UK CPM and Gladstones strike again

sa1601

Hi everyone. Thanks for the fabulous forum. I am helping my son challenge a PCN issued by UK CPM. He owns a flat in a development and the allocated car bay, which is in a gated area accessed by using an electronic fob. His partner parked in the space as she has done for over 18 months. 12 days later she gets a PCN through the post. The offence was to display an invalid permit due to it being faded. My son appealed and was rejected. We are now at the court stage and writing the defence statement which is due in by 2nd Dec. I have used this site to get info and examples and I think it’s ready to go. Before sending I’d really appreciate any advice, comments and opinions on it. I also post in the hope it will help someone else.
Many thanks!
SJ

In the County Court Business Centre
Claim Number: xxxxxx
Between: UK Car Park Management v Dr X

Defence Statement
I am the defendant, Dr X, and I am the authorized registered keeper of the vehicle xxxxxxxx. I have lived at [address] with my partner for the past 18 months.
I am defending this claim as a litigant in person and being represented by my partner Mr. Y

Background
Some of the properties that comprise the XX development have allocated parking bays as part of ownership. There are in effect two cark parks. One is around the perimeter of the properties and accessible to any vehicle entering the development. The other car park is in the centre of the development and accessed only through a gate operated by an electronic fob. My partner, Mr Y (hereafter referred to as the Leaseholder) is the owner [address]. Parking bay Z is allocated to his flat, as set out in the Leasehold agreement and is in the enclosed residents’ parking area. The car is registered to the address above and has regularly parked in bay Z over the past 18 months with the full authority of the Leaseholder.

I deny I am liable for the entirety of the claim for the following reasons:

Section 1: The Claimant has no authority to claim

I deny that the Claimant has any authority over my partner’s property and I contend 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.
1.1 My partner’s ownership of car parking bay Z is set out in the Lease Agreement.

1.2 The Second Schedule in the lease sets out the Easement Rights and Privileges included in the Lease.
Schedule 2, Point 1 in the Lease states that the Leaseholder and all persons authorised by the Leaseholder have the right to use the common parts and any car park space allocated under the lease.
This is reinforced by Schedule 2, Point 7, which states that the Leaseholder has the right use the Parking Space (if any) allocated to the Premises (the Parking Space allocated at the time hereof being that shown edged blue on Plan 1).

1.3 The vehicle was parked on the property in accordance with the terms of the Lease. As the lease contains no clause requiring a permit to park, nor any clause requiring the Leaseholder, or those authorised by the Leaseholder to use the allocated car park space, to make payments to any third party who is a stranger to that lease, the issuing of the PCN is unlawful. Although a permit was left in the car as matter of routine, I argue that the Lease has primacy of contract over any restrictions the Claimant places on the land.

1.4 Recent cases have set clear precedence that my partner’s Lease has primacy of contract over any signage that the Claimant puts up, as per judgements in Claim B9GF0A9E Ms Jopson v Homeguard Service Ltd. [2016]; Claim C7GF51J1 Pace Recovery and Storage Ltd. vs Mr N - [2016] and Claim C7GF50J7, Link Parking v Ms P [2016].

1.5 In Jopson v Homeguard [2016] B9GF0A9E, 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. The judgement was that Homeguard Service Ltd. relied principally upon a notice which it had put up in various places after it had been engaged by Places for People Homes Limited in March 2013, and upon letters sent to tenants at a time before the claimant acquired the her flat. The notice made no reference to any rights which the occupiers of premises on the estate may have had by virtue of their leases. The respondent refused to rescind the charge, nor prepared to explain to the court why, in the circumstances, it would not withdraw its claim to this charge. The appellant’s argument was that this is not a simple case of parking without permission on somebody else’s property having seen a notice imposing financial conditions for doing so (as in the decision of the Supreme Court ParkingEye v Beavis [2015]). The respondent argued that it was not being suggested that the parking restrictions could or did override the lease, but they were “instituted in a manner compatible with the rights of the lease”. They were, it was suggested, a modification of the regulations. But the claimant conceded that there was no appropriate notification. His Honour Judge Harris QC concluded that the respondent was not in any position unilaterally to override the right of access which the claimant had bought when she purchased the lease.

1.6 The case outlined in point 1.5 above has some similarities to this case. The Leaseholder was simply left the permit when he bought the property and had received no correspondence from with the Landlord, [name], confirming that the Lease had been varied to allow UK CPM to enforce permits and charges on owners of car park spaces.

1.7 The issue of permits was also the subject of the case Pace v Mr N [2016] C7GF51J1 [2016] and it was found that the parking company could not override the tenant's right to park by requiring a permit to park. District Judge Coonan noted that in the case Jopson v Homeguard [2016] B9GF0A9E the court recognised that when you have a resident, the tenancy agreement or the lease will take precedence over the arrangement between the ultimate landlord and the third-party parking manager, unless there have been changes to the lease or the tenancy agreement to enable the parking manager’s requirements to become embedded in the tenancy agreement. The Judge ruled that any amendments to a leaseholder’s covenants regarding parking cannot be amended by a third party, they must be amended into the Lease by the Landowner directly. It was also noted that the fact that the defendant had obtained a permit was not the point and it was the lack of variation to the lease that was the basis for his decision to dismiss the case.

1.8 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.
The claimant’s case against the defendant was that she failed to display a valid parking permit and, on that basis, must pay a fine. The defendant was the leasehold owner of the car park space, having purchased the property and parking space under a long leasehold. Ms P appealed to the claimant, but her appeal was refused. There is nothing in the covenant that required her to display a valid parking permit.
The question considered by Deputy District Judge Metcalf was whether the landowner had varied the original lease by engaging Link Parking, or whether they are entitled to impose parking restrictions pursuant to the agreement. The judge found no evidence to suggest that the landowner had undertaken steps to vary the lease and that a letter regarding permits would not suffice in this regard. The Judge also questioned whether the car park space, and the management of this particular space, falls within ambit of Link Parking Ltd as a management company, as their obligations related to the common parts of the property. “This parking space does not fall within the common parts of the property; it is the property of Mrs Parkinson, and on that basis I cannot see how the management company can interfere with her enjoyment of it, or charge her for its usage via a parking penalty or otherwise. It seems to me that to do so would have required a variation of the original lease and I have not seen such a variation.”

1.9 The Claimant has not provided proof of a contract or chain of contracts leading from the landowner to the Claimant which shows that they have a right to unilaterally remove or interfere with the overriding rights conferred by the leasehold agreement. This evidence was requested from the Claimant and the Claimant’s solicitor in a letter dated xx/xx/xxxx.

1.10 Even if the Claimant can produce such documentation, any rights granted to it cannot include the right to unilaterally remove or interfere with the overriding rights conferred by the leasehold agreement. My partner has not been provided with or signed any documentation that confirms any variation to the lease that requires him, or the persons he authorises, to display a permit when parking on his own land.

1.11 The only justification that the claimant has provided in response to my denial of debt has been to attempt to misrepresent their legal standing by citing ParkingEye vs Beavis [2015] (Letters from Debt Recovery Plus Ltd (dates); letter from Gladstones Solicitors xx/xx/xxxx). Although the Claimant’s solicitors contend that this case means that “the law is now clear”, as was noted by the Judge in the case of Jopson v Homeguard [2016] B9GF0A9E, this is irrelevant to a residential parking space as the parking is not public and not a commercial venue.

1.12 The ParkingEye v Beavis [2015] case 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 a charge after exceeding a license to park free. Such interests do not apply to this claim as the parking is not available to commercial tenants, nor aimed at attracting customers, nor to ensure turnover to increase customers, nor prevent misuse of the space by commuters, which were the deciding factors in the case.

1.13 The charge in this case is an unenforceable penalty with no commercial justification. The Landowner has suffered no material loss.

1.14 There can be no ‘legitimate interest’ in penalising residents for using parking spaces that they own under a scheme where ostensibly, and as far as the landowner is concerned, the parking firm is contracted for the benefit of the residents. It is unconscionable, contrary to the requirement of good faith and ‘out of all proportion to any legitimate interest’ to fine residents or their visitors for using the parking spaces that they own.

1.15 The presence of the Claimant on the land will have supposedly been to prevent parking by uninvited persons, for the benefit of the actual leaseholders. Instead, a predatory operation has been carried out on those very people whose interests the Claimant was purportedly there to uphold. With todays’ technology the requirement of leaseholders to display a permit is outdated. Residents should be able to register their cars with the car parking company so that their operatives can simply check licence plates with their database, in order to carry out their prime duty of ensuring that tenants are able to park in the spaces that they own.

1.16 The Claimant’s solicitors are known to be a serial issuer of generic claims such as this one which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. I have reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to my significant detriment as an unrepresented Defendant. In this way it appears to me that parking companies are using the court as a form of aggressive, automated debt collection, which is not something the courts should be seen to support.

1.17 This PCN is an attempt to diminish my and my partner’s right to "quiet enjoyment" of our property as set out in the Lease Agreement.

1.18 UK CPM is not the land-owner and has no capacity to bring the claim unless its contract grants it. In the absence of written authority from the land-holder in accordance with the BPA Code of Practice10 Para 7.2, “If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.”, has no legal capacity to bring the claim. If the display of signs was sufficient, the BPA would have had no need to include this condition in its Code of Practice.

Section 2: The vehicle was parked in accordance to the Claimant’s terms

Should it be found that the Claimant does have authority over my partner’s property, I deny that there was a breach of contract.

2.1 There was in fact a parking permit displayed in the vehicle on xx/xx/xxxx, as evidenced by the photo that was provided by the Claimant in their letter dated xx/xx/xxxx.

2.2 No PCN was attached to the car at the time of the alleged incident. I received a PCN 12 days later (xx/xx/xxxx). Consequently, I was unable to gather my own evidence, such as my own photograph of the permit displayed and signage at the entrance to the gated carpark.

2.3 The PCN was posted to the Leaseholder’s address and bay Z is registered to this address. The Claimant therefore knew that the car is registered to that parking bay. At that point the Claimant could have opted to alert me to the need to replace it, but instead chose to penalise me as a resident parking with the authority of the Leaseholder in the allocated space.

2.4 Photographic proof of this invalid permit was requested in my letter dated xx/xx/xxxx (no copy available).

2.5 The Claimant is a member of the British Parking Association (BPA) and an accredited IPC member and as such should abide by their Codes of Conduct. The photo received in the Claimant’s letter dated xx/xx/xxxx does not meet the standard expected in the BPA Code of Practice, which states that all photographs used for evidence should be clear and legible (BPA Code of Conduct (Version 7 January 2018: Point 20.5a pp 12).
The photographic evidence sent to me was small and of poor quality. Details on the permit were present and legible. The photo was taken from an angle and from a distance so as to support their claim.

2.6 Should the court hold that a contract existed, it is averred that the signage on site fails to comply with their own BPA Trade Body Code of Practice as set out in section 18 and is insufficient as the basis of a contract.

2.7 In the case of Link Parking v Mr L C9GF5875 [2016] it was found that there was no entrance sign at a residential site and as a result the case was dismissed. Please see attached evidence in photo 1 showing a lack of signage at the entrance to the development.

2.8 I was not aware of any signage at the entrance to the gated section of the development at the time of the alleged transgression and have requested this evidence from the Claimant (letter dated xx/xx/xxxx). A new sign has recently been added to the entrance of the gated, residents’ car park within the last four months (date unknown - Photo 2). Signs are currently being replaced across the site.

2.9 Signage on the development at the time of the alleged transgression is small and sparse. I refer to the Claimant’s own evidence of signage in the carpark in their letter of xx/xx/xxxx. There are 62 car park spaces within the gated area and only 2 parking signs. The one I pass is broken and unclear and has been so ever since I have lived there. The sign they point out is some 30 metres from parking bay Z and I do not pass it when driving to the space. It is in fact in area that is allocated to residents of another block1 and therefore I do not walk past it either.

2.10 The signs are confusing. Photos 3, 4 and 5 show the other sign nearest the entrance to the residence that was present in the gated car park at the time of the alleged transgression and is still displayed. It has been broken for all the time I and my partner have lived at the address and cannot be read easily. However, it is the same as the sign marked in the Claimant’s evidence. Photo 5 shows a close-up of this sign.
The sign refers to ‘unauthorised parking’ and ‘parking in a space not designated to you’ and in much smaller lettering that ‘PERMITS MUST BE CLEARLY DISPLAYED IN THE WINDSCREEN AT ALL TIMES.’
My car was authorised to park in bay Z. A permit was displayed in the windscreen.

2.11 There is nothing on the sign about what constitutes a valid permit or what makes a permit invalid. There are no details of the terms and conditions. This is in contravention of the BPA Code of conduct point 18.3 which states:
Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle…. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand. Signs showing your detailed terms and conditions must be at least 450mm x 450mm.

2.12 The photographic evidence of the signage taken at the time the PCN was sent (and this signage is still in place) also contradicts the Claimant’s assertion that ‘Signage clearly states ‘A VALID UK CPM PERMIT MUST BE CLEARLY DISPLAYED IN THE FRONT WINDSCREEN AT ALL TIMES’ (UK CPM letter rejecting my appeal dated 09/11/2017). This is the wording used on the new signs being put up, but not on the signs that are still in the residents’ gated car park.

2.13 When rejecting an appeal, the BPA Code of conduct states that:

If you reject an appeal you must:
tell the motorist how to make an appeal to IAS. This includes providing a template ‘notice of appeal’ form or a link to the appropriate website for lodging an appeal and a valid 10-digit verification code. Even if the verification code is automatically printed on an enclosed appeal form, it must still be in a prominent position on the first page of the rejection letter.

The Claimant’s letter (xx/xx/xxxx) failed to adhere to this. A reference to the IAS is made on the second page in the third paragraph from the bottom and it is not prominent. No Verification code was provided.

Section 3: The Claimant has added unrecoverable sums to the original parking charge

3.1 The provision requiring payment of £160.00 is an unenforceable penalty clause and an unfair term contrary to the Consumer Rights Act 2015 and the Unfair Terms in Consumer Contracts Regulations 2008. It has already been established that the ruling of ParkingEye v Beavis [2015] UKSC 67 is not applicable to cases involving residential parking spaces. This is supported by the cases referenced in section 1.4 – 1.8 above.

3.2 Furthermore, Paragraph 4, Schedule 4 of the Protection of Freedoms Act 2012, makes it clear the keeper can only be liable for the amount on the original notice. The original noticed stated the charge was "£100, reduced to £60 if paid within 14 days".

3.3 Claimant to unreasonably refuse to cancel the charge when my partner appealed (letter xx/xx/xxxx) and to aggressively pursue this case regardless of the facts and lack of merit of any case.

3.4 Furthermore I submit that the £50 legal representatives cost have not actually been incurred by the Claimant. The two letters sent are templates used as part of their mass litigation model in an attempt to circumvent the court costs rules using double recovery.

In summary, it is my position as the Defendant's that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

Section 4: Counterclaim
• I am counter claiming £500. This amount consists of:
£150 for tortious interference with the quiet enjoyment of my property.
• £290for the distress, harassment caused by the claimant’s continued persistence in pursuing the matter to this stage and letters sent by DRP, which have had a significant impact on my life for the past year.
• £60 refund for a fine paid subsequently for the same perceived transgression because I could not face another barrage of letters and was unaware of the legal position at the time (confirmation of payment provided).

I believe that the facts stated in this defence are true.

The_Deep

I love it when people counter claim.

bargepole

It's just 'Defence', not 'Defence Statement'.

You don't put your name or address in the opening paragraph, and it should all be worded in the third person, eg 'The Defendant denies that the Claimant is entitled to ...'.

The 'I did this and that' stuff comes later in the witness statement.

Also try to avoid using sub-paragraph numbers, eg 1.6, 1.7 etc, just have straightforward sequential paragraph numbering.

Finally, it's not considered good practice to cite case law in a Defence, that comes later in the WS and/or Skeleton.

sa1601

Thanks. I have made the changes to style and content. I am confused about the Defence and Witness Statement. When is the WS submitted?
Should the Defence be short and to the point? Thanks again.

Redx

see the BARGEPOLE post linked in the NEWBIES FAQ sticky thread , post #2

read all of that post and check a few links out, it will help you through this process

especially check the links by LOC123 as well as the BARGEPOLE one, seeing as BP posted his over 2 years ago

Redx

you are doing wrong, you have hijacked a thread by somebody else


copy and paste the above into a NEW THREAD of your own, by using the red NEW THREAD BUTTON, TOP LEFT OF THIS FORUM


then edit and delete your post above


people will answer you once you have your own thread, not before, its one thread, one topic, no hijacking

bargepole

sa1601 wrote: »

Thanks. I have made the changes to style and content. I am confused about the Defence and Witness Statement. When is the WS submitted?
Should the Defence be short and to the point? Thanks again.

The Defence should be a brief summary of the key arguments, stating whether the allegations in the particulars of claim are admitted or denied, and if denied, stating briefly why.

The WS comes much later in the process, when the case has been allocated to the local County Court, and a hearing date has been set. The courts normally require these 14 days before hearing.

The WS is your factual and chronological account of events, and you should attach to it, any evidence that you rely upon.

sa1601

Thanks BP - I have written a WS instead of the Defence - oops. I will look the suggested posts too. Thanks for your help. My understanding now is that the court will look at the defence and decide whether to strike out or ask for more evidence (WS and supporting bundle).

KeithP

sa1601, what is the Issue Date on your son's Claim Form?

sa1601

The date of Issue is the 15th November. Notes say that he has 14 days to respond from day of service which is taken to be 5 days after the issue date. I have spent a lot of reading and getting the defence together, which now turns out to be more like a AS. But anything learned is good.

sa1601

Version 2. Thanks for the directions to the 2nd post in the Newbies thread. The example posted by Bargepole was so useful. It seems that I am not the only one getting Defence and WS confused. I have taken the example to heart and pared it down from the original.

In the County Court xxxxxx

Claim No:
BETWEEN:

UK Car Park Management Ltd. (Claimant)

and

xxxxxxx (Defendant)

Defence
1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. Save where otherwise admitted, each and every allegation in the Particulars of Claim is denied.

3. The vehicle, registration xxxxxxx, of which the Defendant is the registered keeper, was parked
on the material date in a marked bay allocated to the Leaseholder of one of flats in the residential development. The Defendant is the partner of the Leaseholder, resides with him and has his authority to park in at the space in question.

4. The Particulars of Claim state that the Defendant was the registered keeper and/or the driver of the vehicle(s) These assertions indicate 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. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

5. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, 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. However, the Defendant denies that the Claimant has any authority over the Leaseholder’s property and contends 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.

7. The Defendant’s partner has ownership of car parking space in which the car was parked under a long lease, as set out in the Lease Agreement. The vehicle was parked on the property in accordance with the terms of the Lease. As the Lease contains no clause requiring a permit to park, nor any clause requiring the Leaseholder, or those authorised by the Leaseholder to use the allocated car park space, to make payments to any third party who is a stranger to that lease, the issuing of the PCN is unlawful. Although a permit was left in the car as matter of courtesy and routine, the Defendant argues that the Lease has primacy of contract over any restrictions the Claimant places on the land.

8. The Claimant has taken over the location and runs a business as if the site were a public car park, offering terms with £100 penalty on the same basis to residents, as is on offer to trespassers and the public. However, residents are granted a right of way and parking in their allocated bays through the Lease. Therefore, parking terms under an onerous 'permit' cannot be re-offered as a contract by a third party. This interferes with the terms of lease, to which this parking firm is not party. The Defendant avers that the operator’s signs cannot override the existing rights conferred on residents conveyed by their Lease agreements. The defendant also avers that neither the Claimant or Landowner have suffered loss or damage or that there is a lawful basis upon which to pursue a claim for loss.

9. The Claimant is put to strict proof that that they have a right to unilaterally remove or interfere with the overriding rights conferred by the Leasehold agreement.

10. 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.

11. Recent cases have set clear precedence that the Leaseholder’s Lease has primacy of contract over any signage that the Claimant puts up, as per judgements in Ms Jopson v Homeguard Service Ltd. [Claim B9GF0A9E, 2016]; Pace Recovery and Storage Ltd. vs Mr N - [Claim C7GF51J1, 2016] and Link Parking v Ms P [Claim C7GF50J7, 2016].

12. Should it be found that the Claimant does have authority over the Leaseholder’s property, the defendant denies that there was a breach of contract.

13. Further and in the alternative, without prejudice to the primary defence above, 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. There are only two signs in the gated residents’ car park. Both state that ‘unauthorised parking or parking a vehicle in an area or space not designated to you may result in your vehicle receiving a parking charge’. The signage omits to specify a valid permit or make clear what constitutes a valid or invalid permit. There are no terms and conditions on either sign. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

14. The Claimant, or their legal representative, 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. Furthermore, the Defendant submits that the legal representatives cost have not actually been incurred by the Claimant. The two letters sent are templates used as part of their mass litigation model in an attempt to circumvent the court costs rules using double recovery.

15. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

I believe that the facts stated in this Defence are true.


………………………………………………………. (Defendant)


……………………… (Date)