Draft Defense - Gladstones and UKPCM

atinybrit

Hi all,

Received two tickets over the course of a few months from UKPCM whilst renting at my previous property. Both for parking without a valid permit (a permit had been given to us but it was forgotten about on these occasions). One was a windscreen ticket, one was posted to us after I encountered the attendant as I came back to my car with my permit - he'd told me he'd cancelled it and walked off but clearly not.
I contested both tickets as per the newbies thread. The posted ticket and NTKs were addressed to my partner as he is the owner of the car. I contested both in his name (with his permission) but stated he was not the driver and would not inform them who was. They rejected both.
They continued to send multiple letters threatening CCJS, court etc etc. Again we followed the newbie thread and ignored until we finally had the letter from Gallstones telling us we really would be going to court.

We believe we have primacy of contract. Having reviewed our tenancy agreement, there is nothing that makes any mention of displaying permits or paying fines. All it says is that we need to park in our allocated bay and not park a vehicle without tax/insurance.

We submitted our AOS on 24/11. I have written the below so far but I'm now somewhat stuck. Any advice is much appreciated - thank you in advance.

In County Court
Claim no:
Between (Claimant)
And
(Defendant)

1) The defendant denies that any ‘parking charges, loss and/or damage’ are owed and all debts are denied in their entirety. The defendant denies that the Claimant is entitled to any interest what so ever.
2) No evidence has been supplied by the claimant as to who parked the vehicle. Under POFA 2012 (Protection of Freedoms Act) there is no presumption in law as to who parked the vehicle on private land, nor is there any obligation to name the driver. The defendant admits to being the owner and registered keeper of the vehicle, but cannot admit to being the driver at the time, given lack of evidence and the fact multiple people are insured to drive the vehicle.
3) The claimant has requested sums on top of the original parking charge that do not seem realistic or recoverable. It is often found that these sums are taken from a template used for all cases, and therefore it does not seem reasonable to add a ‘legal representative fee’ when a legal representative was not likely used.
a) The alleged debt as described in the claim are unenforceable penalties, being just the sort of unconscionable charges exposed as offending against the penalty rule, in ParkingEye Ltd v Beavis.
4) It is denied that the defendant or any other driver of the vehicle has entered into any contractual agreement with the Claimant.
a) There are no terms within the Defendant’s Tenancy Agreement that state a tenant or visitor is required to display a parking permit when parking within the allocated bay. It is also not stated that a tenant or visitor is required to pay third parties, for example the Claimant, any fines or fees for not displaying a permit. Primacy of contract cannot be amended by private parking company signs unless the resident has agreed to a variation of the tenancy, which has not happened in this case.
b) In the case of In Link Parking ltd vs J. Parkinson [2016], C7GF50J7, the judge referred to a similar can in which it was ruled “…the Judge in that case found that the parking company could not amend the terms of the tenancy agreement to bind a tenanty, but rather it would have to be the other party to the contract”.
c) The only restrictions stated within the Defendants tenancy agreement are “To park private vehicle(s) only at the property”, “To park in the space allocated o the Property/Premises, if the Tenant is allocated a car parking space”, “To keep any garage, driveway or parking space free of oil and pay for the removal and cleaning of any spillage…”, “To remove all vehicles at the end of the tenancy…” and “Not to park any vehicle… that is not in road worthy condition and fully taxed”.
d) The presence of the Claimant on the land will have supposedly been to prevent parking by uninvited persons, for the benefit of the actual leaseholders. Instead, a predatory operation has been carried out on those very people whose interests the Claimant was purportedly there to uphold.

Again, thanks in advance for any help.

Coupon-mad

Hmmm, you seem to be missing any comment about no landowner authority/proprietary interest, and your #3 is quite a weak version of what is needed to be said about them adding £60 (and UKCPM do use solicitors so that wording in #3 at the moment, makes little sense).

Your case seems to lend itself more to adapting the residential defence example by Johnersh (I think it's one of the 17 example defences in the NEWBIES thread) which deals more thoroughly with the POFA.

The Defendant should DENY being the driver, not say this, which is too vague:

The defendant admits to being the owner and registered keeper of the vehicle, but cannot admit to being the driver at the time, given lack of evidence and the fact multiple people are insured to drive the vehicle.

atinybrit

Coupon-mad wrote: »

Hmmm, you seem to be missing any comment about no landowner authority/proprietary interest, and your #3 is quite a weak version of what is needed to be said about them adding £60 (and UKCPM do use solicitors so that wording in #3 at the moment, makes little sense).

Your case seems to lend itself more to adapting the residential defence example by Johnersh (I think it's one of the 17 example defences in the NEWBIES thread) which deals more thoroughly with the POFA.

The Defendant should DENY being the driver, not say this, which is too vague:

Thank you for the advice. I'm not entirely sure what you mean by landowner authority/proprietary interest? I purchased a copy of the land registry and it was very unclear to me but I do not believe my landlord owns the parking space, and it is in fact owned by the management company. I wrote a formal complaint to them, and they refused to cancel it or assist in any way. (A neighbour had his cancelled this way, so I'm certain they're able to).

I will attempt to amend 3) and repost later on and I will definitely look further into Jonersh's defense. Thanks again.

1505grandad

Can you please state the full name of the claimant.

atinybrit

1505grandad wrote: »

Can you please state the full name of the claimant.

I've mistyped the acronym above, my apologies - UK Car Park Management

Le_Kirk

I'm not entirely sure what you mean by landowner authority/proprietary interest?

It means the PPC cannot issue PCNs unless they are acting with the authority of the landowner, who may or may not be your landlord. If you read the NEWBIE sticky post # 2, you will find links to 17 pre-written defences where you will find the standard wording to which you add your specific points and the Abuse of Process points at post # 14 (written by Coupon-mad) on beamerguy's thread. Search the forum for it.

Coupon-mad

All you need to do is read the 17 example defences, all of which have the landowner/proprietary interest point in them (bar one by bargepole, that misses it out).

I told you which defence to copy, the one by Johnersh and then add some facts and a denial about the D being the driver. This is easier than you think.

atinybrit

Hi guys,


Just gone to submit the defence but's now telling me I can't respond to the claim as a judgement has been entered against me?
Is this a CCJ? I thought I had 3 more days to respond and I'm really panicking!

Your acknowledgment of service was submitted on 24/11/2019 at 20:56:37

Your acknowledgment of service was received on 25/11/2019 at 09:05:26

A judgment was issued against you on 20/12/2019 at 19:14:27

Fruitcake

Ring the court as soon as they are open gain, although I have no idea if that will be Monday or after christmas.
Be warned, it may take a long time for the 'phone to be answered.

atinybrit

Entirely my own fault, but I've miscalculated the date in which my defence needs to be submitted. I can see on MCOL that the judgement has been submitted but we've not received a letter. We've recently moved and while we've submitted our new address to them I'm worried it'll go to our old address.

I'm assuming we give them a call on Monday, and submit to have the CCJ set aside?
I've looked over previous posts and can see that you need to submit your defence alongside the request to have the CCJ set aside - is this true?
How long do I have to get it set aside? What with the holidays coming up - do these time frames include bank holidays or not?

Thanks in advance

Le_Kirk

The usual rule about applying for set-asides is "as soon as is reasonably practicable after discovering the CCJ" Your timing should be fine as long as you act soon. Search the forum for six-point draft order and see what others have done. Ring the court as well on Monday and make sure they have your CURRENT address for service.