[Defence Stage] UK CPM & Gladstones Residential Spot

BarraDisciple

Yes and I've linked two of them. Couldn't find much relatability in Jopson v Homeguard to be honest, or am I missing something?

In any case, before I print this out and bundle it up, is there anything else I should do to double/triple check I have everything I need? Do I need to bind the WS and the Exhibits together?

Here is the slightly amended version of the WS:

---- 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.

3. On the MM/MM/YYYY I found a Parking Notice Charge on the windshield of my car, which was parked in my allocated parking space. The Issue Reason stated on the notice was ‘Not Displaying a Valid Permit’ (Exhibit A - PCN).

4. In the days following the event, I proceeded to write an email to the car park’s managing agent AGENT NAME, asking for an explanation for this charge, since the contract I signed had no mention of penalties for not displaying a permit.

4.1 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.

5. The Particulars refer to the material location as XXX. As previously mentioned, I have since DD/MM/YYY, held legal title under the terms of a lease, to Parking Bay No. X at that location (Exhibit B – Lease).

5.1 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.

5.2 The car parking area contains allocated parking spaces demised to the residents.
Entry to the car park is by means of a key fob, of a type only issued to residents. Any
vehicles parked therein are, therefore, de facto authorised to be there.

5.3 I have, 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 me in any way, and their existence
does not constitute a legally valid variation of the terms of the lease. Accordingly, I deny
having breached any contractual terms whether express, implied, or by conduct.

5.4 My vehicle was clearly 'authorised' to be parked where it was, Had the Claimant
compared my car make and registration number to the list of allowed vehicles would’ve
indicated exactly that. I cannot accept to be charged an invoice for the lack of ‘process’
from the Claimant’s side. The Claimant's conduct in aggressive ticketing is, in fact, a
matter of tortious interference, being a private nuisance to all of the residents. In
this case, the Claimant continues to cause substantial and unreasonable interference
with my land/property, or the use or enjoyment of that land/property.

5.5 There is no licence to park that the Claimant can possibly offer that I do 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 I did not agree to such contractual terms,
just because a permit was imposed upon myself, with no opt-out offered.

6. 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 (Exhibit C), and I am unaware of any such vote having been passed by my fellow residents.

6.1. The Claimant has not complied with the pre-court protocol which binds all litigants
equally. No initial information was sent to me 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.

6.2 I would like to ask the court to consider Para 4 13-15 on non-compliance, sanction
and point 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.

7. 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.

8. As shown on the case of Pace v Mr N [2016] C6GF14F0 [2016] (Exhibit E) it was found that the parking company could not override the tenant's right to park by requiring a permit to park. The same was found in Link Parking v Ms P C7GF50J7 [2016] (Exhibit F) it was also found that the parking company could not override the tenant's right to park by requiring a permit to park.

8. 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 (Exhibit G), 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.

9. For all or any of the reasons stated above, the Court is invited to dismiss the Claim in its entirety, and to award me 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, I aver that this inflation of the considered amount is a gross abuse of process.

10. 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.

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

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

………………………………………………………. (Defendant)


……………………… (Date)

Coupon-mad

I stopped reading at this Americanism, and it will also jar with a Judge I'm sure:

windshield

:eek:

But then I carried on reading and it's a very good WS.

Remind us, are you a tenant or leasehold owner, and can you adduce any proof that you have an exclusive right or grant to use that bay (is there a map with your lease, or did you get an email saying 'your space is this one marked x)?

What does your lease or tenancy say about parking and if it's a tenancy and is silent about parking, how do you know you can park there? Think of what proof you can supply.

Couldn't find much relatability in Jopson v Homeguard to be honest, or am I missing something?

You are missing the fact it was a case heard on APPEAL (unlike the other two) and heard by a Senior Circuit Judge, thus it is persuasive on the lower county courts.

Turn your ad blocker off for a mo and read this link which explains it more simply:

https://www.miltonkeynes.co.uk/news/milton-keynes-woman-secures-landmark-victory-for-flat-tenants-in-parking-dispute-1-7459066

Even though the facts are not a perfect match, she had rights of way and the Judge found that the PPC's terms were incompatible with her lease/tenancy:

The Judge found that under the terms of the lease, Laura Jopson and her fellow tenants (as well as people making deliveries or those dropping off children or disabled passengers) have a right of way to the block’s entrance and that Home Guard Services’ regulations disregarded these rights.

James Couzens says: “My advice for any tenants who find themselves doing battle with a private parking firm is to read the terms of the lease that relate to parking and rights of way.”

Very important to put appeal cases under a Judge's nose, whereas he/she can ignore the other decisions in Noor and Parkinson, he/she can't ignore a finding at appeal that (in the most basic interpretation) ''tenants' rights trump signage'' and a PPC cannot disregard residents' rights.

BarraDisciple

I stopped reading at this Americanism, and it will also jar with a Judge I'm sure

Ha! Apologies, but I'm not writing in my first language I've changed it to windscreen!

Remind us, are you a tenant or leasehold owner, and can you adduce any proof that you have an exclusive right or grant to use that bay (is there a map with your lease, or did you get an email saying 'your space is this one marked x)?

What does your lease or tenancy say about parking and if it's a tenancy and is silent about parking, how do you know you can park there? Think of what proof you can supply.

I am a tenant, the tenancy is, as you said, silent about parking. The car park is managed by a third party agent with whom I signed the original contract (Exhibit B in the WS) and has no mention of penalties for not displaying a permit. As for your question on the grant to use that bay, an email with the contract is all I received. I might add that to the exhibit just in case.

I will definitely look into the Jopson case this evening, thank you very much!

Silly question: should the exhibit and WS bundle be two separate documents or bound together?

Le_Kirk

Search this forum using advanced search and Coupon-mad as user and ring binder as your search term, changing the radio button from threads to posts.

Coupon-mad

Not bound, nor separate.

Put it all in a nice ring binder file with a contents page and all pages numbered, and all evidence given an exhibit number.

As for your question on the grant to use that bay, an email with the contract is all I received. I might add that to the exhibit just in case.

Definitely include the email too, as evidence that what you received was silent about any permit scheme obligation or contractual terms applying, and they cannot be bolted on afterwards by a third party not in possession.

But does the contract only talk about the flat? Does it mention the parking space?

If not, is there anything else you can show that proves the bay IS allocated to you? Even just the original historical property advert from Rightmove or another site. It's probably findable by Googling.

You definitely need the Jopson case, purely because it was on appeal, and persuasive. Make sure you tell the Judge that if they are saying at your hearing: ''I don't have to follow these county court decisions'' - your reply would be:

''Sir/Madam...the Jopson case was on appeal, and thus it is persuasive...and the general message from it (even though the facts in that case were about rights of way and temporary unloading) is that parking operators cannot ride roughshod over rights enjoyed by residents in their leases or tenancy agreements. The residents have primacy of contract and third parties cannot interfere or add terms on unilaterally.''

BarraDisciple

Ring binder it is then.

But does the contract only talk about the flat? Does it mention the parking space?

If not, is there anything else you can show that proves the bay IS allocated to you? Even just the original historical property advert from Rightmove or another site. It's probably findable by Googling.

Yes, it only talks about the flat, there is no mention of the parking space whatsoever. I can show the parking lease and the original parking permit that states the parking bay number too. Reckon that should be enough!

You definitely need the Jopson case, purely because it was on appeal, and persuasive

Ok I will link it, but the only thing I could find was on the Parking Prankster's site and it's an 11 page summary, here is a link to it. Would I need to print the whole thing? It becomes a pretty substantial binder if I do the same for (links following) Pace vs Mr N (6 pages) and Link vs Parkinson (4 pages)!

I will definitely say that if the Judge mentions what you said, thank you!

Coupon-mad

Yes, sorry, you will have to print the whole 11 pages! You can see why you need a contents page. Maybe some coloured dividers as well.

And add these as exhibits too, you MUST show you enjoy the right to exclusive use of the parking bay, and the flat lease isn't enough on its own:

I can show the parking lease and the original parking permit that states the parking bay number too. Reckon that should be enough!

:T


P.S. Don't forget to do a costs schedule (you can include it in the file for the Judge - add it to the contents page) including your hours at £19 per hour (Litigant-in-Person rate), spent researching this matter and the applicable law and case law, and reading all the documents including their rubbish WS and evidence, missing out on family time...plus your loss of salary or loss of leave for attending court, and travel, and parking for the hearing.

Look at the examples in the NEWBIES thread, search it for 'Costs Schedule'. Look at the one by sassii, where he/she successfully claimed a FOUR figure sum as English wasn't their first language so reading & researching took a long time...

Hopefully you will get your own back and win, and get your costs awarded (ASK BEFORE YOU LEAVE THE HEARING).

Someone got £700 in costs this week but that requires a list of arguments as to how the Claimant's conduct has been UNREASONABLE throughout the case, such as lies in the Witness Statement, not following court directions, etc.

Oh, and email the WS and evidence/exhibits to Gladstones, no file for them.

Obviously you need a file for yourself with EVERYTHING in it, including your defence too, and a wage slip as proof of costs, and proof of emailing the WS & evidence to Gladstones (sometimes their reps lie, and tell the Judge the victim failed to serve it).

BarraDisciple

That's really helpful @Coupon-mad thank you so much!

I believe I have everything now. Just need to take it somewhere for binding.

Two more questions:

1) Can I leave the costs schedule out for now but bring it on the day of so I will have more time to do research on it?

Unfortunately, I underestimated how long this would take and I'm a few days away from the 14 days deadline for submission.

2) Is this order for the document correct?

- WS with numbered pages (1-5)
- Exhibit Content Index
- Exhibits with numbered pages as per Index (1-30)

I've copied the template for costs schedule from the beginner thread, but I can't find the one by sassii that you mentioned. Even looking for username>posts didn't work

Coupon-mad

Just need to take it somewhere for binding.

Go to WH Smith or a large Supermarket and buy two large ring binders (one for you). The WS an evidence should not be 'bound' or tied up in ribbon or anything like that.

Can I leave the costs schedule out for now but bring it on the day of so I will have more time to do research on it?

YES, as long as you then file & serve it to court & claimant 2 working days before.

Le_Kirk

BarraDisciple wrote: »

I've copied the template for costs schedule from the beginner thread, but I can't find the one by sassii that you mentioned. Even looking for username>posts didn't work

You have to be careful of case; it's Sassii