UKPPO - CCJ Set Aside, now time to defend!

golfdriver

In January this year I discovered a CCJ against me from October 2018 as a result of an unpaid UKPPO parking charge dating from January 2016.

Following the excellent advice here and in other forums, I applied to have the judgment set aside on the basis that I never received the Claim Form having moved house twice since the event in question.

Following the success at the set aside hearing (which UKPPO did not attend) I issued a Subject Access Request to UKPPO to which they responded promptly.

A Court Order was issued on 5th Feb setting aside the judgement, and then on 7th Feb a Notice of Allocation to the Small Claims track with a hearing date set in mid-September. (The latter was somewhat unexpected as I have not yet submitted a defence - the set aside order gives my until later this month to do this?)

Background to disputed Parking Charge

In late January 2016 my car was parked between the hours of 2100 and 0700 the following day in a residential parking bay at my girlfriend’s flat. A period of 10 hours in total. A UKPPO enforced parking scheme had recently been introduced, and stupidly I left my newly issued Visitors Permit in the glove box.

The following morning I returned to the car at around 0700 to find a single NTD issued at 0630 that day attached to the screen. I reluctantly paid this with the discount period of 14 days having learned my lesson, not really understood the options open to me, etc.

In March 2016 I received a NTK from UKPPO (via the lease company who were registered keeper of the vehicle) relating to a further NTD that they claimed had been attached to the vehicle at around 2230 during the same period of parking.

I disputed this on the at least partly basis of it having been a double charge for a single period of parking, but it was dismissed both by their internal process and then via IAS in April 2016. Nothing more was heard prior to the ending of a mail redirection in June 2017.

Since the success of the application to set aside, I submitted a SAR to UKPPO which confirms the timings of both charges, confirms the fact that the later charge was paid, and provided photographic evidence which not only supports the fact that the vehicle was not moved between the two tickets, but also shows that the first NTD issued at 2230 was removed from the vehicle during the period that the UKPPO agent was in attendance at the vehicle issuing the 2nd NTD.

Defence

The Court Order gives me just over two weeks to file my defence.

My intention is to defend solely on the basis that the contract displayed on the signage (of which I have contemporary photographic evidence) states a charge of £100 for parking without displaying a valid permit. On the basis that I have paid a charge for this single, continuous 10 hour parking event, there is absolutely no basis to pursue for a second charge.

Am I being naive in defending just on this one point?

Given that I believe (hope!) the claim has no hope of succeeding in Court I also plan to write to Gladstones with an offer for early settlement, requesting that the claim is discontinued, and for payment solely for the cost of the set aside application. If they decline, I will claim for my full costs in court.

I will post up for critique both a draft of the letter to Gladstones and a draft defence which I hope to complete in the next few days in the hope that I can benefit from the vast knowledge of the forum.

Many thanks!

Coupon-mad

Yes you are extremely naive to defend on one point and we do NOT support that! Especially given what you say here:

but also shows that the first NTD issued at 2230 was removed from the vehicle during the period that the UKPPO agent was in attendance at the vehicle issuing the 2nd NTD.

Wow, how does the evidence show this as a fact, that THEY removed it?

Also, you can use in defence, the POFA Schedule 4 (even though you were the driver...) it's relevant to show that the intention of Parliament is clearly that a SINGLE 'period of parking' results in a single PCN, not more than one.

And the IPC CoP says that two PCNs can't be issued within a 12 hour period, IIRC (check it said that in the relevant version for a Jan 2016 parking event).

You also have so much more to add for a residential case, not least that the signs probably talk about 'unauthorised' vehicles and you were an authorised visitor and the resident has primacy of contract in their lease or tenancy agreement (maybe) that rendered this scheme superfluous and a private nuisance, harassing and charging residents and their visitors.

The_Deep

You paid, in a residential car park, why? Nobody does that.

Your appeal needs to throw the kitchen sink at them, read these

http://parking-prankster.blogspot.com/2016/11/residential-parking.html

https://www.parkingcowboys.co.uk/own-parking-space/

http://parking-prankster.blogspot.com/2017/06/residential-ticket-only-cancelled-after.html

Why does your gf need a permit? What does her lease/AST say about permits? Does it stipulate paying a penalty to a third party for non-display?

If none of the above, her lease may have primacy. PPCs have no place in residential car parks, complain like Donald Duck to your MP.

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 become so widespread that MPs agreed to enact a Bill to regulate these scammers. It has cleared Parliament and hopefully, this will become law shortly.


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golfdriver

Coupon-mad wrote: »

Yes you are extremely naive to defend on one point and we do NOT support that! Especially given what you say here:Wow, how does the evidence show this as a fact, that THEY removed it?

The SAR returned two sets of timestamped images taken by the two different UKPPO agents. One from the initial PCN which was affixed to the windscreen at 2230, with one image clearly showing its precise location on the windscreen directly covering the 'old' residential parking permit. The second set of images from 0630 shows an initial image of the vehicle with the original PCN affixed in the original location, and then an image from a few minutes later, after the second PCN had been affixed in a new location, with the original PCN clearly no longer affixed to the windscreen leaving the old residential permit now clearly visible.

Unsure how best to use this in defence but I attempt to research it.

Also unsure if any incentive scheme was in operation at the time, but if there were it might offer an explanation for why an earlier ticket issued by another agent may have been silently removed ....

Coupon-mad wrote: »

Also, you can use in defence, the POFA Schedule 4 (even though you were the driver...) it's relevant to show that the intention of Parliament is clearly that a SINGLE 'period of parking' results in a single PCN, not more than one.

I've had a thorough scan through POFA schedule 4 and the only relevant references I can find seem to contradict that? Paragraphs 7(3), 8(3) and 9(3) all use the wording "this does not prevent the giving of separate notices each specifying different parts of a single period of parking"

I do note that both the PCNs and the NTK say "The period to which this charge relates is the period immediately preceding "Time of issue" above.", and "This charge relates to the period of parking that immediately preceded the issue of that Notice" which may or may not be specific enough, or may indeed be taken to supercede prior notices?

The signage clearly states "Parking is restricted to vehicles displaying a valid Parking Patrol Permit only." and then "Failure to comply with the above restrictions will result in a £100 parking charge Notice being issued.", which does not seem to give any room for two charges for a single 10-hour parking event ...

Coupon-mad wrote: »

And the IPC CoP says that two PCNs can't be issued within a 21 hour period, IIRC (check it said that in the relevant version for a Jan 2016 parking event).

I've been able to find the 2nd, 5th and 6th editions of the IPC PoC and I cannot find any reference to this sorry! The 3rd edition is the one in effect during January 2016.

Coupon-mad wrote: »

You also have so much more to add for a residential case, not least that the signs probably talk about 'unauthorised' vehicles and you were an authorised visitor and the resident has primacy of contract in their lease or tenancy agreement (maybe) that rendered this scheme superfluous and a private nuisance, harassing and charging residents and their visitors.

Point taken! Yes, the signs state "no unauthorised parking", I was an authorised visitor and I my girlfriend will be able to provide a Witness Statement to that effect. I will also get on the case to see if we can locate a copy of her lease / tenancy agreement and what it states as to use of the car park.

Many thanks.

Umkomaas

@golfdriver - ^^ a great piece of positive and proactive work, research and analysis being undertaken/planned by you (a refreshing change from many cases here which require interminable handholding and prompting for even the most basic of obvious actions). :T

golfdriver

We've managed to find a copy of the lease agreement for my girlfriend's flat. There's nothing specific to parking, but it does contain a restrictive covenant on the landowner which looks like it could be used?

"(b) Not to do or permit or suffer on the said land anything which shall be or become a nuisance of annoyance to the transferor or its tenants or the owners or occupiers of any adjoining or neighbouring land."

Coupon-mad

Yes, add that point to the defence and state that the resident will confirm that this parking firm creating a private nuisance, with residents and their visitors routinely harassed for money no a car park where there was no need for a parking firm, no problem existed with trespassers (was it gated?).

I would still quote the POFA (re the point below) as it is unclear what the Act means by 'different parts' (BTW I made a typo in the reply about the IPC CoP, which I believe is the current one where PCNs cannot be issued within a 12 hr period, not 21).

I've had a thorough scan through POFA schedule 4 and the only relevant references I can find seem to contradict that? Paragraphs 7(3), 8(3) and 9(3) all use the wording "this does not prevent the giving of separate notices each specifying different parts of a single period of parking"

The SAR returned two sets of timestamped images taken by the two different UKPPO agents. One from the initial PCN which was affixed to the windscreen at 2230, with one image clearly showing its precise location on the windscreen directly covering the 'old' residential parking permit. The second set of images from 0630 shows an initial image of the vehicle with the original PCN affixed in the original location, and then an image from a few minutes later, after the second PCN had been affixed in a new location, with the original PCN clearly no longer affixed to the windscreen leaving the old residential permit now clearly visible.

Unsure how best to use this in defence

That's very clear. Say it like that! the Claimant REMOVED the PCN so the Defendant would not find it, and their own evidence hoists them by their own petard!

golfdriver

Having worked on a defence over the past few days I'm now at a point where I would greatly appreciate some feedback from the forum. Just one note: I have not included any point around any right to parking described in the lease, as I'm struggling to understand who the covenant in the lease applies to and how to describe how this may prevent the landowner engaging a private parking firm.

So ... on to the Defence:

IN THE COUNTY COURT

CLAIM No: XXXXXXXX

BETWEEN:

XXXX XXXX (Claimant)

-and-

XXXX XXXX (Defendant)

---

DEFENCE

---

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

2. The facts are that the vehicle, registration XXXXXXX, of which the Defendant was the leasee, was parked on the material date in the resident’s car park of XXXX XXXX, and had a valid permit to be parked there.

3. The Particulars of Claim state that “the Defendant was driving the Vehicle and/or is the Keeper of the Vehicle”. 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.

4. 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.

5. If it were the intention of the Claimant to bring this claim on the basis of breach of contract, then the Defendant asserts that he has performed as required by the contract displayed on the signage in the car park on the material date in paying the stated charge for this single, continuous parking event and single continuous breach of the terms, rendering this claim completely without merit and vexatious.

6, 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.

7. The terms of the contract displayed on the signage in the car park on the material date state that “parking is restricted to vehicles displaying a valid Parking Patrol permit only”. This is a forbidding sign, not an invitation to park on certain terms, and only offers to vehicles displaying a permit, therefore there was no contract and it cannot be enforced as such. The only matter is therefore one of trespass which is a landowner issue. The agreement between the Claimant and landowner does not allow the Claimant to collect for trespass issues.

8. The Claimant is accredited by the International Parking Community (IPC) and as such agrees to be bound by their Code of Practice. In the most recent IPC Code of Practice (V6 2017) it states that “In the event of a new calendar day the operator must not issue a further parking charge for the same parking event within a 12 hour period from when the previous parking charge was issued.”. Although this term was not included the Code of Practice on on the material date, it highlights the wholly unreasonable nature of issuing two charges within just over 10 hours for a single continuous parking event.

9. The IPC Code of Conduct also states that the Notice to Driver must “Either be affixed to the vehicle or given to a person who appears to the Operator to have control of that vehicle.”. The Defendant asserts that the time stamped images provided by the Claimant following a Subject Access Request by the Defendant clearly show that the Parking Charge Notice relating to this claim was removed from the windscreen of the vehicle during the time that their agent was in attendance at the vehicle applying a second Parking Charge Notice meaning that no Notice to Driver was properly issued.

10. If it were the intention of the Claimant to hold the Defendant liable for this charge by transferring liability from the Registered Keeper to the Defendant as leasee of the vehicle, the Protection of Freedoms Act 2012, Schedule 4, at Section 9(4) states that the Notice to Keeper must be delivered within 14 days of the alleged breach in situations where a Notice to Driver is not issued. As no Notice To Driver was properly issued, and the Notice to Keeper was received by the Registered Keeper outside of this period, the Claimant has failed to comply with the act, is unable to invoke Keeper Liability, and thus unable to transfer liability to the Defendant as leasee.

11. Further, 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 £100. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

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

I believe the facts contained in this Defence are true.

Name
Signature
Date

golfdriver

Sorry to dig this one up from the depths, but the Claimant has paid the court fees, and I'm now in the process of putting together my Witness Statement and Evidence in advance of a hearing in mid-September, and have a few queries:

My Witness Statement is (as I believe it should be) in the first person and outlines the facts, in chronological order from my perspective, with evidence to support those facts where possible which will be included as one or more Exhibits with the Witness Statement.

As part of my argument on the day, and to back up my Defence points, I also wish to refer to such things as: the IPC Code of Conduct, POFA, an example of good signage that offers to non-permit holders (to contrast with their terrible signage), and the lease agreement for the land.

None of those documents are referred to my in Witness Statement.

My question is whether any or all of these are considered "Exhibits" and need to be submitted with my Witness Statement 14-days before the hearing, or whether I can submit at a later stage (with my Skeleton Argument?), or just bring along with me on the day?

Sorry for what may be a basic question, any advice is appreciated.

nosferatu1001

Yes it is your facts.

They are exhibits and are included in your Bundle. You shoudl exhibit them in your WS as well.

golfdriver

Thanks for the quick reply.

Would I also be expected to refer to them in the WS too?