Ace Security Services CN

soolin

Threads merged as requested

Coupon-mad

ts22 wrote: »

sorry yes, i know ive been a mess with new threads. I thought this thread i would just put everythng under the first post. apologies. i will go and email them now to merge threads and update

OK now lease show us version #2.

ts22

Ive updated my defence in post 36 of this thread.

Please have a read through and include any suggestions.

If everything looks good, do let us know, so I can send this off to Northampton and get things rollings.

Thanks very much so far for all input

Coupon-mad

International Parking Committee (IPC)

should be 'Community'.

IMHO the defence still looks too long.

ts22

ok, Ive tried to pull out the jargon and just made points. I hope this is better.

Do let us know. Thanks in advance

Coupon-mad

I've edited this version, below, see what you think. You can add evidence to it later, at the Witness Statement stage. Make sure in the DQ 'N180' - the next form after Christmas that comes from the Court, not the blank one from Gladstones - that you say you will be filing two Witness Statements, as you will need one from the resident (your partner) as well as your own:

IN THE COUNTY COURT BUSINESS CENTRE

CLAIM No. DXXXXXXX

BETWEEN

Pace Recovery & Storage Ltd (CLAIMANT)

-and-

xxxxx xxxxxxxx (DEFENDANT)

________

DEFENCE
________

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

Preliminary
2. The Claimant has failed to comply with the requirements of Civil Procedure Rule 16.4. Its sparse Particulars do not disclose any cause of action which could give rise to a claim, and their single-page Letter Before Claim was no more than an aggressive demand, designed to intimidate and mislead the defendant, rather than narrow the issues or provide any specific detail.

2.1. No copy of the alleged contract terms that the Claimant purports were breached has been supplied, and no evidence of the breach(es) were forthcoming, despite the Defendant requesting this information more than once.


Background: Authority to Park and Primacy of Contract
3. It is admitted that at all material times the Defendant is the registered keeper of the vehicle which is the subject of these proceedings. The vehicle is insured and more than one driver is permitted to use it.

3.1. The Defendant (and any other authorised driver of this vehicle) is considered a legitimate visitor, and her partner is a tenant with primacy of contract from his lease providing rights to park, rights of way and a right to peaceful enjoyment of his property.

3.2. The tenancy agreement permits residents and visitors to use the estate for parking. Under the fees and obligations sections of the agreement, no possible 'parking charges' are listed, and no relevant obligation is set out to allow any third party agents to enter into contracts with Council tenants or their visitors when using the parking area.

4. This estate has allowed unfettered parking rights for many years, under which residents and visitors have never required any permit. With no formal or implied variation of the lease/tenancy rights, this Claimant suddenly put up signs stating that they now operate on this land.

4.1. The Defendant puts this Claimant to strict proof to demonstrate with evidence, how as an unrelated third party they believe that they can override the rights of Council tenants and their legitimate visitors at this location. The tenancy agreement is made between the Defendant's partner and the Council of the London Borough of Lewisham, and this Claimant is not a party to that agreement.

4.2. The Defendant will adduce a Witness Statement from the tenant in support of this defence, and the tenancy agreement.

4.3. The Defendant avers that (even if they were prominent and capable of making an offer of parking for visitors, which is denied) the operator’s signs cannot override the existing rights enjoyed by residents and their visitors, and further, that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease, since this would be a matter of derogation from grant.

4.3.1. The Defendant will rely upon the judgment on Appeal, of HHJ Harris QC in Jopson v Homeguard Services Ltd B9GF0A9E (2016) and will also adduce a similar County Court decision regarding this particular Claimant regarding a residential car park site: PACE RECOVERY v Noor - C6GF14F0 (Croydon Court, September 2016). The Court will be referred to further similar fact cases in the event that this matter proceeds to trial.


Unreasonable conduct of this Claimant
5. Since the arrival of this Claimant on site, residents and their authorised visitors have been hounded for money and are routinely ticketed under a predatory operation at this location. The tenant's Witness Statement will confirm this, a fact which is also within the Defendant's own personal knowledge.

5.1. No observation time or reasonable grace period is allowed for a driver to enter a flat first, to fetch a visitor's permit, instead it is averred that the Claimant's employees lurk and issue tickets immediately, or in hours of darkness when terms on unlit signs would be unreadable in any case.

5.2. The Claimant is out of control at this site, unfairly and deliberately targeting residents and authorised visitors. It is known that residents have complained in significant numbers to Lewisham Homes, an Arms Length Management Organisation (ALMO) of the Council.

5.3. The Defendant, as registered keeper of the vehicle, has received various postal demands and threatening letters, and regrettably, the tenant (the Defendant's partner) has felt so intimidated by the Claimant's conduct in harassing his visitors for parking at his home, that at least two of this Claimant's charges were paid. These payments were made without the Defendant's knowledge, and the Defendant consistently denies any liability to this Claimant.

6. Due to the failure/refusal of this Claimant to disclose any photographic evidence or contract terms, and given the sparse Particulars stating dates/money purportedly 'owed' but no detail, it is impossible to be certain what the circumstances were on the two occasions mentioned on the claim form. The Defendant cannot make an informed decision and avers these charges may even have already been paid by her partner, and in any case the Defendant cannot be held liable for any charges, in the capacity of registered keeper.


Absence of 'registered keeper liability'
7. Whilst it is admitted that the Defendant has parked at this estate before, it has not been established who parked the vehicle on these occasions and the Claimant is put to strict proof.

7.1. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver on one or both occasions. In the absence of identifying the driver(s) on both dates, the balance of probabilities is not tipped in the Claimant's favour, given more than one person drives this car. 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 ("the POFA").

7.2. If seeking to rely on the keeper liability provisions of Schedule 4 of the POFA, the Claimant must demonstrate that:
7.2.1. there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
7.2.2. that this Claimant has established itself as the offeror and creditor; and
7.2.3. 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.

7.3. To the extent that the Claimant may seek to allege that any such presumption do 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 the POFA, which makes no such provision.

7.4. Further, this land is 'under statutory control' with the ALMO operating it on behalf of a Local Authority owner. As such, it is averred that this location is not 'relevant land' as defined in the POFA and on non-relevant land there is no possibility whatsoever of 'keeper liability' provisions applying under any applicable rule of law.


No contract
8. The Defendant avers that this Claimant offers no permits to visitors in the Claimant's own name. Instead, visitor permits are issued in the name of Lewisham Homes, thus this is the wrong Claimant. This is because this Claimant is not the offeror, and a visitor makes no promise to this Claimant. In the absence of the basic elements of a contract between a visitor and this Claimant, any breach of visitor permit parking terms would be solely a matter for Lewisham Homes, the ALMO.

9. This Claimant is not the lawful occupier of the land is at best acting 'on behalf of' an agent (the ALMO). It is averred that this Claimant has no more than a bare licence to put signs up under an agency agreement and whilst they may be authorised to issue residents' permits, this Claimant does not issue the visitor permits.

10.1. Contrary to the International Parking Community Code of Practice (full compliance being a pre-requisite for obtaining the data of registered keepers from the DVLA), it is averred that no chain of authority extends from the Council of the London Borough of Lewisham (the landowner) that bestows any rights to this non-landholder Claimant to pursue visitors in the courts, in their own name.

10.2. It is therefore 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. It is denied that the Claimant has any entitlement to the sums sought, and it is noted that this Claim has inflated the 'charges' to double the sum on any sign/PCN.

11.1. No indemnity costs or damages have been incurred, nor were any debt collection 'fees' paid by this Claimant, and it is averred that the sum claimed is invented out of thin air as part of the Claimant's solicitors' robo-claim model.

11.2. Schedule 4 of the POFA establishes that the clear intention of Parliament was that parking charges on private land be capped at the sum shown on any compliant 'Notice to Keeper', with double recovery being specifically stated to be disallowed.

11.3. ParkingEye Ltd v Beavis [2015] UKSC 67 is fully distinguished from this claim due to the completely different facts (including the location, no keeper liability, unreasonable conduct, no contract, and no legitimate interest allowing this Claimant to disengage the penalty rule). However it was confirmed by the Supreme Court that ParkingEye Ltd could only recover the (already heavily weighted for profit) £85 parking charge, and could not have recovered any sum in damages, because they suffered no loss and were not in possession.

12. When Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because it is expected that the Claimant will use its witness statement to provide the sort of detail which should have been disclosed much earlier in the missing Particulars of Claim. The Defendant should have the opportunity to consider the full particulars/evidence, prior to serving evidence and witness statements in support of this Defence.

I believe that the facts contained in this Defence are true.


Signature


Date

ts22

thanks,

it looks great. i'll print that off and get it send off to northampton and update you as things get on.

Coupon-mad

What happened?

You must have a hearing date by now and you need to submit your WS and evidence first.

ts22

Hi Coupon.

Sorry I went MIA for a while!.. anyways, my court date is in August so still have a little while to go. Will be gathering the WS and other bits of evidence. Am I right that I should be sending this to the court and claimant or just the court?

nosferatu1001

As you are told by both the form AND the newbies thread, BOTh the claimant and court.

What is the data you have to exchange documents by? This WILL be on the letter giving you the hearing date.