County court claim received from Gladstones on behalf of UKCPM

Bilbo1995

So I received a county court claim with issue date 8th April 2019. I have already acknowledged the service online.

With regards to the case I received a PCN in march last year for parking in an unallocated space in the apartment complex that I live in. On this particular day my permit had fallen into the footwell and was not visible.

In terms of my defence I plan to base it on inadequate signage as there are 3 different types of spaces in the complex operated by two different companies (UKCPM and Parking and Property Management). There are also 2 different signs for the 3 different types of space. None of these signs are particularly easy to read and this creates a lot of confusion.

I was also planning on referring to primacy of contract but after checking my tenancy agreement it doesn't actually state that I have a right to park regardless of the rules.

My defence is as follows:


1. The Defendant was the registered keeper and driver of vehicle registration number XXXXXXX on the material date. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The facts of the matter are that the Defendant is a resident at the address, and has continued to hold a valid parking permit for car parking for the entire tenancy. The ‘land’ which forms the basis of the current claim consists of 3 different types of poorly marked parking spaces located in a large apartment complex with 2 different types of inadequate signage, neither of which state that they do not cover parking for the entire property. Given this lack of clarity regarding how or where a resident with a parking permit is, or is not, allowed to park in this car park, no contract can be construed from the Claimant's signage, under the contra proferentem principle.

3. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

4. The IPC guidelines state that signage at the entrance to the site should ‘Make it clear that the motorist is entering onto private land’. The signage at the entrance to the site in question does not display this information

5. Accordingly, it is denied that the Defendant breached any of the Claimant's purported contractual terms, whether express, implied, or by conduct.

6. The Claimant is put to strict proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge, unless specifically authorised by the principal. The Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name, and that they have no right to bring any action regarding this claim.

7. The Defendant has the reasonable belief that the Claimant has not incurred £60 costs to pursue an alleged £100 debt. The Protection of Freedoms Act 2012, in Schedule 4, Para 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.

8. In summary, the Claimant's particulars disclose no legal basis for the sum claimed, and the Court is invited to dismiss the claim in its entirety.

Statement of Truth:

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

Name
Signature
Date


Is this a good enough defence, is there anything else I should add?

A lot of the other defenses/cases I looked at refer to other previous cases to support theirs, is this something I should add?

Also I was relatively new to the complex at the time of the PCN, only lived there 3 weeks, should I add this in to say that as a new tenant the signage and rules as to where I can and cannot park were very unclear.

Thanks in advance for any help

KeithP

Bilbo1995 wrote: »

I received a county court claim with issue date 8th April 2019. I have already acknowledged the service online.

With a Claim Issue Date of 8th April, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Monday 13th May 2019 to file your Defence.

That's four weeks away. Loads of time to produce a perfect Defence and it is good to see that you are not leaving it to the 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.

Coupon-mad

In terms of my defence I plan to base it on inadequate signage as there are 3 different types of spaces in the complex operated by two different companies (UKCPM and Parking and Property Management). There are also 2 different signs for the 3 different types of space. None of these signs are particularly easy to read and this creates a lot of confusion.

That is all true, to paint a picture of unclear terms even for residents, but isn't the PCN for not displaying a permit?

I was also planning on referring to primacy of contract but after checking my tenancy agreement it doesn't actually state that I have a right to park regardless of the rules.

Of course it doesn't. How does that matter?

Of course YOU MUST include your primacy of contract as a huge issue!

Bilbo1995

Of course it doesn't. How does that matter?

Of course YOU MUST include your primacy of contract as a huge issue!

Sorry I may not have made it clear in the original post but I don't think I have primacy of contract, my contract doesn't include an allocated space and I don't think the wording gives me the unfettered right to park.

This is the exact wording so correct me if I'm wrong

15. Cars and Parking
15.1. To park a private vehicle only at the Property.
15.2. To park in the car parking space, garage or driveway allocated to the Property, if applicable.
15.3. To keep any garage, driveway, or parking space free of oil and to pay for the removal and cleaning of
any spillage caused by a vehicle of the Tenant, his family, contractors or visitors.
15.4. To remove all vehicles belonging to the Tenant, his family or visitors at the end of the Tenancy.
15.5. Not to park any vehicle at the Property that is not in road worthy condition and fully taxed.

That is all true, to paint a picture of unclear terms even for residents, but isn't the PCN for not displaying a permit

Yes, the PCN is for not displaying a permit but I thought given that I was unsure on the primacy of contract and after reading other defences that this approach was the best defence. Should I include something else or use something else as my main defence?

Thanks for the help

Bilbo1995

Bump. Would I be able to get a bit more information on this. I want to do some more research and try and improve my defence but I'm not sure after what Coupon mad said if I'm barking up the wrong tree. Is what I've done the best approach to take or should I base my defence on something else?

Coupon-mad

In terms of my defence I plan to base it on inadequate signage as there are 3 different types of spaces in the complex operated by two different companies (UKCPM and Parking and Property Management). There are also 2 different signs for the 3 different types of space. None of these signs are particularly easy to read and this creates a lot of confusion.

The above wording in your post to us, is much clearer than your defence, which doesn't mention two companies by name (I hope you've taken photos already, in case they remove the old PPM signs!):

2. The facts of the matter are that the Defendant is a resident at the address, and has continued to hold a valid parking permit for car parking for the entire tenancy. The ‘land’ which forms the basis of the current claim consists of 3 different types of poorly marked parking spaces located in a large apartment complex with 2 different types of inadequate signage,

I was relatively new to the complex at the time of the PCN, only lived there 3 weeks, should I add this in to say that as a new tenant the signage and rules as to where I can and cannot park were very unclear.

Yes and say that, whilst a permit had been provided, no agreement was signed that create any 'relevant obligation' to display it and you were simply following what you were told to do and had no idea about ant £100 penalty for not doing something the Defendant had no idea was such an onerous obligation.

And this:

I was also planning on referring to primacy of contract

Yes, you are relying on your contract with the landlord or Housing Association which was silent about needing to display a permit to avoid a huge charge.

Bilbo1995

taken me a while to get around to writing another draft as I've been on holiday but here's my updated defence. I've highlighted in bold the bits that I've added/changed from the first defence. Is there anything I should change/add.? Also I've seen in other defences that people reference previous cases, is this something I need to include in my defence as when I went to parking prankster and read some previous cases I found them very confusing and had no idea what to reference.

Thanks in advance

1. The Defendant was the registered keeper of vehicle registration number XXXXXXX on the material date. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The facts of the matter are that the Defendant is a resident at the address, and has continued to hold a valid parking permit for car parking for the entire tenancy. The ‘land’ which forms the basis of the current claim consists of 3 different types of spaces operated by two different companies (UKCPM and Parking and Property Management). There are also 2 different signs for the 3 different types of space. None of these signs are particularly easy to read and this creates a lot of confusion. Given this lack of clarity regarding how or where a resident with a parking permit is, or is not, allowed to park in this car park, no contract can be construed from the Claimant's signage, under the contra proferentem principle.

3. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

4. The IPC guidelines state that signage at the entrance to the site should ‘Make it clear that the motorist is entering onto private land’. The signage at the entrance to the site in question does not display this information

5. Accordingly, it is denied that the Defendant breached any of the Claimant's purported contractual terms, whether express, implied, or by conduct.

6. The Claimant is put to strict proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge, unless specifically authorised by the principal. The Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name, and that they have no right to bring any action regarding this claim.

7. At the time of the PCN the defendant was relatively new to the complex in question and whilst a permit was provided no agreement was signed to create any ‘relevant obligation’ to display it and since the signage is unclear no agreement can be drawn from them. Therefore the £100 charge cannot be justified as no contract was entered into.

8. Right to park, according to primacy of contract the lease cannot be fettered by any alleged parking terms. Nowhere in the lease for the property does it state that a permit must be displayed to park on the premises. The contract states:

15. Cars and Parking
15.1. To park a private vehicle only at the Property.
15.2. To park in the car parking space, garage or driveway allocated to the Property,
if applicable

The lease terms provide the right to park a vehicle in the relevant unallocated bay, without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle or the requirement to display a parking permit. A copy of the lease will be provided to the Court.

9. 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.

9. Accordingly it is denied that:
9.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant
9.2. there was any obligation (at all) to display a permit; and
9.3. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

10. The Defendant has the reasonable belief that the Claimant has not incurred £60 costs to pursue an alleged £100 debt. The Protection of Freedoms Act 2012, in Schedule 4, Para 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.

11. In summary, the Claimant's particulars disclose no legal basis for the sum claimed, and the Court is invited to dismiss the claim in its entirety.

Statement of Truth:

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

Name
Signature
Date

Coupon-mad

Remove this (as no 'loss' is alleged) an you have a decent defence there;

and
9.3. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

I do prefer replacing #10 with a stronger attack on the fake added costs, as here:

https://forums.moneysavingexpert.com/discussion/comment/75748524#Comment_75748524

HTH

Bilbo1995

So it's coming up to the date I need to file my defence, I've changed the extra costs section as you recommended here is what I've got:

Defence

1. The Defendant was the registered keeper of vehicle registration number XXXXXXX on the material date. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The facts of the matter are that the Defendant is a resident at the address, and has continued to hold a valid parking permit for car parking for the entire tenancy. The ‘land’ which forms the basis of the current claim consists of 3 different types of spaces operated by two different companies (UKCPM and Parking and Property Management). There are also 2 different signs for the 3 different types of space. None of these signs are particularly easy to read and this creates a lot of confusion. Given this lack of clarity regarding how or where a resident with a parking permit is, or is not, allowed to park in this car park, no contract can be construed from the Claimant's signage, under the contra proferentem principle.

3. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

4. The IPC guidelines state that signage at the entrance to the site should ‘Make it clear that the motorist is entering onto private land’. The signage at the entrance to the site in question does not display this information

5. Accordingly, it is denied that the Defendant breached any of the Claimant's purported contractual terms, whether express, implied, or by conduct.

6. The Claimant is put to strict proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge, unless specifically authorised by the principal. The Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name, and that they have no right to bring any action regarding this claim.
7. At the time of the PCN the defendant was relatively new to the complex in question and whilst a permit was provided no agreement was signed to create any ‘relevant obligation’ to display it and since the signage is unclear no agreement can be drawn from them. Therefore the £100 charge cannot be justified as no contract was entered into.
8. Right to park, according to primacy of contract the lease cannot be fettered by any alleged parking terms. Nowhere in the lease for the property does it state that a permit must be displayed to park on the premises. The contract states:

15. Cars and Parking
15.1. To park a private vehicle only at the Property.
15.2. To park in the car parking space, garage or driveway allocated to the Property,
if applicable

The lease terms provide the right to park a vehicle in the relevant unallocated bay, without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle or the requirement to display a parking permit. A copy of the lease will be provided to the Court
9. 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.
9. Accordingly it is denied that:
9.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant
9.2. there was any obligation (at all) to display a permit


Costs on the claim - disproportionate and disingenuous

10). CPR 44.3 (2) states: ''Where the amount of costs is to be assessed on the standard basis, the court will –
(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and
(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.

10)(i). Whilst quantified costs can be considered on a standard basis, this Claimant's costs are wholly disproportionate and do not stand up to scrutiny. In fact it is averred that the Claimant has not paid or incurred such damages/costs or 'legal fees' at all. Any debt collection letters were either sent by a third party which offers a 'no collection, no fee' service, or were a standard feature of a low cost business model. The Beavis case is the authority for recovery of the parking charge itself and no more, since that sum is, by definition, already hugely inflated for profit, not loss, and the Judges held that a parking firm not in possession cannot plead their case in damages, as none exist.

10)(ii). The Claimant cannot reasonably recover an additional three figure sum in damages or costs to pursue an alleged £100 debt. The POFA states that the maximum sum that may be recovered is the charge stated on a compliant Notice to Keeper ('NTK') - in this case £100 - and it is denied that the NTK or the signage met the high bar set in the POFA for mandatory wording and adequate notice of the charge.

10).(iii). Even the purported 'legal costs' are made up out of thin air. No individual Solicitor has signed the Particulars of Claim - in breach of Practice Direction 22, and rendering the statement of truth a nullity - and this template roboclaim has clearly had no input from any supervising Solicitor, whether in house or externally. According to Ladak v DRC Locums UKEAT/0488/13/LA the claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration costs allegedly incurred by already remunerated clerical staff.

11. In summary, the Claimant's particulars disclose no legal basis for the sum claimed, and the Court is invited to dismiss the claim in its entirety and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14.

12. In summary, the Claimant's particulars disclose no legal basis for the sum claimed, and the Court is invited to dismiss the claim in its entirety.

Statement of Truth:

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

Name
Signature
Date


Do you think there is anything else I need to change or add or is this good to go?

Coupon-mad

That looks very good.

Shouldn't this be:

The [STRIKE]contract[/STRIKE] Defendant's lease states, under 'RIGHTS'*:

15. Cars and Parking
15.1. To park a private vehicle only at the Property.
15.2. To park in the car parking space, garage or driveway allocated to the Property, if applicable

* You need the title that those words are placed under. Rights? Schedule?

Bilbo1995

You need the title that those words are placed under. Rights? Schedule?

The title that info is placed under is "schedule 1, obligations of the tenant", do I just add that in above like you added in rights?

also KeithP states above that I should print and scan the defence but is it OK to just send it as an attached PDF? As I do not have easy access to a printer.