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Help with Court Claim - UK CPM
lawdrah
Posts: 19 Forumite
Hi there, apologies for the length of this post...
I've spent a chunk of time reading through the newbies thread and around the facts looking for relevant info to my case, so I hope that in posting this new thread I'm doing the right thing!
I received a PCN by mail dated 22.12.2017 in relation to parking on a 'private road' near my friend's house at 18:13 on 18.12.2017. They issued the PCN with 2 blurry photos, both of which are dated the same time (so no duration of stay is evident). The private street has no visible signage stating that it's managed by CPM when you enter the street, and when searched for after the PCN was issued I found the small sign with hard to read wording high up on the side of someone's house. It was dark when I parked and this sign was impossible to see.
I initially ignored this notice, but they continued to send letters which then went to DRP and on to Gladstones. I read up here about it but after several months with no further correspondence it had seemed to go away. However, in later September I suddenly received 2 letters in one pack saying Letter Before Claim from Gladstones which then were followed by an issuing of a Court Claim on 7th November which is why I'm here...
I should note that while I am the driver, the registered keeper (who is receiving these letters), is someone else. That person has not transferred liability to me.
Images of the street with signage and the PCN I will try to add below!
I have enrolled on MCOL and filed for AoS so that's fine, I just want to get my defense letter right! Here's my draft, any response would be appreciated including if you think this is overkill/too long etc (I had help from my friend who used a similar letter when fighting his PCN at court stage):
21.11.2018
In the County Court Business Centre
Claim Number:
Between:
UK Car Park Management Limited v
Defence Statement:
I am
, the Defendant in this matter and registered keeper of vehicle
. I currently reside at
.
I deny I am liable for the entirety of the claim for each of the following reasons:
1. The Claim Form issued on the 22nd of December 2017 by UK Car Park Management (CPM) was not correctly filed under The Practice Direction as it was not signed by a legal person (or bore any signature at all).
2. This Claimant has not complied with pre-court protocol. And as an example as to why this prevents a full defence being filed at this time, a parking charge can be for trespass, breach of contract or a contractual charge. All these are treated differently in law and require a different defence. The wording of any contract will naturally be a key element in this matter, and a copy of the alleged contract has never been provided to the Defendant.
a) This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The badly mail-merged documents contain very little information.
b) The Schedule of information is sparse of detailed information. The photographs presented are dark and blurry with no evidence of signage at the location. In addition both photographs were taken at the same time and do not show any period of time for when the car was meant to be parked there.
c) Defendant was not the driver of the vehicle at the time of the alleged incident, and therefore the Claimant’s case must be against the Defendant as the Registered Keeper of the vehicle.
d) The Defence therefore asks the Court to strike out the claim as having no reasonable prospect of success as currently drafted.
e) Alternatively, the Defendant asks that the Claimant is required to file Particulars which comply with Practice Directions and include at least the following information;
(i) Whether the matter is being brought for trespass, breach of contract or a contractual charge, and an explanation as to the exact nature of the charge
(ii) A copy of any contract it is alleged was in place (e.g. copies of signage)
(iii) How any contract was concluded (if by performance, then copies of signage maps in place at the time)
(iv) Whether keeper liability is being claimed, and if so copies of any Notice to Driver / Notice to Keeper.
The claimant’s wording suggests the Driver was the Keeper, which has not been established.
(v) Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter
(vi) If charges over and above the initial charge are being claimed, the basis on which this is being claimed
(vii) If Interest charges are being claimed, the basis on which this is being claimed
3. The Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012. Absent such a notice served within 14 days of the parking event and with fully compliant statutory wording, this Claimant is unable to hold me liable under the strict ‘keeper liability’ provisions.
Schedule 4 also states that the only sum a keeper can be pursued for (if Schedule 4 is fully complied with, which it was not, and if there was a 'relevant obligation' and relevant contract' fairly and adequately communicated, which there was not as there was no clear, transparent information about how to obtain a permit either inside or outside the site) is the sum on the Notice to Keeper. They cannot pluck another sum from thin air and bolt that on as well when neither the signs, nor the NTK, nor the permit information mentioned a possible £245.35 for outstanding debt and damages.
4. The Claimant has added unrecoverable sums to the original parking charge. It is believed that the employee who drew up the paperwork is remunerated and the particulars of claim are templates, so it is simply not credible that £50 'legal representative’s (or even admin) costs' were incurred. I deny the Claimant is entitled to any interest whatsoever.
5. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr. Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. None of this applies in this material case.
6. In the absence of any proof of adequate signage that contractually bound the Defendant then there can have been no contract and the Claimant has no case.
a) The Claimant is put to strict proof that at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs.
b) In the absence of strict proof I submit that the Claimant was committing an offence by displaying their signs and therefore no contract could have been entered into between the driver and the Claimant.
c) Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case:
(i) Sporadic and illegible (charge not prominent nor large lettering) of site/entrance signage - breach of the POFA 2012 Schedule 4 and the BPA Code of Practice and no contract formed to pay any clearly stated sum.
(ii) Non existent ANPR 'data use' signage - breach of ICO rules and the BPA Code of Practice.
(iii) It is believed the signage and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Consumer Rights Act 2015 in requiring a huge inflated sum as 'compensation' from by an authorised party using the premises as intended.
(iv) No promise was made by the driver that could constitute consideration because there was no offer known nor accepted. No consideration flowed from the Claimant.
(v) The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.
d) BPA CoP breaches - this distinguishes this case from the Beavis case:
(i) the signs were not compliant in terms of the font, size, lighting or positioning.
(ii) the sum pursued exceeds £100.
(iii) there is / was no compliant landowner contract.
7. The Beavis case confirmed the fact that, if it is a matter of trespass (not breach of any contract), a parking firm has no standing as a non-landowner to pursue even nominal damages.
9. The charge is an unenforceable penalty based upon a lack of commercial justification. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim.
The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has sent a template, well-known to be generic cut and paste 'Particulars' of claim relying on irrelevant case law (Beavis) which ignores the fact that this Claimant cannot hold registered keepers liable in law, due to their own choice of non-POFA documentation.
The vague Particulars of Claim disclose no clear cause of action. The court is invited to strike out the claim of its own volition as having no merit and no reasonable prospects of success.
I confirm that the above facts and statements are true to the best of my knowledge and recollection.
Signed:
Date: 21st of November, 2018
I've spent a chunk of time reading through the newbies thread and around the facts looking for relevant info to my case, so I hope that in posting this new thread I'm doing the right thing!
I received a PCN by mail dated 22.12.2017 in relation to parking on a 'private road' near my friend's house at 18:13 on 18.12.2017. They issued the PCN with 2 blurry photos, both of which are dated the same time (so no duration of stay is evident). The private street has no visible signage stating that it's managed by CPM when you enter the street, and when searched for after the PCN was issued I found the small sign with hard to read wording high up on the side of someone's house. It was dark when I parked and this sign was impossible to see.
I initially ignored this notice, but they continued to send letters which then went to DRP and on to Gladstones. I read up here about it but after several months with no further correspondence it had seemed to go away. However, in later September I suddenly received 2 letters in one pack saying Letter Before Claim from Gladstones which then were followed by an issuing of a Court Claim on 7th November which is why I'm here...
I should note that while I am the driver, the registered keeper (who is receiving these letters), is someone else. That person has not transferred liability to me.
Images of the street with signage and the PCN I will try to add below!
I have enrolled on MCOL and filed for AoS so that's fine, I just want to get my defense letter right! Here's my draft, any response would be appreciated including if you think this is overkill/too long etc (I had help from my friend who used a similar letter when fighting his PCN at court stage):
21.11.2018
In the County Court Business Centre
Claim Number:
Between:
UK Car Park Management Limited v
Defence Statement:
I am
, the Defendant in this matter and registered keeper of vehicle
. I currently reside at
.
I deny I am liable for the entirety of the claim for each of the following reasons:
1. The Claim Form issued on the 22nd of December 2017 by UK Car Park Management (CPM) was not correctly filed under The Practice Direction as it was not signed by a legal person (or bore any signature at all).
2. This Claimant has not complied with pre-court protocol. And as an example as to why this prevents a full defence being filed at this time, a parking charge can be for trespass, breach of contract or a contractual charge. All these are treated differently in law and require a different defence. The wording of any contract will naturally be a key element in this matter, and a copy of the alleged contract has never been provided to the Defendant.
a) This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The badly mail-merged documents contain very little information.
b) The Schedule of information is sparse of detailed information. The photographs presented are dark and blurry with no evidence of signage at the location. In addition both photographs were taken at the same time and do not show any period of time for when the car was meant to be parked there.
c) Defendant was not the driver of the vehicle at the time of the alleged incident, and therefore the Claimant’s case must be against the Defendant as the Registered Keeper of the vehicle.
d) The Defence therefore asks the Court to strike out the claim as having no reasonable prospect of success as currently drafted.
e) Alternatively, the Defendant asks that the Claimant is required to file Particulars which comply with Practice Directions and include at least the following information;
(i) Whether the matter is being brought for trespass, breach of contract or a contractual charge, and an explanation as to the exact nature of the charge
(ii) A copy of any contract it is alleged was in place (e.g. copies of signage)
(iii) How any contract was concluded (if by performance, then copies of signage maps in place at the time)
(iv) Whether keeper liability is being claimed, and if so copies of any Notice to Driver / Notice to Keeper.
The claimant’s wording suggests the Driver was the Keeper, which has not been established.
(v) Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter
(vi) If charges over and above the initial charge are being claimed, the basis on which this is being claimed
(vii) If Interest charges are being claimed, the basis on which this is being claimed
3. The Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012. Absent such a notice served within 14 days of the parking event and with fully compliant statutory wording, this Claimant is unable to hold me liable under the strict ‘keeper liability’ provisions.
Schedule 4 also states that the only sum a keeper can be pursued for (if Schedule 4 is fully complied with, which it was not, and if there was a 'relevant obligation' and relevant contract' fairly and adequately communicated, which there was not as there was no clear, transparent information about how to obtain a permit either inside or outside the site) is the sum on the Notice to Keeper. They cannot pluck another sum from thin air and bolt that on as well when neither the signs, nor the NTK, nor the permit information mentioned a possible £245.35 for outstanding debt and damages.
4. The Claimant has added unrecoverable sums to the original parking charge. It is believed that the employee who drew up the paperwork is remunerated and the particulars of claim are templates, so it is simply not credible that £50 'legal representative’s (or even admin) costs' were incurred. I deny the Claimant is entitled to any interest whatsoever.
5. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr. Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. None of this applies in this material case.
6. In the absence of any proof of adequate signage that contractually bound the Defendant then there can have been no contract and the Claimant has no case.
a) The Claimant is put to strict proof that at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs.
b) In the absence of strict proof I submit that the Claimant was committing an offence by displaying their signs and therefore no contract could have been entered into between the driver and the Claimant.
c) Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case:
(i) Sporadic and illegible (charge not prominent nor large lettering) of site/entrance signage - breach of the POFA 2012 Schedule 4 and the BPA Code of Practice and no contract formed to pay any clearly stated sum.
(ii) Non existent ANPR 'data use' signage - breach of ICO rules and the BPA Code of Practice.
(iii) It is believed the signage and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Consumer Rights Act 2015 in requiring a huge inflated sum as 'compensation' from by an authorised party using the premises as intended.
(iv) No promise was made by the driver that could constitute consideration because there was no offer known nor accepted. No consideration flowed from the Claimant.
(v) The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.
d) BPA CoP breaches - this distinguishes this case from the Beavis case:
(i) the signs were not compliant in terms of the font, size, lighting or positioning.
(ii) the sum pursued exceeds £100.
(iii) there is / was no compliant landowner contract.
7. The Beavis case confirmed the fact that, if it is a matter of trespass (not breach of any contract), a parking firm has no standing as a non-landowner to pursue even nominal damages.
9. The charge is an unenforceable penalty based upon a lack of commercial justification. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim.
The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has sent a template, well-known to be generic cut and paste 'Particulars' of claim relying on irrelevant case law (Beavis) which ignores the fact that this Claimant cannot hold registered keepers liable in law, due to their own choice of non-POFA documentation.
The vague Particulars of Claim disclose no clear cause of action. The court is invited to strike out the claim of its own volition as having no merit and no reasonable prospects of success.
I confirm that the above facts and statements are true to the best of my knowledge and recollection.
Signed:
Date: 21st of November, 2018
0
Comments
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It seems I can't add any pics as I'm a new user! Hmm..0
-
the header and footer are incorrect, look at the recent BARGEPOLE posts where he has honed other defences
the header is DEFENCE (no STATEMENT)
the footer with the statement of truth is not correct either, too long
correct them for starters, then wait for other comments
host pics on tinypic and put a dead URL in your reply, changing http to hxxp0 -
Ah, thank you RedX..will correct them now!
Pics here:
hxxp://i64.tinypic.com/m7dpxv.jpg
hxxp://i66.tinypic.com/mhde0o.jpg
hxxp://i65.tinypic.com/f4ocxw.jpg
hxxp://i65.tinypic.com/5nkc28.jpg0 -
I should also add that the bay I was parked in was marked V1 which is for visitors to residents and not therefore linked to any particular houses and/or permits.0
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What did you make of all the other residential defence cases on here, including the win v UKCPM just posted here by bargepole today? Read his thread (no link needed) and you will see another person also beat the same PPC the same day on here!
Hopefully you've seen we see wins in 99% of cases on this forum and that you have read enough to know the arguments and cases to use.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
With a Claim Issue Date of 7th November, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Monday 10th December 2018 to file your Defence....issuing of a Court Claim on 7th November...
That's nearly three weeks away. Loads of time to produce a perfect Defence, but don't leave it to the very last minute.
When you are happy with the content, your Defence should be filed via email as described here:
1) Print your Defence.
2) Sign it and date it.
3) Scan the signed document back in and save it as a pdf.
4) Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
5) Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
6) Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
7) Wait for your Directions Questionnaire and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.0 -
Hi again & Happy New Year.
So my case continues... I have firstly received a letter in mid December following my submission of my defence letter (the case is marked defended on MCOL) from Gladstones with a copy of their Directions Questionnaire. In it they ask for a special direction so that the case is dealt with on paper and no mediation.
Yesterday I received the paperwork for my Directions Questionnaire which I now need to fill in and send back. Should I be requesting an oral hearing locally to me (and not to UKCP) and/or mediation? I'm guessing yes to the hearing and no to mediation.
Also, from looking at the FAQ post #2 is it too late for me to request a SAR from UKCP now, and/or is there anything else I should be sending off in my defence aside from the Directions Questionnaire? Any top tips at this stage for filling it in?
Thanks0 -
Please re-read item 7 in the list in post #7 above.
You can send a SAR to the Claimant at any time.
A response may be useful at Witness Statement and evidence time.0 -
Thanks KeithP. Have sent off for the SAR and I will send off the Directions Questionnaire tomorrow.0
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Hello again folks! So we've received notification of the court date for this case, which we requested moved to our local county court. The date is 2nd May, so the defence docs have to be submitted in the next few days..here's hoping it gets chucked out beforehand.
I just wanted to ask a question about road status before I write the defence. I've asked the local council about the status of the road and they have confirmed it is:
An un-adopted public highway. This means that the public have a right of access over this road, but it is privately maintainable highway (i.e. by the residents/developers).
Does this in theory mean that UKCPM have no rights to have issued the tickets, or can they? Also the very small sign on the side of this road isn't lit & it was dark when the parking happened (this is going into my defence).
FYI the road is a small street/place with a few houses on one side & no houses on the other with access only on one side (there are bollards at the bottom) and the residents had 'parking bays' painted on the surface in the style of a residents permit scheme, even though no scheme exists. The parking in question took place in the V1 bay - visitors bay - on this street.
Any help in constructing an iron strong defence would help!
Thanks0
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