Telephone Hearing to Set Aside CCJ at Country Court

Le_Kirk

injectedmadness said:

I'm very hopeful of this. I have been in touch with the landowner's representative. He has suggested he will raise this with the directors and push for UKCPM to cancel this. He is also going to write a letter to me confirming their intention that they do not want to pursue this. So I'm hoping that even if it doesn't get cancelled, it will help bolstering my defence further.

You should go further and pressure the directors to remove, not just the PCN but UKCPM; they are not required on a residential site.

injectedmadness

Le_Kirk said:

injectedmadness said:

I'm very hopeful of this. I have been in touch with the landowner's representative. He has suggested he will raise this with the directors and push for UKCPM to cancel this. He is also going to write a letter to me confirming their intention that they do not want to pursue this. So I'm hoping that even if it doesn't get cancelled, it will help bolstering my defence further.

You should go further and pressure the directors to remove, not just the PCN but UKCPM; they are not required on a residential site.

I think they recognise the issue. 

I see the need for a service provider to keep an eye on individuals that park in bays that aren't allocated to them. We live in a parking free part of the town, so incase someone has parked in your bay there is not much else you can do besides parking in a very expensive car park close by.  Such people gain access to the car park by tailgating others or when the entry barriers are disabled. 

Although, I don't agree on having such a militant approach on this. Any enforcement should be to help the residents who have a right to park and nothing else.

The engagement of UKCPM doesn't seem that well thought out. What alternatives would you suggest?

Coupon-mad

The engagement of UKCPM doesn't seem that well thought out.

LOL, that's an understatement! 

My student kids wouldn't even look at a place to rent if it had the likes of UKCPM on site.

 What alternatives would you suggest?

Simple - no parking firm. 

No residential site needs one.  You do NOT need this intimidation at your homes.  They are doing NOTHING useful whatsoever - prove me wrong,  Tell me why you believe you need a parking firm?

nosferatu1001

" so incase someone has parked in your bay there is not much else you can do besides parking in a very expensive car park close by."
Yet no parking firm will prevent this. If someone parks in your bay they might gt a parking charge, and you still have to find somewhere to park - and if you do so onsite, youre getting hit by a parking charge as well. 

injectedmadness

@Coupon-mad hoping to complete my draft today. 
I am in the process, after consulting the court regarding the dates I have to submit everything by, of drafting the following:

1. Defence
2. Witness Statement
3. Evidence
4. Summary of Costs

My Defence will be a combination of 'Primacy of Contract' and the right to peaceful enjoyment of my rented home as per the tenancy agreement, which does not stipulate any requirement for displaying a parking permit and only suggests I can park (in designated spaces) a vehicle that is legal (taxed etc). I will also combine here points raised in the abuse of process defence.

How can I include the building management representatives intention to request cancellation of this ticket (and UKCPM saying this is not possible) to show that UKCPM has no legitimate interest as part of my defence?

In my witness statement, I intend to recall events from nearly 2 years ago. Also, keeping in mind the time lapsed, what can I do with regards to genuinely not know who was the alleged driver?

injectedmadness

injectedmadness said:

Having read their claim bundle they have responded to specifically in their witness statement points raised in my defence. They have also used International Parking Community instead of the old name. The witness statement has been prepared by a paralegal.

I have found some small errors in the case bundle, the index refers to pages that are not present namely a witness statement by Jack Chapman which doesn't exist. The page numbers are mostly incorrect. Does this have any bearing? Should I submit my own copy?

In their witness statement they have raised a few points that are not covered by my defense. Do I submit a supplement to the documentation I have already submitted?

1. They claim that they were instructed by the 'managing agents of the landholder' at an incorrect date. As such from the contract I can see that the contract is dated much earlier than the construction of the second block of flats and its parking area. There is another block which may have been covered by the agreement. But as such this agreement is not between the landowner and the parking company. To add to this, the managing agent has changed and as such had not been the one being called out in the agreement and witness statement when the alleged PCB was received.
2. The claimant claims that parking permits were issued to residents at a date much earlier than the construction of the block and it parking. Permit provided by leaseholder are dated after the construction of the block of flats. The then managing agent sent a letter out informing of parking enforcement for a date much later than post construction and handover of the block. In contradiction to the point made in the WS.
3. It claims that the signage on the site is clear and unambiguous and terms and conditions apply and it is the driver's responsibility to check for such signage and obtain authorisation.
4. They claim a PCN was issued and no response received by registered keeper. Information then was obtained from DVLA and a postal PCN issued.
5. They raise a point that defendant should have made an application to set aside when knowledge of such claim was obtained. I have provided medical evidence to show my inability to be able to do this. They also make the point to note that defendant had a phone conversation. But no mention of asking for the matter to be settled and some form of agreement be reached, which was denied by the representative on the phone. As previously asked, how can I prove that I asked and was denied?
6. I also contacted the managing agent who contacted the claimant asking if the PCN could be cancelled and they were told since the matter is with the debt collectors (and as such default judgement has been passed) they won't be able to cancel the ticket. However if defendant had contacted earlier this could have been cancelled. In their WS they claim no such liberties are granted unless a PCN is issued incorrectly or in error. This is contrary to what was discussed between the managing agent and claimant.
7. They claim that defendant failed to nominated who was driving prior to the proceedings being issued and it is required under paragraph 5(2) of the Act (no mention of which specific act). Also claim that the criminal case of Elliott v Loake 1983 that registered keeper of a vehicle may be presumed to have been a driver unless they sufficiently rebut this presumption. And the court is invited to conclude that the registered keeper was the driver.
8. Should be noted here that the contract between managing agent and claimant specifically state driver of the vehicle not registered keeper.
9. They also state Schedule 4(5)(2) of the Protection of Freedoms Act 2012 which states that the creditor has the right to recover any unpaid parking charges from the keeper of the vehicle. Further they claim the PoFA Schedule 4 (paragraph 2) states that the keeper means the person by whom the vehicle is kept at the time of parking which is to be presumed unless the contrary is proved.
10. The claimant claims that my defence to right to park is not proven by my evidence (tenancy agreement) and this right was always subject to amendment (parking scheme and conditions as per the clear signage on site). And as such the leaseholder has to comply with the landowners agreement (should be noted the agreement is between managing agent and claimant) and as a tenant I should comply to this agreement between these parties.
11. The only restriction in the tenancy agreement is not park an unlicensed vehicle in the building. As such the claimant claims that by receiving/accepting permit from the claimant the defendant has bound themselves to the parking scheme and no objection was received from the defendant pertaining to this parking schemes enforcement. Therefore any rights have been abandoned.
12. Claimant claims that defendants use of Link v Blaney is incorrect as such because the leaseholder (defendant's landlord) did not have any such rights to give to the tenant in the first place.
13. The claimant claims that by not displaying a valid permit defendant has breached the terms and as such does not have a valid defence to the claim and ask for the application to be dismissed.

Needless to say, I am very much overwhelmed by all of this and would like as much support as possible. I am reading the forums and trying to understand all the points that have been made. There is a lot of information that I need to digest. Please bear with me.

Also, this was sent by their team at the Set Aside stage. I've summarised it. Do I have to defend these points?

Coupon-mad

Yes - you must cover those points in your defence, tearing their points apart and exposing every point they made which was wrong.

How can I include the building management representatives intention to request cancellation of this ticket (and UKCPM saying this is not possible) to show that UKCPM has no legitimate interest as part of my defence?

Append it as part of your exhibits list, to the whole bundle and refer to it in your defence or WS, whichever seems more natural as you are writing it.

In my witness statement, I intend to recall events from nearly 2 years ago. Also, keeping in mind the time lapsed, what can I do with regards to genuinely not know who was the alleged driver?

Just say so.  It doesn't matter much because of the stupid POFA law.

injectedmadness

Thank @Coupon-mad, I see that in your draft defence template there is opportunity to combine the resident defence with the Abuse of Process points.
I'll work this into it and where the point is raised regarding legitimate interest, I will reference the exhibit and include.

To the points about directors wanting to remove UKCPM, they have now had a meeting and agree this is the right course of action. I think convincing the residents in favour of not having a parking firm enforcing at all, will be a tall order. 

I have suggested a building management owned ANPR device that allows automating the opening and closing of gates without the need to have any enforcement. As pointed out here, even if there is enforcement it doesn't really benefit the person who's bay has been wrongly occupied. 

I feel this is victory enough for me at this stage, but getting the judge to acknowledge the wrongdoing and unfair practices of these cowboys will be the final nail in the coffin for me.

Anxiety levels are through the roof at the moment 😵🤯!

injectedmadness

This is from the claim bundle, one of the letters 'Formal Demand' states:

You are advised that if, after the period of 28 days beginning with the day after that on which this notice is given – the amount of the unpaid parking charge specified in this notice has not been paid in full, and we do not know both the name of the driver and a current address for service for the driver, under Paragraph 9(2)(f) of Schedule 4 of the Protection of Freedoms Act 2012 we will

have the right to recover from the keeper so much of that parking charge amount as remains unpaid. The overdue charge will increase to £149.00 in the first instance of further action.

Further they had included this in a trial bundle sent at the set aside stage:

• Whilst it is accepted that other drivers may have access to the vehicle; the PCN was affixed to the Defendant’s windscreen and the Defendant had the option of nominating a driver at the relevant time. Thereafter, a postal PCN was sent to the Defendant and again, he was given the option to nominate a driver but failed to do so. The Defendant was written to on numerous occasions thereafter and again, no driver nomination was received or indeed any response.

•  The Defendant failed to nominate who was driving prior to these proceedings being issued (which is required under the paragraph 5(2) of the Act). Notwithstanding the above, the Criminal Case of Elliott v Loake 1983 Crim LR 36 held that the Registered Keeper of a vehicle may be presumed to have been the driver unless they sufficiently rebut this presumption. The Court is therefore invited to conclude it more likely than not that the Registered Keeper (i.e. the Defendant) was the driver.

• The Defendant is in any event, pursued as the Registered Keeper of the vehicle which is a requirement under Schedule 4 (5)(2) of the Protection of Freedoms Act 2012 (‘the Act’) which states:

 “The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle.”

• The Protection of Freedoms Act 2012, Sched 4 (para 2) states that; the “keeper” means the person by whom the vehicle is kept at the time the vehicle was parked, which in the case of a registered vehicle is to be presumed, unless the contrary is proved, to be the registered keeper.

What does this mean? I'm really struggling to get my head round PoFA. 

injectedmadness

Any comments on this signage?