Gladstones/UKCPM Defence

Rinches19

Good afternoon all

Firstly, a heartfelt thanks for all the amazing help posted on this forum - a fantastic resource for fellow Newbs fighting these type of claims!

I would like to begin by reporting a successful set aside(including the set aside cost)at Bath County Court last week. I will post a more detailed report of the day in the fullness - hoping others may find something useful in there.

It wasn't a total win though. The Judge(who seemed to be a last minute replacement, as the original Judge not available)was unimpressed with the '4 months dead' argument, and I will now have to defend the claim, filing a defence within 14 days.

I am currently adapting the Defence Template and will post the altered paragraphs here, and be grateful in advance for any more sage advice offered!

So the background..

I am the registered keeper.

Being a Curo(Housing Association)leaseholder(property purchased 2007), I received 2 PCNs dated 16/12/2017 and 23/12/2017 related to parking outside of a marked bay.

I have a right to use the parking area as stated in the lease(dated 1989).

UKCPM got involved in the parking area in November 2017 issuing permits to the residents, without consultation.

A large Georgian wall collapsed into an area of allocated parking crushing several cars 14/12/2017.

Many residents moved their cars out of harms way as soon as possible. Parking outside of the allocated bays, but not being an obstruction to other residents' rights of way.  Some did not.

UKPCM came along and ticketed cars no longer parked in the allocated bays 16/12/17 and 23/12/17.

Further wall collapse 30/12/17 crushing more cars.

Property sold May 2018(court papers served to this address in November 2018, hence successful set-aside).

During the set-aside hearing I argued I had 3 possible defences.

1. The signs were inadequate('no contract'). I believe they are and will attach examples. But the Judge wasn't convinced because as I lived there I should have known what they say or sought more information.

2. That I had a right to park where I was ticketed('primacy of contract') as my lease only gives an outline of the allocated parking area without any obligations to permits, marked bays etc. Judge again seemed unimpressed, as the pictures show the car clearly parking on double yellow lines.

3. That as a large proportion of allocated bays became dangerous, full of rubble so impossible to use('frustration of contract?'). I(or the driver nearly 6 years ago)had no option but to find somewhere close to home to unload groceries, building materials, my young daughter etc...This one seemed to interest the Judge and I supplied pictures of the event and newspaper articles supporting my account, eventually granting the Set Aside.


So.. a few questions if I may..

1. Will it be the same Judge? Should I just focus on Defence No.3, as this one seemed to resonate the most...or set out all 3?

2. Is it only the Defence I need to send the local court within 14 days? I've read through the newbies thread, just a little concerned as this is a defence after a set-aside, and i can't find many examples of this on the forum.



bathchronicle.co.uk/news/bath-news/wall-collapses-crushes-multiple-cars-925194

bathchronicle.co.uk/news/bath-news/wall-collapses-again-damaging-multiple-996722


Currently speaking with the housing association, trying to request the cancellation of the PCNs, but I'm not yet able speak to anyone who knows about these matters, and have been transferred from department to department. I'm beginning to think I'm being given the runaround and losing hope of a positive response from them. 

I will get cracking with my defence - any pointers in the meantime will be most welcome!



Many thanks in advance

Coupon-mad

Well done on getting the set aside.

It won't be the same Judge.  Your points are solid.  Probably this first judge was a deputy.

This point (below) is supported by Kettel v Bloomfold:
https://www.isurv.com/directory_record/3449/kettel_v_bloomfold_ltd

 a large proportion of allocated bays became dangerous, full of rubble so impossible to use('frustration of contract?'). I(or the driver nearly 6 years ago)had no option but to find somewhere close to home to unload groceries, building materials, my young daughter etc...This one seemed to interest the Judge

The HA had to provide alternative parking.

I recommend you do a Witness Statement and evidence bundle as well because a defence attaches no evidence, but a WS does.

Rinches19

Excellent advice @Coupon-mad. 

Rinches19

Hi all

Drafting a defence and looking over the lease, I was wondering if these references will be useful and should be included.

The lease shows....the right to use the garage forecourts and entry ways shown for the purposes aforesaid hatched brown on the Lease Plan subject to such regulations for the common enjoyment thereof as the Lessor may for time to time prescribe.

And later in the Lease  'not to park or permit to be parked within the Estate any vehicles save as such as may be permitted from time to time pursuant to the written consent or agreement of the Lessor'.

Thanks again

Coupon-mad

Yes, attach your lease (or extracts) to the WS along with Kettel v Bloomfold - the actual Judge's transcript not the summary on a random website like I showed you!

And Excel v Wilkinson (transcript - search the forum for the link) and photos / evidence / news articles about the wall collapses that forced the vehicles to temporarily be displaced.  All attached to the WS.

The defence is a separate document.

See the Template Defence thread and show us your paragraphs 2 and 3 (and more if you need more space to put your facts into the defence).

You will be saying that a large proportion of allocated bays became dangerous, full of rubble so impossible to use. 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.  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 daily 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.

But of course because this is post set-aside, you are not sending it to the CCBC (they are no longer involved).  You will send the whole bundle to the local court (by email if they allow it) and copy in the legals for the Claimant.

Show us your draft Defence facts and your whole draft WS and we'll help.  Try to avoid repetition. The WS is your story in the first person, and a way to introduce your exhibits.

Rinches19

You will be saying that a large proportion of allocated bays became dangerous, full of rubble so impossible to use. 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.  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.

Absolute gold @Coupon-mad. 

Rinches19

The facts known to the Defendant:

Background
2. It is admitted that at all material times the Defendant is the registered keeper 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]

4. It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.
4.1. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA")
4.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
4.2.1. there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
4.2.2. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
It is not admitted that the Claimant has complied with the relevant statutory requirements.

4.3. To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.

Frustration of Contract

5. As 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.  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
6. 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.

7. 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.

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?


Many thanks in advance

Coupon-mad

I haven't gone right back over the thread but some of your other recent posts suggested you were driving? e.g.  "That I had a right to park where I was ticketed"...

And you lived there, and it's your car.

So I was surprised to read a defence saying:

"4. It is denied that the Defendant was the driver of the vehicle."

Which is correct?

Rinches19

Good point @Coupon-mad. On the balance of probabilities it was me. I struggle to remember who was driving on those 2 occasions nearly 6 years ago. I had family members who would use the car when visiting (2nd PCN was 2 days before Christmas). Is there a better way to state this, or remove this point and focus on the other 2 arguments?

Have finally heard back from someone at the HA. They have told me that the parking restrictions were eased(though unofficially - to deter non-residents from using the parking area)in January 2018, and confirmed they did help cancelling some residents' PCNs around the time after the collapse. They are unwilling to intervene on this occasion - stating that it was too long ago, and I hadn't utilised UKCPM's 'nationally approved' appeal system at the time.

Having revisited the parking area recently, the place where the car was double parked has now been turned into marked bays, and the wall is still in a dangerous state with bays closed off. The wall belongs to a row of Georgian houses on an adjacent street and not the HA.

 

Coupon-mad

That's good evidence! The area is now the alternative parking.  This is a meritless claim.

I'd defend as probable driver and remove all the Pofa stuff

Rinches19

Thanks @Coupon-mad. Point taken. 

 It is admitted that at all material times the Defendant is the registered keeper and probable driver......  Like this? I haven't been able to find any examples of that yet, and a search only seams to bring up my thread.


I have a fortnight's holiday booked camping with my little(not so little now of course)one from Monday, and hope to finalise a defence over the next day or so, ready to send to the local court before Thursday's deadline. @Coupon-mad wisely suggested I prepare a witness statement with evidence bundle too. I will struggle to prepare this while also tying up loose ends at work. Having read the newbies thread I understand the witness statement will need to be with court 2 weeks before any Hearing Date. My question - was the suggestion to prepare the witness statement and bundle to get on the front foot(with kind pointers from the users here)? Or is there benefit in sending this in early in this case say, to add weight to the defence and encourage discontinuation?

Ideally it is something I would like to get stuck into when I get back, and not on a soggy campsite struggling for signal!