Gladstones/UKCPM Defence

Rinches19

Good spot @Coupon-mad

And thanks for the addition.

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

The Coupon-mad said

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

This was the POC from 2018, sent from the CCBC after I had discovered the CCJ. 

Now I've received the General Form of Judgment or Order from the set aside hearing, it states that the legal assistant's witness statement now stands as the POC. It doesn't mention interest or amount of money claimed in the WS. Am I to assume that the original POC will still apply, along with the 'witness statement' of the legal assistant?

Coupon-mad

I think it's best to assume they both still apply and that Gs will be seeking interest at 8%.

For that reason I've thought of another addition:


7.3.  the Claimant has suffered or incurred any 'damages or indemnity costs if applicable' as vaguely stated in the original template POC dated 2018; or that

7.4. the Claimant could now (without offending against the doctrine of good faith) attempt to claim a disingenuous reward of six years interest, as was stated on the 2018 POC on the claim form that was never served, due to their own lazy and improper service to a old, unchecked address.

Rinches19

Coupon-mad said:

I think it's best to assume they both still apply and that Gs will be seeking interest at 8%.

For that reason I've thought of another addition:


7.3.  the Claimant has suffered or incurred any 'damages or indemnity costs if applicable' as vaguely stated in the original template POC dated 2018; or that

7.4. the Claimant could now (without offending against the doctrine of good faith) attempt to claim a disingenuous reward of six years interest, as was stated on the 2018 POC on the claim form that was never served, due to their own lazy and improper service to a old, unchecked address.

Superb @Coupon-mad. That's gone straight in.

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.
7.3.  the Claimant has suffered or incurred any 'damages or indemnity costs if applicable' as vaguely stated in the original template POC dated 2018; or that
7.4. the Claimant could now (without offending against the doctrine of good faith) attempt to claim a disingenuous reward of six years interest, as was stated on the 2018 POC on the claim form that was never served, due to their own lazy and improper service to an old, unchecked address.

Coupon-mad

This is a great exemplar residential defence form of words for newbies to copy and adapt and slot into the Template Defence.

We can now use yours to signpost new posters to, when they have a residential defence.

I mean, they wouldn't be blindly copying your (CCJ set-aside specific) para 7.4 or the first half of your paragraph 4 about the fallen wall, but they could use the rest, including this part of your para 4 (minus the specific mention of a daughter) which suits most residential cases:

"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 attending to normal life necessities like parking to unload groceries or setting down passengers, 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."


BTW add 'attending to' as I've shown above.  It needed a verb adding to that section to be grammatically correct!

Rinches19

So good to hear @Coupon-mad! Many, many thanks for guiding me through my first County Court defence - quite a learning experience! I will be emailing it to Bath County Court tomorrow(not forgetting to add back in the redacted personal details..), and another copy to Gs.

Away for a couple of weeks from tomorrow - will crack on with the WS/Bundle upon return!










  

Coupon-mad

One email copied to both.

Then Gs can't say they didn't get served with it.

remzeh1

The excellent residential defence of @johnersh covers most of my arguments('Signage', 'Primacy'), and with  Coupon-mad 's fine words regarding Frustration added is there anything I should be looking to add, remove or adjust?

where can I find the residential defence of @johnersh please?

Coupon-mad

Well it's linked in the NEWBIES thread where you'd expect it to be, but you don't copy it all because it's quite old, uses an out of date statement of truth and pre-dates the DLUHC's current Impact Assessment and analysis of the real cost of pre-action template threatograms.

It is useful though to give people a form of words to include in the facts paragraphs of the Template Defence (which is up to date).

Le_Kirk

remzeh1 said:

The excellent residential defence of @johnersh covers most of my arguments('Signage', 'Primacy'), and with  Coupon-mad 's fine words regarding Frustration added is there anything I should be looking to add, remove or adjust?

where can I find the residential defence of @johnersh please?

As well as following the advice given above, you should continue your questions on one of your own threads: -
https://forums.moneysavingexpert.com/discussion/6451364/unpaid-ccj-letter-received-from-dcbl-today#latest
https://forums.moneysavingexpert.com/discussion/6418455/ccbc-claim-received-please-help-me#latest

Rinches19

Hello all.

Hope you're doing well...

An update.

It appears (after 2 calls to the court after filing my defence post set-aside early august 2023), this claim hasn't actually gone away.

A call to the court after receiving a 'Notice of Proposed Allocation' has informed me that due to a paperwork oversight by the county court in 2023 we are now back here nearly 2 years later.

My conversation with the court has suggested that after return my N180 a Judge may look at the case and decide that there is no point in pursuing this anyway.

Has anyone heard of anything like this before?

I'm wondering if it it still in Gladstone's hands or another company has picked it up and chased it(there is only mention of UK CPM on the Notice of Proposed Allocation form).

So, I'm unsure who to it serve to along with the court(the woman I spoke to at the court suggested a another company may have picked this claim up)..and of course this all relates to a PCN in 2017!

Any insight @Coupon-mad into what's going on here much appreciated!

Best wishes 

Rinches19