Letter Before Claim - SCS Law & UKPC - CASE WON!

DAngel

cant find the case law for DDJ Ellington in UKPC v Masterson B4GF26K6

I have all the others

Molts

cant find the case law for DDJ Ellington in UKPC v Masterson B4GF26K6

I can't find the case law for this either but according to the Prankster they lost this case on forbidding signage if that's any consolation! Seems strange then that they refer to it although we don't know in what context.

The Signage - No Offer

If the wording of the signage forbids parking, then there is no offer to park and therefore no contract.

This is clear from several cases. In PCM-UK v Bull et all B4GF26K6 [2016], residents were parking on access roads. The signage forbade parking and so no contract was in place. A trespass had occurred, but that meant only the landowner could claim, not the parking company.

In UKPC v Masterson B4GF26K6[2016] it was also found the signage was forbidding and so the matter was one of trespass. The parking company did not have standing to claim.

In Horizon Parking v Mr J C5GF17X2 [2016] it was also found the signage was forbidding and so the matter was one of trespass. The parking company did not have standing to claim.

Molts

http://parking-prankster.blogspot.com/2016/11/residential-parking.html

It looks like yours is a residential case so all/some of this may be useful to you. Bear in mind it's 3 years old now though.

Umkomaas

I’d copy the actual blogs in the absence of a court transcript. Not as good, but better than nothing as at least it outlines the background and reasons for the judgment.

Maybe the Judge will read them, maybe not. You don’t do yourself any harm in copying them to your WS - just look at all the totally unrelated guff the PPC throws into theirs.

Coupon-mad

- the vast majority of photos are taken in the pitch black and it is nigh on impossible to see where the car is parked, let alone any surrounding signage?!
- photo evidence of signage is poor - not taken in situ with the car (mostly), covered by shrubbery (in a couple of photos), and blurry.

Point that out, because it shows the terms were not clear, however:

- They talk in their WS about how i received 15 PCNs so MUST have known about the signage... any views on countering this?

Concentrate on your primacy of contract as a resident, and use the Landlord & Tenant Act as covered in lots of residential defences - plus state that UKPC were removed after complaints from residents, after littering windscreens of residents with PCNs like confetti, having tried to enforce terms that were not accepted and could not vary the rights and grants within your leases and tenancy agreements.

Also point out that the photos for each PCN only show the car for a couple of minutes, and it is your belief that these were times when you or a family member were quite likely unloading or briefly stopped to drop something into the flat, like in Jopson, and that this is part of normal life at a flat.

You'd be countering by saying that, in fact, UKPC caused a 'private nuisance' and interfered with your rights - and were kicked out because of it and this is ow a revenge claim for losing the contract at the site, and that they are suing other residents too, just to try to squeeze only out of the lost contract when they have no 'commercial justification' or 'legitimate interest'.

The main case among the ones you are talking about is Jopson because it is persuasive (it was heard on Appeal so is a level higher than your hearing, unlike the other cases - make sure your Judge is told this so he/she doesn't ignore the case) and it talks about how 'life in a block of flats would be impossible' (or similar words) if residents were hounded with PCNs every time they stopped even to unload something.

DAngel

@Umkomaas and @Molts - got the blogs, thanks for your help on that

@Coupon-mad

Concentrate on your primacy of contract as a resident, and use the Landlord & Tenant Act as covered in lots of residential defences - plus state that UKPC were removed after complaints from residents, after littering windscreens of residents with PCNs like confetti, having tried to enforce terms that were not accepted and could not vary the rights and grants within your leases and tenancy agreements.

L&T Act - I will have a look for more examples.

Also point out that the photos for each PCN only show the car for a couple of minutes, and it is your belief that these were times when you or a family member were quite likely unloading or briefly stopped to drop something into the flat, like in Jopson, and that this is part of normal life at a flat.

im aware of timestamp scamming - in my case however, most/all of the photographs are stamped at c.2/3/4am and on on a number of occasions - is loading/unloading really viable?

DAngel

another thing to note -
Just had a look back through my emails and found the letter from the resident's committee which was the start of the fight to say no to these scammers. However, this was against PCM, not UKPC. Snippet below:

You will be aware of the recent decision by our MA to appoint PCM to enforce our car parking, without any consultation with us as residents....
Any parking enforcement scheme cannot amount to an interference with the easement. The allocated car parking spaces and visitors spaces are not restricted to specific vehicles. They can be used by any of the category of people listed including the lessee, the flat occupiers, employees and visitors. So a scheme of parking enforcement based upon vehicles being issued tickets/parking charge notices would breach our lease terms and constitute an interference with the right to park.

This letter was sent November 2016 - AFTER all my PCNs and sadly no mention of UKPC.... at all. Thoughts? Worth using as evidence?

Also, according to SCS's bundle - UKPC were operating on the site from 2009 (one year before i moved in) yet I never saw a sign / anyone patrolling / any ticketing until 2014 (as far as my memory serves)

Coupon-mad

This letter was sent November 2016 - AFTER all my PCNs and sadly no mention of UKPC.... at all. Thoughts? Worth using as evidence?

Yes. And the fact a firm was operating in 2009 is irrelevant really as that would be prior to the POFA 2012 - when clamping was the done thing - and a contract would have had to have been re-done then.

DAngel

In the County Court at XXX

BETWEEN:
UK PARKING CONTROL LTD
Claimant
V

XXXX
Defendant

Claim no: XXX

Witness statement of XXX, Defendant

I am the Defendant in this matter, I am unrepresented, with no experience of Court procedures. If I do not set out documents in the way that the Claimant may do, I trust the Court will excuse my inexperience. Attached to this statement is a paginated bundle of documents to which I will refer.

In this Witness statement, the facts and matters stated are true and within my own knowledge, except where indicated otherwise.

1. I am the tenant of a property at XXXX and have been since February 2010.

2. Since living at the property, myself and all other tenants and visitors have always been entitled to park safely, respectfully and unobtrusively on the land both within and outside of marked bays, allocated bays, visitors bays and along the access roads including within laybys that are not marked by lines. No parking enforcement was ever needed and there was no reason to consider that any contravention had taken place.

3. There are no terms within my lease or tenancy agreement requiring tenants to display parking permits or park in a marked bay, or to pay penalties to third parties, such as the Claimant has averred and there is a large body of case law which establishes this. The Claimant has taken over the location and runs a business as if the site were a public car park, offering terms with £90 penalties on the same basis to residents, as is on offer to the general public and trespassers. However, residents are granted a right of way in the lease and parking terms cannot be re-offered as a contract by a third party. This interferes with the terms of lease, of which this parking firm is not a party to.
LEASE APPENDED AS EVIDENCE: E.1


3.1 In Pace v Mr N [2016] C6GF14F0 [2016] it was found that the parking company could not override the tenant's right to park by requiring a permit to park.
CASE APPENDED AS EVIDENCE: E.2

3.2 In Link Parking v Ms P C7GF50J7 [2016] it was also found that the parking company could not override the tenant's right to park by requiring a permit to park.
CASE APPENDED AS EVIDENCE: E.3

3.3 In Jopson v Homeguard [2016] B9GF0A9E, on appeal it was found that the parking company could not override the tenant's right to temporarily stop near the building entrance for loading/unloading.
CASE APPENDED AS EVIDENCE: E.4

4. I note the Claimant has included an ‘instruction to carry out work’ in their evidence bundle dated 8 July 2009. Yet there is no dated signature on this document and no other evidence, for example a dated photograph of signage, to prove that this is when the parking company started operation. On moving into the property in 2010, no signage existed anywhere. On contacting XXX to confirm the dates that UKPC were in operation, XXX of XXX (Previously XX Ltd) said “UKPC patrolled the yellow lines between the two sides of the development from 2014 up until 19th October 2017”.
EMAIL AS EVIDENCE: E.5

4.1 At no point did the Managing Agents remove the easements and rights of way already granted, and at no point did the Managing Agents seek authority to alter the lease to impose a parking regime and remove the unfettered parking rights and easements that had already passed to the me as a tenant.

4.2 Referring again to Pace v Mr N [2016] C7GF51J1, PACE came back again, this time claiming that clause 6.3 of the lease allowed the terms of the lease to be varied. The judge ruled that this clause required a month's notice to be given, and as this had not occurred, the point was moot. The claim, and 7 others relying on this, were dismissed.

4.3 A scheme introduced by the Management Company, and operated by the Claimant, constitutes a variation of the terms of the Lease. No such variation has ever been sought by the Management Company or agreed by me pursuant to s37 of the Landlord & Tenant Act 1987.
L&T ACT AS EVIDENCE: E.6

4.4 This act states that for any party to establish a right to impose unilateral terms which vary the terms of the lease, must have such variation approved by 75% of the leaseholders. At no stage during my 10 years of occupation has such a variation been proposed, nor voted on by the leaseholders. This degree of consensus is notoriously hard to achieve and it is averred the Claimant and it's client have simply not bothered, and merely set up some signs and imposed PCNs on people out of the blue. The Claimant's conduct in aggressive ticketing is in fact a matter of tortious interference, being a private nuisance to residents.

4.5 I again refer you to the case of Pace Recovery v Noor C6GF14F0 [2016] (E.2) where the Judge ruled that the parking company could not amend the terms of the tenancy agreement to bind a tenant, but rather that it would have to be the other party to the contract. This shows that, unless the Lease has been varied, a resident’s Lease takes precedence over any arrangement between the Management Company and a third-parking Parking Management Company.

a. in the absence of a variation to the Lease, the Lease has primacy of contract over any subsequent contract the Management Company has entered into with UKPC. In the case of Jopson v Homeguard 2016 BNGF0A9E the Judge ruled that unless the Lease has been varied, a resident’s Lease takes precedence over any arrangement between the Management Company and a third-parking Parking Management Company (E.4);

b. that the Claimant has no authority over the Leaseholders property, and that the Claimant has no authority to bring a claim. The Claimant does not own the land on which the vehicle was parked, nor do they have any interest in the land. Therefore, the Claimant lacks the capacity to offer parking. In the case of UKPC v Mr Aziz 2017 C2HW01A6 the Judge ruled that UKPC had no authority to override the Lease.

5. It is my belief that the operator’s signs cannot override the existing rights enjoyed by residents. Accordingly it is denied that:

5.1 there was any agreement between the Defendant and the Claimant.

5.2 the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

5.3 It is further denied that the signage is clearly displayed. The signs in this car park are not prominent, clear, lit well, or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself.
PHOTO OF SIGN VS BEAVIS SIGN APPENDED AS EVIDENCE: E.5

5.4 In addition, the largest wording present on the signage states “NO UNAUTHORISED PARKING” This signage is forbidding, and does not constitute an offer of a contract. The defendant will rely on the judgements of DDJ Ellington in UKPC v Masterson B4GF26K6[2016].
CASE APPENDED AS EVIDENCE: E.6

6. Costs on the claim-disproportionate and disingenuous

6.1 CPR 44.3 (2) states: ''Where the amount of costs is to be assessed on the standard basis, the court will –

(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and

(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.

6.2 Whilst quantified costs can be considered on a standard basis, this Claimant's purported costs are wholly disproportionate and do not stand up to scrutiny. In fact it is averred that the Claimant has not paid or incurred such damages/costs or 'legal fees' at all. Any debt collection letters were a standard feature of a low cost business model and are already counted within the parking charge itself.

6.3 The Parking Eye Ltd v Beavis case is the authority for recovery of the parking charge itself and no more, since that sum (£85 in Beavis) was held to already incorporate the minor costs of an automated private parking business model. There are no losses or damages caused by this business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages. It is indisputable that the alleged 'parking charge' itself is a sum which the Supreme Court found is already inflated to more than comfortably cover the cost of all letters.

6.4 Any purported 'legal costs' are also made up out of thin air. Given the fact that robo-claim solicitors and parking firms process tens of thousands of claims handled by an admin team or paralegals, the Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste claims.

6.5 According to Ladak v DRC Locums UKEAT/0488/13/LA a Claimant can only recover the direct and provable costs of the time spent preparing the claim in a legal capacity, not any administration costs allegedly incurred by already remunerated administrative staff.

6.6 The Protection of Freedoms Act 2012, Schedule 4 (POFA) at 4(5) makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant 'Notice to Keeper' (and the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is £100). The Claimant, or their legal representatives, has added an additional sum of £60 or £40 to each original £100 parking charge. 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.

6.7 Judges have disallowed all added parking firm 'costs' in County courts up and down the Country. In Claim number F0DP201T on 10th June 2019, District Judge Taylor sitting at the County Court at Southampton, echoed an earlier General Judgment or Order of DJ Grand, who on 21st February 2019 sitting at the Newport (IOW) County Court, had struck out a parking firm claim. One was a BPA member serial Claimant (Britannia, using BW Legal's robo-claim model) and one an IPC member serial Claimant (UKCPM, using Gladstones' robo-claim model) yet the Order was identical in striking out both claims without a hearing:
''IT IS ORDERED THAT The claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in ParkingEye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998...''
SCHEDULE 4 OF POFA APPENDED AS EVIDENCE: E.7

7. 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.
COSTS SCHEDULE APPENDED ON PAGE X
I believe that the facts stated in this Witness Statement are true.


Signature of Defendant:


Name:
Date:

DAngel

Bumping for final review on my WS please!

In particular, points 1-5 around Primacy of Contract