Parking Charge Notice- Newlyn

BeckyT711

Also, I'll need to send in a draft defence as well won't I? Thank you all so much for your help so far.

KeithP

BeckyT711 wrote: »

Okay great, thanks so much. I read on another post from you on another thread that you can take the paperwork and make payment at your local county court? Is this the case?

BeckyT711 wrote: »

Also, I'll need to send in a draft defence as well won't I? Thank you all so much for your help so far.

Yes and yes.

BeckyT711

This is my draft defence so far....any feedback would be greatly appreciated!

DEFENCE

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

2. It is admitted that the Defendant is the registered keeper of the vehicle in question.

3. This claim form has not been served at my current address and I became aware of the claim incidentally. I understand that this Claim was served at an old address knowingly by the Claimant and their Solicitors. I have communications from the Claimant’s solicitors dated before the claim form that were sent to my new address, proving the claim form was sent deliberately to my old address to deny me the opportunity to acknowledge this in a timely manner.

4. I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they held the Defendant’s current and correct contact details. According to publicly available information my circumstances are far from being unique. The Claimant’s persistent failure to use correct and current addresses results is an unnecessary burden for individuals and the justice system across the country.
On the basis provided above I would suggest that the Claimant did not fulfil their duty to use the Defendant’s current address when bringing the claim.

5. It is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

6. Alternatively, even if there was a contract, the provision requiring payment of £359.46 is an unenforceable penalty clause.

7. In addition, the amount demanded is excessive and unconscionable. The Claimant’s representative has artificially inflated the value of the claim from £100 to £359.46. The legal costs are not justified additionally it would have been factored within the additional £60 charge per PCN thus claiming again would be considered double charging creating financial gain.

8. It is denied that the Defendant or lawful users of his/her vehicle were in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the Defendant permitting the above mentioned vehicle to be parked by the current occupier and leaseholder of 100 Wantz Road, whose tenancy agreement permits the parking of vehicle(s) on land. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms. The lease terms provide the 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 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. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial.
9. 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

BeckyT711

And my tweaked witness statement:

I am xxxxxxxxx and I am the defendant in this matter. This is my supporting statement to my application dated xxxxxxx requesting to:

Set aside the default judgement dated xxxxxxxx as it was not properly served at my current address.
Order for the Claimant to pay the defendant £255 as reimbursement for the set aside fee.
Order for the original claim to be dismissed.

DEFAULT JUDGEMENT

1.1 I understand that the Claimant obtained a Default Judgement against me as the Defendant in July 2019. However, this claim form had not been served at my current address and I thus was not aware of the Default Judgement until October 2019 when I received a letter from Newlyn Debt Collectors Ltd. This prompted me to do a personal search on Registry Trust which originally came back clear when searching under my name and current address (due to the fact the correspondence from Newlyn came to my new address). Following this I performed a credit check which again confirmed I did have a default CCJ. I contacted Registry Trust again and they confirmed it had been served to me at an old address, however I moved to a new address in March 2019. In support of this I can provide a solicitor’s completion statement showing the date of completion which is attached.

1.2 CPR 13.3 states (1) In any other case, the court may set aside or vary a judgement entered under Part 12 if –
(a) the defendant has a real prospect of successfully defending the claim; or
(b) it appears to the court that there is some other good reason why –
(i) the judgement should be set aside or varied; or
(ii) the defendant should be allowed to defend the claim.

1.3 On the 14/11/2019 I contacted Gladstone Solicitors as UKPCM had passed my case on to them, to confirm which addresses they held for me on their records. They confirmed they only had my old address and that the Claim Form had been sent there so I requested they send me a copy of any correspondence to my new address.

1.4 Upon receiving the correspondence from Gladstones Solicitors, a ‘Letter Before Claim’ dated xxxxxxx came to my attention (of which I never received) addressed to where I’m currently residing, yet the claim form, dated xxxxxxx was still sent to my old address, thus proving that the claim form was KNOWINGLY sent to my old address and denying me the opportunity to act upon this in a timely manner. I received the correspondence from Newlyn Debt Collectors Ltd as they had performed a basic search to find my current address, a process that Gladstones and UKPCM should have done to ensure I received the Claim Form and any other vital correspondence.

1.5 I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they held the Defendant’s correct contact details. According to publicly available information my circumstances are far from being unique. The industry’s persistent failure to use correct and current addresses results is an unnecessary burden for individuals and the justice system across the country. This is a topical issue: I note that the Justice Minister The Rt Hon Sir Oliver Heald QC MP announced on the 23rd December 2016 a consultation and information campaign to help protect consumers from debt claims. The consultation will look at ways to; “better protect consumers who are sent mail to inaccurate addresses and verify addresses again before a claim is sent.” The Minister added that “In the digital age, we must ensure companies pursuing unpaid debts make every reasonable effort to contact individuals, rather than simply relying on a letter to an old address.”

1.6 On the basis provided above I would suggest that the Claimant did not fulfil their duty to use the Defendant’s current address when bringing the claim.

1.7 On 21/11/2019 I made an e-mail request to the Claimant inviting them to consent to set aside the judgment due to the reasons set out previously.

1.8 The Claimant did not respond to my request.

1.9 Considering the above, I was unable to defend this claim. I thus believe that the Default Judgement against me was issued incorrectly and thus should be set aside and I ask the Court to kindly consider the reimbursement of the fee of £255 from the claimant due to their conduct, should this request be successful, and allow me to submit my defence.

ORDER DISMISSING THE CLAIM

2.1. I further believe that the original Claim by the Claimant has no merit and should thus be dismissed. I understand that the Claimant is a Parking Company which seeks to claim for “Parking Charge Notices” which the Claimant believes are due as a result of an alleged breach of contract for parking by a motorist.

2.2. If the Claimant has obtained details of the vehicle for which the Defendant is the Registered Keeper, and used those details to make a claim for a “Parking Charge Notice’’, I thus dispute the claim in its entirety as I do not know the wording of the contract nor do I know the means by which the contract was alleged to come into force.

2.3 Further to this, the parking space in question was my, the defendant’s, own private property and have evidence to prove this from the Land Registry. The conditions of my lease agreement state that the allocated bay I was parked in was part of the shared ownership premises I purchased and there is no mention of needing to provide a permit to park there.

2.4. On this basis I believe that the Claimant has not provided any reasonable cause of action and thus the claim should be dismissed in its entirety.

2.5. In order to make informed decisions and statements in my defence as keeper of the vehicle, I will require copies of all paperwork and pictures of all signs from the Claimant.


Statement of Truth
I, xxxxxxxxxxxxx , the Defendant, believe the facts stated within this Witness Statement to be true.
Signed: ________________________________
Dated: ________________________________

Coupon-mad

I can't see the bit Henrik777 quotes about the rules for a Mandatory Set aside?

This doesn't make sense:

7. In addition, the amount demanded is excessive and unconscionable. The Claimant’s representative has artificially inflated the value of the claim from £100 to £359.46. The legal costs are not justified additionally it would have been factored within the additional £60 charge per PCN thus claiming again would be considered double charging creating financial gain.

The Beavis case confirms that the business costs are factored into the original parking charge.

BeckyT711

Oh apologies, that bit shouldn’t have been left in. The bit about the mandatory set aside rules was in my witness statement...should I put that in my defence instead?

BeckyT711

Hello, I didn't know whether to start a new thread or not but as the details of the case are included in this I thought I'd stay here!
I had a telephone hearing today in which the Judge agreed to set aside the CCJ, and they have ordered UK Car Park Management Ltd to pay my £255 application cost which is great news! Thanks so much to everyone who helped me get this far, I'd have been clueless without it.
He didn't dismiss the claim however so do need a bit of advice on next steps. The judge wasn't convinced by my defence; I owned the parking space in question and have proof from my tenancy agreement that there is no mention of a permit needed. Can I still use this as my defence? Also how much of my original witness statement, draft order and draft defence will need rewriting? I have until 7/7/2020 to submit these to Gladstones and the court. Thanks so much in advance.

D_P_Dance

UKPC are fraudsters, read this,

https://www.dailymail.co.uk/news/article-3229165/Is-PROOF-private-parking-firms-scamming-motorists-Drivers-say-timings-photos-doctored-legally-parked-cars-issued-fines.html

Nine times out of ten these tickets are scams, so consider complaining to your MP., it can cause the scammer extra costs and work, and in some cases, cancellation. 

Parliament is well aware of the MO of these private parking companies, many of whom are former clampers, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. Codes of Practice are being drawn up, an independent appeals service will be set up,

Just as the clampers were finally closed down, so hopefully will many DVLA's date base more rigorously policed, persistent offenders denied access to the DVLA database and unable to operate.

Hopefully life will become impossible for the worst of these scammers, but until this is done you should still complain to your MP, citing the new legislation.

http://www.legislation.gov.uk/ukpga/2019/8/contents/of these Private Parking Companies.

Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.

Le_Kirk

You could have a look at some of the standard defence examples in the NEWBIE sticky particularly those pertaining to "own space" defences.  What did the order from the judge actually say?  If it stated you have to submit an amended defence, do exactly that, take your original defence as filed and amend it to (better) suit the case, adding in bits you glean from the examples or from reading other posters wining defences.  If it stated you have to file a defence, you need to start from scratch by using those same examples.
Well done on getting the set-aside and on getting your costs paid.

DoaM

And the judge is wrong ... a pre-existing right to park in your lease, even where there's a term in the lease allowing the managing agent to make changes for the benefit of the estate (engaging a PPC is not reasonable and doesn't benefit the residents), trumps any spurious contractual T&Cs that a PPC may try and enforce.