UKPC/SCS LAW- Over £1000 County court claim- Residential parking

Dr_shadow

Dear All,
Firstly thank you for taking the time to read this and for your help.

The details: I was issued 7 tickets for parking in my own bay over the course of two weeks. I moved into the flat on a lessor/lessee contract with the use of the parking bay. The landlord (who own the leasehold to the flat) gave me a permit (an insignificant piece of paper without my registration or other details) which seemed to work. That permit went missing and during that time i was issued the tickets. Despite informing the flat management who subsequently issued me a replacement, UKPC still kept giving me tickets. The Last ticket was even given while my permit was displayed. After NTK letters and letters from Debt Recovery Plus, the issue was referred to SCS Law who has now filed a small claim against me for over £1000.

Particulars of the claim: 7 x £160 plus solicitor fees and court cost. Issue date: Late march.

After spending nearly a week reading through the NEWBIE #2 and other similar cases, I am drafting my defence based on 4 main points: 1) Primacy of contract of leaseholder and by extension the lessee 2) Insufficient signage (the parking lot is gated complex accessed by key fob) with no entrance sign and only 1 sign in the whole car park that outline the T&C 3) Incorrect PCN and NTk (based on recent case by namiku). I will post photos of the car park in tonight.

My progress: AOS has been completed online. I have emailed SCS law with an SAR request.

I am following this post with my defence shortly. Do you think I have a strong enough case for a counterclaim? Any further advice you have for me?

Redx

post the ISSUE DATE on the N1 form so you can get some bespoke advice about dates and timings etc

if you are considering a counter claim , who are you nominating in it and on what grounds are you counter claiming ?

ie:- a counter claim would have to have POC , so what POC would you be presenting and against who exaclty ? (UKPC on their own or joining in a third party ?)


there is a key fob defence in the NEWBIES THREAD post #2 , so maybe base yours on that and post it below

KeithP

Hi and welcome.

What is the Issue Date on your Claim Form?

Dr_shadow

Thank you Redx and KeithP.

Issue date: 13th of march however I did not receive the county court claim till 23 or 24th of march. I was subsequently sent a letter by HM courts and tribunal service apologising and stating the letter was not posted till the 22nd and i had until 4pm on the 11th of April to respond to the claim.

With regards to the counter claim (will be issued against UKPC), for breaching data protection act and for passing on my information to DRP and for undue stress/harassment of a resident using their designated bay.

Redx

Dr_shadow wrote: »

With regards to the counter claim (will be issued against UKPC), for breaching data protection act and for passing on my information to DRP and for undue stress/harassment of a resident using their designated bay.

NO I do not think any of that will fly

if you were to be taking them to court you need to prove the DPA breach first, and you have 6 years to do so if you win this court claim. this topic has been discussed numerous times and without a win in court I doubt that you would have any grounds to do so

but I have no legal training so will bow to any informed advice that flows in subsequent repleis , especially from a handful of regulars with legal experience

proving harassment is a very high bar , and the fact that UKPC passed on details to DRPL is a typical industry practice so again could prove difficult

KeithP

Dr_shadow wrote: »

Issue date: 13th of march however I did not receive the county court claim till 23 or 24th of march. I was subsequently sent a letter by HM courts and tribunal service apologising and stating the letter was not posted till the 22nd and i had until 4pm on the 11th of April to respond to the claim.

We have seen this before.

That letter from HMC&TS says that you have to respond to the Claim by 11th April. You have done that by filing the AoS.

By filing the AoS before 11th April, you have given yourself an extra fourteen days to file your Defence.

Having done the AoS, you have until 4pm on Thursday 25th April 2019 to file your Defence.

That's nearly two weeks away. Loads of time to produce a perfect Defence, but don't leave 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.
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 CCBCAQ@Justice.gov.uk
   
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 "defence received". If not chase the CCBC until it is.
   
6. Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire, they are just trying to keep 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.

Having said all that, if I were you I would definitely try to file your Defence a couple of days before that deadline.
The reason being that the 11th April date given by HMC&TS implies an Issue Date on a Saturday. Most unlikely.

Dr_shadow

if you were to be taking them to court you need to prove the DPA breach first, and you have 6 years to do so if you win this court claim. this topic has been discussed numerous times and without a win in court I doubt that you would have any grounds to do so

What a shame! I would like to think If i win in court then i have made them pay financially for always harassing the residents (At least one resident in my block is terminating their rental agreement prematurely as they are sick of getting tickets in their own bay from UKPC). My idea for counterclaim came from the advise on NEWBIE 2 regarding counterclaiming if contesting a ticket for your own bay. Out of interest, have their been any successful counterclaims in similar circumstances?

Dr_shadow

Defence

I am xxxx, the defendant in this matter and the registered keeper of vehicle xxxx.

I deny I am liable for the entirety of the claim on the following grounds:

Preliminary

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

2. The Particulars of Claim state that the Defendant was the registered keeper and/or the driver 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.

Authority to Park and Primacy of Contract


3. The gated car parking area contains allocated parking spaces demised to some residents. Entry to the gated parking complex is by means of a key fob, of a type only issued to residents. Any vehicles parked therein are, therefore, de facto authorized to be there.

4. The vehicle, registration xxxxxxx, of which the Defendant is the registered keeper, was parked on the material date in a marked bay allocated to the Leaseholder of one of flats in the residential development. The Defendant holds a Licensee contract with the Leaseholder for the flat and the parking space in question (Bay X) and has their authority to park in the space in question.

5. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

6. The Defendant denies that the Claimant has any authority over the Leaseholder’s property and contends that the Claimant has no authority to bring a claim. The Claimant does not own the land on which the vehicle was parked, nor do they have any interest in the land. Therefore, the Claimant lacks the capacity to offer parking.

7. The Defendant’s Licensor has ownership of the car parking bay in which the car was parked under a long lease, as set out in the Lease Agreement. The vehicle was parked on the property in accordance with the terms of the Lease. As the Lease contains no clause requiring a permit to park, nor any clause requiring the Leaseholder, or those authorized by the Leaseholder to use the allocated car park space, to make payments to any third party who is a stranger to that lease, the issuing of the PCN is unlawful. The Lease has primacy of contract over any restrictions the Claimant places on the land.

8. The principle of primacy of contract of the terms of a Lease overriding any purported terms conveyed by a parking operator's signage in numerous recent county court and circuit court judgment. 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.

9. The Claimant has taken over the location and runs a business as if the site were a public car park, offering terms with £100 penalty on the same basis to residents, as is on offer to trespassers and the public. However, residents are granted a right of way and parking in their allocated bays through the Lease or those permitted under the leaseholder. Therefore, parking terms under an onerous 'permit' cannot be re-offered as a contract by a third party. This interferes with the terms of lease, to which this parking firm is not party.

10.The claimaint is reliant on a high court ruling of ParkingEye v Beavis [2015]. Mr Beavis had no prior right to park in the land in question, and that any right was conferred through a contractual licence on terms that were clearly on notice. The objective of preventing him from overstaying was to ensure that other members of the public can also enjoy the two hours of free parking. In contrast, this is a case where the defendants right to park in their own bay, is unconnected with any licence they may derive from a contract with the Claimant, but rather existed prior to the contract arising and for reasons independent from it. Furthermore, as stated above, a fundamental distinction between the defendant and Mr Beaver is that the contract in dispute in this case does not concern a retail park that the defendant may choose not to visit but rather the necessary use of their allocated bay.

11.The Claimant is put to strict proof that that they have a right to unilaterally remove or interfere with the overriding rights conferred by the Leasehold agreement.

12. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorization from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

13. Should it be found that the Claimant does have authority over the Leaseholder’s property, the defendant denies that there was a breach of contract.

Failure to set out clearly parking terms

14. Further and in the alternative, without prejudice to the primary defence above, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

15.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate.
15.1.1. At the time of the material events the signage was deficient in number and distribution to reasonably convey a contractual obligation, with no entrance signs and only one sign throughout the car park in violation of BPA code of practice (18.2 & 18.3).
15.1.2. The signage did not comply with the requirements of the Code of Practice of the BPA Accredited Operators Scheme, an organization to which the Claimant was a signature.

15.2. The Defendant avers that the residential site that is the subject of these proceedings is not a site where there is a commercial value to be protected. The Claimant has not suffered loss or pecuniary disadvantage. The penalty charge is, accordingly, unconscionable in this context, with ParkingEye distinguished.

Non-Compliant Notice to Keeper

16. The claimant, UKPC, Penalty charge notice and Notice to keeper are faulty and non-compliant with schedule 4 of POFA ( Section 7(2) and section 8 (2), as they do not specify the period of parking, and simply demonstrate one time which is a single moment and does not constitute a period of parking. The defendant refers to a recent ruling by DDJ Child ruled against SSC Law on 11/04/2019 at High Wycombe County Court.

The fairness of the contractual terms and the penalty in question

17. Section 5(1) of the Unfair Terms in Consumer Contracts Regulations 1999 provides that “a contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations under the contract, to the detriment of the consumer”.

17.1 It follows from the above analysis that the Claimant seeks to impose contractual terms that interfere with the defendant rights under the lease, in the context of a contract that has not been individually negotiated and that they had no choice but to enter. That is clearly unfair within the meaning of the 1999 Regulations.

18. The Claimant, or their legal representative, has added an additional sum of £60 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. Furthermore, the Defendant submits that the legal representatives cost have not actually been incurred by the Claimant. The two letters sent are templates used as part of their mass litigation model in an attempt to circumvent the court costs rules using double recovery.

19. In summary, it is the Defendant's position that the claim discloses no cause of action, 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.

I believe that the facts stated in this Defence are true.

The_Deep

Personally, I think that they would be mad to take you to court, what judge in their right mind would condone this scam, have you read these

https://www.telegraph.co.uk/news/uknews/crime/11858473/Parking-firm-UKPC-admits-faking-tickets-to-fine-drivers.html

https://www.consumeractiongroup.co.uk/topic/324523-ukpc-liable-for-trespass-success/

Have you considered counter claiming for trespass or derogation from grant? Also complain to your MP. These scammer are on borrowed time.

https://kwm.com/en/uk/knowledge/insights/the-practicalities-of-derogation-from-grant-and-quiet-enjoyment-20160101

On 15th 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.

nu

Dr_shadow

Personally, I think that they would be mad to take you to court, what judge in their right mind would condone this scam

I hope so too! ��

Any advice regarding my defence? Thank you

beamerguy

The Last ticket was even given while my permit was displayed. After NTK letters and letters from Debt Recovery Plus, the issue was referred to SCS Law who has now filed a small claim against me for over £1000.

Particulars of the claim: 7 x £160 plus solicitor fees and court cost. Issue date: Late march.

Firstly, you do not owe £160 per ticket. DRP have added £60 per ticket. As you will see, that is very odd because DRP do not charge the PPC if they fail to collect ......
http://www.debtrecoveryplus.co.uk/pcn-collection/
We offer a ‘no collection, no fee service’,

They did not collect from you. get the picture ?

The other method these clowns use is ....

In addition to the 'parking charge', the Claimant's legal representatives, SCS LAW, have artificially inflated the value of the Claim by adding costs of £60 which has not actually been incurred by the Claimant, and which are artificially invented figures in an attempt to circumvent the Small Claims costs rules using double recovery. >>>> thanks to bargepole

Here is one example of UKPC scamming residential spaces

https://parking-prankster.blogspot.com/2017/01/ukpc-lose-residential-case-charge-not.html

SCS LAW ..... are just a cheapo legal type, who bring these fake claims to which a REAL legal/solicitor would never get involved.

You need as many residential witness statements as you can get to put in front of the judge

You probably already know that UKPC are fraudsters and were caught faking pictures for gain

The other point to investigate is that UKPC offer a self ticketing operation which means that someone (a resident etc)
may be the culprit taking pictures and sending them to UKPC