PCM & Gladstones - Statement of Defence

Kas22

As it's coming closer to the 10th May, I've been having a look at all the letters sent back and forth between everyone. It seems that this WS may be a little more complex as the court case is between me and PCM, but the onus of the case is based on the Managing Agent not sending out any letters to residents of the inception of the parking scheme.
Please take a look at the first draft of the WS and let me know your thoughts... am a little lost for words here.


[FONT=&quot]In the County Court at Edmonton[/FONT]
[FONT=&quot]Claim No. [/FONT][FONT=&quot]XXXXXXX[/FONT]
[FONT=&quot]Between[/FONT]
[FONT=&quot]Parking Control Management (UK) Limited (Claimant)[/FONT]
[FONT=&quot]And[/FONT]
[FONT=&quot]X X XXXXXXX (Defendant)[/FONT]

[FONT=&quot]Witness Statement[/FONT]

[FONT=&quot]I am the defendant in this matter, [name], of [address].[/FONT]

[FONT=&quot]I will say as follows:[/FONT][FONT=&quot]
[/FONT]
[FONT=&quot]Since 2001, the defendant and dwelling residents have enjoyed parking partially on the pavements without on the development causing any burden to pedestrians, or blocking access to anyone, it being vehicle or emergency; no site restrictions were implemented.[/FONT]

[FONT=&quot]On the 6th October 2017, parking signs were introduced by the Claimant with no prior notice given to residents (nor by the Managing Agent (MA) London and Quadrant (L&Q)) to make parking arrangements in advance. [/FONT]
[FONT=&quot]On the 23rd October 2017, all vehicles on the residential site were issued with a Penalty Charge Notice (PCN).[/FONT]

[FONT=&quot]There was an uproar of anger as to why no one had been informed of the introduction of the parking scheme in advance and as of when they would be enforced.[/FONT]

[FONT=&quot]The Claimant had been called and asked why no notice letters were sent out in advance with a generic response of “we are not entitled to tell you”. [/FONT]
[FONT=&quot]After a lot of back and forth between the Claimant, Property Management Services to find out who instigated this, a letter was sent to the local MP (name), to assist in finding who had contracted the Claimant. It turned out to be L&Q who had instigated the scheme.[/FONT]
[FONT=&quot]After initial contact had been made via the MP with many questions, one of which was “why was no one consulted before the enforcement came into action”, their response was: [/FONT]
[FONT=&quot]"As the landlord we have a duty to manage our land responsibly, consultation is not always necessary in these instances, however this scheme was informed by our observations, complaints and recommendations made by neighbourhood champions."[/FONT]
[FONT=&quot]This was challenged with:[/FONT]
[FONT=&quot]A[/FONT][FONT=&quot]s a landlord,[/FONT][FONT=&quot]you have the legal duty to consult all dwelling residents under section 20 and 20ZA of the Landlord & Tenant Act 1985 http://www.legislation.gov.uk/ukpga/1985/70/section/20ZA. Why was this not followed? Please provide names and groups of neighbourhood champions as it has not been aware to myself or residents.[/FONT]
With their correspondence of:
"Section 20 and 20a consultation is only necessary if ther eis a financial cost incurred by residents of more than £250 in a 12 month period, such as funding major improvement or long term contracts which residents contribute towards. This shceme has no service charge element as the scheme is funded in full by the income form penalty notices so does not fall within the statutory consultation requirements…”

Section 20a, section 5(e) states that: Regulations under subsection (4) may in particular include provision requiring the landlord — to give reasons in prescribed circumstances for carrying out works or entering into agreements

This was followed with further questions of:

[FONT=&quot]- As the landlord, regardless of cost, should you have not taken the correct measures and sent generalised letters to the entire estate informing when and why enforcements were being introduced? This is standard protocol for councils and should be adhered to by such organisations as yourselves, even if it’s the courteous thing to do, I would have expected common sense to have prevailed when dealing with such a big development.[/FONT]
[FONT=&quot]- [/FONT][FONT=&quot]How have communications been managed and sent when engaging with residents? I have never received any letters from L&Q or First Port Property Services, as in this instance. [/FONT]

[FONT=&quot]No responses were received after the above questions, even after pursuing this on several occasions.[/FONT][FONT=&quot]
[/FONT]
[FONT=&quot]- U[/FONT][FONT=&quot]pon receipt of a parking charge notice from the Claimant, I supplied them with these challenges, however they have elected to pursue this matter via litigation.[/FONT][FONT=&quot]
[/FONT]
[FONT=&quot]- [/FONT][FONT=&quot]After sending a Letter Before Claim to the Claimant, my points were disregarded and received a generic response without any clarification on the points raised.[/FONT]
- [FONT=&quot]It is my position that, under the doctrine of promissory estoppel, the Claimant has no standing, or cause of action, to litigate in this matter.[/FONT]
[FONT=&quot]- [/FONT][FONT=&quot]The Managing Agent is at fault and an injunction in the style of Kettel v Bloomfold seems to be an appropriate remedy in this case, in order to prevent the servient tenement (the MA) from achieving an expropriation of the residents' property rights. As such, the Defendant is contacting other residents with a view to seeking legal advice as a group, to lead to a claim against the MA. [/FONT]
[FONT=&quot]- [/FONT][FONT=&quot]Given the facts, this Claimant's claim must fail and the court is invited to strike it out, or impose a stay, or in the alternative, order under the Judge's own discretionary case management powers, a preliminary hearing to examine the same, to save burdening the court with a claim that has no merit.[/FONT]
[FONT=&quot]- [/FONT][FONT=&quot]I invite the Court to dismiss this claim in its entirety, and to award my costs of attendance at the hearing, such as are allowable pursuant to CPR 27.14.[/FONT]

[FONT=&quot]Statement of Truth[/FONT]

[FONT=&quot]I believe that the facts stated in this Witness Statement are true.[/FONT]

[FONT=&quot]Signature
[/FONT]
[FONT=&quot]Date[/FONT]

Coupon-mad

I think you need more, and you will (as always) certainly need to file evidence with this.

Your paragraphs all need numbering, as will your pages, and your evidence exhibits. You will need a contents page too, and a file or ring binder for the judge's copy so it's all nice and organised.

Your position is far more than just promissory estoppel.

Your position about the claim is also about:

- a breach of the POFA 2012 (Schedule 4) by PCM, in failing to give 'adequate notice of the parking charge, and failing to show any breach of a 'relevant obligation' to show a permit that no-one had agreed top or knew about.

- primacy of contract - show your lease or tenancy agreement as an exhibit.

- rights or easements to park already existing and PCM causing a 'private nuisance' to residents in their own homes and disregarding the rights of the people in possession of title and tenancy agreements on site.

- no standing to sue, as PCM are strangers to the location, are not in possession and cannot claim damages as there were none, and cannot claim you were all trespassers as you were not, and in any case only the landowner can claim this.

- even if the Judge decides PCM had standing from L&Q to put signs up, PCM breached the IPC Code of Practice by not endsuring the change of regulations were properly communicated to those familiar with the car park, by placing warning signs up and notes on cars and through all letterboxes, for example, to ensure everyone knew about the permit scheme and had ample opportunity to get a permit OR opt their bay out (as it their right if they have an allocated/owned bay - no-one can vary their lease rights and take away/alter to the consumer's detriment the right to park or start charging for it).

- even if they had standing, PCM's signs were incapable of forming a mutually agreed contract, due to the term about displaying a non existent permit being 'void for impossibility' and due to the above issues with adequate notice/relevant obligation (in the POFA) and breach of the IPC CoP.

- you should also use your WS as an opportunity to tear into their own WS and evidence if they've sent it to you first!

Kas22

Received the WS from Galdstones and they have completely omitted the fact about adequate communication being sent to residents of the development.

They are solely relying on the breach of contract that the vehicle was "parked in a manner that did not adhere to the terms and conditions of the signage contained on the site, namely that he was parked in a restricted area."

A few other exerts from their WS which I want to pay particular attention to:

- "...The agreement specifically states that the Freeholder of the Land provides my Company (Gladstones) with the authority to operate a parking charge notice inforcement service on the Land specified, Namely XXXXX Road Esate." If this is the case, that means they breached the IPC Code of Practice by not ensuring the change of regulations were properly communicated to the residents of the development, by placing warning signs up and notes on cars and/or through all letterboxes. Not sure if IPC states this anywhere?

- "...it is clear that a parking enforcement scheme was intended to be in operation on the Land as per the Freeholder's discretion." As above, would it be PCM or the Landowners responsibility to send notice to all residents?

In light of this, Gladstones have attached a photocopy of the agreement between L&Q and PCM which says:

"I/We would be pleased to authorise Parking Control Management (UK) Ltd. to operate a Parking Enforcement Service on the land specified below of which I/We are the: (Freeholder)"

"I/We the undersigned, authorise Parking Control Management (UK) Ltd. to operate a PCN enforcement service on the land specified above. The scheme will be operated in accordance with the Independent Parking Comittee (IPC) and Accredited Operatator Scheme (AOS) Code of Practice.

In accordance with the IPC AOS Scheme it is required that we give our formal confirmation clearly stating the following:

1. We will require Parking Control Management UK Ltd. to operate to the IPC / AOS code of practice.
2. We will require Parking Control Management UK Ltd. to underrtabke the management and/or enforcement of parking on the land specified above.
3. We give Parking Control Management UK Ltd. the authority to proceed with legal action to recover unpaid charges for unauthorised parking on the land specified above in accordance with the IPC/AOS cod of practice."

This leads me to believe that I can heavily target them for not sending any notifications?

What I founf plasuable is that they also wrote that I have lodged a template defence that is heavily circulated on the internet and not specific to the fact of this case of the charges at hand, but genrically copied and pasted from other templates!

Coupon-mad

You can heavily target them on all the issues raised in this thread!

breached the IPC Code of Practice by not ensuring the change of regulations were properly communicated to the residents of the development, by placing warning signs up and notes on cars and/or through all letterboxes. Not sure if IPC states this anywhere?

The IPC CoP does talk about new restrictions and the need for extra signs to tell people familiar with a car park about the new rules, yes.

But it's not just about not communicating this - it's about your primacy of contract as an existing resident with a lease/agreement. These are rights/easements that can't just be overridden by slapping a few signs up with cable ties.

Kas22

Coupon-mad wrote: »

You can heavily target them on all the issues raised in this thread!

The IPC CoP does talk about new restrictions and the need for extra signs to tell people familiar with a car park about the new rules, yes.

But it's not just about not communicating this - it's about your primacy of contract as an existing resident with a lease/agreement. These are rights/easements that can't just be overridden by slapping a few signs up with cable ties.

Thanks. Will look at the IPC CoP and add this to the WS. Note, I live in a freehold dwelling and park on the road, so parking lots within the development are not controlled by PCM (anymore).

Kas22

Have drafted my second WS which I'm hoping I've covered everything off and will be in a position to post it tomorrow
I've added a contents page, numbered the paragraphs as well as the pages and evidence.

Please note that this is a WS on behalf of my father, so I will be attending the court hearing with him

WITNESS STATEMENT

[FONT=&quot]I am the defendant in this matter, NAME, of ADDRESS[/FONT]

[FONT=&quot]I will say as follows:[/FONT]

[FONT=&quot]1. Since 2001, the Defendant and dwelling residents of a private residential area have enjoyed parking partially on the pavement without causing a burden to pedestrians, or blocking access in/out for emergency vehicles when no site restrictions were in force.[/FONT]

[FONT=&quot]2. Exhibited to this Witness Statement as ‘Ref No.’ are the following documents which I will rely on:[/FONT]

[FONT=&quot]i) [/FONT][FONT=&quot]Images of all vehicles being ticketed (Ref One)[/FONT]
[FONT=&quot]ii) [/FONT][FONT=&quot]The Agreement authorising the Claimant to manage parking on the relevant land – Dated DD/MM/YYYY (Ref Two)[/FONT]

[FONT=&quot]Defence[/FONT]

[FONT=&quot]1. [/FONT][FONT=&quot]On October 2017, parking signs were introduced by the Claimant with no prior notice given to residents (nor by the Freeholder, London and Quadrant (L&Q), or Managing Agent (MA) First Property Services), to make parking arrangements in advance.[/FONT]

[FONT=&quot]2. [/FONT][FONT=&quot]On the 25th October 2017, all vehicles on the residential site were issued with a Penalty Charge Notice (PCN) by the Claimant during early hours of the morning.[/FONT]

[FONT=&quot]3. [/FONT][FONT=&quot]No residential dwelling in the development had been informed of the introduction of the parking scheme in advance, and as of when the parking scheme would be enforced from.[/FONT]

[FONT=&quot]4. [/FONT][FONT=&quot]The Claimant had been contacted by many angered residents as to why no notices were sent out in advance of the inception of the scheme, with a generic and unfriendly response of “we are not entitled to tell you”, nor were they helpful in advising on how to assist in getting a parking permit with a response of “you don’t need one.”[/FONT]

[FONT=&quot]5. [/FONT][FONT=&quot]After an arduous amount of time spent investigating who authorised the Claimant to enforce the scheme, and by contacting the MA, who did not disclose any information either, the local MP (NAME) was contacted in helping to instigate who contracted the Claimant, which turned out to be L&Q. (Ref Two)[/FONT]

[FONT=&quot]6. [/FONT][FONT=&quot]After initial contact had been made via the MP with many questions, one of which was “why was no one consulted before the enforcement came into action”, the Freeholders response was:
"As the landlord we have a duty to manage our land responsibly, consultation is not always necessary in these instances, however this scheme was informed by our observations, complaints and recommendations made by neighbourhood champions."
This was challenged with:
“As a landlord, you have the legal duty to consult all dwelling residents under section 20 and 20ZA of the Landlord & Tenant Act 1985 http://www.legislation.gov.uk/ukpga/1985/70/section/20ZA. Why was this not followed? Please provide names and groups of neighbourhood champions as it has not been aware to myself or residents.”[/FONT]


[FONT=&quot][FONT=&quot]Particulars of Claim[/FONT][FONT=&quot]:[/FONT]
[FONT=&quot]9. [/FONT][FONT=&quot]As per ‘The Agreement’ (Ref Two) authorising the Claimant to manage parking on the relevant land – with date of instruction being 24th October 2017;[/FONT]
[FONT=&quot]i)[/FONT][FONT=&quot]If the Claimant were authorised to operate a Parking Enforcement Service on the land specified, then a breach of the POFA 2012 (Schedule 4) had occurred, in failing to give ‘adequate notice of the parking charge, and failing to show any breach of a ‘relevant obligation’ to show a permit that on-one had agreed to, or knew about.[/FONT]

[FONT=&quot]10.[/FONT][FONT=&quot]The Claimant had breached the IPC Code of Practice by not ensuring the change of regulations were properly communicated to those familiar with car parking, by placing warning signs up and notes on cars and/or through all letterboxes, for example, to ensure everyone knew about the permit scheme and had ample opportunity to get a permit, OR find alternate parking (as it their right to park on the land - no-one can vary their lease/freehold rights and take away/alter to the consumer's detriment the right to park or start charging for it).[/FONT]
[FONT=&quot]i)[/FONT][FONT=&quot]As the Claimant had standing from the Freeholder to put signs up, the Claimants signs were incapable of forming a mutually agreed contract, due to the term about displaying a non-existent permit being ‘void for impossibility’ and due to the above issues, with adequate notice/relevant obligation (in the POFA) and breach of the IPC CoP.[/FONT]
[FONT=&quot]ii)[/FONT][FONT=&quot]The Defendant has existing rights of easements to park already, and the Claimant causing a 'private nuisance' to residents in their own homes and disregarding the rights of the people in possession of title and tenancy agreements on site.[/FONT]
[FONT=&quot]iii)[/FONT][FONT=&quot]The Claimant has no standing to sue, as they are strangers to the location, are not in possession and cannot claim damages as there were none, and cannot claim the Defendant and residents were trespassers, as we were not, and in any case only the Freeholder can claim this.[/FONT]

[FONT=&quot]11.[/FONT][FONT=&quot]Primacy of contract – is that the contract cannot be unilaterally altered by one party without the permission of the other. The freehold gives the Defendant the unfettered right to park, therefore these rights/easements cannot be altered later, for instance by requiring a permit to park, or by placing signs up.[/FONT]
[/FONT]

[FONT=&quot]Appeal[/FONT]

[FONT=&quot]1. [/FONT][FONT=&quot]12. Upon receipt of a parking charge notice from the Claimant, the Defendant supplied them with the above challenges, however they have elected to pursue this matter via litigation.[/FONT]

[FONT=&quot]13. After sending a Letter Before Claim to the Claimant, the Defendant’s points were disregarded with a generic response being received without any clarification on the points raised[/FONT]

[FONT=&quot]1. [/FONT][FONT=&quot]14. The Claimant is a known litigator of such cases, and is known to send generic responses without taking into consideration the points made above or from previous letters. [/FONT]
[FONT=&quot]i) [/FONT][FONT=&quot]The Claimant is solely focusing on the supposedly ‘breach’ of parking, omitting their responsibility of sending notices in advance to residents (as appointed by the Freeholder). Ref Two[/FONT]
[FONT=&quot]ii) [/FONT][FONT=&quot]The Claimant failed to engage in pre-action correspondence in accordance with the pre-action protocol and with the express aim of avoiding contested litigation.[/FONT]

[FONT=&quot]2. [/FONT][FONT=&quot]15. The Claimant is following a conduct of ‘robo-claims’ which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. The Defendant believed that this is a claim that will proceed without any facts of evidence of a proactive approach supplied until the last possible minute, to the Defendants detriment as an unrepresented party.[/FONT]

[FONT=&quot]3. [/FONT][FONT=&quot]16. It is my position that, under the doctrine of promissory estoppel, the Claimant has no standing, or cause of action, to litigate in this matter.[/FONT]

[FONT=&quot]4. [/FONT][FONT=&quot]17. The Claimant (and/or Freeholder) are at fault and an injunction in the style of Kettel v Bloomfold seems to be an appropriate remedy in this case, in order to prevent the servient tenement from achieving an expropriation of the residents' property rights. As such, the Defendant is contacting other residents with a view to seeking legal advice as a group, to lead to a claim against the Claimant/Freeholder.[/FONT]

[FONT=&quot]5. [/FONT][FONT=&quot]18. Given the facts, this Claimant's claim must fail and the court is invited to strike it out, or impose a stay, or in the alternative, order under the Judge's own discretionary case management powers, a preliminary hearing to examine the same, to save burdening the court with a claim that has no merit.[/FONT]

[FONT=&quot]6. [/FONT][FONT=&quot]19. I invite the Court to dismiss this claim in its entirety, and to award my costs of attendance at the hearing, such as are allowable pursuant to CPR 27.14.[/FONT]


[FONT=&quot]Statement of Truth[/FONT]

[FONT=&quot]I believe that the facts stated in the Witness Statement are True.[/FONT]

[FONT=&quot]Signature[/FONT]

[FONT=&quot]Date[/FONT]
[FONT=&quot]
[/FONT]
[FONT=&quot]APPENDIX
[/FONT]

[Deleted User]

14 to 19 are legal arguments that add nothing. You've got some great factual points why drown it in BS.

If they want to introduce a resi permit scheme they need to issue permits first. Unless they can prove they have and you are in breach of that then the terms could never be complied with.

Coupon-mad

Don't use a subheading 'defence' or 'appeal'. This is your WS - the story in the 1st person. So change 'the Defendant' to ''I'' each time.

Stop at #11.

Add a statement of truth.

What are you showing as your evidence?

What about case that support a residential defence case?

Are you including your lease/tenancy agreement (remind us are you tenant or leaseholder?).

Pics of the unclear signs?

Copies of emails to the Managing agents?

What about the right page from the L&T Act as an exhibit, to assist the Court?

Why are you exhibiting this - surely you are just helping their case with this?

ii) The Agreement authorising the Claimant to manage parking on the relevant land – Dated DD/MM/YYYY (Ref Two)

Kas22

Coupon-mad wrote: »

Don't use a subheading 'defence' or 'appeal'. This is your WS - the story in the 1st person. So change 'the Defendant' to ''I'' each time.

Done

Coupon-mad wrote: »

Stop at #11.

Removed everything from #11 onwards

Coupon-mad wrote: »

What are you showing as your evidence?

Am showing photos of all vehicles ticketed - which should illustrate that not only I was unware, so were everyone else. Eliminates the edge case that I was the only one who got the ticket.

Coupon-mad wrote: »

What about case that support a residential defence case?

Has not yet been started

Coupon-mad wrote: »

Are you including your lease/tenancy agreement (remind us are you tenant or leaseholder?).

No, I am a freeholder resident (house). Could it be said that I am the tenant of the private land?

Coupon-mad wrote: »

Pics of the unclear signs?

These have already been provided in the Claimants WS, but not sure what value it'll add as this case is primarliy challenging why no notices were sent prior to the parking scheme going live. That said, can also add the notices too and rely on their t&c's.

Coupon-mad wrote: »

Copies of emails to the Managing agents?

This is a big palaver as everyone is trying to push the responsability onto someone else. The MA said they didn't instigate the parking scheme for the entire site, however the local MP identified that the Freeholder (L&Q) did, and the agreement between PCM and L&Q has confirmed this. However, from a recent email from L&Q, they've deferred the responsability to the MA saying "...is managed by First Port Property Services Limited and is not patrolled by PCM for L&Q....
As I have informed you L&Q do not own the land on ROAD NAME and we are not able to assist you further with your enquires"Doesn't the agreement between PCM and L&Q state otherwise?

Coupon-mad wrote: »

What about the right page from the L&T Act as an exhibit, to assist the Court?

Is this needed as a freehold resident?

Coupon-mad wrote: »

Why are you exhibiting this - surely you are just helping their case with this?

To put the case across that PCM were instructed by the freeholder (L&Q) to operate on the site on the 24th October, and by the 25th October all vehicles were ticketed, therefore reinforcing that no advanced attempts were made to commnicate the effect of the inforcement coming into play, putting the onus of a failed misconduct of informing residents by PCM and/or L&Q.

Coupon-mad

It sounds like those emails will assist your side as it paints a picture of confusion and miscommunication to residents. I would show them.

Originally Posted by Coupon-mad
What about the right page from the L&T Act as an exhibit, to assist the Court?

Is this needed as a freehold resident?

I am not an expert at all in this but FWIW, I think it may have application if you pay ground rent/service charges for the site? Makes you a tenant of L&Q with freehold ownership of your house, and a rights & easements over the land leading to it.

Originally Posted by Coupon-mad
What about case that support a residential defence case?

Has not yet been started

Sorry I meant the 'cases' that support a residential defence case - like:

Saeed v Plustrade
PACE v Noor
Link v Parkinson
Jopson v Homeguard (this one was on appeal, decided by a higher level Judge)

All the above are easy to Google & find in the Parking Prankster's case law pages, and of course you will need to sit down & read them to see how and if they support your case.

Here is a really concise WS example by bargepole showing the headings/ending:

https://forums.moneysavingexpert.com/discussion/comment/74683179#Comment_74683179

HTH