Help please - Court Claim Form Recieved from Gladstones / UKCPM, PCN court claim Options

[FlyingHorse]

** 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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[FlyingHorse]

Your skeleton arguments are far, far too long, particularly for something produced at the hearing itself. You run the risk of simply annoying the judge

If you believe in A and B, then I would suggest that you get rid of the rest, but also make A and B much shorter.

On the subject of costs, given that you ignored everything until you received the claim, I do not believe that you will be awarded anything other than costs for loss of earnings and travelling expenses. Although I completely understand that you may feel that the parking company's behaviour has been entirely unreasonable, I think the judge is likely to take the view that they are simply trying to recover parking charges to which they believe they are entitled and will not see anything unreasonable about that.

It may have been viewed in a different light by the judge if you had pointed out the flaws in the parking company's scheme at a much earlier stage.

I submitted the SA yesterday so there has been a few days for the judge to review it.

You may be right about costs, but there does seem to be a difference of opinion on this so will just have to wait and see I guess.

[Eljayjay]

I do, of course, wish you every success with all aspects of your case in court.

[nosferatu1001]

Don't ask don't get
Submit your costs schedule three days before
A judge won't be reading you SA until the day, as usual.

[FlyingHorse]

Court Report:

R, M and me (T) arrived 30 minutes before the hearing, suited and booted, and after passing through security, checked the county court listings to see what room we had been assigned to. (a quick note: forks and torches are not allowed in court!). There were 3 other parking cases being heard that day, one at the same time as us. We went to the reception desk and signed in. The claimant had not arrived yet, so we went and took a seat and kept a close eye on the door for anyone that might be the opponent. Looking around the waiting room, we noticed that most defendants had turned up in casual clothing which surprised me.

Our case was being heard at 2pm and had been block booked with another parking case. 2pm came around and the Claimant still hadn’t turned up. The other parking case got called in first so we had to wait another 30 minutes or so before we were called.

Lo and behold, when our case was called, no representative for the claimant had shown up. We were shown to the court room, got a friendly welcome from the judge and took our seats. The room was fairly small, more like an office with a large desk with the Judge at one side and us at the other.

The judge began by asking who we were, apologising for the wait. He then commented that the claimant had asked for the judge to represent them, which had baffled him, and commented that he assumed this meant they wanted the case to be heard on papers, which had already been denied by us and of course a court date had been set so they should have turned up!

He then commented that it was rare that he has seen such a well presented and thorough defence and that it was somewhat daunting the amount of case law I had compiled. I jokingly apologised for this and he replied that there was no need to apologise and that he was impressed! He continued to compliment me throughout the hearing

He then summarised what he thought were the events in the case and got us to confirm that he had got the gist of it correct (which he had). He then summarised our main argument, that the tenancy agreement and lease agreement gave unfettered rights to park and allowed M to give R the right to park as a visitor. He asked a few clarifying questions to M regarding whether a permit had ever been required or issued (which it hadn’t).

The judge then read out some of the Claimant’s witness statement. He noted that the language used in the WS was confusing and didn’t make a lot of sense. He also read out certain parts, for example where it said that “without concession the Defendant has failed to prove otherwise” when we clearly had proved that we had rights to park and the evidence was straight forward and clear.

He then moved on to judgement.

I have to say, I was pretty surprised by just how scathing he was towards UKCPM and Gladstones. I didn’t note everything that he said but some of the phrases I noted down were that UKCPM had “spectacularly failed” no prove we had done anything wrong or they had standing to issue the charge. He also commented that this was not the first time that a parking company had attempted to sue based on no evidence and would not be the last. He said that the Claimant had not stopped to consider any of our valid defences and commented that the Claimants case was “completely and wholly flawed” and that the documents presented were “lazy and sloppy”. He then dismissed the case. We won!

He then moved on to the issue of costs. He stated that usually the court can only award costs from appearing at court (i.e. lost pay and travel expenses) and that he would award these unless we had any requests for further costs if we thought the Claimant had acted unreasonably. I then cracked out the application for costs, which he hadn’t yet seen (although he had seen we had sent one in). He took a look through it, then looked though the costs schedule and asked how I had calculated the rate (the response was a simple “it’s the litigant in person rate” – I think he was just testing me here). He then asked If there were any other costs we think he should consider. I mentioned that we had needed childcare for the day. He reserved any opinion on this and instead moved on to clear up what costs we were asking for for the day in court.

He then moved on to judgement regarding the costs order, he started by explaining that under normal circumstances the court cannot award costs as the purpose is not to be punitive against claimants. As he was doing this, I really thought he was about to dismiss it, but then he said that this circumstance was one of those rare ones where the claimant (and Gladstone's who should have known better) has acted so unreasonably that he was minded to award our costs! Buzzing! He commented that he thought my costs schedule was a little excessive in terms of time spent - this irked me a little bit as I had actually underestimated the time I had spent on this! But then again, I didn’t really need to go into the amount of detail I did in the end ((this is just in my nature though and the judge did state earlier that it is better to be overprepared than underprepared) hence why I under quoted my time in the first place. He apologised that he couldn’t award childcare costs. But he decided to award us £400 costs plus our costs for the day in court so a grand total of about £550!

Some notes:

I was surprised by how casual the whole experience was. I expected things to be a lot more formal. The judge was really friendly and really helped relax us. Perhaps this was because the claimant hadn’t turned up so it wasn’t adversarial. He was also very reasonable. In hindsight, I really should have been more confident in just how strong the first issue of our case was (re: tenancy and lease) as this really was the clincher and the majority of what I had submitted just wasn’t required.

A big, BIG thank you to all of you who gave advice, tips and pointers. I couldn’t have done it without the help of both this forum and MSE. I will try to return the favour by helping others on the forum using my experience.

This post has been edited by FlyingHorse: Fri, 29 Jun 2018 - 17:42

[Eljayjay]

Well done!

I bet you feel good. If you don’t, you should.

[Redivi]

Excellent

Judges like defendants that are organised, respectful and put a lot of effort into the case

Not the first judge to comment on Gladstones sloppy witness statements

This post has been edited by Redivi: Fri, 29 Jun 2018 - 18:13

[Umkomaas]

Not the first judge to comment on Gladstones sloppy witness statements

Pity the SRA aren't taking a more serious interest in this - they've fobbed off enough complaints!

[publicenemyno1]

Nice one, and well done OP.

Like me, when I first had to go to CC as a mere teenager I knew it wasn't going to be like something out of Rumpole, but still,
for some reason, expected a massive chamber complete with various court persons milling around. However, I soon realised the
location was not going to be the grand court like building that was the magistrates', but an old 1950s MoD office block at which time the 5th floor
was the County Court. No lift, no toilets, waiting area the size of a postage stamp, I bet it isn't there now for disability reasons alone.

So, it's understandable that most people find the whole 'judge in a room' setup a comforting surprise.

Don't hang around to collect the money OP, after all, they didn't.

[Redivi]

Supported a mate in court

He liked the attractive judge so much that he was about to ask her out after he finished with the court office
Changed his mind when I pointed out that she was heading for the expensive jewellers next door

[Umkomaas]

Changed his mind when I pointed out that she was heading for the expensive jewellers next door

Even better than chucking a bucket of cold water over him! Quality.

[Jlc]

He then commented that the claimant had asked for the judge to represent them, which had baffled him...

OMG...

[ManxRed]

Well done to the OP. Brilliant.

[ostell]

Let us know when they pay or you have to send the bailiffs in. Shame you didn't get it to the £600 to get the high court lot involved.

[nosferatu1001]

Well done!

If they don't pay in time, get the court to issue an order. Pretty sure that WILL tip it over £600, meaning next failure and HCEO it is...