UKPC / DCB Legal - Part 2 - I WON IN COURT

Jenni_D

... and without altering them. (It's not unheard of for a PPC to photocopy the D's evidence and rescan, so as to degrade the quality).

IloveElephants

Hi Everyone, hope you are all well... I am making notes for my hearing coming up this week, I am looking forward win or loose.

I also got in touch with the landowner of the site at the time and he doesn't want to get involved, he said its between me and UKPC so I can tick this off the list. I showed him the "contract map signed" but it fell on deaf ears. (Thanks Albany homes Director)


Just want to clarify the below from the claimants WS:



Insufficient Particulars of Claim vii. The Defendant questions whether the Particulars of Claim comply with the Civil Procedure Rules. I submit that the Claim was issued via the County Court Business Centre and in this regard, I refer to Practice Direction 7C (“the PD”) which specifically provides the guidelines for doing so. I respectfully submit that the Particulars of Claim (“the Particulars”) are in keeping with the PD. The following sections are of relevance: - “5.2(1) provides a limited character count for the Particulars of Claim; and 5.2A stipulates that the requirement in paragraph 7.3 of Practice Direction 16 for documents to be attached to the particulars of contract claims does not apply to claims started using an online claim form.” viii. It is my Company’s position that the Particulars were sufficient to allow the Defendant to identify the subject matter of the Claim. The Defendant could not have submitted a Defence with the detail it contains if the Particulars were so insufficient as to prevent them from understanding the claim. Further, with respect, if the Defendant were of the genuine belief that the Particulars of Claim were insufficient, the correct procedure would have been to make an Application to the Court. The Defendant has chosen not to do so; ix. In addition to the above, I also refer to CPR 1 and respectfully remind the Defendant of their obligation to deal with the case justly and at proportionate cost. Bearing in mind the claim amount, my Company has taken proportionate steps to recover the debt;


And this one please...


New Code of Practice (“COP”) xv. The Defendant makes reference to the Department for Levelling Up, Housing and Communities (“DLUHC”) and the ‘new’ parking code of practice originally published in February 2022 7 within their Defence. With respect, it is submitted that this bears no relevance to the matter at hand as the code has not yet been enacted with the current status of the code being ‘withdrawn’ as of June 2022; xvi. Further to the above, the Defendant’s opinion of the industry being regulated by the Independent Parking Committee and British Parking Association bears no relevance to the Defendant’s liability. With respect, nothing has currently been implemented by the Government for my Company to adhere to (although this is of course pending). I respectfully ask the question; would the Defendant have deemed it more appropriate for my Company to not adhere to the COP(?). Referring to that Code is not ‘misleading’ – it is (at the present time) entirely relevant and section 111 of Parking Eye -v- Beavis [2015] confirmed that




Penalty / Amount Claimed xix. In respect of the Defendant’s allegation that the claim is a penalty, my Company is not seeking more than the original charge as the core debt. The core charge remains the same for each PCN (i.e. £100); however, my Company is now also seeking further costs/damages;  (In total £450) when you deduct solicitor and court fees. If I may also add the 3rd "ticket" that my supplementary WS is about for the same particulars, they should have consolidated this case as 1 single but are issuing multiple claims through the court. Estoppel (its in my Sup WS ) 


I mentioned in my WS - . The claim is exaggerated by inclusion of a false, wholly disproportionate and un incurred 'damages' enhancement of £60 upon which the Claimant seems to have also added interest at 8% calculated from the date of parking. Clearly an abuse of the court process.


 
Alternative Dispute Resolution xxv. It is submitted that the Defendant has been provided with an ample of opportunities to engage in processes prior to a Claim being issued. Respectfully, the Defendant failed to resolve the matter before a claim was issued, thus they are liable; Costs xxvi. The Defendant’s costs are denied in their entirety. My Company took all reasonable steps to resolve the matter prior to the use of Legal proceedings. The Defendant failed to engage in such attempts and thus, Legal proceedings were issued as a last resort; 25. In view of the above, it is my Company’s position that the Defendant breached the Contract as set out in this Statement and as such the Defendant is liable. Conclusion 26. My Company claims the claim issue fee, fixed costs pursuant to CPR 45, and the hearing fee in any event. 27. In the alternative to the contractual costs set out above, my Company reserves the right to claim additional costs pursuant to CPR 27.14(2)(g). This claim was issued as a last resort, and given the robust appeals procedure in place, should not have been necessary. It is my Company’s position that this is unreasonable behaviour, and it is respectfully requested that the Court considers whether they conclude the same. 28. It is my respectful submission that the Defence is entirely without merit and as such it is requested that the Defence is struck out and Judgment awarded in favour of my Company, payable forthwith. 29. I may not be able to attend the forthcoming hearing. Should this be so, an advocate will attend on my behalf. I ask that the Court accepts this as written notice pursuant to CPR 27.9(1). If I am unable to attend, please decide the claim in my absence, taking into account the advocate’s submissions, this Statement, and any other evidence filed. This paragraph demonstrates my compliance with CPR 27.9(1)(a)-(b). 30. In the event an advocate does attend the hearing, I request their fee be added to the amount sought. 10 STATEMENT OF TRUT



I mention in my WS - As above , poor and non illuminated signage , in the dark , cannot firm a contract , Lord Dennings red hand rule was not met. He says signs must be so obvious "Some clauses I have seen would need to be printed in red ink on the face of the document with a red hand pointing to it before the notice could be held to be sufficient." This applies to the tiny £100 charge on the signs. The smaller the font the bigger, the brighter, the more prominent the "red hand" needs to be to draw the motorist's attention towards it. (See image 06) Driver approaching carpark from right of the picture and turning left into the carpark thus missing any signage on the gate.



If someone could explain how to counter the above arguments so I can add them to my notes? Thank you to everyone

Fruitcake

For your crib notes,

This is UKPC, a BPA member, yes?

Last year (I think) at a parking summit the BPA told all its members they must begin to apply the requirements of the new government's code of enforcement (CoE) with immediate effect.

It is disingenuous of the claimant to say that the new CoE is irrelevant because it has yet to be implemented because their own trade association told them they must begin to adhere to it without delay as if it had been implemented.

(There was a thread about this with audio links to the BPA's statements, but alas I can't find it. The OP can refer to it and the date and the comments as a rebuttal to the claimant's statements. Does anyone have a link to it?)

As for not engaging in ADR in this case PoPLA, the ADR Regulations 2015 state that ADR must be offered for not less than 12 months, yet PoPLA is only offered for 28 days. This breaches the regulations, the will of parliament. Had ADR been offered for the period required by these regulations it is possible that court proceedings could have been avoided completely. It is the intransigence of the unregulated parking industry that refuses to allow ADR to be undertaken for up to a year as per the government regulations that results in many more parking cases being brought to court than is necessary.
The proposed government CoE makes the statement ADR should be offered for up to a year in line with these regulations. This again falls in line with the BPA telling its member to abide by the proposed CoE at the parking summit.

The Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations 2015 (legislation.gov.uk)

Coupon-mad

What you are quoting from is just a template WS that we see all the time from that solicitor.  There's nothing exciting there that needs any response.

Your crib sheet should be short bullet points of your defence issues.  Don't get bogged down in unimportant stuff.

IloveElephants

Hi Everyone,

Ive received an email today from the landowner who owned the site during the time of the pcn... they said the person who signed the site map contract never worked for them. I send them a copy

The site map has the name of the managing agent and she signed it and put PP next to her name 

Is this contract legally binding? Surely the contract should be signed by the landowner themselves? I am thinking of raising this point in court if it holds weight 

Coupon-mad

Managing agents can (if the head lease and arrangements for running the estate let them) contract a parking firm.

Don't get bogged down.

You need simple, main points on your crib sheet not convoluted arguments about whether the PPC could operate there (the short answer is, they could). 

IloveElephants

Hi Everyone,

I have made my crib notes and will reference the page number of the defendants WS and my own exhibit and page numbers on my master copy: Below are just some of my main points that I will print off and use in court. Any feedback to add most welcome. Many thanks to everyone loose or win, I've learnt a lot.

Exhibit 12 - Contracts out of date - Page 13 - Initial period – 12 Months beginning on the start date 28-04-2015 – PCNs issued INSERT DATE 2019 - Claim issue date June 2022

 

Date of "contract" = 2015
Period of contract = 1 year
No auto-renewal term in the contract.
No copy of a new or renewed contracted provided.
Reasonable to assume on the balance of probabilities that the contract ended after 1 year. Had it been renewed then on the balance of probabilities it would have been produced by the claimant. 
Name of landowner does not match that of the company number, see Companies House entry..
Company name on the site map is different to the one on the contract.
Neither the signs on site (that form the parking contract with the driver) nor the alleged contract with the landowner permit court claims to be issued, only parking charge notices.

 

Fake add on charges. No proof (no receipts/bank statements) have been provided to show the claimant actually incurred costs and actually paid money.
Debt collection companies work on a no-win, no fee basis.

 Exhibit 2 MY WS – SEE GREEN Vehicle obstructing sign upon entry in dark night. ““The sign should be placed so that it is readable by drivers without THEM needing to look away from the road ahead.” BPA Cop Appendix B P31

 

Exhibit 4 MY WS – High top van parked obstructing when defendant entered carpark.

 Further to the above, the Defendant alleges that my Company has no authority to bring the Claim. The Landowner instructed my Company to manage the parking on the Land and issue Parking Charges to any Vehicle found to be in breach of the Terms of parking. A copy of the agreement can be seen at “EXHIBIT 1”. It is respectfully submitted that my Company has the relevant authority to issue Parking Charges and bring Claims for such in the event the charges remain outstanding; 

MY REPLY TO THE ABOVE QUOTE -  Contracts out of date - exhibit number  - Initial period – 12 Months beginning on the start date 28-04-2015 – PCNs issued October 2019

 

Signage was not illuminated. The claimant's own images show that the signs were unreadable in the dark. (Exhibit 4 

 

Furthermore the extra charges are an abuse of process, I refer you to the case of Excel v Wilkinson (Exhibit 8) whereby it was ruled that given the costs of recovery are built into the parking charge as a cost of operating the scheme, this is a double recovery or an attempt by the claimant to try to add in an additional charge.

 

Hasn’t followed BPA Code of Practice 7.2

If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner prior to legal action being taken – Contract out of date – no permission

 

- Signs aren't easily understood – Page 19,20 on defendants WS – Images taken in 2012. as I drove in and out of the carpark without seeing any signs, I never entered a contract

 

Acting unprofessional – Claim not issued as a last resort

Over 4 years has passed since these notices were issued

Page 11 - “In the alternative to the contractual costs set out above, my Company reserves the right to claim additional costs pursuant to CPR 27.14(2)(g). This claim was issued as a last resort, and given the robust appeals procedure in place, should not have been necessary.

MY RESPONSE, No – the claim was actually issued as - statute of limitations was about to expire (6yrs)

 

Costs are discretionary

Costs are at the discretion of the judge; initial claim was for £420 + 8% per annum

The application of interest is discretionary and not a right.

The claimant has failed to act proportionally and expeditiously by leaving it over 4yrs to put together a claim

 

Exhibit 12 – MY WS – Sitemap signed 2012 – Claimant Is put to strict proof the boundary map signed behalf of Albany Homes Limited is a true and accurate representation of the site boundary and position of signage at the material time of the alleged parking event.

Exhibit 12 – MY WS – “signed” - The parking contract has a fixed 12 month term, “Initial period” with no renewal clause. If the contract had been renewed either automatically or by manual re-application, it is reasonable to assume on the balance of probabilities that a copy of the contract would have been provided to support the claimant's claim. No such contract has been provided. It is therefore reasonable to assume that on the balance of probabilities that the contract ended in 2016 and was not renewed. The claimant is put to strict proof that the contrary is true

As above , poor and non illuminated signage , in the dark , cannot firm a contract , Lord Dennings red hand rule was not met. He says signs must be so obvious "Some clauses I have seen would need to be printed in red ink on the face of the document with a red hand pointing to it before the notice could be held to be sufficient." This applies to the tiny £100 charge on the signs. The smaller the font the bigger, the brighter, the more prominent the "red hand" needs to be to draw the motorist's attention towards it. (Exhibit 05)

 

The signatories worked for different companies in different roles, and would assume on the balance of probabilities that they are referring to different things, putting into doubt whether there was indeed a contract with or flowing from the landowner to the claimant giving them the authority to issue charges and nor giving them the authority to issue court claim in their own name.

UKPC signs are always inadequate and fail to meet the strict requirements of the BPA. The £100 charge is always in tiny font SEE EXHIBIT ** and it is impossible to read from a car length away in daylight, let alone at night. 

 Emily Nelligan was never an employee of the landowner and never had the authority to sign contracts on behalf of the landowner, and I put the claimant to strict proof that the contrary is true. The Companies Act 2006 applies ... 

 

 Emily was never an officer or person with significant control" Looking at companies house records not in a position to sign contracts (company act 2006, the claimant has provided no proof that she was ever even an employee of the landowner.

 

Penalty/Amount claimed xx - Page 8

My Company is instructed to manage the Land, the Landowner agreement previously referred to in this statement confirms this. My Company’s legitimate interest is to fulfil this obligation. The Landowner’s legitimate interest in managing the Land is because it is a pay and display car park.

"In respect of the Defendant’s allegation that the claim is a penalty, my Company is not seeking more than the original charge as the core debt. The core charge remains the same for each PCN (i.e. £100); however, my Company is now also seeking further costs/damages; xx. My Company is instructed to manage the Land, the Landowner agreement previously referred to in this statement confirms this. My Company’s legitimate interest is to fulfil this obligation. The Landowner’s legitimate interest in managing the Land is to ensure that parking is available to all those that need to use the Land. If the same Vehicle’s remain on the Land in breach of the Terms, it restricts the use of the Land. Because there is a clear legitimate 8 interest/commercial justification, the same as that established in ParkingEye -v- Beavis [2015], this case does not fall foul of the penalty rules established in that case;" 

my response - The claimant has failed to act proportionally and expeditiously by leaving it over 4yrs to put together a claim".   This will be of great use in many of these case which have been sold to some of the law firms as last ditch attempts to extort money from the victims of the parking companies. A fact that must be highlighted to the court when the PPC has failed to issue proceedings as expeditiously as possible.


I will add "UKPC are no longer at this location; it appears the new owners of the building ended the contract due to the level of complaints which had swiftly trashed their Trustpilot reputation."

Supplemtary WS – Claimant creating duplicate claims having IDENTICAL particulars EXISTING claim CASE DFGFGFDG - Cause of action estoppel and Henderson v Henderson. Claimant creating duplicate claims abusing the court system.

 

 

 

Jenni_D

We don't use abuse of process anymore (and haven't for quite a long time) ... the correct term is double recovery.  

IloveElephants

Jenni_D said:

We don't use abuse of process anymore (and haven't for quite a long time) ... the correct term is double recovery.  

Thanks Jenni

IloveElephants

This is the sign in the Above from claimants WS - They zoomed in and made it look big but in reality it looks like this: (below)








The above 2 images are also from the claimants WS

from the position of a driver in a car its also impossible to see this, so much going on in this image... especially in the dark, the motion spotlights in the carpark when lit doesn't even reflect the signage, its light beam is focused on the carpark tarmac then cuts out. So you need a binoculars.

If anyone could help me to add some meat on the bones to drill down to the judge how pathetic the signage really is thus not forming a contract would be appreciated. Thank you everyone.