CPM / Gladstone - now got a court date

KingsArms

Thanks Coupon-mad for your response.

To be honest i sent in the defence before I started to Google the support available on this platform. So I guess now I'm "better educated" I'm trying to put forward the best case. I can post the whole defence here but it was basically a covering letter with 5 documents (1) extract from the lease agreement which does not reference permits (2) Newsletter from the Managing agent which references visitor parking but reiterates the point that we were never provided with a resident permit (3) my certificate of insurance which covers the names driver (4) A letter from the new management company which references the new parking company and the fact that they will issue resident permits.  Are you saying I can't send in this level of detail in a witness statement ?

Just to add that the solicitor for the claimant has sent their witness statement with the parking fines attached plus diagrams of the block

Johnersh

Stick to the facts and telling the story. That statement just shrouds the good points with irrelevant guff.

Coupon-mad

Please show us the actual defence you put in.

A recent less templatey WS that won was on the thread by @Harry77

KingsArms

This is what I sent in as defence - could have done better if I had found this forum first (Hindsight, Hindsight,.....)

I had a conversation with the court and then submitted this:

As per our telephone conversation and guidance, I am attaching supporting evidence to my defence in relation to the above case. As discussed the system does not give the facility to attach documents and therefore sending via registered post. I would be grateful if you would consider the attachments in support of my defence.

I have numbered the paperwork and highlighted in yellow the relevant information for ease of reference

Document 1 - Extract from the Lease Agreement. I refer to point 21which my son adhered to by parking in the space forming part of his property. I would also like to add that at the time of purchase we received a "Sales Information Pack" from Crabtree who were the management company at the time of the alledged offence and is circa 60 pages long which makes no reference to parking regulations. I can provide a copy if it would help or bring it in person when the case is heard.

Document 2 - a newsletter from Crabtree which references visitor parking but no reference to resident parking. I can also confirm that UK Car Parking Management Ltd (UKCPM) did provide visitor permits every 12 months which my son diligently used for visitors in the allocated visitor parking bays but at no time did they provide a resident permit to him.

Document 3 - My certificate of Insurance which clearly shows my son as a named driver for the vehicle to which the PCN's refer.

Document 4 - A letter from Prime Property Management, who replaced Crabtree as the management company for the flats, which references cancellation of UKCPM due to issues and that the new company P4 Parking will provide both resident and visitor permits plus install new signage. Just to add further that the new signage is much more visible to residents.

Document 5 - The final correspondence from Prime Property Management regarding the new signage.

So in summary and to reiterate the points as per my on line submission I have not breached any contract as there was no contract with me and moreover no resident permit was provided by UKCPM to my son, a failure which has now been corrected by P4 Parking and is displayed in the car.

Grizebeck

You don't submit documents with a defence.

Coupon-mad

Yep, so none of the attachments will be on file.  This is where WS stage comes into play.  Read some winning examples.  I gave you a link already to one. Another was by @Defendant911 and another by @Milliered

I think I've already advised you to use the 2023 Court of Appeal case law I found the other week about parking at leasehold properties?  It's linked in several residential defence threads.

KingsArms

Thanks all for help to date.  Interesting I rang the court and was guided by their person. So that's frustrating.

@Coupon-mad - I've found the @Harry77 version you suggested and started to draft based on that but will add the other points. It seems to have a lot of similarities to my case and will share when complete. Court date is 13th December so working back the 14 days I have a bit of time. If I could ask a couple of other process type questions.

1. Can I email to the court or is it registered mail again. I've read through court documentation I've received and does not mention email but will look again. 
2. is there a limit on the size of the witness statement documentation ? I plan to scan the lease in total and include that with the statement.

The Solicitor has already confirmed they wont attend so looks like me and the judge.

Coupon-mad

No it'll usually be a legal rep for them.

Court staff are not allowed to give legal advice so that clerk overstepped the mark AND got it wrong.  A defence is just the defence words.

1. email it

2. 50 pages only (whole bundle).

KingsArms

@Coupon-mad

Thanks. Latest draft below so appreciate your thoughts.

I still need to look at the case precedents and validity plus add some photos of the signs. If I include the exhibits which includes the entire property lease agreement I'm at 48 pages so no bandwidth to add the cases referenced. is that an issue ? 

Name of Witness:   XXXXX

                                                                                                                                                                                  Witness Statement No: One

                                                                                         

IN THE COUNTY COURT AT XXXXXXX

                                                                                                                                                                                  Claim No.: XXXXXXX

 

                                                 

Table of Contents:

Witness Statement

Exhibit 01. Copy of Lease Agreement for the property associated with the resident parking space.

Exhibit 02. Copy of the defendants vehicle insurance certificate showing the resident as a named driver.

Exhibit 03.  Copy of Management Fee  and associated service charge terms & conditions from Property Company in the name of the Defendant

Exhibit 04. Copy of the membership certificate relating to the Defendants son as the new owner of the property

Exhibit 05. Photograph of the first sign in the resident parking area relied on by the claimant

Exhibit 06. Photograph of the second sign relied on by the claimant

Exhibit 07. Letter from Management Company detailing issues with the Claimant.

 

WITNESS STATEMENT OF

                          

 I, Mr XXXXXXXX, of XXXXXXXXX will say as follows :

 

INTRODUCTION

1.     I make this Witness Statement (hereinafter referred to as WS) in readiness for the hearing listed on XXXXXX December 2024 at XXXXXXX County Court and in support of my Defence against the Claimant’s claim.

 

2.     In my statement I shall refer to several Exhibits (See Exhibits 1 - 7 ) within the evidence supplied with this statement, referring to page and reference numbers where appropriate. My defence is as follows:

 

Facts and Sequence of events.

3.     The property, to which the resident parking space relates, was purchased by the Defendant and his wife in November 2015 as an investment. From the period December 2015 – November 2020 inclusive the property was let to a tenant. In  April 2021 the Defendants son purchased the property and has occupied the flat to date. The Defendant’s son has always parked in the allocated bay for the property and as per the vehicle insurance certificate, which was submitted to the claimant previously, the defendant’s son was a named driver on the insurance policy for the vehicle.

 

4.     As stated above the property was owned by the defendant and his wife until April 2021 when their son purchased the property. During that period and until the first alleged offence in February 2022 the claimant issued no penalty charges to the Defendant or the current owner. Equally to the best of my knowledge no penalty charges were issued to the tenant of the flat whilst owned by the Defendant. This is based on the fact that the Defendant had the relationship with the management company throughout the tenancy and no issues were raised in relation to parking by the tenant.

 

5.     In January 2022 a new management company, Prime Property Management was appointed and immediately appointed a new parking management company effective April 2022 due to issues with the claimant. This is supported by Exhibit 07. I draw the courts attention not only to the timing of the issuance of the penalties but the claimant’s contract termination in March 2022.

 

 

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 lawful user of the vehicle which is detailed in the Property Lease Agreement.

 

7.     The 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 is included as part of this witness statement as evidence that prior permission to park has been given. I draw the courts attention to The Schedule Part III Clause 21 of the lease agreement with the Landowner, which states the residents obligation as “ Not to park or permit to be parked any vehicle on any parking space within the Estate other than that parking space forming part of the property” (for ease of reference please see page 21 of the Lease Agreement)

 

 

8.     The Defendant did appeal the PCN’s referred to in the Claimant’s claim which is accepted in the Claimants Defence Statement. The appeal was based on the points above but rejected by the Claimant completely ignoring the terms within the Property Lease Agreement.

 

 

Statement of truth:

I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

KingsArms

1.     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 if necessary.

 

2.     Notwithstanding point 5 the signs referred to by the Claimant are not within line of sight when entering or leaving the resident parking space and I have provided evidence of this in Exhibit  05. As can be seen in the exhibit the sign is covered by tree branches and is at least 30 metres from the allocated parking space.

 

3.     Again not withstanding point 5 the Claimant has raised this claim in the knowledge that they have not provided the Defendant with a residential parking permit and therefore wasted valuable court time. They have had a number of opportunities to do this as they provided visitor bay permits to residents on an annual basis.  So having been the owner of the property for a number of years the Defendant has full knowledge of what has been issued by the Claimant in relation to the parking and what was issued to other residents is not relevant and merely hearsay.

 

4.     In additional to the above points, access to the resident parking space is only possible by lowering the bollard blocking entry by use of an access device which are issued to residents by the Management Company and thereby preventing non-resident access.

 

5.     The facts in this WS 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 is devoid of any detail and is contrary to the rights enjoyed by residents under the Property Lease Agreement.

 

6.     A recent persuasive appeal judgment in Civil Enforcement Limited v Chan (Ref. E7GM9W44) would indicate the POC fails to comply with Civil Procedure Rule 16.4 and the Practice direction to Part 16. On the 15th August 2023, in the cited case, HHJ Murch held that 'the particulars of the claim as filed and served did not set out the conduct which amounted to  the breach in reliance upon which the claimant would be able to bring a claim for breach of contract'. The Defendant asserts that this Claim is based upon an agreement by conduct. The Defendant asserts that the Claimant has failed to specify how Contract terms have been breached by the conduct of the Defendant in the POC. (See Exhibit 09)

 

7.     Similarly, at the Wakefield County Court on 8th September 2023, District Judge Robinson considered mirror image POC in claim K3GF9183 (Parallel Parking v anon) and struck the Claim out without a hearing. (See Exhibit 10)

 

8.     Furthermore, at Manchester District Judge McMurtrie and District Judge Ranson also struck out a claim (again without a hearing) on the grounds of POC’s lacking clarity, detail, and precision.

 

9.     The Defendant believes the Claim should be rejected due to a represented parking firm Claimant knowingly breaching basic CPRs and ignoring the precedence of the Property Lease Agreement.

 

Hearsay evidence

 

10. The Claimants 'witness' is a legal assistant employed by the claimant’s solicitors and has no direct knowledge of the actual events that form the basis of the claim. Any evidence provided by this individual is second-hand, supposedly relying entirely on information supplied by the claimant, and thus cannot carry the same weight as testimony from someone who witnessed or was directly involved in the incident.

 

11. While the Civil Evidence Act 1995 allows hearsay evidence in civil proceedings, it is required to be given less weight, especially when it comes from someone with no firsthand knowledge. Furthermore, under CPR 32.2, the court has the discretion to exclude hearsay evidence when it is of limited probative value. In this case, the witness provides only second-hand information from the claimant and cannot be considered reliable or probative.

 

12. The claimant's Witness Statement (WS) fails to comply with CPR Practice Direction 32, paragraph 18.2, as it does not clearly distinguish between what the witness knows firsthand and what has been provided to them by others. It is evident that the individual providing the statement, being a legal assistant with no direct involvement in the events, relies on information provided by their client and lacks personal knowledge of the facts. As a result, this statement amounts to hearsay, which weakens its credibility. Further, the claimant's witness has failed to indicate the source of any information and belief, as required under PD 32.18.2.

 

13. The paralegal 'witness' does not work for the Claimants company and therefore has no role in the operations, policies, or specific events regarding the parking charge or this case. This distance from the Claimants company further undermines their ability to give a credible account of the facts.

 

14. The claimant's WS is written in the third person, which is inappropriate for a witness statement. A WS should represent the personal account of the witness and should be written in the first person, as per CPR Practice Direction 32, paragraph 18.1, which requires a witness to state their evidence clearly, in their own words.

 

 

Unenforceable Additional Costs

 

15. In paragraph 12 of the claimant’s Witness Statement, it is stated that the signage provides for a "Parking Charge in the sum of £100, plus additional costs if the same remains unpaid." However, I submit that these  additional costs" are not defined anywhere in the signage or contract terms allegedly relied upon by the claimant, rendering them vague and unenforceable under the Consumer Rights Act 2015 (CRA), which requires that contract terms be both fair and transparent.

 

16. In the Particulars of Claim, the claimant has added £70 per Parking Charge Notice (PCN), claiming this as "contractual costs as per the contract terms and conditions." However, these additional costs are not referred to or specified on the signage at the site. The claimant cannot impose additional costs that are not clearly stated in the contract (assuming a contract even existed, which is disputed). This lack of transparency violates Schedule 2, Paragraph 10 of the CRA, which prohibits unfair terms 'that have the object or effect of irrevocably binding the consumer to terms with which the consumer has had no real opportunity of becoming acquainted before the conclusion of the contract.'

 

 

Penalty Charge, Not Genuine Pre-Estimate of Loss

17. Furthermore, these additional costs appear to be arbitrary and penal in nature. Under established law principles, such as ParkingEye Ltd v Beavis [2015], parking charges must either be a genuine pre-estimate of loss or commercially justified. In this case, the additional £70 is neither justified nor explained.

 

18. The claimant has provided no breakdown or explanation of how this amount was calculated or why it is appropriate. It can only be viewed as a punitive charge designed to penalise the defendant, which is contrary to established legal principles that prohibit excessive and unfair contractual penalties.

 

19. The claimant has provided no breakdown or explanation of how this amount was calculated or why it is appropriate. It can only be viewed as a punitive charge designed to penalise the defendant, which is contrary to established legal principles that prohibit excessive and unfair contractual penalties.

 

Conclusion: Claimant's Failure to Satisfy the Burden of Proof

20. The claimant, in their Witness Statement, has failed to satisfy the fundamental burden of proof in this matter. Despite making various assertions about the alleged contraventions and my supposed liability, the claimant has not provided adequate evidence to support their claim. Specifically:

 

21. Inadequate and Speculative Witness Testimony: The claimant’s Witness Statement was provided by a Paralegal who has no personal knowledge of the events surrounding the claim Much of the testimony provided is hearsay and fails to comply with CPR Practice Direction 32, paragraph 18.2, which requires the witness to clearly indicate which statements are based on their own knowledge and which are based on information provided by others. This undermines the credibility of their evidence.

 

 

22. Despite these significant procedural and evidentiary failings the claimant has unreasonably asserted that my defence is "denied in it’s entirety." I strongly reject this position. My defence has highlighted the claimant's failures to take into account the rights provided within the Lease Agreement which takes precedent.

 

23. I respectfully request that the court dismisses the claimant’s claim in its entirety due to the claimant’s failure to meet the burden of proof, the legal right given to the resident via the Property Lease Agreement and their failure to comply with the requirements of the Civil Procedure Rules. The court should also consider the claimant’s unreasonable conduct throughout these proceedings when making any assessment of costs.

 

24.  With the DLUHC’s ban on the false 'costs' there is ample evidence to support the view - long held by many District Judges - that these are knowingly exaggerated claims. For HMCTS to only disallow those costs in the tiny percentage of cases that reach hearings whilst other claims to continue to flood the courts unabated, is to fail hundreds of thousands of consumers who suffer CCJs or pay inflated amounts, in fear of the intimidating pre-action demands. The Defendant believes that it is in the public interest that claims like this

 

25. In the matter of costs, I ask :

 

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

(b)  for a finding of unreasonable conduct by this Claimant, seeking costs pursuant to CPR

(c)   costs related to defence of this claim for stationary, printing, scanning, photocopying and postage (£26.00)

(d)  Travel costs to and from the court (£30.00)

 

Signed: 

Name: Mr *******

01.10.2024