CPM ticket while parked at the allocated parking

raselmahbub

Thanks Deep. Do I need to include this in the defense now, or I will get the chance later to ask for this?

Any other suggestions from other experts? I really need to know if I should include the correspondence I had with the letting agency. And also do mention that I was never issued a parking permit by the agency.

nosferatu1001

No, that's way fine the line. Skeleton argument time. Please use a British English check - defenCe not defenSe.

You cannot nick de any evidence yet, as the newbies thread clearly explains at post 2, your defenCe is just words. Nothing else.

You state that notwithstanding the fact you dint require a permit, one was not even provided.

Coupon-mad

Point number 2 in the defense below. Specifically where it says Claimant's failure to engage in pre-action correspondence . I have received several letters from GS including a letter before claim. I don't know if I am confusing this with something else. Can non compliance with CPR 16 be used in every case? Can I or Should I just avoid the Preliminary section completely?

Why avoid the (very relevant, does apply to all Gladstones claims and can help a Judge to see the issues) preliminary part entirely, when all you really need to do is delete the bit that they ''failed to engage in pre-action correspondence''. Just prune it to suit!

How do I mention about all the correspondence I had with the letting agent in regards to not providing me with the parking permit at the first place. OR shall I just ignore it as this may not be relevant to the case at all.
Also, do I need to mention anything about the appeal I did which was rejected anyway.

All of that goes into the Witness Statement (later) that you write in the first person, about the facts of what happened when. The NEWBIES thread explains, that's nearer the hearing date and it's when you also file your evidence.


In #7 you need to put right Johnersh's typo, and the cases should be in italics:

The Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by residents (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The [STRIKE]Claimant[/STRIKE] Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd(2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011.

And this may have been covered earlier in your thread, but do you actually have ''an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms''?

What did the advert for the flat rental say about parking spaces?

What did any section say about parking, in your actual AST?

I can see you said this (below) but has your own landlord confirmed what his lease says and.or has he/she confirmed in an email that you have been granted full rights to park, flowing from the rights afforded by his leasehold title?

Interestingly in his agreement, the management company is completely different (most probably this is the company who built this apartment block). And there are no clauses re parking t's and c's. It just only says that the number of parking places included in his lease is one.

You can add to your defence, as already suggested:

- that notwithstanding the fact you don't require a permit, one was not even provided.

- that you have as evidence, a leaseholder's agreement which states "Number of parking spaces included in this lease - One". Therefore, it is confidently argued that a parking space is included in the leases of these flats, as part of the demised property, and there are no clauses allowing variation of the lease to start charging for parking or restricting the bays from use by residents.

raselmahbub

Thank you everyone for all your suggestions.

@CouponMad and nosferatu1001, I have added point 7 and 8 to include your suggestions with some additional comments from my own. Please have a look.
Also added some extra points 20-22 to include the additional charge explanation from the claimant.

On a side note, I found an interesting clause in my tenancy agreement. Just wondering if this in anyway helps me in my case as I could not get hold of the head lease from my landlord and I do not know anything about the agreement (if there was any) between the landlord and the MA or the Parking company.
My AST agreement says:
"Head Lease" or “Superior Lease” means the document which sets out the promises the Landlord has made to the Superior Landlord. The promises contained in this Head Lease will bind the Tenant if he has prior knowledge of those promises.

And certainly I do not have any prior knowledge of any type of parking agreements in the head lease (if there is any)

DEFENCE

Preliminary

1. The Particulars of Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.
   
2. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct. The Defendant further notes the Claimant's failure to engage in pre-action correspondence in accordance with the pre-action protocol and with the express aim of avoiding contested litigation.
   
   
   Authority to Park and Primacy of Contract
3. It is admitted that at all material times the Defendant is the registered keeper of vehicle registration mark XXZZZ which is the subject of these proceedings. The vehicle is insured with Tesco Car Insurance with 1 named driver permitted to use it. The defendant is also the tenant of the flat no 32 of the residential area with a personal allocated parking space.
   
4. It is admitted that on [date] the Defendant's vehicle was parked at the parking bay no 32 (which can also be evident by the pictures taken by the UKCPM) in the secured underground residential parking of the property.
   
5. There is no agreement with Defendants’ Lease, that states the Leaseholder have to display a parking permit, pay for a ticket or pay penalties to a third party for non-display of any type of permit. Primacy of contract cannot be amended by PPC signs unless the defendant has agreed to variation of the tenancy, which clearly he has not.
   
6. It is denied that the Defendant or lawful users of his/her vehicle were in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the Defendant permitting the above mentioned vehicle to be parked by the current occupier and leaseholder of [address], whose tenancy agreement permits the parking of vehicle(s) on land. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms. The lease terms provide the right to park a vehicle in the relevant allocated bay, without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle or the requirement to display a parking permit. The picture taken by the UKCPM also proves that the vehicle was parked at the bay number 32. A copy of the lease/tenancy agreement will be provided to the Court, together with witness evidence that prior permission to park had been given.
   
7. Notwithstanding the fact that the defendant doesn’t require a permit, one was not even provided by the letting agent. Additionally, it was clearly mentioned in the rental advert of the letting agency that the property comes with an allocate parking space. The defendant didn’t feel the need to stop and read all the small prints of the signage as the big readable letters clearly says ‘PARKING RESTRICTIONS’. And it is submitted that the parking of the defendant’s vehicle was not unauthorised or in any way restricted.
   
8. The Defendant has as evidence, a leaseholder's agreement which states "Number of parking spaces included in this lease - One". Therefore, it is confidently argued that a parking space is included in the leases of these flats, as part of the demised property, and there are no clauses allowing variation of the lease to start charging for parking or restricting the bays from use by residents.
   
9. The Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by residents (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd(2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. In Pace v Mr N [2016] C6GF14F0 [2016] and in Link Parking v Ms P C7GF50J7 [2016] it was found that the parking company could not override the tenant's right to park by requiring a permit to park. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial.
   
10. Accordingly, it is denied that:
    8.1 There was any agreement as between the Defendant or driver of the vehicle and the Claimant.
    8.2 There was any obligation (at all) to display a permit; and
    8.3 The Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.
11. The car park has a gated entrance which can only be opened by the authorised people and residents of the property with a key fob. The defendant was also given a key fob to provide unrestricted access to the parking area and the allocated parking space. In this case, it is my belief as registered keeper and the lawful tenant of the property [address] that the vehicle was parked inside the premise without any restrictions during the time of the alleged incidents.
    
12. The signage displayed only makes an 'offer of parking' to permit holders, and therefore only permit holders can be potentially bound by the contractual terms conveyed (and only if the terms were clear and prominent as adequate notice of the charge, which is denied). The only clear large lettering was 'PARKING RESTRICTIONS' and it is submitted that the presence of the vehicle was certainly not 'unauthorised'.
    
13. The reason for this parking company's presence on this gated site can only be for the sole purpose of deterring parking by uninvited persons, for the benefit of drivers authorised by the leaseholder businesses. Instead, contrary to various consumer laws, this Claimant carries out a predatory operation on those very people whose interests they are purportedly there to uphold.
    
14. The Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to impose a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.
    
15. The Defendant avers that the residential site that is the subject of these proceedings is not a site where there is a commercial value to be protected. The Claimant has not suffered loss or pecuniary disadvantage. The penalty charge is, accordingly, unconscionable in this context, with ParkingEye distinguished.
    
16. The defendant was provided unrestricted access to the parking area by the tenancy agreement and most importantly the security key fob to the gated entrance. Landholders cannot allow or promise this on the one hand, then on the other hand, take away this permission or promise, in allowing a third party to disallow and/or seek to charge for the permitted action by a driver. The penalty charge represents a breach of the well-known and well-established principle that 'a grantor shall not derogate from his grant'. This rule embodies a general legal principle that, if A agrees to confer a benefit on B, then A should not do anything that substantially deprives B of the enjoyment of that benefit.
    
17. 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, who later proposed to reduce the availability of parking and to charge for it. On appeal it was held that 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.
    
18. It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking parking management. The Claimant has provided no proof of any such entitlement.
    
19. It is denied that the Claimant has any entitlement to the sums sought.
    
20. The Claimant failed to explain the basis on which the over and above initial charges are being claimed in different letters starting from £149, £160, £165.86.
21. No figure for additional charges was 'agreed' nor could it have formed part of the alleged 'contract' because no such indemnity costs were quantified on the signs. Terms cannot be bolted on later with figures plucked out of thin air, as if they were incorporated into the small print when they were not.
22. The Defendant also disputes that the Claimant has incurred £50 solicitor costs. The Defendant has the reasonable belief that the Claimant has not incurred £50 costs to pursue an alleged £100 debt.
    
23. It is admitted that interest may be applicable, subject to the discretion of the Court on any sum (if awarded), but it is denied that interest is applicable on the total sums claimed by the Claimant.

Statement of Truth:
I confirm that the contents of this statement are true to the best of my knowledge and belief.

I am ready to post this as soon as I get a green signal from you guys!
Many thanks

raselmahbub

I know everyone is busy here and realistically do not have the time to read that long defence I posted. Still I am asking for your help because without your support it would have been impossible for me to start this fight alone.
I will run out of time very soon.

[Deleted User]

11,12,16,17 delete second sentence of 21, rephrase 22.

This looks and reads as though bolted together - for example citing Saeed twice (referring to the case name slightly differently). I think you can delete all the paragraphs marked above and rephrase as directed without losing any of the argument you are seeking to make. Keep this focussed.

I would deny an entitlement to claim the level of costs sought, since DRP work on a "no win no fee" basis and its their letters that generally appear to increase the costs. If you haven't paid, they won't have charged. No secret, that information is available on their website!

raselmahbub

Thanks Jhonersh..

raselmahbub

Quick Update.
I have emailed the Defence statement to the CCBC today. Also posted the hard copy by post.

raselmahbub

Received the acknowledgement letter from the court today.

raselmahbub

Received the DQ from Gladstone today. Same old format... no mediation and requesting the judgement on paper including a N159 form.

Even though it is mentioned everywhere in this forum what to do next... I just wanted to double check my next steps with you guys one more time..

- Wait for the DQ form from Court.
- Once received, fill out the form as instructed by bargepole (sticky).
- In the mean time start preparing the WS and Skeleton Arg.

@Coupon-mad, just an idea - is it possible to create a sticky for all complete cases where posters will update the outcome of the case. For example, I can just go there and update my situation like:

• Type of Issue: PCN at allocated space in Residential Parking
• Issuer/Claiment: UKCPM
• Claiments Solicitor: Gladstone
• Ticket Issue date: 08/02/2017
• Court hearing: TBC
• Outcome: TBC