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UKCPM and Gladstone's court claim
Concerned_wife
Posts: 2 Newbie
Hello,
My husband and I rent a flat in an estate. There are a few general parking spaces that residents and their visitors used when we moved in as well as a garage for each flat. Along the line ukcpm were contracted by the managing agents to prevent rogue parkers from using these spaces. Like they do, we were issued a PCN for not displaying a valid ticket even though we are residents.
Long story short, we received a county court claim form dated 25th February. The AoS was done on 7th March. My husband is the registered keeper but I'm working on the defence for him as I'm at home and have more time.
This is the defence:
IN THE COUNTY COURT
CLAIM No: XXX
BETWEEN:
UK CAR PARK MANAGEMENT LIMITED (Claimant)
-and-
XXX (Defendant)
DEFENCE
1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
2. The Particulars of Claim on the N1 Claim Form refer to a 'Parking Charge' incurred on XXX. However, they do not state the basis of any purported liability for these charges, in that they do not state what the terms of parking were, or in what way they are alleged to have been breached. In addition, the particulars state 'The Defendant as the driver/keeper of the Vehicle’ which indicates 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.
3. The Particulars refer to the material location as 'XXX'. The Defendant has, since 15th February 2017, held a tenancy under the terms of a lease, to Flat No. XX at that location. At some point, the managing agents contracted with the Claimant company to enforce parking conditions at the estate.
4. The outside car parking area contains allocated parking spaces demised to some residents, and a general area for residents who do not have an allocated space as well as visitors.
5. Under the terms of the Defendant's lease, a number of references are made about parking motor vehicles. The definitions, at para. 10.13, define an 'Authorised Vehicle' as one which is fully taxed, roadworthy, and suitably insured. At 1.5, premises is defined. At 10.14, the Lessee agrees to only park a vehicle in an area set aside for that purpose. At 10.12, the Schedule to the Lease states that Lessees must not allow commercial vehicles, caravans or boats to be parked anywhere without the written consent of the landlord.
5.1. There are no terms within the lease requiring lessees to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same.
6. The Defendant, at all material times, parked in accordance with the terms granted by the lease. The erection of the Claimant's signage, and the purported contractual terms conveyed therein, are incapable of binding the Defendant in any way, and their existence does not constitute a legally valid variation of the terms of the lease. Accordingly, the Defendant denies having breached any contractual terms whether express, implied, or by conduct.
7. The Claimant, or Managing Agent, in order to establish a right to impose unilateral terms which vary the terms of the lease, must have such variation approved by at least 75% of the leaseholders, pursuant to s37 of the Landlord & Tenant Act 1987, and the Defendant is unaware of any such vote having been passed by the residents.
8. Further and in the alternative, the signs refer to 'Authorised Vehicles Only/Terms of parking without permission', and suggest that by parking without permission, motorists are contractually agreeing to a parking charge of £100. This is clearly a nonsense, since if there is no permission, there is no offer, and therefore no contract. The Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Defendant will 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.
8.1. The Defendant's vehicle clearly was 'authorised' as per the lease and the Defendant relies on primacy of contract and avers that the Claimant's conduct in aggressive ticketing is in fact a matter of tortious interference, being a private nuisance to residents. In this case the Claimant continues to cause a substantial and unreasonable interference with the Defendant's land/property, or his use or enjoyment of that land/property.
9. The Claimant may rely 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.
10. The Claimant, or their legal representatives, has added additional sums to the original £100 parking charge, for which no explanation or justification has been provided. Schedule 4 of the Protection Of Freedoms Act, at 4(5), states that the maximum sum which can be recovered is that specified in the Notice to Keeper, which is £100 in this instance. It is submitted that this is an attempt at double recovery by the Claimant, which the Court should not uphold, even in the event that Judgment for Claimant is awarded.
11. For all or any of the reasons stated above, the Court is invited to dismiss the Claim in its entirety. Given that the claim is based on an alleged contractual parking charge of £100 - already significantly inflated and mostly representing profit, as was found in Beavis - but the amount claimed on the claim form is inexplicably £2xx.xx, the Defendant avers that this inflation of the considered amount is a gross abuse of process.
I believe that the facts stated in this Defence are true.
Any comments on the defence will be appreciated. Thank you.
My husband and I rent a flat in an estate. There are a few general parking spaces that residents and their visitors used when we moved in as well as a garage for each flat. Along the line ukcpm were contracted by the managing agents to prevent rogue parkers from using these spaces. Like they do, we were issued a PCN for not displaying a valid ticket even though we are residents.
Long story short, we received a county court claim form dated 25th February. The AoS was done on 7th March. My husband is the registered keeper but I'm working on the defence for him as I'm at home and have more time.
This is the defence:
IN THE COUNTY COURT
CLAIM No: XXX
BETWEEN:
UK CAR PARK MANAGEMENT LIMITED (Claimant)
-and-
XXX (Defendant)
DEFENCE
1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
2. The Particulars of Claim on the N1 Claim Form refer to a 'Parking Charge' incurred on XXX. However, they do not state the basis of any purported liability for these charges, in that they do not state what the terms of parking were, or in what way they are alleged to have been breached. In addition, the particulars state 'The Defendant as the driver/keeper of the Vehicle’ which indicates 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.
3. The Particulars refer to the material location as 'XXX'. The Defendant has, since 15th February 2017, held a tenancy under the terms of a lease, to Flat No. XX at that location. At some point, the managing agents contracted with the Claimant company to enforce parking conditions at the estate.
4. The outside car parking area contains allocated parking spaces demised to some residents, and a general area for residents who do not have an allocated space as well as visitors.
5. Under the terms of the Defendant's lease, a number of references are made about parking motor vehicles. The definitions, at para. 10.13, define an 'Authorised Vehicle' as one which is fully taxed, roadworthy, and suitably insured. At 1.5, premises is defined. At 10.14, the Lessee agrees to only park a vehicle in an area set aside for that purpose. At 10.12, the Schedule to the Lease states that Lessees must not allow commercial vehicles, caravans or boats to be parked anywhere without the written consent of the landlord.
5.1. There are no terms within the lease requiring lessees to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same.
6. The Defendant, at all material times, parked in accordance with the terms granted by the lease. The erection of the Claimant's signage, and the purported contractual terms conveyed therein, are incapable of binding the Defendant in any way, and their existence does not constitute a legally valid variation of the terms of the lease. Accordingly, the Defendant denies having breached any contractual terms whether express, implied, or by conduct.
7. The Claimant, or Managing Agent, in order to establish a right to impose unilateral terms which vary the terms of the lease, must have such variation approved by at least 75% of the leaseholders, pursuant to s37 of the Landlord & Tenant Act 1987, and the Defendant is unaware of any such vote having been passed by the residents.
8. Further and in the alternative, the signs refer to 'Authorised Vehicles Only/Terms of parking without permission', and suggest that by parking without permission, motorists are contractually agreeing to a parking charge of £100. This is clearly a nonsense, since if there is no permission, there is no offer, and therefore no contract. The Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Defendant will 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.
8.1. The Defendant's vehicle clearly was 'authorised' as per the lease and the Defendant relies on primacy of contract and avers that the Claimant's conduct in aggressive ticketing is in fact a matter of tortious interference, being a private nuisance to residents. In this case the Claimant continues to cause a substantial and unreasonable interference with the Defendant's land/property, or his use or enjoyment of that land/property.
9. The Claimant may rely 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.
10. The Claimant, or their legal representatives, has added additional sums to the original £100 parking charge, for which no explanation or justification has been provided. Schedule 4 of the Protection Of Freedoms Act, at 4(5), states that the maximum sum which can be recovered is that specified in the Notice to Keeper, which is £100 in this instance. It is submitted that this is an attempt at double recovery by the Claimant, which the Court should not uphold, even in the event that Judgment for Claimant is awarded.
11. For all or any of the reasons stated above, the Court is invited to dismiss the Claim in its entirety. Given that the claim is based on an alleged contractual parking charge of £100 - already significantly inflated and mostly representing profit, as was found in Beavis - but the amount claimed on the claim form is inexplicably £2xx.xx, the Defendant avers that this inflation of the considered amount is a gross abuse of process.
I believe that the facts stated in this Defence are true.
Any comments on the defence will be appreciated. Thank you.
0
Comments
-
With a Claim Issue Date of 25th February, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Monday 1st April 2019 to file your Defence.Concerned_wife wrote: »...we received a county court claim form dated 25th February. The AoS was done on 7th March.
That's nearly two weeks away. Loads of time to produce a Defence, and it's good to see that you are not leaving it to the very last minute.
When you are happy with the content, your Defence should be filed via email as suggested here:-
Print your Defence.
- Sign it and date it.
- Scan the signed document back in and save it as a pdf.
- Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
- 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'.
- Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
- Do not be surprised to receive a copy of the Claimant's Directions Questionnaire, they are just trying to put you under pressure.
- 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.
0 - Sign it and date it.
-
The defence will be submitted on Friday. Any comments on it will be appreciated.
Thanks0 -
Get you MP on side, these scammers have no place in residential car parks.
On 18th March 2019 a Bill was enacted to curb the excesses of these private parking companies. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, and persistent offenders denied access. Hopefully life will become impossible for the worst of these scammers.
Until this is done you should still complain to your MP, citing the new legislation.
http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted
Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.You never know how far you can go until you go too far.0 -
Imho, if they do patrol resi premises, they (& the muppets who've hired them) should have a database of residents vehicles &/or contact the residents to ensure that the 'offending' vehicle isn't covered. (Visitors, friends' etc)
I'm dealing with one atm (son, a resident) where son contacted the PPC to say that they have ticketed a friend.
PPC replied "Butt out, none of your beeswax" (That was the gist, anyway.)CAVEAT LECTOR0 -
That defence is very good - just missing the usual 'no landowner authority' point?PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0
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