Letter Before Claim - SCS Law & UKPC - Please Advise

CVKTA

Fruitcake said:

As above, the signature page appears to be from a completely different document. None of the icons at the bottom of this page line up with those with the ones on the other pages. There are different icons representing different groups/associations/entities compared with those on the other two pages.

I would suggest they were not printed at the same time, nor on the same printer and the signature page is a black and white copy, not a colour copy.

In addition, the signature page does not conform to the strict requirements of Section 44 of The Companies Act 2006.

https://www.legislation.gov.uk/ukpga/2006/46/section/44

For a contract to be executed it must be signed by two authorised signatories from both companies or a director and witness from both companies. Authorised signatories are defined within the Act as either a director or company secretary.

This alleged contract fails the Act because there is only one signature from each company. In addition, the position of the signatory within the companies is not given so there is no proof that either person was authorised to sign in accordance with the Act.
The client signature is illegible.
The company number of the client is that of Mainstay Residential, not Persimmon. This means that the alleged contract was between UKPC and a management agency or management company, not the landowner.
There is no contract between Persimmon (the landowner) and this management company.
Therefore UKPC's alleged contact is not with nor flowing from the landowner.

The client signature could be that of Christopher David Brook, who resigned from being a Mainstay Residential Director in August 2014, a month before the alleged contract was signed thus making this contract a false instrument.
Alternatively it could be the signature of Paul Leonard Crook who was a director in September 2014, but the signature was not witnessed.
No other persons recorded at Companies House for this company have a surname that includes anything like a double O

You could ask the scammers and scamlicitors for clarification of the names on the contract as neither are legible, then check to see if the UKPC signatory was authorised to sign in accordance with the Act.
You could ask Mainstay whose signature it is, and whether it belongs to the other two pages of the alleged contract.

You should also be asking the scammers and scamlicitors for a copy of the alleged contract between UKPC and the landowner or the contract between the landowner and Mainstay authorising the scammers to scam at the location in question.

If you believe the signature page is from a different contract, of can get proof from Mainstay then you should mention it to the judge.

Incredible, all to be used in my defence. Thank you 

Johnersh

With apologies to the Monty Python team... 

But other than
* the fabricated contract
* the defect in the contract
* the fact the o/p doesn't need a permit
* the fact that the signs don't permit additional charges
What have UKPC done for us? 

Coupon-mad

But of course they've produced this under a statement of truth - at the end of the WS. 

Who as signed the WS under the statement of truth?  SCS Law or UKPC - who exactly?

What does the WS say about this piece of 'evidence'?

CVKTA

C-M, the docs that I have received have no WS with SoT at all, I may have received one at some point during correspondence many months ago, but I’m not too sure without plowing back through to look. These docs that they intent to rely on, open with the below letter and the straight into all of their print outs. I’m assuming that they should have including a WS for the judge in these docs?!?

Johnersh

Well, they don't *have* to serve a statenent. The Ppc statements are usually generic waffle anyway. 

I'd just invite the court to conclude that's because they can't support the docs served. 

Coupon-mad

Does Judge Bull's Order from 21st April only ask both parties to file & serve the evidence by May xx 2020, and separately mention a different date for witness statements? 

Remind us what you have filed and served and when - a WS and evidence?

CVKTA

CVKTA said:

Ah, yes C-M, it does indeed...

CVKTA

Coupon-mad said:

Does Judge Bull's Order from 21st April only ask both parties to file & serve the evidence by May xx 2020, and separately mention a different date for witness statements? 

Remind us what you have filed and servd and when - a WS and evidence?

I have to sumbit my evidence documents by 10th June @ 4pm

I have submitted a WS statement somewhere along the way, I think around 20th Febraury to (I think, sorry so much corrsepondance and I dont have my notes to hand) what I assume would have been at the initial stages of correspondance with Northampton..
You kindly helped me edit it, I'll post it just now on a seperate post..

CVKTA

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

2. The Particulars of Claim are baseless and unsubstantiated. The Claimant is pursuing unwarranted charges with the full knowledge that the Defendants lease cannot be varied in this way and they are already aware that their conduct has unlawfully interfered with the Defendant's existing grants, rights, easements and peaceful enjoyment of the property. It is averred that no due diligence was carried out by UKPC to protect the interests of the residents before enforcement began; the intention of which (according to the Managing Agents) was in fact to deter fly parking by trespassers. This aggressive, unnecessary and rogue operation has all the hallmarks of UKPC's well-reported 'sledgehammer to crack a nut' typical 'ex-clamper' thought process for parking enforcement.

2.1. All tickets were received when the car was in the Defendant's own parking space and some were received when the pass was on the dashboard but apparently not 'displayed correctly' to UKPC's liking which the Defendant can only guess means on the windscreen itself (despite the fact that the permit was visible through the windscreen). UKPC penalise genuine residents at the same punitive rate as if they were trespassers, rather than exempting residents' cars without requiring paper permits, or at least alongside that scheme, by way of double check to avoid unfair penalties. A 'white list' of exempt residents cars that could be updated online by each resident quickly (e.g. if using another car, or for visitors) would have been a reasonable and simple step to implement.

3. The Particulars of Claim fail to refer to the material terms of any contract or Lease agreement that the Defendant was already benefitting from with the Landowner

4. It is admitted that the Defendant was the registered keeper of vehicle registration mark XXXXX at the time of these alleged incidents.

5. The Defendant firmly believes parking by legitimate tenants does not constitute "unauthorised parking". The defendants lease clearly states that they have the “The exclusive right to park one private motor vehicle on the parking space (or each of the spaces as may be the case) tinted in green an Plan 1 or as allocated by the Lessor or the Management Company in writing from time to time” 

6. It is denied that the Defendant was in breach of any parking conditions or was not permitted to park a vehicle in the space allocated in Plan 1. The space allocated in Plan 1 was assigned to the address in question, where the Defendant owned the property and therefore, as per the Defendants lease, had the “The exclusive right to park one private motor vehicle on the parking space”. This direct wording from the Lease agreement between the Defendant and the Landowner, cannot be varied by any alleged parking terms.

7. There is no mention on the Lease agreement between the Defendant and the Landowner of any potential parking charges, or contractual agreements with a private parking company, or any other 3rd party. The lease agreement is wholly between the Landowner and the Defendant, and gives the Defendant right to park a vehicle in the designated space, as a property owner. The Claimant cannot introduce a regulation that removes a right that is already there as per the Defendants lease agreement.

8. The Defendant avers that the Claimant cannot fetter their lease agreement by entering car park users into a contract with them, via signage.:

The Lease between the Landowner and the Defendant clearly states: Clause 6.4 “The company may at any time or times during the term in the interest of good management impose such regulations of general application regarding the Estate as it may in its absolute discretion think fit in addition to or in place of the regulations (but so that any such regulations shall not conflict with this Lease)”

8.1 The Defendant avers that Clause 6.4 was not included within the Lease by the Landowner to allow it’s residents not to be subject to extortion, but to project it’s residents and prevent unlawful parking by non-residents. ‘In the interest of good management’ would not, by any reasonable interpretation, include imposing a parking firm who will target and sue residents.

8.2 The Defendant avers that the Claimants operation directly conflicts with the lease. Moreover, as per the Landlord & Tenants Act the client did not carry out consultation with leaseholders whereby they were consulted and the required consensus was obtained, before they imposed their onerous regime.

9. In this respect and in all other facts - including the Defendants Primacy of Contract, the cases of Pace v Mr N [2016] C6GF14F0 [2016] and Link Parking v Ms P C7GF50J7 [2016] are fully distinguished.

In both cases it was found that the parking company could not override the tenant’s right to park by requiring a permit to park.

10. Moreover, due to inadequate notice of any parking charge and/or any added sums, the defendant did not enter into any 'agreement on the charge’.

11. In this respect and in all other facts - including the lack of prominence and clarity of the signage and the small font used to hide the onerous terms, the Supreme Court case of Parking Eye Ltd v Beavis [2015] UKSC 67 ('the Beavis case') is fully distinguished.

12. 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.

13. Further and in the alternative, 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.

14. The terms on the Claimant’s signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily, particularly given the low lighting conditions and lack of lighting of the signs. The defendant finds it less than a coincidence that the Claimants ‘evidence bundle’ contained one solitary picture of the small font signage in high light, time stamped at 12:09pm, captured with the midday sun just behind it.

15. 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.

CVKTA

16. The five PCNs question were tenuously based upon signage setting 'parking charges' at a level of £100 each, (5 x £1000 = £500) yet the Claimant is trying to recover a claim totalling an eye watering £930. The purported added 'costs' are disproportionate, a disingenuous double recovery attempt, vague and in breach of both the CPRs, and the Consumer Rights Act 2015 Schedule 2 ('the CRA') 'terms that may be unfair'.

17. The arbitrary addition of a fixed sum purporting to cover 'recovery costs' is potentially open to challenge as an unfair commercial practice under the CPRs, where 44.3 (2) states: ''Where the amount of costs is to be assessed on the standard basis, the court will –

(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and

(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.

18. The Defendant has the reasonable belief that the Claimant has not incurred an additional £60 in damages or costs to pursue an alleged £100 debt. Alleging that the letters the parking firm sent have caused an additional loss, is simply untrue. The standard wording for parking charge/debt recovery contracts is/was on the Debt Recovery Plus website - ''no recovery/no fee'', thus establishing an argument that the Claimant is breaching the indemnity principle - claiming reimbursement for a cost which has never, in fact, been incurred. This is true, whether or not they used a third party debt collector during the process, because parking charges (unlike other 'debt' claims) must by definition, already encompass the costs of the operation.

19. Whilst quantified costs can be considered on a standard basis, this Claimant's purported added £60 'damages/costs' are wholly disproportionate, are not genuine losses at all and do not stand up to scrutiny. This has finally been recognised in many court areas. Differently from almost any other trader/consumer agreement, when it comes to parking charges on private land, binding case law and two statute laws have the effect that the parking firm's own business/operational costs cannot be added again, to the 'parking charge', thus avoiding a case of ‘Double Recovery’

The Pace v Mr N case is against this claim.

20. The Pace v Mr N case was dismissed within minutes due to the simple wording and upholding of the Defendants Lease agreement with the Landowner which stated that they had the right to use the parking space and that could not be altered by a 3rd party, akin to the Defendants case we have before us.

20.1 In the Pace v Mr N case , District Judge Coonans opening gambit stated: “I have to deal with this on the evidence that is before me now. I have before me a tenancy agreement which gives Mr [N. redacted] the right to park on the estate and it does not say “on condition that you display a permit”. It does not say that, so he has that right. What Pace Recovery is seeking to do is, unilaterally outside the contract, restrict that right to only when a permit is displayed. Pace Recovery cannot do that. It has got to be the other contracting party, Affinity Sutton, which amends the terms of the tenancy agreement to restrict the right to park on a place in circumstances in which a permit is displayed but that is not in this tenancy agreement and you as a third party cannot unilaterally alter the terms of the tenancy agreement”

The Link Parking v Ms P case is against this claim.

21. In the Link Parking v Ms P case, the judge ruled that that for Link or CPML (the management company) to have any right to manage the parking on the Landowner's property, the deeds would have to be altered to state this for the whole site. She ruled that the Landowner could not be penalised for parking in her own space.

22. Studying the Pace v Mr N & the Link Parking v Ms P case and combining with a tiny degree of common sense shows that if there is car park management at a residential site, this will be primarily to stop non-residents from parking. No reputable car parking company would target the residents and refuse to cancel a parking charge

The Beavis case is against this Claim

23. The Beavis case is the authority for recovery of the parking charge itself and no more, since that sum (£85 in the Beavis case) was held to already incorporate the costs of an automated private parking business model including recovery letters. There are no losses or damages caused by this business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages. It is indisputable that an alleged 'parking charge' penalty is a sum which the Supreme Court found is already inflated to more than comfortably cover all costs. The case provides a finding of fact by way of precedent, where it was stated three times that the £85 had to cover the costs of the letters.

23.1. In the Beavis case it was said at para [205]: ''The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.''

23.2. At para 193. ''Judging by ParkingEye's accounts, and unless the Chelmsford car park was out of the ordinary, the scheme also covered ParkingEye's costs of operation and gave their shareholders a healthy annual profit.'' and at para 198: ''The charge has to be and is set at a level which enables the managers to recover the costs of operating the scheme. It is here also set at a level enabling ParkingEye to make a profit.''

The POFA 2012 and the ATA Code of Practice are against this Claim

24. The Protection of Freedoms Act 2012, Schedule 4 ('the POFA') at paras 4(5) and 4(6) 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' ('NTK'). Further, the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is no more than £100, and in this case the parking charge in the small print on the signs, and in each NTK, was stated to be £80 and this must have been set to include the costs of recovering the charge, or it falls foul of the Beavis case.