Is it too late?

whitepatch

Coupon-mad wrote: »

The evidence and WS is very sparse and the landowner contract has the signatory redacted, it's not dated, and does not look like a 2011 agreement. Looks as mocked up as the 'PCN' reprint rubbish.

It's also signed (anonymously) by a Managing Agent who may or may not have been the MA in 2011 when they say the contract started...pre-POFA then, when UKCPM were clampers.

There are also no definitions, times and days of enforcement, nothing about the agreement of what UKCPM are to do and who is responsible for what, and nothing in evidence to show whether there is a chain of authority from the landowner allowing this enforcement years later in 2016.

The photos show no signs in view, and what looks like a bay, plus the words 'NO PARKING' but no contract.

Plenty of the bays and roads are not within UKCPM's remit as per their own evidence and there is nothing to show exactly where within the mixed harbour estate, the car actually was, and it certainly was not near any UKCPM sign or the ticketer would have photographed it.

Is that the full extent of their photo evidence? No signs in situ?!

I sent a pm to this OP - advised her to use Jopson (re the loading) and Bull (re the prohibition on parking).

The stuff regarding their contract with the landowner is great, i am just rewording my OH's defence. My head hurts!!

Yes that is the only evidence they are submitting, i have not received anything else. No signs in situ at all. There is nothing around the area either. The nearest sign is on a wall facing away (kind of diagonal to the path), about 50 metres away, behind a massive bush!

i am trying to rebut their points but i am not sure if the WS is too long, i am up to 6 pages!

Coupon-mad

You could respond and say paras xx to xx are irrelevant because the CCJs have already been set aside, but that you would like to respond to show that there was no fault, and that when it comes to the matter of costs, there has been unreasonable conduct by the Claimant and that you should be awarded the £255 fee and both sets of costs for attending two hearings, against the Claimant.

- Not updating a driving licence very quickly is not something that affects a Parking Firm, who have no right to driving licence data anyway. Thus, para x is irrelevant.

- The Claimant has admitted that they used a tracing agent, who found a newer address very quickly, but that they sent just one letter to that address, then for no justifiable reason, decided to revert to the older address despite knowing this also had obtained no reply! The default position in making reasonable efforts to locate a person should never be to revert to the older address, and to ignore the tracing agent's more up to date information. This is wholly unreasonable conduct, designed to deliberately obtain two CCJs and hope to force a Defendant to have to pay over £600 with no hope of defending them. An abuse of the court process as found by the Government, directly caused by parking firms and other rogue firms:

http://parking-prankster.blogspot.com/2016/12/government-announce-ccj-review-due-to.html

https://www.gov.uk/government/news/new-measures-to-protect-consumers-from-debt-claims

I suggest splitting your legal points into a skeleton argument, including the transcripts of Jopson and Bull.

Skeletons are explained in the NEWBIES thread. A WS should not really contain case law or legal argument, the WS should be the 'story' in the first person.

whitepatch

Coupon-mad wrote: »

You could respond and say paras xx to xx are irrelevant because the CCJs have already been set aside, but that you would like to respond to show that there was no fault, and that when it comes to the matter of costs, there has been unreasonable conduct by the Claimant and that you should be awarded the £255 fee and both sets of costs for attending two hearings, against the Claimant.

- Not updating a driving licence very quickly is not something that affects a Parking Firm, who have no right to driving licence data anyway. Thus, para x is irrelevant.

- The Claimant has admitted that they used a tracing agent, who found a newer address very quickly, but that they sent just one letter to that address, then for no justifiable reason, decided to revert to the older address despite knowing this also had obtained no reply! The default position in making reasonable efforts to locate a person should never be to revert to the older address, and to ignore the tracing agent's more up to date information. This is wholly unreasonable conduct, designed to deliberately obtain two CCJs and hope to force a Defendant to have to pay over £600 with no hope of defending them. An abuse of the court process as found by the Government, directly caused by parking firms and other rogue firms:

http://parking-prankster.blogspot.com/2016/12/government-announce-ccj-review-due-to.html

https://www.gov.uk/government/news/new-measures-to-protect-consumers-from-debt-claims

I suggest splitting your legal points into a skeleton argument, including the transcripts of Jopson and Bull.

Skeletons are explained in the NEWBIES thread. A WS should not really contain case law or legal argument, the WS should be the 'story' in the first person.

Okay so i am finding this really hard! i feel like i have written it all wrong as i have tried to produce evidence in the defence part of the witness statement which supports my oh's actions.

I really don't understand the skeleton arguement?? i have worked on this all day, and read so much. I might just post what i have got and then it can get ripped to pieces?

Coupon-mad

Yes post what you have got as you have worked hard on it!

whitepatch

IN THE COUNTY COURT AT: xxxxxxxxx

UK-Car park Management Ltd (Claimant)

And

MR XXXXXXXXX (Defendant)

CLAIM No: XXXXXXXX

WITNESS STATEMENT


1. I am XXXXXXX and I am the defendant in this matter. I assert that I am not liable to the Claimant for the sum claimed, or any amount at all, for the following reasons:

DEFAULT JUDGMENT

2. I understand that the claimant obtained a default judgment against me on 19 September 2018 and 21 November 2017 which have been the subject of two concurrent set aside applications. The two default judgements were set aside as stated in the order dated 21st February 2019. In the witness statement (WS) provided to me by Sophie Fenn on behalf of UK-Car Park Management she refers to the reasons why the default judgements were obtained in the first place, I reject these explanations as this has already been dealt with on the 19th February 2019 at the set aside hearing and the judge had ruled in my favour; that I was at no fault, therefore her explanations are too late. Points 8, 9, 10 and 12 of their WS attempt to explain but are irrelevant and have already been ruled on, the court must disregard these.

2.1. The Claimant has admitted that they used a tracing agent, who found a newer address after already obtaining one default judgement, but that they sent just one letter to that address, then for no justifiable reason, decided to revert to the older address despite knowing this also had obtained no reply. The default position in making reasonable efforts to locate a person should never be to revert to the older address, and to ignore the tracing agent's more up to date information. This is wholly unreasonable conduct, designed to deliberately obtain two CCJs and hope to force a Defendant to have to pay nearly £600 with no hope of defending them.

2.2. When it comes to the matter of costs, there has been unreasonable conduct by the Claimant and that I should be awarded the £255 fee for each set aside (£510) and both sets of costs for attending two hearings, against the Claimant.

DEFENCE
3. The alleged incident occurred on the 26/02/2016 and 03/08/2016 at XXXXXXXXXXXXXXXXX. When the tickets were issued; I was temporarily stopped and unloading, in what used to be (according to the lines still present) visitors parking spaces in an unpaved, complete dead end. In Saeed v Plustrade Ltd [2001] EWCA Civ 2011 it was found the managing agent could not reduce the amount of parking spaces available to residents.

3.1. At that time of night there are no spaces left and it is the only place to stop without obstructing other residents to unload a car full of shopping, bags etc and a toddler. I have to do this daily so to be stopped twice in 3 years of living at that address would not be unusual. The flat I resided in was on the second floor. The car was left for no longer than 4 minutes which is a reasonable time to stop (Jopson v Homeguard [2016] B9GF0A9E). The photos I have received from the claimant are taken no more than 3 and 4 minutes apart. There are no signs in this area, and certainly none visible at night. See photos attached.

4. Point number 4 of the claimants Witness Statement (WS). The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation. The claimant has only provided details of paperwork between Chamonix Estates Ltd (the management company) and UK-Car Park Management. Nothing provided is from the landowner.

4.1. The signatory for Chamonix Estates Ltd has also been redacted, so it is unclear if this person is authorised to give such permissions.

4.2. I further submit that this isn’t the original contract or certainly not the full contract; there are no definitions, times and days of enforcement, nothing about the agreement of what UKCPM are to do and who is responsible for what, and nothing in evidence to show whether there is a chain of authority from the landowner allowing this enforcement years later in 2016. Sussex Wharf is a big place and according to their own map has council owned land within it.
5. Addressing points 5 & 6 of the claimants WS. The residents car park does indeed display unclear, ambiguous, inadequate and lack of International Parking Community (IPC) compliant signage. Therefore making it very difficult to understand where you can park and where not. (pictures attached). In Link Parking v Mr L C9GF5875 [2016] it was found that there was no entrance signage at a residential site and the other signage was not visible. The claim was dismissed. In PCMUK v Bull et al B4GF26K6, which the court found was “forbidding” wording and made no offer so was not capable of creating a contract

5.1. Sophie Fenn in her witness statement on behalf of UK-Car Park Management, states in point 4, that her attached site plan shows where the location of the signs are. She has outright lied in her Witness Statement as can be seen from the photos I have taken which are also attached, there are no signs in the area I have parked, although she states that the red dot indicates a sign is present. This is wholly untrue.

5.2. It is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

6. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. They merely state that vehicles must be parked correctly within their allocated parking bay, giving no definition of the term 'correctly parked', nor indicating which bays are allocated to whom.

7. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract. 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.

8. I further believe that the original parking charge notice has no merit and should thus be dismissed. The claimant is a parking company which seeks to claim for parking charge notices which the claimant believes are due as a result of an alleged breach of contract for parking by a driver.

8.1. Point 7 of the claimants WS. The PCNs just say 'Sussex Wharf' which is a huge area, some of which is Council enforced on the roads and some is not allowed to be ticketed on (as per their own evidence where it shows a map). The photos don't show where the car was, at all, nor any sign in sight, so I submit this was a bay where ticketing was not enforceable. This is indicated by the lack of paved road, whereas the council road which is not enforceable is tarmacked similar to the area in the claimants photos of my car.

9. There are no terms within the Defendant's 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, for non-display of same, and there is a large body of case law which establishes this.

9.1. 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. 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.

10. In the claimants WS, point 11 In Jopson v Homeguard [2016]B9GF0A9E] on appeal it was found that the parking company could not stop the tenants right to temporarily stop near the building for loading/unloading. Merely to stop a vehicle cannot be to park it; otherwise traffic jams would consist of lines of parked cars. Delivery vans, whether for post, newspapers, groceries, or anything else, would not be accommodated on an interpretation which included vehicles stopping for a few moments for these purposes.

10.1. Further to this, I have attached a map detailing available parking when residents parking is full, it is a good few minutes walk. It is unreasonable to say that a resident cannot unload their car remotely near where they live.

10.2. In point 15 of Sophie Fenn’s Witness Statement, she quotes: “Court to Judge Hegarty’s comments in ParkingEye v Somerfield (2011) that “If this is the price payable for the privilege, it does not seem to me that it can be regarded as a penalty,even though it is substantial and obviously intended to discourage motorists from leaving their cars on the car park”.” I don’t understand the relevance to this case, as, why would UK-CPM whom are supposed to be managing the area on behalf of residents for the residents, want to discourage residents to park or be able to unload near their home. Would this not be contrary to the purpose of their involvement in this area. From the residents permit on my car windscreen (top right corner) as shown in their poor quality photographs it clearly shows I am a resident, and not someone who shouldn’t be on this site. It is possible to draw a real and sensible distinction between pausing for a few moments or minutes to enable passengers to alight or for awkward or heavy items to be unloaded, and parking in the sense of leaving a car for some significant duration of time.

11. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £60, for which no reasonable calculation, explanation or proof is given, and which appears to be an attempt at double recovery. Which I submit these costs have not actually been incurred by the Claimant unless proved.

12. In Jopson v Homeguard [2016]B9GF0A9E] on appeal it was found that the parking company could not stop the tenants right to temporarily stop near the building for loading/unloading. Merely to stop a vehicle cannot be to park it; otherwise traffic jams would consist of lines of parked cars. Delivery vans, whether for post, newspapers, groceries, or anything else, would not be accommodated on an interpretation which included vehicles stopping for a few moments for these purposes.

12.1. Further to this, I have attached a map detailing available parking when residents parking is full, it is a good few minutes walk. It is unreasonable to say that a resident cannot unload their car near where they live.

12.2. In point 15 of Sophie Fenn’s Witness Statement, she quotes: “Court to Judge Hegarty’s comments in ParkingEye v Somerfield (2011) that “If this is the price payable for the privilege, it does not seem to me that it can be regarded as a penalty,even though it is substantial and obviously intended to discourage motorists from leaving their cars on the car park”.” I don’t understand the relevance to this case, as, why would UK-CPM whom are supposed to be managing the area on behalf of residents for the residents, want to discourage residents to park or be able to unload near their home. Would this not be contrary to the purpose of their involvement in this area. From the residents permit on my car windscreen (top right corner) as shown in their poor quality photographs it clearly shows I am a resident, and not someone who shouldn’t be on this site. It is possible to draw a real and sensible distinction between pausing for a few moments or minutes to enable passengers to alight or for awkward or heavy items to be unloaded, and parking in the sense of leaving a car for some significant duration of time.

13. I further submit that the parking charge notice is without merit due to substantial issues in law. This is for the following reasons:

a. Lack of Standing by Claimant: The claimant or Chamonix Estates is not the landowner of the residents car park in question and will have no proprietary interest in it. The “contract” provided as evidence by Sophie Fenn, is between Chamonix Estates and UK-Car Park Management, not the actual Landowner. This means that the claimant, as a matter of law, will have no locus standi to litigate in their own name. Any consideration will have been provided by the landholder and only they would have been able claim for any damages or trespass.

b. No Loss Suffered by Claimant: Their claim is presumably based on damages for alleged breach of contract. It is a fundamental principle of English Law that a party who suffers damages through breach of contract can only seek through court action to be put back in the same position as they would have been if the breach had not occurred. In order to do so they must demonstrate their actual or genuine pre-estimate of loss. I submit that no loss has been suffered by the claimant as a result of any alleged breaches of contract on the part of any driver of the vehicle of which I was the registered keeper. I further submit that any loss to the landowner (which would be the only party able to claim such losses) would be minimal. In Jopson v Homeguard [2016] B9GF0A9E it was established that ParkingEye vs Beavis[2015] UKSC 67 does not apply to residential parking, and this will therefore bring the penalty doctrine back in play. The charge will therefore likely be a penalty and unfair consumer charge unless it is found the charge is a pre-estimate of loss or there is commercial justification. Charging £100 to residents who stay less than 10 minutes to load is unreasonable and is not a genuine pre-estimate of loss.

c. The Charge is an Unenforceable Penalty: I further submit that the parking charge is nothing but an unenforceable penalty as it is not based on any loss suffered due to the alleged infraction.

d. No Contract with the Claimant: Any contract must have offer, acceptance, and consideration both ways. There would not have been consideration from the claimant to the driver. Therefore, there is no consideration from the driver to UK Car Park Management Ltd.

14. Sophie Fenn makes much of the Beavis case, yet UK-CPM are well aware that the circumstances of the Beavis case were entirely different. Essentially, that case was about the abuse of a free, time-limited public car park where signage could be used to create a secondary contract arising from a relevant obligation and where there was a 'legitimate interest' flowing from the landowner, in charging more than could normally be pursued for trespass.

14.1. In this case, we have an authorised user using the car park appropriately and there has been no loss nor detriment caused to the owner. While the courts might hold that a large charge might be appropriate in the case of a public car park, essentially as a deterrent, there is nothing in the case to suggest that a reasonable person would accept that this 'fine' is a conscionable amount to be charged under these circumstances.

14.2. At the Supreme Court in Beavis, it was held at 14: ''…where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty… ''

14.3. This is NOT a 'more complex' case by any stretch of the imagination. At 32 in the Beavis decision, it was held that a trader, in this case a parking company: ''...can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''

14.4. Therefore, any putative contract needs to be assessed on its own merits. Consumer law always applies and no contract “falls outside” The Consumer Rights Act 2015; the fundamental question is always whether the terms are fair:

http://www.legislation.gov.uk/ukpga/2015/15/schedule/2/enacted

- Schedule 2: 'Consumer contract terms which may be regarded as unfair':
’’A term which has the object or effect of inappropriately excluding or limiting the legal rights of the consumer in relation to the trader or another party in the event of total or partial non-performance or inadequate performance by the trader of any of the contractual obligations…’’
''A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation.''

14.5. This charge is clearly punitive and is not saved from breaching the 'penalty rule' (i.e. Lord Dunedin's four tests for a penalty) by the Beavis case, which does NOT supersede other defences. It turned on completely different facts and related only to that car park with its own unique complexity of commercial justification. This case is not comparable.

14.6. In this case the specific question is whether a reasonable person would agree to a term where parking in a place that they enjoy rights of way and easements and pay a significant rent for the privilege of peaceful enjoyment would also accept a further unknown/not agreed liability. I would suggest that a court would not accept this is reasonable and indeed my next appeal point shows that a Senior Circuit Judge in a 2016 appeal case supports my view.
14.7. As decided by the Appeal case of 'JOPSON V HOME GUARD SERVICES' case number: B9GF0A9E on 29th June 2016, which held that the Beavis case does not apply to this sort of car park.

14.8. In Beavis it was held that the purpose of a parking charge must not be to penalise drivers. Justification must depend on some other 'legitimate interest in performance extending beyond the prospect of pecuniary compensation flowing directly from the breach in question'. The true test was held to be 'whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest in the enforcement of the primary obligation'.

15. There can be no legitimate interest in punishing authorised loading/unloading, under the excuse of a 'parking' scheme where ostensibly - and as far as the landowner is concerned - the parking firm is contracted for the benefit of the leaseholders/landholders/tenants. It is unconscionable, contrary to the requirement of good faith and 'out of all proportion to any legitimate interest' to issue a parking penalty for permitted unloading/loading by a driver who has legitimate business and rights to do so.

15.1. These rights supersede any signs, which are of no consequence except to deter rogue unwanted drivers from leaving their vehicles when they have no business on site. This is true of any residential or business car park where tenants/leaseholders (who may be individuals or businesses) enjoy legal 'rights of way' which extend to drivers permitted to load/unload. A third party cannot unilaterally alter the terms of a tenancy agreement or a lease, nor disregard easements and rights of way that prevail in such car parks (residential or industrial).

15.2. This question was tested recently in an Appeal case in June 2016 'JOPSON V HOME GUARD SERVICES' case number: B9GF0A9E. Please note this is an Appeal case, decided by a Senior Circuit Judge and as such, its findings on the definition of 'parking as opposed to loading' and the findings on leaseholder/permitted visitor/loading/delivering rights of way superseding parking signs, are persuasive on the lower courts.

15.3.Beavis did not deal with any of these matters - nor was it relevant to a 'permit' car park - but the following case and transcript I have provided, is relevant and the Judge even states that Beavis DOES NOT APPLY to this type of car park:

Appeal case at Oxford County Court, 'JOPSON V HOME GUARD SERVICES' case number: B9GF0A9E on 29th June 2016:

‘Sitting in Oxford County Court, Judge Charles Harris QC, found that Home Guard Services had acted unreasonably when issuing a penalty charge notice to Miss Jopson, a resident of a block of flats who parked in front of the communal entrance to unload furniture, rather than use her own parking space. After an initial appeal to the Independent Parking Committee was rejected, Home Guard Services sued Miss Jopson in the small claims court and won. Miss Jopson successfully appealed the case, her solicitors arguing that the charge was incompatible with the terms of the existing lease which also extended to certain rights for permitted visitors when loading/unloading. The Judge found that Laura Jopson and her fellow tenants (as well as people making deliveries or those dropping off children or disabled passengers) enjoy a right of way to the block’s entrance and that Home Guard Services’ regulations disregarded these rights. Home Guard Services were required to pay £2,000 towards the defendant's costs.’

16. I also rely upon the Croydon Court decision in Pace Recovery and Storage v Mr N C6GF14F0 16/09/2016 (transcript attached as evidence)

‘District Judge Coonan dismissed the claim and refused leave to appeal, stating: ''I have to deal with this on the evidence that is before me now. I have before me a tenancy agreement which gives Mr [N. redacted] the right to park on the estate and it does not say “on condition that you display a permit”. It does not say that, so he has that right. What Pace Recovery is seeking to do is, unilaterally outside the contract, restrict that right to only when a permit is displayed. Pace Recovery cannot do that. It has got to be the other contracting party, Affinity Sutton, which amends the terms of the tenancy agreement to restrict the right to park on a place in circumstances in which a permit is displayed but that is not in this tenancy agreement and you as a third party cannot unilaterally alter the terms of the tenancy agreement.''’

17. On this basis I believe that the claimant has not provided any reasonable cause of action and thus the claim should be dismissed in its entirety and to allow costs as are permissible under Civil Procedure Rule 27.14.


Statement of Truth:
I believe that the facts stated in this Witness Statement are true.

whitepatch

Hi All,

Can i get any feedback on the above? i need to file it with the court tomorrow (Friday)

Thank you!!

Le_Kirk

I am not sure that you can use GPEOL as that is an old argument - check out other posts on here where posters have used it. Also you need to provide identification references when you are referring to evidence so that the judge can find it in your evidence bundle for example, I refer to a site map ref. WP002 and then when you provide your ring binder with all your documents in you have a tab marked WP002. Search for ring binder in the forum.

whitepatch

Le_Kirk wrote: »

I am not sure that you can use GPEOL as that is an old argument - check out other posts on here where posters have used it. Also you need to provide identification references when you are referring to evidence so that the judge can find it in your evidence bundle for example, I refer to a site map ref. WP002 and then when you provide your ring binder with all your documents in you have a tab marked WP002. Search for ring binder in the forum.

Okay. Sorry what do you mean by GPEOL?

Okay I will do, I am submitting electronically. But do you mean for my oh to take on the day?

Le_Kirk

b. No Loss Suffered by Claimant: Their claim is presumably based on damages for alleged breach of contract. It is a fundamental principle of English Law that a party who suffers damages through breach of contract can only seek through court action to be put back in the same position as they would have been if the breach had not occurred. In order to do so they must demonstrate their actual or genuine pre-estimate of loss.

This is from your Witness Statement 13.b.

It is always recommended to deliver to the court a ring binder containing your bundle. This is from a post by Coupon-mad (search this forum for ring binder and user name Coupon-mad.

Take it all with you on the day.

Email the WS and evidence to the Claimant and take a printed copy to the court.

Mark on the front on the contents page, or the front of a ring binder file, the claim number, your name and the hearing date and time and make sure the Usher takes it, or points out the post box to put it in!

whitepatch

Le_Kirk wrote: »

This is from your Witness Statement 13.b.

It is always recommended to deliver to the court a ring binder containing your bundle. This is from a post by Coupon-mad (search this forum for ring binder and user name Coupon-mad.

Okay, i just thought as the case is residential it would apply?

Okay i shall do that, quite nervous!!