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UKPC/SCS County Court Claim - Help urgently requested

edited 15 February 2019 at 5:25PM in Parking Tickets, Fines & Parking
44 replies 2.3K views
Focus19Focus19 Forumite
22 posts
edited 15 February 2019 at 5:25PM in Parking Tickets, Fines & Parking
A County Court Claim form has been received, filed by SCS Law on behalf of UKPC Ltd. The assistance of this forum would be greatly appreciated.

Situation is as follows:

My elderly mother lives in a gated apartment complex where the parking is patrolled by UKPC. She has a UKPC permit but from time to time, due to forgetfulness or temporary misplacement, the permit has not been displayed in her car under the windscreen as UKPC require. On several occasions over the course of the past few years a PCN has been placed on the car due to the permit not being displayed. When she has received the usual nuisance letters from UKPC chasing payment for these ‘tickets’, she has ignored them, as a neighbour advised that’s what they had done over the years with no ill effects other than nuisance letters from UKPC and DRP.

However, in this instance UKPC have now instructed SCS to pursue legal action against my mother for recovery of what they term the ‘debt’ relating to 4 of the PCNs. Each of the claims is the same (for 4 different dates), with the ‘Contravention’ stated as: ‘Parking in a designated ‘Permit Holder Parking Space’ without clearly displaying a valid permit.’

Amount claimed is £100 + £60 for each ticket (total of £640). Various costs have been added, bringing the total claimed via the Court Claim to £770.

The car park is accessed via an electronic gate opened with a key fob remote, which all residents have. Therefore the instances of anyone other than residents or their visitors parking in the car park are very rare (we know of none). The signage is the usual UKPC signage, with the only legible part of the signage from any distance being ‘NO UNAUTHORISED PARKING’, with the small print below.

My mother is a tenant (rather than a leaseholder), and her Tenancy Agreement does not refer to car parking restrictions or contracts in any way (other than boilerplate language not permitting the parking of unroadworthy or commercial vehicles). She was given the parking permit and key fob for entry by her landlord, who is the leaseholder. My mother is insistent that her landlord not be involved in this matter in any way - she is on good terms with him, and does not want that impacted by involving him in any kind of legal action. My understanding is that he purchased the flat about 10 years ago, well before the involvement of UKPC, which is contracted by the Managing Agent. I would therefore expect that his lease makes no reference to UKPC or third party patrol of the car park, but of course I cannot be sure of that, and cannot reference the original lease.

My main Defence argument is that UKPC have no contract with my mother, whatever the various correspondence from SCS might claim (they appear to claim that those parking on the site “enter into a contract by conduct”).The facts are that she is a resident at the complex, and so must park there, so I fail to see how a contract can fairly be forced upon her when she has not agreed to it. Her only contract is with her landlord, via the Tenancy Agreement they have both signed. I have done my best to cover this position in my draft Defence for her.

With regard to other potential defences, I have not mentioned the signage, as with her being a resident who could read this at any time over a number of years, it seems that arguing ‘poor signage’ would not carry much weight. However, please do advise if I should include this element of defence anyway.

Further to the Letter Before Claim being received from SCS, she did request additional information from SCS/UKPC (as advised on this forum), and received a large bundle of material covering some of the points requested. She received:
- For each ticket issued, a copy of the original ticket and a couple of the letters sent requesting payment (naturally they did not include the many vexatious letters from UKPC/DRP for each ticket).
- Grainy photographs showing her parked car and pictures of the signage (which seem to hardly help their case as they are basically illegible).
- A copy of the contract between UKPC and the Managing Agent (which, interestingly, includes a blacked out box labelled ‘Commission’, which seems extremely shady in and of itself, besides any legal issues). I noted that this contract refers to a maximum charge per PCN of £100, when UKPC have tacked on an additional £60 per claim for referral to their ‘debt recovery agents’, as is their wont. (I have tackled this in my draft Defence).
- A copy of the Signage wording (not a photograph, so this is actually legible).
- A map and some photographs of the complex, which don’t seem to add anything to their case.

As per the above, the evidence supplied by UKPC would appear to be poor and generic. Please advise if this should be referred to in the defence; I have not done so at this time.

I submitted the ‘Acknowledgment of Service’ on time, and the Defence is due to be filed by this coming Monday 18 Feb. I am intending to file it as a PDF sent via email (as per the instructions given on this forum) by noon on Monday. [Edit: Corrected final deadline date]

I have read the ‘Newbies’ thread, and as many other threads as I can manage which seem to be relevant to this case. Based on this reading, I am now posting the Defence I have drafted so far (in a separate post below), and would be very grateful if the experts here could review it and post all and any advice. Sincere apologies for posting this and requesting assistance only a few days before it needs to be submitted; I was completely unfamiliar with how to deal with this issue until only a couple of weeks ago, and it has taken me many hours to get to the point where I am able to post anything substantive in terms of a draft Defence for review by the forum.

Please advise if the forum also needs to see any of the correspondence from SCS Law or the Particulars of Claim. From what I can gather what has been received is pretty standard, but of course I’ll be happy to post further particulars if that would be useful/necessary. Many thanks in advance.
«1345

Replies

  • KeithPKeithP Forumite
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    What is the Issue Date on your Claim Form?

    Did it come from the County Court Business Centre in Northampton, or from somewhere else?
  • Current draft Defence:

    IN THE COUNTY COURT

    CLAIM No: xxxxxxxxxx

    BETWEEN:

    UK PARKING CONTROL LTD (Claimant)

    -and-

    xxxxxxxxxxxx (Defendant)

    ________________________________________
    DEFENCE
    ________________________________________

    Preliminary

    1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all. Save where otherwise admitted, each and every allegation in the Particulars of Claim is denied.

    2. The Particulars of Claim lack specificity. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the un-evidenced allegations in the Particulars.

    3. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct.

    Background

    4. It is admitted that at all material times the Defendant was the owner of the vehicle in question.

    5. The Defendant is a resident and tenant at the location where the Parking Charge Notices in question were issued.

    6. 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.

    7. 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.

    8. It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking 'parking management'.

    9. It is denied that any parking charges “loss and/or damage" (whatever they might be) as stated on the Particulars of claim are owed and any debt is denied in its entirety.

    10. It is not admitted that the Claimant has contractual or other lawful authority to make contracts with residents at this location, and/or to bring proceedings against the Defendant. The Claimant is put to strict proof. Further, and in the alternative, the Defendant avers that the Claimant requires the permission of the owner of the relevant land - not merely another contractor or site agent not in possession - in order to commence proceedings.

    Authority to Park and Primacy of Contract

    11.There are no terms within the Defendant’s Tenancy Agreement requiring tenants to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same. Primacy of contract cannot be amended by Private Parking Company signs unless the Tenant has agreed to a variation of the tenancy, which the Defendant has not.
    11.1. There is a large body of case law, which establishes this. In Link Parking Ltd vs J. Parkinson [2016] C7GF50J7, the Judge, referring to a similar case in In Pace Recovery v Mr N [2016] C6GF14F0 [2016] ruled that:
    “…the Judge in that case found that the parking company could not amend the terms of the tenancy agreement to bind a tenant, but rather that it would have to be the other party to the contract.

    12. In correspondence received by the Defendant, the Claimant relies on the case of ParkingEye v Beavis [2015] UKSC 67 as a binding precedent on the lower court. However, that only assists the Claimant if the facts of the case are the same, or broadly the same. In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas it is the Defendant's position that no such breach occurred in this case, because there was no valid contract, and also because the 'legitimate interest' in enforcing parking rules for retailers and shoppers in Beavis does not apply to these circumstances. Therefore, this case can be distinguished from Beavis on the facts and circumstances.

    13. Entry to the parking area is by means of a key fob, of a type only issued to residents. Any vehicles parked therein are, therefore, de facto authorised to be there.

    14. The Particulars of Claim state that the Defendant was parked in a designated space “without clearly displaying a valid permit.” The Defendant does possess a permit and displays it accordingly but only as a courtesy, not as a matter of contract or obligation.

    15. It is stated within the Tenancy agreement that The Tenant has the right to “quietly possess and enjoy the Property during the Agreement without any lawful interruption from the Landlord” so long as the Tenant complies with the terms of the Agreement and has proper respect for other tenants and neighbours.

    16. The Claimant’s notices attempt to make a forbidding offer, which isn’t an offer at all therefore no contract exists. The claimant’s notices clearly state no unauthorised parking therefore there is no offer of a contract for those who are supposedly unauthorised and therefore no contract.

    17. 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.

    18. The principle of primacy of contract of the terms of a Lease, overriding any purported terms conveyed by a parking operator's signage, is well rehearsed in numerous persuasive Judgments given at various County Court hearing centres. The Defendant will provide transcripts of a selection of Approved Judgments supporting this principle at the appropriate time, should this matter proceed to trial.

    19. The Defendant avers that the operator’s signs cannot override the existing rights enjoyed by residents. Accordingly it is denied that:
    19.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant.
    19.2. there was any obligation (at all) to display a permit; and
    19.3. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

    Wholly unreasonable and vexatious claim

    20. The Defendant avers that there can be no "legitimate interest" in penalising residents for using parking spaces, under the excuse of 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 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 provided.

    21. 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.

    22. The Claimant, or their legal representative, has added an additional sum of £60 to the original £100 parking charge, for which no legitimate 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.
    22.1 Furthermore, the Defendant submits that the legal representatives’ costs have not actually been incurred by the Claimant. Correspondence on behalf of the Claimant advises that these additional £60 sums are owed due to costs incurred by the Claimant’s use of their “debt recovery agent” (Debt Recovery Plus). However, this company operates on a ‘No Win, No Fee’ basis, and as the Defendant has made no payment, no fee can have been incurred by the Claimant with regard to the matters under judgment. The Defendant suggests that this action may be indicative of a pattern of behaviour by the Claimant whereby they seek payment where none is truly owed.

    23. It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, the Defendant is keeping careful note of all wasted time/costs in dealing with this matter and should the case continue to trial, the Defendant will seek further costs, pursuant to Civil Procedure Rule 27.14(2)(g).

    24. The Defendant denies the claim in its entirety, voiding any liability to the Claimant for all amounts due to the aforementioned reasons. The Defendant asks that the court gives consideration to exercise its discretion to order the case to be struck out under CPR Rule 3.4, for want of a detailed cause of action and/or for the claim having no realistic prospects of success.

    25. If the court is not minded to make such an order, then when Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because it is expected that the Claimant will use its witness statement to provide the sort of detail which should have been disclosed much earlier, and the Defendant should have the opportunity to consider it, prior to serving evidence and witness statements in support of this defence.

    I believe the facts contained in this Defence are true.

    Name
    Signature
    Date
  • Issue date on the Claim Form is 16 Jan.

    The AoS was submitted online, and a confirmation received, on 30 Jan.

    Yes, it came from Northampton.
  • edited 15 February 2019 at 5:06PM
    KeithPKeithP Forumite
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    edited 15 February 2019 at 5:06PM
    Focus19 wrote: »
    Issue date on the Claim Form is 16 Jan.
    You plan looks good, but maybe something useful here...

    With a Claim Issue Date of 16th January, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Monday 18th February 2019 to file your Defence.

    That's just a few days away, as you know.


    When you are happy with the content, your Defence should be filed via email as suggested here:
      Print your Defence.
    1. Sign it and date it.
    2. Scan the signed document back in and save it as a pdf.
    3. Send that pdf as an email attachment to [email protected]
    4. Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
    5. Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
    6. Do not be surprised to receive a copy of the Claimant's Directions Questionnaire, they are just trying to put you under pressure.
    7. Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.
  • Thanks, Keith. I had seen your instructions elsewhere on the forum and am planning on following them to submit the Defence on Monday. It's good to have confirmation that this advice has not been updated beyond what I've seen already.
  • The_DeepThe_Deep Forumite
    16.8K posts
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    Have tou seen these

    https://www.bing.com/search?q=ukpc+fraudsters+the+telegraph&form=EDNTHT&mkt=en-gb&httpsmsn=1&refig=698122c99d6942b2d51d6324f2b99e2e&PC=ACTS&sp=1&qs=SC&pq=ukpvc+fraud&sc=2-11&cvid=698122c99d6942b2d51d6324f2b99e2e&cc=GB&setlang=en-GB

    https://www.consumeractiongroup.co.uk/forum/showthread.php?377246-UKPC-liable-for-trespass-**SUCCESS**

    get your MP Involved

    The whole industry is a scam, relying on threats of court, and the public's ignorance of the Law, A bill is currently before parliament which will regulate the scammers, many of whom are ex-clampers.

    This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of alleged contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors. Is has been suggested by an MP that some of these companies may have connections to organised crime.

    Parking Eye, CPM, Smart, (especially Smart}, and others have already been named and shamed in the House of Commons as have Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each week), hospital car parks and residential complex tickets have been especially mentioned. They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

    The problem has become so widespread that MPs have agreed to enact a Bill to regulate these scammers.

    Sir Greg Knight's Private Members Bill to curb the excesses, and perhaps close down, some of these companies passed its Second Reading in the Lords this month, and, with a fair wind, will l become Law later this year..

    All five readings are available to watch on the internet, (some 7-8 hours), and published in Hansard. MPs have an extremely low opinion of the industry. Many are complaining that they are becoming overwhelmed by complaints from members of the public. Add to their burden, complain in the most robust terms about the scammers.
    You never know how far you can go until you go too far.
  • Coupon-madCoupon-mad Forumite
    84.8K posts
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
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    The defence is good, if long. I have made a few suggestions in red:
    Focus19 wrote: »
    Current draft Defence:

    IN THE COUNTY COURT

    CLAIM No: xxxxxxxxxx

    BETWEEN:

    UK PARKING CONTROL LTD (Claimant)

    -and-

    xxxxxxxxxxxx (Defendant)

    ________________________________________
    DEFENCE
    ________________________________________

    Preliminary

    1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all. Save where otherwise admitted, each and every allegation in the Particulars of Claim is denied.

    2. The Particulars of Claim lack specificity and [STRIKE]The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the un-evidenced allegations in the Particulars.
    3. The Particulars of Claim[/STRIKE] fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct.

    3. 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.

    Background

    4. It is admitted that at all material times the Defendant was the owner and registered keeper of the vehicle in question. The Defendant is unable to admit or deny whether they were the driver who parked the vehicle on each or every occasion, given the lack of evidence from the Claimant and the fact the car may be driven by more than one relative.

    5. The Defendant is a resident and tenant at the location where the Parking Charge Notices in question were issued. The Defendant's landlord has owned the flat for some ten years, and has granted his tenants rights to park based upon the demise, grant and/or easements within his own lease for many years before this Claimant appeared on the scene.

    6. It is averred that the Defendant is entitled to rely upon the parking rights granted from the landlord, and further up that chain of authority, the landlord is entitled to rely upon his primacy of contract within his lease, in order to grant his tenants an unfettered right to park.

    7. The Claimant is put to strict proof of their due diligence by inspecting the Head Lease and considering the rights of the residents, prior to commencing enforcement. This is a location where residents already enjoyed rights that cannot be varied, restricted or charged for, outwith a lease variation (Landlord & Tenant Act 1987 applies). Where a majority of the leaseholders agree to any proposed variation, if there are less than 9 leases all or all but one of the parties must consent and if there are more than 8 leases, 75% of the parties must consent, and not more than 10% must not object to the proposed variation. This degree of consensus is notoriously hard to achieve and it is averred the Claimant has simply not bothered, and merely set up some signs and imposed permits upon people out of the blue, causing an ongoing private nuisance to those affected.


    8. 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.

    9. It is denied that any parking charges “loss and/or damage" (whatever they might be) as stated on the Particulars of claim are owed and any debt is denied in its entirety.

    10. It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking 'parking management'. It is not admitted that the Claimant has contractual or other lawful authority to make contracts with residents at this location, and/or to bring proceedings against the Defendant. The Claimant is put to strict proof. Further, and in the alternative, the Defendant avers that the Claimant requires the permission of the owner of the relevant land - not merely another contractor or site agent not in possession - in order to commence proceedings.

    Authority to Park and Primacy of Contract

    11.There are no terms within the Defendant’s Tenancy Agreement requiring tenants to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same. Primacy of contract cannot be amended by Private Parking Company signs unless the Tenant has agreed to a variation of the tenancy, which the Defendant has not.

    11.1. There is a large body of case law, which establishes this. In Link Parking Ltd vs J. Parkinson [2016] C7GF50J7, the Judge, referring to a similar case in In Pace Recovery v Mr N [2016] C6GF14F0 [2016] ruled that:
    “…the Judge in that case found that the parking company could not amend the terms of the tenancy agreement to bind a tenant, but rather that it would have to be the other party to the contract.

    12. In correspondence received by the Defendant, the Claimant relies on the case of ParkingEye v Beavis [2015] UKSC 67 as a binding precedent on the lower court. However, that only assists the Claimant if the facts of the case are the same, or broadly the same. In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas it is the Defendant's position that no such breach occurred in this case, because there was no valid contract, and also because the 'legitimate interest' in enforcing parking rules for retailers and shoppers in Beavis does not apply to these circumstances. Therefore, this case can be distinguished from Beavis on the facts and circumstances.

    13. Entry to the parking area is by means of a key fob, of a type only issued to residents. Any vehicles parked therein are, therefore, de facto authorised to be there.

    14. The Particulars of Claim state that the Defendant was parked in a designated space “without clearly displaying a valid permit.” The Defendant does possess a permit and drivers of that car display it accordingly but only as a courtesy, not as a matter of contract or obligation.

    14.1. Even if the Defendant is shown to be the driver on every occasion, the foisting of a permit scheme on elderly tenants in this gated complex with an immediate expectation of displaying it, is a particularly unfair burden. The Defendant is an elderly occupant with various ailments slowing her down from a mobility and cognitive aspect and from time to time, due to forgetfulness, temporary misplacement or merely the time taken to get into the flat to fetch the permit, it is not always readily available within minutes of parking. The photographic evidence only shows the car over a short period, on these occasions, and is not evidence of a non authorised driver.

    15. It is stated within the Tenancy agreement that The Tenant has the right to “quietly possess and enjoy the Property during the Agreement without any lawful interruption from the Landlord” so long as the Tenant complies with the terms of the Agreement and has proper respect for other tenants and neighbours. The only restrictions upon parking disallow parking of unroadworthy or commercial vehicles.

    16. The Claimant’s notices attempt to make a forbidding offer, which isn’t an offer at all therefore no contract exists. The claimant’s notices clearly state no unauthorised parking therefore there is no offer of a contract for those who are supposedly unauthorised and therefore no contract.

    17. 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.

    18. The principle of primacy of contract of the terms of a Lease, overriding any purported terms conveyed by a parking operator's signage, is well rehearsed in numerous persuasive Judgments given at various County Court hearing centres. The Defendant will provide transcripts of a selection of Approved Judgments supporting this principle at the appropriate time, should this matter proceed to trial.

    19. The Defendant avers that the operator’s signs cannot override the existing rights enjoyed by residents. Accordingly, using the statutory wording from the Protection of Freedoms Act 2012, Schedule 4 (the POFA) relating to parking charges on private land, it is denied that:
    19.1. there was any 'relevant contract'[STRIKE]agreement as[/STRIKE] between the Defendant or driver of the vehicle and the Claimant.
    19.2. there was any 'relevant obligation' (at all) to display a permit. [STRIKE]and
    19.3. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.[/STRIKE]

    Wholly unreasonable and vexatious claim - no legitimate interest

    20. The Defendant avers that there can be no "legitimate interest" in penalising residents for using parking spaces, under the excuse of 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 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 provided. It is further averred that the Claimant's local staff see the same vehicles every day and knew, or should have known, that the vehicle was authorised, due to seeing the permit on multiple occasions.

    21. 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.

    [STRIKE]22. The Claimant, or their legal representative, has added an additional sum of £60 to the original £100 parking charge, for which no legitimate 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 understood to be £100. 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.

    22.1 Furthermore, the Defendant submits that the legal representatives’ costs have not actually been incurred by the Claimant. Correspondence on behalf of the Claimant advises that these additional £60 sums are owed due to costs incurred by the Claimant’s use of their “debt recovery agent” (Debt Recovery Plus). However, this company operates on a ‘No Win, No Fee’ basis, and as the Defendant has made no payment, no fee can have been incurred by the Claimant with regard to the matters under judgment. The Defendant suggests that this action may be indicative of a pattern of behaviour by the Claimant whereby they seek payment where none is truly owed.[/STRIKE]

    22. The POFA, 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 for four PCNs, a maximum of £400 depending on the Claimant's full compliance with the POFA and establishing a breach of a 'relevant obligation' and/or 'relevant contract'.

    22.1. This claim inflates the total to an eye-watering £770, 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.

    22.2. 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 renumerated clerical staff working for SCS Law in issuing robo-claims.

    22.3. 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.

    22.4. 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, and the Defendant asks that the Court takes judicial notice of this repeated abuse of consumers rights and remedies, caused by parking firms artificially inflating their robo-claims.


    23. It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, the Defendant is keeping careful note of all wasted time/costs in dealing with this matter and should the case continue to trial, the Defendant will seek further costs, pursuant to Civil Procedure Rule 27.14(2)(g).

    24. The Defendant denies the claim in its entirety, voiding any liability to the Claimant for all amounts due to the aforementioned reasons. The Defendant asks that the court gives consideration to exercise its discretion to order the case to be struck out under CPR Rule 3.4, for want of a detailed cause of action and/or for the claim having no realistic prospects of success.

    24.1. In the alternative, the Court is invited, under the Judge's own discretionary case management powers, to set a preliminary hearing to examine the question of this Claimant's substantial interference with easements, rights and 'primacy of contract' of residents at this site, to put an end to not only this litigation but to send a clear message to the Claimant to case wasting the court's time by bringing beleaguered residents to court under excuse of a contractual breach that cannot lawfully exist.

    25. If the court is not minded to make such an order, then when Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because it is expected that the Claimant will use its witness statement to provide the sort of detail which should have been disclosed much earlier, and the Defendant should have the opportunity to consider it, prior to serving evidence and witness statements in support of this defence.

    I believe the facts contained in this Defence are true.


    Name


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  • Coupon-mad, many thanks for undertaking a thorough review of my draft Defence, and for all your work on providing amendments. I have made these to my draft. Apologies for the late reply; I was attempting to get some more information about the landlord’s occupation of the flat, and I’ve provided a bit of additional clarification below on that.

    A few comments and questions:

    With regard to your amendment to para 5, is it safe to refer to the landlord’s lease when I haven’t seen it? As in, could I be required to produce a copy should the case be sent to trial? I am making an assumption as to what is contained in his lease based on my knowledge of other similar situations that there is no mention of the types of parking restrictions imposed by UKPC in the lease, but I don’t currently have firm proof of that.

    Further to this, my understanding is that the landlord bought the flat when the development was first sold in 2005. UKPC came on board in 2012 (as per the contract with the managing agents, of which we have a copy). The landlord was still living at the property himself in 2012 - which we know because he complains of problems he had himself with UKPC when living there - so I have removed the final part of your amendment so that it now reads as follows:
    “5. The Defendant is a resident and tenant at the location where the Parking Charge Notices in question were issued. The Defendant's landlord has owned the flat for approximately twelve years, and has granted his tenants rights to park based upon the demise, grant and/or easements within his own lease.”

    Para 19, you’ve removed 19.3. Could you advise on the thinking behind that? One of the things that most irked me about the Particulars of Claim is the paragraph: “In the circumstances, the Claimant has suffered loss and/or damage due to the Defendant’s failure to pay the charges.” Surely UKPC can’t claim to have suffered any “loss or damage” by the failure of payment of this PCN? I thought “loss or damage” could be claimed when, for example, a business might potentially lose custom due to a non- or overstaying customer parking for too long in their car park, which obviously does not apply in this case. Or can UKPC claim a loss simply because their business is issuing PCNs for payment by fines and these fines haven’t been paid?

    With regard to part 22, would it be something to put forward specifically at a later part of the process (if it gets that far), that UKPC are claiming the additional £60 per claim saying they are recovering costs paid to DRP, when we know they cannot have incurred such costs? I find it completely outrageous they continue to do this and that the courts have not taken them sufficiently in hand on these ongoing attempts at defrauding people.

    Thanks again.
  • Quick additional question for the forum experts:

    What is the Counter Claim process, if one wants to claim for compensation for all the time and aggravation involved in fighting these nuisance claims? When would a counter claim need to be lodged if one were so minded? Thanks.
  • Coupon-madCoupon-mad Forumite
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    Focus19 wrote: »
    Quick additional question for the forum experts:

    What is the Counter Claim process, if one wants to claim for compensation for all the time and aggravation involved in fighting these nuisance claims? When would a counter claim need to be lodged if one were so minded? Thanks.
    You could try, and you can check the fees that I think are £35 for a claim of £500. You would need to argue that the claims caused severe distress and that the company misused your data (breach of the DPA), and/or that they breached the Protection from Harassment Act.

    Pretty complicated to write, and likely to fail, IMHO. A poster here was actively steering people into template counter claims last year and it just wasn't a good idea IMHO, costs money and you'd need a strong argument and understanding of the law.

    You can get your costs for attending the hearing if you win. COsts you nothing, it's part of the process at the end of the hearing to ask.
    With regard to your amendment to para 5, is it safe to refer to the landlord’s lease when I haven’t seen it? As in, could I be required to produce a copy should the case be sent to trial? I am making an assumption as to what is contained in his lease based on my knowledge of other similar situations that there is no mention of the types of parking restrictions imposed by UKPC in the lease, but I don’t currently have firm proof of that.
    Yes, because this is the Claimant's claim to prove, not yours to prove.

    Further to this, my understanding is that the landlord bought the flat when the development was first sold in 2005. UKPC came on board in 2012
    I would mention those dates in your defence.

    - so I have removed the final part of your amendment so that it now reads as follows:
    “5. The Defendant is a resident and tenant at the location where the Parking Charge Notices in question were issued. The Defendant's landlord has owned the flat for approximately twelve years, and has granted his tenants rights to park based upon the demise, grant and/or easements within his own lease.”
    OK, good. Add the dates, to show he was there long before UKPC.


    Para 19, you’ve removed 19.3. Could you advise on the thinking behind that?
    The ParkingEye v Beavis case from 2015. NEVER argue 'no loss'!

    With regard to part 22, would it be something to put forward specifically at a later part of the process (if it gets that far), that UKPC are claiming the additional £60 per claim saying they are recovering costs paid to DRP, when we know they cannot have incurred such costs?
    Yes, and that's already said in 22.4.

    :)
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