Court Claim form from UK Car park management & Gladstone

masatoi

I've started writing my defence.

I have a concern about after submitting a defence form. As far as I know the case gets to Directions Questionnaire (DQ) stage after submitting a defence form.

But I have already booked a holiday in Aug for 2 weeks. Is there a chance that I could miss an important notice/letter etc? I'm looking to submit a defence form early July.

Coupon-mad

Only the DQ, slight danger it arrives that fortnight. It may arrive earlier anyway.

I'd say if you have not received a DQ from the court (not Gladstones blank useless one) the week before you go away, download one online and submit it to Court & Gallstones.

masatoi

Hi

I got a reply from the property management company.

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Good Afternoon,

Thank you for your email, we will answer initially your other email of the 19.06.18

In the lease it provides Freeholder, Management Company and Leaseholder covenants I refer to you to the following clause which relates to the Management Company and therefore must be adhered to by Leaseholders.

!!!8220;THE FOURTH SCHEDULE
Service to be provided and obligations to be discharged by the Management Company
PART 2 - BUILDINGS AND ESTATE COMMON PARTS SERVICES

10. To provide such other services and discharge such other obligations or functions as the Management Company shall reasonably from time to time consider necessary or expedient for the use and occupation of the apartments in the Buildings and the Commercial Premises!!!8221;


The management company decided that Parking Enforcement was considered necessary for the development and therefore was put in place in accordingly, and as per the above clause they are entitled to do.

In terms of your details being passed to a third party this is something you have to take up directly with UKCPM, however we can only assume this was done because the PCN notice issued in March 2017 hadn!!!8217;t been and just ignored, had this of been dealt with at the time then perhaps it wouldn!!!8217;t of got this far.
As mentioned in my email of 19th June 2018 a discussion directly with UKCPM is required as it is them not HML or Rosehill Triangle (2003) Management Company Ltd that have issued the notice.

Turning to your email of 20th June when you purchased the property the leaseholder agreed to become a member of the Management Company. HML Andertons act as Company Secretary for Rosehill Triangle (2003) Management Company Ltd so we deal with filling of the accounts, arranging the AGM, issuing of the notices etc and therefore are the Registered Address for the company.
The Management Company has a board of Directors.
A Director of a Resident Management Company (RMC) is a voluntary role which allows you to work with the fellow Directors of the Board (those owners of Rosehill Triangle who act as a group to make decisions and consult, where required on proposals and service delivery). The Board of Directors as a collective have a level of control with the support of the Property Manager, in decision making, observing the relevant covenants of the lease, undertaking sound budgeting practice, acting in the interest of all lessees, reviewing and signing off annual accounts.

HML have been appointed by the Management Company to manage the communal areas to which the management company are responsible to maintain under the terms of the lease covenants.

In terms of the existent of the Management Company is live and each year the limited company accounts are filed with Companies House.

Attached as per your request please find attached all letter which have been sent to you in relation to the parking at the development with the first letter being sent in December 2014 along with the latest letter being 9th October 2017.
In our letter of August 2015 it clearly states that the permit is to be displayed in the windscreen of your vehicle at all times and failing this you will receive a fine.
When UKCPM took over the parking control in November 2015 it is clear in the letter that HML would not get involved in any disputes relating to any fines received and therefore if you feel that you have received the fine wrongly then this is to be taken up directly with UKCPM.

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Should I still stick to a defence for an 'own space' residential site in Newbies #2 ?

Any advice would be much appreciated.

System

No you have to stick to the defence of being a leaseholder.

The issue in #10 is the definition of "reasonable" and to prove the claim, a judge would have to find that penalising residents for small transgressions is "reasonable". Some do and some don't but it depends on the judge on the day.

See comments above

They will take this all the way to a hearing at court as this is the method they use to frighten people into paying.

So you can pay now and save the hassle but it will be on the basis that a) you are being scammed and b) you will be on their list to be scammed over and over again.

If you buckle, you'll be on their list. If you win, it will be a win for all the residents so you might want to get some of them to help you.

masatoi

I made a first draft of defence.

It would be appreciated if someone could review it.



IN THE COUNTY COURT

CLAIM No: XXXXXXXX

BETWEEN:

UK Car Park Management Limited (Claimant)

-and-

XXX XXXX (Defendant)


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 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.

Authority to Park and Primacy of Contract
5. 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 Lease 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 require 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.

Lease contract specifies the allocated bay which is different to where I parked and got a ticket.
Letter from UKCPM and the signs says Yellow bay can be used by the residents with a displayed permit.

6. 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. 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.
8.2. 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.

STATEMENT OF TRUTH
I confirm that the contents of this Defence are true.

NeilCr

So what it sounds like is that you actually, quite likely, own a share in the management company. The residents own the freehold of the site

Four of these residents who are listed here :-

https://beta.companieshouse.gov.uk/company/04834211/officers

act as voluntary directors and are empowered to make decisions on behalf of the rest of you.

Do you know any of them? I think it might be helpful for you to know why they made this decision about appointing a PPC. It may (underline may) be that they did so because of pressure from other residents. If I am correct then you, owning a share in the company, are perfectly entitled to this information. There should be minutes of meetings/AGMs available to you.

It may be that, if the residents, in general, wanted the PPC, asking around may not be that great - which is why finding out why the decision was made may be good.

Beyond that, the people here offering you advice know far more about the law than I do. I must admit, from the outside looking in, there would seem to be a difference between your allocated bay and a communal bay. Your own space would seem to me to be a slam dunk for you, Not quite so sure about the communal bay.

But, I am likely wrong on that!

System

there would seem to be a difference between your allocated bay and a communal bay. Your own space would seem to me to be a slam dunk for you, Not quite so sure about the communal bay.

NeilCr sums it up. You were a permit holder but was the permit car specific. Did it have a VRM on it as if it did, it would likely not be valid for the communal areas.

As you are fully aware that the development has parking restrictions and all vehicles must display a valid parking permit

This then leads to the issue of "frustration" of contract. What mechanisms were there to allow valid visitors to use the permitted spaces while driving another car. Clearly people can drive more than one car (if their insurance allows), so it would be unreasonable not to provide a mechanism to allow for this for leaseholders/those that have rights.

What does the permit say?

Think of it this way. The law is all about certainty and putting you in a particular pigeonhole which reflects your rights. So the question to ask is whether the permit system was unnecessarily restrictive and removed your leaseholder rights.

FYI leaseholder rights can be removed/restricted but only if the correct process has been followed

NeilCr

To play devil's advocate.

The OP, I think, is a member/shareholder of the company that made the decision to introduce the PPC. They weren't at the time of the actual decision but, as a member/shareholder, they have the right to raise issues that concern them with other residents/attend AGMs , propose changes (for example getting rid of the PPC) - indeed volunteer to be a director ( you rarely get enough) etc.

It could be argued that they have had enough opportunity since 2016 to get this sorted if they objected to the PPC.

I don't know enough about the law to know if this makes any difference - that, in effect, OP is part of the company that introduced the parking restrictions that the OP is now appealing against and restricting their own leasehold rights (if they are being restricted/removed). I genuinely don't know and am highlighting this to see if someone has more knowledge on the subject.

It appears that there isn't actually an issue with the "owned" spaces but with the communal overflow parking. We sort of have the same problem. People are really good about using their own spaces and know to tell their visitors not to pinch one. But, some residents have 2/3 cars and we just don't have the capacity for that.

System

It could be argued that they have had enough opportunity since 2016 to get this sorted if they objected to the PPC.

FYI leaseholder rights can be removed/restricted but only if the correct process has been followed

Landlord and Tenant Act 1987 is the issue. Owner/Directors are the main culprits in believing "common sense" overrides legal rights. And usually they are not insured if it goes belly up and someone issues a claim against them.

NeilCr

IamEmanresu wrote: »

Landlord and Tenant Act 1987 is the issue. Owner/Directors are the main culprits in believing "common sense" overrides legal rights. And usually they are not insured if it goes belly up and someone issues a claim against them.

Fair enough.

I guess I am just used, as a director, to most other residents not being interested at all in what we are doing - until it directly impacts on them!

As you said earlier, then, it is going to turn on the word reasonable in #10. I still think that knowing why the restrictions were bought in may help. And I still have concerns that it is a communal bay

Thanks Ian