Letter of Claim from Gladstone/UKPCM for residential parking

aa5085

Hi All,

Would like some advice please. I am the owner of a flat I am renting out. I was attending my flat and parked next to my parking bay but not within the bay. My bay had my tenant's parked car. My tenant had told me they would vacate this as he was leaving and would give me back the permit while I was there but clearly had not vacated. Basically I parked in front of their car but I made sure I parked so that it was not in anybody else's bay nor was it blocking anyone's path. I had nowhere else to park as there is no visitor parking in the block nor are there pay/display signs nearby.
I am contesting this as I and many of the other residents are all fed up of getting tickets for loading/unloading or stopping for a few minutes in the car parks. The managing agents seem to be using UKPCM as a control measure for the parking bays despite the fact the majority of residents I speak to want rid.

I have formulated a defence based on some of the template provided. Could you let me know what you think?

1.  The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that any conduct by the driver was in breach of any term.  Further, it is denied that this Claimant (understood to have a bare licence as agents) has standing to sue or form contracts in their own name. Liability is denied, whether or not the Claimant is claiming 'keeper liability', which is unclear from the boilerplate text in the Particulars of Claim ('the POC').

The facts known to the Defendant:

2. The facts in this defence come from the Defendant's own knowledge and honest belief.  Conversely, the Claimant sets out a cut-and-paste incoherent and sparse statement of case. The POC appear to be in breach of CPR 16.4, 16PD3 and 16PD7, and fail to "state all facts necessary for the purpose of formulating a complete cause of action". The Defendant is unable, on the basis of the POC, to understand with certainty what case, allegation(s) and what heads of cost are being pursued, making it difficult to respond. However, the vehicle is recognised and it is admitted that the Defendant was the registered keeper and driver.

3. The Particulars refer to the material location as X. The Defendant has, since Y, held legal title (Exhibit A) under the terms of a lease, to Z at this location.

4. The Defendant has access to an outside allocated parking space (Bay A, Exhibit as well as general access to the entire parking areas on site. All residents are also provided underground parking fob access enabling loading/unloading of items. All residents of the building have access to the underground car park as well as the outdoor car park.

 5. On this specific occasion the defendant arrived at their bay to find it was occupied by a third party vehicle. In order to find the owner of the vehicle that was parked in the defendant’s allocated parking bay, the defendant parked their car temporarily on an unmarked space next to the allocated parking bay and then the defendant proceeded out of their own car to locate the owner of the third party vehicle and/or seek a member of the car park management for enforcement. In the space of less than five minutes of the defendant wandering around the car park and estate on foot, they returned to find a ticket had been issued on their vehicle.

6. At some point, the managing agents contracted with the Claimant company as a contractor, but they are strangers to the lease and in common with other residents, The defendant was led to believe that the regime was intended to deter trespassers. No 'relevant contract' or 'relevant obligation' was communicated to residents, nor would the defendant have accepted a contract foisted upon them with onerous terms and charges. It is not enough to put signs up and ride roughshod over the rights of residents that already exist, and which take precedence, given the leasehold title held.

7. Trying to re-offer a parking/loading (in or out of the allocated bay) right or easement that the defendant already enjoys by express or implied right under their lease, lacks any aspect of consideration.

8. There is no licence to park that this Claimant can possibly offer the defendant that they do not already have as an unfettered right. The Claimant is trying to run the defandant’s property car park like a commercial site, on the same punitive terms as a trespasser would be charged. This would clearly be a derogation from grant and the defendant would wish to make clear that they did not agree to contractual terms, just because a permit was imposed upon them with no opt out offered. Permits were displayed as a courtesy only, to show other residents who was parked, and there has always previously been the ability to stop to unload or load items anywhere in the car park area.

9. There are no terms within the lease requiring lessees to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same. Therefore, the defendant’s case relies on Primacy of Contract. The defendant refers to previous cases such as Pace v Mr N [2016] C6GF14F0 [2016] (Exhibit C), where it was found that the parking company could not override the tenant's right to park by requiring a permit to park.

10. The defendant did, at all material times, park in accordance with the terms granted by the lease. The erection of the Claimant's signage, and the purported contractual terms conveyed therein, are incapable of binding the defendant in any way, and their existence does not constitute a legally valid variation of the terms of the lease. Accordingly, thew defendant deny having breached any contractual terms whether express, implied, or by conduct.

11. The defendant’s vehicle clearly was 'authorised' as per the lease and primacy of contract and avers that the Claimant's conduct in aggressive ticketing is in fact a matter of tortious interference, being a private nuisance to residents. In this case the Claimant continues to cause a substantial and unreasonable interference with the defendant’s land/property, or his use or enjoyment of that land/property.

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 the defendant is unaware of any such vote having been passed by the residents.

13. The claimant may argue that the defendant parked outside of the allocated bay for loading. I refer to the case of Jopson v Homeguard [2016] B9GF0A9E (Exhibit D), 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.

14. Furthermore in this case, by providing an underground car parking fob for all residents (regardless of whether their allocated parking space is underground or outside) the managing agents have provided all residents access to the entire car parking space.

15. The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 (Exhibit E) 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 the defendant’s 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.

16. The defendant would also like to state the Claimant did not display clear, large, prominent signs within the site that were capable of being read from the driver's seat and/or forming a contract, contrary to the BPA CoP, PoFA and the Beavis Vs ParkingEye 2015 case. (Exhibit F pictures of Bay and Signage). From the pictorial evidence you can see that the font type is incredibly small and would not be legible from the driver’s seat, and is purely aimed at only an unauthorised driver, not the defendant.

17. 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.

18. This is clear from several cases. An example in PCM-UK v Bull et al 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.

19. The Claimant will concede that no financial loss has arisen and that in order to impose an inflated parking charge, as well as proving a term was breached, there must be:

(i). a strong 'legitimate interest' extending beyond mere compensation for loss, and

(ii). 'adequate notice' of the 'penalty clause' charge which, in the case of a car park, requires prominent signs and lines.

20. The alleged 'core debt' from any parking charge cannot exceed £100 (the industry cap).  It is denied that any 'Debt Fees' or damages were actually paid or incurred.

21. This claim is unfair and inflated and it is denied that any sum is due in debt or damages. This Claimant routinely pursues an unconscionable fixed sum added per PCN, despite knowing that the will of Parliament is to ban it.

22. This is a classic example where adding exaggerated fees funds bulk litigation of weak and/or archive parking cases. No checks and balances are likely to have been made to ensure facts, merit or a cause of action (given away by the woefully inadequate POC).

23. This claim has been enhanced by a disproportionate sum, believed to enrich the litigating legal team. It appears to be double recovery, duplicating the intended 'legal fees' cap set by small claims track rules.

24. In addition, pursuant to Schedule 4 paragraph 4(5) of the Protection of Freedoms Act 2012 ('the POFA') the sum claimed exceeds the maximum potentially recoverable from a registered keeper. The Claimant is put to strict proof of POFA compliance if seeking 'keeper liability'.

25. The Defendant avers that there was no agreement to pay a parking charge or added 'damages' which were not even incurred, let alone quantified in bold, prominent text. This Claimant's lack of large, readable signs are nothing like the yellow & black warnings seen in Beavis, nor do they meet the signage requirements in the DLUHC Code which reflects the already statutory requirement for 'prominence' (Consumer Rights Act 2015 - the 'CRA').

27. Section 71 CRA creates a statutory duty upon Courts to consider the test of fairness whether a party raises it or not. Further, claiming costs on an indemnity basis is unfair, per the Unfair Contract Terms Guidance (CMA37, para 5.14.3): (link)

28. The CRA introduced new requirements for 'prominence' of both terms and 'consumer notices'.  In a parking context, this includes a test of fairness and clarity of 'signs & lines' and all communications (written or otherwise). Signs must be prominent (lit in hours of darkness/dusk) and all terms must be unambiguous and contractual obligations clear.

29.  The Defendant avers that the CRA has been breached due to unfair/unclear terms and notices, pursuant to s62 and paying regard to examples 6, 10, 14 & 18 of Schedule 2 and the duties of fair/open dealing and good faith (NB: this does not necessarily mean there has to be a finding of bad faith).  

26. DVLA data is only supplied if there is an agreement flowing from the landholder (ref: KADOE rules). It is not accepted that this Claimant (an agent of a principal) has authority to form contracts at this site in their name. The Claimant is put to strict proof of their standing to litigate.

27. The Claimant failed to offer a genuinely independent Alternative Dispute Resolution (ADR). The DLUHC Code shows that genuine disputes such as this should see PCNs cancelled, had a fair ADR existed. The rival Trade Bodies' time-limited and opaque 'appeals' services fail to properly consider facts or rules of law and reject most disputes: e.g. the IAS upheld appeals in a woeful 4% of decided cases (ref: Annual Report).  This consumer blame culture and reliance upon their own 'appeals service' (described by MPs as a kangaroo court and about to be replaced by the Government) should satisfy Judges that a fair appeal was never on offer.

Conclusion

28. There is now evidence to support the view - long held by many District Judges - that these are knowingly exaggerated claims that are causing consumer harm.  The July 2023 DLUHC IA analysis shows that the usual letter-chain costs eight times less than the sum claimed for it.  The claim is entirely without merit and the POC embarrassing.  The Defendant believes that it is in the public interest that poorly pleaded claims like this should be struck out.

29. In the matter of costs, the Defendant seeks:

(a) standard witness costs for attendance at Court, pursuant to CPR 27.14, and

(b) a finding of unreasonable conduct by this Claimant, and further costs pursuant to CPR 46.5. 

30.  Attention is drawn to the (often-seen) distinct possibility of an unreasonably late Notice of Discontinuance. Whilst CPR r.38.6 states that the Claimant is liable for the Defendant's costs after discontinuance (r.38.6(1)) this does not 'normally' apply to claims allocated to the small claims track (r.38.6(3)). However, the White Book states (annotation 38.6.1): "Note that the normal rule as to costs does not apply if a claimant in a case allocated to the small claims track serves a notice of discontinuance although it might be contended that costs should be awarded if a party has behaved unreasonably (r.27.14(2)(dg))."   

31. Finally, having outlined the witness statement with supporting evidence, the defendant encourages the court to strike out the claims against the defendant as there are no sound grounds of claim and to grant compensation in accordance to the defendant cost of schedule.

KeithP

Hello and welcome.

Your thread title says you have received a Letter of Claim but you appear to be reacting to a Court Claim.

Have you received a Court Claim?

If you have only received a Letter of Claim so far, perhaps you should respond to that as described in the opening few lines of the second post in the NEWBIES thread.

aa5085

Sorry you are right, I have received a court claim. Would you be kind enough to tell me what you think re. my defence?

aa5085

Realised I cannot delete this thread and wanted to change the title of it so it's accurate. Have posted another thread with the correct title.

KeithP

Discussion started again here...
forums.moneysavingexpert.com/discussion/6516411/help-needed-with-claim-form-defence-for-gladstone-ukpcm-parking-charge-in-residential-parking