New parking regulations at home...

Loadsofchildren123

Reply to Gladstones, acknowledge their letter and point out that they still failed to provide any of the information I requested to fully understand their clients position and cause of action. Maybe with special mention of the requirement of the contract between land owner and their client, which doesn't seem to exist?
Yes. And tell them that the new Protocol applies to CLAIMS issued after 1 October (not LBCs) so it does apply. But even if they are right, paragraphs 3, 6(a) and 6(c) of the Practice Direction specifically provide that they must explain their claim in sufficient detail AND provide core documents, so that you understand and can reply substantively to it, and so that both parties can comply with paras 8-12 (exploring settlement and/or narrowing the issues). So they are obliged under both the new Protocol and the old PD (whichever one applies) to provide the info you have requested.

In addition to the above, reply to their 2nd letter, with my own LBC regards to trespass and DPA breach; providing evidence to support my position: No requirement for permit in my lease, lease allows unfettered rights to use the parking space, no contract between myself and PPC, no contract between PPC and landowner?
Yes, and make sure you comply with the PD by providing copies of your core documents.

Write to my landlord (E&M) again also, copying the latest letters to them and advising that their lack of reply constitutes a willing breach of my lease for which they may have liability?
Yes. Make it a LBC - mark it as a LBC at the top and make reference to the obligations in the PD (specifically paras 3 and 6) and the costs warning for non-compliance in para 16. Give a 14 day deadline for a response.

Daniel_san

Amazing. Thank you LoC, much appreciated

Daniel_san

Well, looks like we're going to court....

https://shared-assets.adobe.com/link/68b6ae32-fec2-4abd-4648-84cb9e01f64c


Important dates:
Date of service 9th April
Must file AOS by 23rd April
Must file defence & counterclaim by 7th May.

Above all else though, an apology. A lot of people have helped me here and I feel I have let you down. I fully intended to follow up on the last advice and due to some events/circumstances in life, I needed to put attention towards something else, and so adopted the approach that if they weren't hassling me right now, I'll leave things be while I deal with the other things that were of an urgent nature. So that said, I fully understand if some or all don't wish to spend any further time assisting me on this going forward.

I'm going to find a template defence with which to base mine upon, and intend to file it along with a counterclaim as I've received an additional 4 PCN's recently for parking in my own space. I'm expecting the "papers only" form to come and am willing to go to a hearing to resolve this, hopefully once and for all (although I suspect even a WIN in court won't be enough to convince the MA that this scheme cannot continue!).

Daniel_san

Been working on this for a few hours.....still needs a little work....including numbering when I'm finished with it of course, so ignore that. Any input massively appreciated.

Statement of Defence

In the County Court Business Centre
Claim Number: ******

Between:

PARKING CONTROL MANAGEMENT (UK) LIMITED v ********

DEFENCE


Preliminary

1. The Particulars of Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.

1.1 The Claimant!!!8217;s solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking for a true cause of action. HMCS have identified thousands of similar poorly pleaded claims.

THOUGHTS ON ADDITIONAL PARA PLEASE? It is a fact that on 2nd February 2018, during the debate of Sir Greg Knight MP!!!8217;s new Parking Bill in Parliament, Stephen Doughty MP did make particular mention of the Claimant!!!8217;s solicitors; !!!8220;This week, I raised concerns about such firms [with Gladstones having been named] with the Solicitors Regulation Authority, and I am hopeful that it will take a close look at the matter and consider whether the firms are complying with the regulatory environment for solicitors, and with best practice.

1.2 The Defendant believes the term for such conduct is !!!8216;robo-claims!!!8217; which 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.

2. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct.

2.1 The Defendant further notes the Claimant's failure to engage in pre-action correspondence in accordance with the pre-action protocol and with the express aim of avoiding contested litigation.

2.2 The Defendant undertook to engage in correspondence with the Claimant!!!8217;s solicitors in late 2017, twice writing to them to request further information and material evidence that would support the Claimant!!!8217;s claim, and in the hope of resolving the dispute. On both occasions of asking, the Claimant!!!8217;s solicitors failed to provide any of the requested information or documents.

2.3 The Defendant has discovered that the Claimant's Trade Body, the Independent Parking Community (IPC), is an organisation operated by the same Directors as were recorded at Gladstones Solicitors, at least until some time in 2017. They - John Davies and Will Hurley - are also responsible for the IAS.

2.5 Now the Defendant notes that Gladstones are employed in bringing this claim, demonstrating a clear conflict of interests.



Background

3) It is admitted that at all material times the Defendant was the owner of the vehicle in question.

4) It is denied that any "parking charges or indemnity costs" (whatever they might be) as stated on the Particulars of claim are owed and any debt is denied in its entirety.

5) It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking 'parking management'. The Claimant has provided no proof of any such entitlement.

5.1) The Claimant is a member of the Independent Parking Community (IPC), and as such, are governed by their ACCREDITED OPERATOR CODE OF PRACTICE; PART B - Establishing Yourself as the !!!8216;Creditor!!!8217; states clearly:
!!!8220;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 !!!8216;Creditor!!!8217; 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!!!8217;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!!!8221;.

5.2) The Claimant!!!8217;s solicitor, even after Twice being requested to do so, has failed to provide a copy of any such contract between the Claimant, and the land owner, who is Theowal Limited of 302 Regents Park Road, London N3 2JX.

6) It is admitted that the Defendant had parked the vehicle prior to the material dates, and that the vehicle remained in place during the period.In fact the vehicle had been parked in the same place on a regular basis since 2007, whilst residing at the private residential property. It is denied that there was any relevant obligation upon the Defendant that can have been breached. The Defendant did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.

7) The Defendant did not receive any written notice from the Claimant, nor any other party, as to the introduction of new parking terms. Indeed any such notice would have needed to come solely from the land owner.

Authority to Park and Primacy of Contract

THIS (7) IS NOT QUITE CORRECT FOR ME AND NEEDS ME TO WORK UPON IT
7) It is denied that the Defendant was in breach of any parking conditions or was not permitted to park, in circumstances where the Lease/Tenancy Agreement does permit the parking of vehicle(s) on this land. The Defendant avers that there was at the very least, a prior and overriding grant of a licence to park, and indeed believes there was an absolute entitlement to park, deriving from the terms of the lease, which cannot be fettered by any alleged parking terms offered by the Claimant. The lease terms provide residents with the right to park a vehicle on this private land and set out the only terms that apply.

8) It is not admitted that the Claimant has contractual or other lawful authority to make contracts with residents at this location, and/or to bring proceedings against the Defendant. The Claimant is put to strict proof. Further, and in the alternative, the Defendant avers that the Claimant requires the permission the owner of the relevant land - not merely another contractor or site agent not in possession - in order to commence proceedings.

9) The Defendant avers that the Claimant cannot:

(i) override the existing rights enjoyed by residents and their visitors, or
(ii) offer parking on more onerous terms than were already granted and agreed in the lease/tenancy Agreement, or
(iii) decide to remove parking bays from use by residents and/or start charging for them.
(iv) enforce or attempt to enforce any term of the leasehold contract between the land owner and the Defendant, as stated in Clause 9 of the lease !!!8220;THIRD PARTIES!!!8221;, which says:
!!!8220;9: A person (a !!!8220;THIRD PARTY!!!8221;) who is not either a party to this lease or a successor in title is a party to this lease has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this lease notwithstanding that any such term may purport to confer or may be construed as conferring a benefit on such Third Party PROVIDING THAT this does not affect any right or remedy of such Third Party which exists or is available apart from that act!!!8221;. ATTACH EXTRACT COPY OF LEASE TO SUPPORT THIS

9.1 Parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial.

11) This Claimant Begun a predatory parking regime targeting residents and has unilaterally attempted to foist upon residents a change of rules, in complete disregard to any existing rights and grants; the Claimant choosing to ignore the leasehold contract already in place; and in particular Clause 9 of the lease !!!8220;THIRD PARTIES!!!8221;, which gives the Claimant no rights of enforcement on the land know as ****** . No variation of the lease has taken place and any such variation would be solely a matter between the landowner and the resident, in any case.

13) The Defendant, and many other residents of *********, have parked vehicles in this area for 10 years, without complaint being known to the Defendant at any such time, prior to the Claimant attempting to make a charge for parking. Additionally, the Defendant has made the land owner fully aware of his parking in this area and the land owner in reply has made no request, nor order or indeed stated any objection in any way.

14) The Defendant denies any separate contract with the Claimant in respect of parking arrangements. The Claimant has offered nothing by way of consideration, given the primacy of contract enjoyed by residents who already have rights of way and have been parking in that area regularly for around 10 years. Any alleged breach of any term of a lease contract, if such a term exists, would be a matter solely between the land owner and the lessee.

15) It is denied that there was any breach of contract or of any relevant parking terms. The Claimant's claim is wholly misconceived.


In the Alternative: Failure to set out clear parking terms - ParkingEye Ltd v Beavis (2015) UKSC 67 distinguished

Is (16) relevant at this stage?
16) The Defendant relies upon ParkingEye Ltd v Beavis, insofar as the Court were only willing to exempt a parking charge from falling foul of the penalty rule which would normally render it unrecoverable, in the context of a site of commercial value, it being a 'complex' case where the driver was a visitor with no prior licence or rights, and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.

16.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate.
16.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;
16.1.2. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee!!!8217;s ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and
16.1.3. The signage contained particularly onerous terms not sufficiently drawn to the attention of existing residents, as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3

16.2. The Defendant avers that the residential site that is the subject of these proceedings is not a site where there is a commercial value to be protected. In fact, the existing rights of residents should have been protected.

16.3 The charge is, accordingly, unconscionable in this context, with ParkingEye v Beavis distinguished.


Wholly unreasonable and vexatious claim

17) It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, the Defendant is keeping careful note of all wasted time/costs in dealing with this matter and should the case continue to trial (or in the event of the Claimant filing a Notice of Discontinuance) the Defendant will seek further costs, pursuant to Civil Procedure Rule 27.14(2)(g).

18) The Defendant respectfully suggests that parking companies using the small claims track as a form of aggressive, automated monetary demands against residents, alleging 'debts' for parking at their own homes is not something the Courts should be seen to support.

19) The Court is invited to take Judicial Notice of the fact that the Claimant's solicitors, Gladstones, is engaged in a course of conduct which involves issuing tens of thousands of totally meritless Claims, which are routinely dismissed by District Judges sitting in this Court, and other County Court hearing centres in all parts of England & Wales. The Court is therefore invited to refer the matter to the Designated Civil Judge, for consideration of the issuing an Extended Civil Restraint Order against the Claimant, pursuant to CPR Practice Direction 3.1(3).

20) The Defendant denies the claim in its entirety, voiding any liability to the Claimant for all amounts due to the aforementioned reasons. The Defendant asks that the court gives consideration to exercise its discretion to order the case to be struck out under CPR Rule 3.4, for want of a detailed cause of action and/or for the claim having no realistic prospects of success.

21) If the court is not minded to make such an order, then when Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because it is expected that the Claimant will use its witness statement to provide the sort of detail which should have been disclosed much earlier, and the Defendant should have the opportunity to consider it, prior to serving evidence and witness statements in support of this defence.


Counterclaim

1) The Defendant wishes to make a counter claim in the amount of £960, to include the court filing fee of £60

The Claimant has seen fit to attempt to charge the Defendant the sum of £100 per PCN for parking in the Defendants own allocated parking space on Seven occasions. The Defendant hereby claims an amount of the same, £100 for each of the Seven counts, in damages for the tort of trespass and tortious interference of the Defendants leaseholder rights, occasioned by the attempt to restrict the Defendants rightful use of the designated area. The Seven Parking Charge Notices (PCN!!!8217;s) are dated 07/04/2017, 16/06/2017, 17/06/2017, 19/02/2018, 24/02/2018, 28/02/2018, and 03/03/2018. INSERT EXTRACT COPY OF PARKING PLANS, SHOWING MY SPACE, OUTLINED RED, INDICATING IT IS MY PROPERTY.

2) The Defendant also claims an amount of £200 for breach of the Data Protection Act, as the Claimant has obtained, stored and processed the Defendants data without reasonable cause.

3.1) The Defendant respectfully draws the attention of the court to the case of Saeed v Plustrade Ltd [2001] EWCA Civ 2011 (20th December, 2001) heard at the Royal Courts of Justice by LORD JUSTICE AULD, LORD JUSTICE ROBERT WALKER and SIR CHRISTOPHER SLADE where they found that a landlord cannot take away something given within a lease, specifically a derogation of parking rights already afforded within a lease; and also to the case of Lireza Ittihadieh v 5-11 Ceyne Gardens RTM Company Ltd & others (Case No: A2/2015/1599, 1520 &1524) which makes it clear that once data has been accessed for personal use then you become the Data Controller, something which the DVLA KADOE Contract also makes clear.

3.2) The Defendant has the right to use of the parking facilities without any intervention from the Claimant. A breach of the Data Protection Act has occurred as the Claimant had no reasonable cause to apply for and use the Defendants personal details from the DVLA. The Defendant has found this matter stressful and degrading. It impinges on the Defendants rights as a resident, and has caused some considerable anxiety and distress, as well as lost time to correspond and defend the Claimants continued harrasment.

3) The Seven above PCN!!!8217;s were issued to my vehicle, registration number ******, whilst parked in my parking space, which I have unfettered rights of use, in accordance with my lease contract. This is the only contract that I have been offered for consideration and acceptance; and the only contract which serves to outline parking regulations at the site known as *********. In particular, the lease has no requirement for the Defendant, nor any other resident/leaseholder, to display a permit to park. INSERT EXTRACT COPY OF !!!8220;PARKING!!!8221; REGULATIONS FROM CONTRACT.

4) The Defendant has a long standing agreement with the Managing Agents of **********, which states that no permit is required to park. As such, no permit was supplied to the Defendant and no written notice was provided to inform the Defendant of any parking restrictions or charges that would become due. Again, the Defendant relies on Primacy of Contract, in that the lease does not require any permit to be displayed for parking in the private, gated car park area of ********.




I confirm that the above facts and statements are true to the best of my knowledge and recollection.


Signed

Date

Coupon-mad

2.3 The Defendant has discovered that the Claimant's Trade Body, the Independent Parking Community (IPC), is an organisation operated by the same Directors as were recorded at Gladstones Solicitors, at least until some time in 2017. They - John Davies and Will Hurley - are also responsible for the IAS.

That's old, although I see you qualified it ''at least until some time in 2017''.

The IPC are now called the International Parking Community, and the Directors switched around:

http://parking-prankster.blogspot.co.uk/2017/06/all-change-at-gladstones-and-ipc.html

You need to remove your VRN from the above post!

And have a look at Henry Hippo's thread on pepipoo as he made a successful counter-claim that I helped write. His counter-claim wording is - I think - shown in both his pepipoo threads (one already won, one awaiting a hearing) and you need to go into the DPA principles breached, mention Vidal Hall, and Halliday, and maybe Blamires (personally, I like that one!) to explain why you should be compensated for pure distress alone for the DPA breaches.

And seize the chance to mention the evidence of distress and upset (go into a bit of detail) now, and definitely embellish it, truthfully but in depth, later in your WS.

Evidencing and really going to town on the distress and sleepless nights, effect on you and your family/partner and (perhaps) on your work, your health (headaches, insomnia) and your peace of mind, is what can win a counter claim about DPA breach.

Daniel_san

Thank you CM. I would have liked to have done more earlier today/yesterday now, but was getting square eyes!

I changed a couple of "Committee" to community, after some copy/pasting, but missed that one. I'll be sure to search any others out too before submitting it.

oooh thank you re the VRN - fixed.

I'll find Henry's thread for sure and use it, as well as looking up Vidal, Halliday and Blamires for inspiration.

I'll be sure to detail my stress.

Thank you again, that's great!

Coupon-mad

I changed a couple of "Committee" to community,

And 'international'

Daniel_san

I still need to spell check it, but would love some feedback before I print and post please. Thank you in advance for your time.

Please remember: My defence relates to my parking in the residents car park, in the communal area, not in my own space. My counterclaim relates to them "ticketing" me in my own space.

Statement of Defence

In the County Court Business Centre
Claim Number: ******

Between:

PARKING CONTROL MANAGEMENT (UK) LIMITED v **** ****

DEFENCE


Preliminary

1. The Particulars of Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.

1.1 The Claimant!!!8217;s solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking for a true cause of action. HMCS have identified thousands of similar poorly pleaded claims.

1.2 It is a fact that on 2nd February 2018, during the debate of Sir Greg Knight MP!!!8217;s new Parking Bill in Parliament, Stephen Doughty MP did make particular mention of the Claimant!!!8217;s solicitors; !!!8220;This week, I raised concerns about such firms [with Gladstones having been named] with the Solicitors Regulation Authority, and I am hopeful that it will take a close look at the matter and consider whether the firms are complying with the regulatory environment for solicitors, and with best practice.

1.3 The Defendant believes the term for such conduct is !!!8216;robo-claims!!!8217; which 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.

2. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct.

2.1 The Defendant further notes the Claimant's failure to engage in pre-action correspondence in accordance with the pre-action protocol and with the express aim of avoiding contested litigation.

2.2 The Defendant undertook to engage in correspondence with the Claimant!!!8217;s solicitors in late 2017, twice writing to them to request further information and material evidence that would support the Claimant!!!8217;s claim, and in the hope of resolving the dispute. On both occasions of asking, the Claimant!!!8217;s solicitors failed to provide any of the requested information or documents.

2.3 The Defendant has discovered that the Claimant's Trade Body, the Independent Parking Community (IPC), is an organisation operated by the same Directors as were recorded at Gladstones Solicitors, at least until some time in 2017. They - John Davies and Will Hurley - are also responsible for the IAS.





2.4 Now the Defendant notes that Gladstones are employed in bringing this claim, demonstrating a clear conflict of interests.



Background

3. It is admitted that at all material times the Defendant was the owner of the vehicle in question.

4. It is denied that any "parking charges or indemnity costs" (whatever they might be) as stated on the Particulars of claim are owed and any debt is denied in its entirety.

5. It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking 'parking management'. The Claimant has provided no proof of any such entitlement.

5.1. The Claimant is a member of the International Parking Community (IPC), and as such, are governed by their ACCREDITED OPERATOR CODE OF PRACTICE; PART B - Establishing Yourself as the !!!8216;Creditor!!!8217; states clearly:
!!!8220;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 !!!8216;Creditor!!!8217; 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!!!8217;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!!!8221;.
5.2. The Claimant!!!8217;s solicitor, even after Twice being requested to do so, has failed to provide a copy of any such contract between the Claimant, and the land owner, who is Theowal Limited of 302 Regents Park Road, London N3 2JX.

6. It is admitted that the Defendant had parked the vehicle prior to the material dates, and that the vehicle remained in place during the period. In fact, the vehicle had been parked in the same place on a regular basis since 2007, during which time the Defendant has been a leaseholder and resident at the private residential property. It is denied that there was any relevant obligation upon the Defendant that can have been breached. The Defendant did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.

7. The Defendant did not receive any written notice from the Claimant, nor any other party, as to the proposed introduction of new parking terms. The Defendant later became aware, from another resident, of the existence of a letter which provided information of the enforcement date, commencing on 22nd March 2017. The Defendant asserts that any such notice would be a derogation of grant, would require a change to the lease terms and would have needed to come solely from the land owner.







Authority to Park and Primacy of Contract

8. It is denied that the Defendant was in breach of any parking conditions or was not permitted to park, in circumstances where the Lease Agreement outlines the conditions of the parking of vehicle(s) on this land. The Defendant avers that there was at the very least, a prior and overriding document which outlines all parking conditions, deriving from the terms of the lease, which cannot be fettered by any alleged parking terms offered by the Claimant. The lease terms provide residents with the right to park a vehicle on this private land and set out the only terms that apply.

9. It is not admitted that the Claimant has contractual or other lawful authority to make contracts with residents at this location, and/or to bring proceedings against the Defendant. The Claimant is put to strict proof. Further, and in the alternative, the Defendant avers that the Claimant requires the permission of the owner of the relevant land - not merely another contractor or site agent not in possession - in order to commence proceedings.

9.1. The Defendant has, on several occasions, spoken with representatives of the land owner, Theowal Limited; who have at all times stated that the land owner is not party to any such contract with the Claimant.

10. The Defendant avers that the Claimant cannot:

(i) override the existing rights enjoyed by residents and their visitors, or
(ii) offer parking on more onerous terms than were already granted and agreed in the lease/tenancy Agreement, or
(iii) decide to remove parking bays from use by residents and/or start charging for them.
(iv) enforce or attempt to enforce any term of the leasehold contract between the land owner and the Defendant, as stated in Clause 9 of the lease !!!8220;THIRD PARTIES!!!8221;, which says:
!!!8220;9: A person (a !!!8220;THIRD PARTY!!!8221;) who is not either a party to this lease or a successor in title is a party to this lease has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this lease notwithstanding that any such term may purport to confer or may be construed as conferring a benefit on such Third Party PROVIDING THAT this does not affect any right or remedy of such Third Party which exists or is available apart from that act!!!8221;. ATTACH EXTRACT COPY OF LEASE TO SUPPORT THIS

10.1 Parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial.

11. This Claimant Begun a predatory parking regime targeting residents and has unilaterally attempted to foist upon residents a change of rules, in complete disregard to any existing rights and grants; the Claimant choosing to ignore the leasehold contract already in place; and in particular Clause 9 of the lease !!!8220;THIRD PARTIES!!!8221;, which gives the Claimant no rights of enforcement on the land know as **** **** . No variation of the lease has taken place and any such variation would be solely a matter between the landowner, Theowal Limited, and the Defendant, in any case.






12. The Defendant, and many other residents of **** ****, have parked vehicles in this area for 10 years, without complaint from other residents or the land owner themselves, being known to the Defendant at any such time, prior to the Claimant attempting to make a charge for parking. Additionally, the Defendant has made the land owner fully aware of his vehicle being parked in this area and the land owner in reply has made no request, nor order or indeed stated any objection in any way.

13. The Defendant denies any separate contract with the Claimant in respect of parking arrangements. The Claimant has offered nothing by way of consideration, given the primacy of contract enjoyed by residents who already have rights of way and have been parking in that area regularly for around 10 years. Any alleged breach of any term of a lease contract, if such a term exists, would be a matter solely between the land owner and the lessee.

14. It is denied that there was any breach of contract or of any relevant parking terms. The Claimant's claim is wholly misconceived.


In the Alternative: Failure to set out clear parking terms - ParkingEye Ltd v Beavis (2015) UKSC 67 distinguished

15. The Defendant relies upon ParkingEye Ltd v Beavis, insofar as the Court were only willing to exempt a parking charge from falling foul of the penalty rule which would normally render it unrecoverable, in the context of a site of commercial value, it being a 'complex' case where the driver was a visitor with no prior licence or rights, and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.

15.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate.
15.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;
15.1.2. The signage did not comply with the requirements of the Code of Practice of the International Parking Community ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and
15.1.3. The signage contained particularly onerous terms not sufficiently drawn to the attention of existing residents, as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3

15.2. The Defendant avers that the residential site that is the subject of these proceedings is not a site where there is a commercial value to be protected. In fact, the existing rights of residents should have been protected.

15.3 The charge is, accordingly, unconscionable in this context, with ParkingEye v Beavis distinguished.


Wholly unreasonable and vexatious claim

16. It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, the Defendant is keeping careful note of all wasted time/costs in dealing with this matter and should the case continue to trial (or in the event of the Claimant filing a Notice of Discontinuance) the Defendant will seek further costs, pursuant to Civil Procedure Rule 27.14(2)(g).

17. The Defendant respectfully suggests that parking companies using the small claims track as a form of aggressive, automated monetary demands against residents, alleging 'debts' for parking at their own homes is not something the Courts should be seen to support.

18. The Court is invited to take Judicial Notice of the fact that the Claimant's solicitors, Gladstones, is engaged in a course of conduct which involves issuing tens of thousands of totally meritless Claims, which are routinely dismissed by District Judges sitting in this Court, and other County Court hearing centres in all parts of England & Wales. The Court is therefore invited to refer the matter to the Designated Civil Judge, for consideration of the issuing an Extended Civil Restraint Order against the Claimant, pursuant to CPR Practice Direction 3.1(3).

19. The Defendant denies the claim in its entirety, voiding any liability to the Claimant for all amounts due to the aforementioned reasons. The Defendant asks that the court gives consideration to exercise its discretion to order the case to be struck out under CPR Rule 3.4, for want of a detailed cause of action and/or for the claim having no realistic prospects of success.

20. If the court is not minded to make such an order, then when Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because it is expected that the Claimant will use its witness statement to provide the sort of detail which should have been disclosed much earlier, and the Defendant should have the opportunity to consider it, prior to serving evidence and witness statements in support of this defence.

Daniel_san

Counterclaim

21. The Defendant wishes to make a counter claim in the amount of £1450 plus the court filing fee of ££££

22. The Claimant has seen fit to attempt to charge the Defendant the sum of £100 for parking in the Defendants own allocated parking space, which is the Defendants private property with exclusive use of, on Seven occasions. The Defendant hereby claims an amount of the same, £100 for each of the Seven counts, in damages for the tort of trespass and tortious interference of the Defendants leaseholder rights, occasioned by the attempt to restrict the Defendants rightful use of the designated area. The Seven Parking Charge Notices (PCN’s) are dated 07/04/2017, 16/06/2017, 17/06/2017, 19/02/2018, 24/02/2018, 28/02/2018, and 03/03/2018. INSERT EXTRACT COPY OF PARKING PLANS, SHOWING MY SPACE, OUTLINED RED, INDICATING IT IS MY PROPERTY.

23. The Seven above Parking Charge Notices (PCN’s) were issued to my vehicles, registration numbers **** ****, and **** ****, whilst parked in my private parking space, which I have unfettered rights of use, in accordance with my lease contract. This is the only contract that I have been offered for consideration and acceptance; and the only contract which serves to outline parking regulations at the site known as **** ****, **** ****. In particular, the lease has no requirement for the Defendant, nor any other resident/leaseholder, to display a permit to park. Additionally, the private parking area is behind an electronically operated security gate, opened only by a “keyfob” which is only available to genuine residents of **** ****. There is no offer to park to members of the public, and so only those persons with express permission to park there, have access to the parking area. There is no need for the Claimant to be operating on the site.
INSERT EXTRACT COPY OF “PARKING” REGULATIONS FROM CONTRACT.

24. The Defendant has a long standing agreement with the Managing Agents of **** ****, which states that no permit is required to park. As such, no permit was supplied to the Defendant and no written notice was provided to inform the Defendant of any parking restrictions or charges that would become due. It is the Defendants firm belief that the failure to provide this material information was not an error and was in fact purposely not provided as the Claimant is fully aware of such an exemption and their terms do not apply. The Defendant again relies on Primacy of Contract, in that the lease does not require any permit to be displayed for parking in the private, secure, gated parking area of the residential site known as **** ****. The Claimant has full knowledge of this agreement, and has proceeded to issue Penalty Charge Notices and engage in a predatory practice of threatening the Claimant for payment which is not due.

25. The Defendant also claims an amount of £750 for breach of the Data Protection Act, as the Claimant has obtained, stored and processed the Defendants data without reasonable cause.

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

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

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

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

https://ico.org.uk/media/about-the-ico/cons...onsultation.pdf

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

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

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

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



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

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

None of the above apply.


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


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


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


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


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

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

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

37. The Defendant respectfully draws the attention of the court to the case of Saeed v Plustrade Ltd [2001] EWCA Civ 2011 (20th December, 2001) heard at the Royal Courts of Justice by LORD JUSTICE AULD, LORD JUSTICE ROBERT WALKER and SIR CHRISTOPHER SLADE where they found that a landlord cannot take away something given within a lease, specifically a derogation of parking rights already afforded within a lease; to PACE v Mr (N Redacted), case C6GF14F0 in Croydon county court where the case was heard by District Judge Coonan. In summing up he stated " I have before me a tenancy agreement which gives Mr [N. redacted] the right to park on the estate and it does not say “on condition that you display a permit”. It does not say that, so he has that right. What Pace Recovery is seeking to do is, unilaterally outside the contract, restrict that right to only when a permit is displayed. Pace Recovery cannot do that."; and also to the case of Lireza Ittihadieh v 5-11 Ceyne Gardens RTM Company Ltd & others (Case No: A2/2015/1599, 1520 &1524) which makes it clear that once data has been accessed for personal use then you become the Data Controller, something which the DVLA KADOE Contract also makes clear.

38. The Defendant has the right to use of the parking facilities without any intervention from the Claimant. A breach of the Data Protection Act has occurred as the Claimant had no reasonable cause to apply for and use the Defendants personal details from the DVLA. The Defendant has found this matter stressful and degrading, resulting in significant loss of sleep, a detrimental impact to health and to both personal and professional productivity. It impinges on the Defendants rights as a resident, and has caused some considerable anxiety and distress, as well as lost time to correspond and defend the Claimants continued harrasment.

THE COUNTER-CLAIM:

39.1. Damages for Trespass and tortious interference of my lease contract in the amount of £700

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

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




I confirm that the above facts and statements are true to the best of my knowledge and recollection.


Signed

Date

Fruitcake

You need to tidy up the !!!8221 rubbish that keeps infecting many posts at the moment.

Have you explained what KADOE stands for? I can't see the explanation in the counter claim.

The same applies to the IAS.