Gladstone Court Claim - Visitors Bay - Help

Coupon-mad

http://tinypic.com/view.php?pic=okokco&s=9#.WyBUkEgvzIU

Observations:

- PCM have imposed an unreasonable limit of 40 visitors per flat, per year and charge money for that! Clearly this is a 'derogation from grant' by the Managing Agents, a disgraceful nuisance to residents and restricts the 'peaceful enjoyment' of your friend's property.

He/she presumably previously had an unfettered right to have visitors and PCM have the audacity to make it sound like they are doing residents a favour by giving just TEN 'max 24 hour' visitors permits 'free of charge' and offering that he/she has to buy more at ten quid. !!!!!!?


Lease clause (is this a tenancy agreement with a private landlord?)
http://tinypic.com/view.php?pic=2e3v8dk&s=9#.WyBUrUgvzIU

Can he/she obtain a copy of the Schedule referred to, in the Head Lease?

nosferatu1001

DOnt just look for "visitors area" or some such single phrase. Youre looking for any COMMUNAL AREAS rules. There MUST be something defining the visitors parking area, an dwhat use there is of this.

Agreed with C-M. Its awful.

The_Deep

PCM have imposed an unreasonable limit of 40 visitors per flat,

That is ridiculous. I recently refurbished one of my flats and must have exceeded that in a month.

TRNC

Spoke to my friend and they have confirmed that it is not a private landlord and the lease is a shared ownership lease (if that makes a difference?).

They are struggling to find anything relevant, schedule 4 is titled 'rent review'. But they are finding it difficult to make much sense of it so I will look to pick it up on the weekend, I couldn't track it down on the land registry website.

TRNC

So we are trying to get hold of the head lease. In the mean time can I still out together a defence?

The_Slithy_Tove

TRNC wrote: »

So we are trying to get hold of the head lease. In the mean time can I still out together a defence?

If you don't get the lease before the defence must be submitted, make the assumption that the lease does not place restrictions on visitors parking, and work on that basis. If it turns out that there are restrictions, then so be it.

Coupon-mad

Shared ownership gives the resident title, a form of shared possession of the land.

Can't get over why anyone would agree to that crap '40 visitors a year' from PCM! It would include deliveries, family popping in, friends, and to restrict that is clearly wholly unreasonable. Why did the residents not all shout ''oi, get lost, not agreeing to that!''?

TRNC

We have still chasing the Head Lease. In the meantime I have the following, mostly gathered from other useful threads - I have taken what I think is useful and added a couple of pieces. Please let me know any edits and additions that will be useful, as well as any evidence.

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.
3. In the pre-court stage the Claimant refused to provide me with the necessary information I requested in order to defend myself against the alleged debt.
They did not send me a Letter before Action that complied with the Practice direction on pre-action conduct. The Letter before Action can be seen to miss the following information
a) A clear summary of facts on which the claim is based.
b) A list of the relevant documents on which your client intends to rely.
c) How the charge amount of 168 pounds and eighty-eight pence has been calculated and justified.
d) Any form of possible negotiation or ADR offered.
Background
4. It is admitted that the defendant, XXXXXX XXXXX, is the registered keeper of the vehicle.
4.1. It is denied that there was any 'relevant obligation' or 'relevant contract' relating to any parking event.
4.2. It is denied that any 'parking charges or indemnity costs' (whatever they might be) are owed. Any purported 'debt' is denied in its entirety.
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.
Failure to Set Out Clear Parking Terms
6. The Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to impose 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.
6.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, woefully inadequate.
6.1.1. 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
6.1.2. 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
Authority to Park and Primacy of Contract
8. It is not admitted that the Claimant has contractual or other lawful authority to make contracts with residents and their visitors at this location, and/or to bring proceedings against the Defendant. The Claimant is put to strict proof. Further, and in the alternative, the Defendant avers that the Claimant requires the permission of the owner of the relevant land - not merely another contractor or site agent not in possession - in order to commence proceedings.
9. The Defendant avers that the Claimant cannot:
(i) override the existing rights enjoyed by residents and their visitors, or
(ii) offer parking on more onerous terms than were already granted and agreed in the lease/tenancy Agreement, or
(iii) decide to remove parking bays from use by residents and their visitors and/or start charging for them.
10. The Defendant parked legitimately in a visitor bay, with permission from a resident at the site.
11. The Claimant does not require all residents at the site to hold and display parking permits, thus causing inconsistency in parking terms across the same land and causing confusion. The signage fails to inform clearly which bays require permits.
12. The Claimant has imposed unreasonable limits of 40 visitors per flat, per year and charge residents for additional parking permits, this is an unnecessary nuisance to residents and restricts the !!!8216;peaceful enjoyment!!!8217; of the resident!!!8217;s property.
13. The process of purchasing new visitor parking permits is onerous, expensive and time consuming. There is no alternative offered during the time of residents running out of permits and ordering new ones, it is totally unacceptable that residents are expected to have no visitors during this period.
Unfairness - no regard for the Trader's duty for 'Fair Dealing' and Misleading Trading Practices
13. Trade Body Codes of Practice are 'effectively binding' according to the Supreme Court in the Beavis case.
13.1. Further, the Consumer Protection from Unfair Trading Regulations identifies at section 5 'Misleading Actions': (3) A commercial practice satisfies the conditions of this paragraph if - (b) it concerns any failure by a trader to comply with a commitment contained in a code of conduct which the trader has undertaken to comply with, if;
(i) the trader indicates in a commercial practice that he is bound by that code of conduct, and
(ii) the commitment is firm and capable of being verified and is not aspirational.
13.2. The Court's attention is drawn to the ''Red Hand Rule'', as set out in the leading judgment in J Spurling v Bradshaw [1956] EWCA Civ 3, where Denning MR stated:''The more unreasonable a clause is, the greater the notice which must be given of it. Some clauses would need to be printed in red ink with a red hand pointing to it before the notice could be held to be sufficient''.
13.3. Underlining that is Section B.2.1, B.2.2 of the IPC Code of Practice which gives clear instructions as to the placing, visibility and clarity of any signs that must be used to form contracts. It says: ''It is therefore of fundamental importance that the signage meets the minimum standards under The Code as this underpins the validity of any such charge.''
13.4. In the Beavis case, the Supreme Court Judges reiterated the requirement for fair and open dealing, at paragraph 205:''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''
13.5. Courts must now consider the fairness of a term, where it is not 'prominent and transparent'. Unfair terms here include the penalty fine itself, charges hidden in small print, lack of any fair grace period for the driver to seek out, read decide whether to accept any advertised parking contract, misleading and predatory conduct, added costs not specified prominently in the alleged contract, disproportionate default charges, non-observance of a Code of Practice. Such conduct and terms breach Part 2 'Unfair Contract Terms' of the Consumer Rights Act 2015 (the CRA) which was enacted after the Beavis case final hearing, and remains untested in the context of unfair parking penalty charges.
13.5.1. The Court's attention is drawn to the CRA at SCHEDULE 2, a non-exhaustive list of 'Consumer contract terms which may be regarded as unfair' which include clear references to conduct that is on all fours with that of this Claimant, and their solicitors.
13.5.2. The CRA requires that key terms of a contract, including price, must be assessed for fairness by a court, where those terms are not both 'prominent and transparent' (which the Defendant avers they are not).
The CRA, at para 71, sets out the duty of court to consider fairness of a consumer contract term: ''(2) The court must consider whether the term is fair even if none of the parties to the proceedings has raised that issue or indicated that it intends to raise it''.
No commercial justification to penalise a visitor - predatory conduct
14. This Claimant is not the lawful occupier of the land is at best acting 'on behalf of' another agent. It is averred that this Claimant has no more than a bare licence to put signs up under an agency agreement, and this punitive charge is in conflict with any purported commercial justification, having been issued to punish a prospective tenant.
14.1. It is averred that there is no agreement from the landholder that bestows any rights to this non-landholder Claimant, to pursue visitors in the courts, in its own name.
14.2. Specifically, it is the Defendant's honest belief that, even if there is a chain of authority from the landowner conferring such a right to pursue drivers of cars that have actually been parked/left at the location, this cannot reasonably allow immediate, predatory ticketing of drivers dropping off potential tenants for a viewing whilst the driver was seeking out terms of parking.
14.3. The Claimant is put to strict proof of its legitimate interest and cause of action, given the facts of the case.
This Claim is artificially inflated, but is embarrassing for scarce Particulars
15. It is denied that the Claimant has any entitlement to the sums sought, and it is noted that this Claim has inflated the 'charges' in a typically routine attempt at double recovery of a sum which bears no relation to the sum on any sign or parking charge notice.
16. No indemnity costs or damages have been incurred, nor were any debt collection 'fees' paid by this Claimant, and it is averred that the sum claimed is invented out of thin air as part of the Claimant's solicitors' robo-claim model.
17. The Claimant's solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence and no scrutiny of details. HMCS have identified 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.
18. The Particulars of Claim lack specificity and are embarrassing. The Court is respectfully invited to strike out the claim, for similar reasons cited by District Judge Cross of St Albans County Court on 20/09/16 where a parking claim was struck out without a hearing, due to Gladstones' template particulars for a private parking firm being 'incoherent', failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''.
19. Should the Claim not be struck out by the Court, as an alternative when Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange). This is because it is expected that the Claimant/Gladstones will use the witness statement to finally provide the sort of detail which should have been disclosed much earlier in the missing Particulars of Claim. The Defendant should have the opportunity to consider the full particulars/evidence, prior to serving evidence and witness statements in support of this Defence.

I believe that the facts contained in this Defence are true.

NeilCr

Is this the same development?

See 6 in article

https://www.hertfordshiremercury.co.uk/news/hertfordshire-news/hertford-ware-road-parking-far-1117827

If so, it would appear that the cost of visitors permits is having a knock on effect on parking outside the estate.

Not sure if it is relevant or not, though,

If it isn't then please ignore!

ETA

And

https://cmis.hertfordshire.gov.uk/Hertfordshire/Document.ashx?czJKcaeAi5tUFL1DTL2UE4zNRBcoShgo=MTm%2BF5IGhqaLBt1laeUJcFgX5thazjcrlLeBKlUEbPUpEOoBfCJXRA%3D%3D&rUzwRPf%2BZ3zd4E7Ikn8Lyw%3D%3D=pwRE6AGJFLDNlh225F5QMaQWCtPHwdhUfCZ%2FLUQzgA2uL5jNRG4jdQ%3D%3D&mCTIbCubSFfXsDGW9IXnlg%3D%3D=hFflUdN3100%3D&kCx1AnS9%2FpWZQ40DXFvdEw%3D%3D=hFflUdN3100%3D&uJovDxwdjMPoYv%2BAJvYtyA%3D%3D=ctNJFf55vVA%3D&FgPlIEJYlotS%2BYGoBi5olA%3D%3D=NHdURQburHA%3D&d9Qjj0ag1Pd993jsyOJqFvmyB7X0CSQK=ctNJFf55vVA%3D&WGewmoAfeNR9xqBux0r1Q8Za60lavYmz=ctNJFf55vVA%3D&WGewmoAfeNQ16B2MHuCpMRKZMwaG1PaO=ctNJFf55vVA%3D

TRNC

NeilCr, that is the very same development!