[Defence Stage] UK CPM & Gladstones Residential Spot

BarraDisciple

Hi guys, thanks for the advice.

I received and filled out the DQ. I don't have enough space for the D4 section (days not available for hearing). Does anyone know if it's possible to send it separately? Can I send an email to ccbc@justice.gov.uk?

The instructions on it are not helpful at all.

Thanks

nosferatu1001

Just use a covering letter, and refer to it from box d4

Coupon-mad

Can I send an email to ccbc@justice.gov.uk?

No, that's not the email addy KeithP gave you.

KeithP

Use the email address that you used for your Defence.

Not forgetting to send a copy, of both your completed DQ and the covering letter, to the Claimant - address on your Claim Form.

BarraDisciple

Hi everyone, here's an update on the matter:
After your much appreciated help (seriously, thank you all) I received a letter from the court with a court date and the usual 14-day deadline to submit my Witness Statement. I've done a fair bit of research and apparently the order in which I should do this is:

1. Create WS and Exhibit bundle
2. Send WS to Court and Gallstones
3. Draft Skeleton Argument (optional?)
4. Send Skeleton to Court and Gallstones

Is the above correct?

In the meantime, can you please check my WS below? it's a mix of the Defence Statement sent some time ago and links to the Exhibits. Not too sure about what and how many exhibits I need so please point any of that out if you see anything missing. Cheers!

---- WITNESS STATEMENT ----

IN THE COUNTY COURT Claim Number: 1234567

UKCPM Scammers LTD
(Claimant)
-AND-


XXXXXXXXX
(Defendant)


I, XXX, of XXX will say as follows:

Attached to this statement is a paginated bundle of documents marked XX1 to which I will refer.

1. I am the Defendant in this matter. I am an unrepresented consumer who has never attended the county court before. The facts in this statement come from my personal knowledge. Where they are not within my personal knowledge, they are true to the best of my information and belief.

2. I am the Registered Keeper of the vehicle in question on the XXth [Month] 201X and thereafter date.

2.1 The Particulars of Claim on the N1 Claim Form refer to 'Parking Charge(s)' incurred on MM/MM/YYYY. 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 XXX. The Defendant has, since DD/MM/YYY, held legal title under the terms of a lease, to Parking Bay No. X at that location (Exhibit A – Lease).

3.1 At some point, the managing agents contracted with the Claimant company to
enforce parking conditions the estate, but they are strangers to the lease and in common
with other residents, I was led to believe that the regime was intended to deter
trespassers. No 'relevant contract' or 'relevant obligation' was communicated to
residents, nor would I have accepted a contract foisted upon me with onerous terms and
charges.

3.2. 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.

3.3. The Defendant’s vehicle clearly was 'authorised' as per the lease and 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. In this case the Claimant
continues to cause a substantial and unreasonable interference with the Defendant’s
land/property, or the use or enjoyment of that land/property.

3.4 There is no licence to park that the Claimant can possibly offer that The Defendant
does not already have as an unfettered right. This Claimant is trying to run a home car
park like a commercial site, on the same punitive terms as a trespasser would be
charged. This would clearly be a derogation from grant and the Defendant did not agree
to such contractual terms, just because a permit was imposed upon, with no opt out
offered.

3.5 The claimant may argue that I parked outside of the allocated bay for loading. I refer
to the case of Jopson v Homeguard [2016] B9GF0A9E (Exhibit F), where 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.

4. 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.

4.1. The Claimant has not complied with the pre-court protocol which binds all litigants
equally. No initial information was sent to the Defendant for the following:
a) Full particulars of the parking charges
b) Who the party was that are contracted with the Claimant
c) The full legal identity of the landowner
d) A full copy of the contract with the landholder that demonstrated that the Claimant
had their authority
e) If the charges were based on damages for breach of contract and if so to provide
justification of this sum
f) If the charge was based on a contractually agreed sum for the provision of parking and
if so to provide a valid invoice for this 'service'

This information should have been provided pursuant to paragraph 6 of the Practice
Direction -Pre-Action Conduct.

4.2 The Defendant asks the court to consider Para 4 13-15 on non-compliance, sanction
and points out that there can be no reasonable excuse for the Claimant's failure to follow
the Pre-action Conduct process, especially bearing in mind that the Claim was issued by
their own Solicitors so they clearly had legal advice before issuing proceedings.


5. The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 (Exhibit D) 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 my 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.

6. 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.

7. 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 £XXX, the Defendant avers that this inflation of the considered amount is a gross abuse of process.

8. 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.

8.1. 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 cease wasting the court's time by bringing beleaguered residents to
court under excuse of a contractual breach that cannot lawfully exist.

9. Finally, having outlined my witness statement with supporting evidence, I encourage the court to strike out the claims against the Defendant as there are no sound grounds of claim and to grant compensation in accordance to the defendant cost of schedule (Exhibit E)

I believe that the facts stated in this witness statement are true.

………………………………………………………. (Defendant)


……………………… (Date)

Coupon-mad

Get rid of 8.1 as you are close to your hearing date and do not want a prelim hearing, nor does it make sense to ask for one now.

Change 'the Defendant' to ''I'' throughout, make it more like the story of the facts.

1. Create WS and Exhibit bundle
2. Send WS to Court and Gallstones
3. Draft Skeleton Argument (optional?)
4. Send Skeleton to Court and Gallstones

Is the above correct?

Yes.

Add to your exhibits, a copy of the L&T Act Section you refer to, so the Judge can be taken straight to it. What are your other exhibits?

BarraDisciple

Helpful as always Coupon-mad! I've deleted 8.1 as it didn't make much sense, also changed it to first person. Do you reckon it would be helpful to structure it in chronological order?

My exhibits are:
- Exhibit 1: Parking lease I have signed
- Exhibit 2: L&T Act section I mentioned
- Exhibit 3: ParkingEye v Beavis summary
- Exhibit 4: BPA Freedom Act

Would this be enough or am I missing something that's normally used?

I will repost the draft once I've changed it to chronological if need be.

Thank you!

Coupon-mad

Do you reckon it would be helpful to structure it in chronological order?

Whatever makes it nice & easy to follow, for the Judge, who you want onside.

Have you also got Jopson v Homeguard and (maybe) also PACE v Noor, and Link v Parkinson from the Parking Prankster's case law pages?

You don't need these:

Exhibit 3: ParkingEye v Beavis summary

NOT NEEDED - TOO BULKY TO PRINT, AND WELL KNOWN BY JUDGES ANYWAY, UNLESS YOU ARE JUST USING THE SINGLE PAGE TALKING ABOUT HOW THE PARKING CHARGE IS MAINLY PROFIT PLUS THE COST OF SOME LETTERS (TO SUPPORT THE CONTENTION THAT THEY CAN'T THEN ADD THE SAME 'LETTERS COSTS' ON AGAIN AS IF IT'S ADDITIONAL DAMAGES)?

- Exhibit 4: BPA Freedom Act

WHY? IF YOU ARE DEFENDING AS DRIVER? MAYBE YES IF YOU MEAN YOU WANT TO SHOW THE JUDGE THE BIT ABOUT CAPPING THE RECOVERABLE SUM ONLY AT THE SUM ON A NTK.

BarraDisciple

Thank you!

I haven't got the other cases you mentioned but could definitely add them. Just which of them should I add for what reason? So that I can add the right points to the ws.

Re ParkingEye v Beavis, I can drop that.

And the BPA bit is exactly just that section to show the capped amount.

I'll redraft it tomorrow and send it for feedback!

Coupon-mad

OK, and if you read the 3 transcripts (I told you where to find them) you will see you should use them all.