CPM / Gladstone - now got a court date

Coupon-mad · 22 November 2024 at 6:43PM

Why is the Statement of truth in the wrong place? It goes before your signature & date.

You should add CPMS v Akande words under CEL v Chan and remove the paragraphs below it about other strike outs. Copy the words used by @FluffySocks25 about Akande.

For the authorities, such as Chan, Akande, Jopson, Wilkinson, just show links to the transcripts. Not pages, just links. @Le_Kirk has a judgment link that includes the first two.

Also you need the new Court of Appeal case transcript link as I posted in quite a few threads the other week:

DUCHESS OF BEDFORD HOUSE RTM COMPANY LIMITED & ORS V CAMPDEN HILL GATE LTD [2023] EWCA Civ 1470

It reaffirms residential parking rights using not only a fair interpretation of the lease but also section 62 of the Law of Property Act 1925.

It's a Court of Appeal authority (the Supreme Court refused an application to appeal it):

https://www.edwincoe.com/blogs/main/the-supreme-court-has-effectively-confirmed-the-approach-of-the-court-of-appeal-in-applying-the-rule-in-newman-v-jones-and-on-how-to-interpret-lease-clauses/

https://www.casemine.com/judgement/uk/6576d76952aae60ac079d0bd?utm_source=amp&target=amp_jtext

That case reaffirmed leaseholders' rights under section 62 to use 'first come first served' bays in a car parking area at their estate:

"The residents of Duchess of Bedford House are relieved and delighted at this decision. After having had their right to park restricted by parking tickets and even clamping for periods over the last 30 years, they can park in the road outside their flats with full confidence in their right to do so."

Even Shakespeare Martineau blogged about it:

https://www.shma.co.uk/our-thoughts/duchess-of-bedford-house-case-have-we-gone-parking-mad/

KingsArms · 23 November 2024 at 4:54PM

@Coupon-mad

Many thanks for all your help to date, it's much appreciated. I've made the suggested changes and included the links in an exhibit. Not sure if that is acceptable but I will take your guidance on that.

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.

Exhibit 08. Links to judgements included in the witness statement

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 WS, referring to page and reference numbers where appropriate. I have also included Exhibit 8 which contains links to the numerous legal judgements I’ve referenced in my WS. My defence is as follows:

Facts and Sequence of events.

3. The property, to which the resident parking space relates, was purchased by myself and my 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 our son purchased the property and has occupied the flat to date. My 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, our son was a named driver on the insurance policy for the vehicle.

4. As stated above the property was owned by my wife and I until April 2021 when our son purchased the property. During that period and until the first alleged offence in February 2022 the claimant issued no penalty charges to the myself 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 myself. This is based on the fact that I maintained the relationship with the management company throughout the tenancy and no issues were raised in relation to parking by the tenant to myself.

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. 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.

7. It is denied that I 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.

8. The Property Lease Agreement permits the parking of vehicle(s) on land. I aver 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). This position is supported by the recent Court of Appeal decision in Duchess of Bedford House RTM Company Limited & Ors V Campden Hill Gate Ltd (2023) ECWA Civ 1470 which reaffirms residential parking rights using not only a fair interpretation of the lease but also Section 62 of the Law of Property Act 1925

9. I 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.

10. I aver 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. I 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.

11. 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.

12. Again notwithstanding point 5 the Claimant has raised this claim in the knowledge that they have not provided myself nor my son 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 I have 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.

13. The facts in this WS come from my 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.

Two recent persuasive appeal judgments in Civil Enforcement Limited v Chan (Ref. E7GM9W44) and CPMS v Akande would indicate the POC fails to comply with Civil Procedure Rule 16.4(1)(e) and Practice Direction Part 16.7.5. 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

KingsArms · 23 November 2024 at 4:55PM

1. would be able to bring a claim for breach of contract'. The same is true in this case and in view of the Chan judgment (transcript below) the Court should strike out the claim, using its powers pursuant to CPR 3.4.

2. I believe 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 and the numerous judgements referenced in support of this position.

Hearsay evidence

3. 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.

4. 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.

5. 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

6. 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.

7. 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

8. 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.

9. 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

10. 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.

11. 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

12. 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:

13. 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.

14. 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.

15. 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 the claimant’s 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.

16. With the Department of Levelling Up, Housing & Communities 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 should be struck out because knowingly enhanced parking claims like this one cause consumer harm on a grand scale

17. 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)

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.

Signed:

Name: Mr *******

28.10.2024

Exhibit 08 – Links to judgements included within witness statement

Duchess of Bedford House RTM Company Limited & Ors V Campden Hill Gate Ltd (2023) ECWA Civ 1470

https://www.casemine.com/judgement/uk/6576d76952aae60ac079d0bd?utm_source=amp&target=amp_jtext

Jopson v Homeguard Services Ltd (2016)

https://www.parkingcowboys.co.uk/wp-content/uploads/2016/12/JOPSON-V-HOMEGUARD-2906J-Approved.pdf

K-Sultana Saeed v Plustrade Ltd [2001]

https://www.casemine.com/judgement/uk/5a8ff71460d03e7f57ea734b

Civil Enforcement Limited v Chan (Ref E7GM9W44)

https://www.scribd.com/document/676990676/Civil-Enforcement-Limited-v-Ming-Tak-Chan-CC-Luton?doc_id=676990676&order=652107815

CPMS v Akande

https://www.dropbox.com/scl/fi/2jef4c7bljyp6dse24p70/Judgments.pdf?rlkey=jsgusx180wzjz2f6er0436xw2&st=03x4tsbq&dl=0

ParkingEye Ltd v Beavis [2015]

https://www.supremecourt.uk/cases/docs/uksc-2013-0280-judgment.pdf

Coupon-mad · 23 November 2024 at 4:59PM

Are you not putting in the usual points against adding £70, and no landowner authority, etc? Or are you just sparing us having to read that, and your costs & statement of truth?

This should be a standalone paragraph:

This position is supported by the recent Court of Appeal decision in Duchess of Bedford House RTM Company Limited & Ors V Campden Hill Gate Ltd (2023) ECWA Civ 1470 which reaffirms residential parking rights using not only a fair interpretation of the lease but also Section 62 of the Law of Property Act 1925.

KingsArms · 23 November 2024 at 5:13PM

@Coupon-mad

Apologies, that's my poor attempt at cut and paste from the document - and I cut too severely .....

Now included Duchess of Bedford as a standalone paragraph.