Claim Form Received - Case Struck Out - Remote Hearing

NeilCr

Yes. It does make sense. Although, I would say that (and I have experience of this) letting agents will say anything to get a place let - so not sure how much weight you should give to the advert.

I think talking to the landlord would be good. It should strengthen your case if the space is allocated to the flat and the lease your landlord has states that.

It does sound as if the owners may own the freehold. They may well have appointed the PPC and have the ability to cancel parking tickets. Is the Management Company name along the lines of the development?

For example we own the freehold (I am a director of the ManCo). Our estate is known as ..... Court and the company is .....Court ManCo. That might give you a clue

Others know more about the ins and outs of signage etc than me but I am slightly concerned that some of your statements are based upon your impressions and interpretations

Good luck with it, anyway. I am very much against ticketing in "owned" spaces if that is what you have.

HeavyEvy

Thanks NeilCr.

NeilCr wrote: »

Yes. It does make sense. Although, I would say that (and I have experience of this) letting agents will say anything to get a place let - so not sure how much weight you should give to the advert.

I think talking to the landlord would be good. It should strengthen your case if the space is allocated to the flat and the lease your landlord has states that.

It does sound as if the owners may own the freehold. They may well have appointed the PPC and have the ability to cancel parking tickets. Is the Management Company name along the lines of the development?

For example we own the freehold (I am a director of the ManCo). Our estate is known as ..... Court and the company is .....Court ManCo. That might give you a clue

Yes the Management Company Name and the 'location'/development mentioned in the Claim are related "xxx Way" and "xxx Way (Farnborough) Management Company Ltd". I'll speak to the landlord and see if we can provide the lease and get the PCN cancelled.

NeilCr wrote: »

Others know more about the ins and outs of signage etc than me but I am slightly concerned that some of your statements are based upon your impressions and interpretations

I am concerned about some of the things I have in the defence, I just don't have enough experience with this type of scenario and am relying on the existing templates, but hopefully I will learn more from knowledgable people here and get things right before I submit this defence.

NeilCr wrote: »

Good luck with it, anyway. I am very much against ticketing in "owned" spaces if that is what you have.

It is exactly what I have.

Redx

read these threads and any others by hairray and Sassii and Wildsound

https://forums.moneysavingexpert.com/discussion/5588292/cpm-penalty-ticket-assistance-required

https://forums.moneysavingexpert.com/discussion/5748128/pcm-gladstones-want-a-revenge

https://forums.moneysavingexpert.com/discussion/5871150/vcs-this-is-not-a-parking-charge-notice-guidance-please&page=4


they may help you see what others have done for "own space" cases and annoyingly intransigent managing agents and directors etc

HeavyEvy

Just had a quick look on Land Registry...
It has the following...

"NOTE: The lease grants the exclusive use of parking space numbered xx in blue on the title plan"

Have emailed the Letting Agent to ask for a copy of the Lease and if they cannot provide it then to please ask the landlord for a copy and for the landlord to make contact with me.

It sounds like the contents of that Lease will be very importnant. Darn I wish I had done this piece months ago now...

If the Letting Agent can't wont help then the owner of the flat above me is a friend of my landlord and I should be able to make contact via him. He may also let me see his lease so I can get a quick idea of what my landlords might contain (although I guess they could be different)

NeilCr

HeavyEvy wrote: »

He may also let me see his lease so I can get a quick idea of what my landlords might contain (although I guess they could be different)

Very unlikely to be different

Sounds like you have a good case

Definitely worth looking through the threads that Redx referenced.

HeavyEvy

Redx wrote: »

https://forums.moneysavingexpert.com/discussion/5871150/vcs-this-is-not-a-parking-charge-notice-guidance-please&page=4

This one is an absolute peach of an example, very helpful, so very similar to my case. I am going to re-draft my defence and put up something new tomorrow.

I am learning lots, thank you for your patience folks.

HeavyEvy

Also found this in my Assured Shorthold Tenancy Agreement...

“Where the landlord’s interest is derived from another lease (“the Headlease”) then it is agreed that the Tenant will observe the restrictions in the Headlease applicable to the Property. A copy of the Headlease, if applicable, is attached”

[FONT=&quot]No Headlease was attached, or provided by the Letting Agent, nor was I ever made aware of such a Headlease existing when I signed the ASTA.[/FONT]

Coupon-mad

I like your defence; it's based on the one by Johnersh, a solicitor poster here.

I would just edit and change this to be clearer that you know it wasn't you:

3. It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof as to the identity of the driver, given that the enquiries by the Defendant have not established who parked the van after a group of friends had used it on the material date to move house. They returned it to the Defendant's rented flat and the vehicle was left properly parked in the parking bay that is allocated to that flat. The Defendant has the honest belief that the Claimant's conduct was predatory and has seen no evidence of any windscreen PCN. Even if one existed, the Defendant denies being properly served with it and denies liability for any sum at all.

...and add this:

4. It is denied that the Defendant or lawful users of his vehicle were in breach of any parking conditions as permission to park had been granted by the current occupier and leaseholder of xxxxx and the Defendant pays rent to that landlord for the exclusive right to the use of the flat and the parking space. The Claimant's conduct in aggressive ticketing of vehicles belonging to leaseholders or Assured Shorthold Tenants is in fact a matter of tortious interference, being a private nuisance to residents.

4.1. The Defendant avers that there was an entitlement to park deriving from the terms of the landlord's lease, which cannot be fettered by any alleged parking terms. The lease and the tenancy terms provide a right to park a vehicle in the relevant allocated bay, without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle or any requirement to display a parking permit. A copy of the Defendant's tenancy agreement and advertisement for the flat making the clear offer of the space as part of the rental, will be provided to the Court.

4.2. It is the Claimant's burden to produce the entire Head lease, should they wish to counter the above witness evidence from an authorised tenant. Whilst the Defendant has not seen the landlord's copy of the Head Lease at the time of writing this defence - and so cannot be bound by anything adverse within it - the Defendant was able to access limited information held online by the Land Registry, which states: "NOTE: The lease grants the exclusive use of parking space numbered xx in blue on the title plan". This note entirely supports the exclusive unfettered grant that the tenant understands exists.

4.3. At some point, the managing agents contracted with the Claimant company at the estate but it is understood this involved no consultation with leaseholders and no agreement to vary the leases, contrary to the Landlord & Tenant Act. 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 and its client have simply not bothered, and merely set up some signs and imposed permits upon people out of the blue.

5. (as you have it)

5.1. There is a large body of previously heard parking ticket cases which establishes these facts and protects the rights enjoyed by tenants and leaseholder residents. In addition to the already mentioned persuasive appeal cases of Jopson v Homeguard and Saeed v Plustrade, transcripts will be adduced for the following cases and others:

5.1.1. In Link Parking Ltd v Parkinson [2016] C7GF50J7, the Judge, referring to a similar case in In Pace Recovery v Noor [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.''

5.1.2. In a comparable case no. C7GF81FK in 2017, District Judge Britton at Aldershot & Farnham in UKCPM v Niven dismissed the parking firm's contention that they were authorised to impose a parking scheme requiring permits at the estate, stating: ''It is simply not a case where, as the Supreme Court dealt with in Beavis v ParkingEye, there is a situation where the company which grants the right to administer a parking scheme has the sole right to say who can and cannot park on there and a situation where the freeholder or the landowner has not granted other rights over the land already. This is one where the freeholder has already granted a right to park and that cannot be affected or discharged without either a variation of the tenancy agreement, which has not happened, or a novation agreement involving all the people who were involved in this particular agreement. Therefore on that basis, there is a pre-existing right to park. Accordingly, I must dismiss the claim that basis.''

...and here there are a few more changes suggested:

7.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate.

7.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;
7.1.2. The signage did not comply with the requirements of the Code of Practice of the [STRIKE]Independent Parking Committee’s[/STRIKE] International Parking Community's ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and
7.1.3. The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3
7.1.4. The signs that are placed after the entrance to the relevant car park merely say “Private Property. Parking For Residents Only. xxxx xxxx Management Company limited” which makes no mention of any terms within the site nor the Claimant company.

Then remove #10 onwards and replace with this, filling in the full amount of the claim as shown on the bottom right of the claim form, where shown in red:

10. The Claimant, or their legal representatives, 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.

11. For all or any of the reasons stated above, the Court is invited to dismiss the Claim in its entirety, and to award the Defendant such costs as are allowable on the small claims track, pursuant to Civil Procedure Rule 27.14. 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 £xxx.xx, the Defendant avers that this inflation of the considered amount is a gross abuse of process.

12. Given that it appears that this Claimant's conduct provides for no cause of action, and this is intentional and contumelious, the Claimant's claim must fail.

12.1. 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.

13. Whilst quantified costs can be considered on a standard basis, this Claimant's purported 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 a standard feature of a low cost business model and are already counted within the parking charge itself. 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.

13.1. The case of Parking Eye Ltd v Beavis [2015] UKSC 67 is the authority for recovery of the parking charge itself and no more, since that sum (£85 in Beavis) was held to already incorporate the minor costs of an automated private parking business model. There are no losses or damages caused by this business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages. It is indisputable that the alleged 'parking charge' itself is a sum which the Supreme Court found is already inflated to more than comfortably cover the cost of all letters.

13.2. - Any purported 'legal costs' are also made up out of thin air. Given the fact that robo-claim solicitors and parking firms process tens of thousands of claims handled by an admin team or paralegals, the Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste claims. No named person has signed the Particulars, in breach of Practice Direction 22, and rendering the statement of truth a nullity.

13.3. - According to Ladak v DRC Locums UKEAT/0488/13/LA a Claimant can only recover the direct and provable costs of the time spent preparing the claim in a legal capacity, not any administration costs allegedly incurred by already remunerated administrative staff.

13.4. - The Protection of Freedoms Act 2012, Schedule 4 (POFA) makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant 'Notice to Keeper' (and the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is £100). This also depends upon the Claimant fully complying with the statute, including 'adequate notice' of the parking charge and prescribed documents served in time/with mandatory wording. It is submitted the claimant has failed on all counts and the Claimant is well aware their artificially inflated claim, as pleaded, constitutes double recovery.

13.5. Judgment/Orders will be adduced in evidence, demonstrating that many informed Court Judges have disallowed all added parking firm 'costs' in County courts, such as the following cases which were entirely struck out in 2019 without a hearing, due solely to the pretence of double counting the usual business letter costs as if they are additional 'damages':

(a) In Claim number F0DP163T on 11th July 2019, District Judge Grand sitting at the County Court at Southampton, struck out an overly inflated (over the £100 maximum Trade Body and POFA 2012 ceiling) parking firm claim without a hearing for that reason.
(b) In Claim number F0DP201T on 10th June 2019, District Judge Taylor echoed an earlier General Judgment or Order of DJ Grand, who on 21st February 2019 sitting at the Newport (IOW) County Court, had struck out a parking firm claim.

13.5.1. These decisions include the Claimant in the instant case, UKCPM, using Gladstones' robo-claim model, as in this case. The Order was identical in striking out all such claims without a hearing. - The judgment for these three example cases stated:
''IT IS ORDERED THAT the claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in ParkingEye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998...''

14. - In summary, the Claimant's particulars disclose no legal basis for the sum claimed and it is the Defendant's position that the poorly pleaded claim discloses no cause of action and no liability in law for any sum at all. The Claimant's vexatious conduct from the outset has been intimidating, misleading and indeed mendacious in terms of the added costs alleged.

15. The Court is invited to make an Order of its own initiative, dismissing this claim in its entirety and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14 on the indemnity basis, taking judicial note of the wholly unreasonable conduct of this Claimant, not least due to the abuse of process in repeatedly attempting to claim fanciful costs which they are not entitled to recover, and founding a case against a resident without bothering to check the rights and easements already enjoyed by such a person.


Statement of Truth:

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


Name

Signature


Date

HeavyEvy

Thank you Coupon-mad, i'm updating the defence accordingly...

Interestingly I just received a document from my landlord, via the letting agent. It appears to be a notice that was sent to the owners management company, from Chamonix Estates, who I assume are managament agents. A couple of pieces caught my eye.

It says "Driveways and allocated parking spaces will not be patrolled under the parking control measures being considered"

It then goes on to say "Any ticket unfairly or incorrectly issued to a residential vehicle are able to be revoked with Chamonix Estates authorisation - PPC will revoke as many as required" (another company they were considering would only revoke 10% a month)

Just spoke to someone at Chamonix Estates and they say they won't get involved and I should speak to the PPC. So perhaps I need to formally drag Chamonix Estates in to this?

The letter also talked about a vote, and the lady at Chamonix Estates is apparently going to email me the results of that vote

Redx

The more you dig the better

Yes you need to make a nuisance of yourself and ask them when they are available to be cross examined in court because they are responsible for their agents actions

Also, if you go to court and win, you can consider a court claim against them for allowing this saga and doing nothing about it because they are preventing your peaceful enjoyment and rights