Advice Sought: Small Claim for Private Parking Ticket in Residential Parking Bay

nigelbb

The sign is probably irrelevant as the tenancy agreement is the contract which gave you permission to park your car. The fact that there are signs in the car park from a 3rd-party does not affect that contract. Re-read your tenancy agreement & double-check for any mention of displaying a permit & in particular any mention of paying a £100 penalty for failing to display that permit.

Arguments about there not being many signs so you didn't see one are OK for a one-off parking event in a retail park but don't hold water when you have been parking your car under them for months

Guys_Dad

nigelbb wrote: »

The sign is probably irrelevant as the tenancy agreement is the contract which gave you permission to park your car. The fact that there are signs in the car park from a 3rd-party does not affect that contract. Re-read your tenancy agreement & double-check for any mention of displaying a permit & in particular any mention of paying a £100 penalty for failing to display that permit.

Arguments about there not being many signs so you didn't see one are OK for a one-off parking event in a retail park but don't hold water when you have been parking your car under them for months

Whilst I agree with the sentiments above, regrettably there are cases reported on here of Judges awarding cases to the PPC.

And in addition to searching for £100 penalties in your lease, look for catch-all clauses that give the landowner or agent the right to bring in measures from time to time for the management of the area. You can bet your boots that the other side will use these to counter your own lease clauses.

ucrajoc

Thank you for the thoughts so far.

Signage: there are a good number of signs, but the signage is located in strange places, often very high (so hard to see from a car), poorly lit (the alleged offence took place at night), and the terms are in very small writing. The photos taken by the PPC themselves demonstrate that there is no signage visible from the position the car is parked in. nigelbb makes a very good point regarding whether this is a strong defence in a residential car park, but I think these points are worth articulating in a defence statement.

Authority: the tenancy agreement clearly states that the tenancy includes one non-allocated car parking space. There is no reference to the PPC or the managing agent. Because I sublet, I have no contract with the managing agent, and there is no reference to them in the tenancy agreement. Photos of the dashboard the PPC have provided do not provide a clear image.

Strict proof: As Coupon Mad foresaw, the permit came with the paperwork below, which makes no reference to a £100 liability nor any reference at all to the terms displayed by the signage.

hxxp://tinypic.com/r/2lt32g7/9

Notwithstanding the above, the signage does not make any offer but merely contains an obligation to adhere to its terms, a breach of which would make the driver liable for £100. I would argue this is a penalty under the ruling in ParkingEye vs Beavis 2015 paragraph 14: "where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty"

Any thoughts are welcome, I will get a draft defence statement posted later today.

ucrajoc

Hi all,

Does anyone have any thoughts on the defence statement below?

---

I am ********* , defendant in this matter and deny liability for the entirety of the claim.

1. The Claimant has not complied with the pre-court protocol. This is a speculative serial litigant, issuing a large number of identical claims. The Particulars of Claim contain no detail and divulge no cause of action. It details only:
I. The defendant, who is the registered keeper and not identified as the driver at the alleged time
II. The Vehicle Registration Number
III. The date of the alleged incident.
IV. Outstanding amount and break down of costs.
It does not detail:
I. Proof or confirmation of the driver at the date of the alleged incident
II. Proof of the vehicle being there at the alleged date.
III. Any indication of the time the vehicle was parked or for how long or proof that the car was actually parked.
IV. The vehicle type and colour.
V. Why the charge arose.
There is nothing that provides a basis for understanding why the claimant has asked the court to order the payment. According to the original parking notice, the claimant appears to be accusing the defendant of trespassing on his own property. The defendant invites the court to use its case management powers to strike out the case as having disclosed no cause of action.

2. An unallocated parking space has been leased by the defendant since August 2015. The defendant is absolutely entitled to unrestricted parking at the property, with no further terms and conditions. The defendant displays a permit to assist the claimant's operatives to recognise his vehicle but the terms of his lease impose no requirement to make any payment to the claimant if the permit is not seen. The permit and accompanying details indicate neither liability for a £100 charge nor legal costs.

3. The party that the defendant believes to have contracted with the claimant cannot unilaterally alter the terms of the defendant's lease. The defendant has never agreed to any alteration of its terms that would result in the claimant having any right to dictate the conditions to use his own property. The defendant has the reasonable belief that he can at any time withdraw the implied permission for the claimant's operative to enter his parking space to inspect his permit and that, if he continued to do so, it would amount to trespass and tortious interference with the quiet enjoyment of the defendant's property.

4. The claimant is a mere contractor and does not have occupational possession of the parking space. It therefore lacks any legal capacity unless specifically provided for in its contract.

5. Even if the claimant had such legal capacity it is not within its power to offer, as a contract to the defendant, permission to exercise a right that he already possesses. Neither can it set out any conditions to exercise the right.

6. Notwithstanding that the Particulars of Claim disclose no basis for the claim, the claimant's original parking notice assert that the driver did not display a valid permit and therefore trespassed. Only a party with occupational possession can bring a claim for trespass. As this is the defendant himself, the claimant's demand for payment in such an event is nonsense.

7. The claimant might argue that the Supreme Court's decision in ParkingEye v Beavis [2015] UKSC 67 is applicable. This case was dependent upon an un-denied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the British Parking Authority Code of Practice was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a license to park free. The present case meets none of the conditions that the Supreme Court stated were required for a parking notice to be exempt from the well-established principle that penalty charges cannot be recovered. In the present case:
I. Signage was inadequate and incapable of binding the driver. Signage was poorly lit, poorly positioned, and the terms were not transparent or legible. This is a breach of the Protection of Freedoms Act 2012 Schedule 4 and the British Parking Authority Code of Practice and an unfair contract.
II. No promise was made by the driver that could constitute consideration because there was no offer neither known nor accepted. No consideration flowed from the claimant. Absent the elements of a contract, there can be no breach of contract.
III. The sum pursued cannot exceed the original parking charge, only if adequately drawn to the attention of drivers on any signage. This is a breach of the Protection of Freedoms Act 2012 Schedule 4.
IV. It is believed Pace Recovery & Storage do not hold a legitimate contract at this car park. As an agent, the claimant has no legal right to bring such a claim in their name which should be in the name of the landowner.
V. There is no legitimate interest in a third party attempting to impose conditions on a lease-holder using his own property.

I believe the facts stated in this defence are true.

Coupon-mad

Strict proof: As Coupon Mad foresaw, the permit came with the paperwork below, which makes no reference to a £100 liability nor any reference at all to the terms displayed by the signage.

That's great and that piece of paper is vital IMHO. It even shows that when the bargain was struck/contract was formed re the use of a bay by authorised residents of that flat, consideration flowed between the parties but no further terms (i.e. additional terms on signs) were mentioned. Whoever paid the service charge, that was the consideration from the residents and in exchange, the consideration flowing from the other side was the provision of the permits and an agreement for the peaceful enjoyment and right to park a vehicle in those bays.

So a contract was made between the residents of that flat and the freeholder, Dorrington Developments Ltd, at whose discretion the parking was offered. That piece of paper says so. A signed and dated contract. End of terms.

Ace are just an agent and can be argued to have no standing to sue nor make secondary contracts with residents, who have already made a binding, signed contract relating to those permits.

Whilst the agreement mentions Ace as a contractor and mentions a 'fine' it does not state a sum. So this is evidence that the £100 charge was never communicated and cannot have been agreed within that contract, which was accepted when it was signed. No new terms can be added later.

So even though the claimant will rely on signage, it could be argued that additional terms on badly-placed, non-prominent signs were not incorporated into that contract at all. Certainly, evidence of unclear signs plus a signed permit agreement without mention of £100 as a sum (are you meant to guess...is the 'fine' mentioned £1 or £1000?!) can be used to prove that, unlike in the Beavis case, no contract to pay the £100 was ever fairly communicated nor agreed.

Notwithstanding the above, the signage does not make any offer but merely contains an obligation to adhere to its terms, a breach of which would make the driver liable for £100. I would argue this is a penalty under the ruling in ParkingEye vs Beavis 2015 paragraph 14: "where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty"

Yes, not least because the charge was never 'prominently and clearly communicated in large lettering' (as it was in the Beavis case) and because none of the 'complex' issues which uniquely saved ParkingEye's charge from being found to be a penalty, apply in this case.

I will take a look at your defence now. Others might add more thoughts.

Coupon-mad

I am ********* , defendant in this matter and deny liability for the entirety of the claim.

1. The Claimant has not complied with the pre-court protocol. Their Solicitor, Gladstones, is a speculative serial litigant, issuing a large number of identical claims for parking firms whether there is cause of action or not. The Particulars of Claim contain no detail and divulge no cause of action. It details only:
I. The defendant, who is the registered keeper and not identified as the driver at the alleged time
II. The Vehicle Registration Number
III. The date of the alleged incident.
IV. Outstanding amount and break down of costs.

It does not detail:
I. Proof or confirmation of the driver at the date of the alleged incident
II. Proof of the vehicle being there at the alleged date.
III. Any indication of the time the vehicle was parked or for how long or proof that the car was actually parked.
IV. The vehicle type and colour.
V. Why the charge arose.

There is nothing that provides a basis for understanding why the claimant has asked the court to order the payment. According to the original parking notice, the claimant appears to be accusing the defendant of trespassing on his own property. The defendant invites the court to use its case management powers to strike out the case as having disclosed no cause of action.

2. The right to use a parking space has been subject to a signed agreement and lease by the defendant since August 2015. The defendant is absolutely entitled to unrestricted parking at the property, with no further terms and conditions. The defendant displays a permit to assist the claimant's operatives to recognise his vehicle but the terms of his lease impose no requirement to pay £100 to the claimant if the permit is not seen. The permit and accompanying signed agreement formed a contract with the Freeholder which indicates neither liability for a £100 charge nor legal costs.

3. The party that the defendant believes to have contracted with the claimant cannot unilaterally alter the terms of the defendant's lease or tenancy. The defendant has never agreed to any alteration of its terms that would result in the claimant having any right to dictate the conditions to use his own property. The defendant has the reasonable belief that he can at any time withdraw the implied permission for the claimant's operative to enter his parking space to inspect his permit and that, if he continued to do so, it would amount to trespass and tortious interference with the quiet enjoyment of the defendant's property.

4. The claimant is a mere contractor and does not have occupational possession of the parking space. It therefore lacks any legal capacity unless specifically provided for in its contract.

5. Even if the claimant had such legal capacity it is not within its power to offer, as a contract to the defendant, permission to exercise a right that he already possesses. Neither can it set out any additional conditions to exercise the right because these were not incorporated into the signed agreement regarding the permit scheme.

6. Notwithstanding that the Particulars of Claim disclose no basis for the claim, the claimant's original parking notice asserts that the driver did not display a valid permit and therefore trespassed. Only a party with occupational possession can bring a claim for trespass, as was confirmed in ParkingEye Ltd v Beavis [2015] UKSC 67 (''the Beavis case''). As this is the defendant himself, the claimant's demand for payment in such an event is nonsense.

7. The claimant might argue that the Supreme Court's decision in the Beavis case means that any 'parking charge' is recoverable as if the facts of each case are immaterial. The Beavis case was dependent upon an un-denied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the British Parking Authority Code of Practice was paramount and Mr Beavis [STRIKE]was the driver who[/STRIKE] saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. The present case meets none of the conditions that the Supreme Court stated were required for a parking notice to be exempt from the well-established principle that penalty charges cannot be recovered. In the present case:

I. Signage was inadequate and incapable of binding the driver. Signage was poorly lit, poorly positioned, and the terms were not transparent or legible from the position of the car and nor were these terms or the £100 charge incorporated into the signed agreement when the permits were issued. [STRIKE]This is a breach of the Protection of Freedoms Act 2012 Schedule 4 and the British Parking Authority Code of Practice and an unfair contract.[/STRIKE]*
II. No promise was made by the driver that could constitute consideration because there was no offer neither known nor accepted. No consideration flowed from the claimant. Absent the elements of a contract, there can be no breach of contract.
III. [STRIKE]The sum pursued cannot exceed the original parking charge, only if adequately drawn to the attention of drivers on any signage. This is a breach of the Protection of Freedoms Act 2012 Schedule 4.[/STRIKE]* This is a template claim, copied from hundreds of similar, unscrutinised claims issued every day from the offices of Gladstones solicitors, whose Directors are one and the same as those individuals who run the claimant's own Trade Body. It is in the public domain that Gladstones have allegedly confirmed that there is no element of due diligence before filing a claim; they file whatever comes in from the client and it would not be cost effective to actually do any work. So, it is not believed that any 'legal costs' have been genuinely incurred and as such, these cannot be claimed (Rule 27.14 deals with costs on the small claims track).
IV. It is believed Pace Recovery & Storage do not hold a legitimate contract at this car park. As an agent, the claimant has no legal right to bring such a claim in their name which should be in the name of the landowner.
V. There is no legitimate interest in a third party attempting to impose conditions on a lease-holder using his own property under the terms of a pre-existing, signed contract regarding a right to park provided by the Freeholder.

I believe the facts stated in this defence are true.



*Crossed through that bit because you can't use the POFA if you are admitting to being the driver and the BPA CoP doesn't apply to an IPC member. The IPC CoP does.

P.S. if you are a sub-letting tenant, don't call yourself a leaseholder. Leasehold interest is a different thing than a tenancy.

ucrajoc

Thank you for the comments Coupon-mad, very helpful, and really strengthens the statement. Any other feedback would be very welcome.