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

amateurgirl

Thank you all for your comments. I'm posting below my updated WS and SWS which I hope will be the definitive ones. 

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 WS/001 to WS/029 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 WS/001). 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 parking abuses on the estate, and enclosed permits which they “urged” residents to display in their vehicles or risk getting a ‘fine’ from UKPC (exhibit WS/002). To be clear, this was not an instruction nor did it place any obligation upon the residents. 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.  As a courtesy to the Managing Agents, and in the interests of good relations with them, I affixed the permit to my windscreen.

2.3 Within a short time, the permit began to peel off the windscreen, and I had to keep sticking it back down. Then in September 2014 it fell off. I’d been away on holiday, and I came home to find the permit lying on the dashboard and a PCN stuck on my car (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. Furthermore, the photos taken were from such an angle that the permit could not be seen lying on the dashboard, and I contend that this was deliberate tactic in order to provide UKPC with indefensible ‘proof’ of the supposed ‘breach’ (exhibit WS/003).

2.4 When it fell off the windscreen, some of the print was left behind on the glass. I tried to stick it back on over this, but it didn’t work as there was no adhesive left on it. This meant that, effectively, I now had no permit, just a piece of floppy plastic with some remnants of print on it. Worried I would get another PCN for not displaying a permit, 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 WS/004). 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 WS/005).

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 by now 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 WS/006). 

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 WS/007), followed by a further phone call and a further email (exhibit WS/008). I heard nothing from either party until a letter arrived from a company called Debt Recovery Plus Ltd (or DRP) saying they had been instructed by the Claimant to collect the “unpaid parking charge”, and threatening legal action if I didn’t pay (exhibit WS/009). Despite trying to scare me into paying up, I continued to refuse to pay what was an unfair charge (exhibit WS/010).

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, 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 WS/011).

2.10 By early January 2015, I still hadn’t received the replacement permit and my ‘substitute’ was still on display. It was then that the 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 ‘substitute’ permit clearly (exhibit WS/012). 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 WS013).

2.11 I subsequently 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. 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 WS/014).  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 WS/015). 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 ‘substitute’ permit was still on display, as confirmed by the photo’s the Operative took (exhibit WS/016). 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 WS/017). The previous PCN had been issued just a week before, and the circumstances were 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 A few weeks later, a Notice to Keeper from UKPC arrived, followed two weeks after that by the final reminder.  As before, these were non-POFA compliant (exhibit WS/018).  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, nonetheless, my vehicle was targeted with the fourth PCN (PCN dated xx O 2016). As usual my vehicle 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 had been 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 going after residents, and to this end their Operatives are given financial targets to meet; and clearly this particular Operative still had his target to meet, so he issued the PCN. Moreover, and as shown in the photos he took, he pushed the PCN under the windscreen wiper, causing damage costing £30 to repair (exhibit WS/019).  When I moved home, I removed the permit from my windscreen and retained it as evidence (exhibit WS/020).

2.15 Following the issue of this PCN, nothing more happened – no letters from UKPC arrived, nor any from any of their ‘agents’. However, knowing the Claimant’s modus operandi, I wasn’t so naïve as to think I’d never hear from them again. Then, in September 2018, a ‘Letter before Claim Pursuant to the Pre-Action Protocol for Debt Claims’ arrived 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 WS/021). 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 WS/022). 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 WS/023).  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 WS/024). In one of their letters, they 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 wasn’t even aware (exhibit WS/025). 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 WS/026); 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 WS/027), both of which claims I was able to refute with copies of the relevant correspondence. Finally, in June 2019 they wrote to advise me that they had been instructed to issue County Court proceedings to recover the “unpaid parking charges”.  

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. 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 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 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.

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. 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 WS/028). 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.

3.3 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 WS/029). The Act defines an authorised signatory as a director or a company secretary. However, the signatory for the Managing Agents, Mr 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. In Claim number F1DP92KF in Truro County Court on 3rd July 2020, District Judge Simon Middleton stated that "[the signatory] 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”. Furthermore the Claimant’s contract 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.

3.4 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.

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

3.6 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. The Courts 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:
UK Parking Control (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/001) 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 around the UK have disallowed parking company’s 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/ 002).

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).

1.4 Additionally, in December 2019, Deputy District Judge Joseph, sitting at Warwick County Court, struck out the cases of a number of parking companies that were also inflating their claims by £60, saying “it is an abuse of process for the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover”. In these cases, the judge stated that the provision of the additional sum breached the Consumer Rights Act 2015, section 71(2), para 6, 10 and 14 (exhibit SWS/003).

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

 

Coupon-mad

Looks good. Have you also done a costs assessment?

amateurgirl

Thanks CM, praise indeed! 
I've started to do a costs assessment but, until I know whether I'm having an in-person hearing or a phone one, I don't know if I need to add travel and accommodation costs or not. The case is allocated to a London CC, but I don't live in London anymore so, if its in person, I'll have to travel back for it.  I have asked the court if the hearing is by phone or not and they said they'd let me know nearer the time.

Fruitcake

I would do two versions then; one for a 'phone hearing and one for a face to face jobby.

1505grandad

As a matter of interest I just wonder where you - presumably - "copied and paste" some of the WS and SWS because of the different ways of spelling "Judgment" contained in your docs.

For instance in para 1.2 of SWS you state:-

".........District Judge Taylor echoed the judgement of District Judge Grand who struck out claims by Britannia Parking and UKCPM.................."

BUT also in the same para correctly spelt in this context (i.e. no middle "e"):-

"..........is not recoverable under the Protection of Freedoms Act 2012, Schedule 4, nor with reference to the judgment in Parking Eye v Beavis."

If you wish to correct the "middle e" errors - using Control + F will find them for you in your docs.

Coupon-mad

The case is allocated to a London CC, but I don't live in London anymore 

Eek, then you need to cover that and attach (download from t'internet) a new N180 Directions Questionnaire and ask for re-allocation as well!

Flipping heck of course you must tell the court. You don't have to travel. Your case travels!

amateurgirl

Thanks CM.
Sorry if this is a stupid question but when you say I need to cover it and attach a new N180, I'm not sure what you're asking me to do exactly? Where am I sending it and what am I attaching it to?

Umkomaas

amateurgirl said:

Thanks CM.
Sorry if this is a stupid question but when you say I need to cover it and attach a new N180, I'm not sure what you're asking me to do exactly? Where am I sending it and what am I attaching it to?

The fact that you no longer live in London, the location of your now nearest county court, asking that the case be transferred there in a covering letter, with a new Directions Questionnaire (N180) completed and attached. I'm not sure whether it should be sent to the Northampton CCBC or the London CC, so perhaps send to both (can any other regular advise?), and you must send a copy to the claimant's solicitors.