Residential PCN help please - ***I WON***

1505grandad

Just checking  -  is there supposed to be an "(exhibit 2D)"?

amateurgirl

Thank you all for your comments above. I've amended the WS and SWS accordingly and attach them below for your further consideration please. As before, there are 3 posts as they won't fit into less. 

In the County Court at XXXXX

Claim No. XXXXXXXX

Between

UK Parking Control Ltd (Claimant)

and

XXXXXX (Defendant)

-------------------------

Witness Statement

-------------------------

1. PRELIMINARY

1.1 I, XXXXX, of XXXXX am the Defendant in this case. I am unrepresented, with no experience of Court procedures. If I do not set out documents in the correct way, I trust the Court will excuse my inexperience.

1.2 Attached to this statement is a paginated bundle of documents marked 2A to 2W and 3A to which I will refer.  

1.3 The facts in this statement are true to the best of my knowledge and belief.

1.4 I deny every allegation set out in the Particulars of Claim.

2. SEQUENCE OF EVENTS

2.1 In 2001 I purchased a leasehold flat with an allocated parking space demised to me under the lease. My lease gave me “The right to exclusive use of the Parking Space for the purpose of parking a private motor vehicle not exceeding three tonnes gross laden weight” and as such I had the right to park therein at all times. The parking space was clearly indicated on the parking plan which formed part of the lease document, a copy of which is attached (exhibit 2A). The lease contained no clause requiring a permit to park nor did it contain any reference to parking controls of any kind.

2.2 In 2012, without any consultation with residents, the estate’s Managing Agents engaged a Private Parking Company, UK Parking Control Ltd (or UKPC), to ‘enforce’ parking on the estate. The residents knew nothing about this until the day that UKPC’s signs appeared on the estate. In a letter sent later, the Managing Agents said the scheme was to prevent trespassers parking on the estate and enclosed permits which they said residents should display in their vehicles (exhibit 2B).

2.3 As a courtesy to the Managing Agents I affixed the permit to my windscreen. It would periodically begin to peel off so I had to keep sticking it back down. Then in September 2014 it fell off the windscreen. When I came home, the permit was lying on the dashboard and a PCN was stuck on my windscreen (PCN dated xx S 2014). The Claimant’s Operative must have seen the permit lying on the dashboard, but s/he still issued the PCN.

2.4 When it fell off the windscreen, some of the print was left behind. I tried to stick it back on over this, but there was no adhesive left on it and it wouldn’t stay on. So now I was left without a permit. I was worried I would get another PCN, so I made what I thought would be a temporary substitute, by sticking a piece of white paper behind what remained of the imprint on the windscreen.

2.6 I appealed the PCN via the Claimant’s online appeals process, explaining the circumstances and also requesting a replacement permit (exhibit 2C). Their website clearly states that “if we’ve ticketed a legitimate user in error, just let us know and we’ll cancel it immediately”; but in complete contradiction of this statement, they refused to cancel the PCN, saying I had to pay or be taken to court, and refusing to send a new permit, saying I had to get one from the Managing Agent (exhibit 2D).

2.7 In addition to this, they’d taken 6 weeks to reply during which time they knew I had no permit and was therefore vulnerable to receiving more PCN’s. I contend that this was intentional, a deliberate tactic cynically designed to exploit this vulnerability and generate more ‘fines’.  I further assert that UKPC acted unreasonably by delaying their reply and knowingly leaving me in this situation. The Claimant has proceeded to court in full knowledge of the circumstances and I contend that this represents an Abuse of Process as defined by The Dictionary of Law as ‘a tort where damage is caused by using a legal process for an ulterior collateral purpose’.

2.7 Thanks to the ever-increasing information in the public domain, I’d learnt that PCN’s were not ‘fines’ or ‘parking tickets’ but actually ‘invoices’ which should be contested if they were issued unfairly. It was clear to me that the PCN had been issued unfairly, so I disputed it and refused to pay (exhibit 2E). 

2.8 I called the Managing Agents three times to request a new permit, before I was finally told I had to email my request. I emailed on 2nd December (exhibit 2F). I heard nothing from either party until late December when I received a letter from a company called Debt Recovery Plus Ltd (or DRP) saying that the Claimant had instructed them to collect the “unpaid parking charge”. This letter demanded £160 and threatened legal action if I didn’t pay (exhibit 2G). Despite being designed to scare me into paying up, I continued to refuse to pay what was an unfair charge (exhibit 2H).

2.9 In a clear misuse of my data, and in contravention of Data Protection legislation, the Claimant had passed my details to DRP without my knowledge or consent; and furthermore DRP was now using my data in a wholly unacceptable way, to threaten and bully me. In addition, the original ‘charge’ had been inflated by £60, for supposed ‘legal costs’ in bringing the claim, a contravention of the Protection of Freedoms Act.

Over the next 8 months DRP continued to pursue and threaten me over this ‘debt’, and I continued to refuse to pay (exhibit 2I).

2.10 By early January 2015, I still hadn’t received the replacement permit and my ‘temporary’ permit was still on display. It was then that a second PCN was issued (PCN dated xx S 2015). As usual, my vehicle was parked in my own parking space. The photos the UKPC Operative took show my ‘temporary’ permit clearly (exhibit 2J). He realised what he was seeing because he input into his device that “The vehicle has no permit or photocopy permit. What you see in the photos is white paper stuck behind the area where the ink from the permit transferred onto the windscreen” (exhibit 2K).

2.11 In February, I received a Notice to Keeper from the Claimant. However, it did not comply with Schedule 4 paragraphs 8 and 9 of the POFA, as it didn’t state how the PCN had been issued and it didn’t offer a 14-day payment discount. Under POFA, if this information is missing, the registered keeper cannot be held to account for the alleged debt of the driver and I again refused to pay. In February 2015 this resulted in a final reminder from UKPC, followed over the next 4 months, by threatening letters from Debt Recovery Plus, Zenith Collections and Small Claims Solicitors (exhibit 2L).  As before, in contravention of Data Protection legislation, the Claimant had passed my details to these various companies without my knowledge or consent; and they were now misusing my data to extort money from me through threats and intimidation. Furthermore, the original ‘charge’ had again been inflated by £60. And, as before, I continued declining to pay.

2.12 The replacement permit finally arrived later in January 2015. It had been delivered while I’d been away and I emailed the Managing Agents to say I’d received it (exhibit 2M). However, when I later went out to put it in my car, I found it had been targeted with the third PCN (PCN dated xx S 2015). As usual, my car had been parked in my own parking space. The ‘temporary’ permit was still on display, as confirmed by the photo’s the Operative took (exhibit 2N). Again, he has put into his device that “The vehicle has no permit or photocopy permit. What you see in the photos is white paper stuck behind the area where the ink from the permit transferred onto the windscreen” (exhibit 2O). The previous PCN had been issued just a week before and the circumstances are identical. Any reasonable procedure would allow time for new permits to be received, particularly over the Christmas and New Year period with its inherent delays. I contend that the Claimant has proceeded to court in full knowledge of the circumstances and that this represents a further Abuse of Process.

2.13 In February 2015, I received a Notice to Keeper from UKPC, followed two weeks later by the final reminder.  As before, these were non-POFA compliant (exhibit 2P).  I received no further correspondence relating to this PCN. I had no idea why this was, but I was not so naïve to think the issue had gone away.

2.14 In October 2016, the new permit was on display, but my vehicle was targeted with a fourth PCN (PCN dated xx O 2016). As usual it was parked in my own parking space. The Claimant’s website clearly states that “We never give parking charges to vehicles displaying a valid permit” so it was hard to understand why the PCN was issued. The reason given for issuing it was that the permit was, quote, a “non-valid photocopy”; but it was so obviously a genuine permit that I contend this was not the real reason. I contend that the real reason was that parking companies make their money by targeting residents, and to this end their Operatives are given financial targets to meet; and clearly this particular Operative still had his target to achieve, so he issued the PCN. The photos he took of the permit (exhibit 2Q) in 2016 look the same as the photo I took of the same permit in 2019 (allowing for it having faded over time) (exhibit 2R).  Furthermore, when I moved home, I removed the permit from my windscreen and retained it as evidence (exhibit 2S).

2.15 Following the issue of this last PCN, I heard nothing more about it. Then, in September 2018, I received a ‘Letter before Claim Pursuant to the Pre-Action Protocol for Debt Claims’ from SCS Law, saying the Claimant had instructed them to recover charges which had been, quote, “incurred by you in relation to the parking of your vehicle” (exhibit 2T). However, in contravention of the Practice Direction for the Pre-Action Protocol for Debt Claims, they had failed to provide any supporting evidence for the claim, and I was obliged to request this from them. I also asked them to confirm they were fully conversant with the terms of my lease in respect of my parking rights granted under that lease (exhibit 2U). In response, I received various copy photographs and documents and confirmation that neither SCS Law, nor the Claimant, had a copy of my lease (exhibit 2V).  As neither had a copy of my lease, neither was aware of the terms of my lease in respect of my parking rights.

2.16 There then ensued 9 months of argument and counter-argument between myself and SCS Law (exhibit 2W) until in June 2019 SCS Law wrote to me advising that they had been instructed to issue County Court proceedings to recover the “unpaid parking charges”. 

2.17 In one of their letters, SCS attempted to blame me for getting one of the PCN’s, by referring to a vehicle ‘exemption’ procedure, which they said I should have followed, but of which I’d never even heard (exhibit 2X). Another letter was dated several weeks before the date of the letter they were responding to, proving that these letters are just mail-merged templates, which no solicitor will have drafted (exhibit 2Y); and in another they claimed that (a) their client was unaware of a delay in providing a new permit and (b) that the Managing Agents had no record of my requesting a new one (exhibit 2Z). I was able to refute these claims with copies of the relevant correspondence.

 . 

amateurgirl

3. CLAIMANT’S CONTRACT  

3.1 I contend that the scheme introduced by the Managing Agents constituted a variation of the terms of my lease. At no point had the Managing Agents sought authority from me to vary my lease to allow them to impose a parking scheme and remove the unfettered parking rights and easements granted to me under my lease. In the absence of a variation to my lease, my lease had primacy of contract over any subsequent contract the Managing Agents entered into with the Claimant. I further contend that the Managing Agents entered into a contract with the Claimant without carrying out the due diligence by which they would have ascertained that my lease conferred on me pre-existing rights that could not be subsequently removed, and that they did not have the right to impose a Private Parking Company on my, the leaseholder’s, property.

2.3 The Landlord and Tenant Act 1987 states the mandatory requirements that have to be met before an existing lease can be varied. Under Section 37, every leaseholder (and the landlord) needs to be consulted and a ballot of every leaseholder (and landlord) must be carried out. A majority in favour of 75% of leaseholders (including the landlord) must agree to the variation with no more than 10% objecting. No such consultation or ballot was carried out and therefore any variation of the original lease is unlawful. In accordance with the Act, the Managing Agents and the Landowner (who must be a party to the ballot) instigating the change, are jointly liable for this unlawful change.

3.2 The Claimant had no authority over my property and no authority to bring a claim. The Claimant did not own the land on which the vehicle was parked, nor did they have any interest in the land. Therefore, the Claimant lacked the capacity to offer parking.

3.3 I contend that the Claimant undertook a contract with the Managing Agents without carrying out the due diligence by which they would have ascertained that they had no authority over my, the leaseholder’s, property. In correspondence with me in relation to these proceedings, it is clear that the Claimant (a) did not have a copy of my lease and (b) had no knowledge of its contents in relation to my parking rights (exhibit 3A). The Claimant was subsequently obliged to obtain a copy from the Land Registry to ascertain its contents.  The modus operandi of Private Parking Companies is to offer Managing Agents their service ‘free’, and to then make their money by targeting residents with PCN’s, without any regard to the prevailing rights and easements granted under residents Leases and Tenancy Agreements. I therefore assert that the Claimant undertook a contract without due regard to the legality of its performance.

3.4 The contract document the Claimant provided to me in relation to these proceedings, and on which they rely for their authority to operate on the estate, allows only for the issuing of charges and pursuit of outstanding charges, it does not give permission to issue court claims.  Furthermore, there is only one signature from each company, and this fails the strict requirements of the Companies Act 2006, Section 44 which requires two authorised signatures, or a director and witness, from each company to sign, in order for a contract to be valid (exhibit 3B). The Act defines an authorised signatory as a director or a company secretary. However, the signatory for the Managing Agents, John McCarthy, was, at the time of signing, a Customer Service Co-ordinator. There is nothing to show that Mr McCarthy had any standing to sign on behalf of the Managing Agents and I therefore assert he was not acting for, or on behalf of, the Managing Agents. Since no landowner agent is mentioned in the alleged contract, I contend that Mr McCarthy could not have been acting in that capacity either. Furthermore the document evidences no reference to, or involvement of, the Landowner in the contract and to date neither the Claimant nor its legal representatives have evidenced any such involvement.

3.5 In addition, the contract document states that the contract was for an initial period of ‘3 months beginning on the start date’, the start date being given as xxxx. I contend that therefore this contract document, on which the Claimant relies for their authority to operate on the estate, expired on xxxx. No evidence has been provided by the Claimant that this contract was formally renewed or extended beyond the xxxx, and I therefore further contend that the Claimant had no contractual authority to operate on the estate beyond the xxxxx and that ergo, the PCN’s issued against my vehicle in 2014 and after had no contractual basis and were therefore invalid.

3.6 I therefore assert that all the foregoing renders the document invalid and that ergo the Claimant has no contract to operate on the estate.

3.7 I contend that the Claimant has proceeded to Court in the knowledge that they have no authority over my, the leaseholder’s, property, no authority to bring a claim and under an invalid contract which moreover had expired. I contend that this is a further Abuse of Process.

4. SUMMARY

4.1 In summary, I contend that the Claimant’s Particulars disclose no legal basis for the sums claimed, and that the claim discloses no cause of action and no liability in law for any sum at all. From the outset, the Claimant’s conduct has been aggressive and intimidating in pursuit of monies to which they are not entitled. I contend that the Claimant is a vexatious litigant who abuses the law and the legal system by issuing and prosecuting bogus claims, with artificially inflated costs, for near-identical matters, which waste court time up and down the country.

4.2 In contravention of the Protection of Freedoms Act, the original ‘charge’ for each PCN had been inflated by £60 for alleged ‘legal costs’ in bringing the claim. Courts around the country have disallowed Parking Companies claims for such ‘costs’ as an Abuse of Process and the court is invited to refer to the attached Supplementary Witness Statement summarising such judgements.

4.3 I contend that the Claimant has behaved unreasonably in bringing this case against me to the court. Their actions and the actions of SCS Law have brought me considerable worry and distress. As a litigant-in-person I have had to learn relevant law from scratch and spend many hours researching case law online, processing and printing evidence and preparing my Defence and this Witness Statement and Supplementary Witness Statement. I will not claim for all the hours I have spent on this, but will be asking for a consideration to cover 30 hours of my time as detailed in my costs schedule.

4.4 There are several options available within the Courts’ case management powers to prevent vexatious litigants from pursuing individuals with meritless claims. I contend that Private Parking Companies act as vexatious litigants and that relief from sanctions should be refused to the Claimant who is clearly abusing the civil litigation process in order to attempt to gain a pecuniary advantage to which they have no entitlement. The Court may wish to consider the Judgement of the Court of Appeal in AXA Insurance PLC v Financial Claims Solutions Ltd & Ors [2018] EWCA Civ 1330, and express its disapproval of the Claimant’s conduct by making an award of exemplary damages in favour of the Defendant.

4.5 The Court is invited to make an order of its own initiative, dismissing this claim in its entirety and to allow me, the Defendant, such costs as are permissible under CPR 27.14, taking judicial note of the wholly unreasonable conduct of this Claimant.

I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

Signature of Defendant: 

Name: XXXXX

amateurgirl

IN THE COUNTY COURT AT XXXXX

CLAIM No. XXXXX
Between:
UKPC (Claimant)
- and -
XXXXX (Defendant)
SUPPLEMENTARY WITNESS STATEMENT

COSTS OF THE CLAIM - THE CONSIDERED SUM HAS BEEN INFLATED - ABUSE OF PROCESS

1. In contravention of the Protection of Freedoms Act schedule 4, (5) (exhibit SWS 1) which states that “the maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper….”, the Claimant has inflated the original amount of each PCN by £60 for their alleged ‘legal costs’ in bringing the claim.

1.2 Judges have disallowed Parking Companies claims for such ‘costs’ as an Abuse of Process. On 10th June 2019, in case number F0DP201T, District Judge Taylor echoed the judgement of District Judge Grand who struck out claims by Britannia Parking and UKCPM without a hearing stating: ''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 Parking Eye 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” (exhibit SWS 2).

1.3 Similarly, in the Caernarfon Court, on 4th September 2019, case number FTQZ4W28 was struck out by District Judge Jones-Evans stating: “it being recorded that District Judge Jones-Evans has over a very significant period of time warned advocates [...] in many cases of this nature before this Court that their claim for £60 is unenforceable in law and is an Abuse of Process and is nothing more than a poor attempt to go behind the decision of the Supreme Court v Beavis which inter alia decided that a figure of £160 as a global sum claimed in this case would be a penalty and not a genuine pre-estimate of loss and therefore unenforceable in law […] it is hereby declared [...] the claim is struck out and declared to be wholly without merit and an Abuse of Process'' (exhibit SWS 3).

2. In summary, I submit that the Claimant’s Particulars disclose no legal basis for the sums claimed, and that the claim discloses no cause of action and no liability in law for any sum at all. From the outset, the Claimant’s conduct has been aggressive and intimidating in pursuit of monies to which the Claimant is not entitled. I submit that the Claimant is a vexatious litigant who abuses the law and the legal system by issuing and prosecuting bogus claims, with artificially inflated costs, for near-identical matters, which clutter up the Courts and waste Court time up and down the land.

3. There are several options available within the Courts’ case management powers to prevent vexatious litigants from pursuing individuals with meritless claims. I submit that Private Parking Companies act as vexatious litigants and that relief from sanctions should be refused to the Claimant who is clearly abusing the civil litigation process in order to attempt to gain a pecuniary advantage to which they have no entitlement. The Court may wish to consider the Judgement of the Court of Appeal in AXA Insurance PLC v Financial Claims Solutions Ltd & Ors [2018] EWCA Civ 1330, and express its disapproval of the Claimant’s conduct by making an award of exemplary damages in favour of the Defendant.

4. The Court is invited to make an order of its own initiative, dismissing this claim in its entirety and to allow me, the Defendant, such costs as are permissible under CPR 27.14, taking judicial note of the wholly unreasonable conduct of this Claimant.

I believe that the facts stated in this Supplementary Witness Statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

Signature of Defendant: 

Name: XXXXX

 

Fruitcake

With regard to your WS item 3.4 where you mention the Companies Act, have a look at the paragraph 8 of  this thread in the post dated 7th July at 4.53 pm by Surferone. The judge (District Judge Simon Middleton) stated that "Claire Williams could not have signed the agreement on behalf of the owner (as previously defined) as she was not a director of the owner (even if it existed then) at the time.

Claim number F1DP92KF in Truro County Court on 3/7/20.

This supports your point that someone who is not a director cannot sign a contract on behalf of the owner, so I would add a one liner to that effect quoting the court case and judge's name.

https://forums.moneysavingexpert.com/discussion/6024485/lbc-stage-but-who-is-my-parking-contract-with/p4

Coupon-mad

The supplementary WS needs UKPC's name in full as the C at the top.

I'd add here:
2.2 In 2012, without any consultation with residents, the estate’s Managing Agents engaged a Private Parking Company, UK Parking Control Ltd (or UKPC), to ‘enforce’ parking on the estate. The residents knew nothing about this until the day that UKPC’s signs appeared on the estate. In a letter sent later, the Managing Agents said the scheme was to prevent trespassers parking on the estate and enclosed permits which they said residents should display in their vehicles (exhibit 2B).   To be clear, this was not an instruction nor did it place any obligation upon the residents, and nor was any contractual agreement communicated that would put 'permit holders' at any risk of charges for parking and if it had contained such information I would have rejected it.  

nosferatu1001

I would not use the exhbit numbering you have used
The standard is
INITIALS/001, .../002, etc. 
Using 2A, 2B, 3A etc is needlessly confusing. 

amateurgirl

Coupon-Mad, I'm not sure I can use all your wording in bold because having checked the letter from the MA it says: "we urge you to attach your permit ...as soon as you can. They will issue fines to anybody parking outside a bay, not in the correct bay or not displaying a permit clearly".
It's true the letter only "urged" rather than "instructed" residents to attach the permit and, to use your words, 'nor was any contractual agreement communicated [in the letter] that would put 'permit holders' at any risk of charges for parking'.  
Please advise your view about this.

Fruitcake

It's a request, not an instruction, and cannot override your existing rights. In any case, a PPC cannot issue fines so it fails as an instruction due to impossibility.
It is not a contractual requirement.

Coupon-mad

It's not a fine and they misled you.  And the sum is not mentioned, so this is not a contractual agreement.  It's a threat of a 'fine' (Police and Council only...) from someone who has no idea what they have inflicted on the residents.