41

and complain in the most robust terms to your MP. With a fair wind most of these companies may well be put out of business by Christmas.

[Deleted User]

This depends on a lot of things. I will assume:
1. That you have an allocated space
2. That the management company decided to bring in a parking company, not to require residents to have permits per se. (that is not a technical point - permits are a tool used by parking companies to "spot" cars that potentially should/should not be there. There is no reason why they couldn't just have a list of registration numbers

Essentially the PPC was brought in (presumably) to ensure that no one parked in your space - thereby preventing you get the benefit of it. If they can ticket you in their space and charge a fee each time, that does in fact conflict with your lease which will entitle you to park at any time with no additional charges.

In relation to the defence, remember these are case specific and must be tailored. A precedent is like fire - a good slave, but a bad master. Feel free to amend it, check that it suits your case and do not put forward any argument you don't understand.

* DO NOT deny anything that you cannot prove. It is quite wrong to deny being the driver if in fact you were. If you were, but you want to make them prove it, the correct approach would be neither to admit nor deny.
* CONSIDER whether it is just easier to admit that you own the car/parked it (if that is the case). Where you own the car park space that you are ticketed in, this will often be the case, rather than to get wrapped up in the complexity of POFA.
* CONSIDER whether the signage provisions in the alternative defence are really appropriate. They may not be.

With regard to Pace v Lengyel it's a good little case, but the point that you make is already made at 8.1.1. namely that the wording on the sign isn't good enough to form a contract.

A defence does not need to cross refer to every case in the sun. By all means add it if you wan to. If you end up at Court, you will of course be able to take the judge to the relevant authorities - of which that is one. Do bear in mind though that County Court judgments inform the Court, they are not binding.

System

I'd just like to give a vote of thanks to Mike Chapman at Pace for his generosity. The Pace v Lengyl and Pace v Noor cases are indeed gems.

london2587

I have a plot (xx) to me in title.

Lease callls it 'parking space' no refence to bay. I have the number in title
With colour in deedshich even MA DONT have- builders didnt give them.
the lease states "The Corportion'" "the Company" "the lessor" and the Leesse" shall where the context admits include their repective sucessors in title

Yes management agent brought in in terms.

Umkomaas

london2587 wrote: »

I have a plot (xx) to me in title.

Lease callls it !!!8220;parking space!!!8221; no refence to bay. I have the in title.
With colour in deeds .which even MA DONT have- builders didnt give them.
the lease states !!!8220;The Corportion !!!8221; the Company!!!8221; and !!!8221;he lessor !!!8220; the lessee shall where the context admits include their repective sucessors in title (im screwed)

Yes management agent brought in in terms.

Please switch off your 'Smart Punctuation' on your iPhone/iPad to avoid clogging up your posts with !!!!8220 and the like.

Go to 'General' > 'Keyboard' > 'Smart Punctuation' and flick the switch off.

Switching off seems to have no negative affect on any other use of the keyboard.

london2587

Umkomaas wrote: »

Please switch off your 'Smart Punctuation' on your iPhone/iPad to avoid clogging up your posts with !!!!8220 and the like.

Go to 'General' > 'Keyboard' > 'Smart Punctuation' and flick the switch off.

Switching off seems to have no negative affect on any other use of the keyboard.

Sorry not sure why this is happening. Seems to be an issue on MSE sides from what I've read.
Im using ubuntu

london2587

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 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 admitted that on [date] the Defendant's vehicle was parked at [location]



Authority to Park and Primacy of Contract
6. It is denied that the Defendant 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.

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 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.

7. Accordingly it is denied that:
7.1. there was any agreement as between the Defendant 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.Pace V Lengyel (from May 2017) showed that the Claimant's signs (including the one shown by the Claimant in this case) fail to enter into contract with the driver as implied by the Claimant. No where on the sign does it inform the reader that by parking in the car park, he/she is entering into a contract with the Claimant. The words "contract" or "agreement" do not appear at all within the sign. The phrase "Terms and Conditions" are not synonymous with a contract. Furthermore the opening words of the sign appear to be design more to ward off trespassers than to enter into a contract with the driver.
8.1.2.As the signs failed to enter the Driver into a contract with the Claimant then any costs claimed on a contractual basis cannot be valid.
8.1.4. 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
8.1.5. 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. 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.


Should I add this:
The Claimant's solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking for a true cause of action HMCS have identified over thousands of similar poorly produced claims and the solicitor's conduct in many of these cases is believed to be currently the subject of an active investigation by the SRA.

I believe the term for such conduct is "robo-claim" which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers.

Please let me know if this is okay for the defence
Any suggestions or adding or removing would be greatly appreciated

london2587

Hi please anyone. Im a little stressed as this needs to be emailed by 4pm tomorrow. However was hoping to send this tonight or early morning as I'm working tomorrow.

Thanks

Coupon-mad

Yes looks good. You need to add a statement of truth at the end.

Should I add this:
The Claimant's solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking for a true cause of action HMCS have identified over thousands of similar poorly produced claims and the solicitor's conduct in many of these cases [STRIKE]is believed to be currently the subject of an active investigation by the SRA.[/STRIKE] was specifically raised by MPs in the Parking Code of Practice Bill debate on 2.2.18, where the IPC and IAS (having shared Directors with Gladstones - a huge conflict of interests) were named and shamed. Particular criticism was aimed at Gladstones for robo-claim, baseless court claims, typically threatening residents for parking at their own homes.

[STRIKE]I believe the term for such conduct is "robo-claim" which[/STRIKE] This conduct by Gladstones, the IPC and their members is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers.

Yes add it but I've suggested some changes.

To fill you with confidence, why not read Henry Hippo's UKPC thread from pepipoo which ends with a win today in court, where he also counter-claimed for £500 and got it, plus his costs:

http://forums.pepipoo.com/index.php?showtopic=114450

Long thread but well worth reading, similar to your case? Compare his defence and counter claim to your defence and see if you have missed anything he had there.

My lease has 'power to impose or vary regulations'

So did Henry Hippo's lease!

But he argued the imposition of ex-clampers (like your bunch are too!) was an unreasonable, unjustified tortious interference with his lease and a 'nuisance' that the Managing Agent should not have allowed; there was no formal lease variation.

So this imposition of a wholly unsuitable ex-clamper firm, clearly not acting in the best interests of the residents but instead, setting out to penalise them for huge sums of money for no service, is incompatible with the Landlord & Tenant Act 1987 etc.

Get some tips from that one even if you decide to stop short of a counter claim...but if you DO decide to add a counter-claim then show it here first and write it like his one and lay it on really THICK about the distress this has caused to you and your family, blah blah.

Worth a punt, costs you a £25 court fee up front, to claim £500 in damages, if you want to add it (you can't add it later).