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FightBack Forums _ Private Parking Tickets & Clamping _ Multiple PCNs for parking in flat car park

Posted by: HenryHippo Sun, 2 Jul 2017 - 19:58
Post #1297124

At the end of 2016 the block of flats I live in introduced parking permits and PCNs.

I didn't actually get a permit through the post, but most people did in the block. Consequently the car I own which was parked in the car park had 7 PCNs within a 4 week period and the total invoice is £1,160

I ignored the letters that came in the post, but now they have sent me the attached letters for a not insubstantial amount

Does the fact that I didn't get a permit through the post before they enforced the tickets count as a defence? Eventually they sent me one by recorded delivery at which point I had had several tickets.

Quite miffed to be PCNd in my own home.







Posted by: SchoolRunMum Sun, 2 Jul 2017 - 21:29
Post #1297153

PLEASE be more than 'quite miffed'. This is an utterly deplorable scam against residents. We see this all the time. Did any of the residents even pick up a Googling finger before this was imposed on you all, and actually see who the Managing Agents have let loose among your cars?

http://forums.pepipoo.com/index.php?showtopic=63597

http://www.mirror.co.uk/news/uk-news/parking-company-workers-doctored-photos-6420974

And did you all realise you do not need this rubbish, do not have to display any permits at all and quite likely have rights to park already? They can't change that, the MA can't take it away or insist on permits or introduce new terms that are not in your lease/tenancy agreements.

Read this:

http://parking-prankster.blogspot.co.uk/2016/11/residential-parking.html

And read the links in Lynnzer's signature on his posts on this very forum, showing you how to fight back. Stop being 'quite miffed'! You don't seem to realise that you and your legit visitors, friends & relatives will ALL continue to get fake PCNs from this ex-clamper bunch of shysters, for all the time they are allowed to infest your land. Get angry.

This approach worked on MSE:

http://forums.moneysavingexpert.com/showthread.php?t=5588292

You need to act quickly and assertively or you WILL get a court claim later this month - best to get them cancelled before that, although it is defendable.


QUOTE
I didn't actually get a permit through the post, but most people did in the block. Consequently the car I own which was parked in the car park had 7 PCNs within a 4 week period and the total invoice is £1,160.

Does the fact that I didn't get a permit through the post before they enforced the tickets count as a defence? Eventually they sent me one by recorded delivery at which point I had had several tickets.


Of course.

Something like this would form that part of a detailed defence talking about derogation from grant and referencing YOUR rights, your primacy of contract:

QUOTE
As the resident had not been formally issued with a car parking permit in a timely fashion, the consequence of this is that any contract requiring display of a permit is null and void due to impossibility.


You should not be bowing to this predatory regime at all, read up on it:

http://forums.pepipoo.com/index.php?showtopic=100916

http://forums.pepipoo.com/index.php?showtopic=105050 (read all pages as it continues over a year, still ongoing)

http://forums.pepipoo.com/index.php?showtopic=110213

http://forums.pepipoo.com/index.php?showtopic=113572





Posted by: ostell Sun, 2 Jul 2017 - 21:31
Post #1297154

http://parking-prankster.blogspot.co.uk/2016/11/residential-parking.html and then get out your lease and see what it says about parking and whether you have to display a permit or pay a charge. Your lease takes precedence.

A photo of the signs would help.

Posted by: nosferatu1001 Mon, 3 Jul 2017 - 09:23
Post #1297232

Show us your lease and what it says about right to apark / use communal spaces / etc.
lease or TA or whatever, dont care about the name. Just show us it

You MUST respond to that Letter Before Action and you only have a couple days to do so. So post those up anbd get drafting a FIRM response teloling them you did not agree to the permit system, you alrady have the right to park, and therefore no consideration can flow from their client to you.
Furhter interference with your rights under your lease / AST / etc including raising a claim wil lbe met with a counter claim for interference and a breach of the DPA, as they had no cause to access your details.

Posted by: HenryHippo Mon, 3 Jul 2017 - 16:12
Post #1297352

Thanks everyone and SchoolRunMum as always

Been through my lease for anything to do with parking. The below does mention an "Allocated Parking Space" but this has never been the case. We were issued with permits and able to park where we pleased.



"Allocated Parking Space: The parking space shown on the Plan 1 being part of the Parking Spaces and numbered with the same plot number as the Demised Premises or such other parking space as the lessor may allocate from time to time if it becomes reasonably necessary to do so"

Rights Included in the demise

6) The right to exclusive use of the Allocated Parking Space for the purpose of parking a private motor vehicle not exceeding three tonnes in laden weight"



2) Not to use the Allocated Parking Space for any purpose other than the purpose of parking a private motor vechile not exceeeding three tonnes in gross laden weight of motor cycle thereon and not to park or allowe to be parked any motor vehicle weheeled vehicle or other form of trasnport on any other part of the Estate save as may be permitted under the terms of the rights granted elsewhere in this Lease




Posted by: HenryHippo Mon, 3 Jul 2017 - 18:07
Post #1297367

Be great if I could get feedback tonight, hoping to do a response tonight and post / email in the morning

Posted by: Lynnzer Mon, 3 Jul 2017 - 18:14
Post #1297369

QUOTE (HenryHippo @ Mon, 3 Jul 2017 - 19:07) *
Be great if I could get feedback tonight, hoping to do a response tonight and post / email in the morning

My first template letter to both the Managing Agent and UKPC Ltd copied to SCS Law.
Nothing more than that at present then when they don't respond suitably you can hit them for more than they're claiming from you as either a counter-claim or separate claims.

Amend my letter to suit the circumstances and post here for appraisal first
I see a very big KERCHING coming your way. £££££££££££££££

Posted by: cabbyman Mon, 3 Jul 2017 - 18:33
Post #1297374

The extracts you have posted above give you exclusive rights to your parking space as part of your lease. They are trespassing on both your land and your vehicle. As your lease doesn't require it, there is no way you need to display a permit until your current lease is determined and a new one executed.

As Lynnzer says: Kerching time is approaching!

Posted by: HenryHippo Mon, 3 Jul 2017 - 19:47
Post #1297393

QUOTE (Lynnzer @ Mon, 3 Jul 2017 - 19:14) *
QUOTE (HenryHippo @ Mon, 3 Jul 2017 - 19:07) *
Be great if I could get feedback tonight, hoping to do a response tonight and post / email in the morning

My first template letter to both the Managing Agent and UKPC Ltd copied to SCS Law.
Nothing more than that at present then when they don't respond suitably you can hit them for more than they're claiming from you as either a counter-claim or separate claims.

Amend my letter to suit the circumstances and post here for appraisal first
I see a very big KERCHING coming your way. £££££££££££££££



QUOTE (cabbyman @ Mon, 3 Jul 2017 - 19:33) *
The extracts you have posted above give you exclusive rights to your parking space as part of your lease. They are trespassing on both your land and your vehicle. As your lease doesn't require it, there is no way you need to display a permit until your current lease is determined and a new one executed.

As Lynnzer says: Kerching time is approaching!


Bloody Nora, pay day for me

Although as with my other thread, any monies will go to charity

Posted by: HenryHippo Mon, 3 Jul 2017 - 20:02
Post #1297397

Went for £1,500 trespass claim and £500 for unlawful use of my data. Any critic welcome

Dear Sirs,
I refer to PCN ******* Insert all of the numbers Letter before action, re PCN ******

The above Notice to Keeper has been served on me as the registered keeper of vehicle Reg. ****** Your PCN draws to my attention that you are using my allocated car parking areas for your own business purposes. My lease allows unfettered occupational rights to the parking areas, which means you are operating a predatory business on land which you have no overriding rights in.
Your involvement on this land will have supposedly been to prevent parking by uninvited persons, for the benefit of the actual leaseholders and their invited guests. Instead you carry out a predatory operation on those very people whose interests you are purportedly there to uphold.
In any case, my lease in respect of the common areas of the grounds and my designated parking area places no restrictions on the parking facilities such as those you have tried to imply, let alone a penalty regime for an alleged contractual offer to use my own allocated parking area I already have such rights or to place restrictions on visiting guests. You cannot offer me something I already have, and I am not obliged to accept an offer in such circumstances.
My lease remains the same as when it was originally agreed as part of my residential rights. There are no restrictions on parking within it and I believe you are acting unlawfully by attempting to take legal action when I have an absolute right of peaceful enjoyment on the land including allowing my guests free use of it.
If you feel that you have been misled by the Managing Agents insofar as they have contracted with you to operate here, then that is something you must take up with them directly. It is of little interest to me as I have unequivocal unfettered right of peaceful enjoyment on the land.
I draw you attention to the case of Jopson v Homeguard , case 2906J in Oxford County Court where the appeal heard by his honour Judge Harris QC. This was an appeal against a previous hearing which was awarded in favour of Homeguard, in similar circumstances as those addressed in my dispute with you. The Judge allowed the appeal in favour of Mrs Jopson. I also draw your attention to PACE v Mr (N Redacted), case C6GF14F0 in Croydon county court where the case was heard by District Judge Coonan. In summing up he stated " I have before me a tenancy agreement which gives Mr [N. redacted] the right to park on the estate and it does not say “on condition that you display a permit”. It does not say that, so he has that right. What Pace Recovery is seeking to do is, unilaterally outside the contract, restrict that right to only when a permit is displayed. Pace Recovery cannot do that."
As you have seen fit to attempt to charge me the sum of £1,160 as a legitimate amount for the use of my own leaseholder rights to the areas of the property, I hereby claim an amount of £1,500 for damages for the tort of trespass and tortious interference of my leaseholder rights, occasioned by the attempt to restrict my rightful use of the designated area.
Additional matters
You have obtained my details from the DVLA when you have no right to do so.
I am of the opinion that you don't care if you have rights and perhaps rely on your victims believing that some contract with the Managing Agent of the premises or even the landowner, allows you to apply parking terms on the car parking spaces at the premises. This is a mistaken assumption, as you will know anyway.
I am a resident at the premises to which the parking is attached as a lease and which allows unfettered rights to the use of the communal areas and parking facilities.
You have a duty of care to comply with the necessary Code of Practice of your Accredited Trade Association, the International Parking Community. The requirements laid out in the Code of practice make it clear that you must only operate on land where you have the landholder’s permission. You have failed in that duty.
Your involvement in your supposed parking management arrangements place on you an obligation to ensure that proper consideration is given to all the facts. Lax contractual assessment is not an excuse for a derogation of your duty. A breach of the Data Protect Act is a matter of fact. You have either breached it or you haven't. Whatever excuse you present for the breach does not excuse it in any way as you are under the requirement to show due diligence and a duty of care to ensure that personal details are obtained lawfully and then used lawfully from then on.
You will know that as this is a residential location the residents will have some sort of property rights, either by way of a lease or as a freehold resident with attached easements. It is incumbent upon you to consider the resident's rights in respect of the use of parking spaces. If you contracted with the managing agents to “control” the parking facilities they have misdirected you, although it is common knowledge that they often get a kick-back in commission for allowing predatory parking companies to take control of land. They have no other real interest otherwise.
If it was the landowner who contracted with you then the same applies. A landowner cannot restrict a privilege within an agreed covenant and it is your responsibility to ask the right questions and ensure that the operation of parking control is lawful.
I draw your attention to the case of Saeed v Plustrade Ltd [2001] EWCA Civ 2011 (20th December, 2001) heard at the Royal Courts of Justice by LORD JUSTICE AULD, LORD JUSTICE ROBERT WALKER and SIR CHRISTOPHER SLADE where they found that a landlord cannot take away something given within a lease, specifically a derogation of parking rights already afforded within a lease.
However you look at this, as I have an absolute right to use of the parking facilities without any intervention from you or anyone else, a breach of the Data Protection Act HAS occurred as you had no reasonable cause to apply for and use my personal details from the DVLA. I am therefore submitting a complaint to both the DVLA and the Information Commissioner’s Office about your misuse of personal data.
I draw your attention to the case of Lireza Ittihadieh v 5-11 Ceyne Gardens RTM Company Ltd & others at http://www.bailii.org/ew/cases/EWCA/Civ/2017/121.html which makes it clear that once data has been accessed for personal use then you become the Data Controller, something which the DVLA KADOE Contract also makes clear.
I now make a claim against you for punitive damages to the extent of £1,500 for the wrongful application for, and subsequent misuse of my information from the DVLA. This is a serious matter and one which is both stressful and degrading. It impinges on my rights as a freehold resident, has caused some considerable anxiety and distress and to top it all off, you are now warning me of a claim being likely in a country court for the sum of money you deem you are entitled to. This is an atrocious situation without any merit at all, and I believe may also be a fraudulent action under the auspices of the Fraud Act 2006 for Fraud by false representation which is a criminal offence that carries a sentence of up to 12 months imprisonment on summary conviction.
BE AWARE that this matter is now in your knowledge. An excuse of not knowing a criminal act had occurred due to the ill-constructed contract you have to “manage” the parking, now has no merit. I will ensure that anyone else within the residential complex whom is being targeted by you from now on will be made full aware of your illegal activity and I will also be considering legal action against you for fraud myself anyway. I will first see how you handle this claim before I make a complaint to the police.
I now claim the amount of £1,500 for your trespass against my covenanted rights.
An additional amount of £500 for the damages is also claimed for wrongful application of, and misuse of the data from the DVLA. This is already adjudicated on as being reasonable as evidenced by the case of Halliday v Creation Consumer Finance Ltd [2013] All ER (D) 199
The total amount claimed is therefore £2,000
To prevent this matter being taken to court I require payment within 14 working days from 2 days of the date of this letter. Failure of this will result in a court claim being instigated and consequential separate costs being added for the added expense. I have made it known already that I will also considering a police complaint for the fraud dependant on the response to this claim.
Yours sincerely

Posted by: Jlc Mon, 3 Jul 2017 - 20:05
Post #1297399

The Police won't be interested in a 'civil' matter. Drop the references.

Posted by: HenryHippo Mon, 3 Jul 2017 - 21:05
Post #1297407

QUOTE (Jlc @ Mon, 3 Jul 2017 - 21:05) *
The Police won't be interested in a 'civil' matter. Drop the references.


I'm quoting Lynnzer's template, which as far as I know is a near identical case to mine

Posted by: HenryHippo Tue, 4 Jul 2017 - 08:33
Post #1297450

Anyone ?

Posted by: Lynnzer Tue, 4 Jul 2017 - 08:56
Post #1297457

QUOTE (HenryHippo @ Tue, 4 Jul 2017 - 09:33) *
Anyone ?

The police matter is, as mentioned, unlikely to sway anyone but it adds a threat of another level of action that may just shake them out of their tree.
You can leave it or remove it. It won't make a lot of difference either way but send the letters by first class post with a proof of posting certificate and perhaps back that up by an email. When I say "letters", I mean the one to the managing agents as well for tortious interference. Another template in my link for that.

There's https://parking-prankster.blogspot.com/2017/07/millennium-door-and-security-group-lose.html?showComment=1499158228317#c5005330530716309875 reported in Swansea.

Posted by: HenryHippo Tue, 4 Jul 2017 - 09:03
Post #1297459

QUOTE (Lynnzer @ Tue, 4 Jul 2017 - 09:56) *
QUOTE (HenryHippo @ Tue, 4 Jul 2017 - 09:33) *
Anyone ?

The police matter is, as mentioned, unlikely to sway anyone but it adds a threat of another level of action that may just shake them out of their tree.
You can leave it or remove it. It won't make a lot of difference either way but send the letters by first class post with a proof of posting certificate and perhaps back that up by an email. When I say "letters", I mean the one to the managing agents as well for tortious interference. Another template in my link for that.

There's https://parking-prankster.blogspot.com/2017/07/millennium-door-and-security-group-lose.html?showComment=1499158228317#c5005330530716309875 reported in Swansea.


Thanks.

So the goal is to send this letter to the other party's solicitors in the aim of making them drop the case? Although admittedly that isn't what I want if I am likely to get a big payout. So perhaps from that point of view I am better off not responding and letting them take this to court?

Will get this letter out the way first before the managing agent letter

Posted by: HenryHippo Tue, 4 Jul 2017 - 09:52
Post #1297474

QUOTE (Lynnzer @ Tue, 4 Jul 2017 - 09:56) *
QUOTE (HenryHippo @ Tue, 4 Jul 2017 - 09:33) *
Anyone ?

The police matter is, as mentioned, unlikely to sway anyone but it adds a threat of another level of action that may just shake them out of their tree.
You can leave it or remove it. It won't make a lot of difference either way but send the letters by first class post with a proof of posting certificate and perhaps back that up by an email. When I say "letters", I mean the one to the managing agents as well for tortious interference. Another template in my link for that.

There's https://parking-prankster.blogspot.com/2017/07/millennium-door-and-security-group-lose.html?showComment=1499158228317#c5005330530716309875 reported in Swansea.


Oh and do you think my £1,500 + £500 amount is reasonable?

Or should I multiple by 6 given there are 6 PCNs ?

Posted by: nosferatu1001 Tue, 4 Jul 2017 - 11:45
Post #1297517

You msut respond. Thats why we said you must respond. Failing to respond is unreasonable, and can leave you on the hook fpor their costs regardless of whether you win or not.

" The below does mention an "Allocated Parking Space" but this has never been the case"

What in hell does htis mean? Do you have an allocated space as noted on the lease? Simple yes or no. I dont care about permits, just be clear - DO YOU HAVE AN ALLOCATED SPACE
If no then all the guff above about trespass does not apply.

£1500 for trespass? Really? How will you prove that amount of damage?

I woudl instead give an amount of DPA damage Per PCN, but at a lower amount.

Posted by: HenryHippo Tue, 4 Jul 2017 - 12:43
Post #1297553

QUOTE (nosferatu1001 @ Tue, 4 Jul 2017 - 12:45) *
You msut respond. Thats why we said you must respond. Failing to respond is unreasonable, and can leave you on the hook fpor their costs regardless of whether you win or not.

" The below does mention an "Allocated Parking Space" but this has never been the case"

What in hell does htis mean? Do you have an allocated space as noted on the lease? Simple yes or no. I dont care about permits, just be clear - DO YOU HAVE AN ALLOCATED SPACE
If no then all the guff above about trespass does not apply.

£1500 for trespass? Really? How will you prove that amount of damage?

I woudl instead give an amount of DPA damage Per PCN, but at a lower amount.


RE the £1500 I was going off one of the cases in the links above

I don't have an allocated parking bay, there is however a communal parking area and residents can park in any one of these that is free

Maybe "Allocated Parking Space" refers to the communal parking area? Or residents were allocated a specific spot when the block was built but this was abolished.

Posted by: nosferatu1001 Tue, 4 Jul 2017 - 13:29
Post #1297579

So what is shown on Plan 1? That would answer your query as to what is covered!

Yes, so I ask again: how wil you demonstrate entitlement to £1500? You cant just say "thats what another case said" in court, now can you? Have you looked at the filing fee for a £2000 claim?

You DO have 6 DPA breaches, so you can go for say £250 for each breach, and thats then £1500....and means a court may decide actually its £150 per DPA breach, thus dropping to £900 HOWEVER a simple £1500 trespass claim - when nominal damages are £1 - mayjust get struck entirely.

Posted by: HenryHippo Tue, 4 Jul 2017 - 14:01
Post #1297591

QUOTE (nosferatu1001 @ Tue, 4 Jul 2017 - 14:29) *
So what is shown on Plan 1? That would answer your query as to what is covered!

Yes, so I ask again: how wil you demonstrate entitlement to £1500? You cant just say "thats what another case said" in court, now can you? Have you looked at the filing fee for a £2000 claim?

You DO have 6 DPA breaches, so you can go for say £250 for each breach, and thats then £1500....and means a court may decide actually its £150 per DPA breach, thus dropping to £900 HOWEVER a simple £1500 trespass claim - when nominal damages are £1 - mayjust get struck entirely.


Plan 1 is just a generic blueprint of the communal car park. Have removed trespass claims from my letter now and going for 5 x £250.

Dear Sirs,
I refer to PCN ******* Insert all of the numbers Letter before action, re PCN ******

The above Notice to Keeper has been served on me as the registered keeper of vehicle Reg. ****** Your PCN draws to my attention that you are using the communal car parking areas for your own business purposes. My lease allows unfettered occupational rights to the parking areas, which means you are operating a predatory business on land which you have no overriding rights in.
Your involvement on this land will have supposedly been to prevent parking by uninvited persons, for the benefit of the actual leaseholders and their invited guests. Instead you carry out a predatory operation on those very people whose interests you are purportedly there to uphold.
In any case, my lease in respect of the common areas of the grounds and the communal parking area places no restrictions on the parking facilities such as those you have tried to imply, let alone a penalty regime for an alleged contractual offer to use the communal parking area I already have such rights or to place restrictions on visiting guests. You cannot offer me something I already have, and I am not obliged to accept an offer in such circumstances.
My lease remains the same as when it was originally agreed as part of my residential rights. There are no restrictions on parking within it and I believe you are acting unlawfully by attempting to take legal action when I have an absolute right of peaceful enjoyment on the land including allowing my guests free use of it.
If you feel that you have been misled by the Managing Agents insofar as they have contracted with you to operate here, then that is something you must take up with them directly. It is of little interest to me as I have unequivocal unfettered right of peaceful enjoyment on the land.
I draw you attention to the case of Jopson v Homeguard , case 2906J in Oxford County Court where the appeal heard by his honour Judge Harris QC. This was an appeal against a previous hearing which was awarded in favour of Homeguard, in similar circumstances as those addressed in my dispute with you. The Judge allowed the appeal in favour of Mrs Jopson. I also draw your attention to PACE v Mr (N Redacted), case C6GF14F0 in Croydon county court where the case was heard by District Judge Coonan. In summing up he stated " I have before me a tenancy agreement which gives Mr [N. redacted] the right to park on the estate and it does not say “on condition that you display a permit”. It does not say that, so he has that right. What Pace Recovery is seeking to do is, unilaterally outside the contract, restrict that right to only when a permit is displayed. Pace Recovery cannot do that."
Additional matters
You have obtained my details from the DVLA when you have no right to do so.
I am of the opinion that you don't care if you have rights and perhaps rely on your victims believing that some contract with the Managing Agent of the premises or even the landowner, allows you to apply parking terms on the car parking spaces at the premises. This is a mistaken assumption, as you will know anyway.
I am a resident at the premises to which the parking is attached as a lease and which allows unfettered rights to the use of the communal areas and parking facilities.
You have a duty of care to comply with the necessary Code of Practice of your Accredited Trade Association, the International Parking Community. The requirements laid out in the Code of practice make it clear that you must only operate on land where you have the landholder’s permission. You have failed in that duty.
Your involvement in your supposed parking management arrangements place on you an obligation to ensure that proper consideration is given to all the facts. Lax contractual assessment is not an excuse for a derogation of your duty. A breach of the Data Protect Act is a matter of fact. You have either breached it or you haven't. Whatever excuse you present for the breach does not excuse it in any way as you are under the requirement to show due diligence and a duty of care to ensure that personal details are obtained lawfully and then used lawfully from then on.
You will know that as this is a residential location the residents will have some sort of property rights, either by way of a lease or as a freehold resident with attached easements. It is incumbent upon you to consider the resident's rights in respect of the use of parking spaces. If you contracted with the managing agents to “control” the parking facilities they have misdirected you, although it is common knowledge that they often get a kick-back in commission for allowing predatory parking companies to take control of land. They have no other real interest otherwise.
If it was the landowner who contracted with you then the same applies. A landowner cannot restrict a privilege within an agreed covenant and it is your responsibility to ask the right questions and ensure that the operation of parking control is lawful.
I draw your attention to the case of Saeed v Plustrade Ltd [2001] EWCA Civ 2011 (20th December, 2001) heard at the Royal Courts of Justice by LORD JUSTICE AULD, LORD JUSTICE ROBERT WALKER and SIR CHRISTOPHER SLADE where they found that a landlord cannot take away something given within a lease, specifically a derogation of parking rights already afforded within a lease.
However you look at this, as I have an absolute right to use of the parking facilities without any intervention from you or anyone else, a breach of the Data Protection Act HAS occurred as you had no reasonable cause to apply for and use my personal details from the DVLA. I am therefore submitting a complaint to both the DVLA and the Information Commissioner’s Office about your misuse of personal data.
I draw your attention to the case of Lireza Ittihadieh v 5-11 Ceyne Gardens RTM Company Ltd & others at http://www.bailii.org/ew/cases/EWCA/Civ/2017/121.html which makes it clear that once data has been accessed for personal use then you become the Data Controller, something which the DVLA KADOE Contract also makes clear.
I now make a claim against you for punitive damages to the extent of £250 per instance for the wrongful application for, and subsequent misuse of my information from the DVLA. Given that there are six instances in total, this amounts to £1,500. This is a serious matter and one which is both stressful and degrading. It impinges on my rights as a freehold resident, has caused some considerable anxiety and distress and to top it all off, you are now warning me of a claim being likely in a country court for the sum of money you deem you are entitled to. This is an atrocious situation without any merit at all, and I believe may also be a fraudulent action under the auspices of the Fraud Act 2006 for Fraud by false representation which is a criminal offence that carries a sentence of up to 12 months imprisonment on summary conviction.
BE AWARE that this matter is now in your knowledge. An excuse of not knowing a criminal act had occurred due to the ill-constructed contract you have to “manage” the parking, now has no merit. I will ensure that anyone else within the residential complex whom is being targeted by you from now on will be made full aware of your illegal activity and I will also be considering legal action against you for fraud myself anyway. I will first see how you handle this claim before I make a complaint to the police.
An amount of £1500 for the damages is claimed for wrongful application of, and misuse of the data from the DVLA. This is already adjudicated on as being reasonable as evidenced by the case of Halliday v Creation Consumer Finance Ltd [2013] All ER (D) 199
To prevent this matter being taken to court I require payment within 14 working days from 2 days of the date of this letter. Failure of this will result in a court claim being instigated and consequential separate costs being added for the added expense. I have made it known already that I will also considering a police complaint for the fraud dependant on the response to this claim.
Yours sincerely

Posted by: nosferatu1001 Tue, 4 Jul 2017 - 14:05
Post #1297593

So you have rights to park in the communal space, and do indeed have some form of landholder entitlement to the communal area. But a claim for damages for trespass seems harder to me.

Are you really freehold? Is it a share of freeehold or a lease?

Posted by: HenryHippo Tue, 4 Jul 2017 - 14:42
Post #1297608

QUOTE (nosferatu1001 @ Tue, 4 Jul 2017 - 15:05) *
So you have rights to park in the communal space, and do indeed have some form of landholder entitlement to the communal area. But a claim for damages for trespass seems harder to me.

Are you really freehold? Is it a share of freeehold or a lease?


I have scrapped the trespass claim now

Forgive me, where does it say I am freehold?

Posted by: Jlc Tue, 4 Jul 2017 - 14:53
Post #1297614

QUOTE (HenryHippo @ Tue, 4 Jul 2017 - 15:42) *
Forgive me, where does it say I am freehold?

In the template:

QUOTE (HenryHippo @ Mon, 3 Jul 2017 - 21:02) *
...It impinges on my rights as a freehold resident, has caused some considerable anxiety and distress...


Posted by: nosferatu1001 Tue, 4 Jul 2017 - 15:00
Post #1297621

....whcih is the danger of templates.

You havent read the whole thing, and so I suggest you do so. Make sure you understand it all.
If you do not intend to file a claim, do not state that you will do so.

Posted by: HenryHippo Tue, 4 Jul 2017 - 15:57
Post #1297652

QUOTE (nosferatu1001 @ Tue, 4 Jul 2017 - 16:00) *
....whcih is the danger of templates.

You havent read the whole thing, and so I suggest you do so. Make sure you understand it all.
If you do not intend to file a claim, do not state that you will do so.


Fair point. Made a couple more changes. Speak now people or forever hold your peace, will print and post tomorrow morning

Dear Sirs,
I refer to PCN ******* Insert all of the numbers Letter before action, re PCN ******

The above Notice to Keeper has been served on me as the registered keeper of vehicle Reg. ****** Your PCN draws to my attention that you are using the communal car parking areas for your own business purposes. My lease allows unfettered occupational rights to the parking areas, which means you are operating a predatory business on land which you have no overriding rights in.
Your involvement on this land will have supposedly been to prevent parking by uninvited persons, for the benefit of the actual leaseholders and their invited guests. Instead you carry out a predatory operation on those very people whose interests you are purportedly there to uphold.
In any case, my lease in respect of the common areas of the grounds and the communal parking area places no restrictions on the parking facilities such as those you have tried to imply, let alone a penalty regime for an alleged contractual offer to use the communal parking area to which I already have such rights or to place restrictions on visiting guests. You cannot offer me something I already have, and I am not obliged to accept an offer in such circumstances.
My lease remains the same as when it was originally agreed as part of my residential rights. There are no restrictions on parking within it that this car has breached and I believe you are acting unlawfully by attempting to take legal action when I have an absolute right of peaceful enjoyment on the land including allowing my guests free use of it.
If you feel that you have been misled by the Managing Agents insofar as they have contracted with you to operate here, then that is something you must take up with them directly. It is of little interest to me as I have unequivocal unfettered right of peaceful enjoyment on the land.
I draw you attention to the case of Jopson v Homeguard , case 2906J in Oxford County Court where the appeal heard by his honour Judge Harris QC. This was an appeal against a previous hearing which was awarded in favour of Homeguard, in similar circumstances as those addressed in my dispute with you. The Judge allowed the appeal in favour of Mrs Jopson. I also draw your attention to PACE v Mr (N Redacted), case C6GF14F0 in Croydon county court where the case was heard by District Judge Coonan. In summing up he stated " I have before me a tenancy agreement which gives Mr [N. redacted] the right to park on the estate and it does not say “on condition that you display a permit”. It does not say that, so he has that right. What Pace Recovery is seeking to do is, unilaterally outside the contract, restrict that right to only when a permit is displayed. Pace Recovery cannot do that."
Additional matters
You have obtained my details from the DVLA when you have no right to do so.
I am of the opinion that you don't care if you have rights and perhaps rely on your victims believing that some contract with the Managing Agent of the premises or even the landowner, allows you to apply parking terms on the car parking spaces at the premises. This is a mistaken assumption, as you will know anyway.
I am a resident at the premises to which the parking is attached as a lease and which allows unfettered rights to the use of the communal areas and parking facilities.
You have a duty of care to comply with the necessary Code of Practice of your Accredited Trade Association, the International Parking Community. The requirements laid out in the Code of practice make it clear that you must only operate on land where you have the landholder’s permission. You have failed in that duty.
Your involvement in your supposed parking management arrangements place on you an obligation to ensure that proper consideration is given to all the facts. Lax contractual assessment is not an excuse for a derogation of your duty. A breach of the Data Protect Act is a matter of fact. You have either breached it or you haven't. Whatever excuse you present for the breach does not excuse it in any way as you are under the requirement to show due diligence and a duty of care to ensure that personal details are obtained lawfully and then used lawfully from then on.
You will know that as this is a residential location the residents will have some sort of property rights, by way of their lease. It is incumbent upon you to consider the resident's rights in respect of the use of parking spaces. If you contracted with the managing agents to “control” the parking facilities they have misdirected you, although it is common knowledge that they often get a kick-back in commission for allowing predatory parking companies to take control of land. They have no other real interest otherwise.
If it was the landowner who contracted with you then the same applies. A landowner cannot restrict a privilege within an agreed covenant and it is your responsibility to ask the right questions and ensure that the operation of parking control is lawful.
I draw your attention to the case of Saeed v Plustrade Ltd [2001] EWCA Civ 2011 (20th December, 2001) heard at the Royal Courts of Justice by LORD JUSTICE AULD, LORD JUSTICE ROBERT WALKER and SIR CHRISTOPHER SLADE where they found that a landlord cannot take away something given within a lease, specifically a derogation of parking rights already afforded within a lease.
However you look at this, as I have an absolute right to use of the parking facilities without any intervention from you or anyone else, a breach of the Data Protection Act HAS occurred as you had no reasonable cause to apply for and use my personal details from the DVLA.
I draw your attention to the case of Lireza Ittihadieh v 5-11 Ceyne Gardens RTM Company Ltd & others at http://www.bailii.org/ew/cases/EWCA/Civ/2017/121.html which makes it clear that once data has been accessed for personal use then you become the Data Controller, something which the DVLA KADOE Contract also makes clear.
I now make a claim against you for punitive damages to the extent of £250 per instance for the wrongful application for, and subsequent misuse of my information from the DVLA. Given that there are six instances in total, this amounts to £1,500. This is a serious matter and one which is both stressful and degrading. It impinges on my rights outlined in my lease, has caused some considerable anxiety and distress and to top it all off, you are now warning me of a claim being likely in a country court for the sum of money you deem you are entitled to. This is an atrocious situation without any merit at all, and I believe may also be a fraudulent action under the auspices of the Fraud Act 2006 for Fraud by false representation which is a criminal offence that carries a sentence of up to 12 months imprisonment on summary conviction.
BE AWARE that this matter is now in your knowledge. An excuse of not knowing a criminal act had occurred due to the ill-constructed contract you have to “manage” the parking, now has no merit. I will ensure that anyone else within the residential complex whom is being targeted by you from now on will be made full aware of your illegal activity and I will also be considering legal action against you for fraud myself anyway. I will first see how you handle this claim before I make a complaint to the police.
An amount of £1500 for the damages is claimed for wrongful application of, and misuse of the data from the DVLA. This is already adjudicated on as being reasonable as evidenced by the case of Halliday v Creation Consumer Finance Ltd [2013] All ER (D) 199
To prevent this matter being taken to court I require payment within 14 working days from 2 days of the date of this letter. Failure of this will result in a court claim being instigated and consequential separate costs being added for the added expense. I have made it known already that I will also considering a police complaint for the fraud dependent on the response to this claim.
Yours sincerely

Posted by: HenryHippo Tue, 4 Jul 2017 - 21:31
Post #1297769

anyone?

Posted by: ostell Wed, 5 Jul 2017 - 06:51
Post #1297805

I think it looks good.

Posted by: HenryHippo Wed, 5 Jul 2017 - 08:18
Post #1297821

Oh and send the letter to UKPC yes, not the law firm that wrote to me on their behalf?

Posted by: Lynnzer Wed, 5 Jul 2017 - 09:29
Post #1297834

QUOTE (HenryHippo @ Wed, 5 Jul 2017 - 09:18) *
Oh and send the letter to UKPC yes, not the law firm that wrote to me on their behalf?

It won't harm to copy them in. Make sure you get a proof posting certificate for them all.

Posted by: HenryHippo Wed, 5 Jul 2017 - 10:19
Post #1297852

QUOTE (Lynnzer @ Wed, 5 Jul 2017 - 10:29) *
QUOTE (HenryHippo @ Wed, 5 Jul 2017 - 09:18) *
Oh and send the letter to UKPC yes, not the law firm that wrote to me on their behalf?

It won't harm to copy them in. Make sure you get a proof posting certificate for them all.



Recorded Letter posted to UKPC

Will email both parties in same message next though.

Posted by: ostell Wed, 5 Jul 2017 - 10:32
Post #1297859

Recorded not usually recommended as they can refuse it as they know it will be something nasty. Next time straight forward 1st class post and free proof of posting from the post office.

Posted by: HenryHippo Thu, 20 Jul 2017 - 19:33
Post #1302193

Been issued a money claim form. Date of issue 12th July, Date of Service 17th July. I have just filled out the AOS. I have not contested jurisdiction and registered my intention to defend the whole amount. 28 days from date of service means I need to respond by 14th August

I intend to defend all 7 PCNs and to issue an appropriate counterclaim. Again all monies (after my costs have been paid) will go to charity

My building lease is my main defense, should I base it on this?

Posted by: Lynnzer Fri, 21 Jul 2017 - 10:09
Post #1302348

QUOTE (HenryHippo @ Thu, 20 Jul 2017 - 20:33) *
My building lease is my main defense, should I base it on this?

That's got to be main part above everything else.
You don't leave it that though. Include forbidding signs, no right to offer contractual terms to someone who already has a lease to use trhe spaces et.
AND, add the counter-claim at this point to bring in the managing agents as jointly liable for tortious interference by contracting a third a party for car park duties, which has resulted in a breach of the DPA by the PPC.



Posted by: HenryHippo Fri, 21 Jul 2017 - 14:16
Post #1302419

QUOTE (Lynnzer @ Fri, 21 Jul 2017 - 11:09) *
QUOTE (HenryHippo @ Thu, 20 Jul 2017 - 20:33) *
My building lease is my main defense, should I base it on this?

That's got to be main part above everything else.
You don't leave it that though. Include forbidding signs, no right to offer contractual terms to someone who already has a lease to use trhe spaces et.
AND, add the counter-claim at this point to bring in the managing agents as jointly liable for tortious interference by contracting a third a party for car park duties, which has resulted in a breach of the DPA by the PPC.


I don't see anything in the building lease about forbidding signs

My plan is 7 x £250 counterclaim to the parking company, how much would you counterclaim from the managing agents? Or did you literally mean the 2 parties should be jointly liable for the 7 x £250 ?

Posted by: ostell Fri, 21 Jul 2017 - 14:22
Post #1302421

But the contractor put up forbidding signs on the walls didn't he. Things like "no unauthorised parking", "Permits holders only"

Posted by: nosferatu1001 Sun, 23 Jul 2017 - 06:03
Post #1302747

They always claim a contract was entered into
Something the forbids you is not offering a contract.

Posted by: HenryHippo Wed, 2 Aug 2017 - 22:20
Post #1305612

QUOTE (SchoolRunMum @ Sun, 2 Jul 2017 - 22:29) *
PLEASE


SRM (and anyone else): Would you be kind enough to review this please that I adapted from my other thread?


I am NAME of ADDRESS, the defendant in this matter. The claim is denied in its entirety and I assert that I am not liable for the amount claimed, or any amount at all, for the following reasons:
1) As a homeowner, my lease allows me to park where I please in the car park
i) The right to exclusive use of the Allocated Parking Space for the purpose of parking a private motor vehicle not exceeding three tonnes in laden weight"
ii) Not to use the Allocated Parking Space for any purpose other than the purpose of parking a private motor vehicle not exceeding three tonnes in gross laden weight of motor cycle thereon and not to park or allowed to be parked any motor vehicle wheeled vehicle or other form of transport on any other part of the Estate save as may be permitted under the terms of the rights granted elsewhere in this Lease
iii) The vehicle in question is less than three tonnes in gross laden weight

2) This claim is for a breach of contract. However, it is denied that any contract was breached
i) My lease does not mention that any contractor is allowed to place or enforce signs on the premises
ii) The contractor did not have a right to offer contractual terms over a space that I already have a lease for


Posted by: nosferatu1001 Thu, 3 Aug 2017 - 03:45
Post #1305640

Well you cant park where you please, only in the allocated space. However you have an unfettered right to use THAT SPACE for parking a private vehicle.

Do the particulars of claim disclose a cause of action (ciontract, trespass, breach of contract)?
If not, why havent you said so as item 1?
Have they added on irrecoverable sums to the claim? If yes, why havent you challenged them?
and so on

Your defence is about a quarter the length of most, and most of it isnt really defence - as it doesnt reference the legal cases e.g. Jppson vs Homeguard - that YOU MSUT MENTION

You also havent mentioned that the grantor may not derograte from their grant, so even if the PPC has a contract with the landowner, if the landowner has already granted you rights to that space, their later contract with the PPC cannot transfer (derogate) those rights granted you.

Posted by: ostell Thu, 3 Aug 2017 - 06:17
Post #1305657

An d you already have the right to park given in your lease in your own space demised to you (it's on the deeds?) then you have no need for another contract to provide parking.

Posted by: HenryHippo Thu, 3 Aug 2017 - 20:44
Post #1305865

QUOTE (nosferatu1001 @ Thu, 3 Aug 2017 - 04:45) *
Well you cant park where you please, only in the allocated space. However you have an unfettered right to use THAT SPACE for parking a private vehicle.

Do the particulars of claim disclose a cause of action (ciontract, trespass, breach of contract)?
If not, why havent you said so as item 1?
Have they added on irrecoverable sums to the claim? If yes, why havent you challenged them?
and so on

Your defence is about a quarter the length of most, and most of it isnt really defence - as it doesnt reference the legal cases e.g. Jppson vs Homeguard - that YOU MSUT MENTION

You also havent mentioned that the grantor may not derograte from their grant, so even if the PPC has a contract with the landowner, if the landowner has already granted you rights to that space, their later contract with the PPC cannot transfer (derogate) those rights granted you.


My lease doesn't actually show a dedicated space, just the communal car park. Do you think I am OK to upload the lease here if I take my exact address off it?

Breach of contract yes, will add that in

Irreoverable sums in the sense that they haven't actually incurred any costs?

And the grantor is the property management company in this scenario?

Posted by: ostell Thu, 3 Aug 2017 - 21:24
Post #1305881

The grantor is the owner of the land that leased portions of the property to others and was the other signatory to the lease document. The property management company are nothing in this.

Is there a map attached to the lease which has red lined squares, one for your flat the other for tha parking space?

Posted by: HenryHippo Thu, 3 Aug 2017 - 21:31
Post #1305884

Here is a link to my lease https://www.dropbox.com/s/dl1nmbdyj2sfpg9/Edited%20Lease.pdf?dl=0

I interpet it as I don't have a specific allocated space, but the right to park anywhere in the general parking area

This would be supported by the fact that the permits we were given allow you to park anywhere, no set spaces

Posted by: ostell Thu, 3 Aug 2017 - 21:45
Post #1305891

Come on Henry !!! Bottom of page 1, heading:Demised premises, heading: Allocated parking space

Posted by: cabbyman Fri, 4 Aug 2017 - 08:34
Post #1305949

Fourth schedule, para 6 refers to allocated parking as well.

Posted by: hexaflexagon Fri, 4 Aug 2017 - 09:39
Post #1305993

..but as devil's advocate here, can we have a reality check?

Given the definition of 'Estate Regulations' in the lease, isn't paragraph 19 on page 23 a real and substantial problem if the Manager has indicated that permits must be used?

Posted by: ostell Fri, 4 Aug 2017 - 10:20
Post #1306009

But changing things to a worse position is a derogation of grant. The original lease did not require a permit nor charge if one was not displayed.

Posted by: hexaflexagon Fri, 4 Aug 2017 - 11:23
Post #1306038

QUOTE (ostell @ Fri, 4 Aug 2017 - 11:20) *
But changing things to a worse position is a derogation of grant. The original lease did not require a permit nor charge if one was not displayed.


Still in DA mode

But isn't a moot point? If the ability to vary the lease conditions is enshrined in the original lease then might it not be argued that requiring a permit is merely an extension of that right? The right to park isn't being taken away. The lease doesn't define 'worse position' but even if it were it presumably could be argued that making it less likely that the allocated space would be taken by someone not entitled to park therein is making the situation better.

Just offering a view you understand. I suppose the crucial point is if there are two conflicting clauses in a lease which one should take precedence? I'm not at the moment convinced that ultimately a court would find a conflict, but I'll be interested to hear other arguments.


Posted by: ostell Fri, 4 Aug 2017 - 11:49
Post #1306044

I appreciate your point, honest, but having to pay a charge for forgetting to display a permit is certainly not to the benefit or advantage of leaseholders.

Posted by: nosferatu1001 Fri, 4 Aug 2017 - 15:19
Post #1306108

...and isn't reasonable
Plus they can't bind you to contracting with a third party which is what the claim is.

Posted by: Lynnzer Fri, 4 Aug 2017 - 15:25
Post #1306114

Another typical KERCHING case.
Damned greed, lies and obnoxious behavior from PPC's doing residential bullying

HH, if you haven't already, take a look at the links from my signature and see how your case is built for a good counterclaim or claim for damages for breach of the Data Protection Act.


Posted by: hexaflexagon Fri, 4 Aug 2017 - 16:12
Post #1306135

QUOTE (nosferatu1001 @ Fri, 4 Aug 2017 - 16:19) *
...and isn't reasonable
Plus they can't bind you to contracting with a third party which is what the claim is.


Given that the lease allows the leaseholder to make variations to the lease by virtue of the lease saying exactly that, then we must assume that there are certain things the leaseholder is permitted to do. One of which is to appoint an agent to manage parking matters.

Does this not boil down to whether the PPC is acting as an agent of the Manager/Leaseholder or in their own right?
If the PPC is acting as an agent then arguably this is not so much a contractual matter as a charge for breaching what the leaseholder sees (rightly or wrongly) as a breach of the lease and their newly required condition to display a permit.
i.e. we (the PPC) are instructed by our principal - (your leaseholder/managing agent) to issue a charge for breaching a (newly required) condition to display a permit in your allocated space.

If the arrangement is that the Leaseholder has entered a contract with the PPC to manage the parking situation as the PPC sees fit, and that the leaseholder has not passed on any right of action in connection with the lease then presumably that is an entirely different contractual matter - (leaving aside for a moment whether the signage is of a forbidding nature). In that situation presumably we could agree that it would be perfectly reasonable for the PPC to issue PCNs to people who are not authorised to park, but not to those who are?

Again I'm not claiming my view is correct but there may be circumstances where this is not as black & white as perhaps always perceived.



Posted by: cabbyman Fri, 4 Aug 2017 - 17:43
Post #1306169

This lease appears to have been executed as a deed. I can't find authority for the statement, but I was always of the impression that a contract made by deed can only be varied by deed.

Any variation of a contract can only be at a minimum 'level of the original contract. ie, A verbal contract can be varied verbally; a written contract can be varied in writing but not verbally, and a contract by deed can only be varied by deed, not verbally or a simple written variation.

Therefore, a simple letter 'you must display a permit' is not sufficient.

Am I correct?

Posted by: hexaflexagon Fri, 4 Aug 2017 - 20:04
Post #1306183

QUOTE (cabbyman @ Fri, 4 Aug 2017 - 18:43) *
This lease appears to have been executed as a deed. I can't find authority for the statement, but I was always of the impression that a contract made by deed can only be varied by deed.

Any variation of a contract can only be at a minimum 'level of the original contract. ie, A verbal contract can be varied verbally; a written contract can be varied in writing but not verbally, and a contract by deed can only be varied by deed, not verbally or a simple written variation.

Therefore, a simple letter 'you must display a permit' is not sufficient.

Am I correct?


IANAL but I believe a written contract can be varied orally unless the contract specifically says otherwise and provided there is at least some nominal consideration. I am not sure whether a variation of a contract made by deed needs to be written but that would seem to have a certain logic.

Posted by: HenryHippo Sat, 5 Aug 2017 - 12:16
Post #1306298

QUOTE (Lynnzer @ Fri, 4 Aug 2017 - 16:25) *
Another typical KERCHING case.
Damned greed, lies and obnoxious behavior from PPC's doing residential bullying

HH, if you haven't already, take a look at the links from my signature and see how your case is built for a good counterclaim or claim for damages for breach of the Data Protection Act.


Thanks Everyone

You think the lease is termed in my favour? I don't find it very clear as the lease refers to an allocated parking space (implying a specific bay) but there isn't one outlined in there and there wasn't when i moved in (before the car park moved to a permit situation)

Posted by: ostell Sat, 5 Aug 2017 - 12:19
Post #1306303

The introduction of a permit scheme AFTER you moved in will stand you in good stead as it could not possibly be in the lease that was signed.

Posted by: hexaflexagon Sat, 5 Aug 2017 - 13:13
Post #1306315

QUOTE (ostell @ Sat, 5 Aug 2017 - 13:19) *
The introduction of a permit scheme AFTER you moved in will stand you in good stead as it could not possibly be in the lease that was signed.


But by definition no variation that the leaseholder wanted to make would be in the original lease. That's presumably why the leaseholder includes a clause that makes variations possible - presumably unilaterally.
Are you suggesting that the leaseholder could not make any change?

I did note that the lease made reference to an allocated bay, said to be marked on the plan, but I couldn't see anything so marked in the lease the OP uploaded. That should be regularised without delay to avoid any further problems and the Leaseholder should be asked to issue a suitably marked plan for the avoidance of doubt.

Posted by: HenryHippo Sun, 6 Aug 2017 - 20:02
Post #1306508

QUOTE (Lynnzer @ Fri, 4 Aug 2017 - 16:25) *
Another typical KERCHING case.
Damned greed, lies and obnoxious behavior from PPC's doing residential bullying

HH, if you haven't already, take a look at the links from my signature and see how your case is built for a good counterclaim or claim for damages for breach of the Data Protection Act.



thanks for the links. I notice that they are templates for letters and not templates to respond to a money claim with a defence

Does such a template exist on here already?

Posted by: cabbyman Sun, 6 Aug 2017 - 20:07
Post #1306511

No. You need to gather all the information together and write your own defence. You need to understand it which you won't do by copying and pasting a template.

Posted by: HenryHippo Sun, 6 Aug 2017 - 20:33
Post #1306521

QUOTE (cabbyman @ Sun, 6 Aug 2017 - 21:07) *
No. You need to gather all the information together and write your own defence. You need to understand it which you won't do by copying and pasting a template.


OK. This is what I have put together so far. I am aware that it is far from complete. And the counter claim needs to be in a separate letter, so I have left it out for now. Correct?

I have mentioned: the car was under 3 tonnes, my lease allows me to park in the allocated area, any change to my lease requires me to sign a contract which I haven't and that any difference is tortious interference


Statement of Defense
1. I am the defendant in this matter.

2. It is admitted that the Defendant is the registered keeper of the vehicle in question. However, the Defendant denies that he is liable to the Claimant either as alleged in the Particulars of Claim or at all. Each and every allegation in the Particulars of Claim is denied.

3. The Claimant has no cause of action against the Defendant on the following grounds:

4. As the owner of No XX at the address, my lease applies no restrictions on the parking facilities for any motor vehicle of mine, providing that it does not exceed three tonnes in laden weight

5. The motor vehicle did not exceed three tonnes in laden weight

6. My lease allows me to park anywhere in the allocated area

7. The motor vehicle was in the allocated area

8. The lease does not mention that a permit needs to be shown. The only way that this could be legally binding was if I, the leaseholder signed a further contract allowing my lease to be over ruled

9. I have signed no such further contract

10. UKPC do not have the right to offer contractual terms towards myself as I already have the right to use all of the spaces in the allocated area

11. I have lived in the property since Febuary 2016 and neither I, or any other occupant of the estate has been allocated a specific parking bay, either before or after UKPC started to patrol the estate in November 2016

12. The attempt to force a permit situation upon the Defendant is Tortious Interference

13. I draw attention to the case of Jopson v Homeguard , case 2906J in Oxford County Court where the appeal heard by his honour Judge Harris QC. This was an appeal against a previous hearing which was awarded in favour of Homeguard, in similar circumstances as those addressed in my dispute with UKPC. The Judge allowed the appeal in favour of Mrs Jopson.

14. I also draw attention to PACE v Mr (N Redacted), case C6GF14F0 in Croydon county court where the case was heard by District Judge Coonan. In summing up he stated " I have before me a tenancy agreement which gives Mr [N. redacted] the right to park on the estate and it does not say “on condition that you display a permit”. It does not say that, so he has that right. What UKPC is seeking to do is, unilaterally outside the contract, restrict that right to only when a permit is displayed. Pace Recovery cannot do that."

Posted by: ostell Sun, 6 Aug 2017 - 20:48
Post #1306526

Get in, when you mention the lease, that your lease is superior to any alleged contract they believe they have. They are are 3rd party strangers to your lost and cannot offer you a contract to part when you already have that right.

Posted by: HenryHippo Sun, 6 Aug 2017 - 20:59
Post #1306530

QUOTE (ostell @ Sun, 6 Aug 2017 - 21:48) *
Get in, when you mention the lease, that your lease is superior to any alleged contract they believe they have. They are are 3rd party strangers to your lost and cannot offer you a contract to part when you already have that right.


6. My lease allows me to park anywhere in the allocated area. My lease is superior to any alleged contract that UKPC claim that they have via the Managing Agents. As a third party, UKPC can not offer me a contract when I already have the right to park in the allocated area, without restrictions.


Better?

Posted by: emanresu Mon, 7 Aug 2017 - 05:34
Post #1306566

QUOTE
My lease is superior


My lease has primacy

QUOTE
UKPC can not offer me a contract when I already have the right to park in the allocated area, without restrictions.


UKPC can offer no consideration* and therefore a contract when I already have the right to park in the allocated area, without restrictions.

* Under English law (Scotland is different) there must be an exchange of value. So since UKPC cannot offer anything of value - as you already have it - there is no basis for a contract.

Posted by: ostell Mon, 7 Aug 2017 - 06:49
Post #1306574

Thanks emanresu. I got it close but no close enough. Basically trying to put it to the judge in words he would quickly understand.

Posted by: hexaflexagon Mon, 7 Aug 2017 - 09:17
Post #1306605

Here's my take.

As I understand it and unless I've missed something you are the stage of responding to a letter before claim from a solicitor who advises you to contact UKPC. No court action has yet been started. Hence I believe you should write to UKPC explaining why you reject their charge and separately write to SCS acknowledging their letter and simply attach a copy of the letter to UKPC.

Personally I wouldn't mention the word 'defence' since that has a specific legal definition and way of construction should it come to court and it would be unwise at the moment to box yourself in with something you call a defence but which you may need to vary when it comes to an actual defence.

So I'd say something like

I reject your charge notice xxx for each and all of the reasons below, the substance of which I will use along with a counterclaim should you commence court proceedings. I therefore require you to cancel the charge notice and confirm in writing to me. (Only put in the counterclaim bit if you are prepared to do so)


1. My lease, which predates your parking regime, allows me to park anywhere in the allocated area without any restriction such as displaying a permit.

2. At the times mentioned in the charge notice my motor vehicle was in the allocated area

3. I have never been asked to sign a new lease which incorporated the need to display a permiti

4. The notion that any contract UKPC deem has been issued to me requiring a permit to park is rejected since I already have that right.

5. An attempt to force a permit situation upon me is Tortious Interference in a right I already have.

6. I draw attention to the case of Jopson v Homeguard , case 2906J in Oxford County Court where the appeal heard by his honour Judge Harris QC. This was an appeal against a previous hearing which was awarded in favour of Homeguard, in similar circumstances as those addressed in my dispute with UKPC. The Judge allowed the appeal in favour of Mrs Jopson.

7. I also draw attention to PACE v Mr (N Redacted), case C6GF14F0 in Croydon county court where the case was heard by District Judge Coonan. In summing up he stated
" I have before me a tenancy agreement which gives Mr [N. redacted] the right to park on the estate and it does not say “on condition that you display a permit”. It does not say that, so he has that right. What UKPC is seeking to do is, unilaterally outside the contract, restrict that right to only when a permit is displayed. Pace Recovery cannot do that."

Aside from these points I will also point out the scare tactics used by your solicitor when they mention stuff like the Beavis case which has no relevance to this situation, and suggestions that bailiffs and attachment of earnings orders may be involved without bothering to mention the little fact that this would only be the case if judgment was awarded in favour of the claimant and only then if the amount awarded by the judgment was not paid.

In addition your solicitor's mention that they do not consider the matter is suitable for an Alternative Disputes Resolution is a matter of opinion and clearly intended to scare me away from invoking this - as I am clearly entitled to do.

Posted by: ostell Mon, 7 Aug 2017 - 09:36
Post #1306612

hexaflexagon: This is at the small claims stage and the OP is preparing a defence not a response to the PPC.

Even if this is just a response to a LBC then the wording given is preferable and states the position more precisely.

Posted by: hexaflexagon Mon, 7 Aug 2017 - 10:15
Post #1306623

QUOTE (ostell @ Mon, 7 Aug 2017 - 10:36) *
hexaflexagon: This is at the small claims stage and the OP is preparing a defence not a response to the PPC.

Even if this is just a response to a LBC then the wording given is preferable and states the position more precisely.


OK fair enough. I've clearly missed the post in the chain that indicates this has moved on from a simple reply to UKPC to a formal defence to a court claim.

Posted by: HenryHippo Mon, 7 Aug 2017 - 20:58
Post #1306787

Thanks guys, Anything else to add? Seems a bit short to me.

Statement of Defence
1. I am the defendant in this matter.

2. It is admitted that the Defendant is the registered keeper of the vehicle in question. However, the Defendant denies that he is liable to the Claimant either as alleged in the Particulars of Claim or at all. Each and every allegation in the Particulars of Claim is denied.

3. The Claimant has no cause of action against the Defendant on the following grounds:

4. As the owner of No XX at the address, my lease applies no restrictions on the parking facilities for any motor vehicle of mine, providing that it does not exceed three tonnes in laden weight

5. The motor vehicle did not exceed three tonnes in laden weight

6. My lease allows me to park anywhere in the allocated area. My lease has primacy to any alleged contract that UKPC claim that they have via the Managing Agents. UKPC can offer no consideration under English law and therefore a contract when I already have the right to park in the allocated area, without restrictions.

7. The motor vehicle was in the allocated area

8. The lease does not mention that a permit needs to be shown. The only way that this could be legally binding was if I, the leaseholder signed a further contract allowing my lease to be over ruled

9. I have signed no such further contract

10. UKPC do not have the right to offer contractual terms towards myself as I already have the right to use all of the spaces in the allocated area

11. I have lived in the property since Febuary 2016 and neither I, or any other occupant of the estate has been allocated a specific parking bay, either before or after UKPC started to patrol the estate in November 2016

12. The attempt to force a permit situation upon the Defendant is Tortious Interference

13. I draw attention to the case of Jopson v Homeguard , case 2906J in Oxford County Court where the appeal heard by his honour Judge Harris QC. This was an appeal against a previous hearing which was awarded in favour of Homeguard, in similar circumstances as those addressed in my dispute with UKPC. The Judge allowed the appeal in favour of Mrs Jopson.

14. I also draw attention to PACE v Mr (N Redacted), case C6GF14F0 in Croydon county court where the case was heard by District Judge Coonan. In summing up he stated " I have before me a tenancy agreement which gives Mr [N. redacted] the right to park on the estate and it does not say “on condition that you display a permit”. It does not say that, so he has that right. What UKPC is seeking to do is, unilaterally outside the contract, restrict that right to only when a permit is displayed. Pace Recovery cannot do that."

Posted by: nosferatu1001 Tue, 8 Aug 2017 - 03:07
Post #1306833

You need " a grantor may not derogate rfom their grant"

i.e. the lessor cannot allow you parking, then take that parking away and give someone else the rigth to offer parkign but only if you meet onerous conditions.

You also need to point out that your lease not only does not require a permit, it in no way can bind you to a contract with an unknown 3rd party. It is the equivalent of someone coming onto your driveway, sticing a sign up and claiming by paring there you owe them £100. It is a nonsense and you are embarrased at habing to respond to such an obviously specious claim

Add that, even should the lessor have varied the lease - whic hsi denied - then at most this would be breach of lease, whcih cannot be actioned by a third party. The claimant lacks any and all standing in this case.

I would onect to the obvious double recovery in their costs - assumign theyve tacked on spurious debt collector charges that have never been paid. State that even if the court finds that a leaseholder is somehow liable to a 3rd party for parking on their leased land, the obvious attempts at double recovery shold not be entertained, and the amount requested struck out or reduced in light of this. Then detail the obvious spuriosu charges. State you anyway require strict proof that these charges were a) contractually agreed by the defendant b) invoiced and c) paid by the claimant, dated before the court action began.

Posted by: HenryHippo Tue, 8 Aug 2017 - 12:49
Post #1306907

QUOTE (nosferatu1001 @ Tue, 8 Aug 2017 - 04:07) *
You need " a grantor may not derogate rfom their grant"

i.e. the lessor cannot allow you parking, then take that parking away and give someone else the rigth to offer parkign but only if you meet onerous conditions.

You also need to point out that your lease not only does not require a permit, it in no way can bind you to a contract with an unknown 3rd party. It is the equivalent of someone coming onto your driveway, sticing a sign up and claiming by paring there you owe them £100. It is a nonsense and you are embarrased at habing to respond to such an obviously specious claim

Add that, even should the lessor have varied the lease - whic hsi denied - then at most this would be breach of lease, whcih cannot be actioned by a third party. The claimant lacks any and all standing in this case.

I would onect to the obvious double recovery in their costs - assumign theyve tacked on spurious debt collector charges that have never been paid. State that even if the court finds that a leaseholder is somehow liable to a 3rd party for parking on their leased land, the obvious attempts at double recovery shold not be entertained, and the amount requested struck out or reduced in light of this. Then detail the obvious spuriosu charges. State you anyway require strict proof that these charges were a) contractually agreed by the defendant b) invoiced and c) paid by the claimant, dated before the court action began.


Thanks. They haven't added said debt collector charges but they have said "In the circumstances the Claimant has suffered loss and/or damage due to the Defendant's failure to pay the charges". I have addressed this in point 17 below


Statement of Defence
1. I am the defendant in this matter.

2. It is admitted that the Defendant is the registered keeper of the vehicle in question. However, the Defendant denies that he is liable to the Claimant either as alleged in the Particulars of Claim or at all. Each and every allegation in the Particulars of Claim is denied.

3. The Claimant has no cause of action against the Defendant on the following grounds:

4. As the owner of No XX at the address, my lease applies no restrictions on the parking facilities for any motor vehicle of mine, providing that it does not exceed three tonnes in laden weight

5. The motor vehicle did not exceed three tonnes in laden weight

6. My lease allows me to park anywhere in the allocated area. My lease has primacy to any alleged contract that UKPC claim that they have via the Managing Agents. UKPC can offer no consideration under English law and therefore a contract when I already have the right to park in the allocated area, without restrictions.

7. The motor vehicle was in the allocated area

8. The lease does not mention that a permit needs to be shown. The only way that this could be legally binding was if I, the leaseholder signed a further contract allowing my lease to be over ruled

9. I have signed no such further contract

10. UKPC do not have the right to offer contractual terms towards myself as I already have the right to use all of the spaces in the allocated area

11. I have lived in the property since Febuary 2016 and neither I, or any other occupant of the estate has been allocated a specific parking bay, either before or after UKPC started to patrol the estate in November 2016

12. The granter may not derogate from their grant. The lessor in this instance can not give me the right to park in the allocated area and take that right, giving in to a third party who will only allow me to park there if I meet onerous conditions.

13. My lease does not mention any requirement for a permit and in no way can it bind me to a contract with another third party

14. The attempt to force a permit situation upon the Defendant is Tortious Interference

15. I draw attention to the case of Jopson v Homeguard , case 2906J in Oxford County Court where the appeal heard by his honour Judge Harris QC. This was an appeal against a previous hearing which was awarded in favour of Homeguard, in similar circumstances as those addressed in my dispute with UKPC. The Judge allowed the appeal in favour of Mrs Jopson.

16. I also draw attention to PACE v Mr (N Redacted), case C6GF14F0 in Croydon county court where the case was heard by District Judge Coonan. In summing up he stated " I have before me a tenancy agreement which gives Mr [N. redacted] the right to park on the estate and it does not say “on condition that you display a permit”. It does not say that, so he has that right. What UKPC is seeking to do is, unilaterally outside the contract, restrict that right to only when a permit is displayed. Pace Recovery cannot do that."

17. The Claimant claims to have “suffered loss and/or damage due to the Defendant’s failure to pay the charges”. The Claimant has not incurrent any losses or damages from the Defendant

Posted by: HenryHippo Tue, 8 Aug 2017 - 20:07
Post #1307006

Also, I am going to start writing my counterclaim. Should I include this in my defence above? Or entirely separate document?

Posted by: emanresu Wed, 9 Aug 2017 - 05:25
Post #1307059

QUOTE
Also, I am going to start writing my counterclaim. Should I include this in my defence above? Or entirely separate document?


As an alternative .... wait until you are at the WS stage and send a Letter before Claim then. If you successfully defend, you'll get your normal costs plus you have a win to use to support your later (counter)claim.

Some judges think the counterclaim is just for costs rather than a claim in its own right so keep them separate but sequential. [They do it too by splitting up tickets into separate claims]

Posted by: nosferatu1001 Wed, 9 Aug 2017 - 06:53
Post #1307073

I fyou want to COUNTER claim, it must be included when you file your defence. Make sure it is explicit you are going for damages for tortious interference with your lease and (if they got your detsils from the DVLA) breahc of the DPA.

Posted by: henrik777 Wed, 9 Aug 2017 - 08:51
Post #1307100

QUOTE (nosferatu1001 @ Wed, 9 Aug 2017 - 07:53) *
I fyou want to COUNTER claim, it must be included when you file your defence. Make sure it is explicit you are going for damages for tortious interference with your lease and (if they got your detsils from the DVLA) breahc of the DPA.



You can file a counterclaim at a later date however you require the courts permission to do so if not done when submitting a defence. CPR 20.4

Posted by: HenryHippo Wed, 9 Aug 2017 - 17:56
Post #1307259

Counterclaim: Critique welcomed


COUNTERCLAIM
1. The Defendant raising this counter-claim against the Claimant, is the registered keeper of the vehicle with the registration number XXXX

2. (i) The Claimant in this original claim is a private parking company who are required to adhere to the International Parking Community's Code of Practice, which holds all members out for the purposes of the Data Protection Act 1998, as a 'data controller' in Section B (5): Data Processing: ''You are required to be registered with the Information Commissioner as a data controller.''

(ii) This status as a data controller is reiterated by the DVLA in the KADOE contract, under which an Approved Operator parking firm (the party known to the DVLA as 'the Customer') obtain data, which states: ''The Customer, separately from the DVLA, shall be the Data Controller of each item of Data received from the DVLA from the point of receipt of that Data by the Customer or its Link Provider and shall be responsible for complying with the principles of the DPA in relation to its further Processing of that Data.''

(iii) It follows that there is no question that this Claimant bears the responsibility of being a data controller in this matter.

3. The Defendant in this original claim, being the registered keeper of the car in question, is the 'data subject' in this matter. The registration number of the vehicle, together with the Defendant's name and address details, all constitute personal data. this has been confirmed by the Information Commissioner in paragraph 6 of this specific report about private parking operators (to be filed with the Court in support of this Counter-Claim):

https://ico.org.uk/media/about-the-ico/cons...onsultation.pdf
4.(i) The Claimant's operative photographed the vehicle, capturing and storing the VRN and an image of the vehicle, following which they obtained the Defendant's personal data, including name and address, from the DVLA. It is averred that, since the location is not 'relevant land', the Claimant had no grounds to pursue me as registered keeper. The purpose of such data being supplied to a parking firm in cases of 'non-relevant land', is only authorised by the DVLA for the basic reason of enquiring who was driving (no more and no less).

(ii) A registered keeper has no obligation nor responsibility whatsoever, to supply the name and address of the driver (whether they know or not) and if they exercise their right not to name the driver then the matter ends there. A registered keeper cannot be pursued regarding a case relating to non-relevant land, because such land falls outwith the 'keeper liability' provision in the POFA.

(iii) It follows that the data relating to the Defendant should not have been stored, nor further processed, after enquiring who was driving, even if the Court believes there was a lawful reason for the Claimant to obtain the data in the first place (which is denied, given the status of this land).

5. It follows that this Claimant had no reasonable cause to use that VRN to obtain the Defendant's name and address. Significant distress has been caused as a direct result of this data processing, as well as loss of time and costs for defending this matter. Each demand that arrived in the post caused serious distress for the household, despite the honest belief that a registered keeper's data could not be used in this way by this Claimant, regarding this location. In forcing the Defendant to answer to the matter in court, serious distress has been caused which will be fully outlined in a Witness Statement and at the hearing. Indeed, being required to attend a hearing and working on a Defence and Counter-Claim in the Defendant's own time, has caused loss of leave.


6. Schedule 2 of the Data Protection Act 1998 (the DPA) indicates that Data may only be lawfully processed if one of the conditions set out in the Schedule applies to that processing. Those conditions are:

(1) The individual whom the personal data is about has consented to the processing. and (5) The processing is necessary:
(a) in relation to a contract which the individual has entered into; or because the individual has asked for something to be done so they can enter into a contract, or
(b) The processing is necessary because of a legal obligation that applies to you (except an obligation imposed by a contract)
© The processing is necessary to protect the individual’s “vital interests”. This condition only applies in cases of life or death, such as where an individual’s medical history is disclosed to a hospital’s A&E department treating them after a serious road accident.
(d) The processing is necessary for administering justice, or for exercising statutory, governmental, or other public functions
(e) The processing is in accordance with the “legitimate interests” condition.

None of the above apply.


7. By reason of the obtaining and/or storing and processing the data, the Claimant acted in breach of its statutory duty under Section 4(4) of the DPA, in that it processed the personal data unfairly and/or unlawfully in contravention of the Defendant's rights under the First Data Protection Principle.


8. Due to the nature of this location, which is neither 'relevant land' nor 'privately-owned' (despite the misleading sign), the Claimant's misappropriation, obtaining and processing of personal data about the Defendant was unlawful and/or in contravention of any or indeed all of the Data Protection Principles. Certainly, it is averred that the Claimant was in breach of the Second Data Principle, pursuant to Schedule 1 of the DPA, which states: “Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes.”


9. Further or alternatively, by pursuing the Defendant for monies which it was not entitled to recover, the Claimant has unlawfully infringed the Defendant's right to privacy and has misused the Defendant's private information.


10. The Claimant is a member of the Trade Body known as the International Parking Community (IPC). In accordance with the Code of Practice as laid down by the IPC (such rules being held by the Supreme Court Judges in ParkingEye Ltd v Beavis [2015] UKSC 67 as 'effectively regulatory') a parking operator ''shall comply'' with the statutory provisions of the DPA 1998. In this case, the Claimant has failed to comply with that statute, and is therefore operating in breach of the IPC Code of Practice.


11. In consequence of the processing the Claimant has suffered damage and distress. Pursuant to s13 of the DPA, “Compensation for failure to comply with certain requirements”, the Act states at 13(1) that “An individual who suffers damage by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that damage”.


12. The Claimant relies on two binding authorities in support of the Claim, which are Vidal-Hall v Google Inc [2015] EWCA 311, and Halliday v Creation Consumer Finance Ltd [2013] EWCA Civ 333. In Vidal-Hall, it was held by the Court of Appeal that compensation was payable upon the fact of breach, and that it was not necessary to quantify a direct pecuniary loss. In Halliday, the Court of Appeal held that a compensatory sum of up to £750 was deemed ‘appropriate and sufficient’.

13. Both of the above cases arose as a result of material breaches of the DPA by the respective defendants, and can be considered to provide binding precedents for my own situation. My claim is for £750, at the lower end of the scale, given the number of PCNs that I have been issued and not a sum that appears excessive, given the circumstances of harassment and DPA breach by a Claimant pursuing a wholly vexatious claim and unreasonable three-figure sum.

THE COUNTER-CLAIM:

14. (i) Damages in the sum of £750 for breach of statutory duty pursuant to Section 13(1) of the Data Protection Act 1998 and/or misuse of private information.

(ii) An order pursuant to Section 14(4) of the Data Protection Act 1998 for the blocking and/or erasure and/or destruction of the data held by the Claimant, whether stored as digital data or otherwise and any photographs or other relevant material.


STATEMENT OF TRUTH

The Claimant believes that the facts stated in these Particulars of Claim are true.




Full name ......................................


Date .........

Posted by: nosferatu1001 Thu, 10 Aug 2017 - 02:28
Post #1307355

You claim for £750, then you state the claim is for £500

14 III why are you talkig about costs of the claim, in your counter claim? I may be wrong here, but you do NOT talk abotu "costs of the claim" in a counterclaim - the proper venue to dispose of the question fo costs of a claim is the claim itself, not any counterclaim.

Posted by: HenryHippo Thu, 10 Aug 2017 - 09:40
Post #1307419

QUOTE (nosferatu1001 @ Thu, 10 Aug 2017 - 03:28) *
You claim for £750, then you state the claim is for £500

14 III why are you talkig about costs of the claim, in your counter claim? I may be wrong here, but you do NOT talk abotu "costs of the claim" in a counterclaim - the proper venue to dispose of the question fo costs of a claim is the claim itself, not any counterclaim.


Good point on the £500 and that was something I copied from another case- deleted now

Posted by: HenryHippo Thu, 10 Aug 2017 - 20:07
Post #1307592

Going to submit tonight unless anyone has anything to add

Posted by: SchoolRunMum Fri, 11 Aug 2017 - 22:10
Post #1307863

QUOTE
Due to the nature of this location, which is neither 'relevant land' nor 'privately-owned' (despite the misleading sign),


Is it?

This is a very long thread but that's a counter-claim for bylaws/Council owned land. It also repeats 'non-relevant land' in another para, 4.1.

I provided you with basic suggested counter-claim wording which had come from another case - but any poster always has to read it, check it for accuracy, and amend it to suit your case.

Posted by: SchoolRunMum Fri, 11 Aug 2017 - 23:14
Post #1307866

This is also not true (below) because UKPC are not in the IPC.

The reason I didn't post a counter-claim on the open forum last month was not to be secretive, but to stop anyone copying it without editing it to suit. You've copied verbatim the counter-claim wording I used for other cases, that in some places is not right for your case. It needed some tweaking and checking and always would, for an individual defendant.

Sorry if I didn't make that clear, when I provided this wording and asked that it wasn't shared. Now other people will copy it like you did - not good, each case has its own facts. However, most of it makes sense as a counter-claim, but do bear in mind you will need to put this right at WS stage (and set out your distress in detail, about this harassment):

QUOTE
10. The Claimant is a member of the Trade Body known as the International Parking Community (IPC). In accordance with the Code of Practice as laid down by the IPC (such rules being held by the Supreme Court Judges in ParkingEye Ltd v Beavis [2015] UKSC 67 as 'effectively regulatory') a parking operator ''shall comply'' with the statutory provisions of the DPA 1998. In this case, the Claimant has failed to comply with that statute, and is therefore operating in breach of the IPC Code of Practice.

Posted by: HenryHippo Sun, 10 Sep 2017 - 18:10
Post #1314986

Had two letters from SCS law. Apologies that my attempt with the PDF didn't get the correct order. https://www.dropbox.com/s/upw7e9g3wt97pmw/Combined%20Doc.xps?dl=0

1) Responding to my counterclaim

They deny tortious interfrence because the landowner authorises the introduction of parking controls. I notice how they avoid mentioning the lease here

They mention that I haven't specified how the claim has caused me "serious distress" and "loss of leave time". They mention that the assertions in my defense suggest that I was the driver on the relevant dates

They mention that I have not shown how I arrived at a £500 counterclaim. I mentioned that a previous case had been £750 and that £500 was not unreasonable

2) Asking for a copy of my lease. I don't intend to provide this, is there any reason that I should do so?


Thanks

Posted by: Jlc Sun, 10 Sep 2017 - 18:14
Post #1314987

QUOTE (HenryHippo @ Sun, 10 Sep 2017 - 19:10) *
2) Asking for a copy of my lease. I don't intend to provide this, is there any reason that I should do so?

I see no reason in not providing the pertinent parts that prove your claim. After all you are supposed to avoid court if possible and resolve differences.

Posted by: HenryHippo Sun, 10 Sep 2017 - 20:44
Post #1315024

QUOTE (Jlc @ Sun, 10 Sep 2017 - 19:14) *
QUOTE (HenryHippo @ Sun, 10 Sep 2017 - 19:10) *
2) Asking for a copy of my lease. I don't intend to provide this, is there any reason that I should do so?

I see no reason in not providing the pertinent parts that prove your claim. After all you are supposed to avoid court if possible and resolve differences.


If I supply the lease then they will be in a better position to defend against it in court

Posted by: ostell Mon, 11 Sep 2017 - 06:35
Post #1315087

But you have already mentioned you lease as part of your defence. As you are making use of it then you will need to supply it to the court or that part of your defence will be ignored. As you have to supply to the court several weeks before any hearing they will get to see it anyway so send them the relevant portions now. One never knows, they may realise that continuing is pointless.

Posted by: Jlc Mon, 11 Sep 2017 - 08:04
Post #1315094

Indeed, it's not a game of cloak and daggers. If you have a valid defence then they may discontinue - and they can't change the facts.

Posted by: HenryHippo Mon, 11 Sep 2017 - 09:23
Post #1315118

QUOTE (ostell @ Mon, 11 Sep 2017 - 07:35) *
But you have already mentioned you lease as part of your defence. As you are making use of it then you will need to supply it to the court or that part of your defence will be ignored. As you have to supply to the court several weeks before any hearing they will get to see it anyway so send them the relevant portions now. One never knows, they may realise that continuing is pointless.


I didn't realise this.


QUOTE (Jlc @ Mon, 11 Sep 2017 - 09:04) *
Indeed, it's not a game of cloak and daggers. If you have a valid defence then they may discontinue - and they can't change the facts.


I would like this to discontinue. However having already paid for a counter-claim and gone through the hassle of defending the case, I would like to take the £500 from them.

If they opt to discontinue would I forfeit my counterclaim?

Posted by: kommando Mon, 11 Sep 2017 - 09:44
Post #1315127

QUOTE
If they opt to discontinue would I forfeit my counterclaim?


No, by counterclaiming you have forced this to go to a hearing, if they discontinue your counterclaim becomes stronger not weaker.

Posted by: HenryHippo Mon, 11 Sep 2017 - 09:46
Post #1315128

QUOTE (kommando @ Mon, 11 Sep 2017 - 10:44) *
QUOTE
If they opt to discontinue would I forfeit my counterclaim?


No, by counterclaiming you have forced this to go to a hearing, if they discontinue your counterclaim becomes stronger not weaker.


So for what reason would they discontinue?

If they realise that their case is hopeless and that going to court will incur costs at their end whilst not going to court will save these costs?

Posted by: The Rookie Mon, 11 Sep 2017 - 10:02
Post #1315133

1/ They have a habit of forgetting counter-claims (and sometimes the defendant has had to remind the courts of it)
2/ They may think they will lose anyway, so save the cost of representation

Posted by: nosferatu1001 Mon, 11 Sep 2017 - 11:02
Post #1315146

Was the defence to countercalim received by you within the required timeline? 14 days from memory.

Posted by: HenryHippo Mon, 11 Sep 2017 - 15:10
Post #1315227

QUOTE (nosferatu1001 @ Mon, 11 Sep 2017 - 12:02) *
Was the defence to countercalim received by you within the required timeline? 14 days from memory.


I think just outside. I got the defence to counterclaim about 3 weeks after I posted the counterclaim

If they responded late then the court would have to notice that sort of thing not me

Posted by: nosferatu1001 Mon, 11 Sep 2017 - 15:11
Post #1315229

No, the court has to do nothing. Its up to you to complain if items arent met, not the courts. In general theyre the arbiter of disputes raised, they dont raise issues themselves.

Posted by: HenryHippo Mon, 11 Sep 2017 - 15:15
Post #1315232

QUOTE (The Rookie @ Mon, 11 Sep 2017 - 11:02) *
1/ They have a habit of forgetting counter-claims (and sometimes the defendant has had to remind the courts of it)
2/ They may think they will lose anyway, so save the cost of representation



OK.

Anyone on here see a valid reason for me not to supply the lease?

https://www.dropbox.com/home?preview=Edited+Lease.pdf

Posted by: nosferatu1001 Mon, 11 Sep 2017 - 15:18
Post #1315233

It is unreasonable not to disclose the lease, or rather teh relevant portions of it. You have a duty to the courts to try to resolve these issues outside of court.

Posted by: hexaflexagon Mon, 11 Sep 2017 - 15:51
Post #1315253

I seem to detect a reluctance to let them have details of your lease. Why, or am I wrong?

Posted by: HenryHippo Mon, 11 Sep 2017 - 22:05
Post #1315367

QUOTE (hexaflexagon @ Mon, 11 Sep 2017 - 16:51) *
I seem to detect a reluctance to let them have details of your lease. Why, or am I wrong?


My initial reaction is not to comply with the other party given that we are in a dispute

However I am not an expert, therefore I asked on here, expecting to get arguments for both sides, although the advice has been very much one sided so far.

Posted by: SchoolRunMum Mon, 11 Sep 2017 - 22:19
Post #1315375

Show them the relevant parts of the lease and attach a covering letter than robustly tells them they can't win, their case is without merit, and encourages them to discontinue the claim (do not remind them about your counterclaim!).

And I am worried that you have been posting here for 2 months and haven't yet read bargepole's summary of 'WHAT HAPPENS WHEN' in the NEWBIES thread on MSE - posters should read it and you'd then know that you have to file all your evidence at Witness Statement stage, weeks before the hearing date. Don't miss these vital facts and stages; you will also have to file a WS that supports your counter-claim too.

I agree with the others. Just as it is their duty to be open with documents you might ask for, you must show them the same courtesy to attempt to resolve the dispute. And if their defence to the counter-claim was received 3 weeks after you counter-claimed, be ready to raise that at Witness Statement stage because no Judge is going to do this for you.

Posted by: hexaflexagon Mon, 11 Sep 2017 - 22:23
Post #1315377

QUOTE (HenryHippo @ Mon, 11 Sep 2017 - 23:05) *
QUOTE (hexaflexagon @ Mon, 11 Sep 2017 - 16:51) *
I seem to detect a reluctance to let them have details of your lease. Why, or am I wrong?


My initial reaction is not to comply with the other party given that we are in a dispute

However I am not an expert, therefore I asked on here, expecting to get arguments for both sides, although the advice has been very much one sided so far.


Have you considered that from your point of view there is 'no other side' to the argument. The experts here have, as far as I can see given you chapter and verse on what you need to do.
I just don't understand why you think giving the claimant (and the court) an excuse to find you a 'difficult' litigant by not providing earlier rather than later, information they have reasonably requested, is in any way in your best interests.

The advice always is to take the moral high ground and come across to a judge who will eventually have this matter in their hands as a reasonable person.


Posted by: nosferatu1001 Tue, 12 Sep 2017 - 06:46
Post #1315399

QUOTE (HenryHippo @ Mon, 11 Sep 2017 - 23:05) *
QUOTE (hexaflexagon @ Mon, 11 Sep 2017 - 16:51) *
I seem to detect a reluctance to let them have details of your lease. Why, or am I wrong?


My initial reaction is not to comply with the other party given that we are in a dispute

However I am not an expert, therefore I asked on here, expecting to get arguments for both sides, although the advice has been very much one sided so far.

then you will be potentially shown to be "unreasonable" meaning that even if you win, the other side may be able to claim their FULL costs from you under rule CPR27.14(2)(g)
there is no other side to this. You are required to try settle this matter outside of court. Complying with this utterly reasonable request is part of that.

Do as SRM has told you and go read the MSE NEWBIES thread on small claims and what happens. That tells you precisely what we've already been telling you.

Posted by: Eljayjay Tue, 12 Sep 2017 - 13:36
Post #1315547

I am mightily confused.

Way back in post #5, you mentioned that your lease states that you have an allocated parking space, but then, in the same post, you mention that residents can park where they like provided that a permit is displayed.

What is the explanation for your two contradictory comments?

Posted by: HenryHippo Tue, 12 Sep 2017 - 19:58
Post #1315630

QUOTE (Eljayjay @ Tue, 12 Sep 2017 - 14:36) *
I am mightily confused.

Way back in post #5, you mentioned that your lease states that you have an allocated parking space, but then, in the same post, you mention that residents can park where they like provided that a permit is displayed.

What is the explanation for your two contradictory comments?


The lease does indeed state that (link to my lease is above if you would like to read it). Lease was from ~2004

There is no actual singular space outlined in the diagram however.

In 2015 the managing agents introduced a permit scheme, with no stipulation on which parking spot you take, just as long as you have a permit

Posted by: HenryHippo Tue, 12 Sep 2017 - 20:25
Post #1315635

QUOTE (SchoolRunMum @ Mon, 11 Sep 2017 - 23:19) *
Show them the relevant parts of the lease and attach a covering letter than robustly tells them they can't win, their case is without merit, and encourages them to discontinue the claim (do not remind them about your counterclaim!).

And I am worried that you have been posting here for 2 months and haven't yet read bargepole's summary of 'WHAT HAPPENS WHEN' in the NEWBIES thread on MSE - posters should read it and you'd then know that you have to file all your evidence at Witness Statement stage, weeks before the hearing date. Don't miss these vital facts and stages; you will also have to file a WS that supports your counter-claim too.

I agree with the others. Just as it is their duty to be open with documents you might ask for, you must show them the same courtesy to attempt to resolve the dispute. And if their defence to the counter-claim was received 3 weeks after you counter-claimed, be ready to raise that at Witness Statement stage because no Judge is going to do this for you.


Do you mean this thread? http://forums.moneysavingexpert.com/showthread.php?t=5546325

I have used this one too http://forums.moneysavingexpert.com/showthread.php?t=4816822

I have read it before, but doesn't hurt to read it again in this instance

I will do as you suggest and will not mention the counterclaim

Posted by: Eljayjay Wed, 13 Sep 2017 - 04:27
Post #1315664

Based on what you say in posts #5 and #100, it seems that you have a right to park under your lease in an allocated parking space which does not, in fact, exist. Put another way, it seems that you do not have any parking rights under your lease.

Is that why you are reluctant to divulge the lease's contents to the claimant? If it is, I can understand your predicament.

Frankly, I think you need to sort this out with the lessor, probably through your own solicitor. As things stand, you appear to have not only the current problem with the PPC but also a potential problem if/when you come to sell the flat.

By all means wait for further comments from SRM, etc..

Posted by: hexaflexagon Wed, 13 Sep 2017 - 09:06
Post #1315699

QUOTE (Eljayjay @ Wed, 13 Sep 2017 - 05:27) *
Based on what you say in posts #5 and #100, it seems that you have a right to park under your lease in an allocated parking space which does not, in fact, exist. Put another way, it seems that you do not have any parking rights under your lease.

Is that why you are reluctant to divulge the lease's contents to the claimant? If it is, I can understand your predicament.

Frankly, I think you need to sort this out with the lessor, probably through your own solicitor. As things stand, you appear to have not only the current problem with the PPC but also a potential problem if/when you come to sell the flat.

By all means wait for further comments from SRM, etc..


Have you taken the obvious step, given that the right to park is key to any defence of asking the landlord to confirm in writing which is your allocated parking space (that's how the lease describes it) and send you a plan indicating the location.

Posted by: ostell Wed, 13 Sep 2017 - 09:36
Post #1315707

Or spend £3 at the land registry to get a copy of the map showing the demised land.

Posted by: Eljayjay Wed, 13 Sep 2017 - 12:30
Post #1315750

They seem like wise words from hexaflexagon and ostell. Use eservices.landregistry.gov.uk.

Posted by: HenryHippo Thu, 14 Sep 2017 - 09:54
Post #1316015

QUOTE (hexaflexagon @ Wed, 13 Sep 2017 - 10:06) *
QUOTE (Eljayjay @ Wed, 13 Sep 2017 - 05:27) *
Based on what you say in posts #5 and #100, it seems that you have a right to park under your lease in an allocated parking space which does not, in fact, exist. Put another way, it seems that you do not have any parking rights under your lease.

Is that why you are reluctant to divulge the lease's contents to the claimant? If it is, I can understand your predicament.

Frankly, I think you need to sort this out with the lessor, probably through your own solicitor. As things stand, you appear to have not only the current problem with the PPC but also a potential problem if/when you come to sell the flat.

By all means wait for further comments from SRM, etc..


Have you taken the obvious step, given that the right to park is key to any defence of asking the landlord to confirm in writing which is your allocated parking space (that's how the lease describes it) and send you a plan indicating the location.


The lease is a little ambiguous yes. I took "parking space" to mean the communal space rather than a dedicated individual space. Do you see what I mean?

I am the owner of my flat, so by landlord you mean the managing agents?

QUOTE (ostell @ Wed, 13 Sep 2017 - 10:36) *
Or spend £3 at the land registry to get a copy of the map showing the demised land.


If I pay the land registry £3 then they will tell me if the parking area is mine to use or if it belongs to the managing company?

Posted by: hexaflexagon Thu, 14 Sep 2017 - 10:04
Post #1316025

QUOTE (HenryHippo @ Thu, 14 Sep 2017 - 10:54) *
I am the owner of my flat, so by landlord you mean the managing agents?


But we're not talking about the status of the flat we're talking about the land on which you park. I understand from all that's been said that your right to park has been assigned under a lease.

So where in post # 103 I said Landlord substitute Leaseholder.
The leaseholder is unlikely to be the Managing agent although you could usefully start by asking them to obtain the details from the Leaseholder - that's presumably why the word 'managing' in 'Managing Agent' is there.

Posted by: Eljayjay Thu, 14 Sep 2017 - 10:29
Post #1316035

In many (perhaps most) leases for flats, the freeholder is known as the "Landlord" and the leaseholder is known as the "Tenant". An "allocated parking space" normally refers to a single space for use by a single vehicle allocated to a leaseholder. The space is usually shown on a plan with all other parking spaces but distinguished from the others by it's best boundary being marked in a different colour. From memory, your quotation from the lease in post #5 fits this description to a tee.

Is the lease in your possession signed or was it simply a draft? It sounds to me as though it may have been the latter. The proper signed version may well be in a file held by the solicitor who handled the purchase for you. You need to establish the true situation - eservices.landregistry.gov.uk is a good place to start.

Posted by: ostell Thu, 14 Sep 2017 - 10:37
Post #1316037

So you go onto http://eservices.landregistry.gov.uk/www/wps/portal/!ut/p/b1/04_Sj9CPykssy0xPLMnMz0vMAfGjzOKNjSxMDA1NjDwsjM3MDTxN3dyNDUNMjQ1MjPWDU_P0C7IdFQG9k5Tz/and put in your full address and request the map. The map will show the property and any other land that goes with it outlined in red.

But if you have the lease then you should also have, within that lease, a map showing the property that is the subject of the lease.

Posted by: HenryHippo Thu, 14 Sep 2017 - 12:26
Post #1316072

QUOTE (hexaflexagon @ Thu, 14 Sep 2017 - 11:04) *
QUOTE (HenryHippo @ Thu, 14 Sep 2017 - 10:54) *
I am the owner of my flat, so by landlord you mean the managing agents?


But we're not talking about the status of the flat we're talking about the land on which you park. I understand from all that's been said that your right to park has been assigned under a lease.

So where in post # 103 I said Landlord substitute Leaseholder.
The leaseholder is unlikely to be the Managing agent although you could usefully start by asking them to obtain the details from the Leaseholder - that's presumably why the word 'managing' in 'Managing Agent' is there.


OK I can do that.

Write to the managing agents asking them

"I would like to understand more details of my write to park in the communal car park. My lease makes reference to an "allocated parking space as shown in the diagram" but the diagram does not show one. Can you please ask the leaseholder where my allocated parking spot is?"

Does that sound correct?

QUOTE (Eljayjay @ Thu, 14 Sep 2017 - 11:29) *
In many (perhaps most) leases for flats, the freeholder is known as the "Landlord" and the leaseholder is known as the "Tenant". An "allocated parking space" normally refers to a single space for use by a single vehicle allocated to a leaseholder. The space is usually shown on a plan with all other parking spaces but distinguished from the others by it's best boundary being marked in a different colour. From memory, your quotation from the lease in post #5 fits this description to a tee.

Is the lease in your possession signed or was it simply a draft? It sounds to me as though it may have been the latter. The proper signed version may well be in a file held by the solicitor who handled the purchase for you. You need to establish the true situation - eservices.landregistry.gov.uk is a good place to start.


Been on the landregistry site but getting an error from this postcode. Seems to work on houses but not flats

I just have a draft lease.

Looking at Plan 1 in the lease now. The block of flats and the car park are all shaded in brown (see link below). The car was parked in the blue circle

The shaded area is the demised area, so that looks to be a strong defense to me. What do you think?

https://www.dropbox.com/s/2534xoxpfyiawpz/lease%20snip.PNG?dl=0

Posted by: hexaflexagon Thu, 14 Sep 2017 - 12:46
Post #1316081

QUOTE (HenryHippo @ Thu, 14 Sep 2017 - 13:26) *
"I would like to understand more details of my write to park in the communal car park. My lease makes reference to an "allocated parking space as shown in the diagram" but the diagram does not show one. Can you please ask the leaseholder where my allocated parking spot is?"

Does that sound correct?


More or less apart from a spelling mistake.

I would like to understand more details of my right to park in the communal car park.
My lease makes reference to an "allocated parking space as shown in the diagram" but the diagram does not show such a space. Would you please ask the leaseholder to let me have a certified copy of the plan that shows exactly where my allocated parking space is located? This is required as evidence in a legal matter I am involved with.

Posted by: HenryHippo Thu, 14 Sep 2017 - 13:11
Post #1316095

QUOTE (hexaflexagon @ Thu, 14 Sep 2017 - 13:46) *
QUOTE (HenryHippo @ Thu, 14 Sep 2017 - 13:26) *
"I would like to understand more details of my write to park in the communal car park. My lease makes reference to an "allocated parking space as shown in the diagram" but the diagram does not show one. Can you please ask the leaseholder where my allocated parking spot is?"

Does that sound correct?


More or less apart from a spelling mistake.

I would like to understand more details of my right to park in the communal car park.
My lease makes reference to an "allocated parking space as shown in the diagram" but the diagram does not show such a space. Would you please ask the leaseholder to let me have a certified copy of the plan that shows exactly where my allocated parking space is located? This is required as evidence in a legal matter I am involved with.


Cheers

Posted by: HenryHippo Thu, 14 Sep 2017 - 17:53
Post #1316181

Will hold off on sending any leases to SCS until I hear back from the leaseholder

Posted by: SchoolRunMum Thu, 14 Sep 2017 - 22:47
Post #1316247

This is confusing to me. As a flat owner, IMHO you are the leaseholder and the overall site/building owner is the freeholder.

Posted by: Eljayjay Fri, 15 Sep 2017 - 00:11
Post #1316258

In post #5, you mentioned that your lease described your parking space as being "The parking space shown on the Plan 1 being part of the Parking Spaces and numbered with the same plot number as the Demised Premises or such other parking space as the lessor may allocate from time to time if it becomes reasonably necessary to do so".

Are the parking spaces numbered? Is your flat number the same as the original plot number? If the answer to both of these questions is "yes" and the lessor has not informed you of the necessity to allocate another parking space, then you should know which parking space belongs to you. If you are still in any doubt, ask the solicitor who acted for you when purchasing the flat for a copy of the signed lease and its attachments. My kids' solicitor emailed their lease, etc. to them in a very similar situation at no charge within hours of the request being made.

Posted by: HenryHippo Fri, 15 Sep 2017 - 11:42
Post #1316341

QUOTE (SchoolRunMum @ Thu, 14 Sep 2017 - 23:47) *
This is confusing to me. As a flat owner, IMHO you are the leaseholder and the overall site/building owner is the freeholder.


Sorry, what is confusing exactly? The wording of the lease or my query to the managing agents?

Do you think I need to be worried by the recent turn of events? Like I say, I am holding fire on sending the lease until I get a reply

QUOTE (Eljayjay @ Fri, 15 Sep 2017 - 01:11) *
In post #5, you mentioned that your lease described your parking space as being "The parking space shown on the Plan 1 being part of the Parking Spaces and numbered with the same plot number as the Demised Premises or such other parking space as the lessor may allocate from time to time if it becomes reasonably necessary to do so".

Are the parking spaces numbered? Is your flat number the same as the original plot number? If the answer to both of these questions is "yes" and the lessor has not informed you of the necessity to allocate another parking space, then you should know which parking space belongs to you. If you are still in any doubt, ask the solicitor who acted for you when purchasing the flat for a copy of the signed lease and its attachments. My kids' solicitor emailed their lease, etc. to them in a very similar situation at no charge within hours of the request being made.


No numbers on the spaces, complete free for all

No change to my flat number and plot number

Have got in touch with my solicitor.. thanks

Posted by: SchoolRunMum Fri, 15 Sep 2017 - 17:46
Post #1316410

QUOTE (HenryHippo @ Thu, 14 Sep 2017 - 18:53) *
Will hold off on sending any leases to SCS until I hear back from the leaseholder


This is what's confusing me. You are the leasehold title owner of the flat. The overall landowner of flats is the freeholder.

Posted by: HenryHippo Fri, 15 Sep 2017 - 21:31
Post #1316451

QUOTE (SchoolRunMum @ Fri, 15 Sep 2017 - 18:46) *
QUOTE (HenryHippo @ Thu, 14 Sep 2017 - 18:53) *
Will hold off on sending any leases to SCS until I hear back from the leaseholder


This is what's confusing me. You are the leasehold title owner of the flat. The overall landowner of flats is the freeholder.


Well my lease doesn't actually mention the landowner as a "leaseholder". I think this discussion has confused things

"Allocated Parking Space: The Parking Space shown on the Plan 1 being part of the Parking Spaces and numbered with the same plot number as the Demised Premises or such other parking space as the Lessor may allocate in writing from time to time if it becomes reasonably necessary to do so"

Moving to Plan 1 there is no singular space shown, although the entire car park is highlighted

There is also nothing in the lease mentioning I require a parking permit, so does the tortious interference claim still stand?

Do you think I should send the lease to SCS now, or wait?

Posted by: whjohnson Fri, 15 Sep 2017 - 22:32
Post #1316466

OK!

Let's try another tack.

Do you own the flat as a leaseholder or a freeholder?

If leaseholder only, who di you lease from?

Posted by: Eljayjay Sat, 16 Sep 2017 - 01:00
Post #1316486

In post #110, HenryHippo says "I just have a draft lease".

It seems to me that HenryHippo needs to get hold of the proper engrossed version of the lease which the parties to it actually signed. When he has that, he needs to tell us who the parties are and how they are described. From what he has told us about the definition of Allocated Parking Space, the owner of the freehold is almost certainly known as the "Lessor" in the lease. It does, therefore, seem very likely that HenryHippo himself is the leasehold owner and is known as the "Lessee" in the lease. This is, however, mere speculation on my part which HenryHippo needs to confirm or correct once he has a copy of the signed lease.

It also seems to me that, at the same time, HenryHippo needs to go through the lease with a fine toothed comb and collate all references to parking, quiet enjoyment and powers of amendment which it contains.

In short, HenryHippo's urgent first priority is to acquire knowledge and understanding of what his lease actually says. It is only then that he should share that knowledge and understanding with the claimant.


Posted by: nosferatu1001 Sat, 16 Sep 2017 - 01:15
Post #1316488

The lessor is the person letting the land. They're usually the free holder of the land i.e. Holds free clear title, not fir a limited term as in a lease.

Posted by: HenryHippo Sat, 23 Sep 2017 - 22:38
Post #1318214

QUOTE (Eljayjay @ Sat, 16 Sep 2017 - 02:00) *
In post #110, HenryHippo says "I just have a draft lease".

It seems to me that HenryHippo needs to get hold of the proper engrossed version of the lease which the parties to it actually signed. When he has that, he needs to tell us who the parties are and how they are described. From what he has told us about the definition of Allocated Parking Space, the owner of the freehold is almost certainly known as the "Lessor" in the lease. It does, therefore, seem very likely that HenryHippo himself is the leasehold owner and is known as the "Lessee" in the lease. This is, however, mere speculation on my part which HenryHippo needs to confirm or correct once he has a copy of the signed lease.

It also seems to me that, at the same time, HenryHippo needs to go through the lease with a fine toothed comb and collate all references to parking, quiet enjoyment and powers of amendment which it contains.

In short, HenryHippo's urgent first priority is to acquire knowledge and understanding of what his lease actually says. It is only then that he should share that knowledge and understanding with the claimant.


Yep. I have asked for this from the managing agents via the owner of the freeholder and they tell me they will be in touch

Had a "General Form of Judgement or Order" come through, dated 21st Sept

It is ordered that:

"Unless the Claimant files their Directions Questionnaire within 7 days of the date of this Order the Claim shall be struck out and the Claimaint shall be liable for any costs the Defendant has incurred"


Just an FYI for me, hopefully they don't reply in time

Posted by: SchoolRunMum Sat, 23 Sep 2017 - 23:13
Post #1318222

Good - they've missed filing a DQ? And they defended the counter-claim too late as well?

You've already incurred a £25 fee for the counter-claim, and a Land Registry look up fee haven't you, and hours of time wasted over the matter.

Just to also add, as an idea (and I'm not a solicitor or legally trained) but why not write to the Court with reference to that Order, and remind them that you also have a counter-claim which was not defended in time, despite the Claimant using a firm of Solicitors who can have no excuse for treating the Court and unrepresented Litigants in Person with such disdain. So, state that if the Claimant fails to file a DQ, you not only wish to claim your costs (attach a costs schedule) but you also wish to enforce the undefended counter-claim.

Posted by: nosferatu1001 Sun, 24 Sep 2017 - 15:02
Post #1318333

Do exactly as above.

Posted by: HenryHippo Sun, 24 Sep 2017 - 21:10
Post #1318404

QUOTE (SchoolRunMum @ Sun, 24 Sep 2017 - 00:13) *
Good - they've missed filing a DQ? And they defended the counter-claim too late as well?

You've already incurred a £25 fee for the counter-claim, and a Land Registry look up fee haven't you, and hours of time wasted over the matter.

Just to also add, as an idea (and I'm not a solicitor or legally trained) but why not write to the Court with reference to that Order, and remind them that you also have a counter-claim which was not defended in time, despite the Claimant using a firm of Solicitors who can have no excuse for treating the Court and unrepresented Litigants in Person with such disdain. So, state that if the Claimant fails to file a DQ, you not only wish to claim your costs (attach a costs schedule) but you also wish to enforce the undefended counter-claim.


So the notice I have had in the post is to tell me that the Claimant is approaching the end of the deadline for the Directions Questionaire, and that if they don't hurry up they will lose their claim?

Do you think I should wait until the end of the month before I write to the court, in case they do file a DQ last minute?

Posted by: nosferatu1001 Mon, 25 Sep 2017 - 07:28
Post #1318438

Yes, IF they dont file their DQ in time, the court will strike out their claim. Even better, the court is already saying you can claim costs to date - essentially allowing your time at £19ph to be charged, which means they reckon is iut unreasonable behaviour pursuant to CPR27.14(2)(g) which allows the court to award costs even in a small claims setting where costs are heavily limited.

That will leave ONLY your counterclaim, and essentially you at the same time as writing about the costs for the claim having been stuck, state your counterclaim was not defende3d in good time, please can the claimants defence be struck out and a default judgment awarded against them for the amount you claimed PLUS the costs of the filing fee etc.

I would call the court after the deadline and see fit eh DQ arrived in time. Once you know it hasnt I would write to the court as above.

Remember - YOU MUST ALSO get a copy of their DQ, so if you dont, include that as further evidence - they couldnt wsend one to the court OR you.

Posted by: The Rookie Mon, 25 Sep 2017 - 12:06
Post #1318541

I'm not sure how you can claim for a default judgement on the counter claim, but I'd be certainly trying to find out!

Posted by: nosferatu1001 Mon, 25 Sep 2017 - 12:59
Post #1318552

QUOTE (The Rookie @ Mon, 25 Sep 2017 - 13:06) *
I'm not sure how you can claim for a default judgement on the counter claim, but I'd be certainly trying to find out!

Defence to counterclaim was filed too late (14 days from receipt) meaning they have not filed a defence, same as if you dont file a defence to a claim you can go for default judgement.

Posted by: panther12 Mon, 25 Sep 2017 - 15:01
Post #1318572

QUOTE (nosferatu1001 @ Mon, 25 Sep 2017 - 13:59) *
QUOTE (The Rookie @ Mon, 25 Sep 2017 - 13:06) *
I'm not sure how you can claim for a default judgement on the counter claim, but I'd be certainly trying to find out!

Defence to counterclaim was filed too late (14 days from receipt) meaning they have not filed a defence, same as if you dont file a defence to a claim you can go for default judgement.
In the latter it's who gets in first after the deadline to file a defence has passed. If the defence is filed late but before a request for default judgment is filed, the defence takes priority even if it was filed late. Although I'm not sure if that's the same regarding a counterclaim.

Posted by: nosferatu1001 Tue, 26 Sep 2017 - 06:43
Post #1318705

Not the same, from memory - defence filed too late, can suggest to the court it is struck out as it failed to meet the requirements of the CPR, and so there is no defence to counterclaim
Dont ask dont get however.

Posted by: panther12 Tue, 26 Sep 2017 - 12:01
Post #1318776

If they haven't defended the counterclaim in time, If the CC is for a specified sum I think as soon as the 14 days is up I would complete and send the court an N225 request for judgment form. If the claimant has also failed to file their DQ in time I would also mention that in a covering letter attached to the N225 and hopefully that will sway the court to strike out their claim and rubber stamp the judgment on the CC.

Posted by: HenryHippo Sun, 1 Oct 2017 - 19:24
Post #1320044

QUOTE (whjohnson @ Fri, 15 Sep 2017 - 23:32) *
OK!

Let's try another tack.

Do you own the flat as a leaseholder or a freeholder?

If leaseholder only, who di you lease from?


Sorry missed this.

Leaseholder and the lessor (I think this is the same person I lease from) is listed as "Kingsoak Homes Limited" in my lease



Update


1st October now and had nothing in the post on this

Deadline for the other party to respond was 28th Sept

However it is not inconceivable that they responded last minute and the notice to myself is still in the post

Posted by: nosferatu1001 Mon, 2 Oct 2017 - 07:40
Post #1320133

Its not relevant - you had to have received the documents by the deadline, they cant send them ON the deadline. ALL the deadlines work the same way

Call the court, see if they have them. Say you dont have yours. If both dont have them write to the court, ask the claim to be struck as the claimant failed to comply with court order xxx on xxx

Posted by: HenryHippo Sun, 8 Oct 2017 - 22:00
Post #1321861

This letter came in the post this week, dated 29th Sept.

Hearing date 8th Dec. I need to deliver within 14 days of the hearing. Setting myself a deadline of mid November. Same judge as the other case, but different venue

https://www.dropbox.com/s/k35kd7te0rt6mq7/IMG_1461.JPG?dl=0

I will call the court this week to check if the other party responded in time for the 7 day deadline, as this letter is dated 8 days after that deadline.


QUOTE (nosferatu1001 @ Mon, 2 Oct 2017 - 08:40) *
Its not relevant - you had to have received the documents by the deadline, they cant send them ON the deadline. ALL the deadlines work the same way

Call the court, see if they have them. Say you dont have yours. If both dont have them write to the court, ask the claim to be struck as the claimant failed to comply with court order xxx on xxx


Deadline was 28th Sept

The letter I had in the post was dated 29th Sept, I got it in the post 5th Oct.

Looks like I have a case to be struck out?

Posted by: The Rookie Mon, 9 Oct 2017 - 04:57
Post #1321879

Yes, but a weak one I'm afraid. I doubt very much a judge will strikeout on that basis this far from the court case, and you missed your window to ask for a default judgement.

Posted by: HenryHippo Mon, 9 Oct 2017 - 11:22
Post #1321941

QUOTE (The Rookie @ Mon, 9 Oct 2017 - 05:57) *
Yes, but a weak one I'm afraid. I doubt very much a judge will strikeout on that basis this far from the court case, and you missed your window to ask for a default judgement.


Surely the rules are the rules. If the Claimant didn't stick to the procedure then it should be struck out

Posted by: kommando Mon, 9 Oct 2017 - 12:26
Post #1321964

There are rules but Judges have discretion so more like guidelines and small claims means more lenient action.

Posted by: nosferatu1001 Tue, 10 Oct 2017 - 00:41
Post #1322136

QUOTE (HenryHippo @ Mon, 9 Oct 2017 - 12:22) *
QUOTE (The Rookie @ Mon, 9 Oct 2017 - 05:57) *
Yes, but a weak one I'm afraid. I doubt very much a judge will strikeout on that basis this far from the court case, and you missed your window to ask for a default judgement.


Surely the rules are the rules. If the Claimant didn't stick to the procedure then it should be struck out


No, otherwise people wouldn’t have said the exact opposite.
Courts have a lot of leeway. You should have asked for a strike out when told.

Posted by: HenryHippo Wed, 18 Oct 2017 - 09:22
Post #1324423

Update

Had a reply from the management company supplying the lease

Lease: https://www.dropbox.com/s/ivbccclqbc3jusc/edited_New%20Lease%20EDITED.pdf?dl=0

Diagram: https://www.dropbox.com/s/1kdf849t00se8t9/edited_Parking%20Diagram.pdf?dl=0

Questions from me to the experts on here

- Page 2 of the lease mentions the Demised Premises, "the ground floor dwelling known as Plot 39". I don't live on the ground floor and my flat number is not 39, does this mean I have the wrong lease?

-Page 2, it mentions an Allocated Parking Space on Plan 1 with the same number as the Plot [39] (this is the other document I uploaded). Plot 39 is the top right of this document.

So according to the lease, each flat has an allocated parking space, therefore only one car permitted per property. However this is not the case in practice. Residents have parked in whichever space they pleased with as many cars as they please (both before and after permits were introduced in late 2016). My Plot 39 is constantly parked in by other drivers, none of which have been ticketed for this. Each flat was issued one permit, with an option to buy up to 2 more for £5 each.

Despite the fact that each flat has an allocated bay, the Claimant hasn't gone after all the other drivers here, which I don't understand as they would make an awful lot of money doing this.

So do I have a defense in that my lease permits me unfettered access to parking, no permits required, albeit to one particular space? The Claimant hasn't used the allocated space in their claim, so they can't use this against me in court?

Posted by: ostell Wed, 18 Oct 2017 - 10:36
Post #1324452

Your parking space will bear the same number as your flat. I think they may sent you the lease for 39 as that is the one they had handy, unless your name is on the lease. In which case there has been a mighty great cockup somewhere.

The awkward bit is on page 10 7.4 which allows the management company to change the rules. However they cannot make rules that make matters worse for residents than what was already in the lease, known as derogation of grant. Expecting a permit to be displayed may be OK but charging for that permit would not be, in my opinion, and charging £100 for forgetting to display a permit would definitely be a worse situation.

Page 15, 6 & 8 The right to park and right of visitors parking. THere is no mention of a permit required nor a charge if you don't.

Posted by: Eljayjay Wed, 18 Oct 2017 - 14:05
Post #1324520

Plot numbers are temporary numbers allocated for the planning and building stages. They can be completely different to the eventual flat or house numbers. Obviously, you would expect the ground floor to still be the ground floor (unless, of course, subsidence is a massive problem).

I would suggest you visit your nearest Land Registry office, complete the appropriate form, pay the fee of about £10 and get a copy of the lease that way.

Posted by: ostell Wed, 18 Oct 2017 - 14:16
Post #1324525

This is not for planning purposes, this is an actual lease from the purchase registered with the land registry.

You can order your own copy of your own lease on line from the land registry.

Posted by: HenryHippo Wed, 18 Oct 2017 - 15:45
Post #1324552

QUOTE (ostell @ Wed, 18 Oct 2017 - 11:36) *
Your parking space will bear the same number as your flat. I think they may sent you the lease for 39 as that is the one they had handy, unless your name is on the lease. In which case there has been a mighty great cockup somewhere.

The awkward bit is on page 10 7.4 which allows the management company to change the rules. However they cannot make rules that make matters worse for residents than what was already in the lease, known as derogation of grant. Expecting a permit to be displayed may be OK but charging for that permit would not be, in my opinion, and charging £100 for forgetting to display a permit would definitely be a worse situation.

Page 15, 6 & 8 The right to park and right of visitors parking. THere is no mention of a permit required nor a charge if you don't.


I think they sent me the correct lease, as the name on the lease was the person I bought the flat off. (Unless of course she bought multiple flats). My flat is 40 so it is close.

Good spot on page 10. I don't think a £1k+ charge can be held as reasonable. But this is up to the judge's discretion right?

Page 15: "The right to park on a first come first serve basis any space marked on the diagram". That contradicts the previous right to only the allocated parking spot no?

QUOTE (ostell @ Wed, 18 Oct 2017 - 15:16) *
This is not for planning purposes, this is an actual lease from the purchase registered with the land registry.

You can order your own copy of your own lease on line from the land registry.


So the lease I have been supplied is the previous owners lease and therefore not mine?

And if I go to the land registry I can buy a copy of the lease with my own name in it?


Posted by: Eljayjay Wed, 18 Oct 2017 - 16:22
Post #1324564

Yes, you should be able to get a copy of the lease with your name on it from the Land Registry.

Posted by: ostell Wed, 18 Oct 2017 - 16:27
Post #1324568

QUOTE
Good spot on page 10. I don't think a £1k+ charge can be held as reasonable. But this is up to the judge's discretion right?


They can't take away what you already have, and that is to park without a permit or charge.

Posted by: HenryHippo Wed, 18 Oct 2017 - 18:04
Post #1324595

QUOTE (ostell @ Wed, 18 Oct 2017 - 17:27) *
QUOTE
Good spot on page 10. I don't think a £1k+ charge can be held as reasonable. But this is up to the judge's discretion right?


They can't take away what you already have, and that is to park without a permit or charge.


OK

Assuming the lease I get from the land registry is identical to the one I have already (just with my name in it) then this will be an integral piece of evidence


Posted by: Eljayjay Thu, 19 Oct 2017 - 00:34
Post #1324694

This is not hard.

The lease will describe a property. If it mentions a property on the ground floor and your flat is not on the ground floor, there are two possibilities: you are living in the wrong flat, or you have the wrong lease.

When you have the right lease for the right flat, you should know what your parking rights are. Hopefully, you will find that you have parked in accordance with those rights.

Posted by: HenryHippo Thu, 19 Oct 2017 - 09:24
Post #1324739

Bit confused on which Land Registry Service to use

This link https://eservices.landregistry.gov.uk/www/wps/portal/!ut/p/b1/hc7LDoIwEAXQb_ELpi-gLkEDGK3a4gO6IRiV4ANNNKL9esGdGmV2k5x7Z0BDQknX4QRzBjHoMrsVeXYtTmV2aHZtp5RwhjEjIae2gwaWH1A8syhitAbJHxDgtvwSYsTSaMfP4nGNR6Z3m-2MJBcjzXg1rERf3MV6O10v1NxzPaljpSDalHVOf1RPfBcNqDcZBlQShOwv8H6bkxbQ_P4C6Me4CMbh6biBpGbOrx6-YHDUhxHbq7DKO50nlQLqyQ!!/dl4/d5/L2dJQSEvUUt3QS80SmtFL1o2XzMyODQxMTQySDgzNjcwSTVGRzMxVDUzMDgy/

All it offers me is:

Title Register (£3)
Title Plan (£3)
Flood Risk Indicator Result (£9)

Is there a separate place to get leases?

Posted by: ostell Thu, 19 Oct 2017 - 09:55
Post #1324746

I paid £6 and got the Register and Plan. The register should have your name on it, the Plan is what it says.

I can see the sea so flood risk was of no interest. If I flood then there's a real real problem!

Posted by: HenryHippo Thu, 19 Oct 2017 - 10:11
Post #1324753

QUOTE (ostell @ Thu, 19 Oct 2017 - 10:55) *
I paid £6 and got the Register and Plan. The register should have your name on it, the Plan is what it says.

I can see the sea so flood risk was of no interest. If I flood then there's a real real problem!


So the Register and Plan will have all that I need?

I.e. the same as the lease I have already just with my name not someone elses?

Posted by: kommando Thu, 19 Oct 2017 - 10:26
Post #1324757

If they supply a lease that does not have your name on it then complain until they do.

Posted by: HenryHippo Thu, 19 Oct 2017 - 10:56
Post #1324769

QUOTE (kommando @ Thu, 19 Oct 2017 - 11:26) *
If they supply a lease that does not have your name on it then complain until they do.


have done, but they took 2 weeks to get back to me last time

i don't have the luxury of that much time before i submit evidence

Posted by: ostell Thu, 19 Oct 2017 - 11:07
Post #1324773

So you complain about the incorrect documents supplied, and make sure it casts doubts about the rest of their supplied evidence.

Posted by: HenryHippo Thu, 19 Oct 2017 - 11:20
Post #1324775

QUOTE (ostell @ Thu, 19 Oct 2017 - 12:07) *
So you complain about the incorrect documents supplied, and make sure it casts doubts about the rest of their supplied evidence.


Are you saying I should complain to the judge in the witness statement?

Given that the property management company is a different entity to the Claimant would this stand up in court?

Posted by: nosferatu1001 Thu, 19 Oct 2017 - 18:06
Post #1324942

The property management co are the principal in this contract, the ppc are their agents.

Posted by: Eljayjay Thu, 19 Oct 2017 - 19:05
Post #1324964

You seem to be so hopelessly lost when it comes to your lease that I would suggest you visit your nearest Land Registry office so that you can get some personal assistance.

The title register and the title plan are not the same as your lease.

You will need to complete a form - from memory, I think it is either an OC1 or an OC2 - and pay a further charge to obtain a copy of your lease.

Getting the right title register and the right title plan will provide some key data to enable you to complete the form to obtain the right lease.

Posted by: emanresu Fri, 20 Oct 2017 - 01:55
Post #1325053

Should be OC2 (Official Copy). Fees appear to be £3.

https://www.gov.uk/guidance/hm-land-registry-information-services-fees

Posted by: HenryHippo Fri, 20 Oct 2017 - 16:04
Post #1325231

Have paid for the Register and Plan https://www.dropbox.com/s/c3fqk8o2p5nc23v/edited_RegisterPlanBK390677.pdf?dl=0

On the 2nd page, Point 2, number 2 (I have covered the persons name) is the previous owner who also for some reason was on the deeds to the lease that I was given for Flat 39. So either she owned 2 flats in the building or they managment company made a mistake.

Quite possible she owned 2 as she was running it as a buy to let and she lives in a well off area herself

And thanks will apply for O2C form

Posted by: HenryHippo Sat, 21 Oct 2017 - 16:51
Post #1325405

QUOTE (ostell @ Wed, 18 Oct 2017 - 11:36) *
Your parking space will bear the same number as your flat. I think they may sent you the lease for 39 as that is the one they had handy, unless your name is on the lease. In which case there has been a mighty great cockup somewhere.

The awkward bit is on page 10 7.4 which allows the management company to change the rules. However they cannot make rules that make matters worse for residents than what was already in the lease, known as derogation of grant. Expecting a permit to be displayed may be OK but charging for that permit would not be, in my opinion, and charging £100 for forgetting to display a permit would definitely be a worse situation.

Page 15, 6 & 8 The right to park and right of visitors parking. THere is no mention of a permit required nor a charge if you don't.


Update

Response from the management company to advise that I did have the correct lease in the first place. Therefore no need to seek out another one


Thank you for your email.

I can confirm we have sent you the correct lease. Please be advised your plot is plot number 39 as per your lease, the last 4 digits on your account number generally are your plot number (XXXXXXXXXX39). Therefore your parking space would be 39. Please see attached image

I trust this clears up any confusion.

Posted by: Eljayjay Sun, 22 Oct 2017 - 11:10
Post #1325535

But, as I understand it, the copy lease in your possession does not have your name on it. Consequently, if you present it as evidence of your rights, it is very possible that a judge or the PPC would say "as it has another person's name on it, this does not appear to be your lease".

So, if I were you, I would obtain a copy of the lease from the Land Registry by completing form OC2.

You have already commented that the lease which you have been sent "mentions the Demised Premises, "the ground floor dwelling known as Plot 39"". You then went on to say "I don't live on the ground floor and my flat number is not 39, does this mean I have the wrong lease?"

As I have already explained, plot numbers are temporary and are superseded by proper flat numbers. So, plot 39 could theoretically have become flat 40 except for one thing - plot 39 was a ground floor flat and your flat is not a ground floor flat. That being so, a lease relating to plot 39 cannot possibly be the lease for your flat.


Posted by: HenryHippo Sun, 22 Oct 2017 - 21:06
Post #1325656

QUOTE (Eljayjay @ Sun, 22 Oct 2017 - 12:10) *
But, as I understand it, the copy lease in your possession does not have your name on it. Consequently, if you present it as evidence of your rights, it is very possible that a judge or the PPC would say "as it has another person's name on it, this does not appear to be your lease".

So, if I were you, I would obtain a copy of the lease from the Land Registry by completing form OC2.

You have already commented that the lease which you have been sent "mentions the Demised Premises, "the ground floor dwelling known as Plot 39"". You then went on to say "I don't live on the ground floor and my flat number is not 39, does this mean I have the wrong lease?"

As I have already explained, plot numbers are temporary and are superseded by proper flat numbers. So, plot 39 could theoretically have become flat 40 except for one thing - plot 39 was a ground floor flat and your flat is not a ground floor flat. That being so, a lease relating to plot 39 cannot possibly be the lease for your flat.


I will order the lease from OC2. Wonder if the management company are trying to actively mislead me, or have made a mistake

Posted by: ballymunboy Sun, 22 Oct 2017 - 23:17
Post #1325708

QUOTE (HenryHippo @ Sun, 22 Oct 2017 - 22:06) *
I will order the lease from OC2. Wonder if the management company are trying to actively mislead me, or have made a mistake


The management company maybe doesn't realise your need for it. And the leases are likely to have very similar or even identical wording, except for the flat / plot no.

Requesting an Official Copy (OC) of a lease costs £7. The request is dealt with by the main Land Registry office in Gloucester, not your local office, so can take a little while to arrive by post.




Posted by: HenryHippo Mon, 23 Oct 2017 - 12:17
Post #1325808

QUOTE (ballymunboy @ Mon, 23 Oct 2017 - 00:17) *
QUOTE (HenryHippo @ Sun, 22 Oct 2017 - 22:06) *
I will order the lease from OC2. Wonder if the management company are trying to actively mislead me, or have made a mistake


The management company maybe doesn't realise your need for it. And the leases are likely to have very similar or even identical wording, except for the flat / plot no.

Requesting an Official Copy (OC) of a lease costs £7. The request is dealt with by the main Land Registry office in Gloucester, not your local office, so can take a little while to arrive by post.



Well this is a strange situation

Called the land registry for help filling in the OC2 form.

I was informed that the only file they can send me is the lease that came with the property when it was new and in the hands of the previous owner back in 2004.

They don't have a lease with my name on it, and no documents to share from 2016. I asked why there wasn't a lease with my name in it, and I was told that because the lease from 2004 wasn't finished, there wouldn't be a new lease with my name and that the transfer document is all I have.

By transfer document I think they meant the title register that I bought online last week and shared on here.

Perhaps someone more informed than myself can advise if it is unusual for the 2nd owner of a property not be named on a lease?

Posted by: HenryHippo Tue, 24 Oct 2017 - 21:06
Post #1326305

QUOTE (HenryHippo @ Mon, 23 Oct 2017 - 13:17) *
Perhaps someone more informed than myself can advise if it is unusual for the 2nd owner of a property not be named on a lease?



Anyone?

Posted by: Eljayjay Tue, 24 Oct 2017 - 21:36
Post #1326315

The Land Registry is the expert on the Land Registry. Ask the Land Registry.

You have had over 300 replies on this and your other thread.

I think you're having a laugh.

I'm out.

Posted by: HenryHippo Tue, 24 Oct 2017 - 21:39
Post #1326316

QUOTE (Eljayjay @ Tue, 24 Oct 2017 - 22:36) *
The Land Registry is the expert on the Land Registry. Ask the Land Registry.


Will ask to speak to someone else tomorrow..... the person I spoke to didn't sound too confident

Posted by: HenryHippo Mon, 30 Oct 2017 - 22:00
Post #1327815

Update

Having spoken to my solicitor that I purchased the property with, it is entirely normal for the second owner of a leasehold property not to appear on the lease, and that generally only the first owner appears on the lease. My title of ownership document has my name on it and will be used with the lease.

Working on the Witness Statement first. Should points 8 and 9 be used in the counterclaim only and not the witness statement?


I Henry Hippo of XXXX am the defendant in this case and will say as follows:

1. I am the registered keeper of the motor vehicle XXXXXXX

2. I purchased a property in XXXX in Feb 2016 and have been living there ever since (See HH/ 01, Official Copy of Register)

3. On 23/11/16 I found a “Parking Charge Notice” affixed to the car

4. Other resident’s cars had not been targeted. Upon speaking to them, they had been issued with “permits” and had chosen to display them. I had not received one myself.

5. I contacted the property management company for a permit which eventually arrived four weeks after I requested it (See HH/02, Contact with FirstPort Dec 2016)

6. By the time I received a permit in January 2017, I had been issued with seven PCNs

7. I contacted the property management company, explained the situation and asked them to cancel the PCNs but they refused (See HH/03, Contact with FirstPort Jan 2017)

8. As the owner of XXXXX my rights for parking are outlined in the lease (See HH/04, Lease). “The right to exclusive use of the allocated parking space for the purpose of parking a motor vehicle not exceeding three tonnes gross ladden weight”. There is no requirement for a permit in the above

9. The Manager does however have the right to make reasonable changes (See HH/04, Lease). However, the Manager may not make conditions worse for the owner of the lease as this would be a derogation of grant. Charging a penalty for not displaying a permit would make conditions worse for the Defendant.

10. The driver of the car at the time has not been identified by the claimant and as the registered keeper I have no obligation to name the driver. There is no lawful presumption that a registered keeper was the driver, in relation to private parking charges (evidenced by barrister Henry Greenslade in the POPLA Annual Report 2015, where he also confirmed that a keeper cannot be held liable within the scope of the POFA, schedule 4) (See HH/05 Popla 2015 Page 13)

STATEMENT of TRUTH
I believe that the facts stated in this Witness Statement are true
Dated the 3rd November 2017

Signed…………………………………………….
(Claimant)

Posted by: nosferatu1001 Tue, 31 Oct 2017 - 08:57
Post #1327881

It goes in your witness statement, as it is a fact.

Posted by: HenryHippo Sat, 4 Nov 2017 - 17:09
Post #1329098


Witness Statement and counterclaim section of the witness statement done. Currently working on references document.

I Henry Hippo of XXXX am the defendant in this case and will say as follows:

1. I am the registered keeper of the motor vehicle XXXXXXX
2. I purchased a property in XXXX in Feb 2016 and have been living there ever since (See HH/ 01, Official Copy of Register)
3. On 20/11/16 I found a “Parking Charge Notice” affixed to the car
4. Other resident’s cars had not been targeted. Upon speaking to them, they had been issued with “permits” and had chosen to display them. I had not received one myself.
5. I contacted the property management company for a permit which eventually arrived four weeks after I requested it (See HH/02, Contact with FirstPort Dec 2016)
6. By the time I received a permit in January 2017, I had been issued with seven PCNs
7. I contacted the property management company, explained the situation and asked them to cancel the PCNs but they refused (See HH/03, Contact with FirstPort Jan 2017)
8. As the owner of XXXXX my rights for parking are outlined in the lease (See HH/05, Lease). “The right to exclusive use of the allocated parking space for the purpose of parking a motor vehicle not exceeding three tonnes gross laden weight”. There is no requirement for a permit in the above
9. The Manager does however have the right to make reasonable changes (See HH/05, Lease). However, the Manager may not make conditions worse for the owner of the lease as this would be a derogation of grant. Charging a penalty for not displaying a permit would make conditions worse for the Defendant. Therefore this is a derogation of grant and tantamount to tortious interference.
10. The driver of the car at the time has not been identified by the claimant and as the registered keeper I have no obligation to name the driver. There is no lawful presumption that a registered keeper was the driver, in relation to private parking charges (evidenced by barrister Henry Greenslade in the POPLA Annual Report 2015, where he also confirmed that a keeper cannot be held liable within the scope of the POFA, schedule 4) (See HH/06 Popla 2015 Page 13)

STATEMENT of TRUTH
I believe that the facts stated in this Witness Statement are true
Dated the 8th November 2017

Signed…………………………………………….
(Claimant)

Counter Claim Witness Statement
I HenryHippo of XXX am Counter Claiming in this case and will say as follows
1. During the period 20/11/2016 to 28/12/2016 the vehicle XXXX of which I am the registered keeper was issued with 7 separate PCNs
2. At the start of the period I became aware that other residents had received permits, but I had not. I felt that something was unusual and that I was deliberately being targeted.
3. Eventually I received a permit, and chose to display it on my windscreen as a matter of courtesy rather than a matter of contractual obligation.
4. I emailed the Managing Agent, explaining the situation and asked them to cancel my fines, but they simply said they were unable to do so. This struck me as very suspicious and that both the Managing Agent and the Claimaint where trying to exploit me for their financial gain. (See HH/02, Contact with FirstPort Dec 2016)
5. At this point I realized that there was no point reasoning with the other party. I ignored the repeated correspondence from UKPC
6. On 23/06/2017 I received a letter from SCS Law (See HH/07 Letter from SCS June 2017) which had aggregated the PCNs and combined them with a demand for £1,120. I was alarmed at that point as UKPC had escalated it to a law firm and were pursuing what I considered to be an unreasonable sum.
7. On 03/07/17 I wrote to SCS Law (See HH/04, Letter to SCS Jul 2017), explaining that my lease allows unfettered access to the car park and explaining that they had in my opinion misused my personal data, breaching the Data Protection Act
8. SCS Law failed to respond to my last correspondence, further convincing me that my arguments were not being considered fairly, and that they were hoping to bully me into payment
9. On the 8/10/17 I received correspondence from the Country Court. This was very distressing for me as I am a law-abiding citizen who has never been threatened like this before. Having had no previous legal experience I had no idea of the proper channels or manner in which to defend legal action and I was afraid that with the superior experience of SCS Law that they would somehow be able to win in court and I would stand to lose out financially and have a blighted record. I spent several hours researching similar cases and my lease to reassure myself that I was in a legally defensible position if and when it did escalate to court. Despite my research I was still worried that I would fall foul of a legal loophole and be liable for the parking charge and an excessive costs charge from SCS Law. At the time I was new to my employer and working long hours to learn my duties. As I was still on probation, if I showed anything less than exemplary performance I could be dismissed. Furthermore if I lost the Court Case and I was dismissed my home would be at risk of repossession and I would be homeless. This added greatly to the stress of the whole situation, meaning that I had difficulty sleeping and found it difficult to socalise with friends or enjoy time with family as I always had the Court Case at the back of my mind. Additionally, the hours spent researching the event meant that I was unable to perform in my role as effectively as I could have encumbered.
10. The letters from the County Court actually went to my parent’s address (where the car is registered) and both of my parents were very shocked and distressed to receive documentation from the County Court and I had to reassure them that I had done nothing wrong. They told me their disappointment that their son who was brought up in a good family was now a defendant in a court case. Despite multiple efforts to show them the details of the case, they remain convinced that there is “no smoke without fire” and that “legal professionals don’t go after people for no reason” and that I am in the wrong. I still suffer this slight on my reputation in the family today. My parents are constantly asking me for updates on the case and they can tell that I am worried. My mother who suffers from regular migraines is now getting them more frequently as she is concerned that I will lose the case and have my home that I have worked hard for repossessed if I can’t pay the penalty. I feel that even if I lose the case, I will be forced to tell a white lie to my parents rather than panic them with this news. Since this episode I had to have the post readdressed to a separate address to spare them the angst on my behalf.
11. Each stage in the legal process has been new, daunting and intimidating to me, and whilst it would have been easier for me to pay the unfair charge in the first place, I refuse to do this on principle and to let the bullies win. I have spent forty (40) hours researching and working on my case, and this has affected how much time I have been able to spend with family and friends, as well as a loss of sleep. Compiling the attached evidence was stressful in itself as I try to sift through nearly a years’ worth of records and correspondence with multiple parties. I continuously worry that I will lose the case due to a loophole like missing evidence on my part and I am determined to leave no stone unturned and to check every aspect of my defense. I find myself mentally exhausted upon preparing the appropriate documentation and submitting it in a timely manner to the Court.
12. From my point of view this whole case has been a relentless onslaught from UKPC and SCS Law demanding money from me with menaces for an offense that simply never occurred having abused my personal data without reasonable cause.
13. After being given a Court date in December, I am nervous and frightened as I have never been in court before, let alone represented myself in a legal capacity. I will undoubtedly face many sleepless nights between now and the court date. I anticipated that on the day of Court I will be the most afraid I have been in my life. By contrast the Judge will be in Court every day and the representative from SCS Law will be very familiar in this environment. I will be the odd one out, not comfortable in this environment and therefore vulnerable in this attack on myself and the unwarranted demands for money.
14. In conclusion, this notoriously aggressive claimant company should have never pursued me for an offense that wasn’t committed and had absolutely no business to obtain my personal data, causing myself undue stress and loss of peace of mind and should be made liable to pay for my distress.
STATEMENT of TRUTH
I believe that the facts stated in this Witness Statement are true
Dated the 8th November 2017
Signed
……………………………………
(Counter Claimant)

Posted by: nosferatu1001 Sun, 5 Nov 2017 - 12:42
Post #1329188

You need to add that there is no provision in any regulation requiring you to contract with a third party, to do so for so,thing you already have exclusive right to, and no right to enforce anything requiring you to make payment to a third party.

Posted by: HenryHippo Sun, 5 Nov 2017 - 19:25
Post #1329287

QUOTE (nosferatu1001 @ Sun, 5 Nov 2017 - 13:42) *
You need to add that there is no provision in any regulation requiring you to contract with a third party, to do so for so,thing you already have exclusive right to, and no right to enforce anything requiring you to make payment to a third party.


Thanks. Adding as point 9)

9. There is no provision in any regulation contained in my lease that requires me to contract with a third party with regards to car parking (which I have an exclusive right to) and absolutely no right to enforce anything that requires me to make payment to a third party

Posted by: HenryHippo Wed, 8 Nov 2017 - 18:35
Post #1330092

The Manager does however have the right to make reasonable changes (See HH/05, Lease). However, the Manager may not make conditions worse for the owner of the lease as this would be a derogation of grant. Charging a penalty for not displaying a permit would make conditions worse for the Defendant. Therefore this is a derogation of grant and tantamount to tortious interference.

A question about the "derogation of grant" part of my defence. Do I need references/ evidence that my grant must not be derograted? Or will this piece of the argument stand as it is?

Posted by: SchoolRunMum Wed, 8 Nov 2017 - 18:57
Post #1330100

9 needs to say 'County' not 'Country Court'.

I wouldn't say this, below, it sounds like you were comfortable with the demands, and your counter -claim needs to be all about how intimidated and harassed you were. I would actually list all the letters and dates and quote some of the misleading words about CCJs and court, if you kept all those letters.

If not, if you don't still have them all to include as evidence (best if you have a whole pile of them - read Ferguson v British Gas!) then change this to say how many demands you think were sent by UKPC and their debt collectors in the early months:

QUOTE
I ignored the repeated correspondence from UKPC


http://www.kwm.com/en/uk/knowledge/insights/the-practicalities-of-derogation-from-grant-and-quiet-enjoyment-20160101

''An example of derogation from grant is demonstrated in Chartered Trust plc v Davies [1997] 2 EGLR 83, a landlord let a unit in a "high class" development to a pawnbroker. The clientele of the pawnbroker caused a nuisance to another tenant in the development. The landlord was held to have derogated from its grant.''

You could use that case mentioned in the above link, to show that the Managing Agent 'caused a nuisance' by allowing UKPC to decide who they issued permits to, withholding or omitting yours for an unknown reason completely outside of your knowledge and control, and you could say the MA should have known that UKPC were not a firm to bring into a residential development with some basic online research:

http://forums.pepipoo.com/index.php?showtopic=63597

http://www.telegraph.co.uk/news/uknews/crime/11858473/Parking-firm-UKPC-admits-faking-tickets-to-fine-drivers.html

https://www.consumeractiongroup.co.uk/forum/showthread.php?377246-UKPC-liable-for-trespass-**SUCCESS**

...therefore there is ample evidence that this was never a 'reasonable change', to introduce this notorious ex-clamper firm whose business model meant they could profit from withholding or not issuing permits to some residents, then fining them for not displaying a permit they never had or knew about.

At that point I would also mention the CRA 2015, which requires terms to be prominently communicated:

http://www.fieldfisher.com/publications/2015/09/consumer-rights-act-2015-what-has-changed#sthash.C4e1jj9i.dpbs

''A requirement of prominence has been added to the main exemption in the UTCCRs relating to price setting and main subject matter terms. A term is unfair if "contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations under the contract to the detriment of the consumer".

Clearly there was a significant imbalance to your detriment...



Posted by: HenryHippo Wed, 8 Nov 2017 - 18:59
Post #1330102

Could somebody help me with Bevis please?

I am trying to find a reference in Bevis saying that a parking operator "shall comply" with the statutory provisions of the DPA 1998

But I can't find it in my copy of the Bevis judgment

Posted by: SchoolRunMum Wed, 8 Nov 2017 - 19:23
Post #1330107

Not sure it does.

The Codes of Practice do.

Posted by: HenryHippo Wed, 8 Nov 2017 - 19:26
Post #1330108

QUOTE (SchoolRunMum @ Wed, 8 Nov 2017 - 19:57) *
.....


Thanks, have factored your input in

I Henry Hippo of XXXX am the defendant in this case and will say as follows:

1. I am the registered keeper of the motor vehicle XXXXXXX
2. I purchased a property in XXXX in Feb 2016 and have been living there ever since (See HH/ 01, Official Copy of Register and HH/02 Official Copy of Register Cover)
3. On 20/11/16 I found a “Parking Charge Notice” affixed to the car
4. Other resident’s cars had not been targeted. Upon speaking to them, they had been issued with “permits” and had chosen to display them. I had not received one myself.
5. I contacted the property management company for a permit which eventually arrived four weeks after I requested it (See HH/03, Contact with FirstPort Nov 2016)
6. By the time I received a permit in January 2017, I had been issued with seven PCNs
7. I contacted the property management company, explained the situation and asked them to cancel the PCNs but they refused (See HH/04, Contact with FirstPort Apr 2017)
8. As the owner of XXXXX my rights for parking are outlined in the lease (See HH/05, Lease. Page 14). “The right to exclusive use of the Allocated Parking Space for the purpose of parking a private motor vehicle not exceeding three tonnes gross laden weight”. There is no requirement for a permit in the above
9. There is no provision in any regulation contained in my lease that requires me to contract with a third party with regards to car parking (which I have an exclusive right to) and absolutely no right to enforce anything that requires me to make payment to a third party

10. The Manager does however have the right to make reasonable changes: “Acting reasonably at all times the Manager shall have authority to make and at any time vary such Estate Regulations as it may think fit for the preservation of the amenities of the Estate or for the general convenience of the occupiers of the Dwellings” (See HH/05, Lease. Page 9). However, the Manager may not make conditions worse for the owner of the lease as this would be a derogation of grant. Charging a penalty for not displaying a permit would make conditions worse for the Defendant. Therefore this is a derogation of grant and tantamount to tortious interference.

An example of derogation from grant is demonstrated in Chartered Trust plc v Davies [1997] 2 EGLR 83, a landlord let a unit in a "high class" development to a pawnbroker. The clientele of the pawnbroker caused a nuisance to another tenant in the development. The landlord was held to have derogated from its grant. "Did the conduct of the plaintiff by letting, as it did, to the pawnbrokers ... amount to a repudiation of the lease by the plaintiff with the result that they derogated from their grant. The principle of derogation of grant is, according to Brown and Flower that it make the premises materially less fit for the particular purpose for which the grant was made.
It is a question of degree, and in my view ... the letting to the pawnbrokers was a substantial interference in the defendant's business, and it did make the purpose for which her father took out the lease on her behalf less fit. It is quite clear from her evidence that the pawnbroker's business was a substantial interference with her own business, and, indeed, was the cause of her giving up the business. There was a nuisance. There was the deterrent effect of the activities there on potential customers which resulted in her business collapsing, and if she had gone on there she would, no doubt, have gone bankrupt. This is something that the plaintiff ought to have foreseen in my view when they let those premises to the pawnbrokers."

11. The driver of the car at the time has not been identified by the claimant and as the registered keeper I have no obligation to name the driver. There is no lawful presumption that a registered keeper was the driver, in relation to private parking charges (evidenced by barrister Henry Greenslade in the POPLA Annual Report 2015, where he also confirmed that a keeper cannot be held liable within the scope of the POFA, schedule 4) (See HH/06 Popla 2015 Page 13)

STATEMENT of TRUTH
I believe that the facts stated in this Witness Statement are true
Dated the 8th November 2017

Signed…………………………………………….
(Claimant)

Counter Claim Witness Statement
I XXXXXXXXXX of XX am Counter Claiming in this case and will say as follows
1. During the period 20/11/2016 to 28/12/2016 the vehicle XXXX of which I am the registered keeper was issued with 7 separate PCNs
2. At the start of the period I became aware that other residents had received permits, but I had not. I felt that something was unusual and that I was deliberately being targeted.
3. Eventually I received a permit, and chose to display it on my windscreen as a matter of courtesy rather than a matter of contractual obligation.
4. I emailed the Managing Agent, explaining the situation and asked them to cancel my fines, but they simply said they were unable to do so. This struck me as very suspicious and that both the Managing Agent and the Claimaint where trying to exploit me for their financial gain. (See HH/04, Contact with FirstPort Apr 2017)
5. At this point I realized that there was no point reasoning with the other party, which was only interested in making threats
6. On 23/06/2017 I received a letter from SCS Law (See HH/07 Letter from SCS June 2017) which had aggregated the PCNs and combined them with a demand for £1,120. I was alarmed at that point as UKPC had escalated it to a law firm and were pursuing what I considered to be an unreasonable sum.
7. On 03/07/17 I wrote to SCS Law (See HH/04, Letter to SCS Jul 2017), explaining that my lease allows unfettered access to the car park and explaining that they had in my opinion misused my personal data, breaching the Data Protection Act
8. SCS Law failed to respond to my last correspondence, further convincing me that my arguments were not being considered fairly, and that they were hoping to bully me into payment
9. On the 8/10/17 I received correspondence from the County Court. This was very distressing for me as I am a law-abiding citizen who has never been threatened like this before. Having had no previous legal experience I had no idea of the proper channels or manner in which to defend legal action and I was afraid that with the superior experience of SCS Law that they would somehow be able to win in court and I would stand to lose out financially and have a blighted record. I spent several hours researching similar cases and my lease to reassure myself that I was in a legally defensible position if and when it did escalate to court. Despite my research I was still worried that I would fall foul of a legal loophole and be liable for the parking charge and an excessive costs charge from SCS Law. At the time I was new to my employer and working long hours to learn my duties. As I was still on probation, if I showed anything less than exemplary performance I could be dismissed. Furthermore if I lost the Court Case and I was dismissed my home would be at risk of repossession and I would be homeless. This added greatly to the stress of the whole situation, meaning that I had difficulty sleeping and found it difficult to socalise with friends or enjoy time with family as I always had the Court Case at the back of my mind. Additionally, the hours spent researching the event meant that I was unable to perform in my role as effectively as I could have encumbered.
10. I both live and own a property in the block of flats were the PCN’s occurred. I have always parked there before the parking permit scheme came into place and I am shocked at the fact that penalty charges were introduced before I was issued with a permit. I am equally shocked at the lack of empathy from the management agents who refuse to assist me with this, when I am essentially their customer, paying them £1,800 a year in Service Charge and Ground Rent.
11. The letters from the County Court actually went to my parent’s address (where the car is registered) and both of my parents were very shocked and distressed to receive documentation from the County Court and I had to reassure them that I had done nothing wrong. They told me their disappointment that their son who was brought up in a good family was now a defendant in a court case. Despite multiple efforts to show them the details of the case, they remain convinced that there is “no smoke without fire” and that “legal professionals don’t go after people for no reason” and that I am in the wrong. I still suffer this slight on my reputation in the family today. My parents are constantly asking me for updates on the case and they can tell that I am worried. My mother who suffers from regular migraines is now getting them more frequently as she is concerned that I will lose the case and have my home that I have worked hard for repossessed if I can’t pay the penalty. I feel that even if I lose the case, I will be forced to tell a white lie to my parents rather than panic them with this news. Since this episode I had to have the post readdressed to a separate address to spare them the angst on my behalf.
12. Each stage in the legal process has been new, daunting and intimidating to me, and whilst it would have been easier for me to pay the unfair charge in the first place, I refuse to do this on principle and to let the bullies win. I have spent forty (40) hours researching and working on my case, and this has affected how much time I have been able to spend with family and friends, as well as a loss of sleep. Compiling the attached evidence was stressful in itself as I try to sift through nearly a years’ worth of records and correspondence with multiple parties. I continuously worry that I will lose the case due to a loophole like missing evidence on my part and I am determined to leave no stone unturned and to check every aspect of my defense. I find myself mentally exhausted upon preparing the appropriate documentation and submitting it in a timely manner to the Court.
13. From my point of view this whole case has been a relentless onslaught from UKPC and SCS Law demanding money from me with menaces for an offense that simply never occurred having abused my personal data without reasonable cause.
14. After being given a Court date in December, I am nervous and frightened as I have never been in court before, let alone represented myself in a legal capacity. I will undoubtedly face many sleepless nights between now and the court date. I anticipated that on the day of Court I will be the most afraid I have been in my life. By contrast the Judge will be in Court every day and the representative from SCS Law will be very familiar in this environment. I will be the odd one out, not comfortable in this environment and therefore vulnerable in this attack on myself and the unwarranted demands for money.

15. The Managing Agents have caused a nuisance by allowing UKPC to target me by withholding my permit from me for reasons unknown to me and outside of my control. UKPC has a very poor reputation as a basic online search shows. The Managing Agent should have realized that UKPC are not a suitable firm to bring onto a residential development. The evidence here shows how the firm have faked tickets in 2015 to fine drivers. 2011 http://www.telegraph.co.uk/news/uknews/crime/11858473/Parking-firm-UKPC-admits-faking-tickets-to-fine-drivers.html

16. The above evidence shows that there was never a “a 'reasonable change', to introduce this notorious ex-clamper firm whose business model meant they could profit from withholding or not issuing permits to some residents, then fining them for not displaying a permit they never had or knew about.

17. The Consumer Rights Act 2015 (See HH/08 Consumer Rights Act 2015) states “A term is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer”. Given that there was a significant imbalance to my detriment, the Managing Agent has breached the consumer rights act

18. In conclusion, this notoriously aggressive claimant company should have never pursued me for an offense that wasn’t committed and had absolutely no business to obtain my personal data, causing myself undue stress and loss of peace of mind and should be made liable to pay for my distress.

STATEMENT of TRUTH
I believe that the facts stated in this Witness Statement are true
Dated the 8th November 2017
Signed
……………………………………
(Counter Claimant)
Of XXX

Posted by: nosferatu1001 Thu, 9 Nov 2017 - 09:02
Post #1330202

10. While the Manager may have the right to make reasonable changes, the Manager may not make conditions worse for the owner of the lease as this would constitute a derogation of grant. Charging a penalty for not displaying a permit would make conditions worse for the Defendant. Therefore this is a derogation of grant and amounts to tortious interference with the Defendants lease by both the Manager and their agent, the Claimant.

“Acting reasonably at all times the Manager shall have authority to make and at any time vary such Estate Regulations as it may think fit for the preservation of the amenities of the Estate or for the general convenience of the occupiers of the Dwellings” (See HH/05, Lease. Page 9).


I wasnt a fan of the quote coming in the middle - it broke up the point you are making.

Posted by: HenryHippo Thu, 9 Nov 2017 - 11:00
Post #1330223

QUOTE (nosferatu1001 @ Thu, 9 Nov 2017 - 10:02) *
10. While the Manager may have the right to make reasonable changes, the Manager may not make conditions worse for the owner of the lease as this would constitute a derogation of grant. Charging a penalty for not displaying a permit would make conditions worse for the Defendant. Therefore this is a derogation of grant and amounts to tortious interference with the Defendants lease by both the Manager and their agent, the Claimant.

“Acting reasonably at all times the Manager shall have authority to make and at any time vary such Estate Regulations as it may think fit for the preservation of the amenities of the Estate or for the general convenience of the occupiers of the Dwellings” (See HH/05, Lease. Page 9).


I wasnt a fan of the quote coming in the middle - it broke up the point you are making.


Cheers

Posted by: HenryHippo Thu, 9 Nov 2017 - 17:28
Post #1330349

My lease allows parking only for vehicles under 3 tonnes gross laden weight

Do I need to prove my car is under that weight? Or will common sense be used by the judge on this?

QUOTE (SchoolRunMum @ Wed, 8 Nov 2017 - 20:23) *
Not sure it does.

The Codes of Practice do.


I am struggling to find the reference for this particular piece of my skeleton defence. I have searched Beavis, the IPC Code of Practice and the DPA for the phrases "effectively regulatory" and "shall comply", but I can't find the relevant sections to reference.

Where would I find these quotes?

Posted by: SchoolRunMum Thu, 9 Nov 2017 - 18:41
Post #1330373

Your counter-claim WS needs to explain the sum you are claiming is for breach of the Data Protection Act (specially a breach of one or more of the DPA principles) and breach of the Protection from Harassment Act, as was found to be the case in Ferguson v British Gas Trading Ltd [2009] EWCA Civ 46

http://www.5rb.com/case/ferguson-v-british-gas-trading-ltd/

You also need Chartered Trust plc v Davies [1997] 2 EGLR 83 in your evidence with your WS, so I've found the transcript here:

http://www.bailii.org/ew/cases/EWCA/Civ/1997/2256.html

I would run a highlighter over these parts:

''As Younger LJ observed in Harmer -v- Jumbil (Nigeria) Tin Areas Limited[supra] it is a principle which merely embodies in a legal maxim a rule of common honesty. It was imposed in the interests of fair dealing. [and he then quoted Bowen LJ in the passage from Harmer quoted above] As one would expect, the principle applies to all forms of grants. ... In Megarry and Wade on the Law of Real Property, 5th Edition, page 849, the view is expressed that in truth the doctrine is an independent rule of law. This approach was approved by Denning MR in Moulton Buildings Limited -v- City of Westminster [1975] 30 P&CR 182 at 186. He stated the broad principle thus:
"If one man agrees to confer particular benefit on another, he must not do anything which substantially deprives the other of the enjoyment of that benefit: because that would be to take away with one hand what is given with the other."

''...And the real issue is whether the landlords were liable for that conduct. An important subsidiary issue that emerged on the case law cited before us was whether the landlords were under any legal obligation to intervene to put a stop to any nuisance caused...''

''What is clear is that the landlords could have acted to stop the {nuisance conduct}... Instead, the landlords prevaricated and did nothing. They could have acted effectively, and they should have done so. Instead they chose to do nothing, and thereby made the premises materially less fit for the purpose for which they were let. In failing to act to stop the nuisance, in my judgment the landlords continued the nuisance and derogated from their grant.

The trial judge found this to be a repudiation of the lease - a substantial interference with the tenant's business driving her to bankruptcy. That was a judgment he was entitled to come to on the evidence he heard.

Accordingly, I agree with the judge's conclusion, albeit that I have reached it by a different route. I would dismiss this appeal.''


You also need now to file the transcripts of the cases that support your counter-claim for the remedy you seek for your significant and prolonged distress - i.e. compensation in damages. You need to show your Judge (in case they are unaware) that in 2015 the Court of Appeal ruled that compensation under the DPA could be awarded as a remedy for distress alone:

Vidal-Hall v Google Inc (CA) [2015]

http://www.bailii.org/ew/cases/EWCA/Civ/2015/311.html

That case provides authority that misuse of personal data is a tort and that damages may be non-pecuniary.

The case of Halliday v Creation Consumer Finance Ltd [2013] All ER (D) 199 provides authority that a reasonable sum for compensation would be £750:

http://www.bailii.org/ew/cases/EWCA/Civ/2013/333.html








QUOTE (HenryHippo @ Thu, 9 Nov 2017 - 18:28) *
I am struggling to find the reference for this particular piece of my skeleton defence. I have searched Beavis, the IPC Code of Practice and the DPA for the phrases "effectively regulatory" and "shall comply", but I can't find the relevant sections to reference.

Where would I find these quotes?




Here it is in the Beavis case at 111:

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

''And, while the Code of Practice is not a contractual document, it is in practice binding on the operator since its existence and
observance is a condition of his ability to obtain details of the registered keeper from the DVLA.
In assessing the fairness of a term, it cannot be right to ignore the regulatory framework which determines how and in what circumstances it may be enforced.''


That quote helps you because you are arguing that the Claimant has misused the data they got from the DVLA/had no excuse to get it at all, because there was no 'reasonable cause'.


It's also in law, in the CPUTRs:

https://www.legislation.gov.uk/ukdsi/2008/9780110811574/regulation/5

Misleading actions - Regulation 5 of the Consumer Protection from Unfair Trading Regulations 2008 prohibits giving false information to, or deceiving, consumers. A misleading action occurs when a practice misleads through the information it contains, or its deceptive presentation, even if the information is factually correct, and causes, or is likely to cause, the average consumer to take a different transactional decision.

There are three different types of misleading actions:

misleading information generally
creating confusion with competitors' products
failing to honour commitments made in a code of conduct

Misleading actions


5.—(1) A commercial practice is a misleading action if it satisfies the conditions in either paragraph (2) or paragraph (3).

(2) A commercial practice satisfies the conditions of this paragraph—

(a)if it contains false information and is therefore untruthful in relation to any of the matters in paragraph (4) or if it or its overall presentation in any way deceives or is likely to deceive the average consumer in relation to any of the matters in that paragraph, even if the information is factually correct; and
(b)it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.
(3) A commercial practice satisfies the conditions of this paragraph if—

(a)it concerns any marketing of a product (including comparative advertising) which creates confusion with any products, trade marks, trade names or other distinguishing marks of a competitor; or
(b)it concerns any failure by a trader to comply with a commitment contained in a code of conduct which the trader has undertaken to comply with, if—
(i)the trader indicates in a commercial practice that he is bound by that code of conduct, and
(ii)the commitment is firm and capable of being verified and is not aspirational,
and it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise, taking account of its factual context and of all its features and circumstances.



Posted by: unicorn47 Thu, 9 Nov 2017 - 19:16
Post #1330390

“Acting reasonably at all times the Manager shall have authority to make and at any time vary such Estate Regulations as it may think fit for the preservation of the amenities of the Estate or for the general convenience of the occupiers of the Dwellings” (See HH/05, Lease. Page 9)."

It would be worth getting hold of a copy of the parking contract between the MA and the PPC.

In a lot of cases the MA get a kickback on every parking ticket issued. I don't think it would be acting reasonably to be profiting from the residents, the very people it's meant to represent.

Posted by: nosferatu1001 Thu, 9 Nov 2017 - 19:27
Post #1330397

You don’t need to prove your vehicke is under weight, they have to allege it isn’t, which I imag8ne they haven’t done. If they bring it up , then you simply show what car you have. Worst case, smart phone with manufacturers website will be sufficient.

Posted by: HenryHippo Fri, 10 Nov 2017 - 12:12
Post #1330548

QUOTE (unicorn47 @ Thu, 9 Nov 2017 - 20:16) *
“Acting reasonably at all times the Manager shall have authority to make and at any time vary such Estate Regulations as it may think fit for the preservation of the amenities of the Estate or for the general convenience of the occupiers of the Dwellings” (See HH/05, Lease. Page 9)."

It would be worth getting hold of a copy of the parking contract between the MA and the PPC.

In a lot of cases the MA get a kickback on every parking ticket issued. I don't think it would be acting reasonably to be profiting from the residents, the very people it's meant to represent.


I like the sound of this, but I highly doubt my MA would entertain such a request. Or do they need to comply with me?

QUOTE (SchoolRunMum @ Thu, 9 Nov 2017 - 19:41) *
...


Thanks for this! I have factored this in to my WS. I'm aware that my numbering for references is all over the place, but I will correct it when we have finished chopping and changing

I Henry Hippo of XXXX am the defendant in this case and will say as follows:

1. I am the registered keeper of the motor vehicle XXXXXXX

2. I purchased a property in XXXX in Feb 2016 and have been living there ever since (See HH/ 01, Official Copy of Register and HH/02 Official Copy of Register Cover)
3. On 20/11/16 I found a “Parking Charge Notice” affixed to the car

4. Other resident’s cars had not been targeted. Upon speaking to them, they had been issued with “permits” and had chosen to display them. I had not received one myself.

5. I contacted the property management company for a permit which eventually arrived four weeks after I requested it (See HH/03, Contact with FirstPort Nov 2016)

6. By the time I received a permit in January 2017, I had been issued with seven PCNs

7. I contacted the property management company, explained the situation and asked them to cancel the PCNs but they refused (See HH/04, Contact with FirstPort Apr 2017)

8. As the owner of XXXXX my rights for parking are outlined in the lease (See HH/05, Lease. Page 14). “The right to exclusive use of the Allocated Parking Space for the purpose of parking a private motor vehicle not exceeding three tonnes gross laden weight”. There is no requirement for a permit in the above

9. There is no provision in any regulation contained in my lease that requires me to contract with a third party with regards to car parking (which I have an exclusive right to) and absolutely no right to enforce anything that requires me to make payment to a third party

10. While the Manager may have the right to make reasonable changes, the Manager may not make conditions worse for the owner of the lease as this would constitute a derogation of grant. Charging a penalty for not displaying a permit would make conditions worse for the Defendant. Therefore this is a derogation of grant and amounts to tortious interference with the Defendants lease by both the Manager and their agent, the Claimant.

“Acting reasonably at all times the Manager shall have authority to make and at any time vary such Estate Regulations as it may think fit for the preservation of the amenities of the Estate or for the general convenience of the occupiers of the Dwellings” (See HH/05, Lease. Page 9)

However, the Manager may not make conditions worse for the owner of the lease as this would be a derogation of grant. Charging a penalty for not displaying a permit would make conditions worse for the Defendant. Therefore this is a derogation of grant and tantamount to tortious interference.

An example of derogation from grant is demonstrated in Chartered Trust plc v Davies [1997] 2 EGLR 83 (See HH/06, Chartered Trust V Davies), a landlord let a unit in a "high class" development to a pawnbroker. The clientele of the pawnbroker caused a nuisance to another tenant in the development. The landlord was held to have derogated from its grant. "Did the conduct of the plaintiff by letting, as it did, to the pawnbrokers ... amount to a repudiation of the lease by the plaintiff with the result that they derogated from their grant. The principle of derogation of grant is, according to Brown and Flower that it make the premises materially less fit for the particular purpose for which the grant was made.

It is a question of degree, and in my view ... the letting to the pawnbrokers was a substantial interference in the defendant's business, and it did make the purpose for which her father took out the lease on her behalf less fit. It is quite clear from her evidence that the pawnbroker's business was a substantial interference with her own business, and, indeed, was the cause of her giving up the business. There was a nuisance. There was the deterrent effect of the activities there on potential customers which resulted in her business collapsing, and if she had gone on there she would, no doubt, have gone bankrupt. This is something that the plaintiff ought to have foreseen in my view when they let those premises to the pawnbrokers."

11. The driver of the car at the time has not been identified by the claimant and as the registered keeper I have no obligation to name the driver. There is no lawful presumption that a registered keeper was the driver, in relation to private parking charges (evidenced by barrister Henry Greenslade in the POPLA Annual Report 2015, where he also confirmed that a keeper cannot be held liable within the scope of the POFA, schedule 4) (See HH/07 Popla 2015 Page 13)

STATEMENT of TRUTH
I believe that the facts stated in this Witness Statement are true
Dated the 8th November 2017

Signed…………………………………………….
(Claimant)

Counter Claim Witness Statement

I XXXXXXXXXXXXXXX Counter Claiming in this case and will say as follows

1. During the period 20/11/2016 to 28/12/2016 the vehicle XXXX of which I am the registered keeper was issued with 7 separate PCNs

2. At the start of the period I became aware that other residents had received permits, but I had not. I felt that something was unusual and that I was deliberately being targeted.

3. Eventually I received a permit, and chose to display it on my windscreen as a matter of courtesy rather than a matter of contractual obligation.

4. I emailed the Managing Agent, explaining the situation and asked them to cancel my fines, but they simply said they were unable to do so. This struck me as very suspicious and that both the Managing Agent and the Claimaint where trying to exploit me for their financial gain. (See HH/04, Contact with FirstPort Apr 2017)

5. At this point I realized that there was no point reasoning with the other party, which was only interested in making threats

6. On 23/06/2017 I received a letter from SCS Law (See HH/XX Letter from SCS June 2017) which had aggregated the PCNs and combined them with a demand for £1,120. I was alarmed at that point as UKPC had escalated it to a law firm and were pursuing what I considered to be an unreasonable sum.

7. On 03/07/17 I wrote to SCS Law (See HH/09, Letter to SCS Jul 2017), explaining that my lease allows unfettered access to the car park and explaining that they had in my opinion misused my personal data, breaching the Data Protection Act

8. SCS Law failed to respond to my last correspondence, further convincing me that my arguments were not being considered fairly, and that they were hoping to bully me into payment

9. On the 8/10/17 I received correspondence from the County Court. This was very distressing for me as I am a law-abiding citizen who has never been threatened like this before. Having had no previous legal experience I had no idea of the proper channels or manner in which to defend legal action and I was afraid that with the superior experience of SCS Law that they would somehow be able to win in court and I would stand to lose out financially and have a blighted record. I spent several hours researching similar cases and my lease to reassure myself that I was in a legally defensible position if and when it did escalate to court. Despite my research I was still worried that I would fall foul of a legal loophole and be liable for the parking charge and an excessive costs charge from SCS Law. At the time I was new to my employer and working long hours to learn my duties. As I was still on probation, if I showed anything less than exemplary performance I could be dismissed. Furthermore if I lost the Court Case and I was dismissed my home would be at risk of repossession and I would be homeless. This added greatly to the stress of the whole situation, meaning that I had difficulty sleeping and found it difficult to socalise with friends or enjoy time with family as I always had the Court Case at the back of my mind. Additionally, the hours spent researching the event meant that I was unable to perform in my role as effectively as I could have encumbered.

10. I both live and own a property in the block of flats were the PCN’s occurred. I have always parked there before the parking permit scheme came into place and I am shocked at the fact that penalty charges were introduced before I was issued with a permit. I am equally shocked at the lack of empathy from the management agents who refuse to assist me with this, when I am essentially their customer, paying them £1,800 a year in Service Charge and Ground Rent.

11. The letters from the County Court actually went to my parent’s address (where the car is registered) and both of my parents were very shocked and distressed to receive documentation from the County Court and I had to reassure them that I had done nothing wrong. They told me their disappointment that their son who was brought up in a good family was now a defendant in a court case. Despite multiple efforts to show them the details of the case, they remain convinced that there is “no smoke without fire” and that “legal professionals don’t go after people for no reason” and that I am in the wrong. I still suffer this slight on my reputation in the family today. My parents are constantly asking me for updates on the case and they can tell that I am worried. My mother who suffers from regular migraines is now getting them more frequently as she is concerned that I will lose the case and have my home that I have worked hard for repossessed if I can’t pay the penalty. I feel that even if I lose the case, I will be forced to tell a white lie to my parents rather than panic them with this news. Since this episode I had to have the post readdressed to a separate address to spare them the angst on my behalf.

12. Each stage in the legal process has been new, daunting and intimidating to me, and whilst it would have been easier for me to pay the unfair charge in the first place, I refuse to do this on principle and to let the bullies win. I have spent forty (40) hours researching and working on my case, and this has affected how much time I have been able to spend with family and friends, as well as a loss of sleep. Compiling the attached evidence was stressful in itself as I try to sift through nearly a years’ worth of records and correspondence with multiple parties. I continuously worry that I will lose the case due to a loophole like missing evidence on my part and I am determined to leave no stone unturned and to check every aspect of my defense. I find myself mentally exhausted upon preparing the appropriate documentation and submitting it in a timely manner to the Court.

13. From my point of view this whole case has been a relentless onslaught from UKPC and SCS Law demanding money from me with menaces for an offense that simply never occurred having abused my personal data without reasonable cause.

14. After being given a Court date in December, I am nervous and frightened as I have never been in court before, let alone represented myself in a legal capacity. I will undoubtedly face many sleepless nights between now and the court date. I anticipated that on the day of Court I will be the most afraid I have been in my life. By contrast the Judge will be in Court every day and the representative from SCS Law will be very familiar in this environment. I will be the odd one out, not comfortable in this environment and therefore vulnerable in this attack on myself and the unwarranted demands for money.

15. The Managing Agents have caused a nuisance by allowing UKPC to target me by withholding my permit from me for reasons unknown to me and outside of my control. UKPC has a very poor reputation as a basic online search shows. The Managing Agent should have realized that UKPC are not a suitable firm to bring onto a residential development. The evidence here shows how the firm have faked tickets in 2015 to fine drivers. 2011http://www.telegraph.co.uk/news/uknews/crime/11858473/Parking-firm-UKPC-admits-faking-tickets-to-fine-drivers.html (See HH/10 Telegraph Article)

16. The above evidence shows that there was never a “a 'reasonable change', to introduce this notorious ex-clamper firm whose business model meant they could profit from withholding or not issuing permits to some residents, then fining them for not displaying a permit they never had or knew about.

17. The Consumer Rights Act 2015 (See HH/11 Consumer Rights Act 2015) states “A term is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer”. Given that there was a significant imbalance to my detriment, the Managing Agent has breached the consumer rights act

18. I am claiming for the sum of £500 due to the Claimant breaching the Data Protection Act and also for a breach of the Protection from Harassment Act.

19. The Data Protection Act 1998 states that “An individual who suffers distress by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that distress if-

a) The individual also suffers damage by reason of the contravention, or
b) The contravention relates to the processing of personal data for the special purposes

20. I have suffered distress from the repeated use of my personal data being used to demand money from myself.

21. I refer to Parking Eye V Beavis 2015 (See HH/12 Parking Eye V Beavis) were it was stated that “And, while the Code of Practice is not a contractual document, it is in practice binding on the operator since its existence and observance is a condition of his ability to obtain details of the registered keeper from the DVLA. In assessing the fairness of a term, it cannot be right to ignore the regulatory framework which determines how and in what circumstances it may be enforced”

“Code of Practise” refers to the IPC Code of Practice (See HH/13 IPC Code of Practise)

The Claimant has misused my personal data that they acquired from the DVLA and had no reasonable cause to obtain it in the first place

22. The relevant language of the Protection from Harassment Act reads as follows:

Prohibition of harassment.
1(1) A person must not pursue a course of conduct—
(a) which amounts to harassment of another, and
(b) which he knows or ought to know amounts to harassment of the other.

(2) For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.
Offence of harassment.
2(1) A person who pursues a course of conduct in breach of section 1 is guilty of an offence.
(2) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months, or a fine not exceeding level 5 on the standard scale, or both.
Civil remedy.

3(1) An actual or apprehended breach of section 1 may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question.
(2) On such a claim, damages may be awarded for (among other things) any anxiety caused by the harassment and any financial loss resulting from the harassment.

23. It is claimed that the Claimant has harassed the Defendant with repeated demands for money over from Nov 2016 until the present day.

24. I refer to Ferguson Vs British Gas 2009 (See HH/12 Ferguson V British Gas) whereby British Gas were ordered to pay £10,575 for breaching the Protection from Harassment Act 1997.

25. I refer to Chartrered Trust plc V Davies 1997 (See HH/13 Chartered Trust V Davies) whereby it was concluded that "If one man agrees to confer particular benefit on another, he must not do anything which substantially deprives the other of the enjoyment of that benefit: because that would be to take away with one hand what is given with the other."
''...And the real issue is whether the landlords were liable for that conduct. An important subsidiary issue that emerged on the case law cited before us was whether the landlords were under any legal obligation to intervene to put a stop to any nuisance caused...''

''What is clear is that the landlords could have acted to stop the {nuisance conduct}... Instead, the landlords prevaricated and did nothing. They could have acted effectively, and they should have done so. Instead they chose to do nothing, and thereby made the premises materially less fit for the purpose for which they were let. In failing to act to stop the nuisance, in my judgment the landlords continued the nuisance and derogated from their grant.

The trial judge found this to be a repudiation of the lease - a substantial interference with the tenant's business driving her to bankruptcy. That was a judgment he was entitled to come to on the evidence he heard.

Accordingly, I agree with the judge's conclusion, albeit that I have reached it by a different route. I would dismiss this appeal.''

The Judge found that the landlord had failed to intefer with a nuisance that made the premises materially less fir for the purpose for which they were let and had therefore continued the nuisance and derogated from their grant. This is a similar situation to the one that I find myself in since the introduction of a permit scheme patrolled by UKPC.

26. I refer to Vidal-Hall V Google Inc 2015 (See HH/13 Vidall-Hall V Google). . In Vidal-Hall, it was held by the Court of Appeal that compensation was payable upon the fact of breach, misuse of personal data is a tort and that damages may be non-pecuniary.

27. I also refer to Halliday V Creastion Consumer Finance 2013 (See HH/14 Halliday V Creation) which provides authority that a reasonable sum for compensation would be £750
“However, having borne all those points in mind, in my judgment the sum to be awarded should be of a relatively modest nature since it is not the intention of the legislation to produce some kind of substantial award. It is intended to be compensation, and thus I would consider it sufficient to render an award in the sum of £750. It seems to me that that sum is appropriate and sufficient.”


28. In conclusion, this notoriously aggressive claimant company should have never pursued me for an offense that wasn’t committed and had absolutely no business to obtain my personal data, causing myself undue stress and loss of peace of mind and should be made liable to pay for my distress.

STATEMENT of TRUTH
I believe that the facts stated in this Witness Statement are true
Dated the 8th November 2017
Signed
……………………………………
(Counter Claimant)
Of XXXX

Posted by: nosferatu1001 Fri, 10 Nov 2017 - 21:12
Post #1330733

Your ma works for you. Tell them to send a copy of the contract through.

Posted by: HenryHippo Fri, 10 Nov 2017 - 22:04
Post #1330743

QUOTE (nosferatu1001 @ Fri, 10 Nov 2017 - 22:12) *
Your ma works for you. Tell them to send a copy of the contract through.


Nothing to lose... Done

Posted by: SchoolRunMum Fri, 10 Nov 2017 - 23:39
Post #1330754

'offense' (USA spelling) and 'practise' (the verb) needs to change to offence and practice.

Posted by: HenryHippo Sat, 11 Nov 2017 - 14:37
Post #1330845

QUOTE (SchoolRunMum @ Sat, 11 Nov 2017 - 00:39) *
'offense' (USA spelling) and 'practise' (the verb) needs to change to offence and practice.


Thanks. The perils of doing this on my work computer

Spelling aside is it all good?

Posted by: SchoolRunMum Sat, 11 Nov 2017 - 16:07
Post #1330864

It's long but it includes a counter claim WS as well.

Others might say the 'legal argument' (case law stuff) could be extracted and put into a separate skeleton argument, but as this is the small claims track and as PPCs always throw all their stuff into their WS, I don't have a problem with it being set out as above and it reads in a way that flows and makes sense.

Posted by: HenryHippo Sat, 11 Nov 2017 - 20:33
Post #1330957

QUOTE (SchoolRunMum @ Sat, 11 Nov 2017 - 17:07) *
It's long but it includes a counter claim WS as well.

Others might say the 'legal argument' (case law stuff) could be extracted and put into a separate skeleton argument, but as this is the small claims track and as PPCs always throw all their stuff into their WS, I don't have a problem with it being set out as above and it reads in a way that flows and makes sense.


I've already submitted a Skeleton Defence though, I need to make sure that my WS & Counter Claim WS include all those references too right?

Did you get a chance to look at my lease?

https://www.dropbox.com/s/ivbccclqbc3jusc/edited_New%20Lease%20EDITED.pdf?dl=0

There's a few mentions of parking rights in there, do you think I have chosen the best one to quote?

Appreciate the wording is a bit vague in the actual lease, and to play Devil's Advocate there's a chance the judge looks at it as:

-Lease says I can only park in my allocated space
-Lease outlines a solitary space that I wasn't parked in (i wasn't even aware i had an allocated space until a few weeks ago!)
-Judge decides I was not parking in my rightful spot and I lose

Do you think this is likely/ possible?

Posted by: SchoolRunMum Sat, 11 Nov 2017 - 20:52
Post #1330964

QUOTE
I've already submitted a Skeleton Defence though,

No, you've already submitted your defence.

A 'skeleton argument' summarises your defence and the legal arguments and case law, to assist the court in setting it out point by point.

But it's not mandatory and the way you have that WS looks fine to me, now that you have worked to justify the remedy of compensation for distress, and to show the case law that supports such a decision to be made, if the Judge is with you.

QUOTE
-Lease says I can only park in my allocated space
-Lease outlines a solitary space that I wasn't parked in (i wasn't even aware i had an allocated space until a few weeks ago!)
-Judge decides I was not parking in my rightful spot and I lose...

Do you think this is likely/ possible?


Anything is possible in small claims! It depends on the Judge.

I can't get that lease link to work - it seems to be a link specific to your own Dropbox account. You need to get a 'share' link.

Posted by: HenryHippo Sat, 11 Nov 2017 - 21:08
Post #1330968

QUOTE (SchoolRunMum @ Sat, 11 Nov 2017 - 21:52) *
QUOTE
I've already submitted a Skeleton Defence though,

No, you've already submitted your defence.

A 'skeleton argument' summarises your defence and the legal arguments and case law, to assist the court in setting it out point by point.

But it's not mandatory and the way you have that WS looks fine to me, now that you have worked to justify the remedy of compensation for distress, and to show the case law that supports such a decision to be made, if the Judge is with you.

QUOTE
-Lease says I can only park in my allocated space
-Lease outlines a solitary space that I wasn't parked in (i wasn't even aware i had an allocated space until a few weeks ago!)
-Judge decides I was not parking in my rightful spot and I lose...

Do you think this is likely/ possible?


Anything is possible in small claims! It depends on the Judge.

I can't get that lease link to work - it seems to be a link specific to your own Dropbox account. You need to get a 'share' link.


This should work https://www.dropbox.com/s/ivbccclqbc3jusc/edited_New%20Lease%20EDITED.pdf?dl=0

Glad I have the smaller case first, so by the time I get to this one, I know what to expect

Posted by: SchoolRunMum Sat, 11 Nov 2017 - 21:38
Post #1330980

Removing a bit of repetition here (the bold phrases) would be good, and I would join the quoted section or it reads like ''It is a question of degree, and in my view'' is your words rather than a continuation of the quote from case law:


QUOTE
10. While the Manager may have the right to make reasonable changes, the Manager may not make conditions worse for the owner of the lease as this would constitute a derogation of grant. Charging a penalty for not displaying a permit would make conditions worse for the Defendant. Therefore this is a derogation of grant and amounts to tortious interference with the Defendants lease by both the Manager and their agent, the Claimant.

“Acting reasonably at all times the Manager shall have authority to make and at any time vary such Estate Regulations as it may think fit for the preservation of the amenities of the Estate or for the general convenience of the occupiers of the Dwellings” (See HH/05, Lease. Page 9)

However, the Manager may not make conditions worse for the owner of the lease as this would be a derogation of grant. Charging a penalty for not displaying a permit would make conditions worse for the Defendant. Therefore this is a derogation of grant and tantamount to tortious interference.

An example of derogation from grant is demonstrated in Chartered Trust plc v Davies [1997] 2 EGLR 83 (See HH/06, Chartered Trust V Davies), a landlord let a unit in a "high class" development to a pawnbroker. The clientele of the pawnbroker caused a nuisance to another tenant in the development. The landlord was held to have derogated from its grant. "Did the conduct of the plaintiff by letting, as it did, to the pawnbrokers ... amount to a repudiation of the lease by the plaintiff with the result that they derogated from their grant. The principle of derogation of grant is, according to Brown and Flower that it make the premises materially less fit for the particular purpose for which the grant was made. It is a question of degree, and in my view ... the letting to the pawnbrokers was a substantial interference in the defendant's business, and it did make the purpose for which her father took out the lease on her behalf less fit. It is quite clear from her evidence that the pawnbroker's business was a substantial interference with her own business, and, indeed, was the cause of her giving up the business. There was a nuisance. There was the deterrent effect of the activities there on potential customers which resulted in her business collapsing, and if she had gone on there she would, no doubt, have gone bankrupt. This is something that the plaintiff ought to have foreseen in my view when they let those premises to the pawnbrokers."


And in the quote above I would remove some parts about her business collapsing as they are not relevant to what you are trying to say. I think when I quoted this case to you I removed certain sections (just replace them with [...] to signify removed text).

Posted by: HenryHippo Sat, 11 Nov 2017 - 21:54
Post #1330988

Thanks, have done

Posted by: HenryHippo Mon, 20 Nov 2017 - 21:52
Post #1333194

Just had an annual letter come through with service charges details for 2017 from the MA...

Oh and a charge for £5 (presumably a subscription charge) for the parking permit to take me through to end of 2018

I'd love to take a stand on this too, but for £5 not worth the hassle

Reckon I should include this invoice in my WS too?

Posted by: HenryHippo Tue, 21 Nov 2017 - 17:05
Post #1333412

21. I refer to Parking Eye V Beavis 2015 (See HH/13 Parking Eye V Beavis) were it was stated that “And, while the Code of Practice is not a contractual document, it is in practice binding on the operator since its existence and observance is a condition of his ability to obtain details of the registered keeper from the DVLA. In assessing the fairness of a term, it cannot be right to ignore the regulatory framework which determines how and in what circumstances it may be enforced”

“Code of Practice” refers to the IPC Code of Practice (See HH/14 IPC Code of Practice)



Beavis refers to the IPC Code of Practice, do I need to refer to it also? Beavis isn't referring to a specific page, so I would have to supply the entire IPC Code of Practice right?

Posted by: SchoolRunMum Tue, 21 Nov 2017 - 17:15
Post #1333413

QUOTE (HenryHippo @ Mon, 20 Nov 2017 - 22:52) *
Just had an annual letter come through with service charges details for 2017 from the MA...

Oh and a charge for £5 (presumably a subscription charge) for the parking permit to take me through to end of 2018

I'd love to take a stand on this too, but for £5 not worth the hassle

Reckon I should include this invoice in my WS too?


Yes, it shows your contract is with the landlord via the MA as middle-man, and that for £5 you are granted 'a permit' authorising parking, which is paid for directly like any other service charge, and does not come with a caveat stating that your lease is altered in any way, nor that the permit creates a contractual obligation with any third party that can give rise to additional 'service' charges of any description.

Therefore by paying your annual fiver, you are concluding a contract that the PPC is not a party to, and it's a simple contract that does not point towards any other terms, signs, or obligations than to pay your fiver.


The the Code of Practice question, I would refer to any sections where you can show non-compliance, for example I think there's a section requiring PPCs to ensure that any new regulations (in a car park not previously restricted) are prominently communicated with additional signs, to ensure terms are brought clearly to the attention of those drivers used to using that car park unrestricted.

In your case, they didn't even provide you with any permit when the scheme started, so that's their failing, not yours. If you say that, it's then their job to prove otherwise and they won't be able to, because you know you were not provided with any permit.

You'd only need the pages of the CoP that relate to what you are saying, IMHO, especially as UKPC should be fully familiar with it.

Posted by: emanresu Tue, 21 Nov 2017 - 17:18
Post #1333416

Why pay £5??

If you pay the amount you are essentially signing up for a service that says "We'll invoice you £100 if you forget to put up or permit". The lease won't come into it as it is a separate agreement for a service - like getting the milkman to deliver milk.

You'd be daft to dilute the protection of the lease.

Posted by: HenryHippo Tue, 21 Nov 2017 - 21:53
Post #1333549

Here's the link to the demand for £5 that they have sent. They have included some legal info too, are they just trying to scare me?

I pay by direct debit, so presumably I would need to call my bank to stop it


And if I choose to include it in the WS, then I need to point out that there are no mentions of penalties in this communication if I fail to show a permit?

https://www.dropbox.com/s/145v2mybtlmxec7/Combined%20Demand.pdf?dl=0

Posted by: SchoolRunMum Tue, 21 Nov 2017 - 22:00
Post #1333554

At first glance, a sheet connected to the invoice for the 'permit scheme' contract, which lists your rights and obligations but doesn't include any 'relevant obligation' to display the permit, nor any reference to terms on a sign forming part and parcel of the scheme, nor reference to any additional charges for parking, appears to be a good thing to include in your evidence.

See what others make of it.

I can see where Emanresu is coming from about not diluting the rights in your lease by accepting a permit scheme in any shape or form.

Posted by: HenryHippo Tue, 21 Nov 2017 - 22:43
Post #1333575

QUOTE (SchoolRunMum @ Tue, 21 Nov 2017 - 23:00) *
At first glance, a sheet connected to the invoice for the 'permit scheme' contract, which lists your rights and obligations but doesn't include any 'relevant obligation' to display the permit, nor any reference to terms on a sign forming part and parcel of the scheme, nor reference to any additional charges for parking, appears to be a good thing to include in your evidence.

See what others make of it.

I can see where Emanresu is coming from about not diluting the rights in your lease by accepting a permit scheme in any shape or form.


Something like this:

12. I have received an invoice from the Managing Agents (Firstport) who have asked for a further £5 charge to the parking permit. There are no references at all to an obligation to display the permit, or any references to additional charges for parking, such as those levied against me by UKPC


Deadline for documents is Friday so need to post this tomorrow (Wed)

Posted by: SchoolRunMum Wed, 22 Nov 2017 - 22:48
Post #1333958

12. I have received an invoice from the Managing Agents (Firstport) who have asked for a £5 charge for a 'parking permit' (attached evidence number xxx). For the payment of £5 - an invoice which neither mentions UKPC nor sets any additional charges for parking - residents are given an unfettered right to park. This is a simple contract that does not point towards any other terms and is paid for directly like any other service charge at the flats.

12.1 There is no 'relevant contract' nor 'relevant obligation' (pre-requisites within Schedule 4 of the POFA). There is no instruction about a need to display a permit, nor even any reference to terms on any sign forming part of the scheme. There is even a sheet attached to the invoice, which lists residents' rights and obligations and is silent about further terms or charges or third party contracts, so even if a resident has paid their annual £5 for a permit, they have not agreed to any contract with UKPC whatsoever.

Posted by: HenryHippo Fri, 24 Nov 2017 - 16:25
Post #1334467

QUOTE (SchoolRunMum @ Wed, 22 Nov 2017 - 23:48) *
12. I have received an invoice from the Managing Agents (Firstport) who have asked for a £5 charge for a 'parking permit' (attached evidence number xxx). For the payment of £5 - an invoice which neither mentions UKPC nor sets any additional charges for parking - residents are given an unfettered right to park. This is a simple contract that does not point towards any other terms and is paid for directly like any other service charge at the flats.

12.1 There is no 'relevant contract' nor 'relevant obligation' (pre-requisites within Schedule 4 of the POFA). There is no instruction about a need to display a permit, nor even any reference to terms on any sign forming part of the scheme. There is even a sheet attached to the invoice, which lists residents' rights and obligations and is silent about further terms or charges or third party contracts, so even if a resident has paid their annual £5 for a permit, they have not agreed to any contract with UKPC whatsoever.


Thanks appreciate it, but I posted on Wed without mentioning this as it was getting late.

Reckon there is any point sending this in another letter?

Posted by: SchoolRunMum Fri, 24 Nov 2017 - 18:42
Post #1334500

No, use it as a crib sheet for yourself at the hearing though if it helps to explain your position, and why the invoice is relevant.

Posted by: HenryHippo Fri, 24 Nov 2017 - 23:24
Post #1334554

QUOTE (SchoolRunMum @ Fri, 24 Nov 2017 - 19:42) *
No, use it as a crib sheet for yourself at the hearing though if it helps to explain your position, and why the invoice is relevant.


Will do. Other parties WS arrived today. Much more punctual and professional than the other case, with no sloppy mistakes. Although their arguments aren't so convincing in this one. They simply haven't addressed my claim of tortious interference.

Their bundle was 163 pages. Most of this were pictures of the car, signage and demands for money posted to the owner of the car

I haven't included the above, just the relevant pages in the link below. Appreciate it is lengthy and in multiple parts


Part 1 https://www.dropbox.com/s/i43qnvqsvsx3636/SCS%20Nov%2017%20Part%201.pdf?dl=0

Part 2 https://www.dropbox.com/s/59evetuxi0l8arz/SCS%20Nov%2017%20Part%202.pdf?dl=0

Part 3 https://www.dropbox.com/s/hd14sy1cee9vnm6/SCS%20Nov%2017%20Part%203.pdf?dl=0

Part 4 https://www.dropbox.com/s/wxro5xjtfkbrjip/SCS%20Nov%2017%20Part%204.pdf?dl=0





Their structure is:

-Claimant's cost Schedule: £645. Can they even claim costs in small claims?

-WS from UKPC operative. Interesting part was "The terms and conditions of the parking do not override the terms of the lease, rather, they operate as an extension of the terms contained in the same"

-UKPC Contract with the MA. No agreement for the former to pay the latter per ticket. MA can request 10% of tickets are waived per month

-Pictures of signage, floor plan of the premises

-A full 100 pages with pictures of the car and demands for money

-A letter the the owner dated June demanding £1,120

-Generic copy of a lease for the block

-Letter dated August 2016 saying that permits will come into place in a couple of months. But it's just a letter with the owners address at the top. No actual proof it was sent to him

-Letter dated Nov 16 saying "here is your parking permit". Again no proof it was actually sent

-Letter dated 2 weeks later advising that additional permits will be issued. Again no proof it was sent

Posted by: emanresu Sat, 25 Nov 2017 - 06:17
Post #1334562

QUOTE
"The terms and conditions of the parking do not override the terms of the lease, rather, they operate as an extension of the terms contained in the same"


This is the core to any Residential claim. The purpose of Beavis was to put in place a cheap (£200) legal mechanism to solve a nuisance. In Mr B's case is was misusing the car park by breaching the terms.

What you have to show is who is creating the nuisance for whom? Does the lease actually restrict you or has the MA on behalf lessor/head lessee, exceeded their authority and caused a trespass/tort on your own space/property. So what was the problem that UKPC allege they were solving for the MA, and was it just a figment of their imagination to justify issuing all these tickets. So if the judge decides that UKPC were using their imagination to justify issuing all these tickets, then your counterclaim succeeds. Your post in #5 is persuasive that they had no cause of action.

Coming back to the comment about "extension of the terms contained in the same". The issue here is whether this extension was part of the lease when you accepted it yourself or has it been imposed on you after the event. Then you have to question whether this extension of a lease meets the legal requirements for such an extension. Was the correct process followed by the Head Leaseholder when granting the initial lease to you. A lessee takes on [equitable] title to a property and enjoys the same rights as the lessor/head lessee as expressed in the lease. If it is not there, and it has not been varied in the manner that such property titles need to be amended, then there is no basis for the claim.

Forget about all the other [DPA] stuff and work this element out clearly. Courts seem less interested in a personal tort [your personal information] and are more concerned to a tort on property [your lease] which is why Mr BB got stuffed at the SC. You've done a lot of the work already (see your comments in #10) but it will have to be clearer for a judge and a good skeleton should do the job.

Edit: Why not start doing a costs schedule and making sure they know you have costs and you will be seeking them in addition to the amounts in your claim. And don't forget to add interest @8% pa.

Edit 2: Want to go for broke? Why not apply to join the MA into your counterclaim under the principle of vicarious liability - but only on the interference with lease issue and not the DPA?

QUOTE
Pickford LJ put it in a case cited with approval by Lord Millett in Mills at p 22A, Malzy v Eichholz [1916] 2 KB 308, 319, “[a]uthority to conduct a business is not an authority to conduct it as to create a nuisance

Posted by: hexaflexagon Sat, 25 Nov 2017 - 10:49
Post #1334585

As a follower (and very occasional contributor early on) of this thread may I wish you all the very best for December 8th.
I'm sure we're all rooting for you and with good luck and a following wind any judgment in your favour will put down a marker for many others.

Whereabouts is the court in which this is being heard?

Posted by: emanresu Sat, 25 Nov 2017 - 17:29
Post #1334638

Removed.

Posted by: nosferatu1001 Sat, 25 Nov 2017 - 20:39
Post #1334671

Costs - those are not recoverable by the claimant. They are unlikely to send anyone employed by them, just an advocate and those ciosts are not recoverable
You would only get hit fir real costs if your conduct was unreasonable- see cpr27.14, read it and not the small claims exclusions.

You must submit your own costs schedule. I would do one for claim one for counterclaim. Ordinary costs - half day at max £95 plus mileage and Parking

There is no way the terms can be an extension of the lease. It’s a land contract. That requires paperwork that is signed , otherwise it isn’t valid. Use the “someone sticks a sign up on your driveway claiming they’ve extended the terms of your freehold” to show it’s a nonsense.


Posted by: emanresu Sun, 26 Nov 2017 - 08:52
Post #1334729

As above

Here is a starter for your Skeleton. It will all turn on the rather vague paragraph they refer to in the 8th Schedule. And since the site had operated since 2004 to 2016 without the "advantage" of UKPC you have to challenge what was the intent of both parties - that is the Lessor or [all the] lessees. The decision looks to be unilateral and an a signficiant move undertaken without reason, explanation or consideration of the rights of [all the] lesses. Refer to the highlighted section.


QUOTE
The interpretation of written contracts was considered recently by the Supreme Court in Arnold in the context of such a service charge provision. Lord Neuberger (with whom Lord Sumption and Lord Hughes agreed) stated at paragraph 15:


“When interpreting a written contract, the court is concerned to identify the intention of the parties by reference to 'what a reasonable person having all the background knowledge which would have been available to the parties would have understood them to be using the language in the contract to mean', to quote Lord Hoffmann in Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38, [2009] 1 AC1101, para 14. And it does so by focussing on the meaning of the relevant words, … in their documentary, factual and commercial context. That meaning has to be assessed in the light of (i) the natural and ordinary meaning of the clause, (ii) any other relevant provisions of the lease, (iii) the overall purpose of the clause and the lease, (iv) the facts and circumstances known or assumed by the parties at the time that the document was executed, and (v) commercial common sense, but (vi) disregarding subjective evidence of any party's intentions….”
26. Lord Neuberger emphasised six factors at paragraphs 17 to 22:


“17. First, the reliance placed in some cases on commercial common sense and surrounding circumstances … should not be invoked to undervalue the importance of the language of the provision which is to be construed….

18. Secondly, when it comes to considering the centrally relevant words to be interpreted, I accept that the less clear they are, or, to put it another way, the worse their drafting, the more ready the court can properly be to depart from their natural meaning…

19. [Thirdly] commercial common sense is not to be invoked retrospectively. The mere fact that a contractual arrangement, if interpreted according to its natural language, has worked out badly, or even disastrously, for one of the parties is not a reason for departing from the natural language. Commercial common sense is only relevant to the extent of how matters would or could have been perceived by the parties, or by reasonable people in the position of the parties, as at the date that the contract was made…

20. Fourthly, while commercial common sense is a very important factor to take into account when interpreting a contract, a court should be very slow to reject the natural meaning of a provision as correct simply because it appears to be a very imprudent term for one of the parties to have agreed, even ignoring the benefit of wisdom of hindsight…

21. [Fifthly]…. When interpreting a contractual provision, one can only take into account facts or circumstances which existed at the time the contract was made, and which were known or reasonably available to both parties. …. It cannot be right to take account of a fact or circumstance known only to one of the parties.

22. [Sixthly], in some cases, an event subsequently occurs which was plainly not intended or contemplated by the parties, judging from the language of their contract. In such a case if it is clear what the parties would have intended the court will give effect to that intention….

Posted by: emanresu Sun, 26 Nov 2017 - 08:52
Post #1334730

As above

Here is a starter for your Skeleton. It will all turn on the rather vague paragraph they refer to in the 8th Schedule. And since the site had operated since 2004 to 2016 without the "advantage" of UKPC you have to challenge what was the intent of both parties - that is the Lessor or [all the] lessees. The decision looks to be unilateral and an a signficiant move undertaken without reason, explanation or consideration of the rights of [all the] lesses. Refer to the highlighted section.


QUOTE
The interpretation of written contracts was considered recently by the Supreme Court in Arnold v Britton and others [2015] in the context of a service charge provision. Lord Neuberger (with whom Lord Sumption and Lord Hughes agreed) stated at paragraph 15:


“When interpreting a written contract, the court is concerned to identify the intention of the parties by reference to 'what a reasonable person having all the background knowledge which would have been available to the parties would have understood them to be using the language in the contract to mean', to quote Lord Hoffmann in Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38, [2009] 1 AC1101, para 14. And it does so by focussing on the meaning of the relevant words, … in their documentary, factual and commercial context. That meaning has to be assessed in the light of (i) the natural and ordinary meaning of the clause, (ii) any other relevant provisions of the lease, (iii) the overall purpose of the clause and the lease, (iv) the facts and circumstances known or assumed by the parties at the time that the document was executed, and (v) commercial common sense, but (vi) disregarding subjective evidence of any party's intentions….”
26. Lord Neuberger emphasised six factors at paragraphs 17 to 22:


“17. First, the reliance placed in some cases on commercial common sense and surrounding circumstances … should not be invoked to undervalue the importance of the language of the provision which is to be construed….

18. Secondly, when it comes to considering the centrally relevant words to be interpreted, I accept that the less clear they are, or, to put it another way, the worse their drafting, the more ready the court can properly be to depart from their natural meaning…

19. [Thirdly] commercial common sense is not to be invoked retrospectively. The mere fact that a contractual arrangement, if interpreted according to its natural language, has worked out badly, or even disastrously, for one of the parties is not a reason for departing from the natural language. Commercial common sense is only relevant to the extent of how matters would or could have been perceived by the parties, or by reasonable people in the position of the parties, as at the date that the contract was made…

20. Fourthly, while commercial common sense is a very important factor to take into account when interpreting a contract, a court should be very slow to reject the natural meaning of a provision as correct simply because it appears to be a very imprudent term for one of the parties to have agreed, even ignoring the benefit of wisdom of hindsight…

21. [Fifthly]…. When interpreting a contractual provision, one can only take into account facts or circumstances which existed at the time the contract was made, and which were known or reasonably available to both parties. …. It cannot be right to take account of a fact or circumstance known only to one of the parties.

22. [Sixthly], in some cases, an event subsequently occurs which was plainly not intended or contemplated by the parties, judging from the language of their contract. In such a case if it is clear what the parties would have intended the court will give effect to that intention….




I've got one of these leases but have not had to enjoy the "advantages" of UKPC yet. IMHO this is a breach of a positive covenant - which runs with the land - and not a breach of contract. So UKPC have no standing to enforce such a breach only FirstPort. See Schedule 10 para 1.2 to understand FirstPort's standing.


The other problem that UKPC have is that they are merely the licensee having been given the job of keeping non-lessees off the property. The significant difference between lease and license is that a lease gives full ownership to the tenant and protects him for the full term of the lease. Whereas a license is regarded as merely a contractual agreement. A licensee is not allowed to enforce anything as an interest in the land. They are strangers to any arrangement between Kingsoak (via Firstport) and the lessees.

Posted by: HenryHippo Sun, 26 Nov 2017 - 22:43
Post #1334930

QUOTE (emanresu @ Sat, 25 Nov 2017 - 07:17) *
QUOTE
"The terms and conditions of the parking do not override the terms of the lease, rather, they operate as an extension of the terms contained in the same"


This is the core to any Residential claim. The purpose of Beavis was to put in place a cheap (£200) legal mechanism to solve a nuisance. In Mr B's case is was misusing the car park by breaching the terms.

What you have to show is who is creating the nuisance for whom? Does the lease actually restrict you or has the MA on behalf lessor/head lessee, exceeded their authority and caused a trespass/tort on your own space/property. So what was the problem that UKPC allege they were solving for the MA, and was it just a figment of their imagination to justify issuing all these tickets. So if the judge decides that UKPC were using their imagination to justify issuing all these tickets, then your counterclaim succeeds. Your post in #5 is persuasive that they had no cause of action.

Coming back to the comment about "extension of the terms contained in the same". The issue here is whether this extension was part of the lease when you accepted it yourself or has it been imposed on you after the event. Then you have to question whether this extension of a lease meets the legal requirements for such an extension. Was the correct process followed by the Head Leaseholder when granting the initial lease to you. A lessee takes on [equitable] title to a property and enjoys the same rights as the lessor/head lessee as expressed in the lease. If it is not there, and it has not been varied in the manner that such property titles need to be amended, then there is no basis for the claim.

Forget about all the other [DPA] stuff and work this element out clearly. Courts seem less interested in a personal tort [your personal information] and are more concerned to a tort on property [your lease] which is why Mr BB got stuffed at the SC. You've done a lot of the work already (see your comments in #10) but it will have to be clearer for a judge and a good skeleton should do the job.

Edit: Why not start doing a costs schedule and making sure they know you have costs and you will be seeking them in addition to the amounts in your claim. And don't forget to add interest @8% pa.

Edit 2: Want to go for broke? Why not apply to join the MA into your counterclaim under the principle of vicarious liability - but only on the interference with lease issue and not the DPA?

QUOTE
Pickford LJ put it in a case cited with approval by Lord Millett in Mills at p 22A, Malzy v Eichholz [1916] 2 KB 308, 319, “[a]uthority to conduct a business is not an authority to conduct it as to create a nuisance



Skeleton Defense: this is a document for my own reference to marshal my arguments in court? I don't submit this to anyone?

Is it not far too late to join anyone else into the counterclaim at this stage?


Permits imposed on me: I imagine the other side will argue that they notified me about the introduction of permits and that by not responding I accepted the change. However they need to prove that I was notified right? Only way to do this is to have proof of postage to me. Not just a letter with my address at the top as that isn't proof it was actually sent


QUOTE (hexaflexagon @ Sat, 25 Nov 2017 - 11:49) *
As a follower (and very occasional contributor early on) of this thread may I wish you all the very best for December 8th.
I'm sure we're all rooting for you and with good luck and a following wind any judgment in your favour will put down a marker for many others.

Whereabouts is the court in which this is being heard?


Thanks a lot. Reading

Posted by: emanresu Mon, 27 Nov 2017 - 05:51
Post #1334944

QUOTE
Permits imposed on me: I imagine the other side will argue that they notified me about the introduction of permits and that by not responding I accepted the change. However they need to prove that I was notified right? Only way to do this is to have proof of postage to me. Not just a letter with my address at the top as that isn't proof it was actually sent


This is the bit where UKPC are doing the scam. This is where they are claiming contract law while at the same time indicating their authority is based on property law. You have a legal agreement (the lease) which only has two parties. You have been given an easement to use the parking space on an exclusive basis. That is the deal between the two of you. You'll see comments elsewhere about "primacy of contract" which means your lease outguns UKPC's supposed contract.

What has happened is that UKPC has come along and claimed it is not exclusive (some 12 years after the date of the original) attempting to claim they have "control" of the space under their rules. The space is under your control for the length of your lease - that is what the lease says. If the true owner (the lessor) wants to vary the lease it has to be done under property law and not contract law - and certainly not just with a letter.

Supposing it was a bedroom which is under your control too. Would you consider a letter from a stranger claiming new rules would apply to that bedroom to be valid?

As regards the Skeleton, it is something that is written that brings together the legal points ie. the lease and what it covers; the parties (you and the Lessor); and the limits of the Lessor to introduce their scheme; and if there is a breach of the lease terms, how serious is it (it's not) and what is the provision in the lease for its rectification (it's not £1000). It is better to prepare a written one and have 3 copies of it - one for the court, you and the other side. And depending on how long it takes you to put one together, you either send it to the court/the other side a few days before or hand it in on the day

Posted by: nosferatu1001 Mon, 27 Nov 2017 - 07:31
Post #1334947

Skeleton = Skeleton Argument. One side of A4, you submit it ideally about 3 days before the hearing, and it summarises your defence and why the claimants case has failed - because by this point you have full sight of everything they can rely upon in court. Submit your costs schedule at the same time. As they KNOW they have no rights to enforce on a leased space, I would argue that they had no right to litigate in the first place, and ALL their actions have been unreasonable under the Denton tests of "unreasonable" - this triggers you to ask for greater costs under CPR27.14(2)(g). Go read both teh Denton case AND the CPR

For property law - you cannot merely be "notified" about something like this; YOU have rights to that space, and only YOU can AGREE to give them up - which you did not do. Someone sending a letter stating you agree to it does not mean anything, that letter is meaningless. Absolutely hammer them on how this can be an "extension" to the lease when this was NOT executed as a lease alteration, but a mere letter by a 3rd party with no interest in the land.

Posted by: HenryHippo Mon, 27 Nov 2017 - 21:23
Post #1335157

Here is my cost schedule. I see that you can claim 8% interest, but what date would this apply to? The lost earnings would apply to the date of the hearing, so zero interest. Only the £35 counterclaim fee could incur interest.

Also to the poster above saying I should make a separate costs schedule for the counterclaim, how would this work? I apply for lost earnings twice? Surely not


Defendant’s Cost Schedule:
Fixed Fee Costs

1. Lost earnings for a half day of work. I earn £200 a day, but I will claim the maximum of £95.00
2. Mileage to court. 40 miles at £0.45 per mile. £18.00
3. Parking for 3 hours. £11.00

Disbursements

4. Counter Claim Fee. £35.00

TOTAL: £159.00

The costs stated above do not exceed the costs with the Claimant is liable to pay in relation to the Counter Claim.

Signed
Henry Hippo

Posted by: HenryHippo Mon, 27 Nov 2017 - 21:47
Post #1335164

QUOTE (emanresu @ Mon, 27 Nov 2017 - 06:51) *
..



QUOTE (nosferatu1001 @ Mon, 27 Nov 2017 - 08:31) *
..


Thanks for the skeleton argument.

To summarise:

- 2004 to 2016 the site was not patrolled by any parking company and no nuisance was caused

- 2016 UKPC were brought in unilaterally, which I did not agree too. You have to question the motives of them coming in when there was no nuisance before

- My lease does not mention permits. It does give the MA the right to make reasonable changes. However anything that makes me worse off is tortious interference. Being faced with a 4 figure parking charge clearly is a worse situation for myself therefore the MA did not have the right to make such a change

- UKPC are used to keep non-lesses off the property. I am a lessee and UKPC are a stranger/ not included in the agreement between myself and First Port

- My lease imposes no restriction with regards to permits for my parking

- What problem are UKPC solving for the MA by issuing a lessee with PCNs?

- UKPC claim that they operate within an extension of the lease. This is denied as there is no mention of them, or permitted parking in the lease

Posted by: SchoolRunMum Mon, 27 Nov 2017 - 21:54
Post #1335165

You could add 'Counter claim hearing fee, in the event that this Claimant discontinues prior to the hearing the Defendant will pay £xx' (because if they do, you will have to pay to be heard - and you should).

You should also itemise your time spent on this, as Johnersh - a solicitor who posts on MSE forum - says here:

http://forums.moneysavingexpert.com/showthread.php?p=73044044

I bet you spent over 10 hours on it, bearing in mind you had to do loads of research, and wrote a counter-claim & had to find all the case law as you are not a solicitor, just a litigant in person. Try it. Add more. Talk about unreasonableness and have a crib sheet of everything that the Claimant and their solicitors have done (bullet points) that can be described as 'wholly unreasonable'' in this case from PCN through to court procedures, the lot.

This person got £1500 costs granted:

http://forums.moneysavingexpert.com/showthread.php?p=73268332#post73268332

That costs Order is being fought by Gladstones, who are throwing their toys out of the pram, but we hope they will fail. Sassii's Judge was prepared to listen to substantial (reasonable) costs incurred by the victim Defendant, and granted them on the indemnity basis, i.e. higher than the bare minimum.

Posted by: nosferatu1001 Tue, 28 Nov 2017 - 08:16
Post #1335233

Ordinary costs are lost earnings - claimed once - plus mileage, parking.
You then go for additional costs as you state their claim is by nature unreasonable to begin with - they know you are a lessee, they SHOULD HAVE known that lessees have rights they cannot interfere with, and this claim is vexatious and doomed to fali from the start. While they have a right to litigate, they also should be regarded as wholly unreasonable.

If they are unreasonable then you can claim LIP rate of £19 ph for time defending AND your time in counterclaiming, itemised separately.

Again have you read the Denton case and the CPR I quoted? Yes or No smile.gif

Posted by: emanresu Tue, 28 Nov 2017 - 08:29
Post #1335236

QUOTE
It does give the MA the right to make reasonable changes.


Change that to: It does give the MA the right to make reasonable changes by following the processes outlined in the Landlord and Tenant Act 1987. This would be an application to the appropriate Tribunal.


You'll also have to strongly point out that UKPC are strangers to any agreement between the Lessors and the Lessees having no interest in the land and as such have no standing in this matter. The issue here is one of "control" and "benefit". The lessees acquire a benefit by way of a lease in return for a fee (the selling price) for a fixed period. What you have now is a third party saying that they are now in control of the space that you have previously agreed with the Lessors to be exclusively for your benefit. While the Lessor who is the true owner of the space can ultimately control the land, the issue arises of WTF (in a legal sense) is someone who was not party to the original agreement doing interfering and then claiming a contractual amount for interfering. The final argument is if the Lessor is simply exercising their rights under true ownership, then they should be the claimant but only after following the provisions in LTA 1987

Posted by: HenryHippo Tue, 28 Nov 2017 - 17:39
Post #1335403

QUOTE (nosferatu1001 @ Tue, 28 Nov 2017 - 09:16) *
Ordinary costs are lost earnings - claimed once - plus mileage, parking.
You then go for additional costs as you state their claim is by nature unreasonable to begin with - they know you are a lessee, they SHOULD HAVE known that lessees have rights they cannot interfere with, and this claim is vexatious and doomed to fali from the start. While they have a right to litigate, they also should be regarded as wholly unreasonable.

If they are unreasonable then you can claim LIP rate of £19 ph for time defending AND your time in counterclaiming, itemised separately.

Again have you read the Denton case and the CPR I quoted? Yes or No smile.gif



Yes to both Denton and the CPR. With Denton, "The Court should “identify and assess the seriousness of the failure to comply with any rule, practice direction or court order which engages rule 3.9"

So in this case, the judge will observe that UKPC have failed to comply with the rule that I am a leaseholder, and the seriousness of this is that they are making threats for a significant sum of money?

£19 per hour and well over 10 hours so far, got it. I will break it down fully like the MSE thread into separate pieces

Posted by: HenryHippo Wed, 29 Nov 2017 - 11:16
Post #1335587

QUOTE (nosferatu1001 @ Tue, 28 Nov 2017 - 09:16) *
If they are unreasonable then you can claim LIP rate of £19 ph for time defending AND your time in counterclaiming, itemised separately.


Please see below my costs. Broken down into main and then counterclaim. Any feedback?

Defendant’s Cost Schedule:

Costs of attending Court

1. Lost earnings for a half day of work. I earn £200 a day, therefore I will claim the maximum of £95.00
2. Mileage to court. 40 miles at £0.45 per mile. £18.00
3. Parking for 3 hours. £11.00

SUBTOTAL: £124.00

Time Spent Reading:

4. Statement of Claim Form: 30 minutes. 0.5 hours
5. Emailing FirstPort three times: 10 minutes x 3. 0.5 hours
6. Official Copy of Register: 15 minutes. 0.25 hours
7. Lease: 1 hour
8. Chartered Trust V Davies: 30 minutes. 0.5 hours
9. Popla 2015: 30 minutes. 0.5 hours
10. Letter to SCS Jul 2017: 30 minutes. 0.5 hours

Time Spent Drafting:

11. Acknowledgement of Service Form: 30 minutes. 0.5 hours
12. Statement of Defence: 4 hours
13. Directions Questionnaire: 30 minutes. 0.5 hours
14. Witness Statement: 4 hours
15. Administration (printing, scanning, assembling documents and time to post): 2 hours

TOTAL TIME: 16.75 hours at £19.00 per hour = £318.25

Disbursements

16. Printing of documents: 100 pages at £0.10 per page = £10.00
17. Postage of Witness Statement to Court = £2.50
18. Postage of Witness Statement to SCS = £2.50

Subtotal: £15.00

GRAND TOTAL: £457.25

Signed
Henry Hippo

Defendants Counter Claim Cost Schedule


Time Spent Reading

1. Telegraph Article: 15 minutes. 0.25 hours
2. Consumer Rights Act 2015: 30 minutes. 0.5 hours
3. Data Protection Act 1998: 1 hour
4. Parking Eye V Beavis: 1 hour
5. IPC Code of Practice: 1 hour
6. Ferguson V British Gas: 1 hour
7. Vidall-Hall V Google: 1 hour
8. Halliday V Creation: 1 hour

Time Spent Drafting

9. Counter Claim: 3 hours
10. Administration (printing, scanning, assembling documents and time to post): 2 hours

TOTAL TIME: 11.75 hours at £19.00 per hour = £223.25

Disbursements

1. Printing of documents: 100 pages at £0.10 per page = £10.00
2. Counter Claim Fee = £35.00

Subtotal: £45.00

GRAND TOTAL: £268.25

Signed
Henry Hippo

Posted by: nosferatu1001 Wed, 29 Nov 2017 - 12:03
Post #1335605

Its £19 per hour or part therefore, so you round up

Posted by: HenryHippo Wed, 29 Nov 2017 - 14:50
Post #1335672

QUOTE (nosferatu1001 @ Wed, 29 Nov 2017 - 13:03) *
Its £19 per hour or part therefore, so you round up


Ok. Rounded both the subtotals up. But layout and everything is ok? Added counterclaim fee too (if the other part discontinues)

Defendant’s Cost Schedule:

Costs of attending Court

1. Lost earnings for a half day of work. I earn £200 a day, therefore I will claim the maximum of £95.00
2. Mileage to court. 40 miles at £0.45 per mile. £18.00
3. Parking for 3 hours. £11.00

SUBTOTAL: £124.00

Time Spent Reading:

4. Statement of Claim Form: 30 minutes. 0.5 hours
5. Emailing FirstPort three times: 10 minutes x 3. 0.5 hours
6. Official Copy of Register: 15 minutes. 0.25 hours
7. Lease: 1 hour
8. Chartered Trust V Davies: 30 minutes. 0.5 hours
9. Popla 2015: 30 minutes. 0.5 hours
10. Letter to SCS Jul 2017: 30 minutes. 0.5 hours

Time Spent Drafting:

11. Acknowledgement of Service Form: 30 minutes. 0.5 hours
12. Statement of Defence: 4 hours
13. Directions Questionnaire: 30 minutes. 0.5 hours
14. Witness Statement: 4 hours
15. Administration (printing, scanning, assembling documents and time to post): 2 hours

TOTAL TIME: 16.75 hours rounded up to 17 hours at £19.00 per hour = £323.00

Disbursements

16. Printing of documents: 100 pages at £0.10 per page = £10.00
17. Postage of Witness Statement to Court = £2.50
18. Postage of Witness Statement to SCS = £2.50

Subtotal: £15.00

GRAND TOTAL: £462.00

Signed
Henry Hippo

Defendants Counter Claim Cost Schedule

Time Spent Reading

1. Telegraph Article: 15 minutes. 0.25 hours
2. Consumer Rights Act 2015: 30 minutes. 0.5 hours
3. Data Protection Act 1998: 1 hour
4. Parking Eye V Beavis: 1 hour
5. IPC Code of Practice: 1 hour
6. Ferguson V British Gas: 1 hour
7. Vidall-Hall V Google: 1 hour
8. Halliday V Creation: 1 hour

Time Spent Drafting

9. Counter Claim: 3 hours
10. Administration (printing, scanning, assembling documents and time to post): 2 hours

TOTAL TIME: 11.75 hours rounded up to 12 hours at £19.00 per hour = £228.00

Disbursements

1. Printing of documents: 100 pages at £0.10 per page = £10.00
2. Counter Claim Fee = £35.00
3. Counter claim hearing fee, in the event that this Claimant discontinues prior to the hearing the Defendant will pay £25.00

Subtotal: £45.00 (£70.00 if the Claimant discontinues)

GRAND TOTAL: £273.00 (£298.00 if the Claimant discontinues)

Signed
Henry Hippo

Posted by: SchoolRunMum Wed, 29 Nov 2017 - 20:05
Post #1335785

All looks very reasonable.

Now -among all the rest of the arguments - you must show THEIR wholly vexatious unreasonableness when you get to the hearing.

Also read OwlGirl's report from today, and try to learn from why her Judge reckoned he couldn't allow the counter-claim (sounds like she nearly got it but he couldn't decide what represents 'significant distress/damage'. We learn from each one, and if you can really make the distress of this entire experience crystal clear, and if the Judge feels the counter-claim has legs, it would be difficult to turn yours down.

Posted by: HenryHippo Thu, 30 Nov 2017 - 11:57
Post #1335898

QUOTE (SchoolRunMum @ Wed, 29 Nov 2017 - 21:05) *
All looks very reasonable.

Now -among all the rest of the arguments - you must show THEIR wholly vexatious unreasonableness when you get to the hearing.

Also read OwlGirl's report from today, and try to learn from why her Judge reckoned he couldn't allow the counter-claim (sounds like she nearly got it but he couldn't decide what represents 'significant distress/damage'. We learn from each one, and if you can really make the distress of this entire experience crystal clear, and if the Judge feels the counter-claim has legs, it would be difficult to turn yours down.


Thanks. Looks like she didn't go into details like Vidall Hall and Google which set a precedent for damages. I will be sure to go into that. Also I had 6 tickets and she only had one. The other side also submited a great deal of evidence of the demands they sent for money, which should work in my favour when it gets to the counter claim

Posted by: nosferatu1001 Thu, 30 Nov 2017 - 12:04
Post #1335899

Both FPA as well as harassment - Ferguson cs British Gas is that one

Posted by: HenryHippo Thu, 30 Nov 2017 - 12:32
Post #1335909

QUOTE (nosferatu1001 @ Thu, 30 Nov 2017 - 13:04) *
Both FPA as well as harassment - Ferguson cs British Gas is that one


FPA ?

Posted by: nosferatu1001 Thu, 30 Nov 2017 - 12:42
Post #1335915

DPA. Fat fingered typing today!

Posted by: HenryHippo Thu, 30 Nov 2017 - 15:53
Post #1335977

Skeleton Defence



I'm not sure how to proceed here. emanresu gave me a full page of A4 on the previous page, but this seems to be less of a skeleton defence and more of a legal argument with a precedent. I was thinking to present my Skeleton Defence as bullet points, like the below. What do the experts think? And a Skeleton Counter Claim too?


• I am the owner of the Flat and therefore the Lessee

• My rights are outlined in the lease. There is no mention of permit parking or UKPC

• The car park was operating without issue for 12 years (2004 to 2016) before UKPC were introduced. I question whether UKPC are trying to solve a problem, or to profit from the land.

• The lease does allow the Manager to make reasonable changes as they see fit. However they may not derogate on my grant as this is tortious interference

• Being charged a sum over £1,000 is a situation to my detriment and therefore derogation on my grant

• I have no legal obligation to display a permit in the car park. If I choose to do so then this is merely an act of courtesy on my part

• The Claimant claims that I was notified of the permit situation. I was not actually notified and in any case this would not be sufficient. Under property law I have to agree to give up my rights which I did not do. It is not possible for this to be an extension to the lease when this was not executed as a lease alteration, but by a mere letter by a 3rd party with no interest in the land

Posted by: HenryHippo Thu, 30 Nov 2017 - 21:58
Post #1336085

^ Don't mean this in a rude way to the poster that wrote a long defence for me, but from my limited understanding of a Skelton Defence, I would have thought that the objective is to summarise the entire defence rather than a great deal of detail on one aspect of it

Posted by: ostell Thu, 30 Nov 2017 - 22:06
Post #1336095

That's what a seleton is. You describe where you will be going and expand on the items in court.

Posted by: HenryHippo Thu, 30 Nov 2017 - 22:52
Post #1336114

QUOTE (ostell @ Thu, 30 Nov 2017 - 23:06) *
That's what a seleton is. You describe where you will be going and expand on the items in court.


OK, so my bullet points above are good for that... will flesh them out to a full page of A4 tomorrow

Posted by: emanresu Fri, 1 Dec 2017 - 07:27
Post #1336162

You've raised the question of "tortious interference" which the judge may answer or more likely duck. Suggest that to get some form of answer you amend it to

However they may not derogate on my grant as this is either tortious interference or private nuisance

Posted by: nosferatu1001 Fri, 1 Dec 2017 - 10:37
Post #1336190

Skeleton Argument, not defence
You summarise your defence, and pull apart their woeful case. One page of A4.

Posted by: HenryHippo Fri, 1 Dec 2017 - 11:17
Post #1336204

Went to the court today to watch a case. As luck would have it it was Gladstones (like my other case), Parking (like both my cases), and the same judge I have for both my cases. I was sitting at the back of the room so I had to squint to see the documents, I can't recall the name of the parking company but it wasn't either of mine.

The defendant was a taxi driver who had visited his local butchers and parked round the back of the shop. Gladstones were claiming he had parked behind the bank which was under permit control and he didn't have a permit. There was much to and fro with nobody able to prove exactly behind which of the buildings the car was.

However Gladstones pointed out that all the buildings there were under permit control, so it didn't matter which one the car was parked outside. The defendant claimed that the parking company hadn't had approval from the butcher to operate there and that he would supply evidence later. The judge of course dismissed this as it wasn't present there and then.

The ticket was £100 and rose to £160 after damages. The judge dismissed the £160 and charged £100 PCN + £25 hearing fee + £25 for something else + £50 costs for Gladstones. Gladstones said they weren't bothered about interest.


A shame that Gladstones won that case. The defendant hadn't prepared properly and should have realised that the contract applied to the whole area and that he had to prove the butchers were exempt

The judge also made a comment about "you don't need the freeholders permission to enforce" which I didn't fully understand but as an observer I stayed silent throughout

Very glad I know what to expect now

Posted by: nosferatu1001 Fri, 1 Dec 2017 - 11:56
Post #1336210

THey dont need the direct permission, but there does need to be a chain of permision from the freeholder. If the freehodler does not permit your as a lessee to use a PPC, you cant use one.

Posted by: HenryHippo Fri, 1 Dec 2017 - 14:15
Post #1336248


Skeleton Argument for defence and then counterclaim below. I also need to bring an attachment of earnings form to the court too right?



• My rights are outlined in the lease. There is no mention of permit parking or UKPC
• The car park was operating without issue for 12 years (2004 to 2016) before UKPC were unilaterally introduced. I question whether UKPC are trying to solve a problem, or to profit from the land
• UKPC were brought in to keep non-lesses from parking on the property. I am a lessee
• The lease does allow the Manager to make reasonable changes as they see fit. However, they may not derogate on my grant as this is either tortious interference or private nuisance
• Being charged a sum over £1,000 is a situation to my detriment and therefore derogation on my grant
• I have no legal obligation to display a permit in the car park. If I choose to do so then this is merely an act of courtesy on my part
• The Claimant claims that I was notified of the permit situation. I was not actually notified and in any case this would not be sufficient. I challenge them to prove that I was notified. Under property law I have to agree to give up my rights which I did not do. It is not possible for this to be an extension to the lease when this was not executed as a lease alteration, but by a mere letter by a 3rd party with no interest in the land- 2004 to 2016 the site was not patrolled by any parking company and no nuisance was caused

Counter Claim
• From Nov 16 till Dec 16 I received 7 PCNs on my car
• I attempted to resolve the situation by contacting FirstPort (the Managing Agent) to cancel the tickets, but they refused
• UKPC have continued to pursue me for money, despite that as a Lessee I have the right to park there, with no permit required. I have explained the latter to SCS law who failed to discontinue the case
• I have been victimized here, by the MA and UKPC failing to send me a permit, delaying the permit when I requested it and issuing 6 PCNs in the period between allegedly sending a permit and actually sending a permit
• I have spent a great deal of time and energy defending myself legally which has caused great distress. I have been subjected to a chain of demanding letters and threats for each of the 7 PCNs, which has forced me to respond through unfamiliar legal channels, whilst all the time worrying that I will be forced to pay a very large sum that could leave me homeless.
• The entire process had been intimidating for me, going up against experienced legal professionals. I have spent dozens of hours reading, preparing and have even been to a non-related court hearing to prepare myself for this hearing
• In my witness statement I refer to two similar cases whereby damages were awarded to the Defendant due to the misuses of personal data as outlined in the Data Protection Act 1998 (Vidall Hall- Google and Halliday- Creation)
• I also draw attention to Ferguson V British Gas whereby British Gas were ordered to pay £10,575 for breaching the Protection from Harassment Act 1997

Posted by: HenryHippo Sun, 3 Dec 2017 - 15:46
Post #1336638

Update:

Letter from County Court dated 30th Nov saying that this case has been adjourned until 16th March 2018

Frustrating as I wasn't nervous at all and looking forward to it

Posted by: emanresu Sun, 3 Dec 2017 - 15:55
Post #1336641

QUOTE
18th March 2018


A Sunday. Did the pray for that?

Posted by: HenryHippo Sun, 3 Dec 2017 - 16:09
Post #1336645

QUOTE (emanresu @ Sun, 3 Dec 2017 - 16:55) *
QUOTE
18th March 2018


A Sunday. Did the pray for that?


Oops Typo

16th March. Wonder why it has been adjourned though. The other one was postponned last minute due to staff shortage, but this one seems different

Posted by: hexaflexagon Sun, 3 Dec 2017 - 16:58
Post #1336656

It's worth asking the court why. Is it because the Court requires this or because the other side has requested a deferment.

If the latter then I'd be inclined to ask the Court what the reason is and say that it's not convenient for you since you've planned your business around the original date and ask the Court to either re-instate the original date or bring it forward as much as possible.

Posted by: HenryHippo Sun, 3 Dec 2017 - 17:23
Post #1336659

QUOTE (hexaflexagon @ Sun, 3 Dec 2017 - 17:58) *
It's worth asking the court why. Is it because the Court requires this or because the other side has requested a deferment.

If the latter then I'd be inclined to ask the Court what the reason is and say that it's not convenient for you since you've planned your business around the original date and ask the Court to either re-instate the original date or bring it forward as much as possible.


Here's the actual letter they sent:

Small Claims Trial listed to take place on 8/12/17 has been adjourned until 16/3/18 and has been relisted as a Fixture

Also it mentions that 2 hours has been allowed for the trial. There wasn't a duration for the case before and it wasn't a "fixture" either

It is also at a "Hearing Center" at the law courts

I will call the court this week to ask what is going on, but any ideas?

https://www.dropbox.com/s/1qu3cmcwbuinri1/County%20Court%2030th%20Nov%20edited.jpg?dl=0

Posted by: HenryHippo Thu, 7 Dec 2017 - 11:59
Post #1337762

Called the court.

Original date was a provisional date that can be bumped if something more urgent comes up in court.

A "fixture" should in theory never be bumped and will go ahead

The 14 day to respond deadline has now been moved in line with the new court date. Makes no odds to this case as both parties responded in time, but it is annoying for my other case as the other party were late to respond and now won't be punished for it


The court confirmed that there were no other changes to the case than the date move

Posted by: HenryHippo Tue, 20 Feb 2018 - 14:16
Post #1359861

4 weeks to go now until it kicks off again

Do I need to do anything apart from reread my defense and turn up to court? (i.e. I don't need to resubmit my documents)

Are the other party able to add anything else to their case, or did the "submit documents within 14 days" apply to the original Dec 17 date and not the new date?


Posted by: nosferatu1001 Tue, 20 Feb 2018 - 14:20
Post #1359863

It applied to the original date, as that is what the Order specified

THey can try to add stuff now, but you can always object if reasonable.

Posted by: HenryHippo Wed, 21 Feb 2018 - 21:57
Post #1360464

Great. Will of course object to anything new on the day

I also own another car which has also attracted its fair share of tickets a few months after the car in this thread. Tickets and threats followed on the 2nd car too, but no legal action has been instigated. Shows that UKPC aren't confident about this case, or they would have gone after both cars simultaneously

Posted by: nosferatu1001 Wed, 21 Feb 2018 - 22:26
Post #1360476

That assumes intelligence on their part. I’d always go with incompetence myself

Posted by: HenryHippo Sun, 25 Feb 2018 - 19:35
Post #1361642

UKPC are getting really cheeky now

This morning 10+ cars received PCNs (inc mine). All but one of them had a permit. The PCNs all claimed parking without a valid permit. Everyone had a permit properly displayed

Very odd tactics, are they just mass ticketing cars with permits in the hope that a small % pay, as clearly this would have an even worse chance in court than my case

Posted by: 4101 Sun, 25 Feb 2018 - 19:59
Post #1361652

QUOTE (HenryHippo @ Sun, 25 Feb 2018 - 19:35) *
UKPC are getting really cheeky now

This morning 10+ cars received PCNs (inc mine). All but one of them had a permit. The PCNs all claimed parking without a valid permit. Everyone had a permit properly displayed

Very odd tactics, are they just mass ticketing cars with permits in the hope that a small % pay, as clearly this would have an even worse chance in court than my case



be a kind soul and print out some flyers and put them on people vehicles explaining scam.


Posted by: Redivi Sun, 25 Feb 2018 - 21:16
Post #1361687

UKPC has a lot of form for faking photographs and ticketing cars on land they don't manage
This could be yet another rogue operative

It's also possible that the Management Agent has kicked out UKPC and it's having a last feeding frenzy
It's certainly time to demand that they are kicked out

In my view, this is a case where it's better not to appeal on Day 26
Instead let UKPC set themselves up for nine complaints to DVLA for requesting keeper details without reasonable cause

Everybody can also appeal and refer to the mass ticketing
UKPC has to either admit the operative's action or refuse the appeals

If the appeals are refused, everybody makes a second appeal to POPLA and provides witness statements for each others

Whatever the result of the first appeal, everybody complains to the BPA

Posted by: ManxRed Mon, 26 Feb 2018 - 09:42
Post #1361774

UKPC also have a track record of incentivising staff based in number of tickets issued (something which is not encouraged within the industry, but UKPC don't care). Maybe your local rep has had a poor month on the fixed odds betting machine down at Ladbrokes.

Posted by: HenryHippo Mon, 26 Feb 2018 - 22:06
Post #1362080

It's a great idea, but speaking to people here and they are scared of UKPC.

I told them "not showing a permit is irrelevant, the lease mentions nothing about permits"

then they say "but my permit was real, I don't want this to go to court, i will appeal to UKPC about the permit being displayed and real"

So they are clinging to the defence of the permit being on display, and either not hearing or not believing me when I mention the permit doesn't actually have to be displayed. Perhaps when their appeals are declined at UKPC they will look deeper into the picture

No helping some people!

Posted by: whjohnson Mon, 26 Feb 2018 - 23:22
Post #1362145

You have done as much as you can.
Take some solace from the fact that you simply cannot educate pork.

Posted by: HenryHippo Mon, 26 Feb 2018 - 23:45
Post #1362153

Another guy who got a ticket when he had a permit on display, told me confidently that he will win his appeal with UKPC, because once he was ticketed by a council and got that appealed for insufficient signage

Definitely not the same..

Posted by: Redivi Tue, 27 Feb 2018 - 01:31
Post #1362159

There are times that I quite support the saying that it's immoral to let a sucker keep his money

Your neighbours' attitude is very common

A few years ago I was talking to a ParkingEye representative at a trade show and expressed surprised that so many parking notices were paid when people only had to Google his company

He looked at me like I was an idiot and told me that in fact very few people do

He said that 80-85% paid up as soon as the notice arrived and most of the remainder followed after one reminder

Posted by: The Rookie Tue, 27 Feb 2018 - 04:20
Post #1362171

QUOTE (HenryHippo @ Sun, 25 Feb 2018 - 20:35) *
This morning 10+ cars received PCNs (inc mine). All but one of them had a permit. The PCNs all claimed parking without a valid permit. Everyone had a permit properly displayed

This is another PPC (and UKPC have form for it) trick, they change the permits but know full well that the new permits take time to cascade down to the individuals concerned and then starting ticketing those with the old permit........

Posted by: Redivi Tue, 27 Feb 2018 - 09:33
Post #1362207

QUOTE (The Rookie @ Tue, 27 Feb 2018 - 04:20) *
QUOTE (HenryHippo @ Sun, 25 Feb 2018 - 20:35) *
This morning 10+ cars received PCNs (inc mine). All but one of them had a permit. The PCNs all claimed parking without a valid permit. Everyone had a permit properly displayed

This is another PPC (and UKPC have form for it) trick, they change the permits but know full well that the new permits take time to cascade down to the individuals concerned and then starting ticketing those with the old permit........

Good point

Posted by: HenryHippo Sun, 11 Mar 2018 - 18:56
Post #1365836

Friday 16th is the day

Do I need to submit the below cost schedule on Monday, or can I bring it with me to the trial?

QUOTE (HenryHippo @ Wed, 29 Nov 2017 - 11:16) *
QUOTE (nosferatu1001 @ Tue, 28 Nov 2017 - 09:16) *
If they are unreasonable then you can claim LIP rate of £19 ph for time defending AND your time in counterclaiming, itemised separately.


Please see below my costs. Broken down into main and then counterclaim. Any feedback?

Defendant’s Cost Schedule:

Costs of attending Court

1. Lost earnings for a half day of work. I earn £200 a day, therefore I will claim the maximum of £95.00
2. Mileage to court. 40 miles at £0.45 per mile. £18.00
3. Parking for 3 hours. £11.00

SUBTOTAL: £124.00

Time Spent Reading:

4. Statement of Claim Form: 30 minutes. 0.5 hours
5. Emailing FirstPort three times: 10 minutes x 3. 0.5 hours
6. Official Copy of Register: 15 minutes. 0.25 hours
7. Lease: 1 hour
8. Chartered Trust V Davies: 30 minutes. 0.5 hours
9. Popla 2015: 30 minutes. 0.5 hours
10. Letter to SCS Jul 2017: 30 minutes. 0.5 hours

Time Spent Drafting:

11. Acknowledgement of Service Form: 30 minutes. 0.5 hours
12. Statement of Defence: 4 hours
13. Directions Questionnaire: 30 minutes. 0.5 hours
14. Witness Statement: 4 hours
15. Administration (printing, scanning, assembling documents and time to post): 2 hours

TOTAL TIME: 16.75 hours at £19.00 per hour = £318.25

Disbursements

16. Printing of documents: 100 pages at £0.10 per page = £10.00
17. Postage of Witness Statement to Court = £2.50
18. Postage of Witness Statement to SCS = £2.50

Subtotal: £15.00

GRAND TOTAL: £457.25

Signed
Henry Hippo

Defendants Counter Claim Cost Schedule


Time Spent Reading

1. Telegraph Article: 15 minutes. 0.25 hours
2. Consumer Rights Act 2015: 30 minutes. 0.5 hours
3. Data Protection Act 1998: 1 hour
4. Parking Eye V Beavis: 1 hour
5. IPC Code of Practice: 1 hour
6. Ferguson V British Gas: 1 hour
7. Vidall-Hall V Google: 1 hour
8. Halliday V Creation: 1 hour

Time Spent Drafting

9. Counter Claim: 3 hours
10. Administration (printing, scanning, assembling documents and time to post): 2 hours

TOTAL TIME: 11.75 hours at £19.00 per hour = £223.25

Disbursements

1. Printing of documents: 100 pages at £0.10 per page = £10.00
2. Counter Claim Fee = £35.00

Subtotal: £45.00

GRAND TOTAL: £268.25

Signed
Henry Hippo


Posted by: SchoolRunMum Sun, 11 Mar 2018 - 20:20
Post #1365869

You must get a copy emailed to Gladstones and a copy to the court, ideally not less than 48 hours before the hearing. Print off proof of sending.

Posted by: HenryHippo Sun, 11 Mar 2018 - 22:24
Post #1365919

QUOTE (SchoolRunMum @ Sun, 11 Mar 2018 - 20:20) *
You must get a copy emailed to Gladstones and a copy to the court, ideally not less than 48 hours before the hearing. Print off proof of sending.


SCS, not gladstones for this one but will do.

Email to SCS and email to court?

Posted by: SchoolRunMum Mon, 12 Mar 2018 - 00:05
Post #1365944

Personally I would hand deliver things to court as a hard copy.

Posted by: HenryHippo Mon, 12 Mar 2018 - 13:59
Post #1366042

QUOTE (SchoolRunMum @ Mon, 12 Mar 2018 - 00:05) *
Personally I would hand deliver things to court as a hard copy.


Delivered it the court today

And will email SCS today. And bring the email receipt saying I emailed it to them on Friday

Posted by: HenryHippo Wed, 14 Mar 2018 - 15:50
Post #1366812

Spoke to a guy here who is a car mechanic/ trader, ignored his PCNs and now he too has court proceedings

His solution moving forwards? To take the number plates off the cars he keeps

Posted by: nosferatu1001 Thu, 15 Mar 2018 - 09:29
Post #1366982

That is quite fun, as theyre not allowed to lookup using VIN!

Posted by: ostell Thu, 15 Mar 2018 - 09:44
Post #1366988

Hope he takes it off after he has entered the car park. Then does a quick, provable enter and exit within a few hours. Should get the ANPR confused. Or put the plate on his bicycle.

Posted by: HenryHippo Thu, 15 Mar 2018 - 11:35
Post #1367033

We don't have ANPR here. We have a handful of abandoned cars that haven't moved in the 2 years I lived here. Last MOT in 2014/ 2015

But still UKPC stick a PCN on these every time they visit. I'm positive they must be paid by the ticket, regardless if the ticket gets paid or not

Tomorrow

Should I talk first? Or should the other party present their case and then I refute it? Or do I simply only speak when the judge asks me too?

Posted by: nosferatu1001 Thu, 15 Mar 2018 - 12:07
Post #1367045

Do as youre told, essentially.

It should be C then D, but some courts dont do this

Posted by: HenryHippo Fri, 16 Mar 2018 - 11:29
Post #1367384

Today is the day

Defence:

-lease has rights to parking
-manager can make reasonable changes
-manage can't derrogate on my grant, which is what this is

Counter

-pursued wrongly even after telling the other side I have a lease with parking
- misuse DPA
-Visall Hall Google
-Halliday creation

Posted by: ManxRed Fri, 16 Mar 2018 - 11:58
Post #1367391

Good luck.

Posted by: nosferatu1001 Fri, 16 Mar 2018 - 12:19
Post #1367404

Good luck today!

Dont forget to ask for COSTS - ordinary AND unreasonable costs.

Posted by: HenryHippo Fri, 16 Mar 2018 - 12:39
Post #1367420

Thanks.

Ordinary costs are my ~£480?

Unreasonable is?

Posted by: nosferatu1001 Fri, 16 Mar 2018 - 12:50
Post #1367426

No, ordinary is
half day loss of earnign OR leave. Proof needed
Mileage
Parking

In order to get the extra you need to show the claimant has behaved unreasonably pursuant rto CPR27.14(2)(g)

Posted by: HenryHippo Fri, 16 Mar 2018 - 16:34
Post #1367492

I won. Damages awarded. More detail later

Posted by: Jlc Fri, 16 Mar 2018 - 16:50
Post #1367499

Back of the net! Well done.

Looking forward to reading this report.

It won't dissuade them though...

Posted by: ManxRed Fri, 16 Mar 2018 - 17:06
Post #1367504

Brilliant!

Posted by: stamfordman Fri, 16 Mar 2018 - 17:57
Post #1367510

Great news. As a council section denizen I've been a Hippo fan from the sidelines.

Posted by: HenryHippo Fri, 16 Mar 2018 - 19:17
Post #1367532

Thanks everyone for all the well wishes, help, assistance, patience and support. Special thanks to SchoolRunMum. If you are reading this then I am open to suggestions on which charity to give the £500 of damages to

Write up

Arrived 13:40, paid for 2 hours street parking. Case was due to start at 14:00. Slightly before this the other solicitor asked me if I was HenryHippo and if I had paid the counterclaim fee! I told her I won't speak to her outside of the hearing.

Got to 14:40 and I hadn't been heard yet. Usher advised 90 mins was allocated, so I went out to get another 2 hours parking. 14:50 and we were finally admited

As luck would have it, it was the same judge that I witnessed before Christmas.

First thing he said was that the other party trying to recover ~£640 of costs from me wasn't possibly in small claims. And he said that my attempting to do the same wasn't possible, unless they acted unreasonably, such as failed to correspond or turn up. He seemed mildly amused (in a good way) that I had countered their unreasonable costs with my own equally unreasonable costs.

For the first part I was hardly addressed at all. The judge grilled the claimant about their case, the judge printed Jopson Homeguard for us all to read. The other party insisted the 2 cases were different as in mine the MA wrote to us all to introduce parking permits but in JH they did not. Back and forth for a while, but the other party made no progress on this front. I had sent a letter to SCS in July 17 explaining I had a lease, and the other solicitor just denied they received it (should have brought proof!)

The judge asked me why I felt DPA was relevant. I said how I had not broken any contraventions, but was having my name and address accessed unlawfully. I pointed out the fact there were damages payable for such a thing. He nodded in agreement.

He also criticised their letter before action. It was designed to scare and he didn't like the references to court and baliffs. The solicitor countered this by asking me "do you accept this is a perfectly normal letter to receive if you are engaged in a dispute?" The judge answered first to say "how does he know that? he's never been involved in this before"

Then he asked me for details of my distress. We went straight to point 9 on my counterclaim, and he read it rather than me saying anything. Before passing judgement he asked if I had anything else to say. I mentioned Vidaall Hall - Google and the tortious interference on my lease. I don't think I needed to bother with the latter as he had made his mind up.

He passed judgement, dismissing the claim against me. To my great pleasure he awarded the £500 for distress I had asked for as well as earnings, mileage and parking. The other party were given until 31st March to pay.

I think that I was awarded damages, mostly because of my lengthy story of distress, but partly because of the scaremongering letter before action

Questions

The judge asked me what I would have earned for a half days work. I explained that it was in excess of the £95 maximum so he awarded me this. But neither party challenged me for proof of my income. Is this going to happen?


Posted by: disgrunt Fri, 16 Mar 2018 - 19:36
Post #1367539

Thanks for the update, and we’ll done.

Posted by: The Slithy Tove Fri, 16 Mar 2018 - 19:59
Post #1367546

QUOTE (HenryHippo @ Fri, 16 Mar 2018 - 19:17) *
To my great pleasure he awarded the £500

Excellent! Well done.

Posted by: Jlc Fri, 16 Mar 2018 - 20:08
Post #1367551

QUOTE (HenryHippo @ Fri, 16 Mar 2018 - 19:17) *
I think that I was awarded damages, mostly because of my lengthy story of distress, but partly because of the scaremongering letter before action

One of the points made during the recent debate about the new bill. If only the Government weren't so busy on more pressing matters...

Posted by: Umkomaas Fri, 16 Mar 2018 - 20:14
Post #1367553

Brilliant result. I haven't contributed to the thread (most of my effort is over on MSE), but I've read the ongoing saga religiously from the outset.

Nice warm glow to see a £500 (plus other costs) spanking for UKPC/SCS.

The Parking Prankster seems to be having an extended semi-sabbatical, but he might be interested in blogging this. Would you email him, HH, with the judgment details and link to this thread?

prankster@parking-prankster.com

Posted by: SchoolRunMum Fri, 16 Mar 2018 - 21:39
Post #1367565

Fantastic result! Well done!

So happy for you and pleased to see UKPC utterly stuffed.

QUOTE
Special thanks to SchoolRunMum. If you are reading this then I am open to suggestions on which charity to give the £500 of damages to


After a lot of thought I would like to suggest that you find out how much the transcript will cost, and get that please, and send it to the Parking Prankster to host, and copies to your neighbours - including the taxi driver, to use as evidence in their own cases.

If there is a transcript hosted by the Parking Prankster, we would (on MSE and pepipoo) get a LOT of use out of it to help others in other car park cases...tell you what...it might even be worth including as evidence in your other case where you also have a counter claim in. If you have to resort to that one being heard on the papers (because I recall you are away) then your 'papers' might as well be brilliant!

Transcripts do cost quite a bit. I think this one could be useful for a LOT of people to help fight residential claims.

If you'd rather donate to a charity, can I suggest Cancer Research UK or the British Heart Foundation?



QUOTE
We went straight to point 9 on my counterclaim, and he read it rather than me saying anything.

Which part did he read out, as you had quite a few drafts and a Witness Statement too, can you confirm what the Judge read out that impressed him, was it the detail about the distress?



P.S. I also like the fact that the Transcript will include the Judge's words about the disgusting LBCCC threatening an attachment of earnings order and bailiffs. that will help in all sorts of cases.

Posted by: nosferatu1001 Fri, 16 Mar 2018 - 23:44
Post #1367615

Well done! Awesome news 😊

Posted by: SchoolRunMum Sat, 17 Mar 2018 - 16:20
Post #1367744

Glad to hear HH has said by pm, he intends to get the transcript for this one, so it can be used by him and others.

Posted by: HenryHippo Sun, 18 Mar 2018 - 10:45
Post #1367921

QUOTE (SchoolRunMum @ Sat, 17 Mar 2018 - 16:20) *
Glad to hear HH has said by pm, he intends to get the transcript for this one, so it can be used by him and others.



If a case isn't transcribed then does that mean it can't be used by others? Or does the transcript merely make it easier?

I do like to think of HH Vs UKPC 2018 going down in history for years to come.....

What cinched the counterclaim IMO

The judge paid particular attention to the below. I didn't have to read it out myself, but he asked me questions: 1) who were my employers? (not sure why he asked this) 2) Why did the letters go to my parents address? (answer: that is where the car is registered to)


9. On the 8/10/17 I received correspondence from the County Court. This was very distressing for me as I am a law-abiding citizen who has never been threatened like this before. Having had no previous legal experience I had no idea of the proper channels or manner in which to defend legal action and I was afraid that with the superior experience of SCS Law that they would somehow be able to win in court and I would stand to lose out financially and have a blighted record. I spent several hours researching similar cases and my lease to reassure myself that I was in a legally defensible position if and when it did escalate to court. Despite my research I was still worried that I would fall foul of a legal loophole and be liable for the parking charge and an excessive costs charge from SCS Law. At the time, I was new to my employer and working long hours to learn my duties. As I was still on probation, if I showed anything less than exemplary performance I could be dismissed. Furthermore, if I lost the Court Case and I was dismissed my home would be at risk of repossession and I would be homeless. This added greatly to the stress of the whole situation, meaning that I had difficulty sleeping and found it difficult to socalise with friends or enjoy time with family as I always had the Court Case at the back of my mind. Additionally, the hours spent researching the event meant that I was unable to perform in my role as effectively as I could have encumbered.

Then he criticised the "Letter Before Action" from SCS Law for its threatening references to bailiffs, court orders and blighted credit records. The solicitor asked me "do you accept this is an ordinary letter to receive from a solicitor". I was about to answer "I acknowledge that it is a standard template used to threaten and intimidate people without legal experience", but before I could say this, the judge responded "how would he know? he hasn't been involved in this before"


Then he asked me why I felt entitled to the damages. I mentioned the DPA which says that damages are due for distress. He repeated this and then said "and I believe that there was distress in this instance"

Before passing judgement he asked me if I had anything else to say. I don't think I changed his mind at this point, but I duly mentioned tortious interference and Vidall Hall - Google.





Posted by: SchoolRunMum Sun, 18 Mar 2018 - 14:59
Post #1367969

QUOTE
If a case isn't transcribed then does that mean it can't be used by others? Or does the transcript merely make it easier?
It's not a precedent and a Judge can decide to ignore it, but relevant points found as fact by one Judge can give another defence some weight, whereas just citing someone else's undocumented, unproven County Court case gets nowhere fast.

In your case, the fact that you have been pursued unreasonably by two PPCs might mean the transcript of this one - upholding a counter-claim similar to your other counter-claim - should help your second case, one would hope.

The distress is not any less just because you were having to research two different parts of consumer/POFA law, I'd argue your distress was double.

I assume your case was D8HW7G7P which was listed for Slough, but you say was heard at Reading?

Posted by: HenryHippo Mon, 19 Mar 2018 - 21:36
Post #1368372

QUOTE (SchoolRunMum @ Sun, 18 Mar 2018 - 14:59) *
QUOTE
If a case isn't transcribed then does that mean it can't be used by others? Or does the transcript merely make it easier?
It's not a precedent and a Judge can decide to ignore it, but relevant points found as fact by one Judge can give another defence some weight, whereas just citing someone else's undocumented, unproven County Court case gets nowhere fast.

In your case, the fact that you have been pursued unreasonably by two PPCs might mean the transcript of this one - upholding a counter-claim similar to your other counter-claim - should help your second case, one would hope.

The distress is not any less just because you were having to research two different parts of consumer/POFA law, I'd argue your distress was double.

I assume your case was D8HW7G7P which was listed for Slough, but you say was heard at Reading?


Originally it was listed for late 2017 in Reading, but it got moved into March 18 in Slough. I overheard the court staff saying they work between the two sites

Shame it wasn't in Reading. I would have had a bigger mileage expense there

Posted by: HenryHippo Mon, 26 Mar 2018 - 13:47
Post #1369936

10 days have passed now and not been paid yet or had any contact.

Judge said they must pay by 31st March

What's the normal method of payment for these things? Can I expect a cheque in the post?

Posted by: nosferatu1001 Tue, 27 Mar 2018 - 07:28
Post #1370148

Cheque is the most common.

If you do not get a letter by the 2nd, you could, if you wanted, immediately apply for a writ from the court (will cost, gets added to their bill) to force payment.
Did they include, in any of the ltters, account details for how to pay them online? If so you could also ask that the court freezes those accounts until yo uare paid...

Posted by: mdann52 Tue, 27 Mar 2018 - 19:26
Post #1370339

QUOTE (nosferatu1001 @ Tue, 27 Mar 2018 - 08:28) *
If you do not get a letter by the 2nd, you could, if you wanted, immediately apply for a writ from the court (will cost, gets added to their bill) to force payment.


As it's less than £600, presuming you mean a Warrant of Control from the County court and not a writ (as HC has a £600 minimum)? As fun as it might be to give them to chance to appear on telly, there's no point trying to jump the gun!

Posted by: nosferatu1001 Wed, 28 Mar 2018 - 06:21
Post #1370413

Mdann - are you sure its less than £600?

Earnings, mileage parking AND £500 for the counterclaim. Earnings alone are likely to be the £95 max.

Posted by: HenryHippo Wed, 28 Mar 2018 - 10:56
Post #1370479

Yeah I took the max earnings as my day rate exceeds them

Cheque arrived in the post today, with a very brief letter, a complete lack of apology, signed UKPC biggrin.gif

Posted by: The Rookie Wed, 28 Mar 2018 - 10:58
Post #1370480

Now you just want them to ticket you again as they really are on a hiding to nothing then!

Well done, but surely by now expecting an apology was a bit naive?

Posted by: HenryHippo Wed, 4 Apr 2018 - 09:09
Post #1371749

QUOTE (The Rookie @ Wed, 28 Mar 2018 - 10:58) *
Now you just want them to ticket you again as they really are on a hiding to nothing then!

Well done, but surely by now expecting an apology was a bit naive?


ha... maybe next time someone gets a PCN, I can volunteer to claim myself as the driver for them smile.gif

Posted by: HenryHippo Tue, 5 Jun 2018 - 10:36
Post #1387620

Well this is interesting

As I previously mentioned, I am the registered keeper on 2 more cars that attracted PCNs in the same car park.

One of them relates to 17th January 2017 and it was indeed parked without a permit.

SCS Law have written to threaten legal action on this car too. It is just the one "offense", for £160, vs the 7 incidents for £1,160 on the other car.



What should I do? Do SCS a favour and drop them an email explaining what happened before?

Or just ignore and let them take me for another ride and hope for the same outcome?

Posted by: kommando Tue, 5 Jun 2018 - 10:47
Post #1387623

Ambushing is frowned upon so unlikely to work and could see you labelled as unreasonable by a judge later in the process even if you won, as tempting and understandable as it is you best inform them. If they continue to progress to a claim you can have some fun by raising a counterclaim to stop them discontinuing.

Posted by: nosferatu1001 Tue, 5 Jun 2018 - 10:50
Post #1387624

Mention that res judicata applies, and they must cease and desist. As they are barred from bringing a new action, they have no cause to hold your data - neither does the client - and you require them to cease processing it, in line with section 10 of the DPA2018
Failure to do so WILL result in a complaint to the ICO

Meanwhile SAR bomb the parking company. They better have a good reason for holding onto your data, given they lost..

Posted by: ManxRed Tue, 5 Jun 2018 - 10:53
Post #1387625

I wonder if anyone else at your block of flats is being harassed by this company?

Might be worth a leaflet drop or a notice on a noticeboard somewhere, explaining how to see off any unwanted and unwarranted attention from these parasites?

Posted by: HenryHippo Tue, 5 Jun 2018 - 11:23
Post #1387633

QUOTE (ManxRed @ Tue, 5 Jun 2018 - 11:53) *
I wonder if anyone else at your block of flats is being harassed by this company?

Might be worth a leaflet drop or a notice on a noticeboard somewhere, explaining how to see off any unwanted and unwarranted attention from these parasites?


Absolutely. As soon as I get my transcript that is the eventual plan. Said notice needs to have evidence backing it up for people to take it seriously.

The transcript was due last week actually, so should be any day now..

QUOTE (nosferatu1001 @ Tue, 5 Jun 2018 - 11:50) *
Mention that res judicata applies, and they must cease and desist. As they are barred from bringing a new action, they have no cause to hold your data - neither does the client - and you require them to cease processing it, in line with section 10 of the DPA2018
Failure to do so WILL result in a complaint to the ICO

Meanwhile SAR bomb the parking company. They better have a good reason for holding onto your data, given they lost..



Does the fact they lost the previous case, barr them from bringing new action against me?

What is SAR bomb?

Posted by: ManxRed Tue, 5 Jun 2018 - 11:30
Post #1387636

QUOTE (HenryHippo @ Tue, 5 Jun 2018 - 12:23) *
What is SAR bomb?


A Subject Access Request, under the new GDPR legislation. I think there are example letters flying around the internet. This will be a massive pain in the backside for them, but they've brought it on themselves!

Posted by: HenryHippo Tue, 5 Jun 2018 - 13:17
Post #1387681

Sample Letter, looks good?



My address and phone number
05/06/2018

UK Parking Control
3 Gregories Court
Gregories Road
Beaconsfield
Buckinghamshire
HP9 1HQ


Dear Sir or Madam

Subject access request

Henry Hippo of XXX

Please supply the information about me I am entitled to under the Data Protection Act 1998 relating to the PCNs issued to car registrations:
• Car 1 [this is the one that went to court in march]
• Car 2 [this is the one I got the letter from SCS law recently]
• Car 3 [this one hasn't yet attracted any SCS law letters]

If you need any more information from me, or a fee, please let me know as soon as possible.

It may be helpful for you to know that a request for information under the Data Protection Act 1998 should be responded to within 40 days.

If you do not normally deal with these requests, please pass this letter to your Data Protection Officer. If you need advice on dealing with this request, the Information Commissioner’s Office can assist you and can be contacted on 0303 123 1113 or at ico.org.uk

Yours faithfully

Henry Hippo

Posted by: ManxRed Tue, 5 Jun 2018 - 13:26
Post #1387690

I think there's much heavier ones than that around.

Search specifically for GDPR, you should be referencing the General Data Protection Regulation 2018 rather than the DPA 1998.

Posted by: nosferatu1001 Tue, 5 Jun 2018 - 14:19
Post #1387707

Henry - Res Judicata, meaning the Courts have already decided the case, so it cannot be looked at agin. Obviously same car park same alleged contract etc all fall under this principle. Its the same as they should only bring one claim for ALL tickets, not one at a time like some do (the latter also inflates the amount they get for each claim, and wastes the courts time)

Posted by: baconrasher Tue, 5 Jun 2018 - 14:27
Post #1387712

QUOTE (ManxRed @ Tue, 5 Jun 2018 - 14:26) *
I think there's much heavier ones than that around.

Search specifically for GDPR, you should be referencing the General Data Protection Regulation 2018 rather than the DPA 1998.


I think you want Data Protection Act 2018 S.45

You should ask them for all the information listed in S.45 (be interesting to see their legal basis for having/retaining the information).
They must answer straightaway and in any case within 1 month or receipt of the request.

Bacon

Posted by: Umkomaas Tue, 5 Jun 2018 - 17:13
Post #1387776

QUOTE (ManxRed @ Tue, 5 Jun 2018 - 14:26) *
I think there's much heavier ones than that around.

Search specifically for GDPR, you should be referencing the General Data Protection Regulation 2018 rather than the DPA 1998.

Try this as a starting point:

https://padi.zendesk.com/hc/en-us/articles/206890469-6-Subject-Access-Requests-Easy-

Posted by: HenryHippo Tue, 5 Jun 2018 - 21:09
Post #1387869

I'd need to pay a fee of £10... I'm not a fan of throwing money away, is it worth it?

Posted by: Jlc Tue, 5 Jun 2018 - 21:11
Post #1387871

QUOTE (HenryHippo @ Tue, 5 Jun 2018 - 22:09) *
I'd need to pay a fee of £10... I'm not a fan of throwing money away, is it worth it?

Not since 25th May 2018.

Posted by: Umkomaas Tue, 5 Jun 2018 - 21:19
Post #1387878

QUOTE (HenryHippo @ Tue, 5 Jun 2018 - 22:09) *
I'd need to pay a fee of £10... I'm not a fan of throwing money away, is it worth it?

You need to read things much more carefully!

QUOTE
Fees

Under the DPA 1998, there used to be a charge up to £10 for a Request. Under the DPA 2018 / GDPR, a request for personal information is free unless the request is ‘manifestly unfounded or excessive’. An organisation can charge a ‘reasonable fee’ for multiple requests.

Posted by: HenryHippo Tue, 5 Jun 2018 - 21:30
Post #1387885

QUOTE (Umkomaas @ Tue, 5 Jun 2018 - 22:19) *
QUOTE (HenryHippo @ Tue, 5 Jun 2018 - 22:09) *
I'd need to pay a fee of £10... I'm not a fan of throwing money away, is it worth it?

You need to read things much more carefully!

QUOTE
Fees

Under the DPA 1998, there used to be a charge up to £10 for a Request. Under the DPA 2018 / GDPR, a request for personal information is free unless the request is ‘manifestly unfounded or excessive’. An organisation can charge a ‘reasonable fee’ for multiple requests.



I did see that. But excessive needs to be quantified. If the level of effort isn't excessive, then it isn't going to be worth me inconveniencing them.

Does anybody think what I am asking will be excessive?

Posted by: baconrasher Tue, 5 Jun 2018 - 23:00
Post #1387912

It isn't the inconvenience that measures excessive. By law they should have systems in place so that they are able to respond to SARs.

The 'excessive' clause applies if your, for example, repeatably ask for the same information after it has been provided.

Look at https://ico.org.uk/for-organisations/guide-to-the-general-data-protection-regulation-gdpr/individual-rights/right-of-access/

Posted by: HenryHippo Wed, 6 Jun 2018 - 08:37
Post #1387961

QUOTE (baconrasher @ Wed, 6 Jun 2018 - 00:00) *
It isn't the inconvenience that measures excessive. By law they should have systems in place so that they are able to respond to SARs.

The 'excessive' clause applies if your, for example, repeatably ask for the same information after it has been provided.

Look at https://ico.org.uk/for-organisations/guide-to-the-general-data-protection-regulation-gdpr/individual-rights/right-of-access/


got it wink.gif

in that case I am right on it

Posted by: HenryHippo Wed, 6 Jun 2018 - 10:34
Post #1388003

too much perhaps?


Dear Sir/Madam
I am addressing the data protection officer in your company. You have held my personal data in the past, and in light of recent events, I am making this request for access to personal data pursuant to Article 15 of the General Data Protection Regulation. I am concerned that your company’s information practices may be putting my personal information at undue risk of exposure or in fact has breached its obligation to safeguard my personal information.
I would like you to be aware at the outset, that I expect a reply to my request within one month as required under Article 12, failing which I will be forwarding my inquiry with a letter of complaint to the Information Commissioner’s Office.
Please advise as to the following:

1. Please confirm to me whether or not my personal data is being processed. If it is, please provide me with the categories of personal data you have about me in your files and databases.
a. In particular, please tell me what you know about me in your information systems, whether or not contained in databases, and including e-mail, documents on your networks, or voice or other media that you may store.
b. Additionally, please advise me in which countries my personal data is stored, or accessible from. In case you make use of cloud services to store or process my data, please include the countries in which the servers are located where my data are or were (in the past 12 months) stored.
c. Please provide me with a copy of, or access to, my personal data that you have or are processing.

2. Please provide me with a detailed account of the specific uses that you have made, are making, or will be making of my personal data.

3. Please provide a list of all third parties with whom you have (or may have) shared my personal data.
a. If you cannot identify with certainty the specific third parties to whom you have disclosed my personal data, please provide a list of third parties to whom you may have disclosed my personal data.
b. Please also identify which jurisdictions that you have identified in 1(b) above that these third parties with whom you have or may have shared my personal data, from which these third parties have stored or can access my personal data. Please also provide insight in the legal grounds for transferring my personal data to these jurisdictions. Where you have done so, or are doing so, on the basis of appropriate safeguards, please provide a copy.
c. Additionally, I would like to know what safeguards have been put in place in relation to these third parties that you have identified in relation to the transfer of my personal data.

4. Please advise how long you store my personal data, and if retention is based upon the category of personal data, please identify how long each category is retained.

5. If you are additionally collecting personal data about me from any source other than me, please provide me with all information about their source, as referred to in Article 14 of the GDPR.

6. If you are making automated decisions about me, including profiling, whether or not on the basis of Article 22 of the GDPR, please provide me with information concerning the basis for the logic in making such automated decisions, and the significance and consequences of such processing.

7. I would like to know whether or not my personal data has been disclosed inadvertently by your company in the past, or as a result of a security or privacy breach.

a. If so, please advise as to the following details of each and any such breach:
i. a general description of what occurred;
ii. the date and time of the breach (or the best possible estimate);
iii. the date and time the breach was discovered;
iv. the source of the breach (either your own organisation, or a third party to whom you have transferred my personal data);
v. details of my personal data that was disclosed;
vi. your company’s assessment of the risk of harm to myself, as a result of the breach;
vii. a description of the measures taken or that will be taken to prevent further unauthorised access to my personal data;
viii. contact information so that I can obtain more information and assistance in relation to such a breach, and
ix. information and advice on what I can do to protect myself against any harms, including identity theft and fraud.
b. If you are not able to state with any certainty whether such an exposure has taken place, through the use of appropriate technologies, please advise what mitigating steps you have taken, such as
i. Encryption of my personal data;
ii. Data minimisation strategies; or,
iii. Anonymisation or pseudonymisation;
iv. Any other means

8. I would like to know your information policies and standards that you follow in relation to the safeguarding of my personal data, such as whether you adhere to ISO27001 for information security, and more particularly, your practices in relation to the following:
a. Please inform me whether you have backed up my personal data to tape, disk or other media, and where it is stored and how it is secured, including what steps you have taken to protect my personal data from loss or theft, and whether this includes encryption.
b. Please also advise whether you have in place any technology which allows you with reasonable certainty to know whether or not my personal data has been disclosed, including but not limited to the following:
i. Intrusion detection systems;
ii. Firewall technologies;
iii. Access and identity management technologies;
iv. Database audit and/or security tools; or,
v. Behavioural analysis tools, log analysis tools, or audit tools;

9. In regards to employees and contractors, please advise as to the following:
a. What technologies or business procedures do you have to ensure that individuals within your organisation will be monitored to ensure that they do not deliberately or inadvertently disclose personal data outside your company, through e-mail, web-mail or instant messaging, or otherwise.
b. Have you had had any circumstances in which employees or contractors have been dismissed, and/or been charged under criminal laws for accessing my personal data inappropriately, or if you are unable to determine this, of any customers, in the past twelve months.
c. Please advise as to what training and awareness measures you have taken in order to ensure that employees and contractors are accessing and processing my personal data in conformity with the General Data Protection Regulation.

Thank you

Henry Hippo

Posted by: nosferatu1001 Wed, 6 Jun 2018 - 10:45
Post #1388008

Read it carefully. I dont thin kyoure a customer of theirs, are you?

Posted by: HenryHippo Wed, 6 Jun 2018 - 11:44
Post #1388030

Oops, changed that now

Posted by: baconrasher Wed, 6 Jun 2018 - 23:38
Post #1388188

That looks like a pretty good list of stuff - should keep them busy for a few days. They may also trip themselves up by providing the 'wrong' answers.

An interesting thought occurred to me:
In quite a few cases POFA does not apply, and the PPC has been informed of this (or they have confirmed it). A lot of people send a S.10 notice under the old DPA98; there is similar clause in DPA18 but I can't recall the number. The new rules require the PPC to restrict processing of data that is disputed (or in fact that they should know is disputed). One way of restricting processing is to not pass this on to debt collectors (which they routinely do). This could be a futrher way of attacking their mishandling of data. Just a thought.

Bacon
(Incidentally, I do this GDPR/DPA stuff for a living)

Posted by: ManxRed Thu, 7 Jun 2018 - 08:26
Post #1388235

QUOTE (baconrasher @ Thu, 7 Jun 2018 - 00:38) *
(Incidentally, I do this GDPR/DPA stuff for a living)


You should know the clause number then! laugh.gif

Posted by: baconrasher Thu, 7 Jun 2018 - 11:55
Post #1388331

QUOTE (ManxRed @ Thu, 7 Jun 2018 - 09:26) *
QUOTE (baconrasher @ Thu, 7 Jun 2018 - 00:38) *
(Incidentally, I do this GDPR/DPA stuff for a living)


You should know the clause number then! laugh.gif


Yes - thanks.

It is complicated, that's why I hesitated over citing a clause. The complication is that GDPR is an EU regulation, in most cases these are brought into UK law via a Statutory Instrument (SI), but if this conflicts with primary legislation (an Act) then the SI route doesn't cut it. Most Acts have provisions for the Secretary of State to issue regulations (SI), which is why most EU regulations almost silently pass into UK law. GDPR does conflict with DPA 98, so a new DPA was required to repeal the old one. The complication is that GDPR is actually quite narrow in some areas, or leaves it up to national governments to determine how some things should be implemented. DPA 2018 does all of this (extending GDPR principles to areas such as law enforcement, intelligence services) as well as defining stuff that is UK specific (such as powers of the regulator - ICO).

The actual clause is s.47 and s.48. I urge a reading of this stuff as it opens up many areas where the average PPC is going to make a mistake.

However, it is probably easier to reference the GDPR itself when talking to PPC-land, but any argument about a PPC's actions can be backed up by DPA 2018 as the GDPR does not contain the level of detail defined in the DPA.

Bacon

Posted by: ManxRed Thu, 7 Jun 2018 - 12:04
Post #1388337

Sorry, I was only yanking your chain.

I am involved in 'GDPR'ing all of my employers IT contracts, and I know how complicated it is!!

Posted by: baconrasher Thu, 7 Jun 2018 - 12:11
Post #1388341

No worries - I felt the chain pulling mellow.gif

The GDPR principle involved is Art 17 (Right to erasure). In most cases this would be for grounds c and d.

https://ico.org.uk/for-organisations/guide-to-the-general-data-protection-regulation-gdpr/individual-rights/right-of-access/

However, I think that Art 18 (Restriction of processing) may also be useful.

https://gdpr-info.eu/art-18-gdpr/


Posted by: Eljayjay Thu, 7 Jun 2018 - 15:46
Post #1388408

Did you ever get a transcript of the judgement in your case?

Posted by: Redivi Thu, 7 Jun 2018 - 16:03
Post #1388411

My experience of the ICO is that it regards the parking company as entitled to process the information and pass it to debt collectors for the purpose of payment recovery

There's also been a DPA case regarding Hayes and Harlington station where the court reluctantly ruled that there was no breach if the company believed that it was entitled to payment, no matter how flimsy the grounds for the belief

An alternative to consider is a counter-claim for trespass

Damages for trespass are calculated as the loss to the land-owner or, if none, the benefit gained by the trespasser
In your case, the value of a trespass has already been calculated

It's the £60 discounted charge that UKPC hoped to gain on every occasion it entered your parking space to inspect the vehicle

Posted by: Eljayjay Thu, 7 Jun 2018 - 16:16
Post #1388414

My own experience is similar to Redivi's.

That is why I asked the question about whether or not you had obtained a transcription of the judgment in your own case.

If the judge said something along the lines of "the entire parking scheme is invalid", that really should have brought any arguments about "reasonable cause" to an end.

Posted by: Abedegno Thu, 7 Jun 2018 - 18:28
Post #1388447

QUOTE (baconrasher @ Thu, 7 Jun 2018 - 00:38) *
That looks like a pretty good list of stuff - should keep them busy for a few days. They may also trip themselves up by providing the 'wrong' answers.

An interesting thought occurred to me:
In quite a few cases POFA does not apply, and the PPC has been informed of this (or they have confirmed it). A lot of people send a S.10 notice under the old DPA98; there is similar clause in DPA18 but I can't recall the number. The new rules require the PPC to restrict processing of data that is disputed (or in fact that they should know is disputed). One way of restricting processing is to not pass this on to debt collectors (which they routinely do). This could be a futrher way of attacking their mishandling of data. Just a thought.

Bacon
(Incidentally, I do this GDPR/DPA stuff for a living)


Hi,

Can I caution against using Constantine Karbaliotis 'Nightmare GDPR letter' template which appears to be what was posted above in post 311. This template was written as a LinkedIn article and marketing exercise in March last year - it was successful and has 165,000 views and Constantine himself advises against using it as a real template:
https://www.linkedin.com/pulse/nightmare-letter-subject-access-request-under-gdpr-karbaliotis/

Under the UK implementation of GDPR (Data Protection Bill 2018) much of the information about security, firewalls, etc fall outside of what is defined as Right of Access by the ICO:
https://ico.org.uk/for-organisations/guide-to-the-general-data-protection-regulation-gdpr/individual-rights/right-of-access/





Posted by: HenryHippo Fri, 8 Jun 2018 - 13:50
Post #1388678

QUOTE (Eljayjay @ Thu, 7 Jun 2018 - 16:46) *
Did you ever get a transcript of the judgement in your case?


Not yet sad.gif

Was supposed to arrive 2 weeks ago, but the transcript company say that the court have slowed them down

Posted by: Eljayjay Fri, 8 Jun 2018 - 13:56
Post #1388681

Have you chased the Court? If not, do so (mentioning that you need it because you are now being threatened with further court proceedings).

Posted by: HenryHippo Sun, 10 Jun 2018 - 09:55
Post #1389161

QUOTE (Eljayjay @ Fri, 8 Jun 2018 - 14:56) *
Have you chased the Court? If not, do so (mentioning that you need it because you are now being threatened with further court proceedings).


I haven't personally. Reckon I should get involved too? The transcript company said:

We are currently liaising with the courts, the audio they have provided us with does not contain the case of UK Parking Control -v- Henry Hippo, therefore we are unable to action the request without the correct audio.

We are currently waiting for a response from XXX County Court, once this is received we will update you in this matter.


Kind Regards

Ubiqus Legal


QUOTE (Abedegno @ Thu, 7 Jun 2018 - 19:28) *
QUOTE (baconrasher @ Thu, 7 Jun 2018 - 00:38) *
That looks like a pretty good list of stuff - should keep them busy for a few days. They may also trip themselves up by providing the 'wrong' answers.

An interesting thought occurred to me:
In quite a few cases POFA does not apply, and the PPC has been informed of this (or they have confirmed it). A lot of people send a S.10 notice under the old DPA98; there is similar clause in DPA18 but I can't recall the number. The new rules require the PPC to restrict processing of data that is disputed (or in fact that they should know is disputed). One way of restricting processing is to not pass this on to debt collectors (which they routinely do). This could be a futrher way of attacking their mishandling of data. Just a thought.

Bacon
(Incidentally, I do this GDPR/DPA stuff for a living)


Hi,

Can I caution against using Constantine Karbaliotis 'Nightmare GDPR letter' template which appears to be what was posted above in post 311. This template was written as a LinkedIn article and marketing exercise in March last year - it was successful and has 165,000 views and Constantine himself advises against using it as a real template:
https://www.linkedin.com/pulse/nightmare-letter-subject-access-request-under-gdpr-karbaliotis/

Under the UK implementation of GDPR (Data Protection Bill 2018) much of the information about security, firewalls, etc fall outside of what is defined as Right of Access by the ICO:
https://ico.org.uk/for-organisations/guide-to-the-general-data-protection-regulation-gdpr/individual-rights/right-of-access/



According to the Linkedin article comments, this isn't a good template to use, as they can get away with a very limited response to it. Can anyone point me out to something more suitable please?

Posted by: Eljayjay Sun, 10 Jun 2018 - 18:11
Post #1389267

Yes, you need to make the Court aware that the transcript is needed as a matter of some urgency.

Posted by: HenryHippo Sun, 1 Jul 2018 - 15:48
Post #1395195

These guys just don't give up....

Had another letter from SCS law, with regards to the same car that featured in the court case back in March.

This time the charge is different. It is for "not parking correctly within a marked bay at the site". Dated September 2017. There isn't a photo attached, but the driver usually keeps their cars together and one would have been over the line slightly...

Where do I stand here? My lease says that I have the right to use the allocated parking, it doesn't say anything about the car needing to be within a bay marking. The landlord may not derogate from the grant, and anything that makes my situation worse is tortious interference.

Same argument applies? Send them an email to this effect, reference the previous court case and tell them to drop it?

Also worth adding that this case should have been bundled with the other one if they wanted to take it to court?

Posted by: Eljayjay Sun, 1 Jul 2018 - 15:59
Post #1395197

This is when you really do need the transcript of your previous case.

Posted by: SchoolRunMum Sun, 1 Jul 2018 - 21:49
Post #1395266

The principle is "Res Judicata". You could include in your response something like this:

QUOTE
I refer to your latest letter, which is clearly unlawful under the Protection from Harassment Act and I will counter-claim (again) if your client tries another meritless claim. Your client is making my life a misery at this residential site and the distress caused by their demands has been horrendous, and SCS are now compounding the previous harassment. UKPC's continued harassment is an outright nuisance and tortious interference and they must now cease and desist.

This issue has already been heard and found in my favour in claim number xxxxxxxx.

In that case, I successfully counter-claimed against UKPC, as I would expect anyone carrying out even the most basic of checks before pressing ahead with yet another demand, to remember. Have they instructed you to keep up the torture and try to claw back some of that money by trying to have the same issues chewed over in court again, wasting both my time and that of the local court? Your/your client's conduct and lack of checking and due diligence is inexcusable.

Any new claim is duplicative of those proceedings, being vexatious and concerning issues that have been determined by another court. The principle of Res Judicata applies and UKPC do not get any second chances at court. They should have brought this matter up as part of the first claim and cannot now have a second go, and try to paper the cracks of the first case, whether or not they might have new evidence.

My lease says that I have an unfettered right to use the allocated parking; UKPC know this because it was found to be a fact by the Judge in my successful defence last time. The lease doesn't say anything about the car needing to be within any bay marking nor am I under any obligation to comply with any third party restrictions pinned up on cardboard signs by a fly-by-night ex-clamper firm of UKPC's ilk.

I look forward to your assurance that all 'charges' that UKPC have listed against me/my vehicle are immediately marked for no further action and that my data is not processed further, or they will find themselves on the receiving end of another counter claim and a formal complaint to the Information Commissioner, and SCS will be subjected to a formal complaint to the SRA.

Each letter you/your client send to me about any UKPC 'charge' (save for the above assurance of cancellation and ceasing of data processing) will be gathered as evidence.

yours faithfully

Posted by: HenryHippo Mon, 2 Jul 2018 - 11:44
Post #1395380

Thanks SRM! And yes I agree about the transcript... ridiculous that they haven't produced it yet

The fact they are still trying it on with me, has given me further passion to put together notices for the communal areas as soon as I get my transcript. I will of course need the transcript if people are going to take me seriously here.

I will send an email to that effect SRM. I daresay that they will argue that it is a different case, as the charges are being outside a bay, not parking without a permit.

Posted by: Eljayjay Mon, 2 Jul 2018 - 12:01
Post #1395393

So, I would suggest you wait until you have the transcript so that you can assess the similarities between the two cases.

Posted by: Albert Ross Wed, 4 Jul 2018 - 03:33
Post #1395885

My understanding of res judicata is that it is akin to an appeal; whereby you cannot add new arguments in an attempt to win at all costs. Here,with an alleged contract from september 2017 that; following a trial in March 2018 where it has been found that the PPC is incapable of usurping your lease in regard to their offer for contract parking.
The doctrine of res judicata bars claims that have either been litigated or that could have been litigated from being litigated again.

Is it better to not disclose the transcript that you have of the judgment and simply rely on the fact that all arguments have been tested in a competent court, which is then going to be the same court if the action progresses, asking a district or deputy district judge to overturn findings of fact of the same court.

The only way to displace that argument would be for the PPC to have a transcript of the whole hearing and not just of the judgment.

If a claim were to follow, after notifying them that the parties are the same as PPC -V- H Hippo 03/2018 then is a counterclaim possible?

Is it possible to get pro bono representation


Posted by: HenryHippo Wed, 4 Jul 2018 - 12:49
Post #1395982

QUOTE (Albert Ross @ Wed, 4 Jul 2018 - 04:33) *
My understanding of res judicata is that it is akin to an appeal; whereby you cannot add new arguments in an attempt to win at all costs. Here,with an alleged contract from september 2017 that; following a trial in March 2018 where it has been found that the PPC is incapable of usurping your lease in regard to their offer for contract parking.
The doctrine of res judicata bars claims that have either been litigated or that could have been litigated from being litigated again.

Is it better to not disclose the transcript that you have of the judgment and simply rely on the fact that all arguments have been tested in a competent court, which is then going to be the same court if the action progresses, asking a district or deputy district judge to overturn findings of fact of the same court.

The only way to displace that argument would be for the PPC to have a transcript of the whole hearing and not just of the judgment.

If a claim were to follow, after notifying them that the parties are the same as PPC -V- H Hippo 03/2018 then is a counterclaim possible?

Is it possible to get pro bono representation


I don't have the transcript yet. They are taking ages with it, and I ought to respond to UKPC within the next week or so.

I had to google pro bono. Are you asking if I have a low income that would allow me to obtain free legal assistance?

Posted by: Albert Ross Wed, 4 Jul 2018 - 16:48
Post #1396103

I am suggesting that it is in the wider interests of justice that res judicata is applicable to the UKPC' claim.

There is expected to be finality in proceedings and all arguments are expected to be put before the court; if the claimant failed to do that in the first instance that is a matter between them and their legal department.

Are UKPC adding an appeal point and addressing it as a new claim?
Is it that the vehicle exceeding the markings are going into your bay and not out of your bay into an adjacent bay. (don't answer)
Are you expected to go to the expense of appointing a surveyor to ensure that the car park is laid out as the space edged in red; that the 2.4 meter bay should be 8 foot (2.43m) Or is the road wider but the number of bays the same.

http://www.atjf.org.uk/uploads/4/1/8/1/41811233/lip_passport_v11.pdf

This booklet looks self explanatory, and shows that advice and not just representation is available to the litigant in person.

If res Judicata is applicable to UKPC' claim then it should follow that it is unreasonable or vexatious conduct, which may attain indemnity costs.
access to justice foundation is a charity that provides for pro bono and costs awards are made to that foundation.

I think I would prefer a headed letter from a pro bono legal firm explaining res judicata in a small claims hearing than trying to elucidate it myself in open court.

Posted by: HenryHippo Wed, 4 Jul 2018 - 17:22
Post #1396116

That booklet looks very similar to my attempt to gain unreasonable costs from UKPC, which was thrown out as the judge did not see evidence of them acting unreasonably (it was worth a try of course).

However if res judicata applies here, then UKPC are being unreasonable, therefore I can claim the unreasonable costs this time round?

And you are suggesting that if a strongly worded email to SCS Law telling them to desist now, just gets ignored, then I should find a pro bono legal firm to "represent" (by producing a sheet of paper, not in person) me in court and explain res judicta to the judge?

Posted by: Albert Ross Wed, 4 Jul 2018 - 23:55
Post #1396172

I would suggest a simple email.

Salutations
their reference.

The matter of parking between these parties at this location was the subject of UKPC V H Hippo case number XXXXXXXX was heard on XX March 2018

Is your client aware of the doctrine of res judicata.

H Hippo


You may not find a pro bono firm to represent you, but you may find one to write an appropriate letter. Which will expand upon the doctrine and the cost implications that will enable a judge to take into account the unreasonableness of the action.

We can cite cases but you may get the same from citizens advice. An opinion from a Barrister acting pro bono on Chambers Headed Paper will carry more weight. More weight than the 'para legal' packs produced for SCS law to give to their hired guns.

Have you still got their Claim and witness statements etc, those and your lease and defence will codify the elements that have already been argued and further cement the foundations of res judicata

It would be up to the organisation providing pro bono work whether and how they represent you in court. as the letter would be disclosed to the claimant it may prompt discontinuance. therefore unnessary for an attendance.

Posted by: HenryHippo Thu, 5 Jul 2018 - 16:51
Post #1396377

I do have those yes.

I'm not sure if you read the last few pages, but they attempted to take me to court for a different car I own. I put together the below email and that was enough to drop the case. I think they feel that because this is a different "offense" (car outside bay, not car without permit), they have a different avenue to pursue.

This time I propose to use the message SRM wrote above, but I will look at the Pro Bono route if they do not desist.





Hello,

I am writing with regards to your threat of legal action from 25th May 2018, with regards to car registration XXXX, on behalf of UK Parking Control.


On 16th March 2018 I attended Slough court with regards to a different car (YYYY), in the same car park, with UKPC and the same alleged contract. The representative from SCS Law was unsuccessful and I had £500 of damages plus expenses awarded to my myself.


If UKPC wanted to bring a claim for the 2nd car (and indeed any subsequent cars), this should have been done at the hearing in March 2018. Res Judicata applies here, you must cease and desist.


I am also concerned why you are continuing to hold my personal information. I require you to cease processing it, in line with Section 10 of the Data Protection Act of 2018. Failure to do so will result in a complaint to the ICO.


Yours sincerely

Posted by: Redivi Thu, 5 Jul 2018 - 17:00
Post #1396378

Failure to confirm that you have done so will result in a complaint to the ICO

Posted by: Jlc Thu, 5 Jul 2018 - 17:10
Post #1396380

It was s10 of the old data protection act.

Data Subject rights now begin at s46 in DPA2018...

Posted by: Eljayjay Thu, 5 Jul 2018 - 18:13
Post #1396396

Res judicata applies where the issues are the same.

I imagine that, in the original case, the judge found that the parking company had no right to charge Henry for parking in the parking space as opposed to finding the entire parking scheme to be invalid.

On this occasion, however, Henry was not parked in the parking space.

Henry needs the transcript of the original judgement. It would be foolish for Henry to go off half-cock without it.

Posted by: HenryHippo Thu, 5 Jul 2018 - 20:55
Post #1396433

QUOTE (Eljayjay @ Thu, 5 Jul 2018 - 19:13) *
Res judicata applies where the issues are the same.

I imagine that, in the original case, the judge found that the parking company had no right to charge Henry for parking in the parking space as opposed to finding the entire parking scheme to be invalid.

On this occasion, however, Henry was not parked in the parking space.

Henry needs the transcript of the original judgement. It would be foolish for Henry to go off half-cock without it.


Let me think back..... the argument was that there was nothing in the lease saying I had to display a permit and the judge agreed

So no, I don't think it is actually res judicata. But could be worth using it to scare them off anyway?

Posted by: SchoolRunMum Thu, 5 Jul 2018 - 20:57
Post #1396434

Yes, that's the point, they do no checking before throwing threats around, so will not have realised it's you, Henry of the Counterclaim!

Posted by: HenryHippo Thu, 5 Jul 2018 - 21:36
Post #1396447

Email sent

Posted by: Albert Ross Fri, 6 Jul 2018 - 01:14
Post #1396468

QUOTE (HenryHippo @ Sun, 1 Jul 2018 - 16:48) *
These guys just don't give up....
<Snip>

Also worth adding that this case should have been bundled with the other one if they wanted to take it to court?


That is where res judicata rests to prevent a scattergun approach to litigation and give a finality for the parties.
Is this what narowing the issues is about, to make sure that all arguments are in place. what is agreed is agreed and let the judge do the adjudication on the outstanding heads of claim.
How can you argue Locus Standii, that has already been decided. It would be an abuse of process to rehash that argument.
What the lease says, oh that has been decided.

Otherwise you will sorn your vehicle over the winter and then they will claim that it must be taxed... Gotta get a second bite of the Cherry.

This maybe irksome. and it would not surprise me to find snips going to the flame pit. which wouldn't be that bad as there are some knowledgeable posters do not do private parking... [sic]

Posted by: HenryHippo Tue, 10 Jul 2018 - 15:44
Post #1397559

So res judicta could be argued to give impunity over any behavior with the car?

I could (in theory), do the following actions that the lease prohibits, but because they have already taken me to court once, they can't take me again?

- Park on the lawn (not part of the allocated area)
- Park a trailer
- Park a commercial over 3.5 tonnes


Posted by: Jlc Tue, 10 Jul 2018 - 15:54
Post #1397561

No, unless you are an ambassador for the Central African Republic?

Posted by: ManxRed Tue, 10 Jul 2018 - 16:06
Post #1397565

QUOTE (Jlc @ Tue, 10 Jul 2018 - 16:54) *
No, unless you are an ambassador for the Central African Republic?

laugh.gif

Posted by: henrik777 Tue, 10 Jul 2018 - 22:33
Post #1397769

QUOTE (HenryHippo @ Tue, 10 Jul 2018 - 16:44) *
So res judicta could be argued to give impunity over any behavior with the car?

I could (in theory), do the following actions that the lease prohibits, but because they have already taken me to court once, they can't take me again?

- Park on the lawn (not part of the allocated area)
- Park a trailer
- Park a commercial over 3.5 tonnes



Res Judicata would potentially cover any similar events that they should have been aware of at the time of filing a claim. Anything afterwards would not be covered.

Posted by: Albert Ross Tue, 10 Jul 2018 - 23:04
Post #1397773

And that the fresh claim is for an event 2017, and that they should have been well aware of before the hearing in 2018.

Res Judicata was well defined in the supreme court, and all courts should follow it of course.

Virgin Airways Ill find the link...

http://www.bailii.org/uk/cases/UKSC/2013/46.html

Lord Sumption from 17 and every one else was in agreement and Lord Neuberger expounded upon.

Posted by: Eljayjay Tue, 10 Jul 2018 - 23:16
Post #1397775

Res Judicata applies to the same issues where nothing has changed.

I believe that the original decision related to parking within a bay or bays. The issue now is different. The parking company claims that the OP was not parked within a bay.

henrik777’s final sentence is incorrect.

It is impossible to say what Res Judicata covers without the transcript of the judgement in the original case.

This discussion without the transcript is nothing more than well-meaning individuals smacking their gums together.

Posted by: emanresu Wed, 11 Jul 2018 - 06:09
Post #1397792

QUOTE
Res Judicata applies to the same issues where nothing has changed.


I'm going to go with henrik777 on this one as I have had one well-meaning individual smacking their fumes together on this subject. I didn't want to disagree as he was a DJ.

Posted by: henrik777 Wed, 11 Jul 2018 - 09:57
Post #1397877

QUOTE
henrik777’s final sentence is incorrect.


You can argue all day about the first sentence but if you're saying my last sentence is wrong you should exit the conversation.

Posted by: Eljayjay Wed, 11 Jul 2018 - 19:58
Post #1398041

Well, henrik777, if you can justify your description of the way in which you assert that Res Judicata is time-dependent, I shall gladly offer you an apology. Can you?

Posted by: henrik777 Wed, 11 Jul 2018 - 22:59
Post #1398080

QUOTE (Eljayjay @ Wed, 11 Jul 2018 - 20:58) *
Well, henrik777, if you can justify your description of the way in which you assert that Res Judicata is time-dependent, I shall gladly offer you an apology. Can you?


I haven't gone to university or anything, but i'm comfortable with the fact that time travel is impossible, i mean all forms of gambling would be impossible if people could actually travel to the future and back.

Posted by: Eljayjay Thu, 12 Jul 2018 - 15:33
Post #1398345

QUOTE
I haven't gone to university or anything


I guessed.

Posted by: ManxRed Thu, 12 Jul 2018 - 15:36
Post #1398347

Come on people, play nicely!

Posted by: Redivi Thu, 12 Jul 2018 - 17:06
Post #1398400

QUOTE (henrik777 @ Wed, 11 Jul 2018 - 23:59) *
QUOTE (Eljayjay @ Wed, 11 Jul 2018 - 20:58) *
Well, henrik777, if you can justify your description of the way in which you assert that Res Judicata is time-dependent, I shall gladly offer you an apology. Can you?


I haven't gone to university or anything, but i'm comfortable with the fact that time travel is impossible, i mean all forms of gambling would be impossible if people could actually travel to the future and back.

According to Stephen Hawking, time travel is possible but no such travellers turned up at the party he announced after the event

He also thought it would be fatal

Posted by: Eljayjay Thu, 12 Jul 2018 - 20:56
Post #1398467

OK, in an effort to settle this matter peacefully, I would add the following comments.

In Virgin Atlantic Airways Ltd v Zodiac Seats UK Limited [2013] UKSC 46, the Supreme Court revisited the doctrine of Res Judicata and identified the six principles which make up the doctrine to be as follows:-

1. A party is prevented from bringing subsequent proceedings to challenge an outcome that has already been decided (cause of action estoppel)

2. If a claimant succeeds in the first action and does not appeal the outcome, he may not bring a subsequent action on the same cause of action (i.e. to recover further damages)

3. The doctrine of merger treats a cause of action as having been extinguished once judgment has been provided and accordingly the Claimant’s only right is the judgment itself

4. A party may not bring subsequent proceedings on an issue that has already been determined (issue estoppel)

5. A party may not bring subsequent proceedings which should and could have been dealt with in earlier proceedings (the ‘Henderson v Henderson’ principle)

6. There is a general procedural rule against abusive proceedings

Literally, the term “res judicata” means “a matter judged”. Once, a matter has been judged, i.e. the issues have been settled, the doctrine of Res Judicata applies forever unless and until, for example, there is a change in the law or a change in the positions of the parties.

What henrik777 said was “Res Judicata would potentially cover any similar events that they should have been aware of at the time of filing a claim. Anything afterwards would not be covered.”.

So, henrik777’s second sentence does not accord with the six principles identified by the Supreme Court.


Posted by: HenryHippo Thu, 12 Jul 2018 - 21:29
Post #1398479

Back on topic, they have withdrawn their threats. Thanks SRM

On a seperate note I wish the transcript would hurry up! Asked Ubiquotus if I could do anything to hurry it up, but they said they were chasing the courts... a likely story. What are my rights with this? I have paid for a 14 day turn around and had nothing of the sort


ear Mr Hippo,



Re: UK Parking Control Ltd



Thank you for your correspondence dated 5 July 2018. This was passed to our client and we have received their instructions.



Our client will not be pursuing the parking charge notice detailed in our letter dated 26 June 2018. Our client's debt recovery agent has confirmed to us that they have also closed all files in relation to the parking charge notices issued against your vehicles at XXXXXX.



We have instructions to close this file and we consider this to be the end of this matter.



Yours sincerely,

Posted by: ostell Thu, 12 Jul 2018 - 21:38
Post #1398483

I lost track of what was happening. Is there a counterclaim active on this?

Posted by: henrik777 Thu, 12 Jul 2018 - 22:58
Post #1398504

QUOTE (Eljayjay @ Thu, 12 Jul 2018 - 21:56) *
OK, in an effort to settle this matter peacefully, I would add the following comments.

In Virgin Atlantic Airways Ltd v Zodiac Seats UK Limited [2013] UKSC 46, the Supreme Court revisited the doctrine of Res Judicata and identified the six principles which make up the doctrine to be as follows:-

1. A party is prevented from bringing subsequent proceedings to challenge an outcome that has already been decided (cause of action estoppel)

2. If a claimant succeeds in the first action and does not appeal the outcome, he may not bring a subsequent action on the same cause of action (i.e. to recover further damages)

3. The doctrine of merger treats a cause of action as having been extinguished once judgment has been provided and accordingly the Claimant’s only right is the judgment itself

4. A party may not bring subsequent proceedings on an issue that has already been determined (issue estoppel)

5. A party may not bring subsequent proceedings which should and could have been dealt with in earlier proceedings (the ‘Henderson v Henderson’ principle)

6. There is a general procedural rule against abusive proceedings

Literally, the term “res judicata” means “a matter judged”. Once, a matter has been judged, i.e. the issues have been settled, the doctrine of Res Judicata applies forever unless and until, for example, there is a change in the law or a change in the positions of the parties.

What henrik777 said was “Res Judicata would potentially cover any similar events that they should have been aware of at the time of filing a claim. Anything afterwards would not be covered.”.

So, henrik777’s second sentence does not accord with the six principles identified by the Supreme Court.



So, in your view, after a company has issued a claim and been through the system, a company would be barred by way of Res Judicata from going back to court for an incident which occurred afterwards ?

Can you explain which of the 6 points covers this please ?

Posted by: Eljayjay Thu, 12 Jul 2018 - 23:03
Post #1398506

ostell
There has not been a claim, just a threat of court action.

henrik777
Try reading and understanding the principles for yourself. They are fairly self-explanatory. The wording is not mine.

Posted by: nosferatu1001 Fri, 13 Jul 2018 - 08:45
Post #1398541

Not a helpful response there Eli...however I suggest flamepit for further discussion.

No counterclaim here, just a threat of further cction which has now ended. Possibility of a claim for misuse of data etc is in the offing though?

I would now require them to confrm they have ceased processing your data, as they no longer have any cause to continue.

Posted by: HenryHippo Fri, 13 Jul 2018 - 11:21
Post #1398592

QUOTE (ostell @ Thu, 12 Jul 2018 - 22:38) *
I lost track of what was happening. Is there a counterclaim active on this?


Understandable smile.gif

I will write this post for the casual reader

Dec 2016: UKPC stick multiple tickets on Car A)

Jan 2017: A few tickets on Car B)

Summer 2017: Claim issued against me for Car A). Counterclaim issued against UKPC

Summer 2017: A few tickets on Car C). Car A) parked outside a bay once and gets PCN

Nov 2017: Original case date, last minute postponment to March 2018

March 2018: Judge dismisses UKPC case and awards me £500 damages

June 2018: UKPC go after Car B). I send them an email which makes them back off

July 2018: UKPC go after Car A) for being outside a bay once. I send them an email which makes them back off


Presumably they will go after Car C) next biggrin.gif

Posted by: ostell Fri, 13 Jul 2018 - 11:54
Post #1398611

Thanks Henry, all is clear now.

Posted by: HenryHippo Tue, 11 Sep 2018 - 11:47
Post #1415616

6 months after the case and I have not had any luck getting the transcript. The court sent the wrong audio to the transcript company and after a lot of back and forth for a few months it seems they can't get it to me sad.gif

I want to close this chapter, so I cancelled the request and got a refund.

I have donated the net proceeds from the parking debacle evenly between the Pepipoo forum and Cancer Research UK (see the below links for proof)

Thanks to everyone on here for the help, especially SRM

Best

Henry


https://www.dropbox.com/s/290qbllru71caan/cancer%20reseatch.PNG?dl=0

https://www.dropbox.com/s/68gnq3g5ou8x92v/pepipoo%20payment.PNG?dl=0

Posted by: cabbyman Tue, 11 Sep 2018 - 16:29
Post #1415681

occasion14.gif

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