Received a Claim of Money letter

jmj2010

Hi all,

I will try to keep this as short as possible.. any help is much appreciated.

In September 2016, less than a week after moving into a new rented property UKCPM issued a PCN on my friends vehicle which I had borrowed and parked in my allocated space without displaying a permit.

I hadn't done much research at the time and appealed on the grounds of sign placement, admitting I was the driver as I didn't want my friend getting hassle. They dismissed the appeal so I started to research and read about how my tenancy agreement may overrule their "contract" so I appealed their decision to IPS who also rejected it. UKCPM have been sending me debt collection letters every 4-5 months since then.

Today, I received a "claim for money" from a court (can't remember which as I'm not home now) I have read most of the Parking Prankster posts and understand I need to start building a defence.

Is the fact I appealed telling them I was the driver likely to make a difference? And also does it matter that my original appeal to UKCPM didn't mention the tenancy agreement but the appeal to IPS did?



Here's some further information
The letting agent issued me a parking permit for my allocated space but did not say anything about parking enforcement, they just gave me a set of keys and a permit.

As well as the usual peaceful enjoyment clause my tenancy agreement states word for word:
"To park private vehicles only at the premises
To park in the space allocated to the premises, if the tenant is allocated a parking space.
To pay a deposit on any key, fobs or other devices related to the parking of vehicles at the premises."

Is this enough to overrule their "contract"?

There is signage in the car park but I didn't see it - the space is immediately as you enter the car park area and requires parking head first up to a wall where the sign is on the side of the wall. My flat is behind the car when it's parked so I have no need to walk round the side of the wall. Looking on google maps the sign used to be right in front of the car but at the time of the PCN there was a for sale sign there and the UKCPM had been moved to the side of the wall. There is no other signage other than further into the car park.

nosferatu1001

Nothing you have appealed with before now is relevant.
You are likely better to defend as driver anyway - its your space, not theirs!

Yes, there is nothing there requiring you to pay anyone for parkign without a permit, you already have a contact to park so there is NOTHING there at all that they can offer you.

You need to NOW read POST TWO of the NEWBIES thread. Go back one step to the first page of this sub forum, look about three from the top.

You MUSST immediately ACKNOWLEDGE the claim, online, using the details on the form, and get to compiling your defence.
Consider a counterclaim for tortious interference with your lease, data protection act biolation etc.

jmj2010

nosferatu1001 wrote: »

Nothing you have appealed with before now is relevant.
You are likely better to defend as driver anyway - its your space, not theirs!

Yes, there is nothing there requiring you to pay anyone for parkign without a permit, you already have a contact to park so there is NOTHING there at all that they can offer you.

You need to NOW read POST TWO of the NEWBIES thread. Go back one step to the first page of this sub forum, look about three from the top.

You MUSST immediately ACKNOWLEDGE the claim, online, using the details on the form, and get to compiling your defence.
Consider a counterclaim for tortious interference with your lease, data protection act biolation etc.

Thanks that's clarified the issues I was worried about.

I will get onto to acknowledging it tonight and will post a draft of my defence once sorted.

Thanks again

Coupon-mad

Not another one.

Just read the other UKCPM threads under yours right now...

No need for all these threads.

jmj2010

I did read almost the entire newbie sticky before posting lastnight.

My main concern was whether the wording in my tenancy agreement is sufficient enough as it does not state unfettered use etc - before I relied on that as my main defence.

I could have just asked that question but thought it'd be best to give an idea of the situation.

Coupon-mad

I've never seen a residential lease that uses the word 'unfettered'. Yours is normal!

Is the fact I appealed telling them I was the driver likely to make a difference?

Not really, you are best relying on primacy of contract.

And also does it matter that my original appeal to UKCPM didn't mention the tenancy agreement but the appeal to IPS did?

NO, it's all a kangaroo court. You had ZERO chance of winning, IMHO, even if you made up an appeal to make them laugh!

Did you miss the amusing blogs by the ParkingPrankster where his first appeal to Highview was *different* from his POPLA appeals, loads of times?!

http://parking-prankster.blogspot.com/2013/05/highview-parking-spurred-into-immediate.html

http://parking-prankster.blogspot.com/2013/07/elvis-walks-free-map-department-fails.html

http://parking-prankster.blogspot.com/2013/06/highview-parking-send-in-map-of-wrong.html

jmj2010

Thank you.

I will have a read through them tonight

jmj2010

Hello again,

I have found the most relevant defence and adjusted it to match my circumstances. As usual, this is all a little overwhelming to a court claim virgin so I'm sure there may be parts missing or that I don't need. Any help would be much appreciated.

Do I need to make it clear I am a tenant and it's my allocated space?

Does anyone have any feedback?


IN THE COUNTY COURT

CLAIM No: XXXXXXX

BETWEEN:

UK Car Park Management (Claimant)

-and-

XXXXXXXXXXXXXX (Defendant)

________________________________________
DEFENCE STATEMENT
________________________________________

1.The Particulars of Claim lack specificity and therefore the Defendant is prejudiced and 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.

3. It is admitted that at all material times the Defendant was the driver of vehicle registration mark XXZZZ which is the subject of these proceedings. (They already know I was the driver)


4. It is denied that any "parking charges or loss/damages" (whatever they might be) as stated on the Particulars of claim are owed and any debt is denied in its entirety.

5. The claimant has not provided enough details to file a full defence. In particular, the full details of the contract which it is alleged was broken have not been provided. The Claimant has disclosed no cause of action to give rise to any debt.

Authority to Park and Primacy of Contract

6. 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.

7. It is not admitted that the Claimant has contractual or other lawful authority to make contracts with residents 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.

8. The Defendant avers that the operators signs cannot
(i) override the existing rights enjoyed by residents and
(ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Defendant will rely upon the judgements 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.

9. Accordingly, it is denied that:
9.1. there was any agreement between the Defendant as the driver of the vehicle, and the Claimant
9.2. there was any obligation (at all) to display a permit; and
9.3. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

10. In D7GF307F - UKCPM v Mr D - before Deputy District Judge Skelly on 1st February 2018 at Clerkenwell, a similarly thin excuse of an argument from the same private parking firm inflicting a nuisance on residents & visitors was dismissed. When not sitting as a Judge, DDJ Skelly is a barrister specialising in property law. In this case, the managing agents were named as a party to the lease, and there was a clause which said that they could make regulations for the 'comfort and convenience' of lessees. However, this could not excuse a change as intrusive and onerous as to override the grant of free resident/visitor parking, effectively restricting and charging for a right previously enjoyed, without the required consensus and deed of variation.

Wholly unreasonable and vexatious claim

11. It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, the Defendant is keeping careful note of all wasted time/costs in dealing with this matter and should the case continue to trial (or in the event of the Claimant filing a Notice of Discontinuance) the Defendant will seek further costs, pursuant to Civil Procedure Rule 27.14(2)(g).

12. How can there be a legitimate interest in penalising residents for using parking spaces, under the excuse of a scheme where ostensibly and as far as the landowner is concerned, the parking firm is contracted for the benefit of the residents. It is contrary to the requirement of good faith and of all proportion to any legitimate interest to fine residents for using the parking spaces provided.

13. The presence of the Claimant on the land will have supposedly been to prevent parking by uninvited persons, for the benefit of the actual leaseholders. Instead, a predatory operation has been carried out on those very people whose interests the Claimant was purportedly there to uphold.

14. The Defendant respectfully suggests that parking companies using the small claims track as a form of aggressive, automated monetary demands against motorists, alleging 'debts' for parking on free resident parking areas is not something the Courts should be seen to support.

15. The Defendant denies the claim in its entirety, voiding any liability to the Claimant for all amounts due to the aforementioned reasons. The Defendant asks that the court gives consideration to exercise its discretion to order the case to be struck out under CPR Rule 3.4, for want of a detailed cause of action and/or for the claim having no realistic prospects of success.

16. If the court is not minded to make such an order, then when Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because it is expected that the Claimant will use its witness statement to provide the sort of detail which should have been disclosed much earlier, and the Defendant should have the opportunity to consider it, prior to serving evidence and witness statements in support of this defence

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

System

For 12 and 13 which are the core, you might want to reference ParkingEye v Beavis. For example at para 151

What is necessary in each case is to consider, first, whether any (and if so what) legitimate business interest is served and protected by the clause, and, second, whether, assuming such an interest to exist, the provision made for the interest is nevertheless in the circumstances extravagant, exorbitant or unconscionable. In judging what is extravagant, exorbitant or unconscionable, I consider (despite contrary expressions of view) that the extent to which the parties were negotiating at arm's length on the basis of legal advice and had every opportunity to appreciate what they were agreeing must at least be a relevant factor.

Don't like 1, 2, 5. 11 and 14 (spray and pray) but that is for you to decide if it adds or detracts from your case

16. If the court is not minded to make such an order,

Are you attaching a draft order outlining what you are seeking so the judge knows exactly what you are wanting him/her to agree to. If not why not add one.

jmj2010

Thanks. I don't quite understand the second part of the Beavis quote so I'm struggling with exactly where/how to reference it. It's 3am on a night shift so may make more sense tomorrow.

I have taken your suggestions on board and removed them sections as after reading again, I agree they don't add any real value. I have added a few sections (in italics) regarding tenancy agreement and signage.

I'm not sure how to write a draft order, is it simply stating what I expect/want the outcome to be and any costs/damages etc I want to counter claim?

Thanks again



[FONT=&quot]1. It is admitted that the Defendant was the driver of vehicle registration mark XXZZZ which is the subject of these proceedings. (They already know I was the driver)

2. It is denied that any "parking charges or loss/damages" (whatever they might be) as stated on the Particulars of claim are owed and any debt is denied in its entirety.

Authority to Park and Primacy of Contract

[/FONT] [FONT=&quot]4. The Defendant is legal the tenant of [ADDRESS]. On 14th September 2016 the Defendant signed an Assured Shorthold Tenancy Agreement for this property. The tenancy includes unfettered use of the parking bay allocated to the property, bay number 35, the same bay in which the vehicle [REGISTRATION] was parked at the time the PCN was issued. The tenancy agreement does not stipulate the presence of any private parking firms, the requirement to pay to park, or to display a permit while parking.

5. 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.

6. It is not admitted that the Claimant has contractual or other lawful authority to make contracts with residents at this location, 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.

Signage

[/FONT] [FONT=&quot]7. The Defendant avers that the operators signs cannot
(i) override the existing rights enjoyed by residents and
(ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Defendant will rely upon the judgements 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.[/FONT]
[FONT=&quot]
[/FONT]
[FONT=&quot]8. Although irrelevant given the above, there is no signage entering the site or on route to parking bay number 35. The first visible signage is beyond parking bay 35 and cannot be seen by any driver parking in that bay, nor by any person walking from that bay to the Defendant!!!8217;s property.

9. Accordingly, it is denied that:
9.1. there was any agreement between the Defendant as the driver of the vehicle, and the Claimant
9.2. there was any obligation (at all) to display a permit; and
9.3. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

10. In D7GF307F - UKCPM v Mr D - before Deputy District Judge Skelly on 1st February 2018 at Clerkenwell, a similarly thin excuse of an argument from the same private parking firm inflicting a nuisance on residents & visitors was dismissed. When not sitting as a Judge, DDJ Skelly is a barrister specialising in property law. In this particular case the managing agents were named as a party to the lease, and there was a clause which said that they could make regulations for the 'comfort and convenience' of lessees. However, this could not excuse a change as intrusive and onerous as to override the grant of free resident/visitor parking, effectively restricting and charging for a right previously enjoyed, without the required consensus and deed of variation. In any case, there is no identical or similar clause in the Defendants tenancy agreement.[/FONT]

[FONT=&quot]Wholly unreasonable claim
[/FONT][FONT=&quot]
11. How can there be a legitimate interest in penalising residents for using parking spaces allocated to them, under the excuse of a scheme where ostensibly and as far as the landowner is concerned, the parking firm is contracted for the benefit of the residents. It is contrary to the requirement of good faith and of all proportion to any legitimate interest to fine residents for using the parking spaces allocated to them.

12. The presence of the Claimant on the land will have supposedly been to prevent parking by uninvited persons, for the benefit of the actual leaseholders. Instead, a predatory operation has been carried out on those very people whose interests the Claimant was purportedly there to uphold.

13. The Defendant denies the claim in its entirety, voiding any liability to the Claimant for all amounts due to the aforementioned reasons. The Defendant asks that the court gives consideration to exercise its discretion to order the case to be struck out under CPR Rule 3.4, for want of a detailed cause of action and/or for the claim having no realistic prospects of success.

14. If the court is not minded to make such an order, then when Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because it is expected that the Claimant will use its witness statement to provide the sort of detail which should have been disclosed much earlier, and the Defendant should have the opportunity to consider it, prior to serving evidence and witness statements in support of this defence[/FONT]
[FONT=&quot]
I believe the facts contained in this Defence Statement are true.[/FONT]

System

I don't quite understand the second part of the Beavis quote so I'm struggling with exactly where/how to reference it.

Apologies, it is not the best part of Beavis to quote but essentially the case has two legs. The first is whether there is an interest to protect (your argument is there isn't); and the second part is if the first part is proven (the legitimate interest) is the amount reasonable? The Supreme Court said £85 was based on the premise that the amount was clearly indicated at the start.

You can leave the quote in as the judge will understand the issues. It's there to show that you do too - as explained above. No legitimate interest (paras 12 and 13) and the details of the amount (paras 7 and 8)