Letter Before Claim - UKCPM LTD

Tuffty747

Hi guys,
I was hoping you could take a look over the first draft of my defence. See what you think and let me know of any changes or how to tidy it up if required. I've never done this before so any advice is much appreciated.
I've deleted all personal information for obvious reasons.

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

 

2. It is admitted that at all material times the Defendant is the registered keeper of vehicle registration mark XXX which is the subject of these proceedings. The vehicle is insured with ‘XXX’ with X named drivers permitted to use it.

 

3. It is admitted that on XXX the Defendant's vehicle was parked in an underground car park at ‘XXX’.

 

4. The Particulars of Claim on the N1 Claim Form refer to 'Parking Charge' incurred on XXX. However, they do not state the basis of any purported liability for these charges, in that they do not state what the terms of parking were, or in what way they are alleged to have been breached. In addition, the particulars state 'The Defendant as the driver/keeper of the Vehicle’, which indicates that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5.

 

5. The Particulars refer to the material location as 'XXX’. The Defendant has, since XXX, held legal title under the terms of a lease, to Flat No. XXX at that location. At some point, the managing agents contracted with the Claimant Company to enforce parking conditions at the estate.

5.1. The ‘location’ in the Particulars of Claim refer to the material location as ‘XXX’. However, the defendant’s vehicle was parked in an underground car park at ‘XXX (worth nothing that this location is a slightly different postcode, so technically they claim my car was parked at one postcode, but my address and the underground car park is actually a different postcode)’. Therefore this further pertains to the terms of the particulars being incorrect as the address stipulated is not the address where the vehicle was in fact parked.

 

6. The underground car parking area contains allocated parking spaces demised to some residents of the flats above. Entry to the underground parking is by means of a key fob, of a type only issued to residents. Any vehicles parked therein are, therefore, de facto authorised to be there.

 

7. As per letter attached from ‘XXX’ – the letting agent of the Defendant, the Defendant is offered access to an individual parking space as per the Certificate of Title to the property of XXX. Therefore in the Tenancy Agreement (Lease) signed by the Defendant, access to a parking space is afforded as part of the agreement.

7.1. There are no terms within the lease requiring lessees to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same.

 

8. The Defendant, at all material times, parked in accordance with the terms granted by the lease. The erection of the Claimant's signage, and the purported contractual terms conveyed therein, are incapable of binding the Defendant in any way, and their existence does not constitute a legally valid variation of the terms of the lease. Accordingly, the Defendant denies having breached any contractual terms whether express, implied, or by conduct.

 

9. The Claimant, or Managing Agent, in order to establish a right to impose unilateral terms which vary the terms of the lease, must have such variation approved by at least 75% of the leaseholders, pursuant to s37 of the Landlord & Tenant Act 1987, and the Defendant is unaware of any such vote having been passed by the residents.

 

10. Further and in the alternative, the signs refer to 'Authorised Vehicles Only/Terms of parking without permission', and suggest that by parking without permission, motorists are contractually agreeing to a parking charge of £100. This is clearly a nonsense, since if there is no permission; there is no offer, and therefore no contract.

10.1. The Defendant's vehicle clearly was 'authorised' as per the lease and the Defendant relies on primacy of contract and avers that the Claimant's conduct in aggressive ticketing is in fact a matter of tortious interference, being a private nuisance to residents.

10.2. In this case the Claimant has taken over the location and runs a business as if the site were a public car park, offering terms with £100 penalty on the same basis to residents, as is on offer to the general public and trespassers. However, residents are granted a right to park/rights of way and to peaceful enjoyment, and parking terms under a new and onerous 'permit/licence' cannot be re-offered as a contract by a third party. This interferes with the terms of leases and tenancy agreements, none of which is this parking firm a party to, and neither have they bothered to check for any rights or easements that their regime will interfere with (the Claimant is put to strict proof). This causes a substantial and unreasonable interference with the Defendant's land/property, or his/her use or enjoyment of that land/property.

10.3. In the letter dated 6th August 2018 sent by the Claimant to all residents at XXX, makes several contradictory claims to this specific Parking Charge Notice. Not limited to the following:

i) ‘Our aim is to ensure a safer parking facility for all, whilst ensuring residents can gain access and have exclusive rights to their parking area…’

ii) ‘Any vehicle not displaying a valid permit or parking in a bay/area that is not designated to them may receive a Parking Charge Notice.’

Both of these claims contradict the reasoning given for the PCN in question as the defendant has both access to the Basement Car Park through a key fob issued to all residents and a bay designated to the flat number XXX, as per the agreement in the lease.

iii) The letter also contained a map of the XXX (Estate) in question, with the Underground Car Parks highlighted in purple. The key to the side of the map highlights the purple sections as:

               ‘Basement Car Park and Retail Private Parking. We will not monitor or patrol at this time’.

At no point was the defendant informed of any changes to that communication, thus the fact that a Parking Charge Notice has been issued in one of these Basement Car Parks directly contradicts the communication that was sent to all residents of the estate. All residents had been offered exclusive rights to their own parking area as per the letter in question.

As the previous points of the defence state, the Defendant is a resident of this estate with access to an private, gated underground car park and an allocated parking space therein. The Parking Charge Notice has been issued with absolute disregard to the reasoning for the establishment of the parking management & enforcement service in the first place. It is therefore completely irrelevant.

 

11. The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 as a binding precedent on the lower court. However, that only assists the Claimant if the facts of the case are the same, or broadly the same. In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas it is the Defendant's position that no such breach occurred in this case, because there was no valid contract, and also because the 'legitimate interest' in enforcing parking rules for retailers and shoppers in Beavis does not apply to these circumstances. Therefore, this case can be distinguished from Beavis on the facts and circumstances.

 

12. 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 Judgement for Claimant is awarded.

 

13. The Claimant has completely failed to reply to all correspondence relating to a Subject Access Request originally dated 13th November 2019. No reply was issued to the Defendant’s Access Request, despite access to this information having been set out under the Data Protection Act 2018 / General Data Protection Regulations [GDPR]. Due to this breach of law, the Defendant has been unable to confirm the evidence that the Claimant alleges to hold in relation to no valid permit being displayed, as there was no photographic evidence provided to prove that there was no valid permit on display.

13.1. Given that no breach of contract has occurred, the Defendant also stipulates that a breach of Data protection laws has taken place, both in the access to the Defendants data and the failure to provide that data when requested. It is noted that in The case of Halliday v Creation Consumer Finance Ltd [2013] All ER (D) 199, authority was provided that a reasonable sum for compensation would be £750. The Defendant may refer to this case as previous evidence relating to the misuse of private data and breach of GDPR Regulations by the Claimant.

 

14. 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 £176.18, the Defendant avers that this inflation of the considered amount is a gross abuse of process.

 

15. It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, the Defendant is keeping a note of wasted time and costs so far in dealing with this matter, with a view to claiming the loss of at least half a day's work and travel/parking costs and any other expenses for attending any hearing.

 

16. 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 and the court is invited to strike it out.

16.1. 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.

A lot of this has been copied and edited/altered from other example defences. I'm unsure about Section 4. Not sure if that needs to be in there?

Any feedback greatly appreciated.

Le_Kirk

Looks like a standard "own space" defence.  Leave in paragraph 4 as it was written by Bargepole (a legal type), however your main defence is primacy of contract and key fob access.  To enhance your paragraph 12, you might want to search for the Abuse of Process thread (now called a Discussion) written by beamerguy and commented on by Coupon-mad or you could look over the last couple of days and see a completely new template defence and you could take the Abuse of Process parts from there.

Coupon-mad

https://forums.moneysavingexpert.com/discussion/6108153/suggested-template-defence-to-adapt-for-all-parking-charge-cases-where-they-add-false-admin-costs/p1

Download & adapt that one as it's designed to get the claim struck out in some cases (fingers crossed!).

Tuffty747

Hi guys,
Bit of a bump for this thread. 
After months of not much (DQ filled in and sent back around 6 weeks ago as per instructions in Newbie thread) I have today received an N159 letter from the County Court regarding 'Notice of Allocation to the Small Claims Track (no hearing).
Arrived today - dated 10th July 2020.

It claims that:
"Deputy District Judge XXX Sitting at the Law Courts XXX considered the papers in the case and ordered that:
1) The claim is allocated to the Small Claims Track and the parties are referred to Part 27 of the Civil Procedure Rules and the Practice Direction of that part for guidance on how the claim will be conducted.
2) The District Judge proposes to dispose of the claim without a hearing - that is on the papers alone. The parties must complete the Form N159 Response...
3) The District Judge can only deal with the case in this way if both parties agree. If both parties have not returned the form to the court by 3rd August 2020, indicating agreement, direction will be given for a hearing to take place.

Am I correct in thinking this is essentially the Judge suggesting that this case should be dealt with without a hearing, and they will simply decide based on the claim, defense, and documents already submitted? 
'Dispose' of the claim doesn't mean it's going to be thrown out, I'm assuming the word has a slightly different legal interpretation?

Best steps from here?

Thanks again guys.

Coupon-mad

Say no - using the words in the TELEPHONE HEARINGS thread that I added in a reply last month.

D_P_Dance

Have to seen this?

http://parking-prankster.blogspot.com/2016/11/residential-parking.htmlantsot

What does your lease/AST say about parking? Does it mention the need to display a permit? then it may take primacy over the self serving TnC of the scammer, and interfere with your lawful right to “quiet enjoyment” of your property, possible an offence under The Landlord and Tenants Acts.

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, and an independent appeals service will be set up,


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.

slation.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.

Tuffty747

Coupon-mad said:

Say no - using the words in the TELEPHONE HEARINGS thread that I added in a reply last month.

Thanks CM.
I've read through the Telephone Hearings thread, I'm about to send off the email to the court in question.
Do I need to attach anything to that email? Maybe a PDF copy of the N159 form declining the option for the case to disposed of 'on the papers' alone?

Then I'm assuming I need to send the N159 form in the post to both the County Court and the Claimant's Solicitors?

KeithP

Everything you send to the court must be copied to the Claimant's solicitor. That of course includes your email saying no to a hearing on the papers.

Coupon-mad

I don't post anything at the moment and why are you filling in a N159?  I've just been getting people to send an email and encouraging people to also seize the moment to append electronic copies of their defence, costs schedule, WS and evidence in case the Judge is working from home (even if this has already been posted to the court).

 Show us your draft first.

Tuffty747

KeithP said:

Everything you send to the court must be copied to the Claimant's solicitor. That of course includes your email saying no to a hearing on the papers.

Yep, Claimant's Solicitor CCed into all email communication, thanks!

Coupon-mad said:

I don't post anything at the moment and why are you filling in a N159?  I've just been getting people to send an email and encouraging people to also seize the moment to append electronic copies of their defence, costs schedule, WS and evidence in case the Judge is working from home (even if this has already been posted to the court).

 Show us your draft first.

I'm doing the N159 as that's the stage I'm at. Haven't got to WS yet.
Filed the DQ N180 form at the end of May, then got the N159 form in the post from the County Court last week. With the Deputy District Judge 'proposing to dispose of the claim without a hearing - that is on the papers alone.'

The email I'm about to send is very similar to the one you posted in another thread.
I can't use any of the working from home in noisy environment/key worker/kids at home reasonings as none of them apply to me. See below:

Dear Deputy District Judge XXX, 

I am the Defendant, (XXX).    

This email is also copied to the Claimant's solicitors.  

I have received your Order dated 10th July 2020, regarding the proposal that the case be heard 'on the papers'.  I am sure that any parking firm Claimant would hastily agree to that, given they are legally represented by a firm who complete cut & paste parking case paperwork for a living, and would prefer that Defendants for whom this is a once-in-a-lifetime cause of enormous anxiety are denied the opportunity to be heard to expose the issues in the template submissions and to speak as the only true witness to events.  

A hearing 'on the papers' is not suitable

In accordance with the Order, I must formally tell the court that I object, as a hearing on the papers is completely unacceptable to me.  I am not content for the case to be heard 'on the papers' because that seems to disproportionately give an advantage to a legally represented party.  I feel strongly after all these years of intimidating demands from this aggressive parking firm and their agents, that I need a voice at an attended hearing.  

I wish to question the Claimant about their evidence at a hearing in person and to expose omissions and any misleading or incorrect evidence or assertions.   The claim itself constitutes an abuse of process in that an unrecoverable sum dressed up as 'debt collection costs' has been added, yet this is an industry where costs must already be encompassed within the parking charge.  The Claimant knows or ought to know that this would be double recovery (ref: Britannia Parking v Crosby and anor, Southampton Court 11.11.19).  

I feel anxious that the claim has not been similarly struck out and I might be denied a voice, after all my preparation. I have no wish to obstruct the smooth workings of the court and wish things were different, but if the claim continues, I would much prefer a face to face hearing later in the year, if the court allows.  Very much my second choice as a last resort, would be a telephone hearing.  However, I have extremely limited time during the current lockdown to attend to this matter and my time is fully occupied. 

 

I would prefer a hearing in person once the pandemic lockdown is lifted.  However, I understand that to formally ask for an adjournment would be at a disproportionate cost which is not an option for me, so I await the court's Order and Directions. 

yours sincerely,  

XXX