LBC - UKPC/SCS Law

nosferatu1001

Yes of course you can.  You cannot be bound as you were not given a copy. Their ref to the head lease is now up irrelevant. 

beamerguy

UKPC ...... I wonder if SCSLaw know that UKPC are now using CST .... must tell a story ???

Le_Kirk

summertech said:

Thanks, I will work on refining the WS. 
Our letting agent confirmed verbally that I could use these spaces but hasn't responded to my request to provide a written statement.

If they are playing hard ball, just ask them for some dates when they will be available to appear as a witness at your hearing (in person or by video/telephone call) so they can be asked by the judge for the info that should be SO easy to provide.

summertech

Hi, does this read any better? Advice/critique most appreciated.

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

In the County Court at XXXX

Claim No: XXXX

UK PARKING CONTROL LTD  (Claimant)

XXXX (Defendant)

 

WITNESS STATEMENT OF DEFENDANT

FOR TELEPHONE  HEARING XXXX

 

1.     I am XXXX of XXXX and I am the defendant against whom this claim is made. The facts below are true to the best of my belief and my account has been prepared based upon my own knowledge.

 

2.     In my statement I shall refer to exhibits within the evidence supplied with this statement, referring to page and reference numbers where appropriate. My defence is repeated and I will say as follows:

 

3.     I was the registered keeper and driver of the vehicle on XXXX and thereafter.

 

4.     The claim against me relates to parking charges that allegedly occurred at my previous address XXXXX where I was a tenant from XXXX. [See Exhibit DT01 – AST Agreement].

 

 

5.     I was informed by my letting agent that the unallocated external spaces in the development were available for resident use on a first come, first served basis. As you can see from the appended AST, there is no mention of parking, or restrictions on parking. [See Exhibit DT01 – AST Agreement].

 

6.     The parking spaces in question are only accessible from the Private Accessway, protected by a locked gate to prevent trespass. The Defendant possesses a key fob to enter this gate – a type issued only to residents.

 

 

 

7.     At some point, prior to the commencement of my tenancy the previous managing agents have contracted with the Claimant company, but they are strangers to the contract between myself and my Landlord. In addition to this, the Managing Agent would have contracted the Claimant company to prevent trespass, not penalise residents.

 

8.     The Claimant avers that I am contractually bound by the terms of the appended Head Lease. I refer to Page 11 of Exhibit DT01 of which states that the Tenant’s Obligations are to “comply with the obligations of the Head Lease provided a copy of the obligations are attached to this agreement". It is clear to see that the obligations are not attached to the AST, and I am unable to comply with terms which I have not been informed of.

 

9.     The Claimant company has been removed from service in the development due to poor performance and harassment of residents.

 

The Beavis case is against this claim

 

10.  This situation can be fully distinguished from ParkingEye Ltd vs Beavis [2015] UKSC67 referenced by the Claimant, where the Supreme Court found that whilst the £85 was not (and was not pleaded as) a sum in the nature of damages or loss, ParkingEye had a ‘legitimate interest’ in enforcing the charge where motorists overstay, in order to deter motorists from occupying spaces beyond the time paid for and thus ensure further income for the landowner, by allowing other motorists to occupy the space. The Court concluded that the £85.00 charge was not out of proportion to the legitimate interest (in that case, based upon the facts and clear signs) and therefore the clause was not a penalty clause.

 

Redacted Landowner Contract

 

11.  The Claimant has appended a redacted “landowner contract” which has little or no value and offends against the rules of evidence. The boundary/map is not shown, and nothing to say that the landowner’s approach (whoever they may be) is penalising genuine residents who pay towards the building’s upkeep. The “contract” is between the Claimant and the Managing Agent, not the landowner and it is clear that two Directors have not signed this contract for either party, contrary to the Companies Act 2006. The network of contracts are key in these cases, since the parking charges are argued to be contractual and the authority to sue must flow from the landowner, not an agent.

 

12.  The Claimant states that “Space 2 Management c/o Trinity Estates Property Management Limited (formerly Trinity Chainbow) was authorised by the landowner to enter into a contract and confer the aforementioned authority upon the claimant”, yet no evidence to show this authorisation has been provided.

 

13.  In the recent Court of Appeal case of Hancock v Promontoria (Chestnut) Limited [2020] EWCA Civ 907 – [See exhibit DTXX]

 

The Court of Appeal are now clear that most redactions are improper where the court are being asked to interpret the contract. Ref paras 74 & 75 “…The document must in all normal circumstances be placed before the court as a whole. Seldom, if ever, can it be appropriate for one party unilaterally to redact provisions in a contractual document which the court is being asked to construe, merely on grounds of confidentiality…confidentiality alone cannot be good reason for redacting an otherwise relevant provision…

 

Abuse of process - the quantum

 

14.  The Claimant has added a sum disingenuously described as 'damages/admin' or 'debt collection costs'.  The added £60 constitutes double recovery and the court is invited to find the quantum claimed is false and an abuse of process [See exhibit DTXX] transcript of the Approved judgment in Britannia Parking v Crosby (Southampton Court 11.11.19). That case was not appealed and the decision stands. 

 

15.  Whilst it is known that another case that was struck out on the same basis was appealed to Salisbury Court (the Semark-Jullien case), the parking industry did not get any finding one way or the other about the illegality of adding the same costs twice. The Appeal Judge merely pointed out that he felt that insufficient information was known about the Semark-Jullien facts of the case (the Defendant had not engaged with the process and no evidence was in play, unlike in the Crosby case) and so the Judge listed it for a hearing and felt that case (alone) should not have been summarily struck out due to a lack of any facts and evidence. 

 

16.  The Judge at Salisbury correctly identified as an aside, that costs were not added in the Beavis case.  That is because this had already been addressed in ParkingEye's earlier claim, the pre-Beavis High Court (endorsed by the Court of Appeal) case ParkingEye v Somerfield (ref para 419): [See exhibit DD09]

''It seems to me that, in the present case, it would be difficult for ParkingEye to justify, as against any motorist, a claim for payment of the enhanced sum of £135 if the motorist took the point that the additional £60 over and above the original figure of £75 constituted a penalty. It might be possible for ParkingEye to show that the additional administrative costs involved were substantial, though I very much doubt whether they would be able to justify this very large increase on that basis. On the face of it, it seems to me that the predominant contractual function of this additional payment must have been to deter the motorist from breaking his contractual obligation to pay the basic charge of £75 within the time specified, rather than to compensate ParkingEye for late payment. Applying the formula adopted by Colman J. in the Lordsvale case, therefore, the additional £60 would appear to be penal in nature; and it is well established that, in those circumstances, it cannot be recovered, though the other party would have at least a theoretical right to damages for breach of the primary obligation.''  

 

17.  This stopped ParkingEye from using that business model again, particularly because HHJ Hegarty had found them to have committed the 'tort of deceit' by their debt demands.  So, the Beavis case only considered an £85 parking charge but was clear at paras 98, 193 and 198 that the rationale of that inflated sum (well over any possible loss/damages) was precisely because it included (the Judges held, three times) 'all the costs of the operation'.   It is an abuse of process to add sums that were not incurred.  Costs must already be included in the parking charge rationale if a parking operator wishes to base their model on the ParkingEye v Beavis case and not a damages/loss model.  This Claimant cannot have both. 

 

 

18.  This Claimant knew or should have known, that by adding £60 in costs over and above the purpose of the 'parking charge' to the global sum claimed is unrecoverable, due to the POFA at 4(5), the Beavis case paras 98, 193 and 198, the earlier ParkingEye Ltd v Somerfield High Court case and the Consumer Rights Act 2015 ('CRA') Sch 2, paras 6, 10 and 14.  All of those seem to be breached in my case and the claim is pleaded on an incorrect premise with a complete lack of any legitimate interest. 

 

19.  This Claimant has failed to provide adequate notice of any terms, let alone the parking charge, which is not prominent in reality. It is noted that the Claimant has appended ‘stock’ images of signs which are not as they appear in situ, and a mocked-up ‘aerial view’ in which an unidentified person has marked supposed signage locations with no evidence that this is true. I can state from my own knowledge that there were nothing like that many signs within the development.

 

My fixed witness costs - ref PD 27, 7.3(1) and CPR 27.14

 

20.  As a litigant-in-person I have had to learn relevant law from the ground up and spent a considerable time researching the law online, processing and preparing my defence plus this witness statement.  I ask for my fixed witness costs.  I am advised that costs on the Small Claims track are governed by rule 27.14 of the CPR and (unless a finding of 'wholly unreasonable conduct' is made against the Claimant) the Court may not order a party to pay another party’s costs, except fixed costs such as witness expenses which a party has reasonably incurred in travelling to and from the hearing (including fares and/or parking fees) plus the court may award a set amount allowable for loss of earnings or loss of leave.

 

 

21.  My travel costs depend upon whether the hearing is in person but the fixed sum for loss of earnings/loss of leave apply to any hearing format and are fixed costs at PD 27, 7.3(1) ''The amounts which a party may be ordered to pay under rule 27.14(3)(c) (loss of earnings)... are: (1) for the loss of earnings or loss of leave of each party or witness due to attending a hearing ... a sum not exceeding £95 per day for each person.''

 

 

 

CPR 44.11 - further costs

 

22.  I am appending with this bundle, a fully detailed costs assessment which also covers my proportionate but unavoidable further costs and I invite the court to consider making an award to include these, pursuant to the court's powers in relation to misconduct (CPR 44.11).   In support of that argument, I remind the court that I appealed and engaged with the Claimant at every step and they knew all along that the tariff has been paid.  Not only could this claim have been avoided and the Claimant has no cause of action but it is also vexatious to pursue an inflated sum that includes double recovery.  This is compounded by the witness attaching stock images of signs instead of actual images and a redacted 'landowner authority' document that could be from anyone.

 

Statement of truth:

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

 

DATE

Coupon-mad

I think I'd add:

5.     I was informed by my letting agent that the unallocated external spaces in the development were available for resident use on a first come, first served basis. As you can see from the appended AST, there is no mention of parking, or restrictions on parking. [See Exhibit DT01 – AST Agreement].  Even if a requirement was introduced that required visitors to display a permit, this was not an obligation upon the residents, who are not 'visitors'.  I was not bound by any permit terms.

Umkomaas

beamerguy said:

UKPC ...... I wonder if SCSLaw know that UKPC are now using CST .... must tell a story ???

I wonder if 'real' court cases are fronted by SCS and the CST ones are just those fed through to them by DRP for 'frightener' purposes, with UKPC possibly not even aware?  Let's see if anything from CST/UKPC materialises into much.

summertech

Hi all,
Thanks for your help in preparing my WS which I ended up submitting directly to the Court due to no response from SCS Law.

The case has been adjourned due to lack of judicial resources (London-based Court so must have suffered a COVID outbreak!), I will receive a new date in due course - some time in the next 6 months.

It's a shame as I was really pumped up for Monday.

I'll let you know the outcome of the case when I can,

Thanks again.

summertech

Hi All,

My case was heard via telephone this morning by DJ Stone, SCS Law sent a representative.

The case lasted approx 2 hours.

He was impressed with my defence/WS and points raised, but couldn't award judgement as he said the balance of probabilities was that I would have been aware of the need for a permit given that there were 4 seperate invoices and I should have raised the question with my landlord/letting agent after the first invoice.

It was extremely frustrating, as the sign appended in the claimant bundle was a stock sign, and the images of the signs taken at the point of PCN issue didn't clearly show the terms but the claimant witness stated (with no evidence) that this is the only sign UKPC use and is present at all of their car parks and the judge believed this to be true.

He accepted my argument re the Head Lease not being appended to my AST, and therefore me being unable to be bound by the terms, but he believed I should have sought this out myself following the first invoice.

He didn't accept the argument regarding the redaction of the contract (he really didn't like this argument), and although landowner authority wasn't clear or evidence provided, he held that on the balance of probabilities the managing agent would have received this authority prior to entering into the contract with the parking firm.

He also didn't accept that the £60 addition was unlawful/unrecoverable. He felt that as the appended stock sign stated 'Unpaid Parking charges will be passed to our debt recovery agent at which point an additional charge of £60 will apply', and the fact that he felt on the balance of probabilities these were the signs present in the development that the charge was lawful.

He held this view even after explanation of the relevant clauses in the appended judgements, both in the Defence & WS.

All in all an extremely frustrating but eye opening experience.

He took around an hour to sum up, during which it seemed he would find in favour of my defence after spending a while discussing my points and the strength of them, but then he carried on to talk about the signs, balance of probabilities etc.

The claimant asked to be awarded costs for my unreasonable behaviour (not accepting mediation!), but the judge did not give the order.

Thanks for your help in preparing everything, you do brilliant work.

 I strongly believe that in front of a different judge, one more aware of the scams which these PPC's attempt to pull that this case would have been successful, but I have to chalk this one up as a loss!

Le_Kirk

That's tough luck but judge bingo strikes again.  When will judges realise that the law (POFA says you cannot charge more than the original charge) is the law!

Coupon-mad

Wow, it is extremely rare to find a Judge who thinks that parking firms can add sixty quid for 'debt recovery' when the PCN debt recovery firms operate on a no win no fee basis and charge nothing at all to the Claimant - i.e. the £60 is a falsely-claimed cost even if the Judge thinks the sign formed a contract about it.

Also rare to find a Judge who doesn't think a resident has primacy of contract, with an agreement that is silent about displaying permits.  Whose failure was it, who didn't tell you that you needed a permit?  Letting agent?  You could complain to them and either sue them for this loss, or report the Letting Agent to the Property Ombudsman, if you think they were at fault.

But get your own back this way (see below) because at the moment the Government thinks that (whilst £50 should be the lowest level parking charge in future) for some unexplained reason, £100 should be  - they say - the level in residential car parks.  Astonishing that they appear to believe that £100 is OK, as if parking firms actually only issue PCNs to trespassers when we (and you) know full well that they actively target residents for multiple tickets.  

You need to be heard, to tell the Government what is really happening and why £100 is not OK (in multiples) as a punishment for genuine residents:


Please do us and yourself (and the driving public) a favour and stick around on this forum every week - at least for the Summer - to ensure you see when the Government publish and open the final Technical Consultation.

We will be talking about it and the public will have about 4 weeks we think, to tell the MHCLG what you think about the level of parking charges, that the MHCLG has admirably decided already will start at £50 (50% discount) and not £100:

Outcome of 2020 Consultation:

https://www.gov.uk/government/consultations/parking-code-enforcement-framework/outcome/parking-code-enforcement-framework-consultation-response

Planned Summer 2021 additional Public Consultation:

https://www.gov.uk/government/news/government-to-open-technical-consultation-on-fairer-parking-charges

It's not open yet but please keep check here to see when it is. 

We need real people like you to counter the spamming that happened last time from the industry.

PLEASE COME BACK EVERY WEEK OR TWO SO YOU DON'T MISS IT.