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UK CPM - Visitor parking PCN
DragonQ
post Mon, 20 Mar 2017 - 18:12
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My car was parked in a visitor's bay in my residential parking area. One morning I woke up to find a Parking Charge Notice attached to it from UK CPM, who have some signs up around the car park. The issue reason is not displaying a valid parking permit. I have a visitor's permit that is in the car but I am not sure how visible it was on this occasion.

UK CPM are a part of IPC, although the sign says they are a BPA member. I have two questions:

- Am I right in thinking that I needn't do anything until I receive a Notice to Keeper through the post?
- Is there any point contacting my management company to ask for the charge to be cleared (since it's designed to stop people who don't live here or aren't visiting using the bays, not to catch people who live here out), or are they likely to just refer me to UK CPM?

I've attached a redacted copy of the PCN and also a photo of the signs up around the area. I've had a quick look through the contract I signed with the management company when buying the property, as well as their "welcome pack", and can't see any mention of parking whatsoever.
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post Mon, 20 Mar 2017 - 18:12
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nosferatu1001
post Tue, 19 Jun 2018 - 07:02
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Eli - the defence should be written in the 3rd person, so "the defendant"

Why is it a £35 fee for a counterclaim of only £100? I would cite Vidal-Hall as justificaiton for compensaiton where no direct damages were caused
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Eljayjay
post Tue, 19 Jun 2018 - 15:00
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I expect the OP to be able to successfully defend the claim, but I do not expect him to win a counterclaim.

The objective of the counterclaim is simply to make sure that the parking company does not wriggle out of a hearing at the last possible moment.
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DragonQ
post Wed, 20 Jun 2018 - 10:54
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OK so I've taken my original defence and removed some detail, then merged in a lot of the stuff from the example posted by Eljayjay. I assume I can add more detail (e.g. refer to specific paragraphs in the Transfer document) when I actually submit evidence with the witness statement?

Other things I originally had but have now left out are:

- A whole spiel about how the management company and UK CPM agreed that they were not there to punish homeowners but to prevent unauthorised parking. I haven't yet found the minutes of this meeting which would constitute evidence.
- A whole series of paragraphs about the Beavis case and how it doesn't apply to this case.
- A word about the Gladstones' "robo claim" practices and being investigated by the SRA - I feel like leaving this out because I haven't found evidence for it.

I haven't put in the counter-claim stuff yet but this is the main defence draft. Any thoughts?

QUOTE
BETWEEN:

UK CAR PARK MANAGEMENT LIMITED

-and-

DEFENDANT
________________________

DEFENCE STATEMENT
________________________

1) It is admitted that the Defendant is the registered keeper of the vehicle in question.

2) The Defendant acknowledges that the alleged parking contravention is in reference to an occasion whereby the Defendant’s vehicle was parked in a visitor residential parking space at the home address of the Defendant.

3) The Defendant denies any amount is owed to the Claimant in relation to the incident described in the Particulars of Claim, or any other occasion where the Defendant’s vehicle is parked in a visitor residential parking space at the home address of the Defendant.

4) The Particulars of Claim (dated <DATE>) states the Claimant is demanding payment for “breaching the terms of parking on the land”. However, the Claimant has not provided the Defendant with a copy of the contract containing those terms and conditions and it has not specified the particular term(s) or condition(s) which it purports the Defendant to have breached.

a) The Defendant contends he has not entered a contract with the Claimant and so cannot be in breach of any terms.

b) In the event of the Claimant providing further details of its Particulars of Claim, the Defendant reserves the right to amend or add to this, his statement of defence.

5) The Claimant issued a Letter Before Claim to the Defendant on <DATE> but the letter failed to comply with the Pre-Action Protocol for Debt Claims.

a) The Defendant responded to the Letter Before Claim on <DATE> asking the Claimant whether their intention was to request a response under the Pre-Action Protocol and, if so, to explain their failure to comply with the Pre-Action Protocol and send a new Letter Before Claim that was compliant. The Defendant also made it clear he desired a human response to the letter, not a generic templated one.

b) The Claimant responded to the Defendant’s letter on <DATE> with a generic list of Frequently Asked Questions and included a previous letter sent to the Defendant by their client. This was also not compliant with the Pre-Action Protocol.

c) The Defendant replied again to the Claimant’s letter on <DATE> explicitly asking the Claimant to indicate clearly whether they intended to begin court proceedings and, if so, send a paper copy of the Pre-Action Protocol so that the Defendant could respond.

d) The Claimant never responded to this request and thus never sent the Defendant a compliant Letter Before Claim. Having failed to comply with the Pre-Action Protocol for Debt Claims, the Claimant should not have brought this claim.

6) In the Property Title owned by the Defendant (dated <DATE>), it is stated that “the land has the benefit of the rights granted by but is subject to the rights reserved by the Transfer dated <DATE> referred to in the Charges Register” (hereby referred to as “the Transfer”). This case relates to land where the Defendant’s rights are governed by the Transfer.

7) The Claimant has chosen to blatantly disregard the existence of the Transfer and the rights granted to the Defendant under it.

8) The Defendant, as the property owner, is referred to as the “Purchaser” and “Transferee” within the Transfer.

9) In the Transfer, in consideration of the purchase price, a freehold property, which is the Defendant’s home, was transferred to the Defendant together with certain rights, including the right to use any visitors parking space in the vicinity of the property for the temporary parking of private motor vehicles not exceeding three tonnes gross laden weight.

a) The Transfer acknowledges receipt of the purchase price by the Transferor.

b) The purchase price included full consideration for the Defendant’s right to park in the visitors parking spaces.

c) There are no other parking charges for which the Defendant is liable, according to the Transfer.

d) The Defendant is, therefore, fully entitled to use the visitors parking spaces and, when the vehicle was parked in one of them on <DATE>, it was parked in full compliance with the Transfer without any parking charge being due.

10) The Defendant is further protected against the Claimant’s unauthorised and predatory parking scheme by (a) the Claimant’s lack of any third-party rights in relation to the Transfer, (b) the legal principle of non-derogation from grant implied in all such documents, and © the legal principle of the right to quiet enjoyment also implied in all such documents.

11) The Defendant’s relationship with the Transferor is governed directly by the Transfer, not via any contract with the Claimant.

a) The Transferor has transferred the property to the Defendant with the aforesaid right to use the visitors parking spaces and has reserved no right to impose any further terms governing the Defendant’s use of the visitors parking spaces, either directly or through the Claimant.

b) If the Defendant had breached any term or condition of the Transfer, which is not the case, the Transferor’s remedy would be to seek damages, not a parking charge, from the Defendant and/or to seek an injunction ordering the Defendant not to repeat the breach.

c) Consequently, neither the Transferor nor its agents, if any, have any standing in relation to the claim.

12) The Defendant’s relationship with the Management Company (also defined in the Transfer) is governed directly by the Transfer, not via any contract with the Claimant.

a) The Transfer confers neither any right nor any obligation on the Management Company to impose any further terms governing the Defendant’s use of the visitors parking spaces either directly or through the Claimant.

b) Consequently, neither the Management Company nor its agents, if any, have any standing in relation to the claim.

13) There is nothing in the Transfer or elsewhere which compels the Defendant to enter into a contract with the Claimant, who is a stranger to the Transfer, for parking in the visitors parking spaces.

14) Insofar as the visitors parking spaces are concerned, the intention of the Transfer was to provide the Defendant (and other Transferees) with rights to use those spaces.

15) It is perverse that the Claimant should seek to manage parking in the private car park by making parking available to the general public (albeit at exorbitant cost).

16) The Claimant cannot derive any right to use the visitors parking spaces for the purposes of its business from any of the parties to the Transfers.

17) It follows that the Claimant has no parking to offer and, for the purposes of a contract, the Claimant lacks consideration.

18) In turn, it follows that the Claimant has no grounds for charging the Defendant for the use of the visitors parking spaces: they do not own the land where the vehicle was parked, nor do they have any interest in the land, and thus they lack the capacity to offer parking. The Claimant also has no authority to bring a claim.

19) Insofar as the visitors parking spaces are concerned, the Claimant is nothing more than a nuisance without any standing at all.

20) Recent cases have set a clear precedence that private parking companies cannot override existing contracts via signage. The Transfer grants the Defendant the right to use the visitor parking spaces without any of the restrictions that the Claimant is attempting to impose. The Defendant refers to the following examples:

a) In the case of Saeed v Plustrade Ltd [2001] EWCA Civ 2011, parking restrictions and a change which caused detriment to tenants/homeowners and their visitors were held to be in breach of the well-known and well-established principle that “a grantor shall not derogate from his grant”.

b) In the case of Jopson v Home Guard Services, appeal case number B9GF0A9E [29/09/2016], it was found that Home Guard Services had acted unreasonably when issuing a penalty charge notice to Miss Jopson, a resident of a block of flats, and that the parking company could not override the tenant’s existing rights.

c) In the case of Pace Recovery and Storage v Mr N C6GF14F0 [16/09/2016], District Judge Coonan dismissed the claim and refused leave to appeal, having found that a third-party parking firm cannot override the tenant’s right to park by requiring a permit to be displayed in the vehicle. This is based on the well-established legal doctrine that an existing contract cannot be unilaterally altered.

d) In the case of Link Parking v Ms P C7GF50J7 [2016], it was also found that the parking company could not override the tenant's right to park by requiring a permit to park.

21) The signage within the Management Land (as defined by the Transfer and including the visitors parking spaces), which attempts to create contracts with property owners and lessors, includes a roundel stating that the Claimant is a British Parking Association (BPA) Approved Operator. The Defendant has confirmed with the British Parking Association that the Claimant is in fact not a BPA Approved Operator and is not permitted to display such a roundel.

a) The Defendant believes that the Claimant is therefore in breach of the Consumer Protection from Unfair Trading Regulations 2008 (and Amendment 2014).

b) The Defendant believes that the Claimant is using the BPA roundel in an attempt to increase their perceived authority and thus mislead residents and visitors. As such, the Defendant asks that the Court does not assist the Claimant to benefit from a wrongdoing. (Ex turpi causa non oritur actio.)

22) Even if the signage created a valid contract between the Claimant and the Defendant, the Particulars of the Claim indicate a claim of £160 for “parking charges / damages” by the Claimant. The signage on Management Land clearly states the Parking Charge Notice amount is £100, so the Claimant has no basis for demanding £160 for “Parking Charges / Damages”.

a) The Defendant believes that the amount of interest being charged by the Claimant (8%) is entirely unreasonable considering the current Bank of England base rate of 0.5%.

23) The Claimant is a well-known parking operator with wide experience in this field. With such wide experience of parking matters, it is reasonable to expect the Claimant to know that, for a parking scheme to be valid, a contract needs to exist between itself and a person who (a) is either the owner or occupier of the land or authorised under or by virtue of arrangements made by the owner or occupier of the land and (b) has power to override any pre-existing contrary contractual conditions applying to the land.

a) The Claimant has, however, acted negligently by failing to establish the credentials of the other party to its parking contract, whoever that other party may be.

b) If the Claimant had acted with skill, care and diligence, they would have realised that the other party to its contract to manage parking on the relevant land, whoever it may be, is not empowered to enter into such a contract with the Claimant.

c) If the Claimant had acted with skill, care and diligence, they would have detected that the land is subject to pre-existing terms and conditions which have primacy of contract over the Claimant’s fatally flawed arrangements.

24) It is the Defendant’s belief that parking companies using the small claims track as a form of aggressive, automated debt collection is not something the courts should be seen to support.

25) The Defendant request the court strike out this claim for the reasons stated above, and for similar reasons cited by District Judge Cross of St Albans County Court on 20/09/2016, where a similar claim was struck out without a hearing due to Gladstones' template particulars for a private parking firm being 'incoherent', failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''.

I believe the facts stated in this Defence Statement are true.
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Eljayjay
post Wed, 20 Jun 2018 - 11:35
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Give yourself a pat on the back.

Others may knock it a bit. It does, however, tick all the right boxes in my opinion.

A practical problem may be that it could be too large to copy and paste into MCOL's box. If it is, I would keep back some of the detail, e.g. the case references, for the witness statement.

If I remember rightly, the clock is ticking insofar as getting the defence posted on MCOL is concerned and, if you are going to make a counterclaim, as you need to post both your defence and the counterclaim at the same time, you now need to get cracking on that.
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nosferatu1001
post Wed, 20 Jun 2018 - 12:45
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I wouldnt remove items just to fit into MCOL. It destroys formatting as well, making the defence very hard to read
Just do what everyone does - use a free PDF converter or inbuilt PDF tools (Win10 has this, libreoffice, freepdf etc) -> scan in a signature on VERY white paper, insert the signature, convert to PDF, email to the court. EASY.
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ManxRed
post Wed, 20 Jun 2018 - 13:12
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Or in Word.

Insert signature as a pic.

Save As, select drop down box for Filetype, and select PDF.


--------------------
Sometimes I use big words I don't understand in an effort to make myself sound more photosynthesis.
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DragonQ
post Wed, 20 Jun 2018 - 14:20
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I assumed posting the defence online would allow attachments, so I was just gonna attach a PDF to that. I haven't actually checked if that's the case yet. I can only fit about half of that defence in the text box provided (122 lines maximum).

This post has been edited by DragonQ: Wed, 20 Jun 2018 - 14:34
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nosferatu1001
post Wed, 20 Jun 2018 - 14:27
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Given weve told you to email it, you can presume your assumption was incorrect!
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DragonQ
post Wed, 20 Jun 2018 - 14:40
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OK, if I email the court using the address listed here, do I have to also submit the MCOL response form and cite that I've sent an email? Or can I just leave the MCOL now?
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nosferatu1001
post Wed, 20 Jun 2018 - 17:35
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Ignore mcol.
It's the new CCBCAQ email

This post has been edited by nosferatu1001: Wed, 20 Jun 2018 - 17:35
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