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Help please - Court Claim Form Recieved from Gladstones / UKCPM, PCN court claim
FlyingHorse
post Thu, 30 Nov 2017 - 19:17
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** UPDATED WITH FINAL SUBMITTED DEFENCE STATEMENT **

Hi All,

My situation is as follows:

19/10/16 The incident - M’s flat is a residential building. M and R arrived in a car (belonging to R) and parked in the car park which M has a permit to park in, where it was left for a maximum of 15 minutes whilst unloading.

28/12/16 first letter received from Debt Recovery Plus (DRP) – we moved house in August 2016, the first correspondence we received was from DRP at the end of December claiming a PCN had been sent to our old address from ‘UK Car Park Management Ltd’ and that they had used a ‘tracing service’ to find our new address, we therefore went straight to the ‘debt recovery’ stage and so were advised to ignored the letter. £149 claimed by DRP.

27/01/17 Next letter received from DRP – Letter received with a ‘reduced payment offer’ of £126.65. This letter states “refer to our letter dated 27/01/17” – which is the date of the letter it is written on! Clearly a problem with their mail merge program! Letter ignored.

31/01/17 Another letter from DRP – Duplicate letter received three days later still stating “refer to out letter dated 27/01/17”. Letter ignored.

30/03/17 First letter received from Gladstones Solicitors – More threats of court action. Letter ignored.

Letter Before Claim (LBC) received - LBC received week beginning 16/10/17 stating 30 days to reply (not sure of exact date received). Thinking we had this time, we left this aside as we were having extensive work done on our house and didn’t have the time to respond immediately. Charge increased to £160.

04/11/17 Court Claim Form received – approx. 2 weeks from receiving LBC, and on the day we said we would sit down to respond properly to the LBC (typical!), we received a court claim. We were surprised as we thought we had around 2 more weeks to respond, but after going back to check the LBC, we find it was dated 03/10/17 so looks as though it was backdated! I realise we should have checked this carefully in the first place but we were extremely busy at the time.

Court Claim = £160 + £25 court fee + £50 legal representative costs + interest.

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I have Acknowledged Service through MCOL and submitted a defence statement (see below).
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Things I am doing:

• M’s landlord will be providing the contract with the landlord and/or PCC so that terms of the lease RE: parking can be examined.

• I have checked M’s tenancy agreement for terms regarding parking. The only thing contained is:
4.6 Use of the Room and the Property and the Contents In this clause, obligations relating to the Room and the Room Contents are the Tenant’s sole responsibility. Obligations relating to the shared areas of the Property and the Property Contents are the Tenant’s joint responsibility, together with the other occupiers (see also clause 3.3). The Tenant will:

q. show proper consideration for others in the neighbourhood and, if keeping a car at the Property, not park so as to cause a nuisance or obstruction, or sound the car’s horn without due course, or rev the engine or slam the doors late at night;

• I have taken photographs / videos of signage at the car park.




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Notes:

• The signage is very poor. Font sizes very small. The charge stated is £100, yet the first letter we received states £149.

• There are other signs from a totally different company (W.Y.C.S Parking Services) placed adjacent to the UKCPM ones, which totally conflict with the ones from UKCPM. Highly confusing to say the least. How can one be expected to comply with terms from two separate companies?

• No PCN was ever received, we went straight to debt recovery stage and no evidence has been presented to us.

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Defence Statement

1. The Defendant denies that the Claimant is entitled to relief claimed in the sum of £XXX, or at all, for the reasons stated in the following paragraphs.

2. It is admitted that the Defendant is/was the Registered Keeper of the vehicle in question on the material date. The Defendant was, at the material time, accompanied by the tenant of a property at the location at that time.

3. On the material date, the Defendant and another party stopped the vehicle at a convenient point close to the entrance of the building, for the purposes of loading and unloading.

4. On any reasonable construction, this action did not constitute 'parking'. In any event, it would be an implied term of the tenancy agreement that tenants should be able to park near the entrance temporarily, in order to transfer heavy or bulky items from the vehicle to the property, or vice versa.

5. The Assured Shorthold Tenancy Agreement is the legal basis upon which the Tenant occupied the property. On the subject of parking, it states "...if keeping a car at the Property, not park so as to cause a nuisance or obstruction, or sound the car’s horn without due course, or rev the engine or slam the doors late at night...". The agreement does not specify any other conditions of parking, and the Defendant relies upon the Tenant's delegated authority under this contract as having primacy of contract over any purported contractual terms asserted by the Claimant's signage.

6. It is, therefore, denied that the Defendant was under any obligation to display a permit at any time, or to pay penalties to a third party (the Claimant) for non-display of same. There are a number of authorities which support this position.

7. The Defendant has no knowledge of whether there is any contractual arrangement between the Claimant and the owner or occupier of the land in question, or, if such a contractual arrangement exists, what the terms of that arrangement are. The Claimant is therefore required to prove that it has the necessary standing to bring this claim.

8. It is denied that a contract was formed between the Claimant and the Defendant. This is because no offer was communicated by the Claimant, effectively or at all, that was capable of acceptance by the Defendant, expressly, by conduct, or at all.

9. The Claimant’s signs are positioned adjacent to signs from a separate company (‘XXXX’) claiming management of the car park. A driver could not reasonably be expected to comply with different terms of parking claimed by two separate companies on the same land, and the principle of contra proferentem would mean that such ambiguity should be resolved in the Defendant's favour.

10. It is denied that the Claimant is entitled to the sum claimed. If, which is denied, a contract was in place between the Claimant and the Defendant and the Defendant breached a term of that contract it is denied that the Claimant's losses amount to the sum claimed. Alternatively, if, which is denied, a contract was in place between the Claimant and the Defendant under which the Defendant is liable to pay the sum claimed to the Claimant it is denied that the sum due under the contract is the sum claimed.

11. The Claimant has not complied with the relevant Pre-Action Protocol. The Defendant has not had the opportunity to comply.

12. 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.

I believe that the facts stated in this Defence are true.

This post has been edited by FlyingHorse: Tue, 5 Dec 2017 - 10:04
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post Thu, 30 Nov 2017 - 19:17
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southpaw82
post Mon, 4 Dec 2017 - 10:32
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QUOTE (nosferatu1001 @ Mon, 4 Dec 2017 - 09:47) *
emanresu - if the rental agreement states you can park, you can park.

The superior tenant can't grant an underlease granting rights they don't have in their headlease. Thus, if there's no grant of parking rights in the headlease I don't see how they can be created in an underlease. It would be a breach of warranty on the part of the superior tenant as against the under tenant.

Whether a restriction in the headlease is incorporated by implication into the underlease is a matter of construction. If it's not then it will be a matter between the freeholder and the superior tenant and whatever third parties such as management companies are joined in the lease.


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emanresu
post Mon, 4 Dec 2017 - 10:46
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QUOTE
if the rental agreement states you can park, you can park


(Nosf not Southpaw )While not wishing to curb your enthusiasm to give an opinion, could I suggest you get a copy of the transcript of Link v Blaney and look at paragraph 22. You might then want to suggest why the DJ Pratt was incorrect.

In the Blaney case it was the tenants that parked. The OP in this case is one more step removed from the grantor so it bares checking. The other item of note in Blaney was the defendant was represented by an experienced Lay Rep. The OP in this case may not be.

This post has been edited by emanresu: Mon, 4 Dec 2017 - 10:47
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nosferatu1001
post Mon, 4 Dec 2017 - 11:51
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Surely this is a matter of contract - you are entitled to rely upon the written information given by the landlord. ANy "breach" of the lease would be a matter for the lessor to deal with, not a PPC.
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southpaw82
post Mon, 4 Dec 2017 - 12:04
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QUOTE (nosferatu1001 @ Mon, 4 Dec 2017 - 11:51) *
Surely this is a matter of contract - you are entitled to rely upon the written information given by the landlord. ANy "breach" of the lease would be a matter for the lessor to deal with, not a PPC.

That rather depends on whether, and how, the PPC has been joined to the contract. The one I've most frequently seen is

1. The lease includes a covenant to comply with reasonable rules regarding the common areas and/or parking places

2. The management company is joined to the lease to act on behalf of the lessor

3. The management company on behalf of the lessor introduces the rules

4. A PPC is appointed by the management company to act as their agent to enforce the rules

A sub-tenant cannot exercise rights greater than those that could lawfully be granted by the tenant. If he tries to he can be restrained by an injunction. He would have a claim against the tenant for breach of contract for promising something he couldn't deliver.


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nosferatu1001
post Mon, 4 Dec 2017 - 12:29
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Against the landlord I would presume?
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southpaw82
post Mon, 4 Dec 2017 - 12:39
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QUOTE (nosferatu1001 @ Mon, 4 Dec 2017 - 12:29) *
Against the landlord I would presume?

Sorry?


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nosferatu1001
post Mon, 4 Dec 2017 - 12:44
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QUOTE
He would have a claim against the tenant for breach of contract for promising something he couldn't deliver.

I should have quoted before - underline is where I presume the landlord / etc should be stated.
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emanresu
post Mon, 4 Dec 2017 - 13:06
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The tenant in this case is the landlord using the accepted vernacular. The OP/tenant is a sub-tenant again using the the accepted vernacular.

The reason for raising the issue is not that you are not correct or maybe not correct that "parking" is part of the rental. The point is that where it is a residential case, the chain of authority on the defendant side is important. It isn't part of Beavis as there was no chain on Beavis's side but there is in residential cases. In addition, timings of the contract are important too (Noor) and the activity (Jopson).

So it's a heads-up to check with residential cases.
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FlyingHorse
post Mon, 4 Dec 2017 - 13:38
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My wife has now signed the statement and I have scanned it in ready to be submitted. The points raised above are all interesting and will definitely help as the case progresses, but do I need to make any alterations to the statement based on these points before I submit it?
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southpaw82
post Mon, 4 Dec 2017 - 13:55
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QUOTE (nosferatu1001 @ Mon, 4 Dec 2017 - 12:44) *
QUOTE
He would have a claim against the tenant for breach of contract for promising something he couldn't deliver.

I should have quoted before - underline is where I presume the landlord / etc should be stated.

Landlord > tenant > sub-tenant. I'm keeping the terminology the same throughout otherwise you end up with two landlords.


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FlyingHorse
post Mon, 4 Dec 2017 - 14:17
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Does anyone know which email address I need to send the statement to?

Claim responses & directions: ccbcaq@hmcts.gsi.gov.uk

or

County Court Business Centre (CCBC): ccbc@hmcts.gsi.gov.uk
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nosferatu1001
post Mon, 4 Dec 2017 - 16:02
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Perfect, thanks for the clarification SOuthpaw and Emanresu smile.gif

CCBCAQ address.
Check it has been recieved properly the day after you send it, and is should show on MCOL as well.

You need to read up on the next steps as well.
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FlyingHorse
post Tue, 5 Dec 2017 - 10:05
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We have now submitted the Defence Statement and I have updated the OP.

Thanks again for all your help everybody, it is very much appreciated!

I will keep you updated of developments as and when they occur.
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nosferatu1001
post Tue, 5 Dec 2017 - 10:15
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Read up on your next steps *now*, so you know what to expect and what ot look out for!
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FlyingHorse
post Fri, 29 Dec 2017 - 10:01
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Hi all,

I have received a Directions Questionnaire (form N180).

The advise on the MSE forum for filling this in is:

4. After sending off your Defence, the Northampton Business centre will send a copy to the Claimant, and then send a Directions Questionnaire (form N180) to both Claimant and Defendant. You must complete this by the date given, and send it back to Northampton, with a copy to the other side (or their solicitors if they've nominated one as the address for service). The recommended answers to the questions are as follows:
A1 = NO to mediation (they want the whole amount, you want to pay them nothing, so no scope for mediation. This will not go against you)
B = fill in all the details, name, address, etc
C1 = YES to small claims track – this is the limited costs track for claims up to £10,000 in value
D1 = name of your local County Court – unless you are a Ltd company, the case files will be transferred there
D2 = NO to expert evidence (this relates to medical negligence cases and suchlike)
D3 = 1 witness (that’s you) (or more if you are going to get another person to provide a statement)
D4 = Put down the dates of any pre-booked holidays, NO to interpreter (unless you need one).
Note: Gladstones are currently including a 'request for special directions' asking the Court to hear the case on the papers only, without an oral hearing. You should oppose this, and include the following text in D1: “The Defendant opposes the Claimant’s request for special directions, and requests that the case be listed for an oral hearing at the defendant’s home court, pursuant to CPR 26.2A(3)”.

Does anyone have any further advise for filling in this form?

Thanks.
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nosferatu1001
post Fri, 29 Dec 2017 - 10:28
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No, because it’s a dead simple form.
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FlyingHorse
post Fri, 29 Dec 2017 - 10:53
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OK, thanks. The form is indeed simple but just wanted to check so I don't miss anything.
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FlyingHorse
post Fri, 29 Dec 2017 - 11:14
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I've just noticed that the letter i received from Gladstones Solicitors states 'please find enclosed a copy of our clients completed Directions Questionnaire, which will be filed with the court upon their request'.

However, this form included with the letter was blank, and I've just filled it in with the same text I've filled the form in that came from the court. I thought this was the copy I was supposed to fill in and send back to Gladstones!

Should this form have been blank? Surely they should have filled this in? Have I just cocked up by filling it in myself?
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ostell
post Fri, 29 Dec 2017 - 11:21
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The form should not have been blank, it should contain what Gladstones have submitted to court. With their usual excellent efficiency the office walla has again put in a blank form (not the first time). When you send in your DQ then complain to the court about Gladstones not providing a copy of their DQ.

This post has been edited by ostell: Fri, 29 Dec 2017 - 11:21
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nosferatu1001
post Fri, 29 Dec 2017 - 11:21
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Do NOT fill out anything sent by the claimant. It’s probably the usual n159 request for paper hearing gs often send. You instead complain to the court that YET AGAIN gs haven’t bothered to complete their DQ copy - you’ll see this in manynthreads which I hope you are reading! - and tell GS to send you a completed copy. Don’t ask, tell.

Anything about a special request?
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