Set aside CCJ sent to old address for own space parking

dan0116

Hi All,

My set aside hearing date is set for the 10th Janaury now. I've pulled together the below defence which I intend to file prior to the hearing, having already filed my Draft Order and Witness Statement. I have also filed some additional information to be appended to my witness statement pertaining to my address details and to support the set aside.

In summary the below relies on:
- primacy of contract relating to my landlord's head lease which contains no parking restrictions
- primacy of contract relating to my short hold tenancy agreement with my landlord which also contains no parking restriction
- no proof that I was the driver


If anyone could comment on the below defence and also comment on whether it is better filed in advance or just brought with me on the day of the set aside hearing that would be very much appreciated.

Also if i wish to bring examples of other cases where these defences have been successful, must I reference these directly as exhibits in my defence?

DEFENCE

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The Particulars of Claim refer to 'Parking Charge(s)' incurred. However, they do not state the basis of any purported liability for these charges, in that they do not state what the terms of parking were, or in what way they are alleged to have been breached. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5.

3. The Particulars refer to the material location as ‘xxxx'. The Defendant’s landlord, [xx], between [xx/xx/xxxx] to [xx/xx/xxxx], held legal title under the terms of a lease, to Apartment [x] (Title number [x] attached at Exhibit A – page two) and Car parking space [x] and [x], (Title number [x] attached at Exhibit B – page two) at that location. At some point, the managing agents contracted with the Claimant company to enforce parking conditions at the estate.

4. The Defendant’ landlord had authorised the Defendant’s vehicle to be parked in these parking spaces through the Assured Shorthold Tenancy Agreement between [xx] and the Defendant (attached at page [x] of Exhibit C). In respect of cars at the property paragraph 3.75 of Exhibit C notes that the tenant will agree ‘3.75 Not to service, repair or carry out any other work on cars, motorcycles, vans or other commercial vehicles at the Premises apart from general maintenance from time to time, to a vehicle of which the Tenant is the registered keeper.’ But mentions no parking restrictions.
Also attached is confirmation from letting agents x[] that the Defendant was a tenant at Apartment [x] between [xx/xx/xxxx] to [xx/xx/xxxx] (attached at Exhibit D). Prior permission for the Defendant’s vehicle to be parked in spaces [x] and [x] had therefore been given and the Defendant’s vehicle has never been parked in any area, other than these parking spaces, at the location noted in the Claim.

5. The underground car parking area noted in the Claim contains allocated parking spaces demised to some residents. Entry to the underground parking is by means of a key fob, of a type only issued to residents. Any vehicles parked therein are, therefore, de facto authorised to be there.

6. Under the terms of the Defendant's landlord’s lease (attached at Exhibit E), a number of references are made to conditions of parking motor vehicles.
Para. (4) (a) from the lease states ‘That no part of the Property shall be used for any purposes other than for the parking of one private motor vehicle with a current M.O.T Certificate used by a bona fide resident of [xxxx] ancillary to the use and occupation of the Apartment.’

6.1. There are no terms within the lease requiring lessees or their permitted tenants/guests to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same.

7. The Defendant’s vehicle, at all material times, was parked in accordance with the terms granted by the lease. The erection of the Claimant's signage, and the purported contractual terms conveyed therein, are incapable of binding the Defendant in any way, and their existence does not constitute a legally valid variation of the terms of the lease. Accordingly, the Defendant denies having breached any contractual terms whether express, implied, or by conduct.

8. The Claimant, or Managing Agent, in order to establish a right to impose unilateral terms which vary the terms of the lease, must have such variation approved by at least 75% of the leaseholders, pursuant to s37 of the Landlord & Tenant Act 1987. The Defendant is unaware of any such vote having been passed by the residents.

9. Further and in the alternative, the signs refer to 'No unauthorised parking', and suggest that by parking without authorisation, motorists are contractually agreeing to a parking charge of £90. This is clearly a nonsense, since if there is no authorisation, there is no offer, and therefore no contract.

9.1. The Defendant's vehicle clearly was 'authorised' as per the lease and the Defendant relies on primacy of contract and avers that the Claimant's conduct in aggressive ticketing is in fact a matter of tortious interference, being a private nuisance to residents and their permitted tenants/guests.

9.2. In this case the Claimant has taken over the location and runs a business as if the site were a public car park, offering terms with £90 penalty on the same basis to residents and their permitted guests, as is on offer to the general public and trespassers. However, residents are granted a right to park/rights of way and to peaceful enjoyment, and parking terms under a new and onerous 'permit/licence' cannot be re-offered as a contract by a third party. This interferes with the terms of leases and tenancy agreements, none of which is this parking firm a party to, and neither have they bothered to check for any rights or easements that their regime will interfere with (the Claimant is put to strict proof).

9.3 This causes a substantial and unreasonable interference with the Defendant's land/property, or his/her use or Quiet Enjoyment of that land/property. In particular in respect of Para 5.1 of Exhibit E which states “The Company covenants with the Purchaser:- To allow the Purchaser (subject to compliance with the terms of this Lease) to hold and enjoy the Property throughout the Term without any interruption by the Company or any person lawfully claiming through under or in trust for it.”

10. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 (POFA).

10.1. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:

10.1.1. there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and

10.1.2. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.

10.1.3. It is not admitted that the Claimant has complied with the relevant statutory requirements.

10.2. To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.

11. The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 as a binding precedent on the lower court. However, that only assists the Claimant if the facts of the case are the same, or broadly the same. In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas it is the Defendant's position that no such breach occurred in this case, because there was no valid contract, and also because the 'legitimate interest' in enforcing parking rules for retailers and shoppers in Beavis does not apply to these circumstances. Therefore, this case can be distinguished from Beavis on the facts and circumstances.

12. The Claimant, or their legal representatives, has added an additional sum of £60 to each of the original £90 parking charges, for which no explanation or justification has been provided. Schedule 4 of the Protection Of Freedoms Act, at 4(5), states that the maximum sum which can be recovered is that specified in the Notice to Keeper, which is £90 in this instance. It is submitted that this is an attempt at double recovery by the Claimant, which the Court should not uphold, even in the event that Judgment for Claimant is awarded.

13. For all or any of the reasons stated above, the Court is invited to dismiss the Claim in its entirety, and to award the Defendant such costs as are allowable on the small claims track, pursuant to Civil Procedure Rule 27.14. Given that the claim is based on four alleged contractual parking charges of £90 - already significantly inflated and mostly representing profit, as was found in Beavis - but the amount claimed on the claim form is inexplicably £752, the Defendant avers that this inflation of the considered amount is a gross abuse of process.

14. Given that it appears that this Claimant's conduct provides for no cause of action, and this is intentional and contumelious, the Claimant's claim must fail and the court is invited to strike it out.

14.1. In the alternative, the Court is invited, under the Judge's own discretionary case management powers, to set a preliminary hearing to examine the question of this Claimant's substantial interference with easements, rights and 'primacy of contract' of residents at this site, to put an end to not only this litigation but to send a clear message to the Claimant to cease wasting the court's time by bringing beleaguered residents to court under excuse of a contractual breach that cannot lawfully exist.

15. 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.

I believe that the facts stated in this Defence are true.


………………………………………………………. (Defendant)

……………………… (Date)

Le_Kirk

Unless the instructions from the court say otherwise, it is normally recommended to have a defence "in your back pocket" in case the judge asks at the set-aside hearing.

dan0116

Le_Kirk wrote: »

Unless the instructions from the court say otherwise, it is normally recommended to have a defence "in your back pocket" in case the judge asks at the set-aside hearing.

Thanks Le_Kirk, I'll just bring along the above on the day then. Do you have any comments on the defence itself? Should I be referencing all of the similar own space parking cases as exhibits and bringing copies of those with me? I suppose it can't help which probably answers my own question.

Le_Kirk

Exhibits (evidence) should come after defence ready for the court case to defend the original claim once you win the set-aside.

Coupon-mad

Why not also take along a printout of the CRA 2015 Schedule 2, and DJ Grand's order (Southampton - see CEC16's thread) and DJ Joseph's order (Warwick court - search the forum for that word) and see if the Judge wants to consider summarily striking the claim out without listing any hearing date for the actual claim, given the 'abuse of process' in terms of breaches of the POFA and Consumer Rights Act, in terms of the added FALSE COSTS of £60 being double recovery, which some courts have now decided taint every parking claim.*

What would be great is to get the CCJ set aside then the Judge strikes the entire claim out on the spot and orders UKPC to pay your costs in full. To get your head around how you might achieve that (given the right Judge) read the threads I mentioned...


*except for claims by ParkingEye, as they don't add any fake costs

dan0116

Coupon-mad wrote: »

Why not also take along a printout of the CRA 2015 Schedule 2, and DJ Grand's order (Southampton - see CEC16's thread) and DJ Joseph's order (Warwick court - search the forum for that word) and see if the Judge wants to consider summarily striking the claim out without listing any hearing date for the actual claim, given the 'abuse of process' in terms of breaches of the POFA and Consumer Rights Act, in terms of the added FALSE COSTS of £60 being double recovery, which some courts have now decided taint every parking claim.*

What would be great is to get the CCJ set aside then the Judge strikes the entire claim out on the spot and orders UKPC to pay your costs in full. To get your head around how you might achieve that (given the right Judge) read the threads I mentioned...


*except for claims by ParkingEye, as they don't add any fake costs

Thanks Coupon-mad. I've been reading into these threads and will certainly bring along the POFA, CRA and Beavis case paras 98, 193, 198 and 287 (I assume it's fine to just print these specific paragraphs given the length of the document). I've also read this thread so i think I'm clear on what I need to highlight.

http://forums.pepipoo.com/index.php?showtopic=131517

Re the orders I can only seem to find photographs of them on the forums. Is it fine for me to print out and bring those?

Coupon-mad

Yes it is.

dan0116

Update: I just wanted to thank everyone for their help so far and let everyone know that the judgement has now been set aside.

UKPC sent a subcontracted solicitor who seemed to know very little on the case, having only been instructed that morning. Frustratingly the judge declined to award costs as he deemed that the claim was not incorrectly served due to the address issue. He only set it aside on the grounds that I acted promptly to set aside and I had a reasonable chance of defending the claim based on my witness statement.

I tried to raise the above Abuse of Process arguments to get the judgement summarily dismissed but the judge declined to do this and has said that we'll now move to a defence hearing. I have 14 days to submit my defence, which I'll be updating since my last version for the new Abuse of Process wording and references to the other judgements.

Thanks again for everyone's help.

nosferatu1001

You also need to read up on the stages following that, as well

dan0116

Hi all,

My draft defence is below and includes all of the recommended abuse of process wording as well as the recommended own space defence wording.

If anyone has any comments on it that would be much appreciated

DEFENCE

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.


2. The Particulars of Claim refer to 'Parking Charge(s)' incurred. However, they do not state the basis of any purported liability for these charges, in that they do not state what the terms of parking were, or in what way they are alleged to have been breached. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5.


Authority to Park and Primacy of Contract

3. The Particulars refer to the material location as ‘x'. The Defendant’s landlord, Px, between xx/xx/xxxx to xx/xx/xxxx, held legal title under the terms of a lease, to Apartment x and Car parking space x at that location. At some point, the managing agents contracted with the Claimant company to enforce parking conditions at the estate.


4. The Defendant’s landlord had authorised the Defendant’s vehicle to be parked in these parking spaces through an Assured Shorthold Tenancy Agreement between x and the Defendant. Prior permission for the Defendant’s vehicle to be parked in spaces x had therefore been given and the Defendant’s vehicle has never been parked in any area, other than these parking spaces, at the location noted in the Claim. In respect of cars at the property paragraph 3.75 notes that the tenant will agree ‘3.75 Not to service, repair or carry out any other work on cars, motorcycles, vans or other commercial vehicles at the Premises apart from general maintenance from time to time, to a vehicle of which the Tenant is the registered keeper.’ But mentions no parking restrictions.


5. The underground car parking area noted in the Claim contains allocated parking spaces demised to some residents. Entry to the underground parking is by means of a key fob, of a type only issued to residents. Any vehicles parked therein are, therefore, de facto authorised to be there.


6. Under the terms of the Defendant's landlord’s lease, a number of references are made to conditions of parking motor vehicles.
Para. (4) (a) from the lease states ‘That no part of the Property shall be used for any purposes other than for the parking of one private motor vehicle with a current M.O.T Certificate used by a bona fide resident of Burton Place ancillary to the use and occupation of the Apartment.’


6.1. There are no terms within the lease requiring lessees or their permitted tenants/guests to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same.


7. The Defendant, at all material times, was parked in accordance with the terms granted by the lease. The erection of the Claimant's signage, and the purported contractual terms conveyed therein, are incapable of binding the Defendant in any way, and their existence does not constitute a legally valid variation of the terms of the lease. Accordingly, the Defendant denies having breached any contractual terms whether express, implied, or by conduct.


8. The Claimant, or Managing Agent, in order to establish a right to impose unilateral terms which vary the terms of the lease, must have such variation approved by at least 75% of the leaseholders, pursuant to s37 of the Landlord & Tenant Act 1987. The Defendant is unaware of any such vote having been passed by the residents.


9. Further and in the alternative, the signs refer to 'No unauthorised parking', and suggest that by parking without authorisation, motorists are contractually agreeing to a parking charge of £90. This is clearly a nonsense, since if there is no authorisation, there is no offer, and therefore no contract.


9.1. The Defendant's vehicle clearly was 'authorised' as per the lease and the Defendant relies on primacy of contract and avers that the Claimant's conduct in aggressive ticketing is in fact a matter of tortious interference, being a private nuisance to residents and their permitted tenants/guests.


9.2. In this case the Claimant has taken over the location and runs a business as if the site were a public car park, offering terms with £90 penalty on the same basis to residents and their permitted guests, as is on offer to the general public and trespassers. However, residents are granted a right to park/rights of way and to peaceful enjoyment, and parking terms under a new and onerous 'permit/licence' cannot be re-offered as a contract by a third party. This interferes with the terms of leases and tenancy agreements, none of which is this parking firm a party to, and neither have they bothered to check for any rights or easements that their regime will interfere with (the Claimant is put to strict proof).


No evidence that the defendant was the driver

10. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 (POFA).
10.1. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
10.1.1. there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
10.1.2. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
10.1.3. It is not admitted that the Claimant has complied with the relevant statutory requirements.


10.2. To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.


11. The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 as a binding precedent on the lower court. However, that only assists the Claimant if the facts of the case are the same, or broadly the same. In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas it is the Defendant's position that no such breach occurred in this case, because there was no valid contract, and also because the 'legitimate interest' in enforcing parking rules for retailers and shoppers in Beavis does not apply to these circumstances. Therefore, this case can be distinguished from Beavis on the facts and circumstances.


The purported added 'costs' are disproportionate, a disingenuous double recovery attempt, vague and in breach of both the CPRs, and the Consumer Rights Act 2015 Schedule 2 'terms that may be unfair'


ABUSE OF PROCESS WORDING

......

The Beavis case is against this Claim

.....

The POFA 2012 and the ATA Code of Practice are against this Claim

.....


The Consumer Rights Act 2015 ('the CRA') is against this claim

.....

17.1. The Judge determined that ''it is an abuse of process for the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover.'' further, in issuing his Orders striking out several £160 parking claims without a hearing, the Judge stated that he had ''considered S71(2) of the Consumer Rights Act 2015 for the fairness of the contract terms and determined that the provision of the additional charge breached examples 6, 10 and 14''.


18. In summary, the Claimant's particulars disclose no legal basis for the sum claimed and it is the Defendant's position that the poorly pleaded claim discloses no cause of action and no liability in law for any sum at all. The Claimant's vexatious conduct from the outset has been intimidating, misleading, harassing and indeed untrue in terms of the added costs alleged and the statements made.


19. The Defendant is of the view that this Claimant knew or should have known that to claim in excess of £100 for a parking charge on private land is disallowed under the CPRs, the Beavis case, the POFA and the CRA 2015, and that relief from sanctions should be refused.


Summary

20. For all or any of the reasons stated above, the Court is invited to dismiss the Claim in its entirety. If this claim is not summarily struck out for the same reasons as the Judges cited in the multiple Caernarfon, Southampton, IOW and Warwick County Court decisions, then due to this Claimant knowingly proceeding with a claim that amounts to an abuse of process, full costs will be sought by the Defendant at the hearing, such as are allowable pursuant to CPR 27.14. Given that the claim is based on four alleged contractual parking charges of £90 - already significantly inflated and mostly representing profit, as was found in Beavis - but the amount claimed on the claim form is inexplicably £752, the Defendant avers that this inflation of the considered amount is a gross abuse of process.


20.1. In the alternative, the Court is invited, under the Judge's own discretionary case management powers, to set a preliminary hearing to examine the question of this Claimant's substantial interference with easements, rights and 'primacy of contract' of residents at this site, to put an end to not only this litigation but to send a clear message to the Claimant to cease wasting the court's time by bringing beleaguered residents to court under excuse of a contractual breach that cannot lawfully exist.
20.2. 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.


I believe that the facts stated in this Defence are true.