Court Claim form from UK Car park management & Gladstone

Umkomaas

Unless you can prove the Judge erred in law, or he/she gave you leave to appeal, then I think you're at the end of this road. But I must caveat this by saying I'm no legal expert, so you might wait for any better informed comment that comes up. You generally have a month in which to pay the judgment, so no desperate rush at this stage.

Others might comment as to whether you possibly have a case against the Management Agent, for whom the PPC is an agent, and for whom the MA carries responsibility for their actions. But I think that may be a long shot.

Wait for other contributions.

[Deleted User]

Assuming you didn't ask for leave to appeal at the hearing, you need an appeals form. There should be an old thread on this somewhere.

Do bear in mind that this is NOT a re-hearing of the case but is a challenge on the basis that an erroneous decision has been reached - either on the basis of fact (ie that the judge couldn't reach the decision s/he did on the evidence available at that time) or of law (ie. That your legal arguments were improperly applied or considered).

Many people assume an appeal is a chance to reconsider everything from scratch. It isn't. Subject to that caveat, look at how you got to where you are and think carefully about whether to appeal or whether to write an unpalatable cheque.

masatoi

Thank you both.
I'd like to hear from Coupon-mad as well as he/she has been advising me mainly on the thread.

Umkomaas

Psst - Johnersh is a lawyer, you won't get a better opinion. That's not to say that Coupon-mad's added input will add to the mix.

There may be other contributors too - we all bring our own perspective on things, aimed at helping you as best as possible.

masatoi

Yes I totally understand that.
I'm assuming you haven't read my defence and witness statement for the 2 cases.
I'm not blaming you for it. I understand you guys gave me general advice.
I always appreciate such advice.

My point is I'd like to know whether the judge's decisions were reasonable to reject my defences.

So that I could decide whether or not I should appeal.

I followed what I learnt here but something didn't work so I want to know what that was.

Thank you

Umkomaas

My point is I'd like to know whether the judge's decisions were reasonable to reject my defences.

I'm afraid you're asking non legally trained people here, who primarily assist motorists fight parking charges at the first level, to proffer legal opinion on whether a Judge's decision was 'reasonable'.

The legally qualified people who come here are Johnersh, bargepole (really on top of private parking charges, but seems to pick his cases carefully for infrequent input), Loadsofchildren123, who hasn't been around for a while, and IamEmanresu who seems to have withdrawn his membership of the forum. That's it.

I also never underestimate Coupon-mad's ability to handle this stuff, but after that, with respect to other regulars, you're running out of road.

Hopefully you'll get some other inputs, but I don't think you will find any meeting your very demanding expectations. Beware the over-excitable!

masatoi

My defence for the 1st case

IN THE COUNTY COURT

CLAIM No: XXXXXX

BETWEEN:

UK Car Park Management Limited (Claimant)

-and-

XXXX XXXXXX (Defendant)

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 ask the Court to limit the Claimant only to the unevidenced allegations in the Particulars. Alternatively, to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand on his woeful Particulars by orchestrating a typical parking firm 'ambush' at a later stage of these proceedings.

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 the material time the Defendant was the driver of vehicle registration mark REG NUMBER which is the subject of these proceedings.

4. It is admitted that on 02 March 2017 the Defendant's vehicle was parked at ADDRESS where the Defendant is a leasehold owner of a residential property.

Authority to Park and Primacy of Contract

5. It is denied that the Defendant was not permitted to park a vehicle at his own home. Residents at this property are entitled to use the communal yellow parking bays.

5.1. This Claimant was not at this location when the Defendant purchased the flat, arriving some two years later. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by the later appearance of this Claimant who offered no contract to residents. A copy of the lease will be provided to the Court and if the Claimant is unaware of the primacy of contract of the leaseholders, this is due to their own negligence and lack of due diligence before starting enforcement at this location.

5.2. The Defendant has owned the flat for more than 4 years and always enjoyed the right to park in the shared spaces as well as in a leased bay. Since there has been no variation of the residents' agreements, neither a Managing Agent or Residents' Association would be able to impose this onerous charging regime via a back door method of cardboard signs pinned up by the communal bins with cable ties, with charges imposed where parking was free, with some bays effectively removed from daily use by residents.

5.3. Under the Landlord and Tenant Act 1987, for such a variation to have been agreed by the residents, it is the Defendant's understanding that 75% of the parties must have consented and not more than 10% must not have objected to any proposed material change (which this nuisance most certainly is).

5.4. The Claimants present a significantly detrimental material change and provide no service that is for the comfort and convenience of the residents; indeed the industry is made up of rogue operators whose modus operandi is to issue predatory, unfair tickets, then sue people. On 2nd February 2018 in the second reading debate about private parking firms, the House of Commons unanimously concluded: ''we need to crack down on these rogue companies. They are an absolute disgrace to this country. Ordinary motorists and ordinary residents should not have to put up with this''.

5.5. The Defendant is a leaseholder and has never been afforded the opportunity to expressly agree or object to UKCPM's regime. For the avoidance of doubt, the Defendant has entered into no contract with this Claimant and no variation of the Defendant's lease agreement has occurred and it will never be agreed for an ex-clamper to cause this level of nuisance on site, suing residents and telling the Managing Agents that they cannot (or will charge to) cancel unfair 'tickets' until the contract is ended.

5.6. Bays previously shared by residents and commercial tenants have effectively been removed from daily residential use and made a 'pay and display' commercial venture during the day, which is a derogation from grant and not something that the Courts can support.

5.7. The Defendant was aware that the charging hours in these purported 'pay and display' bays end at 5.30pm so the Defendant believed that the car (which was temporarily leased) could be parked by a leaseholder in such a bay overnight, at home. There is no commercial value to the bays after tariff charging hours, so there is no legitimate interest excuse for this Claimant to fall back on; an extortionate £100 charge is punitive and unrecoverable.

5.8. If the Claimant wanted to restrict or charge residents or visitors for parking during hours of darkness, then the mechanism is already there to charge tariffs. No commercial value applies to these spaces at night, at a time when they would only be needed by residents, and therefore any fine is predatory, unjustified and disproportionate.


Any contract or obligation for leaseholders to display a permit is denied

6. Whilst a 'permit' was provided by the Claimant when this Claimant appeared on site, the letter provided for no relevant contract or relevant obligation. There was no mention of additional terms on any signage that could affect a resident, and no 'fine' or charge was stated at all in the paperwork. There was no risk of a fine for non-display of the permit, which the Defendant displayed in his main vehicle merely as a courtesy.

6.1. The Defendant avers that the operators signs cannot:

(i) override the existing rights enjoyed by leaseholders, residents and their visitors and
(ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease.

6.2. 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, or that
7.2. there was any obligation (at all) to display a permit.

7.3. In case number D7GF307F - UKCPM v Mr D - before Deputy District Judge Skelly on 1st February 2018 at Clerkenwell, a similar thin excuse of an argument from this same private parking firm inflicting a nuisance on residents was dismissed. When not sitting as a Judge, DDJ Skelly is a barrister specialising in property law. 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 parking, effectively restricting and charging for a right previously enjoyed, without the required consensus and deed of variation. The Judge remarked that this would be like the agents suddenly stipulating that residents had to hang a Union Jack out of the window whenever they were at home.


Alternative Defence - Failure to set out clear 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 penalty sum imposed for any breach of parking terms were prominent, and stated in simple clear large lettering - both upon entry to the site and throughout.

8.1. The Defendant avers that the parking signage in this matter was, without prejudice to the primary defence above, inadequate.

8.2. The Defendant avers that the residential site that is the subject of these proceedings is not a site where there is a parking space value to be protected overnight, after the daytime pay and display hours. The Claimant has not suffered loss or pecuniary disadvantage and can show no legitimate interest in fining leasehold residents. The penalty charge is, accordingly, unconscionable in this context, with ParkingEye distinguished.


No locus - the Claimant is not the freeholder nor authorised by the freeholder

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. The Claimant appears to rely upon a purported contract with a company called 'Rosehill Triangle (2003) Management Company Ltd'. This is not the freeholder and neither is it the Managing Agent. Companies house shows that Rosehill Triangle (2003) Management Company Ltd is what appears to be a 'front' - a company on paper but with no registrable person listed as a Director of the company. This paper company cannot override the rights of residents and are not a named party in the lease.


Added costs have not been incurred - attempt at double recovery

11. In addition to the original parking charge, for which liability is denied, the Claimants have artificially inflated the value of the Claim by adding purported 'indemnity' costs which the Defendant submits have never actually been incurred. It is believed that Gladstones Solicitors offer their services to IPC members on free (or nominal) terms, since the IPC and Gladstones shared Directorships, causing an alarming conflict of interests exposed in the Parliamentary debate in the House of Commons in February.

12. The added costs are in fact artificially invented figures, which represent a cynical attempt to circumvent the Small Claims costs rules and achieve double recovery. In Beavis, only the parking charge itself (£85) was pursued and the 'charge' was scrutinised by the Supreme Court and held to mainly represent a significant sum in profit; being a pre-set, deliberately high deterrent. This was already significantly over and above the very minimal costs of operating an automated ticketing regime and no damages/loss/debt collection costs could have been claimed on top, because none existed.

13. Similarly, in Somerfield a £75 parking charge for a valuable retail parking space was not a penalty, but a sum mentioned in the harassing letters of double that amount, almost certainly would be.

14. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons. The Court is invited to dismiss the Claim, and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14.

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


signed


date

masatoi

My defence for the 2nd case

DEFENCE

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The Particulars of Claim on the N1 Claim Form refer to 'Parking Charge incurred on 24/02/2016. However, they do not state the basis of any purported liability for these charges, in that they do not state what the terms of parking were, or in what way they are alleged to have been breached. In addition, the particulars state 'The Defendant was driving the vehicle and/or is the keeper of the vehicle' which indicates that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5.

3. The Particulars refer to the material location as '[LOCATION]'. The Defendant has, since [04/07/2014], held legal title under the terms of a lease, to Flat No. XX at that location. At some point, the managing agents contracted with the Claimant company to enforce parking conditions at the estate.

4. Under the terms of the Defendant's lease, a number of references are made to conditions of parking motor vehicles.
{The definitions, at para. 4.8.6, define Not at any time use or permit it to be used or occupied except as a parking space for the parking of one motor car in the ownership or control of the Tenant.
In the First schedule at para. 4.4.1 Not to underlet or part with possession or occupation of the Space or allow the Space to be occupied by any Car or other motor vehicle except as authorised by this Licence and not to assign the benefit of this Licence to any party other than a tenant of the Flat.}

4.1. There are no terms within the lease requiring lessees to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same.

5. The Defendant, at all material times, parked in accordance with the terms granted by the lease. The erection of the Claimant's signage, and the purported contractual terms conveyed therein, are incapable of binding the Defendant in any way, and their existence does not constitute a legally valid variation of the terms of the lease. Accordingly, the Defendant denies having breached any contractual terms whether express, implied, or by conduct.

6. The Claimant, or Managing Agent, in order to establish a right to impose unilateral terms which vary the terms of the lease, must have such variation approved by at least 75% of the leaseholders, pursuant to s37 of the Landlord & Tenant Act 1987, and the Defendant is unaware of any such vote having been passed by the residents.

7. Further and in the alternative, the signs refer to 'Authorised Vehicles Only/Terms of parking without permission', and suggest that by parking without permission, motorists are contractually agreeing to a parking charge of £100. This is clearly a nonsense, since if there is no permission, there is no offer, and therefore no contract.

7.1. The Defendant's vehicle clearly was 'authorised' as per the lease and the Defendant relies on primacy of contract and avers that the Claimant's conduct in aggressive ticketing is in fact a matter of tortious interference, being a private nuisance to residents.

7.2. In this case the Claimant has taken over the location and runs a business as if the site were a public car park, offering terms with £100 penalty on the same basis to residents, as is on offer to the general public and trespassers. However, residents are granted a right to park/rights of way and to peaceful enjoyment, and parking terms under a new and onerous 'permit/licence' cannot be re-offered as a contract by a third party. This interferes with the terms of leases and tenancy agreements, none of which is this parking firm a party to, and neither have they bothered to check for any rights or easements that their regime will interfere with (the Claimant is put to strict proof). This causes a substantial and unreasonable interference with the Defendant's land/property, or his/her use or enjoyment of that land/property.

8. The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 as a binding precedent on the lower court. However, that only assists the Claimant if the facts of the case are the same, or broadly the same. In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas it is the Defendant's position that no such breach occurred in this case, because there was no valid contract, and also because the 'legitimate interest' in enforcing parking rules for retailers and shoppers in Beavis does not apply to these circumstances. Therefore, this case can be distinguished from Beavis on the facts and circumstances.

9. The Claimant, or their legal representatives, has added an additional sum of £60 to the original £100 parking charge, for which no explanation or justification has been provided. Schedule 4 of the Protection Of Freedoms Act, at 4(5), states that the maximum sum which can be recovered is that specified in the Notice to Keeper, which is £100 in this instance. It is submitted that this is an attempt at double recovery by the Claimant, which the Court should not uphold, even in the event that Judgment for Claimant is awarded.

9a. The Claimant has described the £60 as 'losses' which is patently untrue (impossible, given that the £100 is mostly profit) and in fact, damages/loss cannot be successfully pleaded in a parking ticket case where the Claimant is not in possession of the land, as was confirmed in the Beavis case.

10. For all or any of the reasons stated above, the Court is invited to dismiss the Claim in its entirety, and to award the Defendant such costs as are allowable on the small claims track, pursuant to Civil Procedure Rule 27.14. Given that the claim is based on an alleged contractual parking charge of £100 - already significantly inflated and mostly representing profit, as was found in Beavis - but the amount claimed on the claim form is inexplicably £267.43, the Defendant avers that this inflation of the considered amount is a gross abuse of process.

11. Given that it appears that this Claimant's conduct provides for no cause of action, and this is intentional and contumelious, the Claimant's claim must fail and the court is invited to strike it out.

11.1. In the alternative, the Court is invited, under the Judge's own discretionary case management powers, to set a preliminary hearing to examine the question of this Claimant's substantial interference with easements, rights and 'primacy of contract' of residents at this site, to put an end to not only this litigation but to send a clear message to the Claimant to case wasting the court's time by bringing beleaguered residents to court under excuse of a contractual breach that cannot lawfully exist.

12. This claim and the other very similar one merely states: ''parking charges and indemnity costs if applicable'' which does not give any indication of on what basis the claim is brought. For example whether this charge is founded upon an allegation of trespass or 'breach of contract' or contractual 'unpaid fees'. Nor are any clear times/dates or coherent grounds for any lawful claim particularised, nor were any details provided to evidence any contract created nor any copy of this contract, nor explanation for the vague description 'parking charges' and 'indemnity costs'.

13. Taking into account the above points the Defendant will be seeking their costs on the indemnity basis due to the above conduct which was the final insult after the wholly unreasonable and vexatious stance of a parking firm who:

a. Already has an ongoing case (claim no. xxxxxxxx - about the same location) that they filed against this Defendant in June 2018. The defendant requests the court to merge the 2 claims.

b. Appear to be ignorant regarding the doctrine of res judicata, despite using a solicitor, Gladstones, which shared Directors with the parking Trade Body, the IPC, and files thousands of parking claims and is expected to conduct itself professionally with regard to its first duty to the Courts and due process.

c. Is clearly engaging in a vexatious pursuit of this Defendant, when they already know about the easements and rights enjoyed by residents at the material location, who indisputably have primacy of contract.

masatoi

Thank you Umkomaas.
I have no opposition to what you said. The results I had were totally my fault. I'm not here to complain nor moan at all.

However I would still like to know your opinion on whether or not the decisions I had today were reasonable.

I had 2 cases and for one of them I didn't admit that I was the driver.

In my defence

the particulars state 'The Defendant was driving the vehicle and/or is the keeper of the vehicle' which indicates that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5.

But I was told by the judge that I didn't notice that I wasn't the driver within 82 days.

In such a situation UKPCM can pursue me as the driver and liable for their charge?

---

Another thing UKPCM isn't the 'Management Company' stated in the Lease.

Even if I wasn't the Lease holder on what legal basis they would be able to charge cars for not displaying a permit? Because of the signage?

---

The reason I lost today was I couldn't prove that I was the Lease holder.

And also my point that I didn't admit I wasn't the driver wasn't accepted.

[Deleted User]

the particulars state 'The Defendant was driving the vehicle and/or is the keeper of the vehicle' which indicates that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices

I'm afraid not. This is a pleading in the alternative. They argued all permutations of the following:
1. You were driving
2. You were keeper only
3. You were driving and keeper

All those arguments were up for grabs and needed defending.

In such a situation UKPCM can pursue me as the driver and liable for their charge?

Well, yes.

The point about you not noticing who was driving would appear to be a credibility point - a judge is entitled to choose whether to accept what you say it the PPCs as the more reliable factual account.

Another thing UKPCM isn't the 'Management Company' stated in the Lease.

Are you sure you have this correct? You need to distinguish parking management from residents management company.

Even if I wasn't the Lease holder on what legal basis they would be able to charge cars for not displaying a permit? Because of the signage

A sign is capable of being a contract - with or without a lease. If you weren't in a position to understand or address that point, then I fear your case was likely always doomed to fail.

I'm not being unduly critical. I completely understand that litigation can be complex and can require many hours of study.

If truth be told, without being in the room to listen to your oral arguments (which expand upon the defence) it's impossible to be certain if a case was wrongly decided or has appeal prospects. However, from the thread, I wouldn't be confident the cases were wrongly decided either.