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pete_tong
Recently mortgaged myself to the eyeballs and bought a flat in Kingston, SW London.
Quite upset to find somebody had clamped my car as I was moving in. The clamp was on the car for 10 minutes as I paid immediately as I was very busy that day. 130 GBP was the cost to release my taxed vehicle from my own parkign space.

Having had time to think it through I'm very angry about this.

There are signs around the car park, but not that cleat in my opinion. And the main sign as you enter the gated complex states only that it is "Rssidents parking only" although it turns out you actually have to display a permit.

Obviously my appeal to the clamping firm was not succesful and they pointed out that "it is irrelevant that you later proved you are authorised to park".

I have sent several emails to the managment agent acting on behalf of the managment company who refuse to take any responsibility.

In my lease it states I have "The exclusive right to use the car parking space shown numbered xx on the Plan allocated for the use of owners, occupiers of the Property or their guests for the parking of one private motor car or motor cycle which shall be in roadworthy condition"
There is no mention of permits.
I asked the managing agent to explain where in the lease they are given the right to clamp my car and their reply was "I have spoken to the property manager in regards to the lease for you. She has explained there is nothing particular in the lease regarding parking enforcement as this was introduced by the directors. It was caused by several issues with parking by non-residents who were using other residents parking spaces. Due to this, the directors had to make the decision to enforce parking permits etc to get the problem under control."
Sound resons maybe but certainly nothing that would take precedent over my lease???

I've reached a point where nobody looks like wanting to refund my money so am thinking of going down the legal route but am needing advice.
To me my points are valid but is my lease the most important document? Can somebody throw up a few signs and then force me to have to display a permit to park?
How do I go about small claims court and what are the likely costs?

Thanks is advance for any help..

strollingplayer
The signs don't come into it - you had an absolute right to use the space from the moment the lease came into effect, therefore there is no defence whatsoever. The only way you're going to lose this one is if it turns out the Queen was doing the clamping. You will be threatening legal action against the clampers and the managing agents. The management have engaged the clampers, and they are therefore responsible for their actions.

As to cost, you're looking at £30 issue fee, £25 hearing fee, £100 for a warrant if neither defendant pays up. The court will generally order that the other side refund you the court fees, and the cost of a warrant gets added to the judgment amount when it's made - the idea is that you shouldn't end up out of pocket in the long term.
Gan
Agree.

Send Notice Before Action to clamper and MA demanding full refund within 7 days or you will issue legal proceedings for tortious interference with your property. No need to give them any longer because they are in no doubt about the situation and don't have to hold an investigation.

Tell the MA that you are holding them jointly and severally responsible as the employer of the company. They are your real target because when you win because you can recover the sum by with-holding part of their charges.

Don't be tempted, by the way, to with-hold the charge without a judgement.

There are a couple of threads here for similar situations.

Couple of other points, did the clamper wear an SIA licence and does the receipt show his SIA number, name and signature ? If not, the clamping was also unlawful whether you were permitted to park there or not.

Who is the clamper ? Always useful to check them for reputation and CCJ history.
pete_tong
The clamper is Parking Control Management (UK) Ltd.
Address is PO Box 1161, Slough, Berks, SL2 5PJ

Licence number of clamper os 0230012245368088

How do I find out about ccj or other history?
srg
QUOTE (pete_tong @ Sat, 11 Sep 2010 - 10:29) *
The clamper is Parking Control Management (UK) Ltd.
Address is PO Box 1161, Slough, Berks, SL2 5PJ

Licence number of clamper os 0230012245368088

How do I find out about ccj or other history?


That licence expired on 8th September 2010 - but presumably you were clamped before then?
pete_tong
Yep, clamped in July.
Gan
PCM(UK) Ltd are very well known here

Registered address is The Courtyard, 1A Cranbourne Rd, Slough, SL1 2XF

This is where you have to send letters and legal documents, not a PO Box

They currently have four outstanding CCJs going back to 2007 and they haven't paid any since 2008. The big one is £12 000 dating from June this year.

Most of their cases were judgements in Northampton court. This is the clearing house for claims and strongly suggests they were default judgements where PCM didn't enter a defence. In other words they ignore court papers so you must include the MA in any claim.
pete_tong
How do I start the claim?
Will I be required to go to court? Or can i just submit my evidence?
srg
QUOTE (pete_tong @ Sat, 11 Sep 2010 - 12:29) *
How do I start the claim?
Will I be required to go to court? Or can i just submit my evidence?


Firstly you need to send a "notice before action" to PCM and your management company (ie telling them to pay or court - with a timescale).

To take them to court, you fill in form N1 (google for it from HMCS). You might have to attend court in person, but PCM often fold before that happens.
Gan
You have to show that you've attempted to resolve the matter before you can begin legal action.

Start by sending the Notice Before Action to both parties setting out why you are demanding the refund within 7 days or you will issue proceedings without further notice.

The main reason is the tortious interference with your property - you were clamped in your own parking space as defined in your lease. No sign or lack of a permit can alter this fact. If the clamping was actually "unlawful", for which the receipt may be evidence, this is a secondary point.

Hunt the forum for examples but post a draft here for comment.

You can expect PCM to ignore you and the MA to deny liabilty. When you reach this stage somebody will help you with the actual claim. Following the NBA you don't have to contact them but you can call the MA again to inform them that you are about to post your court papers and giving them one last chance to settle the matter.

If you do this, don't allow them to draw you into any discussion. It's not a negotiation or multiple choice. If they still dispute it put the phone down. If they want more time, tell them that, if a cheque for the full amount isn't received within 48 hours you will post the documents. Then put the phone down.

QUOTE (srg @ Sat, 11 Sep 2010 - 12:40) *
QUOTE (pete_tong @ Sat, 11 Sep 2010 - 12:29) *
How do I start the claim?
Will I be required to go to court? Or can i just submit my evidence?


Firstly you need to send a "notice before action" to PCM and your management company (ie telling them to pay or court - with a timescale).

To take them to court, you fill in form N1 (google for it from HMCS). You might have to attend court in person, but PCM often fold before that happens.

Do PCM fold as in "refund" ? Best outcome if they do.
Mister Ross
QUOTE (Gan @ Sat, 11 Sep 2010 - 12:55) *
Do PCM fold as in "refund" ? Best outcome if they do.


Very unlikely I would have thought.

To the OP:
Chances are that they will fail to enter a defence so that you can obtain judgement by default. The point is though that enforcing said judgement against them is very difficult, as you would have to trace them through a web of PO Box addresses - a far more tedious process than obtaining judgement in the first place. Once they have too many CCJ's they will simply phoenix themselves - this is how clampers operate and evade the law, quite shocking isn't it.

This is why it is so important that management/landowners are jointly named as defendants. They have a reputation to worry about and can't hide so easily, hence once judgment is obtained they will cough up. Despite what they may claim they ARE equally liable if they hired/contracted the clampers and authorised them to operate.

Let's get these NBAs scripted and get them fired off to both parties. If you do a search for other clamping threads you should be able to find a whole host of other NBA examples from which you can start to draft your own. Make sure you do not just blindly copy and paste though. Write it in your own words and keep it to the point, citing the 2 criteria as mentioned in previous replies (tortious interference with your property + unlawful clamping***)

Good luck!

Mister Ross


***need to see that receipt first though. Upload any paperwork related to the clamping using Tinypic.com
pete_tong
Hi

Getting those NBAs sorted now after some further fruitless discussions with the managing agent.
Actually being the owner of the flat is an advantage as I am actually a member of the management company.
I have obtained a copy of the contract between PCM and the managing agent (which depsite signing the contract the agent will take no responsibility for).
A couple of questions...

I work abroad for extended periods and was wondering how I go about organising leagal action after the original time limit on the NBA expire. I need to time this prefectly to be in the country and to be able to get to court if necessary.

And also can I request certain dates for a court appearance d/t work commitments taking me out of the country?

Also, should I send NBA to clamping company, managing agent and mangement company?
dave-o
QUOTE (pete_tong @ Thu, 16 Sep 2010 - 09:49) *
(which depsite signing the contract the agent will take no responsibility for).



They may not want to, but they will have to.

QUOTE (pete_tong @ Thu, 16 Sep 2010 - 09:49) *
I work abroad for extended periods and was wondering how I go about organising leagal action after the original time limit on the NBA expire.


Can someone check your post? You can prepare a court claim for them to send off when you give them the word.

QUOTE (pete_tong @ Thu, 16 Sep 2010 - 09:49) *
And also can I request certain dates for a court appearance d/t work commitments taking me out of the country?


No, but if it does get allocated to a bad date you can ask for it to be rearranged. These things always take time so there is no point in worrying about specific dates at this point.

QUOTE (pete_tong @ Thu, 16 Sep 2010 - 09:49) *
Also, should I send NBA to clamping company, managing agent and mangement company?


Clamper and whoever contracted them.

Show us your draft before sending.
pete_tong
I have somebody who can check my post and send things off when I give the word.

I hope to send the NBA to interested parties when I'm away from the UK, and get the court papers in just before I get back.

Do I need to fill out a special form for the court? Where do I get it from?
dave-o
You can download the N1 form from the hmcourts website.

*EDIT*
Here
http://www.hmcourts-service.gov.uk/courtfi...rms/n1_0102.pdf
pete_tong
Finally got round to draughting the NBA, please see below and all comments are welcome.

Should I say that I paid the release fee under protest?
Is there anything I have missed out?







NOTICE BEFORE ACTION

Dear Sir/Madam

On the xxth xxxxx 2010 my vehicle was clamped in the residents parking bay allocated to my property at Sandringham Court, for which you are the MANAGING AGENT/ACTING IMMOBILISATION CONTRACTOR. Operatives of Parking Control Management (UK) Ltd clamped my vehicle for an alleged breach of contract terms (not displaying permit). I was charged the amount of £130.00 for the release of the clamping device by operatives employed by YOUR COMPANY/YOUR AGENT’S COMPANY .

I am claiming for the return of the full release fee for tortious interference with my property + unlawful clamping. The reasons for my claim are;
That the clamping of my own vehicle in my own assigned parking space in not accordance with the lease for the property, which I am the leaseholder and which states that as leaseholder and occupier of flat XX I have "The exclusive right to use the car parking space shown numbered XX on the Plan allocated for the use of owners, occupiers of the Property or their guests for the parking of one private motor car or motor cycle which shall be in roadworthy condition".
In addition, the signage both on entry into the gated complex and inside is either misleading or obscured. I was not aware that clamping was in operation and therefore had not consented to my vehicle being clamped

Please be aware that if a full refund of the £130 release fee is not received within 14 days of the date of this letter, legal action for recovery of this amount will be initiated in county court and all additional court fees and costs will be added to the total sum sought. PCM were acting under instruction from Residential Management Group Ltd and therefore both PCM and RMG are jointly and severally liable.

Yours Faithfully,

XX


and a copy of the receipt (only have a photocopy on me at the moment, not the original but all details are visible)
Dwayne
in protest id personally say it was more like blackmail.
pete_tong
Any constructive critiscism on my NBA? Comments?
emanresu
Since you are drawing attention to the concept of "Principle and Agent" you might change the last para to

"PCM were acting as agents for Residential Management Group Ltd and therefore both PCM and RMG are jointly and severally liable."
dave-o
I would also say "additional court fees, costs and interest at 8% p.a.".

The interest will be not insubstantial by now.

Good NBA though.
Ticket ripper
Quote "Actually being the owner of the flat is an advantage as I am actually a member of the management company"

If I understand you correctly, each leaseholder has a share of the freehold via a share in the management company who are the freeholder? If this is correct you are effectively suing yourself. Whilst the management company is a separate legal entity and would, in normal circumstances (where leaseholders are not shareholders in and own the management company) undoubtedly lose if it gets to court, the management company is in all likelihood entitled to look to its shareholders to provide the funds to meet any judgement. It will do this either by incorporating it into the next service charge or by a one off levy. You, as a leaseholder and obliged to meet your share of the costs of the managment company, will therefore pay a pro rata share of any settlement the amount of which will depend on the number of shareholders. i.e 50 leaseholders judgement of say £300 including costs etc £300 / 50 = £6.00 each.

I would think from what you quoted the person at the managing agents as saying "the directors decided" is likely to be correct and the managing agents were instructed by the management company to appoint a clamping firm. If this is the case there should be minutes of the meeting and a resolution recorded. If there is it may well be difficult to pursue the managing agent who after all were just carrying out the instructions of the freeholder (the management company) and importantly therefore the leaseholders (residents with a share in the management company) especially if the latter are relying solely on the clause in the lease re unfettered enjoyment of the demised parking space. It is likely that the actual running of the management company (and its decisions) are carried out by a few volunteer shareholders and decisions like this voted on at very poorly attended agms or shareholder meetings. Silence is taken as assent and rightly so in these circumstances as otherwise it would be impossible for leaseholders to run these sort of management companies especially for a large development.

If the above is correct you will get the majority of your money back (less your pro rata share) but you should consider the effect this may have on your future relationship with the other leaseholders and also the effect it may have on the selfless few residents who probably run the management company and whether action like this would make them less likely to volunteer their services in future. A poorly run development could cost you significantly more in property devaluation than the £130 plus costs your are trying to get refunded.

You may have a case against the managing agents if they introduced this scheme without authority from the management company and they would then have to cover the cost of any judgement but whats the betting their next bill to the management company will just happen to have increased by the amount of the judgement?

Tricky one I know and incredibly unfair!

It may be better, although the chances are slim, to get the managing agents and or the management company to give the clampers an ultimatum - refund or lose the contract immediately. The potential loss of income may get a pragmatic decision from the clampers you never know.
pete_tong
Tricky one??

For me, not really.

The signs are deliberately misleading and obscured. I have informed the Managing Agent who have told me to contact the clamping firm. After I refused they got in touch with the clampers "who assured them that the signs were clear", which is of course absolute rubbish.

A management company that hires clampers to work and gives them full reponsibilty for placing signs, clamping and towing cars, collecting the cash and hearing appeals is living in a dream if they believe the clampers will honestly hear the appeal as a disinterested party. The managemnet company are professional and know perfectly well what is going to happen but will take no responsibility when it does.

As to my relationship with the other residents/owners, i'd imagine that most of them would back me as they will be understanding and don't stand to gain 130 pounds by ignoring common sense. And if they don't then we'll have to disagree...I'm not handing over 130 pounds and then keeping quiet to keep some other people happy.

I will proceed, and if it costs me six quid and a few scowls then so be it.

And one other interesting point, the management company actually sent me a powerpoint presentation from PCN before I started dealing with the actual property manager. In it PCN state "PCM indemnify all clients should any legal action arise due to the immobilisation of any vehicle.
We have our own legal department who specialise in vehicle immobilisation, and will defend all action taken ourselves." So that may save me six quid!

Thanks for your response, it's good to see all sides to this and be ready for any court action that may occur.
emanresu
QUOTE
PCM indemnify all clients should any legal action arise due to the immobilisation of any vehicle. We have our own legal department who specialise in vehicle immobilisation, and will defend all action taken ourselves."


I believe that PCM have this one their website as well. You may want to print this out for future reference when you come to collect your money back.

If it is not there try Wayback to see when it was last there.
Ticket ripper
My post was not designed to stop you claiming merely pointing out that I do not think this situation is as simple as it first appears. This is because you are a shareholder in the management company. My post was merely to give you some points to consider before proceeding in one direction or another.

If you do decide to proceed with court action make sure of your terminology. You mention the management company are responsible for this and that and not taking any action when I think you actually mean the managing agents acting on behalf of the management company.

Legally the management company cannot (based on your limited description of the lease terms) introduce a permit and clamping scheme that affects your unfettered enjoyment of the demised parking space without a variation in the lease which you and all the other leaseholders would have to consent to. So I think you will have a very good chance of gaining a judgement I'm just not sure whether this will be better than trying to finesse a refund by threatening to cancel their little golden goose of a contract. I am sure if you talked to the leaseholders who run the management company (not the managing agents acting for the management company) they could be prevailed upon to intervene on your behalf.

With regards to the actual cost. Whilst the initial cost may only be £130 + costs the increase in service charge or increase in the managing agent's fee (unless the judgement is met by a one off levy on the leaseholder / shareholders) will apply for ever more in the future. So if the current service charge is say £50.00 per month the management company may increase this to £56.00 per month at the next available date they are allowed to increase the service charge. Once a service charge increases it is very unlikely that it will decrease irrespective of the reason for the initial increase. So whilst you may have the initial gratification of getting your £130.00 back you may end up paying more than that in service charges.

It is of course entirely up to you what course of action you take, I am just saying think carefully before you decide. I understand that you are aggrieved and just want your money back and you have every right to be so - just dont throw the baby out with the bathwater!

Good luck whatever you decide.

dave-o
I'd claim the money back and then get residents together to force the MC to get rid of the clampers. Not that they'll be around for much longer anyway!
Mister Ross
Just got the PM Pete_Tong.

As far as an NBAs go, I'm not an expert as such and most of the important stuf has already been covered by the others. All I am going to suggest is to keep it as straight and to the point as possible (no need to be rude but be blunt instead of overly polite).

E.g last paragraph:

"Please be aware that if a full refund of the £130 release fee is not received within 14 days of the date of this letter, legal action for recovery of this amount will be initiated in county court"

might sound better as:

"If a full refund of £XXX is not received within 14 days of the date of this letter then legal action for recovery of this amount will be initiated immediately"

(bearing in mind you will have already detailed earlier what costs comprise the sum you wish to obtain - e.g costs and interest as per dave-o's post)
pete_tong
I've decided to add my Management Company to the court action I'm taking as the Managing Agent has chnaged its name between the original instruction to allow clampers to operate and now.

So I'm hoping somebody could provide me with an official address for

Kingston Central One (Kingston) Management Company Limited

emanresu
Have a look at http://www.companieshouse.gov.uk/

Company No. 04374322
Date of Incorporation: 14/02/2002

However are you sure it is a name change and not a change of MC. Your claim is against the original MC and not the current one.

pete_tong
Sent NBA to management company, management agent and parking company by signed for mail.

Only response I have received is from managing agent via email

"Thank you for your letter dated 11/11/2010.

Please can you confirm your vehicle registration number and I will forward your letter onto PCM to look into further.

Kingston Central One MCL requested the need for parking control on site and instructed RMG to put this in place.

As Managing Agents RMG do not get involved with the parking control itself; we will only put this in place if requested by the Management Company.

I await your response."

Should I even bother responding? I think my NBA was failry clear so I'm tempted to ignore this but will ignoring this email prejudice my case? Should I even be in contact via email or should everything be written on paper?

Court papers to fill out in the next few weeks, so may need some help there.....

Thanks to all so far..
pete_tong
And I also hear that PCM (UK) are in the process of getting as ASBO in Windsor. Does anybody know if this is true? And if it has been given? ANd where I could get more info on this?

Thanks
pete_tong
Response from PCM after I emailed the management company stating I would not delay legal action.
Sent via email (from the future!!).

County court it is then.....

Comments and encouragement welcome....(please!)
desktop_demon
What a bunch of "cunning stunts" PCM are. The OP should sue there wicked arses.... and the managing agents too. If it result sin a £6 surcharge on teh maintenance bill then so be it. If they insist then the other residents/shareholders may have to learn the hard way that PCM and their ilk are not the way to manage car parking spaces. locakble posts would do just as well.

It may be worth asking "Que bono" in this case. PCM et al generally get the deal by agreeing to pay back some of the extorted money to whoever agrees the contract. So if that was the case is the money paid to the managing agents accounted for and returned to the shareholders?

I hope that is sufficient encouragement! smile.gif

JSB1
QUOTE (pete_tong @ Mon, 22 Nov 2010 - 17:38) *
encouragement welcome....(please!)

Here you go. That's you on the left. The bad guys who are trying to rip you off are on the right.


Just keep going and you will win.
P.S. PCM "defends every case rigorously" by neither appearing in court nor filing any defence. Works a treat! laugh.gif
bama
PCM are the largest PPC in the UK are they ?

Gan
QUOTE (bama @ Mon, 22 Nov 2010 - 20:12) *
PCM are the largest PPC in the UK are they ?


Nowhere near if you compare their financials with CP+
pete_tong
Hi

My first attempt at filing in the appropriate court papers. What should I be filling in the "In The" box??

Also, any comments and critiscism is welcome and encouraged. I need some experience behind me.

Thanks in advance.....
strollingplayer
That box is for the venue. e.g. "In the Somewhere County Court". Show us your particulars - it will cost you £35 (not refundable) to fix it if you get them wrong.
pete_tong
Oooppss. Attached page 1 of the form twice.

Here is page 2 of the N1 form I completed....
dave-o
QUOTE (bama @ Mon, 22 Nov 2010 - 20:12) *
PCM are the largest PPC in the UK are they ?


Yes, they're much bigger than NCP*







*in their own minds
pete_tong
QUOTE (dave-o @ Mon, 11 Oct 2010 - 11:32) *
I would also say "additional court fees, costs and interest at 8% p.a.".

The interest will be not insubstantial by now.

Good NBA though.


I took your advice on board when sending the NBA. I was more than happy to receive and advice so not sure if you're confusing me with somebody else.....this is the first draft of the court papers and I'm asking for help/advice which is why I'm on here. I'll redraft using a word processor then and look up some legal citations I have found. Any good examples out there that I've missed??
dave-o
Sorry, i missed that bit. Will delete post bit!

Add a citation for the "signs" angle, e.g.
QUOTE
3) Insufficient signage to voluntarily assume risk:

On entering the car park at *LOCATION*, I was not aware that any clamping scheme was in force. There were no visible signs at the entrance to the car park, and none at the location the vehicle was parked. As such, it was impossible for me to have consented to a contract to be charged for release of my vehicle.
This point is supported by various court rulings including VINE v LONDON BOROUGH OF WALTHAM FOREST [2000] 4 All ER 169, in which it was decided:
“The appellant’s case on the central issue is that…the act of clamping the appellant’s car was a clear trespass, to which the respondents had no defence unless they could establish that the appellant had consented to her car being clamped or alternatively had voluntarily assumed the risk of her car being clamped. If the appellant had not seen the notice, then she could not have consented to, or voluntarily assumed the risk, of her car being clamped.”
As such, I believe the clamping of my vehicle was a trespass, and therefore unlawful.


Do you believe the sum to be extravagant? They usually are. I'd use that point too.
pete_tong
Ok attempt number 2.........comments welcome

On the 6th July 2010 my vehicle, registration G111GGG was clamped in the residents parking bay allocated to my property at Flat xx, xxxxxx Court. Operatives of Parking Control Management (UK) Ltd clamped my vehicle for an alleged breach of contract terms (not displaying permit). I was charged the amount of £130.00 for the release of the clamping device by operatives employed by PCM(UK).

I purchased the flat on the 17th June 2010, but did not take possession of the keys (including car park gate fob) until 1st July 2010 after returning from working abroad. On the 6th July 2010 I was moving some possession of mine into the flat, which is located on the 3rd floor of the building. My flat overlooks the car park and I noticed two persons in the process of clamping my vehicle. I made contact with these two persons from my window informing them that the vehicle was mine, however by the time I had returned to my vehicle moments later the clamp had been placed and my vehicle was immobilised which was at 14:26.
I had no choice but to pay the fee they demanded of 130GBP for my vehicle to be operational again which was at 14:36.

I am claiming for the return of the full release fee for tortious interference with my property, trespassing & unlawful clamping. The reasons for my claim are;

1)That the clamping of my own vehicle in my own assigned parking space in not accordance with the lease for the property, which I am the leaseholder and which states in the second schedule, Part1(rights granted to the buyer) that as leaseholder and occupier of flat xx I have
"The exclusive right to use the car parking space shown numbered xx on the Plan allocated for the use of owners, occupiers of the Property or their guests for the parking of one private motor car or motor cycle which shall be in roadworthy condition".

Furthermore the lease for my property defines the following
"Common Parts - All parts of the Development including the main structure and accessways not comprised in the leases."
"Leases - Any leases granted or to be granted by the company of any flats and parking spaces comprised in the Development"

I was granted a lease for flat xx and parking space xx, hence parking space xx is part of leases and not common parts and can be considered to be part of my property which includes the inside of flat xx. Car parking space xx is not communal area.
The lease also states in the fourth schedule (covenants by the management company)
"to enforce (if so required by the buyer in writing) the covenants .....". I am the buyer and have not asked anybody to enforce parking regulations on my own space, number xx.

2) Insufficient signage to voluntarily assume risk:
On entering the car park at xxxxxxxx Court, I was not aware that any clamping scheme was in force. There were no visible signs at the entrance to the car park noting that clamping was in operation, and none at the location the vehicle was parked. The only clearly visible sign I saw stated “Residents Parking Only – By Order of Management Company”. This is the only clearly visible sign at the entrance to the car park. As such, it was impossible for me to have consented to a contract to be charged for the release of my vehicle.
This point is supported by various court rulings including VINE v LONDON BOROUGH OF WALTHAM FOREST [2000] 4 All ER 169, in which it was decided:
“The appellant’s case on the central issue is that…the act of clamping the appellant’s car was a clear trespass, to which the respondents had no defence unless they could establish that the appellant had consented to her car being clamped or alternatively had voluntarily assumed the risk of her car being clamped. If the appellant had not seen the notice, then she could not have consented to, or voluntarily assumed the risk, of her car being clamped.”As such, I believe the clamping of my vehicle was a trespass, and therefore unlawful. I am entitled to park in the space where my vehicle was parked and had no reason to risk having my car clamped if I had been aware of the clamping scheme in operation.
pete_tong
Couple of comments/ questions of my own.

I decided to leave out the excessive charge statement, as I can't see it coming to that. Or would that be helpful to cast further dark light on the defendents?

As I'm naming 3 defendents should I somewhere list PCM unpaid CCJ's to highlight the need for doing this?
dave-o
Slight amendment that i like, and a slight change to my previous wording to bring it fully in line with Vine.

QUOTE (pete_tong @ Wed, 24 Nov 2010 - 17:03) *
2) Insufficient signage to voluntarily assume risk:
On entering the car park at XXXXXXXXXXXXXXXXx, I was not aware that any clamping scheme was in force. There were no visible signs at the entrance to the car park noting that clamping was in operation, and none at the location the vehicle was parked. The only clearly visible sign I saw stated “Residents Parking Only – By Order of Management Company”. This is the only clearly visible sign at the entrance to the car park. As a resident, i believed i was fully entitled to park in the location. I did not see any sign/s that suggested a clamping or towing scheme was in force. As such, it was impossible for me to have voluntarily assumed the risk of being charged for the release of my vehicle.


I think the excessive charge angle is always worth putting. Council clamps cost around £70 as an example. State that you require a breakdown of the losses incurred by your purported trespass, and of the costs incurred in immobilising and releasing your vehicle. If you can make £130 seem like an arbitrary sum plucked from the air then a judge would like that IMO.
emanresu
Should it not be stronger i,e,
QUOTE
As the owner, I am fully entitled to park in that location. I did not see any sign/s that suggested a clamping or towing scheme was in force. As such, it was impossible for me to have voluntarily assumed the risk of being charged for the release of my vehicle on my own property.
hcandersen
I think you need to elaborate on the issue of calling to the operatives from your window. BTW, were they still there when you reached your car? If so, even more power to you.

IMO, if they're under instructions to clamp unauthorised vehicles then they have to be briefed fully on what constitutes an unauthorised vehicle. You refer to your lease as giving you the right to park and, forgetting the issue of a permit for one moment, if that's correct then the operatives should know this. You calling from your property clearly established your claim to being an occupier and therefore entitled to an occupier's rights under a lease. Although until that point (permit notwithstanding) they could have argued that it was only an unauthorised car (and one which they couldn't be expected to recognise given that you'd only just moved in), after your interjection that point could not have been in doubt. After this it appears that their whole claim rests on the basis of no permit - no permission - liable to clamping, and you will contest this point by arguing that no permit might be prima facie evidence of an unauthorised vehicle, but it is not conclusive: at the end of the day entitlement is granted under the lease with the permit only being a convenient, but not determinative, indicator.

HCA
dave-o
It is a worthy point, and will also tacitly point to the fact that the PPC is not running the scheme in the interests of fairness, but purely to make money.
pete_tong
Version 3....also will I submit this as printed word document with a "details attached" remark in the actual N1 form?


On the 6th July 2010 my vehicle, registration XXXXXXX was clamped in the residents parking bay allocated to my property at Flat XX, XXXXXXXXX Court. Operatives of Parking Control Management (UK) Ltd clamped my vehicle for an alleged breach of contract terms (not displaying permit). I was charged the amount of £130.00 for the release of the clamping device by operatives employed by PCM(UK).

I purchased the flat on the 17th June 2010, but did not take possession of the keys (including car park gate fob) until 1st July 2010 after returning from working abroad. On the 6th July 2010 I was moving some possession of mine into the flat, which is located on the 3rd floor of the building. My flat overlooks the car park and I noticed two persons in the process of clamping my vehicle. I made contact with these two persons from my window informing them that the vehicle was mine, however by the time I could return to my vehicle by descending three flights of stairs the clamp had been placed and my vehicle was immobilised which was at 14:26. The time between my establishing contact with the two operatives of PCM(UK) from my window and arriving at my vehicle was less than one minute.

I had no choice but to pay the fee, under protest, that they demanded of 130GBP for my vehicle to be operational again which was at 14:36.

I am claiming for the return of the full release fee for tortious interference with my property, trespassing & unlawful clamping. The reasons for my claim are;

1)That the clamping of my own vehicle in my own assigned parking space in not accordance with the lease for the property.
That the clamping of my own vehicle in my own assigned parking space in not accordance with the lease for the property which I am the leaseholder and which states in the second schedule, Part1(rights granted to the buyer) that as leaseholder and occupier of flat XX I have

"The exclusive right to use the car parking space shown numbered XX on the Plan allocated for the use of owners, occupiers of the Property or their guests for the parking of one private motor car or motor cycle which shall be in roadworthy condition".

Furthermore the lease for my property defines the following

"Common Parts - All parts of the Development including the main structure and accessways not comprised in the leases."
"Leases - Any leases granted or to be granted by the company of any flats and parking spaces comprised in the Development"


I was granted a lease for flat XX and parking space XX, hence parking space XX is part of leases and not common parts and can be considered to be part of my property which includes the inside of flat XX. Car parking space XX is not communal area.

The lease also states in the fourth schedule (covenants by the management company)

"to enforce (if so required by the buyer in writing) the covenants .....".

I am the buyer and have not asked anybody to enforce parking regulations on my own space, number XX.

2) Insufficient signage to voluntarily assume risk:

On entering the car park at XXXXXXXXXXXXX Court, I was not aware that any clamping scheme was in force. There were no visible signs at the entrance to the car park noting that clamping was in operation, and none at the location the vehicle was parked. The only clearly visible sign I saw stated “Residents Parking Only – By Order of Management Company”. This is the only clearly visible sign at the entrance to the car park. As a resident, I believed I was fully entitled to park in the location. I did not see any sign/s that suggested a clamping or towing scheme was in force. As such, it was impossible for me to have voluntarily assumed the risk of being charged for the release of my vehicle. This point is supported by various court rulings including VINE v LONDON BOROUGH OF WALTHAM FOREST [2000] 4 All ER 169, in which it was decided:

“The appellant’s case on the central issue is that…the act of clamping the appellant’s car was a clear trespass, to which the respondents had no defence unless they could establish that the appellant had consented to her car being clamped or alternatively had voluntarily assumed the risk of her car being clamped. If the appellant had not seen the notice, then she could not have consented to, or voluntarily assumed the risk, of her car being clamped.”

As such, I believe the clamping of my vehicle was a trespass, and therefore unlawful. I am entitled to park in the space where my vehicle was parked and had no reason to risk having my car clamped if I had been aware of the clamping scheme in operation.

3) Excessive charge:

A charge of £130 for the release of the clamp is excessive. For example, the Royal Borough of Kingston charge for releasing a clamped vehicle is £60 and charges of more than double the local council charges are excessive. A break down of costs will be requested for the alleged trespass I committed in my own parking space.

4) I established myself as resident to operatives of PCM before they placed the clamp, confirming myself as resident.

Even though I was unaware of the parking scheme in operation and hence not displaying a permit, I established contact with operatives of PCM (UK) before the clamp was placed on my vehicle, from inside the building, clearly confirming myself as an occupier of the building.

My claim is brought against PCM(UK), RMG and Kingston One because PCM(UK) was contracted to carry out these activities on behalf of RMG who claim they were instructed by Kingston One. As such I hold RMG and Kingston One jointly and severally liable for the actions of their agent. Having researched PCM(UK) at Companies House, I discovered that they have 4 unpaid County Court Judgements dating back to 2008. This, coupled with the fact that private clamping is likely to be outlawed by the government in the near future, leads me to believe that PCM(UK) may not honour further judgements, and as such, a judgement against RMG/Kingston One would be most likely to be successfully collected.
dave-o
Very good, i say!
strollingplayer
QUOTE (pete_tong @ Thu, 25 Nov 2010 - 09:04) *
Version 3....also will I submit this as printed word document with a "details attached" remark in the actual N1 form?

Yes, you can do this. The part for the particulars should include some options which include "attached", which you should circle on the form.
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