UK CPM Ltd / Gladstone Solicitors - LBC Received

m0nar0

Thanks @Coupon-mad, I very much appreciate your post!

I will take your comments and make some amendments to my WS! I still have another week until I need to submit it, so still some time.

Also, this morning I received the Claimants WS which appears very detailed (7 page WS with 25 pages of Exhibits), although I half expect this to be more intimidating that it needs to actually be! They appear to make plenty of references to the contract, my lease, including to exact wording in my lease (I was surprised they had sight of this in all honesty), and to other cases that on paper seem relevant (although I am yet to dig in to these).

EDIT: After re-reading the Claimants WS, they argue the following points:

• Landowner agreement
• Signage
• Claim they contacted the DVLA for my details (in fact I contacted them as my vehicle is a CC/leased)
• They do not mention the Debt collector
• Reference to specific lines in my lease (without providing a copy of the lease)
• Counter my argument of No Contract
• Refer to Alder vs Moore (1961)
• Reference ParkingEye vs Somerfield
• They counter the Double Recovery argument
• They argue they give permission to anyone to use the land due to the "nature of the land", as long as they comply with the contract. However this is private land, entered via a barrier/code combination

Also, I feel I am getting too hung up on their argument, rather than focusing on my own. Is it a balance between the two, or should I be looking to argue each of their points?

Thanks for all your help so far, feel free to PM if you want sight of the Claimants WS, I guess it won't show up anything new, but maybe something that might catch me out!

Coupon-mad

this morning I received the Claimants WS which appears very detailed

No, it doesn't. Like you will have read on all the other VCS claim threads:

SEARCH THE FORUM FOR A SURNAME THEY USE AS CASE LAW...e.g. 'Alder'.

That is all. Already been done to death several times over!

m0nar0

@Bargepole / Coupon-mad

In my WS I would like to use the transcript from UKCPM vs Niven as I see this has some very relevant information. I have not been able to find it on the forums (Coupon-Mad's link didn't work) and I also saw them reference you saying that you may have a copy?

Sorry to try and get hold of you this way, your inbox is full

Coupon-mad

Sorry, I can't recall UKCPM v Niven at all, and no idea if there's a transcript!

m0nar0

Hi folks,

I am planning to submit my WS statement tomorrow evening and have spent the afternoon modifying it to a state where I am fairly happy with it. I would appreciate a review, please let me know if you spot any blatant errors or omissions.

This has been taken and modified from a variety of others WS from this forum, those that I felt were most applicable to my case!

I have yet to properly number my Exhibits, and will do this once I reach a final draft of the WS. Plus, I will add a contents sheet to the front of the WS.

TIA!

###### WS Start #####


Witness Statement

1. I am ##### , of ######, the Defendant in this matter. I will say as follows:

2. I am the leasehold owner-occupier of the abovementioned property since ## October 2015 when the building was first converted to flats. See Exhibit X.

3. During the early hours of ## January 2018, a vehicle under my control, registration no ##### was parked in the area allocated to Flat ## within the boundary of the ##### car park. At ####h, a Parking Charge Notice (PCN) was unfairly issued to my vehicle by UK Car Park Management Ltd. Due to the amount of time elapsed, I am unable to recall who was driving the vehicle on the date of the alleged incident.

4. As per my Defence, I rely upon Schedule 5, Part 2 of Estate Regulations, Clauses 7-9 (page 37) found within the lease (Exhibit X), which relate to the use of the parking space and which do not state at any point that a valid parking permit be displayed:
a. Clause 7 - “Not to use the Parking Space other than for the parking of a private motor car or private motorcycle which has an MOT certificate if required and which is in the regular use of the Tennant or other occupier of the Property”.
b. Clause 8 - “Not to damage the Parking Space in any way and to keep it clean and tidy at all times”
c. Clause 9 - “Not to park any vehicles on the Estate Common Parts”

5. Also referring to my defence, I argue the following:
a. that the 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 - (Exhibit X). 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 4 years of occupation has such variation been proposed to, 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 permits upon 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. In the cases of Link Parking v Parkinson 2016 C7GF50J7 (exhibit X) the Judge, referring to a similar case in Pace Recovery v Noor C6GF14F0 [2016] (exhibit X) ruled that: “…the Judge in that case found 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.''. Both of these exhibits show that the Judges 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;
b. that, 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 (exhibit X);
c. 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.

6. In a comparable residential estate unfair private parking ticket case no. C7GF81FK in 2017, District Judge Britton at Aldershot & Farnham UKCPM v Niven dismissed the parking firm's contention that they were authorised to impose a parking scheme requiring permits at the estate, stating: ''It is simply not a case where, as the Supreme Court dealt with in Beavis v ParkingEye, there is a situation where the company which grants the right to administer a parking scheme has the sole right to say who can and cannot park on there and a situation where the freeholder or the landowner has not granted other rights over the land already. This is one where the freeholder has already granted a right to park and that cannot be affected or discharged without either a variation of the tenancy agreement, which has not happened, or a novation agreement involving all the people who were involved in this particular agreement. Therefore on that basis, there is a pre-existing right to park. Accordingly, I must dismiss the claim that basis.''

7. Furthermore, I draw your attention to the fact that the Managing Agent which contracted the Claimant, is not party to the lease, nor has a deed of variation been submitted in respect of this. This is supported by Exhibit X - the lease title and in addition an email (Exhibit X) dated 25th September 2019 from ##### Solicitors, the Freeholders solicitor, confirming this fact by stating “The management company as stated in the lease is ##### Block Management Limited however I have been informed that they have assigned their interest to ###### Property Management Limited. I am seeking sight of a deed in respect of this.”, to date no deed has been identified.

8. I also refer you to Section 56 and Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”), in particular to Paragraphs 7 regarding the formation of the parking contract. A parking contract must be formed in order for a parking charge to be recoverable. Neither a relevant obligation, nor relevant contract exists in this case and I am a resident and the driver was using this owned space under the terms of the leasehold title.

9. The unjustified imposition, applied in a secure car park where this is not needed or wanted, of onerous terms, restrictions, obligations and charges not set out in the lease, constitutes as substantial interference with the enjoyment of the leaseholder’s grant and property.

10. Upon receipt of the Parking Charge Notice, I took several actions:

a. I immediately contacted the claimant informing them that I was a leaseholder and that the charge should be voided
b. I also appealed via the International Parking Community (“IPC”), for which the claimant is a member of
c. I then contacted the acting Managing Agent (##### Property Management - although not party to the lease), and the Freeholder (######) in order to have this Parking Charge Notice voided in the knowledge that I am the Leaseholder of the parking space itself

11. It should be noted at this point that the ‘Independent Appeals Service’ (“IAS”), which the IPC utilises as its alternative dispute resolution (“ADR”), has a prominent reputation of biased rulings in favour of parking operators. Evidence supporting this assertion is readily available in the public domain, and appeals made by motorists through this service are largely futile. Unlike the equivalent service, offered by the BPA, ‘Parking on Private Land Appeals’ (POPLA), the IAS lacks any independent scrutinising body, and it defies the usual methodology of an ADR service by expecting the consumer (rather than the claimant) to bear the burden of proof, and by using anonymous ‘assessors’, contrary to usual ADR rules.
a. Statistics show that in the twelve months ending 31st March 2015, 52.65% of appeals made to POPLA were allowed, while 47.35% were refused. For the IAS, however, only around 20% of appeals were upheld, with the opposing 80% refused in favour of parking operators.
b. Crucially, the IPC, who utilise the IAS, is a company formed and directed by Misters Will Hurley and formerly John Davies, who, incidentally, are the same individuals who run Gladstones Solicitors (see Exhibits X,Y,Z - Companies House data), the claimant’s current representative (and a prolific agent working on behalf of parking management companies in the small claims court). Any opportunity of a fair review of one’s appeal under the IAS is absolutely lost, since it is clearly in the best interest of the IAS to refuse motorists their appeals, allowing Gladstones Solicitors to pick up the debts and take the cases to small claims court.

12. Therefore, I contend that no independent arbitration service was ever offered, and no reasonable efforts were made to resolve this dispute outside of court.

13. The Protection of Freedoms Act 2012, Schedule 4 (POFA) 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). This also depends upon the Claimant fully complying with the statute, including 'adequate notice' of the parking charge and prescribed documents served in time/with mandatory wording. It is submitted the claimant has failed on all counts and the Claimant is well aware their artificially inflated claim, as pleaded, constitutes double recovery.

14. 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 earlier General Judgment or Orders of DJ Grand, who (when sitting at the Newport (IOW) County Court in 2018 and 2019) has struck out several parking firm claims. These include a BPA member serial Claimant (Britannia, using BW Legal's robo-claim model) and an IPC member serial Claimant (UKCPM, using Gladstones' robo-claim model) yet the Orders have been identical in striking out both claims without a hearing, with the Judge stating: ''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...''

15. That is not an isolated judgment striking a parking claim out for repeatedly adding sums they are not entitled to recover. In the Caernarfon Court in Case number FTQZ4W28 (Vehicle Control Services Ltd v Davies) on 4th September 2019, District Judge Jones-Evans stated:

''Upon it being recorded that District Judge Jones-Evans has over a very significant period of time warned advocates [...] in many cases of this nature before this court that their claim for £60 is unenforceable in law and is an abuse of process and is nothing more than a poor attempt to go behind the decision of the Supreme Court v Beavis which inter alia decided that a figure of £160 as a global sum claimed in this case would be a penalty and not a genuine pre-estimate of loss and therefore unenforceable in law and if the practice continued he would treat all cases as a claim for £160 and therefore a penalty and unenforceable in law it is hereby declared [...] the claim is struck out and declared to be wholly without merit and an abuse of process.''

16. In summary, the Claimant's particulars disclose no legal basis for the sum claimed and it is the Defendant's position that the poorly pleaded claim discloses no cause of action and no liability in law for any sum at all. The Claimant's vexatious conduct from the outset has been intimidating, misleading and indeed untrue in terms of the added costs alleged and the statements made, in trying to justify the unjustifiable.

17. I also strongly argue that my right to peaceful enjoyment has been violated, and continues to be violated with the presence of UK Car Park Management operating, and penalising residents of #####.

18. In addition, Exhibit X is provided as further evidence of our right as a resident and leaseholder to park within the car park. This information, namely the barrier code, is only issued to residents of the building to ensure non-residents are disallowed from parking within the ##### car park.

19. 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. See Exhibit X

Statement of Truth

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

Signature
Date

##### WS End #####

1505grandad

Just a thought:-

Your para 6 (and possibly others) seems to be a straight copy of a para #19 in the thread of HeavyEvy at:-

https://forums.moneysavingexpert.com/discussion/6030014/claim-form-received-case-struck-out-remote-hearing

as follows:-

"5.1.2. In a comparable case no. C7GF81FK in 2017, District Judge Britton at Aldershot & Farnham in UKCPM v Niven dismissed the parking firm's contention that they were authorised to impose a parking scheme requiring permits at the estate, stating:................................."

However if you go on to page two para #28 the OP could not find the case either

m0nar0

Thanks 1505grandad!

Indeed, it seems it doesn't exist and just hearsay. I suppose I should remove this unless I can find actual evidence of the text?

m0nar0

Hi all,

Some good news to report. The hearing came and went two weeks ago and I'm glad to say I won. Firstly on the grounds that GS failed to give proper notice of intention to attend the hearing, but the judge also said my defence was strong enough anyway and the claimant had failed to address any of the points in my defence.

The judge also awarded me the costs I had claimed.

So it's now been two weeks since the hearing, and I have not received any documentation from the court (not sure if I am supposed to??), nor have I received my costs from the claimant (who were given 14 days to pay). Is this normal.... I'm guessing not.

I will contact the court on Monday and see if they can advise me of the next steps.

Thanks again for all your help MSE Parking Fines team, it is greatly appreciated!

Coupon-mad

Yay, ANOTHER ONE BITES THE DUST!

WELL DONE!

The Court should post out a short 'Judgment or Order' about the decision and costs, so chase that up, and why not email the parking firm to press them to cough up?!

You could even mimic their phrases and copy some of their wording they used on you over the months...I would.

Le_Kirk

A good win and thanks for coming back to tell the forum about it.