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  • FIRST POST
    • Duns89
    • By Duns89 21st Oct 17, 10:14 AM
    • 15Posts
    • 5Thanks
    Duns89
    Gladstone LBC (UKCPM)
    • #1
    • 21st Oct 17, 10:14 AM
    Gladstone LBC (UKCPM) 21st Oct 17 at 10:14 AM
    Hi All,

    I have been issued with a ‘letter before claim’ from Gladstones this week and just want to ensure I reply appropriately and as I should be without putting myself into bother later. If anyone could help it would be greatly appreciated;

    Myself
    I am over 18
    I am in England
    I own and am the registered keeper of the vehicle
    I rent my flat from my brother who owns the flat and the allocated parking bay which I have been using since I moved here almost 2 years ago
    The car park is gated with digit lock and fob access to the vehicle gate
    We were told by the management company that CPM would manage the parking after we had all started parking - I have seen no contact just an email agreement between them.

    Scenario
    Back in February I was issued a PCN from CPM on my windscreen while I was parked within my brothers bay. My permit was displayed within the car in the front side window and this is how it how it had been displayed for over a year without problem (CPM state the permit should be displayed clearly within the front windscreen).

    I responded to the ticket within a week with photographic evidence that my permit was displayed and they should remove the debt.

    I received a response stating I was in breach of their requirements to park with photo evidence of the car but only of the front, rear and close up of the front windscreen, no side photos which would prove I had displayed a permit. To my understanding BPA code of conduct states cars should be thoroughly checked for a permit - clearly this was not done.

    They highlighted IAS to appeal this further which I did but again was met with agreement of CPM that I was in breach.

    I have also spoken with the management agent who says the do not get involved with car parking tickets

    Since then I have ignored DRP letters until I received a claim before court this week

    I have never been told about POPLA or requested one (once I knew about POPLA was well after IAS and I thought I could no longer request this route).

    I am suggesting I write back to this LBC using the Daniel San & LOC posts forums.moneysavingexpert.com/showthread.php?p=73208118#post73208118, forums.moneysavingexpert.com/showthread.php?p=72358831#post72358831, and the guidelines set out in the Pre-action protocol.

    I will form a draft over the weekend to send, I expect I should not mention my circumstances, or the fact I have not had the opportunity to use POPLA, I expect this is now not an option to use?

    Also I have another 2 tickets issued over that weekend but they have managed to send letters from DRP to the wrong address who has no relation to me after getting it from the DVLA (DVLA has my correct address). I do not know how I stand if I do not receive the LBC due to the address being incorrect. Should I try and chase this? I have had some letter given to me from a neighbour.

    Thanks in advance for any help. Enjoy the weekend.
Page 1
    • Umkomaas
    • By Umkomaas 21st Oct 17, 12:10 PM
    • 19,383 Posts
    • 30,617 Thanks
    Umkomaas
    • #2
    • 21st Oct 17, 12:10 PM
    • #2
    • 21st Oct 17, 12:10 PM
    I have never been told about POPLA or requested one (once I knew about POPLA was well after IAS and I thought I could no longer request this route).
    POPLA was never available to you. CPM are members of the IPC (therefore IAS), not the BPA (POPLA).

    They highlighted IAS to appeal this further which I did but again was met with agreement of CPM that I was in breach.
    Unsurprising and totally predictable. Unfortunately CPM now have that to wave in front of a judge. It is why we do not recommend an IAS appeal in 99% of cases.

    I am suggesting I write back to this LBC using the Daniel San & LOC posts forums.moneysavingexpert.com/showthread.php?p=73208118#post73208118, forums.moneysavingexpert.com/showthread.php?p=72358831#post72358831, and the guidelines set out in the Pre-action protocol.
    One of the best fight-backs we’ve had on here for a long time.

    Also I have another 2 tickets issued over that weekend but they have managed to send letters from DRP to the wrong address
    If DRP have the wrong address, I wouldn’t concern myself about it, as long as the PPC have the correct address. But for safety, just ask the neighbour if he wouldn’t mind keeping anything addressed to you and let you have it. Slip him a bottle.
    The fact that I have commented on your thread does not mean I have become your personal adviser. A long list of subsequent questions addressed for my personal attention is unlikely to receive a reply.
    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • Duns89
    • By Duns89 27th Oct 17, 9:00 AM
    • 15 Posts
    • 5 Thanks
    Duns89
    • #3
    • 27th Oct 17, 9:00 AM
    • #3
    • 27th Oct 17, 9:00 AM
    Thanks Umkomaas. I am going to reply with the below it seems a fairly standard reply on here, however I am going to request for the evidence (12. below highlighted red, I'm unsure if I should highlight this more?) as I know they do not have a side photo of the car which would proved I was displaying a permit and would also prove they have not abided by the BPA code of conduct point 20.5b stating the car should be thoroughly inspected for a permit. I know you state they are not part of the BPA but their letters and signage shows the BPA logo. Slightly misleading?

    Thanks

    Your Refxxxxxx

    Dear Sirs,

    I am in receipt of your Letter Before Claim of xxxxx 2017.
    Your letter contains insufficient detail of the claim and fails to provide copies of evidence your client places reliance upon.

    Your client must know that on 01 October 2017 a new protocol is applicable to debt claims and must be complied with.

    Your letter lacks specificity and breaches both the requirements of the previously applicable Practice Direction - Pre-Action Conduct (paragraphs 6(a) and 6(c)) and the new Pre-Action Protocol for Debt Claims (paragraphs 3.1(a)-(d), 5.1 and 5.2. Please treat this letter as a formal request for all of the documents / information that the protocol now requires your client to provide. Your client must not issue proceedings without complying with that protocol. I reserve the right to draw any failure of the Claimant to comply with the protocol to the attention of the court and to ask the court to stay the claim and order your client to comply with its pre-action obligations, and when costs come to be considered.

    As solicitors you must surely be familiar with the requirements of both the Practice Direction applicable pre-1 October and the Protocol which applies thereafter (and your client, as a serial litigator of small claims, should likewise be aware of them). As you (and your client) must know, the Practice Direction and Protocol bind all potential litigants, whatever the size or type of the claim. Its express purpose is to assist parties in understanding the claim and their respective positions in relation to it, to enable parties to take stock of their positions and to negotiate a settlement, or at least narrow the issues, without incurring the costs of court proceedings or using up valuable court time. It is astounding that a firm of Solicitors are sending a consumer a vague and unevidenced 'Letter before Claim' in complete ignorance of the pre-existing Practice Direction and the new Protocol.

    Nobody, including your client, is immune from the requirements and obligations of the Practice Direction and now the Protocol.

    I require your client to comply with its obligations by sending me the following information/documents:

    1. an explanation of the cause of action
    2. whether they are pursuing me as driver or keeper
    3. whether they are relying on the provisions of Schedule 4 of POFA 2012
    4. what the details of the claim are; where it is claimed the vehicle was parked, for how long, how the monies being claimed arose and have been calculated
    5. Is the claim for a contractual breach? If so, what is the date of the agreement? The names of the parties to it and provide to me a copy of that contract.
    6. Is the claim for trespass? If so, provide details.
    7. Provide me a copy of the contract with the landowner under which they assert authority to bring the claim, as required by the IPC code of practice section B, clause 1.1 “establishing yourself as the creditor”
    8. a plan showing where any signs were displayed
    9. details of the signs displayed (size of sign, size of font, height at which displayed)
    10. Provide details of the original charge, and detail any interest and administrative or other charges added
    11. Provide a copy of the Information Sheet and the Reply Form
    12. Provide me with evidence of which the claimant wishes to use to disprove the fact the car was parked legally, including photos showing the front, rear and side of the car in line with code of conduct.

    If your client does not provide me with this information then I put you on notice that I will be relying on the cases of Webb Resolutions Ltd v Waller Needham & Green [2012] EWHC 3529 (Ch), Daejan Investments Limited v The Park West Club Limited (Part 20) – Buxton Associates [2003] EWHC 2872, Charles Church Developments Ltd v Stent Foundations Limited & Peter Dann Limited [2007] EWHC 855 in asking the court to impose sanctions on your client and to order a stay of the proceedings, pursuant to paragraphs 13 ,15(b) and (c) and 16 of the Practice Direction, as referred to in paragraph 7.2 of the Protocol.

    Until your client has complied with its obligations and provided this information, I am unable to respond properly to the alleged claim and to consider my position in relation to it, and it is entirely premature (and a waste of costs and court time) for your client to issue proceedings. Should your client do so, then I will seek an immediate stay pursuant to paragraph 15(b) of the Practice Direction and an order that this information is provided.
    • safarmuk
    • By safarmuk 27th Oct 17, 9:20 AM
    • 628 Posts
    • 1,154 Thanks
    safarmuk
    • #4
    • 27th Oct 17, 9:20 AM
    • #4
    • 27th Oct 17, 9:20 AM
    I have also spoken with the management agent who says the do not get involved with car parking tickets
    If the Management Agent contracted the PPC then this avenue of trying to alleviate themselves of any responsibility is not open to them, they are responsible for the actions of their agents. I would get your brother (the leaseholder) to contact the MA and tell them if they don't instruct UK CPM to discontinue and cancel the ticket then he will issue proceedings against the MA, the PPC and the Freeholder (you need to find out who this is - the person your brother pays ground rent to will give you the clue).

    If you search for "Hairrays" thread you will find three LBCs (to the Freeholder, MA and PPC) that you can tailor should you wish, after sending these "Hairray" got his PCN cancelled.

    When using those letters you must tailor them to what your brothers lease says.

    The car park is gated with digit lock and fob access to the vehicle gate
    In which case your parking facilities seem quite secure, why an earth do you need a PPC at all?

    Going forward you could tell the MA that you want your bay opted out of the scheme and that you no longer want it monitored - problem solved regarding any future tickets. I would then have your brother install a folding lockable bollard to keep your space secure. Costs less than a PCN ...
    • The Deep
    • By The Deep 27th Oct 17, 9:29 AM
    • 9,989 Posts
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    The Deep
    • #5
    • 27th Oct 17, 9:29 AM
    • #5
    • 27th Oct 17, 9:29 AM
    I would suggest that they are urinating windwardly here, what does your brother's lease say about parking? Any mention of permits.

    Is there a possible counter-claim here, misuse of data, infringement of leasehold rights, trespass? If so perhaps you should mention it.

    Have you read this?

    http://parking-prankster.blogspot.co.uk/2016/11/residential-parking.html
    Last edited by The Deep; 27-10-2017 at 9:31 AM.
    You never know how far you can go until you go too far.
    • Duns89
    • By Duns89 3rd Jul 18, 6:38 AM
    • 15 Posts
    • 5 Thanks
    Duns89
    • #6
    • 3rd Jul 18, 6:38 AM
    • #6
    • 3rd Jul 18, 6:38 AM
    I am currently putting together a statement of defense against CPM / Gladstones for parking in my brother's car parking bay for not displaying a permit (which actually was). If someone could maybe give it a once over, I've checked the forums and think this should suit. Any help would be greatly appreciated.

    Quick overview;
    - Brothers flat (in larger residential block) I rent, parking space is within lease
    - Permit was displayed as courtesy albeit in the side window not the front (they do not have photos of the side of the car which I have asked for - never received).
    - They have since been kicked off the site due to complaints
    - I appealed through IAS which was not successful (I know better now).
    - Within the claim form they say; I am the driver (has not been disclosed), mis-spelling of the town.
    - I recall they probably got my address from appeal to CPM.



    Statement of Defence

    In the County Court Business Centre
    Claim Number: XXXXX

    Between:

    XXXXXX

    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 seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.

    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 all material times the Defendant is the registered keeper of vehicle registration mark XXXX which is the subject of these proceedings. The vehicle is insured with XXXXX with 2 other named drivers permitted to use it.

    4. It is admitted that on XXXXXX the Defendant's vehicle at XXXXX where the defendant has been a resident since the building was completed for habitation.

    5. It is denied that the Defendant was the driver of the vehicle as the claim accuses. The Claimant is put to strict proof.
    5.1. 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")
    5.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
    5.2.1. there was a 'relevant obligation'; either by way of a breach of contract, trespass or other tort; and
    5.2.2. 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.

    5.3. 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.

    Authority to Park and Primacy of Contract
    6. It is denied that the Defendant was in breach of any parking conditions and was 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 XXXXX, 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.
    6.1This Claimant was not at this location when the Defendant began residing the flat, arriving some months 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.
    6.2 Whilst a 'permit' was provided by the Claimant ( which was displayed by The Defendant displayed in his vehicle merely as a courtesy to assist the Claimant) there was no alteration to the lease and the Claimants were to manage parking so non-residents during the construction period of the development could not park in lease owned parking bays when access was available to all. Instead the claimant provides 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''.

    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.

    STATEMENT OF TRUTH
    I confirm that the contents of this Defence are true.

    Thanks for any help!!!
    • IamEmanresu
    • By IamEmanresu 3rd Jul 18, 8:42 AM
    • 3,261 Posts
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    IamEmanresu
    • #7
    • 3rd Jul 18, 8:42 AM
    • #7
    • 3rd Jul 18, 8:42 AM
    CPM state the permit should be displayed clearly within the front windscreen
    Just a small detail. Where is this information?

    1. Was it on the signs in the car park
    2. Was it on the permits they issued
    3. Was it on the instructions they issued with the permits?
    4. Did you or your brother sign anything when the permits were issued.

    Rather than Spurling you might want to consider Thornton if their advice was after the event.
    If you want to win - avoid losing first. Here are a few examples
    1. Failing to Acknowledge or Defend https://forums.moneysavingexpert.com/showthread.php?t=5760415
    2. Template defences that say nothing https://forums.moneysavingexpert.com/showthread.php?t=5818671&page=5#86
    3. Forgetting about the Witness Statement
    • The Deep
    • By The Deep 3rd Jul 18, 9:06 AM
    • 9,989 Posts
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    The Deep
    • #8
    • 3rd Jul 18, 9:06 AM
    • #8
    • 3rd Jul 18, 9:06 AM
    This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors.

    Parking Eye, CPM, Smart, and another company have already been named and shamed, as has Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each year). They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

    Hospital car parks and residential complex tickets have been especially mentioned.

    The problem has become so rampant that MPs have agreed to enact a Bill to regulate these scammers. Watch the video of the Second Reading in the HofC recently.

    http://parliamentlive.tv/event/index/2f0384f2-eba5-4fff-ab07-cf24b6a22918?in=12:49:41

    and complain in the most robust terms to your MP. With a fair wind they will be out of business by Christmas.
    You never know how far you can go until you go too far.
    • Duns89
    • By Duns89 3rd Jul 18, 9:30 AM
    • 15 Posts
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    Duns89
    • #9
    • 3rd Jul 18, 9:30 AM
    • #9
    • 3rd Jul 18, 9:30 AM
    They show this on the signs within the car park, unsure if this was on the letter issued with the permit also (I expect it probably was).

    My brother signed nothing, the permits were posted to the appropriate plot number without even an address or name on the envelope or letter. The crazy thing is that obviously the parking management will be paid via the management fee for the apartments.

    I was also thinking Pace v Mr N [2016] C6GF14F0 [2016] , Link Parking v Ms P C7GF50J7 [2016] might be good arguments with the lease?

    The advise is on the signs so don't think it will work? Is the alternative defense needed?
    • IamEmanresu
    • By IamEmanresu 3rd Jul 18, 9:37 AM
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    IamEmanresu
    I expect it probably was
    Never assume. A judge won't and will want facts such as a pic of the sign showing the wording.

    Pace v Noor is OK but so too is Link v Blaney as it shows the approach that UKCPM will take.

    However the key is whether the terms on the permits can or have changed the terms of your brother's lease. (Search for primacy of contract). If your brother had parking as part of his lease/rental agreement then UKCPM can't offer parking especially since

    We were told by the management company that CPM would manage the parking after we had all started parking
    So you need to check if the place where you parked was within your brother's gift to offer you, or whether it was a communal area where is was within the gift of UKCPM to offer along with their terms.

    If it is the latter, there are still other defences but they will need more work.

    Once the facts are in place, then you can select a template that is relevant and not "spray and pray"
    If you want to win - avoid losing first. Here are a few examples
    1. Failing to Acknowledge or Defend https://forums.moneysavingexpert.com/showthread.php?t=5760415
    2. Template defences that say nothing https://forums.moneysavingexpert.com/showthread.php?t=5818671&page=5#86
    3. Forgetting about the Witness Statement
    • Duns89
    • By Duns89 3rd Jul 18, 9:50 AM
    • 15 Posts
    • 5 Thanks
    Duns89
    Never assume. A judge won't and will want facts such as a pic of the sign showing the wording.
    . True, I'll try and find this.

    However the key is whether the terms on the permits can or have changed the terms of your brother's lease. (Search for primacy of contract). If your brother had parking as part of his lease/rental agreement then UKCPM can't offer parking especially since
    . Yes it is part of the lease. It clearly states we have ' the right to park one vehicle not exceeding two and one half tonnes gross unladen weight in the parking space'. This is highlighted on the conveyance plan within the lease so not a gift if I am understanding correctly?

    The worst thing is I actually did display the permit, however CPM decided not to take any photos which would show this fact. They only take photos to try and punish you.
    • Umkomaas
    • By Umkomaas 3rd Jul 18, 10:00 AM
    • 19,383 Posts
    • 30,617 Thanks
    Umkomaas
    The crazy thing is that obviously the parking management will be paid via the management fee for the apartments.
    Unlikely that any fee is paid to UKCPM. The only way they feed is from penalties imposed on residents (and the odd fly-parker).
    The fact that I have commented on your thread does not mean I have become your personal adviser. A long list of subsequent questions addressed for my personal attention is unlikely to receive a reply.
    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • IamEmanresu
    • By IamEmanresu 3rd Jul 18, 10:17 AM
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    • 5,469 Thanks
    IamEmanresu
    How much time do you want to spend on this. For example with paras 1, 2, 5.1 you are identifying a breach of the Civil Procedure Rules and, if true, you want to draft up an order for the court to sanction them for such a breach.

    However you should invite the other party to rectify the breach so you could send them a letter and attach a copy to your defence to show you have invited them to sort it. If they don't, you can at the Allocation/DQ stage say that

    a) There is a breach of the CPR/PD
    b) They have been invited to sort it and haven't.
    c) They haven't applied for relief so you'd ask the court, based on the evidence, to strike the case out.

    Saves them, you and the court the hassle of 6 months faffing around with a case that has no merit.
    If you want to win - avoid losing first. Here are a few examples
    1. Failing to Acknowledge or Defend https://forums.moneysavingexpert.com/showthread.php?t=5760415
    2. Template defences that say nothing https://forums.moneysavingexpert.com/showthread.php?t=5818671&page=5#86
    3. Forgetting about the Witness Statement
    • Duns89
    • By Duns89 3rd Jul 18, 10:32 AM
    • 15 Posts
    • 5 Thanks
    Duns89
    However you should invite the other party to rectify the breach so you could send them a letter and attach a copy to your defence to show you have invited them to sort it. If they don't, you can at the Allocation/DQ stage say that
    Sounds sensible, I expect they don't really want to spend much time on this (and Gladstones are really slow at doing anything) and I would rather not spend too much time and the judge is probably bored of seeing these cases. How does that leave the claim form? I have till 13th July to submit (I've been away so only saw this recently and it is with the extension of time).

    Their particulars of claim basically say; 'The driver of the vehicle registration xxxxx, incurred the parking charge on xxxxxx for breaching the terms of parking on the land xxxxxx. The was defendant driving the vehicle and/or is the keeper of the vehicle. Then it states the fine and other costs.
    So I believe this is not to the CPR etc?
    • Coupon-mad
    • By Coupon-mad 4th Jul 18, 11:17 AM
    • 61,456 Posts
    • 74,330 Thanks
    Coupon-mad
    . Yes it is part of the lease. It clearly states we have ' the right to park one vehicle not exceeding two and one half tonnes gross unladen weight in the parking space'. This is highlighted on the conveyance plan within the lease so not a gift if I am understanding correctly?
    You are misunderstanding this, I think, from IamEmanresu:

    So you need to check if the place where you parked was within your brother's gift to offer you, or whether it was a communal area where is was within the gift of UKCPM to offer along with their terms.
    Google legal meaning gift which doesn't mean a present/gift.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • Duns89
    • By Duns89 10th Jul 18, 4:27 PM
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    • 5 Thanks
    Duns89
    So I've read regarding 'gift' found out a bit further and I'm slightly unsure.

    From my understanding of gift is that it is a transfer of property without compensation.

    - Our car park is owned by the freeholder of the land and a management company runs the land via the fees we pay.
    - Our management company have allowed for CPM who have since been removed from operation here to ticket the parking.
    - My brother owns the parking space within the lease as his boundary documents.
    - I park within the space with allowance from my brother.
    - The roads are in the ownership of freeholder but are run by the management company.

    From my understanding of this CPM do not have any real control over the area?

    Apology in the delay replying, I understand I am tying my hands with time a little here so further help would be very helpful.
    • Coupon-mad
    • By Coupon-mad 10th Jul 18, 6:59 PM
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    Coupon-mad
    - My brother owns the parking space within the lease as his boundary documents.
    - I park within the space with allowance from my brother.
    If he owns he space, why is he agreeing to a permit regime on his owned land? Makes no sense whatsoever and is fairly naive to accept a permit and risk of a fine when he is the owner of that space. Why should he? Answer - he shouldn't!

    The MA can (with agreement of the residents) allow a PPC to infest the common/shared outside area but not someone's owned space. He needs to inform the MA and the PPC, that his own parking space is not common land, and he has primacy of contract and has never agreed to the scum ex-clamper to set foot near cars in his owned bay and that any such conduct is trespass.

    You can get your brother to provide a WS in due course (and hopefully he can attend the hearing with you) confirming and showing proof that he owns the bay, and stating that he has never authorised the Claimant to operate a business on that land, nor does he require his visitors to display a permit, but if they choose to, he is happy that it is on a side window or back window, or not displayed at all because there is no relevant obligation to display anything on his land, and the PPC is trespassing.

    To find a defence example wording, try these keywords:

    defence landlord Tenant Act consensus derogation from grant

    also try:

    defence DJ Skelly Union Jack

    and use what you find, adapt it and show us your draft defence, like others here do.
    Last edited by Coupon-mad; 11-07-2018 at 11:01 PM.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
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    • Duns89
    • By Duns89 10th Jul 18, 10:13 PM
    • 15 Posts
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    Duns89
    OK.....Perfect thanks for the help!!!! I'll get right on it!!!!
    • Duns89
    • By Duns89 11th Jul 18, 9:55 PM
    • 15 Posts
    • 5 Thanks
    Duns89
    So I have put together my statement using bits through the forum as you have advised. My thoughts are that there is a lease which has no statement regarding the parking management and that the is a right to park with no restrictions. And obviously that the lease cannot be changed unless most of us were consulted which has not and the leases have not been changed physically. I think the 'wholly unreasonable and vexatious' is relevant also. I'm hoping this is not too much and throwing too many things. Maybe a judge would get bored with this and think it overkill?

    I don't provide any evidence at this point? This comes later with the witness statement from what I've read?

    Appreciate your help........Hopefully at the end of all this I can out something together for future reference....


    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 seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.

    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. The Defendant further notes the Claimant's failure to engage in pre-action correspondence in accordance with the pre-action protocol and with the express aim of avoiding contested litigation.

    Background
    3. It is admitted that at all material times the Defendant is the registered keeper of vehicle registration mark XXXX which is the subject of these proceedings. The vehicle is insured with XXXXX with 2 other named drivers permitted to use it.

    4. It is admitted that on XXXXXX the Defendant's vehicle at XXXXX where the defendant has been a resident since the building was completed for habitation.

    5. The Defendant is unable to identify the driver for the [date]. The Claimant is put to strict proof.
    5.1. 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")
    5.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
    5.2.1. there was a 'relevant obligation'; either by way of a breach of contract, trespass or other tort; and
    5.2.2. 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.
    5.3. 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.

    6) It is denied that any "parking charges or indemnity costs" (whatever they might be) as stated on the Particulars of claim are owed and any debt is denied in its entirety.

    7. The claimant has not provided enough details to file a full defence. In particular, the full details of the contract which it is alleged was broken have not been provided.
    The Claimant has disclosed no cause of action to give rise to any debt.

    Authority to Park and Primacy of Contract

    8. It is not admitted that the Claimant has contractual or other lawful authority to make contracts with residents at this location, and/or to bring proceedings against the Defendant. The Claimant is put to strict proof. Further, and in the alternative, the Defendant avers that the Claimant requires the permission of the owner of the relevant land - not merely another contractor or site agent not in possession - in order to commence proceedings.

    9. It is denied that the Defendant or lawful users of their 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.

    10. The Defendant avers that the operators signs cannot
    (i) override the existing rights enjoyed by residents or leaseholders 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.

    11. Accordingly it is denied that:
    11.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant
    11.2. there was any obligation (at all) to display a permit; and
    11.3. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for
    loss.

    12.1 The Defendant avers that there has been no variation of the resident's lease under the Landlord and Tenant Act 1987. The Defendant understands that for such a variation to have been agreed by the residents, 75% of the parties must have consented and not more than 10% must not have objected to any proposed material change (which this most certainly is).

    12.2 Due process has not been followed and the Claimant is put to strict proof, including proving delivery of the requisite notices and the consensus obtained for the introduction of this unwelcome nuisance. Onerous terms cannot be foisted upon residents merely by a third party putting some signs up and beginning a predatory charging regime - even with the authority of a site agent - since this would be a derogation from grant.

    12.3 The Defendant will provide a witness statement from the resident, confirming that the Defendant was authorised by the resident to park on site, was legitimately and properly parked in a visitors' bay and could not be described as ''unauthorised'' (i.e. a trespasser). In any case, a parking operator firm not in possession of the land, cannot recover such damages.

    12.4 In D7GF307F - UKCPM v Mr D - before Deputy District Judge Skelly on 1st February 2018 at Clerkenwell, a similar thin excuse of an argument from a private parking firm inflicting a nuisance on residents & visitors 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/visitor parking, effectively restricting and charging for a right previously enjoyed, without the required consensus and deed of variation. It would be like the agents suddenly stipulating that residents had to hang a Union Jack out of the window whenever they were at home; clearly unreasonable and not in the interests of the consumer.

    13. This Claimant permitted in a predatory parking regime targeting residents and their visitors and has unilaterally attempted to foist upon residents a change of rules, in complete disregard to any existing rights and grants; the Claimant being a stranger to the various residents' Agreements. No variation of residents' Agreements has taken place and any such variation would be solely a matter between the landowner and the resident, in any case.

    Alternative Defence - Failure to set out clearly parking terms

    14. 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.

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

    15.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;
    15.1.2. 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
    15.1.3. 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
    15.2. 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.

    16. 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.

    17. It is denied that the Claimant has any entitlement to the sums sought.

    18. 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.

    19. It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, the Defendant is keeping careful note of all wasted time/costs in dealing with this matter and should the case continue to trial (or in the event of the Claimant filing a Notice of Discontinuance) the Defendant will seek further costs, pursuant to Civil Procedure Rule 27.14(2)(g).

    20. How can there be a legitimate interest in penalising residents for using parking spaces, under the excuse of a scheme where ostensibly and as far as the landowner is concerned, the parking firm is contracted for the benefit of the residents. It is contrary to the requirement of good faith and of all proportion to any legitimate interest to fine residents for using the parking spaces provided.

    21. The presence of the Claimant on the land will have supposedly been to prevent parking by uninvited persons, for the benefit of the actual leaseholders. Instead, a predatory operation has been carried out on those very people whose interests the Claimant was purportedly there to uphold.

    22. The Defendant respectfully suggests that parking companies using the small claims track as a form of aggressive, automated monetary demands against motorists, alleging 'debts' for parking on free resident parking areas is not something the Courts should be seen to support.

    23. The Defendant denies the claim in its entirety, voiding any liability to the Claimant for all amounts due to the aforementioned reasons. The Defendant asks that the court gives consideration to exercise its discretion to order the case to be struck out under CPR Rule 3.4, for want of a detailed cause of action and/or for the claim having no realistic prospects of success.

    24. If the court is not minded to make such an order, then when Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because it is expected that the Claimant will use its witness statement to provide the sort of detail which should have been disclosed much earlier, and the Defendant should have the opportunity to consider it, prior to serving evidence and witness statements in support of this defence.

    STATEMENT OF TRUTH
    I confirm that the contents of this Defence are true.
    • Coupon-mad
    • By Coupon-mad 11th Jul 18, 10:10 PM
    • 61,456 Posts
    • 74,330 Thanks
    Coupon-mad
    #4 needs the words 'was parked' I think.

    Also, swap round your last 2 points and re-word to suit, like here where it ends by asking for a strike out for abuse of process, which might catch the Judge's eye:

    https://forums.moneysavingexpert.com/showthread.php?p=74503811#post74503811

    I don't provide any evidence at this point? This comes later with the witness statement from what I've read?
    That's correct.

    Your defence and your research & preparation looks very good!
    Last edited by Coupon-mad; 11-07-2018 at 11:34 PM.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

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