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  • FIRST POST
    • Jhpt
    • By Jhpt 17th Aug 17, 5:14 PM
    • 38Posts
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    Jhpt
    So I'm going to court...
    • #1
    • 17th Aug 17, 5:14 PM
    So I'm going to court... 17th Aug 17 at 5:14 PM
    So looks like I'm one of the chosen few who make it all the way through to court..

    Looking for any input please! I've read through the forums but would really appreciate any help anybody can offer.

    To give you a timeline of events;

    - Ticketed on 8/1/17 in my residents car park (2 spaces as part of my monthly rental agreement) as my pass had slipped from my dashboard
    I stupidly believed they'd waive the ticket if presented with evidence of my right to park - I wrote to them (giving them my address.. DOH!) with a photocopy of my residents parking permit. Received a letter stating that I hadn't displayed my pass and was therefore not exempt from paying a fine (£60 rising to £100) I responded stating I would NOT be paying and any further correspondence was to be through my lawyer
    - 20/2/17 first letter now stating I owed £100
    - 5/4/17 letter from "Debt Recovery Plus Ltd (DRP)" stating a charge of £149.00 now owed (no reasoning for the 49 increase)
    - 20/4/17 2nd letter from DRP re-iterating £149.00 owed "If you haven't paid in full or made arrangements to pay by 4/5/17 we'll pass your file to our client with a recommendation that they take court action against you"
    - 05/5/17 3rd letter from DRP now stating a final settlement offer of £126.65 - no explanation of exactly how they've calculated this. "If you haven't paid the reduced amount by 19/5/17, our client will withdraw the offer. This means the amount due will go back to the full amount of £149.00.."
    - 5/6/17 1st letter from Gladstones Solicitors claiming £149
    - 25/7/17 2nd letter from Gladstones solicitors claiming £160 - no explanation included as to the rise of £11.
    - 17/8/17 TODAY receive a letter from the court (dated 14/8/17) to let me know I was being taken to court for £241.53 (166.53 + 25 court fee + 50 legal representatives)

    Now my reasons why I feel this ticket is unfair;
    1) As part of my tenancy agreement I have a right to park in two parking spaces
    2) The signage displayed states the parking company are a member of the BPA (They are NOT - they are IPC) - confusing myself as to whether they are a genuine company (my search of the BPA website showed nothing...) and of course confusing my decision of who to appeal the ticket too..
    3) This is a residents car park, managed to my knowledge by the residents association - do THEY have the right to ticket on their behalf or do they need written permission from the land owner?
    4) The way the fees have been increased 60-100-149-126.65-149-160 is confusing and has left me failing to understand the ongoing process
    5) I communicated I would only discuss correspondence further through my solicitors - they have failed to do so.

    Any advice here guys? Thanks so much in advance!
    Last edited by Jhpt; 17-08-2017 at 5:22 PM.
Page 4
    • Loadsofchildren123
    • By Loadsofchildren123 13th Sep 17, 9:59 AM
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    Loadsofchildren123
    You might also remind the Estate Agent that the terms of your lease probably allow for "quiet and peaceful enjoyment" (check it) of the property for the term of the AST. The clause about contacting the landlord is primarily so you don't cut out the Estate Agent.
    Originally posted by safarmuk

    Yes, that clause doesn't mean that you have no recourse if the terms of your tenancy are breached. Even if it doesn't specify a right to peaceful enjoyment, this is an implied term.


    You could tell the estate agent that this isn't good enough and that you will either join the landlord to the proceedings and seek an indemnity for him, or will sue him subsequently for all your losses and for damages for breaching your rights under the tenancy.


    The tenancy doesn't say that you have to display a permit, and nor does the landlord's lease. Even if the landlord's lease allows new "regulations" to be introduced, these have to be within the definition of such regulations, and even if they are, the right of the freeholder or its agent(s) to introduce new regulations will not extend to unilaterally imposing a liability to a third party (the parking co), or the right to impose a set charge for failure to comply (the lease will only allow the freeholder to recover amounts as defined in the lease - usually limited to ground rent and service charge.



    Of course, the difficulty here is you might not want to threaten your landlord with suing him because he may then serve notice on you. So you are a bit between a rock and a hard place. But your only other choice is to just fight the ticket and not rely on the landlord at all. Personally I'd just go for it with the landlord - he will have this problem with whatever tenant he has because humans are fallible and everyone will forget their permit from time to time, or it will fall down, and he has to take responsibility for what is going on at his flat.


    Tell the estate agent you will sue the landlord/join him to proceedings, you don't want to do that, all you want is a letter from him or them confirming the tenancy includes a right to park and that it does not include any obligation to display a permit. If they won't help tell them that the clause in your tenancy saying you can't contact landlord doesn't extend to legal claims and you'll be writing him a Letter Before Claim.


    Then write a nice letter to your landlord (not a formal LBC) explaining what has happened and telling him what you want from him. Explain about the proceedings and what you believe your rights are under the tenancy and how they are being breached, that you don't want to involve him and at this stage you just want a letter from him confirming x, y and z.
    • Jhpt
    • By Jhpt 13th Sep 17, 12:39 PM
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    Jhpt
    He didn't give a reason for not wanting to get involved no - he's previously inferred to me (regarding another matter) that "as I'm only a renter" I had no business in contacting him..... So I imagine this contributes.

    Great advice re: estate agent + passing a "nice" letter to Landlord - I'll be doing this thsi afternoon!

    God I Hate PPCs/ Estate Agents/ Snotty Resident's Associations!!!!
    • safarmuk
    • By safarmuk 13th Sep 17, 1:19 PM
    • 458 Posts
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    safarmuk
    Have you checked with any of your neighbours to see if they have run into these problems as well?
    Have you spoken to your neighbours like I suggested as well?

    He didn't give a reason for not wanting to get involved no - he's previously inferred to me (regarding another matter) that "as I'm only a renter" I had no business in contacting him..... So I imagine this contributes.
    Utter garbage, its a residents association ... not a leaseholders association, what an idiot. I'd follow LOC123 good advice and if you landlord is decent he should provide what you need, fingers crossed.
    • Loadsofchildren123
    • By Loadsofchildren123 13th Sep 17, 3:18 PM
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    Loadsofchildren123
    People like the estate agents and the residents' association will do their best to fob you off because they don't want to be bothered with this. They'll take the party line that it's nothing to do with them/they aren't there for tenants. The estate agent is the landlord's AGENT, so you are entitled to ask them for the same things you're entitled to ask the landlord for. Don't allow yourself to be fobbed off and keep pressurising them. If the EA won't help you just tell them that the clause doesn't stop you communicating with him over legal matters and if they don't comply with your small request do they realise they are exposing him to the risk of being sued/joined to proceedings and he won't thank them for that. Same with the RA.

    This is precisely the problem with residential sites - they bring in a PPC and try to absolve themselves of any responsibility.

    Have you got evidence that landlord has the right to park under his lease, which you are saying has been passed to you under your tenancy? Are we talking numbered/designated spaces (in which case your landlord probably owns his space), or a free for all (in which case he probably doesn't, but has rights to park)? The landlord is unlikely to give you his lease and may not even have it - it's worth getting a copy of this from Land Registry (phone them, they are very helpful) - it'll cost you a tenner or so, it's worth getting I think. It will also tell you what regulations there are, what powers there are to introduce new regulations etc. It may be really important. the cost is recoverable if you win and get costs, but even if you don't I think it's a small price to pay to potentially really improve your defence.
    • Jhpt
    • By Jhpt 13th Sep 17, 3:24 PM
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    Jhpt
    Sorry Safar I forgot the reply on this front - yes, I've asked the neighbours but none of them seem to have had any issues. Bizarrely last time I spoke to the landlord, her husband was moaning about a PPC issuing him something in a completely different site - my gut feel is they will be on my side here.

    Thank you both - these were my feelings so glad that they are yours too. I feel hiding behind PPC/ Resident's association is far too easy - both for EA and for the Chump of a "director". I'll write the EA another email and pop in.. I guarantee I've got more time to spend on this than them!

    LOC123 unfortunately I don't currently have the lease or the evidence they have a right to park. It's a free-for-all, so no numbered spacing. In my mind this would perhaps fall on my side - if the PPC requires a contract with the landowner - if the spaces aren't numbered - do they need to produce 16 contracts with the 16 landowners for 16 car park spaces?
    • Loadsofchildren123
    • By Loadsofchildren123 13th Sep 17, 3:41 PM
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    Loadsofchildren123
    No if there are 16 spaces it would be one contract covering them all.
    If they're unnumbered it is more likely landlord has rights to park, not rights to a particular space. So he doesn't own the space (which would be better). I think you should spend the tenner or so getting a copy of the lease to see what the rights are and how they can be varied (unless your landlord can supply it, but she may be funny about doing so)
    • Jhpt
    • By Jhpt 13th Sep 17, 3:48 PM
    • 38 Posts
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    Jhpt
    Thanks LOC - I'll get onto that now!

    I'll let you know how it progresses ASAP.

    Should have WS and SA completed by Friday.
    • Jhpt
    • By Jhpt 17th Sep 17, 12:28 PM
    • 38 Posts
    • 14 Thanks
    Jhpt
    Hello guys,

    I've finalised my SA and WS - if you wouldn't mind having a read through it'd be much appreciated - what's the best way to upload/host?

    Dropbox??
    • Lamilad
    • By Lamilad 17th Sep 17, 12:36 PM
    • 884 Posts
    • 1,853 Thanks
    Lamilad
    Hello guys,

    I've finalised my SA and WS - if you wouldn't mind having a read through it'd be much appreciated - what's the best way to upload/host?

    Dropbox??
    Originally posted by Jhpt
    Dropbox, Google drive, one drive..... Etc. Plenty of options
    • Jhpt
    • By Jhpt 17th Sep 17, 12:43 PM
    • 38 Posts
    • 14 Thanks
    Jhpt
    If anybody has the time to read through WA/SA I'd be very grateful!

    Please find the links below

    Skeleton Arguement
    https://www.dropbox.com/s/zrga2gfz8dxkjus/XX%20SA.docx?dl=0

    Witness Statement
    https://www.dropbox.com/s/gsp5kh2wv4g1gi6/XX%20WS.docx?dl=0

    Thanks!
    • Loadsofchildren123
    • By Loadsofchildren123 18th Sep 17, 11:43 AM
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    Loadsofchildren123
    I'm just looking at the WS as it's early days for your Skeleton - you will want to amend that when you have seen their WS so I won't comment on that yet.
    It's a good draft, just a couple of comments:


    para 10: Is the manner of correctly displaying a permit mentioned on the signs? Or how to obtain one? If not, add this. Can you also say you were never informed by any means how to obtain a permit, or of the alleged requirement to display one?


    paras 21/22/23: It's a serious breach of the Solicitors' Professional Code of Conduct for a solicitor to communicate directly with a person who they have been informed has a solicitor acting for them (as opposed to communicating with the solicitor). You should point this out.


    para 26: can you go so far as to say that they are incoherent and disclose no actual cause of action?
    In the para about receiving the LBC, I think you should point out that it doesn't comply in any shape or form with the obligations set out in paragraphs 6(a) and 6(c) of the Practice Direction - Pre-Action Conduct, which is designed to help a defendant understand the case against him and to respond substantively to it, thereby giving each party a proper understanding of the other's case, and so that they can "take stock" and make informed decisions as to how to proceed.
    • Loadsofchildren123
    • By Loadsofchildren123 18th Sep 17, 12:12 PM
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    Loadsofchildren123
    Just looked at your skeleton.


    Other than the first section, all of this is for later on. The Skele is usually filed and served a few days before the hearing. It's a summary of your defence, evidence and legal arguments, and will also contain your response to their evidence which you haven't seen prior to your WS. So it's premature for all of that now.


    However, your first section is relevant for now. So I'd put that into a document headed "strikeout/dismissal of claim". Add to what you've written that they are also in breach of Practice Direction 7E - this states at paragraph 5.2 that the particulars of claim must be detailed.

    I'd add in a section about how they have ignored the Practice Direction - Pre-Action Conduct - which I've set out below.

    Spell out at the start what you are seeking:
    Either:
    1. a dismissal/strikeout of the claim pursuant to CPR Rule 3.4
    or
    2. If the court is not minded to make that order, a stay of the claim pursuant to paragraph 15 of the Practice Direction - Pre-Action Conduct and an order that they comply with it by providing sufficiently detailed Particulars of Claim and the core documents on which they rely (copy of signage, copy of landowner contract [and anything else you say is relevant at this stage], and such documents should be produced within 28 days, failing which the claim should be struck out. Without the documents and further information, you cannot be expected to file final evidence when you still do not properly understand the claim.
    Say that the court has the power to make these orders of its own volition, pursuant to CPR rule 1.4(2)(c) and Practice Direction 26, paragraph 5.1 and 5.2, namely to summarily dispose of issues which do not need full investigation and trial.


    Here's something for you to play around with, which I've copied and pasted from a document I did:

    Breaches of the Practice Direction - Pre-action Conduct (“the PD”):
    1. Paras 3, 8 and 12 of the PD set out its purpose, which is to primarily to avoid litigation (para 8) by laying down a procedure which allows the parties to
    i. understand each other’s positions (para 3)
    ii. make decisions about how to proceed (para 3)
    iii. explore settlement/consider ADR (para 3)
    iv. support the “efficient management” of any proceedings and reduce costs (para 3)
    v. “stocktake” and review their respective positions after following the PD by exchanging information, to see if proceedings can be avoided and to “at least” narrow the issues (para 12).

    2. Paras 6(a) and 6(c) oblige a C to enter into a meaningful dialogue with a D at an early stage by imposing specific obligations to:
    i. explain the claim in a Letter Before Claim,
    ii. provide relevant core documents, and
    iii. answer any questions asked by D in sufficient detail for D to understand and respond

    3. The LBC was a blatant breach of para 6: no explanation of what the claim was for (eg breach of contract, trespass and so on) and referred to/included no documents relied upon. Examples of core documents/information which the Claimant should and could have provided are:
    i. what the claim was for
    ii. whether D is pursued as driver and/or Registered Keeper (and reference to POFA)
    iii. a copy of the landowner contract demonstrating the C has the right to issue PCNs on the land,
    iv. a copy of the signage and an explanation that this set out the terms of any asserted contract, details of where the signage was displayed, how big the signs were and so on
    v. how any contract had been entered into and how it had been breached,
    vi. photographs showing the car parked and no permit displayed
    vii. a plan/photograph showing where the car was parked and where the signs were situated.
    None of this information has ever been provided, even now that a claim has been issued.

    4. [if relevant] D invited C to rectify its breaches [ref], asked various questions about the claim and requested documents [ref]. Those invitations/requests were ignored completely [or C refused to answer them] [ref]].

    5. There are of course identical obligations on a D imposed by the PD(paragraphs 3, 6(b)/(c) and 12). However, compliance with them is dependent on the C’s prior compliance. C’s conduct has denied D the opportunities under 2.1-5: there has been no pre-action dialogue at all and no response to the D’s attempt to narrow the issues.

    6. Had C complied, the claim could have been discussed prior to court proceedings, and issues disposed of or narrowed - in particular the D's rights to park as a resident/primacy of D’s pre-existing rights to park as a resident

    7. The sanctions in PD Para 13-16 clearly provide that compliance with the PD is not voluntary, nor is it a “guide” to best practice. It is part of the CPR and is binding. Parties are expected to comply with it. The court may punish those who do not. Inter alia, the court’s powers include staying the proceedings and ordering compliance (15) a costs order, and this may be on the indemnity basis (16(a) and (b)) and the power to remit (or increase) interest 16(c)/(d). Such sanctions can apply even against a successful party (paragraph 16).

    8. The PD’s aim is to create an opportunity to resolve matters (or at least narrow issues) in the lower cost atmosphere of pre-action protocol procedure”, rather than the “higher cost atmosphere of court proceedings” (as it was referred to in Charles Church Developments Ltd v Stent Foundations Limited & Peter Dann Limited [2007] EWHC 855
    • Jhpt
    • By Jhpt 18th Sep 17, 1:26 PM
    • 38 Posts
    • 14 Thanks
    Jhpt
    LOC123 - thank you!!

    To answer your questions re: WS

    para 10: this is simply as to how to display the permit (the lettings agency distribute these - we were provided these but I'm pretty sure never explicitly told we were required to display these).

    para 21-23: My concern here - my solicitors act for me upon other matters to do with other business interests I have. I've discussed this case with them but I have not explicitly instructed them to act (as they never received anything from the C) - I plan on representing myself in court. Should I still include these? I wonder whether the judge will then ask why I'm representing myself in court if I had instructed solicitors? I planned to be honest and say as the C has never contacted them I felt it was best undertook by myself?

    26: I can, and I will!! Thanks.

    In terms of SA:

    My first section - am I right in assuming that I add the first section to a cover letter to be returned to court along with my DQ? Requesting the court dismiss the claim?

    As you've suggested I've added in a section titled "Claimant has failed to abide byPractice Direction - Pre-Action Conduct" and taken several examples from your helpful post - unfortunately a few don't apply to me so I've removed them, and I've asked the court to dimiss the claim rather than stay it - "the Claimant is a serial litigant and has taken many motorists to the courts for similar offences, so should no better" type of thing!
    • Loadsofchildren123
    • By Loadsofchildren123 18th Sep 17, 2:01 PM
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    Loadsofchildren123
    para 21-23: My concern here - my solicitors act for me upon other matters to do with other business interests I have. I've discussed this case with them but I have not explicitly instructed them to act (as they never received anything from the C) - I plan on representing myself in court. Should I still include these? I wonder whether the judge will then ask why I'm representing myself in court if I had instructed solicitors? I planned to be honest and say as the C has never contacted them I felt it was best undertook by myself?
    The fact is you told them to communicate with your solicitors so they were bound by that.
    You can at any stage choose to act in person, so you won't be expected to provide any explanation about why you are later choosing to represent yourself (and you'd probably be expected to do so because in small claims you can't recover legal costs, unless there is unreasonable behaviour under 27.14(2)(g).
    • Loadsofchildren123
    • By Loadsofchildren123 18th Sep 17, 2:02 PM
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    Loadsofchildren123
    I've removed them, and I've asked the court to dimiss the claim rather than stay it


    You can just ask for dismissal. But I always find it's better to ask for a stay in the alternative. Even if you don't ask for it, the court has the power to order it. So you can leave it out if you prefer.
    • Jhpt
    • By Jhpt 18th Sep 17, 3:08 PM
    • 38 Posts
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    Jhpt
    Excellent - all understood and I'll do as you suggest here!

    Just to double check - that first paragraph from SA - am I right to incorporate this into a "cover letter" to send to the courts along with my DQ? Or should I have this seperate document for another time?

    In my opinion they have behaved unreasonably;
    1) Have not communicated via Solicitors
    2) Aggresive/intimidation used t/o communication
    3) referring to Supreme court judgement they know full well is not applicable to residential parking
    4) They've seen my defence - they know I have a tenancy agreement which extends to unfettered right to parking - if in court they don't counter this (even though the SAME solicitors have fallen foul of this and are referenced in case law) then surely they have taken a case to court with no realistic right to win..

    Do you feel they've been unreasonable? Just setting my schedule of costs here.
    • The Deep
    • By The Deep 18th Sep 17, 3:33 PM
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    The Deep
    I think that any PPC who takes a resident to court when they have been told that that resident has a leasehold right to park there is behaving unreasonably.

    They must know by now that their made up T&Cs are most likely to be overruled by the owner's lease or the tenant's AST, and that their interference is a direct threat to his/her rights to peaceful enjoyment, (and possibly an offence}, under The Landlords and Tenants Acts.

    Also, if they are claiming absurd sums for "enforcement action" they have failed to acquaint themselves with the rules regarding governing allowable amounts.

    There seems to be little guidance on what is an is not unreasonable behaviour, but if I interfered similarly in my tenant's quiet enjotment of their property I might well be for the high jump.

    Read these

    http://insurance.dwf.co.uk/news-updates/2014/12/what-amounts-to-unreasonable-behaviour-in-the-small-claims-track/

    https://keoghs.co.uk/keoghs-insight/aware/costs-orders-for-unreasonable-behaviour-in-small-claims

    https://www.lawgazette.co.uk/legal-updates/civil-procedure-unreasonable-conduct-and-costs/5061032.article
    Last edited by The Deep; 18-09-2017 at 3:41 PM.
    You never know how far you can go until you go too far.
    • Loadsofchildren123
    • By Loadsofchildren123 18th Sep 17, 3:48 PM
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    Loadsofchildren123
    Excellent - all understood and I'll do as you suggest here!

    Just to double check - that first paragraph from SA - am I right to incorporate this into a "cover letter" to send to the courts along with my DQ? Or should I have this seperate document for another time?

    In my opinion they have behaved unreasonably;
    1) Have not communicated via Solicitors
    2) Aggresive/intimidation used t/o communication
    3) referring to Supreme court judgement they know full well is not applicable to residential parking
    4) They've seen my defence - they know I have a tenancy agreement which extends to unfettered right to parking - if in court they don't counter this (even though the SAME solicitors have fallen foul of this and are referenced in case law) then surely they have taken a case to court with no realistic right to win..

    Do you feel they've been unreasonable? Just setting my schedule of costs here.
    Originally posted by Jhpt


    1 isn't a reason to dismiss the claim, so I'd leave it out of the letter but leave it in the document. And complain to the SRA. This is a fairly big no-no to communicate direct with a person who says they have a solicitor. Having said that, they'll say their client didn't tell them and nothing will happen (probably).


    The real reason you are applying for a strike out is the fact that their claim is incomprehensible (rule 16 and PD 16 and 7) and they've ignored the PD.


    4 is a reason to apply for summary judgment, which is a bit different - rule 24 I think that comes under. You have to show they don't have an arguable case. You may not win that because they'll say that your tenancy post-dates their contract (does it? were they already operating there when you moved in?) and that the landlord's lease allows the freeholder to introduce new "regulations" and these must include parking permits/regulations. However, even if that argument wins, the lease will not permit the freeholder to impose new contractual obligations with a 3rd party, nor any separate charges (the lease will only provide for ground rent and service charges). But there we have it - this is an arguable point. I don't think the court will summarily adjudge this on that basis, on the papers - I think you'd have to make a formal application and for there to be a hearing. In a small claim it isn't worth it.


    So I'd just go for strikeout on the basis that their particulars are incomprehensible and make out no cause of action
    • Jhpt
    • By Jhpt 19th Sep 17, 10:12 AM
    • 38 Posts
    • 14 Thanks
    Jhpt
    The Deep - quite agree! Thanks for those links - interesting reads and hopefully means I can phrase my arguement re: unreasonable behaviour well.

    LOC123 - Thanks (yet again!) i've completed the letter, attached it to my DQ and I'm sending it off later today/ tomorrow.
    Unfortunately yes they were operating there prior to me moving in.
    Sounds like all good to go!
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