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Defence vs UKPC (Parking in my own space)
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Hi all, it's been a while since i posted in this thread but have been doing a lot of reading on this site, trying to find useful parts to add to my defence. I have never done anything like this so have very little confidence in it at this stage and I welcome lots of input!
Before you read the below, there has been one huge update in this case which really helps me and makes the parking company look bad. If you scroll up you'll see one ticket was issued 3 years ago under totally unrelated circumstances. However four were issued in the space of a few months for parking outside the flat which i am the leaseholder to, in my designated parking space. Obviously my defence uses the primacy of contract argument to beat these four. The big update is that i now have proof that three of the four tickets issued outside my flat last year were actually issued after i had purchased the parking permit from the management company. It wasn't displayed, but this was because the management company lost it in the post. I have emails proving this. I also have emails proving that the management company requested the three tickets purchased before the PCNs were issued be cancelled (from this month after i told them this was going to court). I wonder if the entire case will crumble! Fingers crossed.
Anyway, due to the complexities of the case, my defence seems a bit long (5 PCNs were issued) - My summary at the bottom explains briefly the basis by which i hope to beat each ticket. Please do have a read and let me know what changes need to be made. It's probably too wordy but i'd rather include too much and have you guys help cut it down than the other way around. Any questions you still need answering about the case, please let me know!
The when referring to the tickets in the real defence, the real PCN issue numbers will be used, but in this anonymised version i will call them PCN 1, 2, 3, 4, 5. Here is which PCN each number refers to:
1 - PCN issued 03.2016 - for parking on a street in the town centre which i have little recollection of.
2 - PCN issued 03.2018 - for parking at my flat (prior to purchasing a permit)
3 - PCN issued 06.2018 - for parking at my flat (after purchasing a permit)
4 - PCN issued 06.2018 - for parking at my flat (after purchasing a permit)
5 - PCN issued 06.2018 - for parking at my flat (after purchasing a permit)
You will also note i have not been any more specific than years and months when referring to the dates the PCNs were issued, to keep this as anonymised as possible.
START OF DEFENCE
MY NAME
MY ADDRESS
DATE
IN THE COUNTY COURT
Claim number: XXXXXXXX
BETWEEN:
Claimant: THEIR NAME
-and-
Defendant: MY NAME
Preliminary
1. The Particulars of Claim lack specificity. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant amend their Particulars in any way at a later stage of these proceedings and/or to limit the Claimant only to the allegations in the Particulars.
2. The claimant admits that he was the driver of the vehicle (Reg: XXXX XXX) on all five occasions in which PCNs were issued, detailed in the Particulars of the Claim document.
3. Four of the five PCNs were issued at [MY ADDRESS]. The defendant was renovating the property between purchasing the property in February 2018 and moving in to the property in June 2018. Often, weeks were spent away from the site by the defendant who juggled the renovation with a full-time job. These sporadic site visits might explain to the presiding judge any perceived chronological anomalies, such as receiving three PCNs in the month of June alone, yet none in the month before.
4. In this case, the property management group referenced are named [MANAGEMENT COMPANY NAME] and the point of contact there is [MY CONTACT AT THE MANAGEMENT GROUP].
5. The defendant has offered to pay a fee detailed in section 12, subject to the criteria specified in section 12 being met. The reason for this is that the defendant does not want to risk being summoned to court, because missing a day of work could result in losses which cannot be quantified, due to the defendant working in a pressurised sales environment. It is the defendant’s belief that this entire claim should be dismissed.
Part A: Relating to: Failure to respond to Subject Access Request and unjustified, unexplained inflation of costs
6. A Subject Access Request was sent to the Claimant's Data Protection Officer on [EXACT DATE IN EARLY FEBRUARY] requesting:- All photos taken of the Defendant’s vehicle by UKPC Ltd.
- All letters sent to the Defendant by UKPC Ltd.
- All of the Defendant’s personal data currently held by UKPC Ltd.
- A full list of all PCNs UKPC Ltd consider outstanding relating to the Defendant.
- Any other information UKPC Ltd will rely upon in relation to the Defendant’s alleged Parking offences.
7. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case that figure is £100 for each PCN. The claim includes an additional £60 per ticket, for which no calculation or explanation is given.
8. There are five total PCNs issued, which equates to £500 in maximum penalty charges. This claim inflates the total to an eye-watering £930, in a clear attempt at double recovery. The Defendant trusts that the presiding Judge will recognise this wholly unreasonable conduct as a gross abuse of process and may consider using the court's case management powers to strike the claim out of the court's own volition. The acid test is whether the conduct permits of a reasonable explanation, but the Defendant avers it cannot.
9. According to Ladak v DRC Locums UKEAT/0488/13/LA the claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration costs allegedly incurred by already remunerated clerical staff working for a firm of solicitors in issuing robo-claims.
10. Not only are such costs not permitted (CPR 27.14) but the Defendant believes that the Claimant has not incurred legal costs at all. The Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste claims at all.
11. It was held in the Supreme Court in Beavis (where £85 was claimed, and no more) that a private parking charge already includes a very significant and high percentage in profit and more than covers the costs of running an automated regime of template letters. It is also a fact that debt collection agencies act on a no-win-no-fee basis for parking operators, so no such costs have been incurred in truth. Thus, there can be no 'damages' to pile on top of any parking charge claim, nor 'indemnity costs if applicable', whatever that vague phrase may mean. The Claimant knows this, as do their solicitors who charge little or no fee to many parking regulation companies. The Defendant asks that the Court takes judicial notice of this repeated abuse of consumers rights and remedies, caused by parking regulation companies and solicitors artificially inflating their robo-claims.
Part B. Relating to: PCN [1] - Issued: 03.2016
12. The defendant refers to section 6, detailing the Subject Access Request made to the claimant, which has so far had no response. The defendant queries how a case can be adequately defended without being first provided with all documents and evidence relating to the claim. The defendant considers it unreasonable to believe that he should have copies letters relating to an alleged parking offence 35 months ago. The defendant also considers it unreasonable to be expected to remember all specifics of an alleged parking violation which occurred 35 months ago. The defendant requests that PCN 1 be stripped from the particulars of the claim entirely.
13. The Particulars of the Claim document details five alleged parking offences. One offence (PCN 1) allegedly occurred on 03.2016, while the other four offences are alleged to have occurred between 03.2018 and 06.2018. The claimant also notes not only the sizeable difference in PCN issue dates, but also difference in location, circumstance, reason for the claims and the different “contracts” allegedly breached. The PCN issued in 2016 is evidently far removed from the others in many aspects, therefore the defendant requests that PCN 1 be stripped from the particulars of the claim entirely.
14. The defendant has little recollection of PCN 1 and avers he cannot be expected to adequately defend it without the information requested in the Subject Access Request detailed in section 6. However, if the judge declines the defendant's request to omit PCN 1 (dated 03.2016) from the Particulars of the Claim for reasons detailed in sections 12 and 13, the claimant only agrees to pay £100 (and £100 only, for reasons detailed in Sections 7, 8, 9, 10 and 11) for PCN 1 if:- The claimant proves with photographical evidence that the defendant’s vehicle was parked in an unauthorised area on [THE EXACT DATE PCN 1 WAS ISSUED]. (The defendant refers the presiding judge to his Subject Access Request in Section 2, which was issued to the claimant. The defendant avers that in the last two years, he has received no photographical evidence of this alleged offence.)
- The Claimant is able to prove that they had sufficient proprietary interest in the land on [THE EXACT DATE PCN 1 WAS ISSUED], or that on [THE EXACT DATE PCN 1 WAS ISSUED] it had the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.
- The claimant can provide evidence that the signage displayed at [ALLEGED LOCATION CAR WAS PARKED], was not displayed in a font which was too small to read and in such a position that anyone attempting to read the font would be able to do so easily. The defendant requests photographic evidence of this, dated [THE EXACT DATE PCN 1 WAS ISSUED].
- The claimant can prove that the signage was displayed in a clear and obvious location, which anyone could be expected to see. The defendant requests photographic evidence of this, dated [THE EXACT DATE PCN 1 WAS ISSUED].
Part C. Relating to: Primacy of Contract
PCN number 2 - Issued: 03.2018
PCN number 3 - Issued: 06.2018
PCN number 4 - Issued: 06.2018
PCN number 5 - Issued: 06.2018
15. By virtue of the Lease, the defendant purchased the leasehold title to the property for a term of 972 years. The property boundaries were defined in the lease, as was the highlighted parking space, which is number [MY PARKING SPACE NUMBER]. A copy of the leasehold contract will be provided to the court.
16. In Pace v Mr N [2016] C6GF14F0 [2016] it was found that the parking company could not override the tenant's right to park by requiring a permit to park because the leasehold contract does not specify that a permit is required to park in the space owned by the leaseholder. The defendant maintains that the same scenario is occurring relating to the four PCNs addressed in Part C of this defence. A leasehold contract is currently in place in place and the defendant maintains that the claimant has no legal grounds to issue PCNs to the defendant for parking in his own designated space. The defendant maintains that any attempt by the claimant to charge the defendant for parking in his own designated space would be a breach of his leasehold agreement.
The full quote from District Judge Coonan’s judgment relating to that case was “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 Defendant will also rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial.
17. The defendant believes that the purpose of residential management companies employing parking control companies at residential sites is to stop non-residents from parking in parking spaces owned by residents. The four PCNs that Section C of this defence refers to are issued to a genuine leaseholder, with a valid leasehold arrangement which grants “exclusive right to use” the vehicle parking space. A full copy of the lease will be provided to the presiding judge.
18. The defendant maintains the the claimant should have checked with the property management company before pitching up on site and issuing charges. They should have employed due diligence to check they were not ticketing people who should not be receiving them. They should have done this up front by asking their "employers" (the property management company), especially because this was at a residential site. The defendant maintains that it would be unreasonable for them not to know they shouldn't be ticketing genuine residents and should have checked the residents' lease before they agreed to attempt to manage the site.
19. Accordingly it is denied that:
19.2. There was any agreement as between the Defendant or driver of the vehicle and the Claimant
19.3. There was any obligation (at all) to display a permit; and
19.4. The Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.
Part D. Relating to: The purchase of a valid parking permit prior to the issuing of three of the five PCNs in this claim
PCN number 3 - Issued: 06.2018
PCN number 4 - Issued: 06.2018
PCN number 5 - Issued: 06.2018
20. The defendant paid for a parking permit for his parking space on the [EXACT DAY] April 2019. A dated proof of purchase will be provided to the court. Part D of this defence refers to three PCNs which were issued after the permit had already been paid for by the defendant.
21. The defendant insists that the permits did not arrive in the post shortly after payment [EXACT DAY] April 2018.
22. The defendant has a copy of emails exchanged between himself and the property management company between [EXACT DAY] August 2018 and [4 DAYS AFTER] August 2018, asking why he is still receiving PCNs after paying for a permit in April 2018. These emails will be provided to the court. It is denied that it is reasonable that the defendant should have queried this issue sooner and the defendant points to the fact that it is the property management company’s job to deliver the permit after payment. Due to this failure to deliver the permit, the claimant believed at the time that a vehicle registration plate recognition system was being used instead of paper permits and that the parking wardens were making an error in issuing his [CAR MODEL] (reg XXXX XXX) with PCNs. It is denied that the property management company ever specified that it would be a paper permit arriving in the post.
23. On [EXACT DAY] August 2018, [MY CONTACT AT THE MANAGEMENT COMPANY], the point of contact at the property management company, responded to the defendant’s email on the [EXACT DAY] August 2018 and confirmed that there had been “issues with the initial parking permit being received”.
24. On [EXACT DAY] August 2018, [MY POINT OF CONTACT AT THE MANAGEMENT COMPANY], the point of contact at the property management company, responded to the defendant’s email on the [4 DAYS PREVIOUS] August 2018 and insinuated that he had requested two PCNs be removed by the claimant. The PCNs were swiftly removed by the claimant under instruction of their employer, the property management group. These two PCNs were clearly and obviously removed because payment for the permit had already been made in April 2018. This email will be provided to the court.
25. In the same email sent to the defendant on [EXACT DAY] August 2018, [MY CONTACT AT THE MANAGEMENT COMPANY] explains that the Claimant required PCN reference numbers in order to cancel any other outstanding PCNs. The defendant did not have the remaining outstanding PCN numbers to hand. The Defendant denies that the Claimant lacks the capability to look up PCNs using names, addresses and vehicle registration numbers. The defendant wonders how parking control companies are able to use a number plate to find someone’s address and send them a fine in the post, yet when asked to look up a PCN and cancel it, they state that they cannot do that using anything other than the PCN number. The defendant suspects that this is simply another strategy used by these companies to make the cancellation of a wrongfully issued PCN as awkward as possible, in the hope that the victim might run out of fight and simply pay the unwarranted charge.
26. On the [EXACT DATE] February 2019 and upon learning of these legal proceedings, the defendant's property management company, emailed the defendant and explained that they have emailed the claimant asking them to “review the 3 charges” referred to in Part D of this defence. The claimant asked the property management company to clarify what they meant by “review” and the company confirmed that they had “referred this to [the claimant] for confirmation that the 3 tickets in question will be cancelled”. A full copy both of these emails will be provided to the court. Clearly and obviously, these three tickets were issued after a permit was paid for, the management company failed to deliver the permit and the resulting PCNs are void, as admitted by the management company. As of yet, no response has been received by the property management company from the claimant, confirming that the three PCNs referred to in Part D of this defence are now cancelled. The defendant suspects that this is because they know they have no grounds for issuing these PCNs and that the entire claim is a waste of their time, the defendants time and the time of the presiding judge.
In summary- A subject access request (sent on [EXACT DATE] February 2019) has been ignored by the claimant and therefore the defendant cannot be expected to adequately defend himself without all relevant information being available to him, some of it from 35 months ago which he has little recollection of. If the request is ignored for 30 days, the entire case should be dismissed.
- A 35 month-old, unrelated, alleged offence has been added entirely inappropriately to a more recent and relevant set of four claims. This has complicated proceedings needlessly and should not have been included in the same claim.
- The remaining four PCNs were issued in a private parking space owned by the defendant, which his leasehold agreement grants him “an exclusive right to use”. Any PCNs issued in this instance are unlawful.
- In Part D, three of the four PCNs issued at [MY ADDRESS] were issued after a permit had been paid for, but the property management company had failed to deliver the parking permit. The defendant has copies of an email confirming that the property management company have asked the claimant to cancel all three PCNs issued in part D. The defendant notes that the parking permit argument should not even be required due to the leasehold agreement ensuring that the defendant has no legally binding agreement with the defendant.
In summary, it is the Defendant's position that the entire claim 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.
The defendant has experienced high levels of stress for many weeks regarding this case and has had to conduct 25-30 of hours of research and hard work to form this defence. The defendant asks that the judge dismiss the entire case and seeks damages of £600 from the claimant for bringing such a needlessly complex, meritless claim to court and wasting so much time for all involved. The defendant’s damages are calculated at £20 per hour although invites the presiding judge’s opinion as to what would be a fair amount.
I believe the statements in this defence are true.
Signed: MY NAME
END OF DEFENCE
Thanks for reading guys, i suspect structurally it's not great and also really need to know if my suggestion in section 14 can work or if i simply have to say i will pay or i won't pay. There's probably tonnes wrong with it but suggestions are welcome! I think four of the tickets are very winnable, it's just the older one i'm unsure of...
Questions i still have:
If i am asking for their money due to stress and time wasted, do i have to issue a "counter-claim when responding?"
Can i issue a counter claim or defend the whole thing after stating in my AoS that i would defend part of the claim? I only offered to pay £100 if the old PCN can be proven. I'd rather have to pay £100 that i don't believe i owe than to have to miss a day of work and go to court.
Will the judge allow some back and forth communication after the defence is filed? Or does the next form of communication have to be in person in court? This is why i have tried to give the judge options in the case which are: "please dismiss it all but if not, make them provide proof of their allegation relating to the PCN in 2016 which i cannot remember fully, then I'll pay £100"
Am i speaking to the "presiding judge" or "the court" or neither? As you can see i've referenced both but not sure about this.0 -
The issue isn't failure to comply with a subject access request (although they might've done) but a general failure to comply with the protocol to pre action conduct. See the rules below, esp. sections 3, 6, 13 and 14. There are costs penalties.
https://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_pre-action_conduct#6.1
You will need to seek to point out that the PPC has issued proceedings prematurely, failed to supply adequate information, unnecessarily increased costs and aver that their approach is disproportionate to the sums in issue, where as a result of the live proceedings they have added sums to the original debt alleged.
For example.... Were you to feel like that....:D0 -
Thank you Johnersh, i will make amendments for the second draft. Hoping to get some further feedback from a few more people and then will have the second version ready within a couple days. Your help is appreciated0
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If you want to claim damages from them, you'll need to counter claim (NOT merely put it in the defence). It can be done, but the bar for harassment is set quite high - https://www.bailii.org/ew/cases/EWCA/Civ/2009/46.html
Your settlement offer should not appear anywhere in the defence, but should more properly be made in a separate letter 'without prejudice save as to costs can were you so inclined. Delete all references to it. Whilst you may well be reasonable it risks colouring the views of the trial judge and should be omitted.
You can always write to the defendant - lord knows, I like to send a letter per day to my opponents in the run up to trial (today I sent them 3)
...but obviously I don't specialise in parking tickets in the day job. The point is that you can ask, but the court will actually only require the parties to exchange a witness statement. PPCs generally send less correspondence once claims start because letters cost money (unlike their debt collectors that work for free).0 -
Your settlement offer should not appear anywhere in the defence, but should more properly be made in a separate letter 'without prejudice save as to costs can were you so inclined. Delete all references to it. Whilst you may well be reasonable it risks colouring the views of the trial judge and should be omitted.
Yes, I was going to say remove this entirely:5. The defendant has offered to pay a fee detailed in section 12, subject to the criteria specified in section 12 being met. The reason for this is that the defendant does not want to risk being summoned to court, because missing a day of work could result in losses which cannot be quantified, due to the defendant working in a pressurised sales environment. It is the defendant’s belief that this entire claim should be dismissed.
and the entire bit where you say you will agree to pay(!!!) one of the PCNs but only if...
DO NOT include any of that. It's not part of any defence,. Defend IN FULL.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top of this/any page where it says:
Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Thanks guys, will do! so i'll offer them £100 directly to drop the claim and remove that part - I thought it didn't feel right. I'll also bring up failure to follow pre-action conduct and protocols.
Could you also tell me what parts of the defence look solid and perhaps a prediction of how this may unfold using your expert opinions?0 -
I'm not going to predict anything. When a case goes to a hearing, it's usually 50/50 - or one of the parties has missed the fact that the other has a "killer argument"
Generally these tend to come down to whether you hold your own as an advocate to explain why the claimant is wrong - understandably really, both claimants and defendants are using template based defences.
FWIW my defence was decent, but I could spot the precise moment the scales tipped in my favour following the arguments put to the judge. Ie. it wasn't the written defence that won it - although it was solid.
The problem is that confidence, levels of preparation etc all vary between forum users.0 -
Hi all, when filing the defence, how does one go about attaching documents? I am hoping to attach emails / screenshots / PDFs of the leasehold contract etc. Any info on formatting these would be appreciated.0
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peoplepower555 wrote: »Hi all, when filing the defence, how does one go about attaching documents? I am hoping to attach emails / screenshots / PDFs of the leasehold contract etc. Any info on formatting these would be appreciated.
No documents get attached to a Defence.
A Defence is pure narrative.
Evidence comes later - at Witness Statement and evidence stage.
All explained in post #2 of the NEWBIES thread.0 -
NEW Update since last post - My management company have admitted fault and paid for three of the five PCNs in this claim. The fault was that they took payment for the permit but didn't send it to me in the post. This leaves me a bit confused - Shouldn't UKPC withdraw the claim and file again? I have amended the defence accordingly.
The when referring to the tickets in the real defence, the real PCN issue numbers will be used, but in this anonymised version i will call them PCN 1, 2, 3, 4, 5. Here is which PCN each number refers to:
1 - PCN issued 03.2016 - for parking on a street in the town centre which i have little recollection of.
2 - PCN issued 03.2018 - for parking at my flat (prior to purchasing a permit)
3 - PCN issued 06.2018 - for parking at my flat (after purchasing a permit)
4 - PCN issued 06.2018 - for parking at my flat (after purchasing a permit)
5 - PCN issued 06.2018 - for parking at my flat (after purchasing a permit)
START OF DEFENCE
[MY NAME]
[ADDRESS]
[DATE]
IN THE COUNTY COURT
Claim number: XXXXXXXX
BETWEEN:
Claimant: UK Parking Control Limited
-and-
Defendant: [MY NAME]
*Note: Three of the five PCNs in this claim have been paid on 22nd February 2019 by the property management company, due to them being responsible for the error relating to the Defendant’s parking permit. The claimant should have known that the mistake was made by the property management company and not the Defendant, but they did not because they did not attempt to better understand the position of the Defendant, breaching Pre-Action Conduct Protocols and wasting time for all involved. Instead, an aggressive campaign of threatening letters ensued.
Preliminary
1. The Particulars of Claim lack specificity. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant amend their Particulars in any way at a later stage of these proceedings and/or to limit the Claimant only to the allegations in the Particulars.
2. The claimant admits that he was the driver of the vehicle (Reg: XXXX XXX) on all five occasions in which PCNs were issued, detailed in the Particulars of the Claim document.
3. Four of the five PCNs were issued at [MY ADDRESS]. The defendant was renovating the property between purchasing the property in February 2018 and moving in to the property in June 2018. Often, weeks were spent away from the site by the defendant who juggled the renovation with a full-time job. These sporadic site visits might explain to the presiding judge any perceived chronological anomalies, such as receiving three PCNs in the month of June alone, yet none in the month before.
4. In this case, the property management group referenced are named [COMPANY NAME] and the point of contact there is Regional Manager [CONTACT'S NAME]
5. The reason that the defendant does not want to risk being summoned to court is because missing a day of work could result in losses which cannot be quantified, due to the defendant working in a pressurised sales environment. The Defendant has been open to settling the claim out of court for the entire duration of this claim, however a failure by the Claimant to comply with Pre-Action Conduct and Protocol and provide necessary requested information has left the Defendant unable to assess the evidence and decide if he should offer to do this.
5.1 If the defendant is summoned to court, he will ask for compensation for missing a day of work and all travel expenses. Taken from a monthly average over the last 3 months the defendant earns X per month and will request that this is divided by 20 (to approximately replicate the amount earned each working day per month) and the resulting figure is paid to him by the Claimant. If the Defendant only misses half a day of work due to this court hearing, he will ask for half a day’s pay, as calculated above.
Part A: Relating to: Failure to follow Pre-Action Protocols and unjustified, unexplained inflation of costs
6. Pre-Action Conduct and Protocols are outlined by the Ministry of Justice: https://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_pre-action_conduct#6.1 - In section 6c of the document, it states that the parties must disclose to each other “key documents relating to the case”. It is a fact that the claimant has included in their claim an alleged parking offence which occurred 35 months ago. In the past two years, the Defendant has received no communication about this alleged offence. The Defendant cannot accurately recall events so far in the past and therefore cannot be expected to defend this part of the claim.
6.1. The defendant, in keeping with Pre-Action Conduct and Protocols, views litigation as a last resort. He is keen to settle out of court if he has breached any parking regulations, although he believes he has not. The only way he can know this for sure is by having all information relating to the case held by the claimant. A Subject Access Request was sent to the Claimant's Data Protection Officer on 4th February 2019 in order to obtain the “key documents relating to the case” referred to in the Pre-Action Conduct Protocols, section 6c. The Subject Access Request asked the Claimant for:- All photos taken of the Defendant’s vehicle by the Claimant.
- All letters sent to the Defendant by the Claimant.
- All of the Defendant’s personal data currently held by the Claimant.
- A full list of all PCNs UKPC Ltd consider outstanding relating to the Claimant.
- Any other information the Claimant will rely upon in relation to the Defendant’s alleged Parking offences.
6.2. The Claimant is aware of legislation surrounding primacy of contract, which applies to the remaining four PCNs referred to in this claim. A leasehold contract cannot be overridden by a parking control company who have no agreement in place with the Defendant. The Claimant should have checked with the property management company or the Defendant that they were not issuing PCNs to a genuine leaseholder, who is granted “exclusive right to use” his allocated parking space. This would have been extremely easy for the Claimant to do. The fact that the Claimant did not check that they were issuing PCNs to a genuine leaseholder means that they did not comply with section 3a of the Pre-Action Conduct of Protocols document, which states they should have made the effort to communicate with the Defendant in order to better understand his position. Instead, an aggressive campaign of letters threatening legal action was embarked upon by the Claimant in a clear attempt to bully the Defendant in to paying money which he did not owe. The Defendant suspects that the reason for this tactic is that the Claimant makes money from other leaseholders who do not know their rights and end up paying for fear of prosecution.
7. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case that figure is £100 for each PCN. The claim includes an additional £60 per ticket, for which no calculation or explanation is given.
8. There are five total PCNs issued, which equates to £500 in maximum penalty charges. This claim inflates the total to an eye-watering £930, in a clear attempt at double recovery. The Defendant trusts that the presiding Judge will recognise this wholly unreasonable conduct as a gross abuse of process and may consider using the court's case management powers to strike the claim out of the court's own volition. The acid test is whether the conduct permits of a reasonable explanation, but the Defendant avers it cannot.
9. According to Ladak v DRC Locums UKEAT/0488/13/LA the claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration costs allegedly incurred by already remunerated clerical staff working for a firm of solicitors in issuing robo-claims.
10. Not only are such costs not permitted (CPR 27.14) but the Defendant believes that the Claimant has not incurred legal costs at all. The Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste claims at all.
11. It was held in the Supreme Court in Beavis (where £85 was claimed, and no more) that a private parking charge already includes a very significant and high percentage in profit and more than covers the costs of running an automated regime of template letters. It is also a fact that debt collection agencies act on a no-win-no-fee basis for parking operators, so no such costs have been incurred in truth. Thus, there can be no 'damages' to pile on top of any parking charge claim, nor 'indemnity costs if applicable', whatever that vague phrase may mean. The Claimant knows this, as do their solicitors who charge little or no fee to many parking regulation companies. The Defendant asks that the Court takes judicial notice of this repeated abuse of consumers rights and remedies, caused by parking regulation companies and solicitors artificially inflating their robo-claims.
Part B. Relating to: PCN number 1 - Issued: 03.2016
12. The defendant refers to section 6.1, detailing the Subject Access Request made to the claimant, which has so far had no response. The defendant requested this because he does not have any evidence or documents relating to PCN number 1. The defendant queries how a claim can be adequately defended without being first provided with all documents and evidence relating to the claim. The defendant considers it unreasonable to believe that he should have copies of letters relating to an alleged parking offence 35 months ago. This is a clear breach of Pre-Action Conduct and Protocols, section 6c. The defendant also considers it unreasonable to be expected to remember all specifics of an alleged parking violation which occurred 35 months ago. The defendant requests that PCN number 1 be stripped from the particulars of the claim entirely for a failure to follow correct procedures.
13. The Particulars of the Claim document details five alleged parking offences. One offence (PCN number 1) allegedly occurred on 03.2016, while the other four offences are alleged to have occurred between 03.2018 and 06.2018. The claimant also notes not only the sizeable difference in PCN issue dates, but also difference in location, circumstance, reason for the claims and the different “contracts” allegedly breached. The PCN issued in 2016 is evidently far removed from the others in many aspects, therefore the defendant requests that PCN number 1 be stripped from the particulars of the claim entirely.
14. The Defendant avers that the signage displayed at [LOCATION OF PCN 1 "OFFENCE"], was displayed in a font which was too small to read and in such a position that anyone attempting to read the font would not be able to do so easily. The defendant requests photographic evidence that it this was not the case, dated XX.03.2016.
15. The Defendant avers that the signage at [LOCATION OF PCN 1 "OFFENCE"] was not displayed in a clear and obvious location, which anyone could be expected to see. The defendant requests photographic evidence that this was not the case, dated XX.03.2016.
Part C. Relating to: Primacy of Contract
PCN number 2 - Issued: 03.2018
PCN number 3 - Issued: 06.2018
PCN number 4 - Issued: 06.2018
PCN number 5 - Issued: 06.2018
16. By virtue of the Lease, the defendant purchased the leasehold title to the property for a term of 972 years. The property boundaries were defined in the lease, as was the highlighted parking space, which is number XX. The Defendant is granted an "exclusive right to use" his vehicle parking space by his leasehold contract. A copy of the leasehold contract will be provided to the court.
17. In Pace v Mr N [2016] C6GF14F0 [2016] it was found that the parking company could not override the tenant's right to park by requiring a permit to park because the leasehold contract does not specify that a permit is required to park in the space owned by the leaseholder. The defendant maintains that the same scenario is occurring in this case, relating to the four PCNs addressed in Part C of this defence. A leasehold contract is currently in place in place and the defendant maintains that the claimant has no legal grounds to issue PCNs to the defendant for parking in his own designated space. The defendant maintains that any attempt by the claimant to charge the defendant for parking in his own designated space would be a breach of his leasehold agreement.
The full quote from District Judge Coonan’s judgment relating to that case was “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 Defendant will also rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial.
18. The defendant believes that the purpose of residential management companies employing parking control companies at residential sites is to stop non-residents from parking in parking spaces owned by residents. The four PCNs, that Section C of this defence refers to, are issued to a genuine leaseholder, with a valid leasehold arrangement which grants “exclusive right to use” the vehicle parking space. A full copy of the lease will be provided to the presiding judge.
19. The Defendant maintains that the Claimant should have checked with the property management company before pitching up on site and issuing charges. They should have employed due diligence to check they were not ticketing people who should not be receiving them. They should have done this up front by asking their "employers" (the property management company), especially because this was at a residential site. The defendant maintains that it would be unreasonable for them not to know they shouldn't be ticketing genuine residents and should have checked the residents' lease before they agreed to attempt to manage the site.
20. Accordingly it is denied that:
20.2. There was any agreement as between the Defendant or driver of the vehicle and the Claimant
20.3. There was any obligation (at all) to display a permit; and
20.4. The Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.
Part D. Relating to: The purchase of a valid parking permit prior to the issuing of three of the five PCNs in this claim
PCN number 3 - Issued: 06.2018
PCN number 4 - Issued: 06.2018
PCN number 5 - Issued: 06.2018
21. The defendant paid for a parking permit for his parking space on the XXth April 2018. A dated proof of purchase will be provided to the court. Part D of this defence refers to three PCNs which were issued after the permit had already been paid for by the defendant.
22. The defendant insists that the permits did not arrive in the post shortly after payment 19th April 2018.
23. The defendant has a copy of emails exchanged between himself and the property management company between XXth August 2018 and XXth August 2018, asking why he is still receiving PCNs after paying for a permit in April 2018. These emails will be provided to the court. It is denied that it is reasonable that the defendant should have queried this issue sooner and the defendant points to the fact that it is the property management company’s job to deliver the permit after payment. Due to this failure to deliver the permit, the claimant believed at the time that a vehicle registration plate recognition system was being used instead of paper permits and that the parking wardens were making an error in issuing his [CAR MODEL AND REG] with PCNs. It is denied that the property management company ever specified that it would be a paper permit arriving in the post.
24. On XXth August 2018, [MY CONTACT AT THE MANAGEMENT COMPANY], the point of contact at the property management company, responded to the defendant’s email on the XXth August 2018 and confirmed that there had been “issues with the initial parking permit being received”. Therefore it is proven that the defendant is not responsible for the late arrival of his parking permit. This proof is compounded because upon hearing of this claim on 22nd February 2019, the Claimant's property management company paid in full for all three of these PCNs - These are no longer owed and should be stripped from the claim. Proof of all of these emails will be provided to the court. The Defendant avers that the Claimant has made no effort to better understand the position of the Defendant, in keeping with the Pre-Action Conduct and Protocols. If they had done this, they would have discovered last year that the mistake was made by the property management company and not the Defendant. This lack of willingness to investigate has resulted in harassment and a lot of stress for the Defendant.
25. On XXth August 2018, [MY CONTACT AT THE MANAGEMENT COMPANY], the point of contact at the property management company, responded to the defendant’s email on the XXth August 2018 and insinuated that he had requested two PCNs be removed by the claimant. The PCNs were swiftly removed by the claimant under instruction of their employer, the property management group. These two PCNs were clearly and obviously removed because payment for the permit had already been made in April 2018.
26. In the same email sent to the defendant on XXth August 2018, [MY CONTACT AT THE MANAGEMENT COMPANY] explains that the claimant required PCN reference numbers in order to cancel any other outstanding PCNs (such as the three in Part D of this defence). The defendant did not have the remaining outstanding PCN numbers to hand. The defendant denies that the claimant lacks the capability to look up PCNs using names, addresses and vehicle registration numbers. The defendant wonders how parking control companies are able to use a number plate to find someone’s address and send them a fine in the post, yet when asked to look up a PCN and cancel it, they state that they cannot do that using anything other than the PCN number. The defendant suspects that this is simply another strategy used by these companies to make the cancellation of a wrongfully issued PCN as awkward as possible, in the hope that the victim might run out of fight and simply pay the unwarranted charge.
27. On the 22nd February 2019 and upon learning of these legal proceedings, the Defendant's property management company emailed the Defendant and explained that they would be paying for the three PCNs referred to in Part D of this defence. [MY CONTACT AT THE MANAGEMENT COMPANY] told the Defendant that payment was currently processing. The property management company were admitting fault for not sending the Defendant his parking permit and there these three PCNs have now been paid for. Proof of these emails will be provided to the court. The defendant still believes that the three PCNs referred to in Part D of this defence were never owed because the of the primacy of the Defendant’s leasehold contract.
In summary- The Claimant has breached the Pre-Action Conduct and Protocols guidelines as outlined by the Ministry of Justice. Notable breaches include a failure to supply critical evidence to the defendant when requested and a lack of willingness to understand better the position of the defendant and leaseholder, which would have avoided this entire claim. This also has prevented the Defendant from deciding if he wanted to offer to settle the claim outside of court because he has no evidence and little memory of PCN number 1 - Issued: XX.03.2016
- A 35 month-old, unrelated, alleged offence has been added entirely inappropriately to a more recent and relevant set of four claims. This has complicated proceedings needlessly and should not have been included in the same claim.
- The remaining four PCNs were issued in a private parking space owned by the defendant, which his leasehold agreement grants him “an exclusive right to use”. Any PCNs issued in this instance are unlawful.
- In Part D, three of the four PCNs issued at [MY ADDRESS] were issued after a permit had been paid for, but the property management company had failed to deliver the parking permit. The defendant has copies of an email confirming that the property management company have paid all three of these PCNs because it was their mistake - The Claimant should have done more research and found this out themselves, especially as they are in regular communication with the property management company. The defendant notes that the parking permit argument should not even be required due to the leasehold agreement ensuring that the defendant has no legally binding agreement with the defendant.
In summary, it is the Defendant's position that the entire claim 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.
The defendant has experienced high levels of stress regarding this case and has had to conduct 25-30 of hours of research and hard work to form this defence. The defendant asks that the judge dismiss the entire claim. If the claim is dropped, the Defendant will not ask for damages. If this claim makes it to court, the Defendant will ask the Claimant for damages and compensation for loss of earnings. The Defendant will seek damages of £600 from the claimant for bringing such a needlessly complex, meritless claim to court and wasting so much time for all involved. The defendant’s damages are calculated at £20 per hour although invites the presiding judge’s opinion as to what would be a fair amount. Further to these damages, the Defendant claims a loss of wages and requests to be compensated XXXXX as calculated in the preliminary section of this defence. The total figure the Claimant seeks from the Defendant is XXXXX.
I believe that the statements in this Defence are true.
Signed:0
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