SCS Law court threat

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Dan_Farry wrote: »

Hello i have recieved a court claim form from Premier park limited, i've read through a lot of the stickies and will be drafting my defence shortly .
As far as i can see i need to reply to the claim form to acknowledge that i disagree and want to make a counter claim and have to submit a defence .
Also i will be contacting the buliding management company to see if they will intervene
The claim is for two parking tickets at the flats i live at and were originally issued in 2015. I recieved numerous claim letters, bailiff threats over the years but just ignored them.

When i first moved in there were no restrictions ,then for about 1-2 years they gave tickets out , for the last couple of years this has stopped

Is there anything else i need to do?
The Flats are in the Southampton area.

Yay, Southampton, that's good if it's your local court!

Read this thread and the defence there, plus the link given there to the recent winning one:

https://forums.moneysavingexpert.com/discussion/6030014/claim-form-received-case-struck-out-remote-hearing

Should be all you need, to prepare a draft defence to show us.

Dan_8

Ok so just to update registered online for the acknowlegment of service, i've sent an email to my local MP but not had a reply.

I've spoken to my landlord as i cant find my tenancy agreement so they are sending me another one.
BW legal have sent me a letterasking if i want to settle before court, i've just ignored it.

I phoned the company who manages the building but they deny it was them who ordered the parking tickets so i asked for the landowners details, all they had was a name and said details would be online. I cant find any contact details only a name.

I thought i take a picture of the parking signs but they've been taking down, don't know if that helps or hinders me, we were given no notice that the parking tickets would start or end so unsure if this is relevent or not.

I've read a lot of other defense claims but im not really sure what i need to add to add to this defense below that seems a lot like my case :

IN THE COUNTY COURT BUSINESS CENTRE
Claim No.: XXXXX
Between
Premier Park Limited
(Claimant)

-and-


[NAME OF DEFENDANT]
(Defendant)



DEFENCE


1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. It is admitted that, at all material times, the Defendant was the registered keeper of the XXX with vehicle registration number XXX which is the subject of these proceedings.

3. It is admitted that, at all material times, the Defendant's vehicle was parked at [location] in the correct parking space allocated to his apartment XXX.

4. The Defendant has held an Assured Shorthold Tenancy agreement at XXX (the “Premises”) between himself and XXX (the “Landlord”) where the Landlord has let to the Defendant (i.e. the “Tenant”) the Premises for a period of 12 months, with the tenancy starting on and including the XXX and shall end on and include the XXX. This agreement was brokered and administered via XXX (the “Agent”). A copy of the tenancy agreement will be provided to the Court.

5. Under the terms of the Defendant’s tenancy agreement, a number of references are made to conditions of parking motor vehicles:
“SCHEDULE 1
OBLIGATIONS OF THE TENANT
Cars and Parking
5.1. To park a private vehicle only at the Premises.
5.2. To park in the car parking space, garage or driveway allocated to the Premises, if applicable.
5.3. To keep any garage, driveway, or parking space free of oil and to pay for the removal and cleaning
of any spillage caused by a vehicle of the Tenant, his family, contractors or visitors.
5.4. To remove all vehicles belonging to the Tenant, his family or visitors at the end of the Tenancy.
5.5. Not to park any vehicle at the Premises that is not in road worthy condition and fully taxed.
SCHEDULE 6
SPECIAL CONDITIONS
Special clauses individually negotiated between Landlord and Tenant
. Including one allocated parking

There are no terms within the tenancy agreement requiring the Tenant to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of the same.

It is noted that within the terms of the tenancy, references are made to a head lease:
“THE MAIN TERMS OF THE TENANCY
4. Definitions and Interpretation
In this Agreement the following definitions and interpretation apply:
o) "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.
SCHEDULE 1
OBLIGATIONS OF THE TENANT
Head Lease
To comply with the obligations of the Head Lease provided a copy of the obligations is attached to
this Agreement.”

7.1. The Defendant received no such copy of the Head Lease with the agreement and therefore had no prior knowledge of any promises, should any exist, made to the Superior Landlord by the Landlord and therefore, as per the tenancy agreement, the Defendant cannot be bound to such promises until such promises present themselves to actually exist. The Defendant therefore has no contract with and thus any direct obligation to the Superior Landlord.






7.4.1. A party to the lease is a management company known as “the Company”. The Company is not the owner or the occupier of the allocated parking space and, in consequence, is not endowed with the powers usually exercised by an owner or occupier.

7.4.2. The relationship between the Defendant’s Landlord and the Company is governed directly by the lease, not via any contract with the Claimant.

7.4.3. If the Company has imposed any such regulations in accordance with any specific clause, should it exist, the Defendant has never been presented with a copy of those regulations.

7.4.4. The Defendant has no contract with the Company and does not, therefore, have any direct obligation to the Company.

7.5. If the Defendant had breached any term or condition of his tenancy agreement, which is denied, that would be a matter for the Defendant and his Landlord to resolve.

7.6. It may be that any breach of the tenancy agreement by the Defendant may result in his Landlord being in breach of his lease. However, in that event, the Lessor’s remedy would be to seek damages, not a parking charge, from the Defendant’s Landlord and/or to seek an injunction ordering the Defendant’s Landlord.

7.7. Consequently, neither the Company nor its agents, if any, have any standing in relation to the claim.

8. The Defendant, at all material times, parked in accordance with the terms granted by the tenancy agreement. The erection of the Claimant’s signage, and the purported contractual terms conveyed therein, are incapable of binding the Defendant in any way, and their existence does not constitute a legally valid variation of the terms of the tenancy agreement. Accordingly, the Defendant denies having breached any contractual terms whether express, implied, or by conduct.

9. In this case the Claimant has taken over the location and runs a business as if the site were a public car park, offering terms with £100 penalty on the same basis to residents, as is on offer to the general public and trespassers. However, residents are granted a right to park/rights of way and to peaceful enjoyment, and parking terms under a new and onerous 'permit/licence' cannot be re-offered as a contract by a third party. This interferes with the terms of leases and tenancy agreements, none of which is this parking firm a party to, and neither have they bothered to check for any rights or easements that their regime will interfere with (the Claimant is put to strict proof). This causes a substantial and unreasonable interference with the Defendant's property, or his use or enjoyment of that property.

10. 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.

11. The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 as a binding precedent on the lower court. However, that only assists the Claimant if the facts of the case are the same, or broadly the same. In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas it is the Defendant's position that no such breach occurred in this case, because there was no valid contract, and also because the 'legitimate interest' in enforcing parking rules for retailers and shoppers in Beavis does not apply to these circumstances. Therefore, this case can be distinguished from Beavis on the facts and circumstances.


12 The Defendant is confident that he has met and will continue to meet the obligations and conditions he has to his Landlord through his tenancy agreement. The Defendant being harassed to the point of being taken to Court over non-payment of a parking charge, which the Defendant regards as being not only invalid but also exorbitant and disproportionate, is hardly likely to smooth the way to quiet enjoyment of the property by the Landlord.

13. For all or any of the reasons stated above, the Court is invited to dismiss the Claim in its entirety, and to award the Defendant such costs as are allowable on the small claims track, pursuant to Civil Procedure Rule 27.14. Given that the claim is based on an alleged contractual parking charge of £100 - already significantly inflated and mostly representing profit, as was found in Beavis - but the amount claimed on the claim form is inexplicably £160.00, the Defendant avers that this inflation of the considered amount is a gross abuse of process.

13.1. 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.

14. Given that it appears that this Claimant's conduct provides for no cause of action, and this is intentional and contumelious, the Claimant's claim must fail and the court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4..

14.1. In the alternative, the Court is invited, under the Judge's own discretionary case management powers, to set a preliminary hearing to examine the question of this Claimant's substantial interference with easements, rights and 'primacy of contract' of residents at this site, to put an end to not only this litigation but to send a clear message to the Claimant to case wasting the court's time by bringing beleaguered residents to court under excuse of a contractual breach that cannot lawfully exist.

STATEMENT OF TRUTH
The defendant believes that the facts stated in the defence are true.
Signed:
Date:

Dan_8

Ok so quick update i have recieved a copy of my tennancy agrement and there is no mention of parking, either for the bay we have or that there is any restricted parking that requires a permit.

Dan_8

Hello would anyone be able to help me with how to add the above information to my claim please?

Le_Kirk

Dan_8 wrote: »

Hello would anyone be able to help me with how to add the above information to my claim please?

Do you mean to your defence? You just modify your defence to state that it is silent on the subject of parking and does not require you to display a permit, nor pay invoices to self-appointed parking guardians!
See the NEWBIE sticky examples regarding "own space" defences for some suitable wording around this issue.

Dan_8

Ok so have decided this is a more suitable defence for my case so will be filing it along with my teneancy agreement.

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.

Background
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 [provider] with [number] of named drivers permitted to use it.

4. It is admitted that on [date] the Defendant's vehicle was parked at [location]

5. It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.
5.1. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA")
5.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
5.2.1. there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
5.2.2. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
It is not admitted that the Claimant has complied with the relevant statutory requirements.

5.3. To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.

Authority to Park and Primacy of Contract
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. A copy of the lease will be provided to the Court, together with witness evidence that prior permission to park had been given.

7. The Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (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. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial.

7. Accordingly it is denied that:
7.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant
7.2. there was any obligation (at all) to display a permit; and
7.3. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

Alternative Defence - Failure to set out clearly parking terms
8. In the alternative, the Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to consider the imposition of 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.
8.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate.
8.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;
8.1.2. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee’s ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and
8.1.3. The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3
8.2. 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.

9. 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.

10. It is denied that the Claimant has any entitlement to the sums sought.

11. 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 Defence are true.

Dan_8

Ok so just for a quick update, i have recieved a letter from my MP saying they have contacted PP and Premier Pasrk have replied to the MP asking for written consent for them act on the parking charges. Also i have filed my defense and recieved notification of this, i have also recieved a proposed allocation to small claims track. I'm assuming i just scan and email the form saying i dont believe this to be the appropriate track for the claim?

Umkomaas

Ok so just for a quick update, i have recieved a letter from my MP saying they have contacted PP and Premier Pasrk have replied to the MP asking for written consent for them act on the parking charges.

Are they asking you to provide the written consent? If so send email/letter to PP with your consent.

Also i have filed my defense and recieved notification of this, i have also recieved a proposed allocation to small claims track. I'm assuming i just scan and email the form saying i dont believe this to be the appropriate track for the claim?

What do you think the appropriate track should be?

Dan_8

I think the appropriate track should be that the case gets thrown out and i don't have to pay anything. I thought the claims track was them trying to cut a deal?

Umkomaas

Dan_8 wrote: »

I think the appropriate track should be that the case gets thrown out and i don't have to pay anything. I thought the claims track was them trying to cut a deal?

Nope, it's the standard small claims court and the one you select. It doesn't mean the PPC will go the whole way, or that a Judge might throw the case out before a court hearing, but it's definitely the box you must tick at this stage.

Have you read the NEWBIES FAQ sticky, post #2 which explains all the court processes and what you need to do.