Court Claim form from UK Car park management & Gladstone

My permit isn't car specific. Unless it's a large commercial vehicle any car can park in the yellow (communal) bay with a permit displayed. And please refer to #3 for the rest.

I'm getting a bit confused and lost now.

I'd need more specific advice or criticism on my Defence e.g. Remove that line or Add this line etc.

Is it ok to stick with the defence I posted? or Do I need to start something else from scratch?

Many thanks

Hi,

I was gonna send the defence but I thought it would be good to get it double checked.

Please let me know if anything is missing or needs amending.

And I hope this will be useful for other users who are in similar situations.

Thank you very much.




IN THE COUNTY COURT

CLAIM No: XXXXXX

BETWEEN:

UK Car Park Management Limited (Claimant)

-and-

XXXX XXXXXX (Defendant)

DEFENCE


Preliminary

1. The Particulars of Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to ask the Court to limit the Claimant only to the unevidenced allegations in the Particulars. Alternatively, to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand on his woeful Particulars by orchestrating a typical parking firm 'ambush' at a later stage of these proceedings.

2. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct.


Background

3. It is admitted that at the material time the Defendant was the driver of vehicle registration mark REG NUMBER which is the subject of these proceedings.

4. It is admitted that on 02 March 2017 the Defendant's vehicle was parked at ADDRESS where the Defendant is a leasehold owner of a residential property.

Authority to Park and Primacy of Contract

5. It is denied that the Defendant was not permitted to park a vehicle at his own home. Residents at this property are entitled to use the communal yellow parking bays.

5.1. This Claimant was not at this location when the Defendant purchased the flat, arriving some two years later. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by the later appearance of this Claimant who offered no contract to residents. A copy of the lease will be provided to the Court and if the Claimant is unaware of the primacy of contract of the leaseholders, this is due to their own negligence and lack of due diligence before starting enforcement at this location.

5.2. The Defendant has owned the flat for more than 4 years and always enjoyed the right to park in the shared spaces as well as in a leased bay. Since there has been no variation of the residents' agreements, neither a Managing Agent or Residents' Association would be able to impose this onerous charging regime via a back door method of cardboard signs pinned up by the communal bins with cable ties, with charges imposed where parking was free, with some bays effectively removed from daily use by residents.

5.3. Under the Landlord and Tenant Act 1987, for such a variation to have been agreed by the residents, it is the Defendant's understanding that 75% of the parties must have consented and not more than 10% must not have objected to any proposed material change (which this nuisance most certainly is).

5.4. The Claimants present a significantly detrimental material change and provide no service that is for the comfort and convenience of the residents; indeed the industry is made up of rogue operators whose modus operandi is to issue predatory, unfair tickets, then sue people. On 2nd February 2018 in the second reading debate about private parking firms, the House of Commons unanimously concluded: ''we need to crack down on these rogue companies. They are an absolute disgrace to this country. Ordinary motorists and ordinary residents should not have to put up with this''.

5.5. The Defendant is a leaseholder and has never been afforded the opportunity to expressly agree or object to UKCPM's regime. For the avoidance of doubt, the Defendant has entered into no contract with this Claimant and no variation of the Defendant's lease agreement has occurred and it will never be agreed for an ex-clamper to cause this level of nuisance on site, suing residents and telling the Managing Agents that they cannot (or will charge to) cancel unfair 'tickets' until the contract is ended.

5.6. Bays previously shared by residents and commercial tenants have effectively been removed from daily residential use and made a 'pay and display' commercial venture during the day, which is a derogation from grant and not something that the Courts can support.

5.7. The Defendant was aware that the charging hours in these purported 'pay and display' bays end at 5.30pm so the Defendant believed that the car (which was temporarily leased) could be parked by a leaseholder in such a bay overnight, at home. There is no commercial value to the bays after tariff charging hours, so there is no legitimate interest excuse for this Claimant to fall back on; an extortionate £100 charge is punitive and unrecoverable.

5.8. If the Claimant wanted to restrict or charge residents or visitors for parking during hours of darkness, then the mechanism is already there to charge tariffs. No commercial value applies to these spaces at night, at a time when they would only be needed by residents, and therefore any fine is predatory, unjustified and disproportionate.


Any contract or obligation for leaseholders to display a permit is denied

6. Whilst a 'permit' was provided by the Claimant when this Claimant appeared on site, the letter provided for no relevant contract or relevant obligation. There was no mention of additional terms on any signage that could affect a resident, and no 'fine' or charge was stated at all in the paperwork. There was no risk of a fine for non-display of the permit, which the Defendant displayed in his main vehicle merely as a courtesy.

6.1. The Defendant avers that the operators signs cannot:

(i) override the existing rights enjoyed by leaseholders, residents and their visitors and
(ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease.

6.2. 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, or that
7.2. there was any obligation (at all) to display a permit.

7.3. In case number D7GF307F - UKCPM v Mr D - before Deputy District Judge Skelly on 1st February 2018 at Clerkenwell, a similar thin excuse of an argument from this same private parking firm inflicting a nuisance on residents was dismissed. When not sitting as a Judge, DDJ Skelly is a barrister specialising in property law. The managing agents were named as a party to the lease, and there was a clause which said that they could make regulations for the 'comfort and convenience' of lessees. However, this could not excuse a change as intrusive and onerous as to override the grant of free resident parking, effectively restricting and charging for a right previously enjoyed, without the required consensus and deed of variation. The Judge remarked that this would be like the agents suddenly stipulating that residents had to hang a Union Jack out of the window whenever they were at home.


Alternative Defence - Failure to set out clear 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 penalty sum imposed for any breach of parking terms were prominent, and stated in simple clear large lettering - both upon entry to the site and throughout.

8.1. The Defendant avers that the parking signage in this matter was, without prejudice to the primary defence above, inadequate.

8.2. The Defendant avers that the residential site that is the subject of these proceedings is not a site where there is a parking space value to be protected overnight, after the daytime pay and display hours. The Claimant has not suffered loss or pecuniary disadvantage and can show no legitimate interest in fining leasehold residents. The penalty charge is, accordingly, unconscionable in this context, with ParkingEye distinguished.


No locus - the Claimant is not the freeholder nor authorised by the freeholder

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. The Claimant appears to rely upon a purported contract with a company called 'Rosehill Triangle (2003) Management Company Ltd'. This is not the freeholder and neither is it the Managing Agent. Companies house shows that Rosehill Triangle (2003) Management Company Ltd is what appears to be a 'front' - a company on paper but with no registrable person listed as a Director of the company. This paper company cannot override the rights of residents and are not a named party in the lease.


Added costs have not been incurred - attempt at double recovery

11. In addition to the original parking charge, for which liability is denied, the Claimants have artificially inflated the value of the Claim by adding purported 'indemnity' costs which the Defendant submits have never actually been incurred. It is believed that Gladstones Solicitors offer their services to IPC members on free (or nominal) terms, since the IPC and Gladstones shared Directorships, causing an alarming conflict of interests exposed in the Parliamentary debate in the House of Commons in February.

12. The added costs are in fact artificially invented figures, which represent a cynical attempt to circumvent the Small Claims costs rules and achieve double recovery. In Beavis, only the parking charge itself (£85) was pursued and the 'charge' was scrutinised by the Supreme Court and held to mainly represent a significant sum in profit; being a pre-set, deliberately high deterrent. This was already significantly over and above the very minimal costs of operating an automated ticketing regime and no damages/loss/debt collection costs could have been claimed on top, because none existed.

13. Similarly, in Somerfield a £75 parking charge for a valuable retail parking space was not a penalty, but a sum mentioned in the harassing letters of double that amount, almost certainly would be.

14. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons. The Court is invited to dismiss the Claim, and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14.

I believe the facts contained in this Defence Statement are true.


signed


date

Little update

I emailed my defence to CCBCAQ@Justice.gov.uk today and almost immediately they updated MCOL.

My claim history is as below

Your acknowledgment of service was submitted on 16/06/2018 at 21:04:37
Your acknowledgment of service was received on 18/06/2018 at 01:06:07
Your defence was received on 04/07/2018