Money Claim Online received

MpowerM3

nosferatu1001 said:

Not confusing. The courts saying defence is too much like an argument 
you need to write w better defence. Do so. 

Thanks for that. 

Coupon-mad

OK, never seen that before and unfair on you. 

The reason I never tell people to separate the legal stuff out is because I just know from experience that this would happen:

NEWBIES WOULD FORGET AND DROP THE BALL AND MISS IT OUT ALTOGETHER.

NO-ONE WOULD REMEMBER TO DO A 'SKELLY' AS WELL AS A WS LATER! 

However, now you must because your court said so.

Separate the defence (your facts from 17, 18, 19 and the signage arguments AND THE FACT THAT THE CRA 2015 PUTS A DUTY UPON THE COURT TO CONSIDER THE TEST OF FAIRNESS - OF TERMS AND SIGNS - IN S71*) into a document headed 'defence' with the usual headings and statement of truth.  

Then save the rest (the legal arguments, stuff about the POFA and the Beavis and the Somerfield case) for a skeleton argument document.  That will be filed later, maybe a week before the hearing or with your WS & evidence not less than TWO weeks before the hearing.  This is such a faff for you and completely unnecessary.  What a pedantic Judge!

Sign and date the new defence and send it to the court and claimant's solicitor, before the deadline this Court has given you.

NOT TO THE CCBC. NOT USING MCOL.

*For this reason, no defence to a parking charge should ever be struck out, IMHO.  Very rare.  And wrong.

nosferatu1001

It's short but needed. You currently do not have a defence as the court has struck it. You have on,y a few days to write a new one and send it to the court AND to the claimant. 

MpowerM3

I'm getting a little bit out of my depth with this. I guess if this submitted defence is not perfect the pedantic judge will scrub this and simply hand it to Gladstones ? I fear I'm going to test your patience, but this legal stuff is totally alien to me. 
If I understand you correctly, the following is close to the basic defence needing to be submitted ?

IN THE COUNTY COURT

Claim No. G8******

Between
Parking Control Management ( UK ) LIMITED (Claimant)
- and - Mr ****  ***** (Defendant)

1. These parking charges relate to predatory ticketing at the housing estate of rented flats

where the Defendant lives. There is a garage in a courtyard type area and residents with

garages have always - since well before the start of the Defendant's tenancy - enjoyed

unfettered rights or easements to pass, repass and use the courtyard to access their garages, including parking in front of their own garage. Without any consensus of landlords or tenants, the estate managers foisted a notorious ex-clamper firm, PCM(UK), on residents and the

Defendant can testify to the fact that the residents' lives have been made a misery due to the

private nuisance caused by this Claimant's conduct. This aggressive and predatory ticketing

firm were inflicted on residents long after the development was built and there were no

parking restrictions at the time of signing the tenancy agreement, which will be provided in

evidence before trial. Tenants have been receiving parking tickets like confetti, based upon a

couple of minutes of photographs which allows no fair grace period for anyone to fetch the

permit from their flat, let alone read terms on their sparse signs.

2. It is denied that the Defendant was in breach of any parking conditions or was not

permitted to park. The Defendant avers that there was an implied entitlement to park outside

the garage, deriving from the terms of the lease and the fact that a garage was allocated to the

flat and that stopping outside the garage caused no obstruction to other users and was the

norm, until PCM(UK) arrived. Such rights or easements cannot be fettered by any alleged

new parking terms. That permits were forced upon residents (who merely displayed them as

a courtesy) does not mean that the scheme was agreed or that the Defendant accepted any

variance to the lease agreement. It would never have been agreed by residents to pay £100 a

day to park outside their allocated garages or be forced to park a mile away to avoid this thug

firm - but this is what has occurred. 19. 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.

3. The Claimant’s signs have vague/hidden terms and a mix of small font, such that they would

be considered incapable of binding any person reading them under common contract law, and

would also be considered void pursuant to Schedule 2 of the CRA. Consequently, it is the

Defendant’s position that no contract to pay an onerous penalty was agreed by the driver.

4. 11. The quantum claimed is unconscionable and the falsely added sum not there at all (or was

buried in small print) on the sparsely-placed car park signs. As such, the Defendant avers that

the charge offends against Schedule 2 of the CRA, where s71(2) creates a duty on the Court

to consider the fairness of a consumer contract.

Statement of Truth

I believe that the facts stated in this defence 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. Defendant’s signature:

Defendant’s name: Mr ****  ****

Date: 

Coupon-mad

Try this version and add your local court where I've shown it in bold.

AND STOP PUTTING 'MR' IN FRONT OF YOUR NAME!:

IN THE COUNTY COURT AT (LOCAL COURT'S NAME)

Claim No. G8******
Between

Parking Control Management (UK) LIMITED (Claimant)
- and -
 ****  ***** (Defendant)

Preliminary
1. This Claim is inflated, includes a significant element of double recovery and the Particulars of Claim lack specificity or any breakdown to justify the exorbitant sum sought.  The Defendant sets out this defence as clearly as possible in the circumstances, insofar as the facts below are known.  

Background: admissions and denials
2. It is admitted that at all material times the Defendant was and is the registered keeper of the vehicle that is the subject of these proceedings. It is admitted that the Defendant's vehicle was stopped - for what appears to be mere minutes - at this location, which is at the entrance to the garage that forms part of the demise of (or in the alternative, is exclusively allocated to) the Defendant's flat. 

3.  It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking parking management. The Claimant has provided no proof of any such entitlement.  It is denied that the Claimant has any standing flowing from the overall landowner and it appears (at best) that their position is as third party agents with a bare licence from another third party agent, neither of whom are in possession. 

4.  It is denied that the Claimant has any entitlement to the sums sought.  It is denied that the Claimant can lawfully charge the Defendant for the events described, thus there is no 'outstanding liability'.  It is denied that the Defendant 'parked in breach' or agreed to any contract or to pay a 'parking charge'.  It is the Defendant’s position that no contract was entered into with the Claimant, whether express, implied, or by conduct.  Therefore, the Defendant cannot be held liable to the Claimant for any charge or damages arising from any alleged breach of the purported terms.

5. This claim appears to relate to two parking charges that were issued as a result of predatory ticketing at the estate of rented flats where the Defendant lives. There is a garage in a courtyard type area and residents with garages have always - since well before the start of the Defendant's tenancy - enjoyed unfettered rights or easements to pass, repass and use the courtyard to access their garages, including parking in front of their own garage.  From the date the estate was built, there was a period of around 8 years without any parking firm. 

6. The two parking charges are typical of those being issued like confetti to residents at the estate; they are based upon a couple of minutes of photographs which allows no fair grace period for anyone living there to load/unload or simply fetch a key to the garage or permit from the flat.   The Defendant can testify to the fact that the residents' lives have been made a misery due to the private nuisance caused by this Claimant's conduct and it is understood that a significant level of complaints from residents are being ignored by the managing agents and by this Claimant.  Hence, the Defendant refused to engage with the 'demands' mentioned in the Particulars because the notices were aggressive and bore all the hallmarks of exactly the sort of scam/rogue ticketing at residential estates that was exposed and condemned by MPs in both Houses, during the transition through Parliament of the new Parking (Code of Practice) Act 2019.

7.  Without any consultation with tenants or leaseholders (and contrary to the Landlord and Tenant Act) the estate managers recently foisted this notorious ex-clamper firm upon residents. This aggressive and predatory ticketing firm were inflicted on residents long after the development was built and there were no parking restrictions at the time of signing the Defendant's tenancy agreement, which will be provided in evidence before trial.   

8.  Further, the Defendant has made enquiries of his private landlord (the leasehold owner) who stated that parking in the courtyard area where the garages are, including in front of the garage, is allowed.  When he purchased the apartment, the Property Information Form he got back from the previous owners mentions this right specifically and this is the basis upon which the landlord bought the flat and subsequently rented it to the Defendant, passing on those rights. The Defendant will provide the landlord's Property Information Form in evidence but for the avoidance of doubt, it says under 'PARKING':  Q: ''What are the parking arrangements at the property? ''  A: ''One garage. Parking inside the Courtyard'.  The Defendant avers that it is likely that the Head Lease confirms this position, and puts the Claimant to strict proof if they disagree.

Authority to Park and Primacy of Contract

9.  It is denied that the Defendant or lawful users of the vehicle were in breach of any parking conditions or were not permitted to stop in the Courtyard or in front of the garage, in circumstances where permission to park and a right to peaceful enjoyment of the property (including the garage) had been granted to the Defendant by virtue of their pre-existing tenancy agreement.   The Defendant avers that there was an absolute entitlement to park, deriving from the terms of the tenancy (such rights being passed to the tenants from the leaseholder) which cannot be fettered by any alleged new parking terms.

10.   Far from deterring trespassers, this Claimant is targetting residents then suing them if they do not fall into line with the unsolicited new terms that appeared overnight on signage.  It is averred that subjecting residents to unfair penalties like sitting ducks, cannot have been the intention of the managing agents or site landowner and would, on the balance of probabilities, cause a derogation of grant and conflict with the leaseholder rights.

11.  By contrast, the Claimants, in their role as purported 'service providers', had an implied duty of care to existing residents and by any reasonable interpretation, their due diligence should have included inspecting the Head Lease and/or discussing it and the rights granted to and enjoyed by the (mixed leaseholders and tenants) residents, in order to find a way to exempt people like this Defendant before enforcement commenced.   

12.  The Defendant avers that:
(i)  the operator’s signs cannot 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 a lease/tenancy agreement.  There are previous cases decided up and down the Country where this has been made clear and the Court will be referred to persuasive authorities, in the event that this matter proceeds to trial.

13.  Accordingly, it is denied that there was any agreement between the Defendant, or other driver of the vehicle, and the Claimant.  The Claimant is a stranger to the Defendant.  

Alternative Defence - Failure to set out clear parking terms
14. In the alternative, the Defendant relies upon ParkingEye Ltd v Beavis (2015) UKSC 67 insofar as the Court were willing to consider the imposition of a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.

15.  The Defendant avers that the parking signage in this matter was, without prejudice to the primary defence above, inadequate.  At the time of the material events the signage was deficient in number, distribution, wording, text size and lighting to reasonably convey a contractual obligation.  The signage did not comply with the requirements of the Code of Practice of the International Parking Community’s ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and the notices contained particularly onerous terms not sufficiently drawn to the attention of residents, who thought the permit scheme was to deter trespassers and never dreamt they were the targets.

16.  The Claimant’s signs have vague/hidden terms and a mix of small font, such that they would be considered incapable of binding any person reading them under common contract law, and would also be considered void pursuant to Schedule 2 of the Consumer Rights Act 2015 ('the CRA').  Certainly there was no warning nor agreement that the Defendant was suddenly being prevented from parking or stopping outside his own garage, where he always did in the past.  The signage placement looked for all the World like notices relating to the bins or keeping doorways clear and were not conspicuous or bound to be seen by residents who knew that they had a right to park, so would not be required to seek out terms.

No legitimate interest - the Supreme Court case of ParkingEye v Beavis is distinguished
17.  The Defendant avers that the residential site that is the subject of these proceedings is not a site where there is a commercial value to be protected. The Claimant has not suffered loss or pecuniary disadvantage and there is no commercial justification nor evidence of authority flowing from the landowner (the managing agents are not in possession of the land).  The penalty charges here are unfair, unjustified by any legitimate interest and, accordingly, the parking charges are unconscionable in this context, with ParkingEye v Beavis fully distinguished.

Exaggerated quantum - an attempt at double recovery
18.  Further, the quantum claimed is unconscionable and the falsely added sum for 'contractual damages' is simply double recovery of costs and is therefore, an abuse of process.  The added sum ('£60 per PCN' so says the Particulars of Claim) was not quantified on the sparsely-placed signs.  As such, the Defendant avers that the charge offends against Schedule 2 of the CRA, where s71(2) creates a duty on the Court to consider the fairness of a consumer contract (terms and also signs) whether a consumer raises it or not. 

19.   The Defendant also notes by way of defence that this inflated claim is a poor attempt to go behind the Beavis case, where at paras 98, 193 and 198, the Supreme Court stated three times that the rationale of a justifiable parking charge (in that case, £85) must include 'all costs' of the operation (i.e. the standard pre-court demands issued by post).  Whilst it is true that the Beavis case did not, in itself, deal with a matter of falsely added 'contractual costs or damages', the previous Court of Appeal level private parking-related case of ParkingEye Ltd v Somerfield Stores [2011] EWHC 4023 (QB), had already done so.  This was why Mr Beavis only faced a claim for £85 a few years later, because the parking firm Claimant knew that added sums were not allowable.  In finding the parking firm were guilty of the tort of deceit (albeit they won the case against the Stores) HHJ Hegarty QC, sitting at the High Court Queen's bench division, stated at 419: ''the additional £60 would appear to be penal in nature; and it is well established that, in those circumstances, it cannot be recovered''. 

19.  Accordingly, the Court is invited to find that the Claimant's claim is unfair and wholly without merit and should be dismissed in its entirety.

Statement of Truth

I believe that the facts stated in this defence 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: 

Umkomaas

@Coupon-mad - was this deliberate?

The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee’s ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory;

Although I do notice that the PCM signage shows this former name at the foot (still using up old stock?).

@MpowerM3 - in the event of  CM not seeing this and responding in time, please use 'International Parking Community' in its place. This is the current name (and has been since well before the dates of your parking tickets) of theIr members' club Approved Trade Association. 

Coupon-mad

Haha, thanks U; I never saw that!  I copied that part from Johnersh's residential defence from way back when (it's deliberately still linked in the NEWBIES thread so that people with residential cases can read what to put in their specific type of case).

MpowerM3

Court date of mid December has arrived with Gladstones having until November 12th to pay the trial fee.
I guess there's no point in doing anything until they pay up and the hearing proceeds. 
As to submitting documents at least 14 days in advance , apart from the property information form about the courtyard parking, is there anything else I need to send ? 

nosferatu1001

Yes. Tons 
Why not write the WS now? Doesn't take long. 
You've reread the newbies thread yes?
you won't be told they've paid. 

Redx

Witness statement plus exhibits plus summary costs assessment , so plenty to assemble in your bundle

You must assume it is proceeding until proved to the contrary