Residential parking in allocated bay - Court Claim received

Dear all,
Thank you so much for your helpful advice. I am in the process of writing my defence letter (already did the acknowledgement step online), and I have a technical question. When I'm submitting my defence online, can I attach files (i.e. evidence)? Do they have an interface to upload additional files? Or does everything have to be in one file? This could affect how I phrase my letter ('please see attachment X' vs 'please see below'). Apologies if this has been asked before, I could not find info on this on the FAQ threads.

Many thanks in advance!

Hi,

Thank you for your support, I have been able to piece together a defence statement based on the examples shared. Please can you have a quick look and let me know if this is more or less okay? Any suggestions would be very much appreciated. I mentioned before I am not a native speaker so I tried to keep the language simple, I hope that won't come across as unprofessional?

And one quick question (I read the newbies thread but this is not clear): is it a possibility that the court will strike the case out and I won't actually have to go to court? Or at this point is it a given that I'll have a court hearing? A bit nervous as a foreigner to appear in court without representation (twice, as my boyfriend is fighting them too...).

Thank you!

See below:

IN THE COUNTY COURT

CLAIM No: XXXXXXXX

BETWEEN:
PARKING AND PROPERTY MANAGEMENT LIMITED (Claimant)
-and-
ZITA XXXXXXX (Defendant)

________________________________________
DEFENCE STATEMENT
I am Zita XXXXXXX, defendant in this matter and deny liability for the entirety of the claim for the following reasons:

(1.) The claimant failed to include a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the Claimants contractual authority to operate there as required by the Claimants Trade Association's Code of Practice B1.1 which says

(1.1.) If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the ‘Creditor’ within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges. There is no prescribed form for such agreement and it need not necessarily be as part of a contract but it must include the express ability for an operator to recover parking charges on the landowner’s behalf or provide sufficient right to occupy the land in question so that charges can be recovered by the operator directly. This applies whether or not you intend to use the keeper liability provisions.

(1.2.) The particulars of claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached. Indeed the particulars of claim are not clear and concise as is required by CPR 16.4 1(a). It is denied that any 'parking charges or indemnity costs' (whatever they might be) are owed and any debt is denied in its entirety.

(1.3.) This is a completely unsubstantiated and inflated three-figure sum, vaguely and incoherently adduced by the claimant's solicitors. The Particulars are not clear and concise, so I have had to cover all eventualities in defending a 'cut & paste' claim.

(1.4.) This claim merely states: ''parking charges and indemnity costs if applicable'' which does not give any indication of on what basis the claim is brought. For example, whether this charge is founded upon an allegation of trespass or 'breach of contract' or contractual 'unpaid fees'. Nor are any clear times or coherent grounds for any lawful claim particularised, nor were any details provided to evidence any contract created nor any copy of this contract, nor explanation for the vague description 'parking charges' and 'indemnity costs'.

(1.5.) The Claimant are known to be a serial issuer of generic claims similar to this one. HM Courts Service have identified over 1000 similar sparse claims. I believe the term for such behaviour is robo-claims and as such is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. I have reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to my significant detriment as an unrepresented Defendant.
The defendant therefore asks that the court orders the case to be struck out for want of a detailed course of action and/or for the claim as having no prospect of success.

(2.) There is no mention of any ‘parking scheme’ in the signed tenancy agreement, nor any charges for parking. My tenancy agreement states “an allocated parking space is provided for one car”.

(2.1.) This Claimant is not a party to the tenancy agreement and cannot lawfully vary that agreement. This Claimant has no right whatsoever to pursue me for a breach of contract because no such contract with them can exist when I was authorised to - by virtue of my tenancy rights - in possession at this location.
The introduction of a permit system, which imposes new obligations on residents and their visitors and imposes an obligation to pay a set charge for any 'failure to comply' is not, under any interpretation, a regulation which can be imposed pursuant to any clauses in the tenancy agreements. Such onerous terms are not for the use and enjoyment of residents and such an imposition by a third party firm is incompatible with tenants' and visitors' prior rights to quiet enjoyment of the property.

(2.2.) Even if the Managing Agent has authorised this scheme, it is averred that the intention of such a permit system is solely to discourage trespassers, not to penalise residents and visitors. Under the prior Tenancy Agreement, the residents are already granted a right to park. A covenant for quiet enjoyment is a standard feature in modern leases and ASTs and is implied where not expressly provided, along with rights to pass and re-pass and park, as was offered by the landlord to this tenant and the tenant's legitimate visitors. This was an integral part of the rented property as offered to the tenant at the time of signing that agreement, which this parking firm are not a party to and nor were their terms or charges a feature of the tenancy agreement.

(2.3.) In Saeed v Plustrade [2001] EWCA Civ 2011, an attempt to remove an existing resident's right to park, and an attempt to charge for parking, was made by a Managing Agent. It was held that parking restrictions (including the introduction of a permit system) which caused detriment to residents was in breach of the principle that ''a grantor shall not derogate from his grant”. Even if there are signs put up, terms cannot be retrospectively added into a contract by a third party; a parking firm cannot disregard the rights of tenants and their visitors, delivery drivers etc. as was found by a Senior Circuit Judge, Charles Harris QC, in June 2016.
Authorities to support my defence include but are not limited to the (higher court level) Appeal case heard at Oxford County Court by Senior Circuit Judge Charles Harris QC, in Jopson v Homeguard [2016] B9GF0A9E. Similar Small Claim decisions in 2016 include Pace v Mr N C6GF14F0 and Link Parking v Ms P - C7GF50J7. All three cases were brought by Gladstones for parking operators (including the original Jopson claim which went to appeal and is persuasive on the lower Courts). In all cases, it was found that the parking company could not override residents’ existing rights by requiring a permit to park and that the signs were of no consequence, due to the primacy of contract enjoyed by the Defendants.

(2.4.) As this parking space is one directly allocated to me on the lease, you have not sought approval for the use of it from the actual landholder, ie myself. You have trespassed on my leased land. 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. The alleged debt(s) as described in the claim are unenforceable penalties, being just the sort of unconscionable charges exposed as offending against the penalty rule, in ParkingEye Ltd v Beavis.

(2.5.) It is not believed that the Claimant has incurred additional costs - be it legal or debt collector costs or even their unlawful, fixed sum card surcharge for payments - and they are put to strict proof that they have actually incurred and can lawfully add an extra sums and that those sums formed part of the permit/parking contract formed with the resident in the first instance. I would like to point out that this residential car park has allocated bays, and therefore claiming any loss of profit would be unreasonable. Furthermore, Paragraph 4, Schedule 4 of the Protection of Freedoms Act 2012, makes it clear the keeper can only be liable for the amount on the Notice to Keeper. The Notice to Keeper sent by the Claimant stated the charge was "£100, reduced to £60 if paid within 28 days". The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons. It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious. As such, I am keeping a note of my wasted time/costs in dealing with this matter.

(2.5.) There can be no ‘legitimate interest’ in penalising residents for using parking spaces, under the excuse of a scheme where ostensibly and as far as the landowner is concerned, the parking firm is contracted for the benefit of the residents. It is unconscionable, contrary to the requirement of good faith and ‘out of all proportion to any legitimate interest’ to fine residents or their visitors for using the parking spaces provided. The vehicle was parked on land in accordance with the terms of the Lease.
I request the court strike out the claim for reasons cited by District Judge Cross of St Albans County Court on 20/09/16 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''.

(3.) I argue that the permits are not fit for the purpose. If a contract existed between the Claimant and the Defendant (which is denied), the Claimant claims that it was a term of that contract that the Defendant must display a permit. With the permit, the Claimant provided the Defendant with a plastic envelope in which to display the said permit, which was designed to be adhered onto the inside of the car windscreen. It must therefore have been an implied term of the contract that the Defendant was to use that plastic envelope to display the permit. The plastic envelope was not fit for its purpose: it came away from the car windscreen when the car was unattended, falling down inside the car when it was parked. The implied term to display the permit at all times in the plastic envelope was impossible to comply with and therefore frustrated.

(3.1.) I have taken measurements and calculated that the ratio of sticky to non-sticky surface is 1681 mm2 to 7921 mm2, a mere 21.22%. As my allocated parking bay is on the 7th floor of the car park, it takes 6 sharp turns to drive up. This has put significant centrifugal and centripetal forces on the sticker on a daily basis, which has thus de-attached from the windscreen and fell onto the passenger’s side floor mat. I can provide time-stamped photo evidence from the morning of the PCN appearing on my windscreen that prove that the sticker was still visible and with the zooming function of the parking attendant’s digital camera, it could have been captured to confirm it was a valid permit for the allocated bay.

(3.2.) In a recent appeal rejection letter from the Claimant regarding a sticker visibility case, they responded the below:
“If the permit is not totally visible on the said occasion whether intentional or not, we feel the driver must take responsibility for this.” […] “Signage also states that a permit must be “fully” displayed. We recommend using a ‘tax disc’ style holder.”
I argue that based on the case of C8GF30W7 Link Parking v Mr H. 14/11/2016 Port Talbot. The judge dismissed the claim and ruled that it was the Claimant’s responsibility to provide permits that are fir for the purpose. Also, in 2017, in a residential car park, electronic permits or a database of vehicle registration numbers would be a much more reasonable solution. The current permit system puts residents at an unfair disadvantage.

(3.4.) The signs in the car park that had been put up by the Claimant listing their ‘Conditions of Parking’ include the below sentence: “Retrospective evidence of authority to park will not be accepted”. I believe this is an unfair term as any number of out-of-control or vis maior events can happen, where retrospective evidence should be accepted. In a residential car park, the principle of ‘innocent until proven guilty’ should be respected rather than the unlawful harassment of residents. A notice asking the vehicle keeper to provide evidence of authority to park within x days would be a humane and reasonable procedure in these cases.
(4.) Extenuating circumstances at the time the PCN was issued.

(4.1.) On the evening before the PCN was stuck onto my vehicle, I was feeling severely unwell with a high fever and flu-like symptoms, and was on my way to a doctor’s appointment at my local GP surgery (I can provide proof of the appointment). I was not in a condition to notice that the sticker has peeled off the windshield and fell onto the floor mat.

(5.) I believe that the constant monitoring and predatory operation carried out by the parking attendant on behalf of the Claimant is excessive and unnecessary. The car park is equipped with gates at the entrance and exit of the structure. The gates require a 4-digit PIN to be entered upon arriving/leaving. This heavily reduces the possibility of unauthorised parking or non-residents’ vehicles entering the car park. The presence of the Claimant on the land will have supposedly been to prevent parking by uninvited persons, for the benefit of the actual leaseholders. Instead, a predatory operation has been carried out on those very people whose interests the Claimant was purportedly there to uphold. I believe the outdated sticky permit system had been installed to allow the Claimant to unlawfully claim charges from residents. It is a nuisance for residents and puts them at a disadvantage.

I believe the facts stated in this defence are true.


(Name) (Signature) (Date)!