VCS Parking Charges (3) - Resulted In County Court Claim Form

DoaM

KimmyHrunt wrote: »

There is one point in the lease agreement which i do find questionable:

"To comply with all regulations made by the management company for the preservation of the amenities of the development or for the general convenience of the occupiers of the building (the management company having the power to vary or add to such regulations from time to time as it thinks fit)."

That's in relation to public/common areas ... not in relation to your demised parking space. Also, installing a parking regime is not for the general convenience of the occupiers if it is targeting the occupiers. (IMHO)

KimmyHrunt

There is no way i'm going to be able to submit this today. I have no choice but to take this to the hearing tomorrow.....or delivery it first thing in the morning?

Do i just print out 3 copies and take them with me to the hearing tomorrow? One for the judge, one for me and one for VCS?

Lamilad

KimmyHrunt wrote: »

There is no way i'm going to be able to submit this today. I have no choice but to take this to the hearing tomorrow.....or delivery it first thing in the morning?

Do i just print out 3 copies and take them with me to the hearing tomorrow? One for the judge, one for me and one for VCS?

The judge will read everything before you are called in so either get there very early or drop it in first thing. Hand it to the usher explaining that it's related to a case bring heard today and will need to be in the bundle when the judge reads it.

What exhibits have you included?

KimmyHrunt

Thanks.

Quite alot,

Signage evidence, POFA, Jopson V Homeguard, Link Parking V JGP
Pae V Mr N and a copy of the complete lease agreement of the property.

I'm just tidying it up now, shall i upload a copy once done?

Can i just paste the entire thing in here, so shall i PM?

Lamilad

KimmyHrunt wrote: »

Thanks.

Quite alot,

Signage evidence, POFA, Jopson V Homeguard, Link Parking V JGP
Pae V Mr N and a copy of the complete lease agreement of the property.

I'm just tidying it up now, shall i upload a copy once done?

Can i just paste the entire thing in here, so shall i PM?

Yes post it on here. The more people who see it the more advice you will get.

KimmyHrunt

I need to get it printed off though, as i dont have a printer at home and have to do into work to do so

KimmyHrunt

Here as it currently stands:

In the matter of

VEHICLE CONTROL SERVICES LIMITED (Claimant)
v
MR XXXXXXXXXXXX (Defendant)

Claim no:XXXXXXXXXX

SKELETON ARGUMENT / DEFENCE

The contents of this document, where referencing to a statement made by the claimant, these statements are defined by the inclusion of ‘Re#’.

1. Re#6 – The claimant has included a copy of the contract for enforcement of the carpark. This contract has multiple sentences removed due to the commercial nature. I have a copy of the contract (supplied by the management company) which does not have these points removed (Exhibit XX). The points removed cover costing financial terms and conditions, which do make considerable questioning of the claimant’s statement that costs are commercially justified (see Point 52). Other conditions removed have confirmed that:
(i) The claimant will provide the management company (XXXXXX) with a parking permit instruction sheet.
Why this is considered confidential information as this has been referenced several times throughout the claimant’s witness statement and evidence of said parking permit instruction sheet has been provided. This evidence has been used as a motive in an attempt to strengthen the claimants case.
(ii) The management company (XXXXXXXXXX) will compensate the claimant in the event that an authorised user who has received a PCN due to the driver’s failure to display a valid parking permit.
This point indicates that cancelling PCN’s is common practice, if the driver is authorised to park (only assuming as either a resident or as a visitor) but fails to display a valid parking permit. This discredits the claimant’s hard-stance with regards to the terms and conditions as the point in the contract contradicts this fact and removes this claims credibility.

(iii) In the event that a PCN is correctly issued and the company subsequently agrees to cancel the PCN a fee of £15.00 will be paid by the client to the company.”
This should be considered a true reflection of any possible ‘administrative cost’ to the claimant for issuing a parking charge. This fee is 85% less than a parking charge notice. Again this does not reflect the claimants view that the parking charge costs are justified.

2. Re#7 – The claimant states they are contracted to enforce the agreed terms and conditions of parking.

3. The claimant fails to comply with the terms and conditions in their own agreement for management of the parking facilities. The agreement between the claimant and the management company states that 29 signs will be located around the demise, several of these signs are missing (as visible in Exhibit XXXXX and also the claimants own supplied evidence), resulting in non-compliance with their own agreement, the agreement in which they are basing this entire claim.

4. Re#8 – The claimant states they can therefore duly enter into contract with any motorist entering the car park and recover monies owing from the issue of parking charge notices via the county court.

5. The claimant is required to issue a notice to keeper which is compliant with the POFA 2012 Schedule 4 (see Point 26). The served notice to keeper’ are non-POFA compliant.

6. Re#9 – As per Exhibit XXX. If the contract automatically extends, then this should be specified in the contract itself. The copy I have of the contract includes a ‘term’, contradicts the purpose of a rolling agreement. The copy of the contract the defendant received from the management company is signed by a different member of staff than the one in which the claimant provided in the pack. My copy is dated as signed 09/11/2015, yet the copy supplied in the claimant evidence pack is not dated. Both copies have the statement “This agreement is made on the 7th day of October 2015”. Why would there be two copies of the contract, signed by different individuals from the management company if the signature is completed 2 days following the date in which the agreement was made?

7. Re#10 –The claimant states that they are duly authorised to impose terms and conditions for parking and issue a Parking charge notice for contravention of those terms and conditions.

8. In order for the claimant to carry out the above steps, the claimant is required to meet the signage requirements (which they do not) and also comply with the terms and conditions in the contract which allegedly facilitates the claimant to issue and pursue charges associated with parking charge notices.

9. Re#11 – The claimant is required to meet signage requirements (which they do not – as per Point 23).

10. Re#12 - As per Point 23.

11. Re #13 - The claimant claims that the vehicle in question was seen at Royal Quay Car Park without displaying a valid permit.

12. The defendant denies as the claimant is unable to produce any evidence of the mentioned PCN, let alone any evidence of a contravention.

13. Re#15 – The claimant has provided evidential photographs of alleged contravention.

14. The defendant considers the included photographical evidence to be poor quality. The evidence on page 19, 20 and 21 of the claimant’s bundle cannot be considered as conclusive evidence that there was a contravention. One single photograph displays almost the complete dashboard of the vehicle in full view, however the reflection on the windscreen hinders the trustworthiness of the evidence as no definitive conclusion can be made. The remaining photographs are all take from angles which are inconclusive of a contravention. The included copies of parking charge notice on pages 22 and 23 of the claimant’s bundle are illegible.

15. Re#17 - The claimant has provided evidential photographs of alleged contravention.

16. The defendant considers the included photographical evidence to be poor quality, with the added weather input. The evidence on page 25, 26 and 27 of the claimant’s bundle cannot be considered as conclusive evidence that there was a contravention. A combination of the angles in which the evidence was taken, condensation and standing rain on the vehicles windscreen and windows severely impacts the credibility of the evidence. The included copies of parking charge notice on pages 28 and 29 of the claimant’s bundle are also illegible.

17. Re#19 – The claimant states that due to a lack of payment or correspondence, the claimant sent a notice of intended court proceedings letter dated 24th August 2016 to the defendant, inviting for the matter to be addressed without the need to peruse via court.

18. The defendant requests that proof of this correspondence should be provided, otherwise this statement cannot be relied upon.

19. Re#20 – The claimant includes copies of PCN’s, NTK in AD2.

20. Upon review of the available, non-corrupted photographic evidence the defendant disputes the quality and substantial evidence related to the mentioned contravention(s) as the images (pages 19, 20, 21, 25, 26 & 27) are low quality and under no circumstances omit definitive proof that a valid permit was in fact not on display and therefore considered unreliable. The copies of the PCN’s visible on pages 22, 23, 28 & 29) are far from legible and are extremely poor quality.

21. Re#22 – The claimant states that there are breaches in contract in respect on the terms and conditions displayed within the demise of the site/car park in question.

22. The defendant, as stated in Point 16 and Point 20 considers the evidence provided to be inconclusive of any contravention.
23. Re#23-25 – The defendant disagrees with the statements made by the claimant referenced by the claimant in #23, #24 and #25. As visible in Exhibit XXXX, the signs cannot be considered as prominent, sufficient, adequate or cannot be considered concise as a result of several factors, explained below;
(i) Signage upon entering the car park is confusing, unclear and also contradictive to terms and conditions on signage within the carpark. The largest condition on this sign indicates ‘No Parking’ and the condition to display a valid permit is displayed in considerably smaller print. These signs are different than the signage contained inside the car park (as evidenced by the claimant). This inconsistency is considered confusing and begs the question of why are there two different types of signage?
(ii) Signage within the demise of the car park are located in extremely poor positions.
(iii) Signage both outside and within the demise of the car park are located at unsuitable distances.
(iv) Signage within the demise of the car park is not visible or legible for the car park space involved in the alleged contravention. The evidence provided displays a sign which is in view, however this particular sign is simply not visible depending on how the adjacent vehicle has parked (if it has reversed it cannot be viewed). The claimant needs to provide evidence that this particular sign was visible at the time of arrival or ‘acceptance’ of the terms and conditions.
(v) Signage within the demise of the car park are damaged.
(vi) Signage both outside and within the demise of the car park is not visible during non-daylight hours.
(vii) Signage within the demise of the car park are obstructed by overgrowth and plantation.
(viii) Signage within the demise of the car park face away from the internals of the car park.

The above factors prevent the driver from acknowledging, reading, understanding and accepting the terms and conditions. Therefore, the defendant denies that the signage was sufficient to hold the driver accountable for non-compliance with the terms and conditions.
The International Parking Community Accredited Operator Scheme Code of Practice, of which the claimant is accredited, references several conditions in relation to signage (as evidenced in Exhibit XXX);
(i) “Must be obvious to the motorist”
(ii) “Text should be of such a size and in a font that can easily be read by a motorist having regard to the likely position of the motorist in relation to the sign”
(iii) “If parking enforcement takes place outside of daylight hours you should ensure that signs are illuminated or there is sufficient other lighting. You will need to ensure all signs are readable during the hours of enforcement as they form the legal basis of any charge”
As a result of the above, I reject that the signage is considered at an acceptable standard to be contractual with the motorist.

24. Re#26 – The claimant states that the signage design and working has been approved by a recognised Trade Association and is DVLA approved.
25. The defendant suggests that evidence of this approval should be included to illustrate the recognised Trade Association as without definitive proof of approval, this statement is unreliable.

26. Re#29 - The claimant has acknowledged failure to comply with the prescribed wording contained within schedule 4 of the POFA 2012. The Notice to Keeper(s) issued by the claimant do not comply with the strict wording of the POFA on several conditions, which as a result the claimant has no rights to pursue the keeper of the vehicle with the intentions of reclaiming unpaid parking charges. The claimant has specified that they have met the conditions required to pursue the registered keeper, however the defendant would like to highlight the failure to meet several conditions of paragraph 9 of the POFA 2012 schedule 4 (Exhibit XXX):

Paragraph 9.2 (b) states “inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full”.
The claimant does not meet this condition at any stage of the Notice to keeper.

Paragraph 9.2 (c) states “describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable”.
The claimant does not meet this condition as the Notice to keeper states “amount payable” and fails to state “charges due from the driver”. The Notice to keeper claims the amount payable by the registered keeper which is an incorrect statement as the charges are only due from the driver.

Paragraph 9.2 (d) states “specify the total amount of those parking charges that are unpaid, as at a time which is-
(i) specified in the notice; and
(ii) no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper (see sub-paragraph (4));
The claimant does not meet the above conditions due to the failure to include ‘parking charges that are unpaid’ at a specified time.
Paragraph 9.2 (e) states “states that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper-
(i) to pay the unpaid parking charges; or
(ii) if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;
The claimant clearly fails to state that they (the creditor) do not know both the name of the driver and a current address for service for the driver. The notice to keeper fails to invite the keeper to pay the unpaid parking charges, the fact that the statement “However if you are the registered keeper of the vehicle and you were not the driver at the time/date of the contravention, a reduced sum of £60.00 will be accepted if payment is received within 14 days of the issue date of this notice” is not a statement inviting the keeper to pay, this cannot be implied, it has to be a statement, as outlined in the above conditions. The notice to keeper does indeed meet condition 9.2 (e) (ii), however as the preceding condition has not been met, the claimant has no right to pursue the registered keeper for payment.
Paragraph 9.2 (f) states “warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given-
(i) the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and
(ii) the creditor does not know both the name of the driver and a current address of service for the driver,
The creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid.

The claimant fails to meet the conditions outlined in paragraph 9.2 with regards to the 28 days beginning with the day after that on which the notice is give, nor point (ii) with regards to knowing the name of the driver and a current address of service for the driver.
Paragraph 9.2 without doubt states “the notice must” and ends with ‘the creditor will (if all applicable conditions under this schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid”. The claimant has failed to meet various conditions from paragraph 9 of the POFA 2012 schedule 4, which as consequence, the claimant is unable to rely on the keeper liability provisions of the POFA schedule.

27. Re#38 – As per Point 23.

28. Re#39 – The claimant states “if the registered keeper of a vehicle denies they were the driver they will need to produce sufficient evidence in support, failing which it is likely to be held that they were driving. The claimant would wish to rely on the precedent of Elliot v Loake [1982].

29. Elliot V Loake has absolutely no relevance to this case. Elliot V Loake is a criminal case which included eyewitness accounts, police statements and forensic evidence and can in no way be relied upon for the matter of this civil case. The signage in which the claimant is basing the entire case upon does not state that is it a criminal offence to park within the confides of the carpark and fail to meet the terms and conditions, simply because it is not. The registered keeper of the vehicle is under no obligations to disclose the identity of the driver for the alleged contravention, it is the claimant’s responsibility to prove the identity of the driver OR pursue the registered keeper of the vehicle in compliance with the POFA 2012 schedule 4. The POFA 2012 schedule 4 was introduced to allow private parking companies to pursue the registered keeper if the identity of the driver is unobtainable, providing full compliance is in place. As per Point 26.

30. Re#40 – The claimant states “although this relates to the Road Traffic Act 1972, the Defendant was duly served with notices compliant with paragraph 8 Schedule 4 of the Protection of Freedoms Act 2012. This places upon him a statutory obligation to provide the details of the driver. The defendant took no steps whatever, he gave no evidence to explain why he did not do so and therefore under the aforementioned precedent the claimant is able to reasonable assume that the defendant was the driver of the vehicle on the dates of the contraventions.”

31. The claimant can claim they have complied with paragraph 8 of the POFA 2012 schedule 4, however the fact that they fail to comply with paragraph 9 of the POFA means they cannot rely on the POFA. The conditions outlined in the POFA have to be met in their entirety, otherwise the claimant has no grounds to pursue the registered keeper for payment of unpaid parking charge notices. See Exhibit XXX.

32. Re#42 –As per Points 2 & 23.

33. Re#43 – As per Point 23.

34. Re#44 – As per Point 50.

35. Re#46 – The claimant states “the claimant submits that the signage located all throughout the site/car park is visible, prominent and legible and also meet the requirements set by an Approved Trade Association. The signage is also, clear and startling enough to be seen by any motorist using the car park and fully complies with the recommendations outlined in the Code of Practice by the Approved Trade Association, which gives recommendations of the signage within the car park, therefore the signage is deemed reasonable.

36. The defendant disputes the above statement, as per Point 23.

37. Re#47 – The claimant states “As a resident of the site/car park, the defendant would have been aware of the terms and conditions stated on the signage. The defendant would also have had a fair opportunity to read the terms and conditions of parking if he wished to do so. An objective observer would consider this action to have been done in acceptance of the terms displayed. It was the defendants own responsibility to ensure that he made himself aware of the terms and conditions in situ”.

38. The assumptive nature of the above statement is alarming. Firstly, the claimant has no knowledge of the length of tenancy as a resident in relation to the parking facilities, so how can they state “the defendant would have been aware of the terms” or “the defendant would also have had fair opportunity to read the terms and conditions of parking” or “an objective observer would consider this action to be done in acceptance of the terms displayed”. Secondly, this statement implies that the driver of the vehicle simply ignored the signage, which the defendant has refuted in Point 23. Finally, the use of the term ‘he’ and ‘himself’ continues to assume that the registered keeper is the driver, regardless of the fact that the claimant has no evidence to suggest so.

39. Re#48 – As per Point 23.

40. Re#49 – The claimant states “It can never be a defence to a claim in contract law to say “I did not read or I was not aware of the terms”, so long as that charge was reasonably stated in the terms and conditions of said contract and was agreed upon”.

41. As per Point 23.

42. Re#50 & #51 – The claimant references Vine V Waltham Forest LBC [2002] and states “Although these cases relate to wheel clamping, it is submitted that the principle remains the same as the question is one or whether the terms are incorporated into contract.”

43. The first highlighted paragraph from the Vine V Waltham Forest case include “Once it is established that sufficient and adequate warning notices were in place” to which the defendant as previously rejected due to the signage outside and also within the demise of the car park, as per Point 23.
The second highlighted paragraph states “To show that the car owner consented or willingly assumed the risk of his car being clamped, it has to established that the car owner was aware of the consequences of his parking his car so that is trespassed on the land of another.”
This again has no relevance to this matter as firstly the driver of the vehicle has allegedly caused the contravention, not the car owner and secondly, at no point has trespassing occurred during this matter, authorisation is in place for parking in the allocated parking space.

KimmyHrunt

Part 2...

....

The third and final highlighted paragraph states “Circumstances in different cases will present different problems. But I would suggest that, absent unusual circumstances, if it is established that a car driver saw a notice and if it is established that he appreciated that I contained terms in relation to the basis on which he was to come onto another’s land, but did not read the notice, and thus fully understand the precise terms”.
The acknowledgement and agreement with the terms and conditions displayed in the signage is rejected and explained in point 23 and no element of trespass took place during this alleged contravention. Therefore, I consider his exhibit to be irrelevant and I dispute that this exhibit bears no relevance in relation to this case.

44. Re#52 & #53 – The claimant references Thornton V Shoe Lane Parking LTD [1971]. This case also has no relevance to this matter as the key element in this case is the physical receipt of a ticket, which undoubtedly could not be denied. The physical acceptance could be considered acknowledgement and acceptance, which differs entirely to this claim. The claimant on one hand states that by entering the demise of the carpark is acceptance of the terms and conditions, but then includes a reference to a case in which a physical ticket has been received by the driver of a vehicle in order to physically enter the car park. Again I do not believe this bears any relevance to this claim.

45. Re#55 – The claimant states “all parking permits supplied by the claimant are accompanied by terms and conditions of use as evidenced in exhibit AD7”.
46. This point contradicts Point 1 - Re#6 where the contractual agreement for the management of the carpark has been included, yet various ‘commercially sensitive information’ has been removed. One of these entries (3.3) is in fact that “the company will;
3.3 Supply to the Client a Parking Permit Instruction sheet, which gives details on how to display the permits”.
I fail to understand how the claimant can on one hand consider this as commercially sensitive and attempt to withhold this information and yet at a later point, attempt to use this as justification or evidence.
The parking permit instruction sheet itself contradicts what is clearly visible in the agreement between the claimant and XXXXXXXXXXXXXXXX, as below;
4.3 “The Client will:
“Ensure that all vehicles authorised to use the Car Park shall clearly display upon the windscreen a valid permit as supplied by the company at all times”
Yet on the parking permit instruction sheet it is stated under ‘General’;
1. “It is the responsibility of the driver in charge of the vehicle to correctly display a valid VCS permit.”
As the defendant stated in the Witness Statement, the defendant at no point received a permit instruction sheet.

47. Re#57 – The claimant requested evidence from the defendant in response to my statement “other vehicles use older passes from previous parking management companies, missing various pieces of information; these vehicles are continuously not ticketed. If a contractual agreement is in place which states that a valid permit is required, then they must define what is considered as a valid permit”.

48. The requested evidence is visible in Exhibit XXXX. This vehicle (which has the vehicle identity removed for the purpose of evidence) in particular has not once displayed a valid permit, as outlined in the parking permit instruction sheet (I walk past this vehicle almost every day), the used permit does not even indicate a parking space number, yet has not once to my knowledge received a ticket and I have also witnessed parking attendants fail to issue PCN’s when reviewing all vehicle permits.

49. Re#59 – The claimant states “The claimant submits it is only contracted to enforce and manage parking at the site/car park for the sole purpose of ensuring that vehicle (whether belonging to residents or not) abide by the stated terms and conditions of parking within the site/car park. The claimant is not involved in any tenancy agreements therefore can not comment on any tenancy management contracts or agreements. Contacts between the claimant and motorists are solely based on the signage in situ.”

50. The claimant has a responsibility to enter discussions with the management company during contract negotiations to become familiar and understand residential tenancy agreements. It is the claimant’s responsibility to understand the tenancy agreements that are in place, it is not appropriate to believe existing tenancy agreements can be overruled by the introduction of ‘signage’, which for that matter have various pitfalls (as covered in point 23). I would like to rely on the precedent set under Jopson v Homeguard [2016], Exhibit XXXX;
“The claimant relied principally upon a notice which it had put up in various places after it had been engaged by Places for People Homes Limited in March 2013, and upon letters sent to tenants at a time before the claimant acquired her flat.”
“The notice makes no reference to any rights which the occupiers of premises on the estate may have had by virtue of their leases. The claimant was, however, aware of these leases. In a letter circulated to residents before 2 March 2015 (which was before the claimant bought her flat), and enclosing, it seems, a permit or permits, it wrote:
“We take this opportunity to refer you to your lease Schedule 11 points 24, 25 and 26”
The reference was in fact wrong and was intended, it would seem, to be a reference to Schedule 6.
Paragraph 24 of that Schedule included an obligation:
“At all times to observe and perform all such variations and modifications of the regulations, and all such further and other regulations as the lessor may from time to time in its reasonable discretion think fit for the management, care and cleanliness of the estate and the comfort, safety and convenience of all its occupiers, details of which have been notified to the lessee.”

It was suggested that the controlled parking arrangement was within this description. However, the definitions section in the lease reads as follows:
“Regulations [mean] the regulations contained in Schedule 6 or such other regulations for the preservation of the amenities of the block or for the general convenience of the occupiers of the flats as the lessor shall notify to the lessee in writing from time to time, provided that, in the event of any inconsistency, the terms of the lease’s covenants in clause 4 of this lease shall prevail.”
The lessor never mentioned to the appellant, in writing or otherwise, the parking charge arrangements, and this was not in dispute.

JUDGE HARRIS QC also stated:

“The claimant, on the other hand, has produced a copy of an agreement with Places for People and a copy of a letter from Places for People…addressed to Mark Lancaster MP outlining the background which led to the claimant’s engagement. The letter not only confirms the engagement of the claimant, but refutes the suggestion by the defendant that parking in these restricted areas was an activity allowed by the landlord. The opposite seems to be clear. Places for People, following consultation with residents at a leaseholders meeting where parking issues were raised, agreed to engage the services of a parking control company to restrict parking in areas where there was no permit to park. This, it seems, presents irrefutable evidence of the landlord’s intentions not only to engage the claimant, but that the claimant was authorised to issue contravention notices and to continue to chase and collect non-payment of charges… Whilst the defendant was not present at that leaseholders meeting (she had not yet acquired the interest in the lease), she would or should have been aware of their existence when she purchased the property. Once she became the owner of 99 Trevithick Court she was provided with a parking permit. Contrary to the defendant’s assertions, I am satisfied that the claimant was engaged by Places for People in line with the agreement under the terms and conditions as stated. I am further satisfied that the defendant knew of the restrictions on parking which were in place at the time that she purchased the property. She makes reference to having received a parking permit. I find that the defendant was mistaken in her understanding that the parking restriction did not apply to her because (a) she was not an unauthorised person, and (b) that the rights conferred by her lease referred to in her defence and witness statement allowed her to park for reasons of necessity outside her designated parking bay. That being the case, the Unfair Terms in Consumer Contracts Regulations, the Law of Property Act and the Law of Property (Miscellaneous Provisions) Act do not assist the claimant.”


The defendant would also like to rely on Link Parking v Ms P C7GF50J7 [2016] (Exhibit XXX);

“This is a claim for £121.68 in respect of parking charges, allegedly incurred by the defendant on 9th January 2016, in Overstone Court, Butetown, Cardiff, for not displaying a valid parking permit. The basis of the claim is that the claimant entered into a contract with Isis Cardiff Management Company Limited (or Home from Home Property Management which seems to be their trading name). Pursuant to that contract they had the sole and exclusive rights to control unauthorised parking in Overstone Court. There are displayed in numerous locations around the carpark notices to the effect that this was private land, with parking permitted for vehicles displaying a valid parking permit only and parked in the correct allocated bay.”


“The claimant’s case against the defendant is quite simple; that on 9th January 2016 she failed to display a valid parking permit and on that basis must pay a fine. On the face of that it seems relatively straightforward, but in fact the case is somewhat more unusual because it relates to a parking space that the defendant was the leasehold owner of, the defendant having purchased the property and parking space under a long leasehold in May 2008. That purchase included the relevant parking space. Thus she is the leaseholder of the property and space, owns it and has done for eight years.”

“I have been provided with a copy of the lease. This contains a number of potentially relevant sections. I note that Isis (or Home from Home) are a party to it and were engaged as managing agent by the seller, George Wimpey. Parking is mentioned only once, explicitly that I can see, in schedule 3 paragraph 16; it places an obligation on the leaseholder, Mrs Parkinson, as follows:

“Not to use any car parking space for any purpose other than for the parking of
one private motorcar or one private motorcycle, which should be in a roadworthy
condition and should exhibit a road fund licence.”
“There is nothing to suggest that Mrs Parkinson has breached this covenant. More particularly there is nothing in the covenant that requires her to display a valid parking permit. Thus, it seems to me that pursuant to the lease, all that the defendant was obliged to do was park in her own space and ensure that the vehicle was road-worthy and appropriately taxed.”

“Moreover, I have real concerns as to whether this space, and the management of this particular space, falls within their ambit as a management company. Their obligations are laid out in the fourth schedule and it seems clear, from the fifth and sixth schedule that their obligations related to the common parts of the property. This parking space does not fall within the common parts of the property; it is the property of Mrs Parkinson, and on that basis I cannot see how the management company can interfere with her enjoyment of it, or charge her for its usage via a parking penalty or otherwise. It seems to me that to do so would have required a variation of the original lease and I have not seen such a variation.”

“I have also considered the reported case relied upon by Mrs Parkinson, which was Pace Recovery v Mr N [2016] C6GF14F0. It is not factually identical to this case, and does not in any event bind me. However the case raised similar issues, and the Judge in that case found that the parking company could not amend the terms of the tenancy agreement to bind a tenant, but rather that it would have to be the other party to the contract, and it seems to me that the same principle applies here. It is Isis (or Home from Home) who ought to have sought to amend the lease, and I have seen no evidence that they have done so.”

Resulting in the judgement outcome;

“I note the other points raised in the claimant’s statement regarding Consumer Contracts (information, cancellation and additional charges) Regulations 2013, and points regarding whether the penalty was displayed sufficiently prominently. Given my conclusion on the principal point, it does not seem to me that I need to give a judgment on whether those points apply. On the basis of my findings the claim cannot be a valid one and must be dismissed.”
The defendant would also like to rely on PACE Recovery and Storage v Mr N C7GF51J1 (Exhibit XXX). The defendant has not included extracts from the case as the entire transcript is relevant.

A copy of the residential lease agreement for the property in question is included in Exhibit XXX. The defendant would like to rely on the below terms and conditions for the property;

EIGHT SCHEDULE – Part Two
27. “Not to carry out nor allow to be carried out any vehicle maintenance on any part of the development.”
28. “Not to abandon any vehicle whatsoever on any part of the development and in the event of any breach of this covenant it shall be lawful for the management company without prejudice to its rights under this underlease to arrange for the removal of such abandoned vehicle and to recover from the lessee any costs incurred by it.”

EIGHT SCHEDULE – Part Three
1. “Do not use the demised premises for any purpose other than as a private residence and not to carry on any trade business or profession.”
2. “Do not allow any van over 35 cwt commercial vehicle or trailer caravan or boat or similar thing to be brought on to any part of the development.”
9. “Not to park any vehicle on any part of the development other than the parking space and in particular: -

a) Not to park any vehicle upon any part of any footpaths or accessways and
b) Not to park on any part of the Development any vehicle other than a private currently licenced and roadworthy motor car or motor cycle or van under 35 cwt.”

The carpark space is clearly identified in Exhibit XXX and the lease agreement includes no reference to any parking terms and conditions other than those stated above.

51. Re#63 – The claimant states “The claimant submits that the charge is a commercially justified charge, as well as in no small part to act as a deterrent to encourage and influence the motorist’s behaviour.”

52. The defendant challenges the justification of this charge. In the agreement between the claimant and the management company, as shown in Exhibit XXXX, it clearly states;
“6.8. In the event that a PCN is correctly issued and the company subsequently agrees to cancel the PCN a fee of £15.00 will be paid by the client to the company.”
This matter was also addressed in Point 52.
Based on the claimants ‘justified cost’ statement, basing the charge of £100 for a 24-hour period, this values the private parking space (which there is technically no cost against as a direct result from the lease) at £700 per week, over £3000 per month and £36,400 per year. To conclude, the claimant is insinuating that the cost of the mentioned single, dedicated parking space is approximately worth four times the value of the residential apartment in which the defendant resides. This ‘commercially justified cost’ can only be described as simply obscene.

53. Re#64 – The claimant attempts to rely on ParkingEye V Beavis [2015] EWCS. The defendant disputes the relevance of ParkingEye V Beavis with regards to this claim. ParkingEye V Beavis does not relate to an authorised user parking in a dedicated parking space on private land, which is authorised within the contents of the lease agreement for the property, which covers the terms and conditions of parking, to which the defendant has complied with.
In ParkingEye V Beavis the judge ruled that the driver of the vehicle is acting as an agent for the keeper of the vehicle, which can be disputed by the fact that the government were forced to create and release the POFA 2012 schedule 4. If the driver of a vehicle is acting as an agent for the keeper of a vehicle, then any motoring convictions could be applied to the owner of vehicles rather than the driver, nor would the POFA 2012 Schedule 4 even exist.
The ParkingEye V Beavis case is based entirely upon trespass as outlined in the explanation of the signage. This claim is not related to trespass (at least not to the defendant’s knowledge) and if so, the claimant is required to produce evidence of trespassing, but also the signage would need to accommodate the contravention of trespass. In Jopson V Homeland (Exhibit XXXX) it was ruled that ParkingEye V Beavis does not apply to residential parking, which is apparent in the below statement, taken from ParkingEye V Beavis;
“Unlike in Cavendish V El Makdessi, the penalty rule is engaged. However, the £85 charge is not a penalty. Both ParkingEye and the landowners had a legitimate interest in charging overstaying motorists, which extended beyond the recovery of any loss. The interest of the landowners was the provision and efficient management of customer parking for the retail outlets.”
The defendant believes that there is clear evidence that this case does not have relevance to this claim.

54. Re#65 – The claimant states “The claimant has offered to contract with the motorist as displayed, providing a limited licence to the motorist to park at the location on the basis of a set of conditions”.

55. The defendant would like to raise the matter that there are only two genuine contractual agreements in place in this entire matter a) the lease agreement of the property and b) the agreement between the claimant and the management company. The lease agreement has been in place for approx. 14 years whereas the agreement for management of the car park appears to be less than 18 months old. No breach of the terms and conditions for parking (as contained in the lease agreement – Exhibit XXXX) have taken place.

56. Re#67 – The claimant states “it was the defendant’s responsibility to ensure that he abides by any terms and conditions of parking in any car park which affect his vehicle. The defendant was aware of the terms and conditions of parking in place. The defendant has no sound basis to suggest that he was entitled to park as he did without displaying a permit). The defendant was aware of the terms and conditions or parking on each occasion, a matter which has been conceded. Whether or not the defendant believed he was entitled to park without displaying a valid permit because he was/is a resident is irrelevant.

57. The defendant strongly disputes the above statement on several fronts. At no single point has it been conceded that the defendant was aware of the terms and conditions as the claimant suggests. The defendant requests that the claimant is required to provide evidence where this was conceded. The defendant has disputed the fact that the terms and conditions were acknowledged and understood on several occasions (see Point 23). The lease agreement for the property does not contain any requirement for vehicles to display a valid permit. The claimants statement totally contradicts what is contained in the agreement between the claimant and the management company (Exhibit XXXX), which includes the below statement:

The client will:
4.3 “Ensure that all vehicles authorised to use the car park shall clearly display upon the windscreen a valid permit as supplied by the company at all times.”

As far as the defendant is concerned, the only breach of terms and conditions that has taken place is the client (the management company) have failed to ensure authorised vehicles display a parking permit, not the driver of the vehicle. This is detailed in a signed contractual agreement and takes precedence over an alleged ‘binding contract’ which is facilitated by a number of confusing, illegible & poorly illuminated, maintained signs.

The defendant would now like to follow with a summary of this defence and the claim in its entirety.
I, the defendant believe that there are numerous failures on the claimant’s responsibility to meet a number of conditions in which would allow the claimant to reclaim the costs associated to this claim. The claimant has stated that the driver of the vehicle carried out a single contravention (the act of parking without displaying a valid permit), however the claimant has carried out various failures to ensure this claim is above board and they have complied in all areas required.

None of the referenced cases related to a residential property which the existing lease outlined a dedicated parking space which terms and conditions which were vastly different to the terms and conditions in which the claimant is trying to force upon the defendant.

The claimant has failed to reference a single exhibit in which the same, or similar circumstances apply. It is widely reported that the claimant submits a large number of these types of claims to the small claims track, given the fact that there does not appear to be a single case available which appears to be somewhat relevant speaks volumes.

The court is invited to dismiss this claim as the defendant believes the evidence presented leaves no doubt that the claimant has multiple flaws within the detail of the claim as the existing leasehold takes precedence over the alleged terms and conditions in which the claimant is relying on.
I believe the facts stated in this Defence Statement are true.

Signed:

Coupon-mad

I don't understand why this bit is in your skeleton argument - IMHO it doesn't assist:

JUDGE HARRIS QC also stated:

“The claimant, on the other hand, has produced a copy of an agreement with Places for People and a copy of a letter from Places for People…addressed to Mark Lancaster MP outlining the background which led to the claimant’s engagement. The letter not only confirms the engagement of the claimant, but refutes the suggestion by the defendant that parking in these restricted areas was an activity allowed by the landlord. The opposite seems to be clear. Places for People, following consultation with residents at a leaseholders meeting where parking issues were raised, agreed to engage the services of a parking control company to restrict parking in areas where there was no permit to park. This, it seems, presents irrefutable evidence of the landlord’s intentions not only to engage the claimant, but that the claimant was authorised to issue contravention notices and to continue to chase and collect non-payment of charges… Whilst the defendant was not present at that leaseholders meeting (she had not yet acquired the interest in the lease), she would or should have been aware of their existence when she purchased the property. Once she became the owner of 99 Trevithick Court she was provided with a parking permit. Contrary to the defendant’s assertions, I am satisfied that the claimant was engaged by Places for People in line with the agreement under the terms and conditions as stated. I am further satisfied that the defendant knew of the restrictions on parking which were in place at the time that she purchased the property. She makes reference to having received a parking permit. I find that the defendant was mistaken in her understanding that the parking restriction did not apply to her because (a) she was not an unauthorised person, and (b) that the rights conferred by her lease referred to in her defence and witness statement allowed her to park for reasons of necessity outside her designated parking bay. That being the case, the Unfair Terms in Consumer Contracts Regulations, the Law of Property Act and the Law of Property (Miscellaneous Provisions) Act do not assist the claimant.”

A skeleton argument should be more punchy and shorter, bullet points that you can follow/refer to at the hearing and I would not call it a 'defence statement' at the end or it looks like a far too late re-write of the defence. Steer it away from that accusation and call it a skeleton argument and take 3 copies of everything including your transcripts from cases. Get there nice and early.

KimmyHrunt

Thanks Coupon.

How early is early? How many hours before would you suggest?

Thanks