Some advice please

Coupon-mad

Good news Stuart and well done! This was case number C4QZ0V26 at Colchester.

Maybe the Prankster will blog about your day as I know you are OK with that; I love the fact the MIL person said he always loses! MIL don't often show up so this was a rare one not discontinued.

Coupon-mad

The WS (redacted) looked more or less like this and Stuart had written enough in his initial defence to build evidence on. This can't be copied verbatim for other cases and probably should have been split into a WS (for the facts) and a separate skeleton argument (for the legal arguments) but there was no time for faffing. It shows more or less what was submitted and the evidence in the bundle:



I am Stuart Hamilton and I am the Defendant in this matter. I am unrepresented, with no experience of Court procedures. If I do not set out documents in the way that the Claimant may do, I trust the Court will excuse my inexperience. In this Witness statement, the facts and matters stated are true and within my own knowledge, except where indicated otherwise.

I will say as follows:


1. This Claim arises from an alleged breach of contract relating to a parking incident in my own parking space outside a flat that I own under a Leasehold title. This is a flat that I rent out to a Housing Association and it comes with unfettered rights to the parking space.

Exhibit A – I have attached five pages of the lease, showing:
- 'The right to use the parking space for the parking of private motor vehicles'
- A schedule showing the division of the yearly service charge apportioned to the parking space.
- A map of the estate with the parking space allocated to our flat marked as number 94 (just above and to the left of centre of the map).
- A plan showing Flat 94 highlighted on its lower and upper stories.



2. Last year, between tenants, I was parked in my space to carry out maintenance to the flat and came out to find a £100 PCN on my car. On arrival, I had placed a notice in my car window to say that I was the owner of the flat, so the attendant knew that it was my space the car was parked within the meaning of the exemptions on the signage, as legal owner with pre-existing rights to park which were known to the parking firm.*

*(Appended email evidence Exhibit - an email from the parking company proving that they knew the Defendant was the owner with rights to park. This email is dated 3 days before the same company put the ticket on the Defendant’s car and before any tenant permit was supplied.



3. As the owner of the flat the Defendant has primacy of contract, being indisputably authorised and ‘sanctioned’ the right to park a car in the Defendant’s own demised space which is allocated to the flat. There is no term or contract applicable to me as legal owner of the flat, mandating the requirement to display a permit, or to pay a penalty to a third party for non-display of same. Permits were obtained for tenants to use but the Defendant could not be held in contravention of the signage as drafted.



4. The original parking operator’s signage at this site states “No unauthorised parking’’ and refers among other ambiguous and not clearly-worded headings: ‘‘visitors or residents not displaying a valid permit unless sanctioned’’ and ‘‘parking in a bay where authorisation has not been granted by the landowner’’.



5. In the event that the Court believes there was an attempt at forming a contract, the Defendant will interpret the above clauses with their normal meaning and assert that parking was granted and ‘sanctioned’ and was not ‘unauthorised’.



6. It is submitted that this notice is attempting to make a contractual offer which is forbidding, and as such does not fulfil the basic requirement of a contract, i.e. each party to the contract must offer valuable consideration to the other party, on clear terms capable of acceptance. In this case, the parking operator is not offering anything to a party with leasehold title who already enjoys an unequivocal right to park and access the property, unhindered. The notices cannot reasonably be construed as having created a contractual relationship between the original parking operator and the Defendant, remembering that this Claimant was not that ‘parking operator’ anyway.



7. I cite as Authority, the Judgment in the Appeal case of Jopson v Homeguard Services [2016] B9GF0A9E, Oxford County Court, 29 June 2016*
(*Appended as Exhibit C). In his Judgment, HHJ Harris QC states, at [18]: ‘It therefore seems clear to me that the respondent was not in any position unilaterally to override the right of access which the claimant had bought when she purchased the lease …’ and this Senior Circuit Judge commented that life in a block of flats would be unworkable if authorised access to properties by parties entitled to that grant, were to be subject to a penalty.


8. A similar case was recently heard at Croydon County Court, in PACE Recovery & Storage v Mr N (C7GF51J1)*, where District Judge Coonan stated in her Judgment at [18] ‘I have to be satisfied that the contract has been varied to include such a provision and I am not satisfied because I am not satisfied that clause 6(3) was complied with at any relevant stage. Therefore, the tenancy agreement takes precedence over the arrangement between Sutton and yourself, the claimant, Pace Recovery. As I have said, it is a pure matter of contract that I have to decide. Therefore, the claim is dismissed’.
(*Appended as Exhibit D).



9. In a similar case in UKPC v Masterson, B6QZ4H3R* at Edmonton in May 2016, DDJ Ellington found that signage stating ‘no unauthorised parking’ made no offer. He held: ‘‘I am not able to consider that that is an open offer to contract to park at first sight. If anything, it prohibits unauthorised parking on my reading of it.’’
(*Appended as Exhibit E)




10. I submit that these cases provide persuasive authority for my contention that my leasehold title has primacy of contract over the original creditor’s signage, which in any event exempts cars parked with authority or ‘sanction’. I consider that the attempt to impose a ‘fine’ on me for parking in my own bay is a case of derogation from grant which is not something for the courts to support against a flat owner.



11. There is no comparable ‘legitimate interest’ as found at the Supreme Court in the complex and completely different (retail park) case of ParkingEye v Beavis [2015] UKSC 67. In the UKPC v Masterson case, DDJ Ellington also distinguished the case from Beavis: ‘‘I am unable to accept that the particular circumstances of this case reveal a contractual licence to park with a contract between the parking manager, in this case UKPC, in the Supreme Court authority ParkingEye, and the vehicle owner or driver, in this case the defendant, and in the Supreme Court authority, Mr Beavis.''



12. The original Parking Charge Notice (PCN) was issued by ‘New World Facilities’ (NWF) a third party not in possession. The Claimant purports that NWF were the assignor or ‘seller’ of the alleged debt. It is denied that the alleged Assignor issued a Notice of Assignment and the Claimant is put to strict proof of the same. The barcode on the purported Assignment Notice matches that used by the Claimant themselves and the ‘assignment agreement’ mentioned is not filed in evidence at all. Nor does the evidence show any details or sum relating to this charge against this vehicle.



13. The Claimant is put to strict proof that any assignment they might plead conformed to the Law of Property Act 1925 and was properly executed in respect of the alleged debt before proceedings were issued. It is specifically denied that the letter produced by them purporting to have originated from their Assignor represents proper notice.



14. It is denied that an unconnected third party such as this Claimant can be lawfully authorised to purchase, store, process or otherwise use the data supplied by the DVLA under the KADOE contract to the PCN originator. Such data cannot be sold and a copy of the KADOE contract confirming this, will be brought to the hearing.



15. The Claimant has a track record in County Court hearings on the relatively rare occasions where they make an appearance, of finding their claims dismissed by District Judges for reasons similar to those I have set out. It is an established fact in the public domain, that the Claimant issues hundreds of similar claims annually, and frequently discontinues cases when it becomes clear that the Defendant intends to contest the claim at a hearing. The Notices of Discontinuance are frequently filed at the last minute, and not served on Defendants in many cases. A representative selection of case number where this has happened are shown below:
Appended as Exhibits (F) are a representative sample of cases in 2016 where MIL discontinued.



16. The Court is invited to dismiss the Claim as being without merit, and further, in the event that the Claimant should discontinue this Claim, to maintain the listed hearing date of 27 January 2017 as a costs hearing, in order that I can apply for a Costs Order against the Claimant.


I believe the facts stated in this Witness Statement are true to the best of my knowledge.

safarmuk

Thanks, very useful information C-M. Appreciated.

Stuart_Hamilton

A bit of a postscript.
I've just received a letter from MIL Collections asking the most irrelevant questions that they want answered and returned to them as my expense before they will consider paying my costs from the case.
I can only suppose that they are compiling a database of people that have defeated them in court.
They wanted to know:
Address, phone number, my bank name and address, my date of birth and for me to sign it so they have a copy of my signature.
Here is my email reply to them:

"[FONT=Tahoma, Arial, Helvetica, sans-serif]Dear Sirs,

I have received a standarised letter from you asking for various irrelevant personal details that you say you require before paying me the costs that you owe me.

I will remind you that the judge in the case has ordered you to pay my costs without delay.

I have no interest in adding to the information that hold on me and would insist that you send me a cheque made out in my name, to my address that you already have, and have been happy to use to send threatening letters, without more delay.

Please acknowledge receipt of this email and confirm that you will making this payment without delay.[/FONT]

twhitehousescat

the court has told them to pay you , Address, phone number, my bank name and address, is an acceptable question , other data is not needed

fred blogs
23 smith st
*** bank of***
anytown
sort code
account number

and sit back , they have your full name and address from the court claim , they only need bank details in order to pay you , signature? to compare with what?

edit: for a DPA claim

alas new world facilities use form v888/3 to obtain keepers details , the DVLA are admitting DPA faults , but claiming only for Kadoe access

new world
Date access granted to DVLA ANPR database: Manual requests only

read:
http://parking-prankster.blogspot.co.uk/2017/01/dvla-confirm-massive-data-protection.html

Redx

I doubt that if you had lost they would have given you their full name , full address , telephone number , date of birth and bank details for prompt payment from you to them

as you say , they can fffff off and send a cheque to the correct name and address and you keep the rest of those details private

Coupon-mad

I would not give them any data, I agree with you Stuart. Tell them a cheque posted immediately, this week, will suffice.

I wonder if MIL are trying to protect themselves from DPA breach claims (like Stuart will be able to now plan to do) by asking people to 'confirm/supply' certain data...so that if they are later pursued for data misuse, they could point and say 'but he also gave us that same data voluntarily...'

So - DON'T, is my advice.