Loading/Unloading outside my property

im_bigel

I've sent an email but unfortunately the housing officer has changed!!! New housing officer says she is struggling to locate this letter or doesn't want to.

Coupon-mad

Ask a few neighbours who have been there a long time.

im_bigel

The facts in this statement come from my personal knowledge. Where they are not within my knowledge they are true to the best of my information and belief.

I am not liable to the Claimant for the sum claimed, or any sum at all and this is my Statement of Defence.

I assert that I am the registered keeper of the vehicle in question, registration xxxxxxxx. I also assert that I was the registered keeper of that vehicle on the date 29/12/2016. I can also confirm that I was the driver of the vehicle.

1 . I stopped outside the entrance of my flat to unload a 40 inch television and 8 bags of grocery shopping. (this cannot reasonably be carried from my legal parking spot). At no time was I parked, and my vehicle was only unloading for a matter of minutes.

2. My lease imposes no Loading /unloading conditions although a permit for parking is displayed purely for the convenience of the claimant's parking attendant.

3. No parking has taken place therefore no Parking charge can be issued.

(A) The Road Traffic Regulation Act 1984 and The Highway Code talk about "parking","waiting", "loading or unloading" and "setting down or picking up passengers", each as a separate activity. "Loading and unloading" or "setting down or picking up passengers" are clearly different from parking or waiting.

(B) Loading or unloading with the permission of the landholder is not 'parking' and signs cannot override existing rights enjoyed by landowners and their visitors, as was found in the Appeal case decided by His Honour Judge Harris QC at Oxford County Court, in a similar case number B9GF0A9E: 'JOPSON V HOME GUARD SERVICES’.

(C) In the Jopson appeal it was also held as a finding of fact, that stopping to unload was not 'parking'.

(D) In the Jopson appeal it was also held that signs added later by a third party parking firm are of no consequence to authorised visitors to premises where other rights prevail and supersede any alleged new 'parking contract’.

(E) In any event, the signs make no offer to authorised visitors engaged in permitted loading/unloading for which no 'parking permit' was ever required (neither before the arrival of this Claimant onsite, nor after).

(F) In the Jopson appeal in June 2016, the Senior Circuit Judge found that the position was analogous to the right to unload which was the subject of Bulstrode v Lambert [1953] 2 All ER 728.
''After considering the facts at the time of the grant, Mr Justice Upjohn ruled that an ancillary right to stop, load and unload may be implied into the express grant of a right of way where such a right is necessary for the reasonable enjoyment of the right of way.'' The right of way in that case was: “To pass and re-pass with or without vehicles…for the purposes of obtaining access to the building…known as the auction mart.''

4. If it can be proven that "parking" has occurred The Claimant did not comply with the IPC code of practice (Part B 15.1), regarding grace periods: “Drivers should be allowed a sufficient amount of time to park and read any signs so they may make an informed decision as to whether or not to remain on the site.” 10 mins is generally accepted to be the minimum amount of time to read and understand a contract and make a decision to park or not to park.

5 . Signage.
The claimants signs do not mention anything regarding "loading" or "unloading" so it is impossible for any contract to be established. The claimants signs only mention "parking" and at no time was my vehicle "parked" otherwise than in accordance with. (Photograph evidence of sign boards are available to be provided upon request.)

6. The presence of the Claimant on the land will have supposedly been to prevent parking by uninvited persons, for the benefit of the actual leaseholders. Instead, a predatory operation has been carried out on those very people whose interests the Claimant was purportedly there to uphold.

7. It is denied that the Claimant has authority to bring this claim. The proper Claimant is the landowner. Strict proof is required that there is a chain of contracts leading from the landowner to Parking and Property Management Ltd and that they have a right to unilaterally remove or interfere with the overriding rights enjoyed by the lessee who is expressly allowed on site. The claimant is unable to re-offer a contract on more onerous terms that those already specified in the lease, which grants an easement/ right for the leaseholder at all times to use the common parts for all purposes incidental to the occupation and enjoyment of the premises.

8. If there was a contract, it is denied that the penalty charge is incorporated into the contract. The leaseholders' lease is missing any reference to parking permit requirements and involvement of Parking and Property Management Ltd. And there is no evidence that the original lease contract and revised lease contract with specific details of Parking and Property Management Ltd role and involvement was shared with the defendant.

9. Alternatively, even if there was a contract, the provision requiring payment of £160 is an unenforceable penalty clause.


(B) Further and alternatively, the provision requiring payment of £160 is unenforceable as an unfair term contrary to Regulation 5 of The Unfair Terms in Consumer Contracts Regulations 1999 the Consumer Rights Act 2015.

( C) The Claimant has at no time provided an explanation how the sum has been calculated, the conduct that gave rise to it or how the amount has climbed from £100 to £160. This appears to be an added cost with apparently no qualification and an attempt at double recovery, which the Protection of Freedoms Act 2012 Schedule 4 specifically disallows.

(E) Furthermore, Paragraph 4, Schedule 4 of the Protection of Freedoms Act 2012 does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. The Claimant claims a sum of £100 as a ‘parking charge’ (for which liability is denied). The Particulars of Claim include an extra £60 that the claimant has untruthfully presented as parking charges plus interest.


10. This charge represents a breach of the well-known and well-established principle of promissory estoppel, i.e. that a promise is enforceable by law, even if made without formal consideration, when party A has made a promise to party B, who then relies on that promise to his subsequent detriment.


11. This 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.

12. Parking and Property Management Ltd are not the lawful occupier of the land.

(A) absent a contract with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no locus stand to bring this case.



13. The provision is a penalty and not a genuine pre-estimate of loss for the following reasons:

(A) As the Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the locations in question
(B) The amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable;
(C) The penalty bears no relation to the circumstances as I was simply stopped for temporary loading/unloading and no loss or damage to the Claimant arose from this.
(D) The clause is specifically expressed to be a parking charge on the Claimant's current signs.

14. Claimant has omitted to respond to online appeals.
(A) Defendant has submitted online appeal detailing circumstances and provided receipt for Television clearly time stamped to support case.
(B) Claimant has omitted to respond within 28 days as required by The Independent Parking Committee - Code of Practice 6.1 (e)
(C) Claimant has also denied the defendant the right to appeal to an independent body as outlined in The Independent Parking Committee - Code of Practice 6.2
"If an appeal is unsuccessful, you must notify the appellant, at the same time as you reject their appeal, that they have the right to further appeal to the IAS."

15. Lack of detail within the Particulars of Claim

(A) I received County Court papers on the 7th April where within their particulars of claim it cited “parking charges”, as seen in Exhibit (?).
I am unsure what reasons Parking and Property Management LTD are using for taking the case to court as they have provided very limited particulars of claim (PoC). I had received letters, which stated reasons for the charge as parking in no parking area’ but I have since appealed this reason in that I was stopped to unload, not parked.

(B) It is unknown if anything that I have previously stated within my online appeal changed their reasoning, or why the claimant may find it deemable to raise this case to court as I did not receive a response and there is no detail offered of what “parking charges” entails within the PoC. The PoC does not meet the requirements of Practice Direction 16.5 as there is nothing which specifies how any terms were breached. Indeed the PoC are not clear and concise as is required by CPR 16.4 1(a) and CPR 1.1 and 1.4. This therefore means that the Claimant has not complied with the pre-court protocol.

16. Lack of detail within the Particulars of Claim “RoboClaim”

The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no diligence, no scrutiny of details nor even checking for a true cause of action. HMCS have identified over 1000 similar sparse claims. I believe the term for such conduct is ‘roboclaims’ which is against the public interest, and unfair on unrepresented consumers. Parking companies using the small claims track as a form of aggressive, automated debt collection is not something the courts should be seen to support in accordance with CPR 1.1 2(a) “ensuring that the parties are on an equal footing”.

As an unrepresented consumer I am immediately at a disadvantage compared to trained solicitor in the matter and this is aggravated by Gladstones Solictors whom are not following CPR 16.4 1(a) as I have not received a detailed PoC to be able to properly formulate a concentrated argument.

(A) On the 20th September 2016 another relevant poorly pleaded private parking charge claim by Gladstones was struck out by District Judge Cross of St Albans County Court without a hearing due to their ‘roboclaim’ particulars being incoherent, failing to comply with CPR. 16.4 and ‘providing no facts that could give rise to any apparent claim in law’
(B) On the 19th August 2016 DJ Anson sitting at Preston County Court ruled that the very similar parking charge particulars of claim were deficient and failing to meet CPR 16.4 and PD 16 paragraphs 7.3 - 7.5. He ordered the Claimant in that case to file new particulars which they failed to do, and the court confirmed the claim will now be struck out.

The defendant therefore asks that the court orders the case to be struck out for want of a detailed course of action and/or for the claim as having no prospect of success.

Statement of Truth:

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

im_bigel

The facts in this statement come from my personal knowledge. Where they are not within my knowledge they are true to the best of my information and belief.

I am not liable to the Claimant for the sum claimed, or any sum at all and this is my Statement of Defence.

I assert that I am the registered keeper of the vehicle in question, registration xxxxxxxx. I also assert that I was the registered keeper of that vehicle on the date 29/12/2016. I can also confirm that I was the driver of the vehicle.

1 . I stopped outside the entrance of my flat to unload a 40 inch television and 8 bags of grocery shopping. (this cannot reasonably be carried from my legal parking spot). At no time was I parked, and my vehicle was only unloading for a matter of minutes.

2. My lease imposes no Loading /unloading conditions although a permit for parking is displayed purely for the convenience of the claimant's parking attendant.

3. No parking has taken place therefore no Parking charge can be issued.

(A) The Road Traffic Regulation Act 1984 and The Highway Code talk about "parking","waiting", "loading or unloading" and "setting down or picking up passengers", each as a separate activity. "Loading and unloading" or "setting down or picking up passengers" are clearly different from parking or waiting.

(B) Loading or unloading with the permission of the landholder is not 'parking' and signs cannot override existing rights enjoyed by landowners and their visitors, as was found in the Appeal case decided by His Honour Judge Harris QC at Oxford County Court, in a similar case number B9GF0A9E: 'JOPSON V HOME GUARD SERVICES’.

(C) In the Jopson appeal it was also held as a finding of fact, that stopping to unload was not 'parking'.

(D) In the Jopson appeal it was also held that signs added later by a third party parking firm are of no consequence to authorised visitors to premises where other rights prevail and supersede any alleged new 'parking contract’.

(E) In any event, the signs make no offer to authorised visitors engaged in permitted loading/unloading for which no 'parking permit' was ever required (neither before the arrival of this Claimant onsite, nor after).

(F) In the Jopson appeal in June 2016, the Senior Circuit Judge found that the position was analogous to the right to unload which was the subject of Bulstrode v Lambert [1953] 2 All ER 728.
''After considering the facts at the time of the grant, Mr Justice Upjohn ruled that an ancillary right to stop, load and unload may be implied into the express grant of a right of way where such a right is necessary for the reasonable enjoyment of the right of way.'' The right of way in that case was: “To pass and re-pass with or without vehicles…for the purposes of obtaining access to the building…known as the auction mart.''

4. If it can be proven that "parking" has occurred The Claimant did not comply with the IPC code of practice (Part B 15.1), regarding grace periods: “Drivers should be allowed a sufficient amount of time to park and read any signs so they may make an informed decision as to whether or not to remain on the site.” 10 mins is generally accepted to be the minimum amount of time to read and understand a contract and make a decision to park or not to park.

5 . Signage.
The claimants signs do not mention anything regarding "loading" or "unloading" so it is impossible for any contract to be established. The claimants signs only mention "parking" and at no time was my vehicle "parked" otherwise than in accordance with. (Photograph evidence of sign boards are available to be provided upon request.)

6. The presence of the Claimant on the land will have supposedly been to prevent parking by uninvited persons, for the benefit of the actual leaseholders. Instead, a predatory operation has been carried out on those very people whose interests the Claimant was purportedly there to uphold.

7. It is denied that the Claimant has authority to bring this claim. The proper Claimant is the landowner. Strict proof is required that there is a chain of contracts leading from the landowner to Parking and Property Management Ltd and that they have a right to unilaterally remove or interfere with the overriding rights enjoyed by the lessee who is expressly allowed on site. The claimant is unable to re-offer a contract on more onerous terms that those already specified in the lease, which grants an easement/ right for the leaseholder at all times to use the common parts for all purposes incidental to the occupation and enjoyment of the premises.

8. If there was a contract, it is denied that the penalty charge is incorporated into the contract. The leaseholders' lease is missing any reference to parking permit requirements and involvement of Parking and Property Management Ltd. And there is no evidence that the original lease contract and revised lease contract with specific details of Parking and Property Management Ltd role and involvement was shared with the defendant.

9. Alternatively, even if there was a contract, the provision requiring payment of £160 is an unenforceable penalty clause.


(B) Further and alternatively, the provision requiring payment of £160 is unenforceable as an unfair term contrary to Regulation 5 of The Unfair Terms in Consumer Contracts Regulations 1999 the Consumer Rights Act 2015.

( C) The Claimant has at no time provided an explanation how the sum has been calculated, the conduct that gave rise to it or how the amount has climbed from £100 to £160. This appears to be an added cost with apparently no qualification and an attempt at double recovery, which the Protection of Freedoms Act 2012 Schedule 4 specifically disallows.

(E) Furthermore, Paragraph 4, Schedule 4 of the Protection of Freedoms Act 2012 does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. The Claimant claims a sum of £100 as a ‘parking charge’ (for which liability is denied). The Particulars of Claim include an extra £60 that the claimant has untruthfully presented as parking charges plus interest.


10. This charge represents a breach of the well-known and well-established principle of promissory estoppel, i.e. that a promise is enforceable by law, even if made without formal consideration, when party A has made a promise to party B, who then relies on that promise to his subsequent detriment.


11. This 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.

12. Parking and Property Management Ltd are not the lawful occupier of the land.

(A) absent a contract with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no locus stand to bring this case.



13. The provision is a penalty and not a genuine pre-estimate of loss for the following reasons:

(A) As the Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the locations in question
(B) The amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable;
(C) The penalty bears no relation to the circumstances as I was simply stopped for temporary loading/unloading and no loss or damage to the Claimant arose from this.
(D) The clause is specifically expressed to be a parking charge on the Claimant's current signs.

14. Claimant has omitted to respond to online appeals.
(A) Defendant has submitted online appeal detailing circumstances and provided receipt for Television clearly time stamped to support case.
(B) Claimant has omitted to respond within 28 days as required by The Independent Parking Committee - Code of Practice 6.1 (e)
(C) Claimant has also denied the defendant the right to appeal to an independent body as outlined in The Independent Parking Committee - Code of Practice 6.2
"If an appeal is unsuccessful, you must notify the appellant, at the same time as you reject their appeal, that they have the right to further appeal to the IAS."

15. Lack of detail within the Particulars of Claim

(A) I received County Court papers on the 7th April where within their particulars of claim it cited “parking charges”, as seen in Exhibit (?).
I am unsure what reasons Parking and Property Management LTD are using for taking the case to court as they have provided very limited particulars of claim (PoC). I had received letters, which stated reasons for the charge as parking in no parking area’ but I have since appealed this reason in that I was stopped to unload, not parked.

(B) It is unknown if anything that I have previously stated within my online appeal changed their reasoning, or why the claimant may find it deemable to raise this case to court as I did not receive a response and there is no detail offered of what “parking charges” entails within the PoC. The PoC does not meet the requirements of Practice Direction 16.5 as there is nothing which specifies how any terms were breached. Indeed the PoC are not clear and concise as is required by CPR 16.4 1(a) and CPR 1.1 and 1.4. This therefore means that the Claimant has not complied with the pre-court protocol.

16. Lack of detail within the Particulars of Claim “RoboClaim”

The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no diligence, no scrutiny of details nor even checking for a true cause of action. HMCS have identified over 1000 similar sparse claims. I believe the term for such conduct is ‘roboclaims’ which is against the public interest, and unfair on unrepresented consumers. Parking companies using the small claims track as a form of aggressive, automated debt collection is not something the courts should be seen to support in accordance with CPR 1.1 2(a) “ensuring that the parties are on an equal footing”.

As an unrepresented consumer I am immediately at a disadvantage compared to trained solicitor in the matter and this is aggravated by Gladstones Solictors whom are not following CPR 16.4 1(a) as I have not received a detailed PoC to be able to properly formulate a concentrated argument.

(A) On the 20th September 2016 another relevant poorly pleaded private parking charge claim by Gladstones was struck out by District Judge Cross of St Albans County Court without a hearing due to their ‘roboclaim’ particulars being incoherent, failing to comply with CPR. 16.4 and ‘providing no facts that could give rise to any apparent claim in law’
(B) On the 19th August 2016 DJ Anson sitting at Preston County Court ruled that the very similar parking charge particulars of claim were deficient and failing to meet CPR 16.4 and PD 16 paragraphs 7.3 - 7.5. He ordered the Claimant in that case to file new particulars which they failed to do, and the court confirmed the claim will now be struck out.

The defendant therefore asks that the court orders the case to be struck out for want of a detailed course of action and/or for the claim as having no prospect of success.

Statement of Truth:

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

nigelbb

As you are confessing that you are the driver there is no point referencing POFA 2012 as that is only concerned with the liability of the registered keeper for unpaid parking charges when the identity of the driver is unknown.

im_bigel

Hi guys I have just submitted my defence via email and i will also post a physical copy on Tuesday. One question I have is do I fill in MCOL and in defence section state that i have sent defence statement via email? or do I leave this blank? Was thinking that if I dont complete this it will not register that I have responded within the 28days.

Thanks

SmellyMog

So you got a CC claim form dated 5th April (? though you wrote March). Did you complete the acknowledgement of service at the time, by post maybe? Check on MCOL to see if your claim no. is still accessible.

Coupon-mad

im_bigel wrote: »

Hi guys I have just submitted my defence via email and i will also post a physical copy on Tuesday. One question I have is do I fill in MCOL and in defence section state that i have sent defence statement via email? or do I leave this blank? Was thinking that if I dont complete this it will not register that I have responded within the 28days.

MCOL will be updated by CCBC.

Why not ring them on Tuesday to check they have got the email and if they even need a posted version (probably not).

im_bigel

Hi I wrote the wrong date initially! It was in fact the 5th of April! I acknowledged everything on MCOL on the 7th. Was on there today and it was still showing ok.

im_bigel

Great I will give them a call on Tuesday morning to confirm receipt. Thanks again for all your help will keep you posted