Gladstones/UKCPM Defence

Rinches19

Evening all

The facts known to the Defendant:

Background
2. It is admitted that at all material times the Defendant is the registered keeper and probable driver of vehicle registration mark XXZZZ which is the subject of these proceedings.

3. It is admitted that on [date] the Defendant's vehicle was parked at [location]

Frustration of Contract

4. After a large wall collapse a large proportion of allocated bays became dangerous, full of rubble so impossible to use, this is clearly a case of 'frustration of contract'.  Further, as per the findings in the authority of Kettel v Bloomfold, as soon as the parking bays were out of action due to works to repair the walls, the Housing Association had a duty to provide alternative parking areas for the displaced vehicles, in order to avoid any detriment to residents.  Marked bays are now where the defendant received their initial PCN. Maintaining the residents' rights to peaceful enjoyment of the property does not include allowing everyone to be unfairly charged by a lurking ex-wheelclamper for normal life necessities like parking to unload groceries, building materials, the Defendant's young daughter etc.  Clearly there is no 'legitimate interest' supporting these enhanced parking charges in these circumstances and also no reason for the C to sit on their hands for 6 years hoping to profit even further from exaggerated interest calculations.

 

Authority to Park and Primacy of Contract
5. It is denied that the Defendant or lawful users of his/her vehicle were in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the Defendant permitting the above mentioned vehicle to be parked by the current occupier and leaseholder of [address], whose tenancy agreement permits the parking of vehicle(s) on land. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms. The lease terms provide the right to park a vehicle in the relevant allocated bay, without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle or the requirement to display a parking permit. A copy of the lease will be provided to the Court, together with witness evidence that prior permission to park had been given.

6. 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.

7. Accordingly it is denied that:
7.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant
7.2. there was any obligation (at all) to display a permit; and
7.3. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

Alternative Defence - Failure to set out clearly parking terms
8. In the alternative, the Defendant relies upon 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 breach of parking terms were clear - both upon entry to the site and throughout.
8.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate.
8.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;
8.1.2. 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; and
8.1.3. The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3
8.2. 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. The penalty charge is, accordingly, unconscionable in this context, with ParkingEye distinguished.

9. 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.

10. It is denied that the Claimant has any entitlement to the sums sought.

11. It is admitted that interest may be applicable, subject to the discretion of the Court on any sum (if awarded), but it is denied that interest is applicable on the total sums claimed by the Claimant.

 

Having received the General Form or Judgment or Order in the post today, I understand that Gladstone's Legal assistant's witness statement - from the Set Aside hearing - is now the PoC. Most of the witness statement is a cut and paste template seen many times on this forum and I will post it when redacted. 

There is a copy of the agreement between the PPC and landowner included. I remember reading @Fruitcake really going to town on a similar agreement in another thread, and wonder if @Coupon-mad and @Fruitcake might have a look at this one and give me their opinion? All redactions by the claimant.

Rinches19

Many thanks in advance

Coupon-mad

Is para 5 right for your case or does it need editing? It talks about you having 'permission' to park (like a visitor would) but you were the resident.

Is 7.2. right for your case? That is about a case where the allegation was not displaying a permit.  Surely your PCN(s) were for parking outside of a marked bay?

I'd remove para 11.  It's extortionate to expect interest as a reward for sitting on their hands!

I've suggested additions here:

3. It is admitted that on the material date (almost six years ago) the Defendant's vehicle was almost certainly parked at [location] because this was the Defendant's home, where they were de facto authorised to park a roadworthy vehicle.

Rinches19

Exellent @Coupon-mad. Sage as always!

The facts known to the Defendant:

Background
2. It is admitted that at all material times the Defendant is the registered keeper and probable driver of vehicle registration mark XXZZZ which is the subject of these proceedings.

3. It is admitted that on [date] the Defendant's vehicle was almost certainly parked at [location] because this was the defendant’s home, where they were de facto authorised to park a roadworthy vehicle.

Frustration of Contract

4. After a large wall collapse a large proportion of allocated bays became dangerous, full of rubble so impossible to use, this is clearly a case of 'frustration of contract'.  Further, as per the findings in the authority of Kettel v Bloomfold, as soon as the parking bays were out of action due to works to repair the walls, the Housing Association had a duty to provide alternative parking areas for the displaced vehicles, in order to avoid any detriment to residents.  Marked bays are now where the defendant received their initial PCN. Maintaining the residents' rights to peaceful enjoyment of the property does not include allowing everyone to be unfairly charged by a lurking ex-wheelclamper for normal life necessities like parking to unload groceries, building materials, the Defendant's young daughter etc.  Clearly there is no 'legitimate interest' supporting these enhanced parking charges in these circumstances and also no reason for the Claimant to sit on their hands for 6 years hoping to profit even further from exaggerated interest calculations.

 

Authority to Park and Primacy of Contract

5. It is denied that the Defendant or lawful users of his/her vehicle were in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the Defendant permitting the above mentioned vehicle to be parked by the current occupier and leaseholder of [address], whose leaseholder agreement permits the parking of vehicle(s) on land. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms. The lease terms provide the right to park a vehicle in the relevant parking area, without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle. A copy of the leasehold agreement will be provided to the Court, together with witness evidence that prior permission to park had been given.

6. 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.

7. Accordingly it is denied that:
7.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant
7.2. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

Alternative Defence - Failure to set out clearly parking terms
8. In the alternative, the Defendant relies upon 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 breach of parking terms were clear - both upon entry to the site and throughout.
8.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate.
8.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;
8.1.2. 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; and
8.1.3. The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3
8.2. 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. The penalty charge is, accordingly, unconscionable in this context, with ParkingEye distinguished.

9. 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.

10. It is denied that the Claimant has any entitlement to the sums sought.

B789

What about primacy of contract issues? I don't see any mention of that. Also, looking at the "contract", para 3.1 appears to allow the "proprietor" to just give a VRN to CPM and they will then issue a PCN. Doesn't that breach the KADOE rules and DVLA privacy/data rules?

Coupon-mad

Put Kettle v Bloomfold in full (Google it for the fill citation) and in the same italics and underline as your other authorities.

Rinches19

Coupon-mad said:

Put Kettle v Bloomfold in full (Google it for the fill citation) and in the same italics and underline as your other authorities.

Thanks @Coupon-mad. All done. Is there a way to include @B789 's observations, or will that be for the witness statement?

The facts known to the Defendant:

Background
2. It is admitted that at all material times the Defendant is the registered keeper and probable driver of vehicle registration mark XXZZZ which is the subject of these proceedings.

3. It is admitted that on [date] the Defendant's vehicle was almost certainly parked at [location] because this was the defendant’s home, where they were de facto authorised to park a roadworthy vehicle.

Frustration of Contract

4. After a large wall collapse a large proportion of allocated bays became dangerous, full of rubble so impossible to use, this is clearly a case of 'frustration of contract'.  Further, as per the findings in the authority of Kettel & Ors v Bloomfold Ltd[2012] EWHC 1422, as soon as the parking bays were out of action due to works to repair the walls, the Housing Association had a duty to provide alternative parking areas for the displaced vehicles, in order to avoid any detriment to residents.  Marked bays have now been provided where the defendant received their initial PCN. Maintaining the residents' rights to peaceful enjoyment of the property does not include allowing everyone to be unfairly charged by a lurking ex-wheelclamper for normal life necessities like parking to unload groceries, building materials, the Defendant's young daughter etc.  Clearly there is no 'legitimate interest' supporting these enhanced parking charges in these circumstances and also no reason for the Claimant to sit on their hands for 6 years hoping to profit even further from exaggerated interest calculations.

 

Authority to Park and Primacy of Contract

5. It is denied that the Defendant or lawful users of his/her vehicle were in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the Defendant permitting the above mentioned vehicle to be parked by the current occupier and leaseholder of [address], whose leaseholder agreement permits the parking of vehicle(s) on land. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms. The lease terms provide the right to park a vehicle in the relevant parking area, without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle. A copy of the leasehold agreement will be provided to the Court, together with witness evidence that prior permission to park had been given.

6. 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.

7. Accordingly it is denied that:
7.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant
7.2. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

Alternative Defence - Failure to set out clearly parking terms
8. In the alternative, the Defendant relies upon 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 breach of parking terms were clear - both upon entry to the site and throughout.
8.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate.
8.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;
8.1.2. 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; and
8.1.3. The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3
8.2. 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. The penalty charge is, accordingly, unconscionable in this context, with ParkingEye distinguished.

9. 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.

10. It is denied that the Claimant has any entitlement to the sums sought.

Coupon-mad

You've got primacy of contract in a sub-heading.  You can save the detail for WS stage.

Remove 8, 9, and 10 which are already in the Template Defence.

Add in the defence point seen in other current Gladstones thread about the 10.25% unconscionably high interest -

Search the forum for 

Gladstone's 10.25% interest 

...and change the search to NEWEST.

...and ALSO make a complaint to the SRA please, like here:
https://forums.moneysavingexpert.com/discussion/comment/80227382/#Comment_80227382

Rinches19

Morning @Coupon-mad

Paragraphs removed as suggested, and renumbered.

I hadn't posted the Particulars yet. If it's 8% on the POC, should I still add something about interest? 

Claimant UK CAR PARK MANAGEMENT LIMITED

Claimant Solicitors GLADSTONES SOLICITORS LIMITED, phone 0333 0230 049, reference xxxxxxx/UK CAR PARK

 

Case details

THE DRIVER OF THE VEHICLE REGISTRATION  (THE 'VEHICLE') INCURRED THE PARKING CHARGE(S) ON 16/12/2017 & 23/12/2017  FOR BREACHING THE   TERMS OF PARKING ON THE LAND AT BALLANCE     STREET - BALLANCE STREET LANSDOWN BATH. BA1  2RP.                                         THE DEFENDANT WAS DRIVING THE VEHICLE AND/OR IS THE KEEPER OF THE VEHICLE.                AND THE CLAIMANT CLAIMS                      £320 FOR PARKING CHARGES / DAMAGES AND       INDEMNITY COSTS IF APPLICABLE, TOGETHER WITH INTEREST OF £20.60 PURSUANT TO S69 OF THE    COUNTY COURTS ACT 1984 AT 8% PA, CONTINUING  TO JUDGMENT AT £0.07 PER DAY.                                                                                    

The facts known to the Defendant:

Background
2. It is admitted that at all material times the Defendant is the registered keeper and probable driver of vehicle registration mark XXZZZ which is the subject of these proceedings.

3. It is admitted that on [date] the Defendant's vehicle was almost certainly parked at [location] because this was the defendant’s home, where they were de facto authorised to park a roadworthy vehicle.

Frustration of Contract

4. After a large wall collapse a large proportion of allocated bays became dangerous, full of rubble so impossible to use, this is clearly a case of 'frustration of contract'.  Further, as per the findings in the authority of Kettel & Ors v Bloomfold Ltd[2012] EWHC 1422, as soon as the parking bays were out of action due to works to repair the walls, the Housing Association had a duty to provide alternative parking areas for the displaced vehicles, in order to avoid any detriment to residents.  Marked bays have now been provided where the defendant received their initial PCN. Maintaining the residents' rights to peaceful enjoyment of the property does not include allowing everyone to be unfairly charged by a lurking ex-wheelclamper for normal life necessities like parking to unload groceries, building materials, the Defendant's young daughter etc.  Clearly there is no 'legitimate interest' supporting these enhanced parking charges in these circumstances and also no reason for the Claimant to sit on their hands for 6 years hoping to profit even further from exaggerated interest calculations.

 

Authority to Park and Primacy of Contract

5. It is denied that the Defendant or lawful users of his/her vehicle were in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the Defendant permitting the above mentioned vehicle to be parked by the current occupier and leaseholder of [address], whose leaseholder agreement permits the parking of vehicle(s) on land. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms. The lease terms provide the right to park a vehicle in the relevant parking area, without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle. A copy of the leasehold agreement will be provided to the Court, together with witness evidence that prior permission to park had been given.

6. 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.

7. Accordingly it is denied that:
7.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant
7.2. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

Coupon-mad

I hadn't posted the Particulars yet. If it's 8% on the POC, should I still add something about interest? 

Interesting. No.

First Gs one I've seen recently that doesn't try to add the inflated 10.25% interest.

A couple of strange underlines in your para 3 need removing.

Why not add a 7.3:

7.3.  the Claimant has suffered or incurred any 'damages or indemnity costs if applicable' as vaguely stated in the template POC.