PCN from UKCPM Gladstone - URGENT help with witness statment

Brightlinks

Coupon-mad said:

I would remove your 3 and 7 which add nothing.

As well as basing yours on the one by aphex007 (but change the bit about the BPA CoP to quotes you must go & find in the IPC CoP instead) also read what @Johnersh (a solicitor) recently said here about a residential site - use some of this:
https://forums.moneysavingexpert.com/discussion/comment/80119838#Comment_80119838

Will do thanks.

PCN were issued in 9th, 14th, 25th, 29th June 2020 when we were in pandemic, can I add this to the WS ?

Coupon-mad

Add what to the WS?  I explained what to add.

Brightlinks

Coupon-mad said:

Add what to the WS?  I explained what to add.

Warden was out for issuing in PCN while  we were in lockdown due to pandemic. 

Coupon-mad

There was no "warden" (private parking firms don't 'look after' places, quite the opposite) but there was no reason why a PPC would have stopped operating over the pandemic.

Wish they had...!

 ...but some might say (and MPs did) that these firms have no customer service ethic.  From what we see here every day, motorists are their prey.

Brightlinks

Coupon-mad said:

There was no "warden" (private parking firms don't 'look after' places, quite the opposite) but there was no reason why a PPC would have stopped operating over the pandemic.

Wish they had...!

 ...but some might say (and MPs did) that these firms have no customer service ethic.  From what we see here every day, motorists are their prey.

I mean by their staff took pictures. Surprisingly now signage has been changed and can i add it to my WS ?                                                                                                  

Coupon-mad

Yes you evidence everything relevant in the WS.

Brightlinks

Hi All

Please see my final WS. not sure where to add IPC code of conduct bit.
Please do provide the suggestions I want sent out on Monday the latest.

I am Mr xxxxxx of xxxxxxxxxxx, 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.

 

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:

 

Sequence of events and facts

1.    I confirm that I am the Registered Keeper of the vehicle in question on the June 2020 and thereafter date.

2.    I am the leaseholder of the flat at the place where incident happened and paying ground rent to the landowner. Since we moved to the flat, we requested parking space to Flat management Company L&Q. We are in the waiting list for parking space and advised us that once space become available, they will allocate to us.

3.     At the end of March 2020, Government announced the Lockdown in the whole country. We spoke to the manager at Birkdale clinic next to our block of flat, to allow us to park our vehicle during the lockdown. The manager verbally allowed us to park our vehicle due to lockdown, since than we parked our vehicle at their non marked bay.

4.    When we moved to block of flat, we were not aware of private parking system in place nor L & Q advised us about the restrictions. while we moving to the flat, few occasions we received PCNs from UKCMP. We contacted L&Q and they have cancelled them, ( see exhibit – xx)

5.    It is denied that the Defendant was the driver of the vehicle. The claimant has offered nothing in the way of evidence as to the identity of the driver and if they wish to pursue the Defendant as driver rather than keeper, then they must produce strict proof.
a. In light of this, the claimant may only pursue the defendant as keeper of the vehicle in strict adherence to the stipulations outlined by Schedule 4 of the Protection of Freedoms Act 2012 (POFA 2012).
b. It is averred that the claimant has failed to do this on numerous points
c. Furthermore, the claimant may allege that there is a reasonable presumption that the registered keeper was also the driver, allowing them to circumvent the regulations of POFA 2012. The defendant expressly denies that there is any presumption in law that the keeper is the driver. The defendant denies that the keeper is obliged to name the driver to the private parking firm. POFA 2012 makes no such requirement for a keeper to do this.
i. The claimant may seek to rely on the findings of Elliot V Loake (1982) in alleging that the keeper can be presumed to have been the driver. In this criminal case, forensic evidence was produced to a criminal standard. Therefore, the same logic can absolutely not be applied in this instance.

6.    It is denied that the original PCN was issued to notify me of this alleged contravention on that particular day or any further direct notice from the claimant. I was served debt recovery notice from their agents.

7.    I am the leaseholder of the flat at block of the flats where the incident happened. UKCPM issued us a parking permit by charging £5 but than cancelled advising that issued in error. We are still awaiting for parking space allocated to us by managing agent L&Q.

8.    It is denied that the original PCN was issued to notify me of this alleged contravention on that particular day or any further direct notice from the claimant. I was served debt recovery notice from their agents.

9.     As the claimant has repeatedly failed to clarify the nature of the claim, the defendant has assumed that it relates to an alleged breach of contract.

10. Therefore, liability for the alleged debt is disputed in its entirety based on the well-established legal principle of primacy of contract: the agreement (Exhibit C – Lease agreement ) that exists between the tenant and their landlord extends to the use of the  space and overrides any purported contract conveyed by the claimant’s insufficient, demonstrably illegible signage. The tenant’s contract makes no assertion that a permit must not be displayed to use the bay, nor that a penalty of £100 must be paid in the event of a failure to do so . The tenancy agreement’s lack of specificity on any conditions related to parking in the relevant bay can only be construed that none of the restrictions asserted by the claimant apply.
a. Regarding signage: the defendant argues that there was no signage visible to the drivers entering the parking space in situ at the time of the alleged parking contravention and woefully insufficient in conveying the terms of any alleged contract, particularly the most onerous, i.e., the £100 penalty.
b. Exhibit - D demonstrate that there are no signs of parking notice for the drivers while entering the parking by the driver.
c. On this matter, the defendant defers to the ruling of ParkingEye Ltd v Barry 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 alleged breach of parking terms were clear – both upon entry to the site and throughout.
i. 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. The penalty charge is, accordingly, unconscionable in this context, with ParkyingEye distinguished.

11. I contend, therefore, that the tenant’s agreement provides an unfettered right to use of common area for themselves and their invited guests. This cannot be superseded, altered, or ignored by a parking management company post hoc. I refer previous cases such as Pace v Mr N [2016] C6GF14F0 [2016] (xx), where it was found that the parking company could not override the tenant's right to park by requiring a permit to park.

12. The Claimant, or Managing Agent, in order to establish a right to impose unilateral terms which vary the terms of the lease, must have such variation approved by at least 75% of the leaseholders, pursuant to s37 of the Landlord & Tenant Act 1987, and tenants are unaware of any such vote having been passed by the residents, including myself which I was resident of the Flat1 for 5 years till Aug 2017.

13.   I believe that any parking management company with a legitimate interest in protecting the parking rights of a residential space – which is surely their only purpose – would notify tenants of the existence of any contract between the property management company and provide the parking permits to the tenants, here most of the tenants have never received any permits.

14.   I believe that any parking management company with a legitimate interest in protecting the parking rights of a residential space – which is surely their only purpose – would immediately rescind any charges issued to residents and their legitimate visitor.

15.   Car was parked on non marked bays by verbally authorised by the Clinic Manager. The erection of the Claimant's signage, and the purported contractual terms conveyed therein, are incapable of binding me in any way. I deny having breached any contractual terms whether express, implied, or by conduct.

16.   My vehicle clearly was verbally 'authorised' by Clinic manager and avers that the Claimant's conduct in aggressive ticketing is in fact a matter of tortious interference, being a private nuisance to residents.

17.   The claimant may argue that I parked outside of the allocated bay for loading. I refer to the case of Jopson v Homeguard [2016] B9GF0A9E (Exhibit F), where on appeal it was found that the parking company could not override the tenant's right to temporarily stop near the building entrance for loading/unloading.

18.   The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 (Exhibit D) as a binding precedent on the lower court. However, that only assists the Claimant if the facts of the case are the same, or broadly the same. In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas it is my position that no such breach occurred in this case, because there was no valid contract, and also because the 'legitimate interest' in enforcing parking rules for retailers and shoppers in Beavis does not apply to these circumstances. Therefore, this case can be distinguished from Beavis on the facts and circumstances.

19.   Even if the court is minded to accept that a sign was visible, the wording on the sign was prohibitive. Unlike in the Beavis vs ParkingEye case, the Claimant offered no licence to park if not a ‘permit holder’. A purported licence to stop without a permit, in exchange for payment of a ‘charge’ on the one hand, cannot be offered when that same conduct is, on the other hand, expressly prohibited in the signage wording. This does not create any possible contract.

20.   This is clear from several cases. An example In PCM-UK v Bull et all B4GF26K6 [2016], residents were parking on access roads. The signage forbade parking and so no contract was in place. A trespass had occurred, but that meant only the landowner could claim, not the parking company.

21.   Finally, having outlined my witness statement with supporting evidence, I encourage the court to strike out the claims against the Defendant as there are no sound grounds of claim and to grant compensation in accordance with the defendant cost of schedule (Exhibit F)


I believe that the facts stated in this witness statement are true.

Defendant

Signed

 

Brightlinks

Please see image of current signs , 4th image where they remove the sign, 1st,2nd & 3rd, image where the current signage installed. my car was parked where the blue car is currently parking in image. Can i add signage remove and change to WS ?

Coupon-mad

At 17 state that the Jopson judgment is on point and persuasive on county court level decisions.

Saw a typo in the spelling of UKCPM somewhere higher up.

Also if the site was gated, go read & use the wording in the recent reply by @Johnersh, a solicitor. I linked it earlier (above) but I didn't notice his concise wording in your WS.

Brightlinks

please see street view,

No gated parking

left hand side where marked bays, right side residents park when the clinic is closed - non marked bays.