Court Summons

Umkomaas

barry22 wrote: »

Hi, company name is one parking ltd.

Try again.

What's the company number on the bottom of it? Never mind the sign, what company number is on the PCN?

barry22

oops, 08267109

Coupon-mad

OK so it was issued by OneParking (some earlier ones were issued by the dissolved C2C). Never mind, crack on with your defence and add what's been suggested very strongly as your main defence point:

Redx wrote: »

cant see anything about the COA Jopson case about tenants rights , nor about "the right to peaceful enjoyment" and being free of harassment

read the recent pranksters blog which sets it all out , with cases and case numbers

and yes I know its a MIL case bought from C2C, so you may have the right to counter claim due to the DPA once this alleged debt was sold to MIL by C2C ( £750 comes to mind )

Sounds like a strong argument re 'derogation from grant' and so the Jopson appeal case & Saeed v Plustrade Ltd can be used.

You have the primacy of contract and a third party parking firm can't interfere with your lease, nor can they assign (or pretend to assign) the 'charge' to an unrelated party due to a DPA breach and DVLA KADOE breach.

Your case reminds me of this defence written recently as you also need 'promissory estoppel' (Google it) because you were told you did not need a permit and were entitled to rely on that promise from your landlord and on your lease agreement:

https://forums.moneysavingexpert.com/discussion/comment/71643736#Comment_71643736

That one was in fact written about an employee car park, not a residential one, but it has some wording you can crib.

Conner777

Hi
I received a ticket from private company for an allocated space.. Allocated to myself might I add.
My permit had fallen without my knowledge as away from car, from this ticket I appealed against it with the reason just shown, and now I am facing demand for payment from debt recovery? What should I do?

Quentin

You need to start your own thread, and not just jump into someone elses.


(Though you don't need to start a thread asking what to do about debt recovery demanding money! See https://forums.moneysavingexpert.com/discussion/5035663)

barry22

Thanks for the advice everyone. I have amended the defence as below (points 1-8 remain unchanged from above). I have to submit it on Thursday so any final comments are appreciated.



9. If a breach of contract is being alleged, the Defendant submits there was no valid contract between the Operator and the Defendant. The only contract in existence is between the Landowner and the Defendant in the form of a tenancy agreement. The rules pertaining to parking restrictions are contained within Clause 3.16 of the tenancy agreement (Annexure D).

10. The tenancy agreement places a number of restrictions on residents who park their vehicles on the premises. The displaying of a permit is not one of the restrictions contained within the agreement.

11. Having spoken to the Landowner at the time of receiving correspondence from the Operator pertaining to the need to display a permit, the Defendant was assured his right to park had not been further restricted and he was able to continue to park without displaying a permit as his vehicle details were kept by the Landowner and could be identified as belonging to a tenant of the premises.

12. The tenancy agreement is not able to be unilaterally altered by the Operator. Additional restrictions on parking must be made by a party to the original contract not a third party. In Pace Recovery and Storage v Mr N, C6GF14F0, Croydon CC, 16/09/2016 this was reaffirmed by District Judge Coonan who dismissed the claim and refused leave to appeal. In Link Parking v Ms P, C7GF50J7 Wrexham CC, 02/11/2016 it was also held that the Operator could not override the tenant's right to park by requiring a permit to park.


13. The Operator erected signage at the premises following the issuing of permits which attempted to form a contract with motorists (Annexure E). However, given the advice the Defendant had received from the Landowner as well as the Landowner’s signage at the premises stating ‘Parking for **** ***** Residents Only’, the Defendant has the reasonable belief that the Operator’s intention was not to offer a genuine contract to residents but was to deter non-residents by attempting to enforce a penalty. The Defendant refers the court to Civil Enforcement Ltd v McCafferty, 3YK50188, Luton CC, 21/02/2014 which was decided by Mr Recorder Gibson QC in almost identical words.

14. It is submitted the Operator’s management of the site was to enforce the Landowner’s restriction to stop non-residents from utilising the parking facilities not to target residents exercising their right to park outside their premises.

15. Furthermore, in the event the Operator’s signage did constitute a contract, the primacy of the Defendant’s contract with the Landowner in the form of a tenancy agreement would render this void. As stated in paragraph 12, the contract between Landowner and the Defendant is not able to be unilaterally altered. In Jopson v Homeguard, 9GF0A9E, Oxford CC, 29/06/2016 on appeal it was found the parking management company could not override the tenant's right to temporarily stop near the building entrance for loading/unloading.

16. If the Claimant is basing the claim on a breach of a licence, as opposed to breach of contract, the offence would be one of trespass and could only be pursued by the land-owner.

17. If the court finds a contract existed between the Operator and the motorist, the provision requiring payment of £100 within 28 days is an unenforceable penalty clause.

18. Further and alternatively, the provision requiring payment of £100 is unenforceable as an unfair term contrary to the Consumer Rights Act 2015 unless it is found the charge is a pre-estimate of loss or there is commercial justification. In ParkingEye v Beavis [2015] UKSC 67, 04/11/2015, the Supreme Court found that £85 was not a genuine pre-estimate of loss in as there was no direct loss to the parking management company. It is submitted that the Claimant or Operator would find it difficult to provide commercial justification for charging residents hundreds of pounds a year to park outside their premises.

19. The Defendant further disputes that the Claimant has incurred £50 in ‘Administration and Collection fees’ as stated in the Particulars of Claim. The Defendant draws the Court’s attention to the judgment in Vehicle Control Services Ltd. v Ibbotson, 1SE09849 S!!!!horpe CC, 16/05/2012 which stated that only the costs directly resulting from the alleged parking infringement may be included in the claim, and not an arbitrary proportion of normal business costs. The Claimant is to put to proof a breakdown of the ‘Administrative and Collection fees’ referred to in the Particulars of Claim.

20. The charges represent a breach of the well-known and well-established principle of promissory estoppel. In this case the Defendant has relied upon a promise made by his landlord (the Landowner) that his right to park outside his place of residence is not effected by the Operator’s management of the car-parking facilities. The reliance on this promise by the Defendant was to his detriment.

21. The charges also represent a breach of the well-known and well-established principle that 'a grantor shall not derogate from his grant'. Landholders cannot allow or promise a right to park to a tenant on the one hand, and then subsequently take away this permission or promise, by allowing a third party to disallow and/or seek to charge for the permitted action by a tenant.

22. The above has been confirmed in case law. In Saeed v Plustrade Limited [2001] EWCA Civ 2011, a tenant was granted a right in common with others to park on such part of the forecourt as might from time to time be specified by the Landholder. The Landholder later proposed to reduce the availability of parking and to charge those who wished to park. On appeal it was held the Landholder was only entitled to change the location of spaces, not to reduce their number, nor to unreasonably restrict parking previously offered, nor to charge for it. Such restrictions would interfere with easements enjoyed under the lease.

23. Given the above points, the Court is invited to strike out the claim as having no prospect of success. It is submitted that this is a vexatious litigant, merely buying sets of photographs from parking firms for as little as £1, with the aim of inflating any damages for this Claimant's own profit. This claimant is wantonly and officiously intermeddling in cases where they have no prior interest; this is frivolous litigation with no evidence nor any particulars that could give rise to a claim in law.

24. If the court chooses not to strike out the claim, the Defendant invites the court to order the Operator to be added as a party to the claim.

25. I believe the facts stated in this defence are true.

Coupon-mad

barry22 wrote: »

[FONT=&quot]Claim Number: [/FONT]
[FONT=&quot]Statement of Defence[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]It is admitted that the Defendant is the registered keeper of the vehicle in question.[/FONT]
[FONT=&quot]1. [/FONT][FONT=&quot]The Defendant denies any liability whatsoever to the Claimant for all of the following reasons, any one of which is fatal to the Claimant’s case:[/FONT][FONT=&quot] [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]i) [/FONT][FONT=&quot]The Claimant has no valid assignment of debt in the form of a signed Deed of Assignment pursuant to s136 of the Law of Property Act 1925. Absent of such evidence, the Claimant has no cause of action. The Deed of Assignment (Annexure A) and Letter Before Action copies (Annexure are unsigned with the same barcode header, which may indicate both were produced by the Claimant.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]ii) [/FONT][FONT=&quot]The Claimant has no interest in any purported original contract and it is submitted that the Deed of Assignment is champertous.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]iii) [/FONT][FONT=&quot]The Claimant’s original claim form does not contain a signature that meets the requirements of the Civil Procedure Rules Part 22 and Practice Direction 22 which state a statement of truth must ‘where a document is to be verified on behalf of a company or other corporation…be signed by a person holding a senior position in the company or corporation.’ [/FONT][FONT=&quot]In the Particulars of Claim the Claimant's statement of truth has not been signed/verified and cannot be relied upon.[/FONT][FONT=&quot][/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]iv) [/FONT][FONT=&quot]The Defendant has never owed any debt to the Operator (Capital 2 Coast Parking Management) to be assigned[/FONT][FONT=&quot]. If a debt had existed, it would be due to the Landowner (***** ******) not the operator, nor the Claimant.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]v) [/FONT][FONT=&quot]The Defendant’s right to park is by virtue of a tenancy agreement with the Landowner. As such even if it could be proven the Defendant was the driver of the vehicle at the time of the alleged infringement, the Operator had no capacity to offer a contract with the Defendant. Nor was the Operator able to unilaterally alter the contract between the Defendant and Landowner, by restricting the right to park.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]2. [/FONT][FONT=&quot]The Defendant neither confirms nor denies being the driver of the alleged offence. It is therefore for the Claimant to provide proof that this is the case and that keeper liability has been[/FONT][FONT=&quot] [/FONT][FONT=&quot]established by the issue of compliant documents, in[/FONT][FONT=&quot] [/FONT][FONT=&quot]accordance with Schedule 4 of the Protection of Freedom Act 2012.[/FONT][FONT=&quot] [/FONT][FONT=&quot][/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]3. [/FONT][FONT=&quot]The Claimant has no right to assert that the Defendant is liable based on ‘reasonable assumption’. Parking and Traffic Appeals Service (PATAS) and Parking On Private Land Appeals (POPLA) Lead Adjudicator and Barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, 'there is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and operators should never suggest anything of the sort' (p.12 POPLA Annual Report 2015).[/FONT][FONT=&quot][/FONT]

[FONT=&quot]4. [/FONT][FONT=&quot] The Claimant has provided no evidence that there was a valid assignment of debt and as such is put to strict proof that a Deed of Assignment signed by the original creditor, pursuant to section 136 of the Law of Property Act 1925 exists. Absent of such evidence the Claimant has no locus in this matter. [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]5. [/FONT][FONT=&quot]If a valid Deed of Assignment were to exist, the Claimant has no interest in, or privy to any purported original contract and it is submitted that the Deed of Assignment is champertous. The sole purpose is to enable the Claimant to instigate legal proceedings, which is a chose in action, and on that basis the Claim should be struck out by the Court, as was the case in MIL Collections v Stephen Bowker, B1QZ7N32, Oldham CC 15/01/2016.[/FONT]

[FONT=&quot]6. [/FONT][FONT=&quot]The Claimant is to put to proof that the Operator had sufficient interest in the land or that there were specific terms in the contract between the Landowner and Operator to entitle the Operator to bring an action on its own behalf as required in the British Parking Association’s Legislation Guidance to Operators.[/FONT][FONT=&quot] [/FONT]

[FONT=&quot]7. [/FONT][FONT=&quot]Case law in recent years suggests without such proof the Claimant has no locus standi to initiate legal proceedings. ParkingEye Ltd. v Sharma, 3QT62646, Brentford CC, 23/10/2013 examined the contract between the Landowner and Claimant and dismissed the Claimant’s case as the Claimant had no ownership of, or proprietary interest in, the land. It followed that the Claimant, acting as an agent, had no locus standi to bring court proceedings in its own name.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]8. [/FONT][FONT=&quot]The Claimant has not disclosed whether its case is one of breach of contract or breach of license.[/FONT]
[FONT=&quot] [/FONT]

I've quoted your points 1 - 8 as on my PC these were on page one, too far back! Spotted a typo, should be:

Licence (noun) not license (verb).

And your new points jump about a bit, for example point #11 is about the promise made to you as a resident, by the landholder. So IMHO that should be next to the point about promissory estoppel.

And #12 is similar to #21 and #22 so they should be grouped together.

This will be too wordy for MCOL's defence box so you will need to email it or send it tomorrow by Special Delivery as suggested by bargepole here in post #35, where he also shows you how to make it look:

https://forums.moneysavingexpert.com/discussion/comment/71669650#Comment_71669650

snellosaurus emailed his as a printed out, dated & signed, then scanned attachment.

Oh, and do not attach annexed information/evidence/photos yet. That comes later (before any hearing - if this is not discontinued as MIL cases often are!) as is also explained by bargepole in his post I've linked about what happens when, under 'Small Claim?' in the NEWBIES thread.

barry22

That's very helpful. Thanks again. I have made those adjustments and am going to print, sign and scan in to be emailed tomorrow.

I will not attach the Exhibits.

I appreciate everyone's help and I will let you know how it goes.

barry22

Hello, just to let you know the claim has been discontinued by MIL (which I have been led to understand is an acronym for Money grabbing Inept Litigants). I awaited confirmation of this from the court before posting as I have heard that MIL have form in this regard.
Thank you all for your help and support in this matter. I hope that my defense points will be of assistance to future victims of MIL.

Kind_Of_Irritated

Well done. Did you find out via MIL themselves?