PCM/Gladstones Court Defence - Own Parking Space - Leaseholder

mr-robot_2

Hello all,

Basic facts:
Car was parked in parking bay assigned by lease, had a valid temp parking permit on the dashboard. Cowboys took a picture from an angle with lighting so as to claim that they couldn't verify the validity. Been through the whole process up to court proceedings.

I have read the sticky and submitted my acknowledgement to the courts, and I have put together a draft of my defence statement. I was hoping to get some feedback.

In the County Court Business Centre
Claim Number: XXXXXX
Between: Parking Control Management v XXXXX

Defence Statement

I am XXXX, the defendant in this matter and the leaseholder of parking bay XX where the vehicle with the registration XXXX was parked in the parking bay XX on XX/XX/XXXX. I currently reside at XXXX.

I deny I am liable for the entirety of the claim for each of the following reasons:

Section 1: The Claimant has no authority to claim

I deny that the Claimant has any authority over my property and I contend that the Claimant has no authority to bring a claim. The Claimant does not own the land where the vehicle was parked, nor do they have any interest in the land. Therefore, they lack the capacity to offer parking.

1.1 I am the leaseholder of parking bay XX, as detailed in my Lease. Section X.XX of the Lease covers my covenants with regards to parking, and does not include a requirement to display a permit. A permit was displayed purely as a courtesy to facilitate the job of the Claimant's operatives.

1.2 The vehicle was parked on property in accordance with the terms of the Lease.

1.3 Recent cases have set clear precedence that my Lease has primacy of contract over any signage that the Claimant puts up as per judgements in B9GF0A9E Jopson v Homeguard [2016], C6GF14F0 Pace vs Mr N - [2016] and C7GF50J7 Link Parking v Ms P [2016].

1.4. In B9GF0A9E Jopson v Homeguard [2016], the exact question regarding terms in a lease was tested at Oxford County Court on 29/9/2016. The Jopson case is a persuasive decision, where Senior Circuit Judge HHJ Charles Harris QC found that Home Guard had acted unreasonably when issuing a penalty charge notice to Miss Jopson, a resident of a block of flats.

1.5 Furthermore, in the case of C7GF51J1 Pace vs Mr N [2016] District Judge Coonan ruled that any amendments to a leaseholder’s convenants regarding parking cannot be amended by a third party, they must be amended into the Lease by the landowner directly, in accordance with the terms set out within the Lease.

1.6 In the case of Saeed v Plustrade Limited [2001] EWCA Civ 2011 parking restrictions and a change which caused detriment to tenants and their visitors were held to be in breach of the well known and well established principle that ‘a grantor shall not derogate from his grant’.

1.7 The Claimant has not provided proof of a contract or chain of contracts leading from the landowner to the Claimant which show that they have a right to unilaterally remove or interfere with the overriding rights conferred my leasehold agreement. This evidence has been requested from the Claimant and the Claimant’s agents in letters dated xx/xx/2015, xx/xx/2017 and xx/xx/2017 and has not been provided.

1.8 The only legal justification that the claimant has provided in response to my denial of debt has been to quote Elliot vs Loake [1982] which is irrelevant to this case as I have neither admitted or denied that I was the vehicles driver, and the Parking Eye vs Bevis [2015] case which is also irrelevant to this case, as this is a residential parking space, that is in a gated underground car park accessible only via a remote that is only issued to residents. The parking is not public, not a commercial venue.

1.9 The charge is an unenforceable penalty based upon a lack of commercial justification. The Parking Eye vs Bevis [2015] case actually confirmed that the penalty rule is certainly engaged in any case of a private parking charge, and was only disengaged due to the unique circumstances of that case, primarily the specific interests of the landowner, which do not apply to this claim as the parking is not available to commercial tenants, nor to attract customers, nor to ensure turnover to increase customers, nor prevent misuse of the space by commuters, which were the deciding factors in the case.

1.10 There can be no ‘legitimate interest’ in penalising residents for using parking spaces which they own, under the excuse of a scheme where ostensibly and as far as the landowner is concerned, the parking firm is contracted for the benefit of the residents. It is unconscionable, contrary to the requirement of good faith and ‘out of all proportion to any legitimate interest’ to fine residents or their visitors for using the parking spaces they own.

1.11 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.

Section 2: The vehicle was parked in accordance to the Claimant’s terms.

Should it be found that The Claimant does have authority over my property I deny that there was a breach of contract.

2.1 There was in fact a valid parking permit displayed in the vehicle on XX/XX/XXXX, as evidenced by the photo, taken in poor lighting and at an angle designed to support their erroneous claim, provided by the Clamant in their letter dated XX/XX/XXXX.

2.2 Photographic proof of this permit was provided in response to the PCN notice in a letter to the claimant dated XX/XX/XXXX.

******2.3 This might even be supported by a witness statement from the building management who gave it to me, also there is a issue with their signage compliance, with no big P on the entrance but I am not sure if that make much of a difference?******

Section 3: The Claimant has added unrecoverable sums to the original parking charge

3.1 The provision requiring payment of £160.00 is an unenforceable penalty clause and an unfair term contrary to the Consumer Rights Act 2015 and the Unfair Terms in Consumer Contracts Regulations 2008. It has already been established that the ruling of ParkingEye v Beavis [2015] UKSC 67 is not applicable to cases involving residential parking spaces. This is supported by the cases referenced in section 1.3 above.

3.2 Furthermore, Paragraph 4, Schedule 4 of the Protection of Freedoms Act 2012, makes it clear the keeper can only be liable for the amount on the original notice. The original noticed stated the charge was "£100, reduced to £60 if paid within 14 days".

3.3 I deny that any interest is due, because the Claimant has ignored all requested to provide evidence of their authority to claim. As noted in 1.8 above the Clamant has had multiple occasions since XX/XX/XXXX to provide contractual evidence to support their claim and have failed to respond on every occasion. Had they provided proof that they had a right to claim the payment would have been settled at the time.

3.4 Furthermore I submit that the £50 legal representatives cost have not actually been incurred by the Claimant; these are figures plucked out of thin air and applied regardless of facts as part of their roboclaim litigation model in an attempt to circumvent the Small Claims costs rules using double recovery. The Court is invited to report Gladstones Solicitors to the Solicitors’ Regulation Authority for this deliberate attempt to mislead the Court, in contravention of their Code of Conduct.

Section 4: Counterclaim
****** I would really appreciate some help here
I warned them that I would counter sue for trespass, but I am not sure if I can claim for breaching my quiet enjoyment, the amount of time I have spent on research and other costs, and compensation the distress cause in my marriage. And how would I word that???******

I believe that these facts stated in this defence are true.
Signed XXXXX


Thanks in Advance!

Coupon-mad

Good!

I would add something about signage (to give you that extra hook to hang your hat on, if needed at the hearing, along these lines:

Even if the court holds that a contract existed, it is averred that the signage failed to comply with the applicable IPC Trade Body Code of Practice at the time.

No need to expand at this stage.



And I would change this, because there was no contravention so nothing to 'settle':

Had they provided proof that (a) they had a right to claim and (b) there was a contravention and lawful charge due, the dispute would have been resolved in 2015. In fact, I proved that neither (a) nor (b) had been fulfilled and it is entirely the choice of the Claimant to unreasonably refuse to cancel the charge and to aggressively resurrect this case now, jumping on the Gladstones parking robo-claims band-wagon, regardless of the facts and lack of merit of any case.

Section 4: Counterclaim
****** I would really appreciate some help here
I warned them that I would counter sue for trespass, but I am not sure if I can claim for breaching my quiet enjoyment, the amount of time I have spent on research and other costs, and compensation the distress cause in my marriage. And how would I word that???******

You could word it that you warned the Claimant that their trespass was causing you distress, detriment and tangible loss (and list the costs of you responding to their letters, then add a sum for distress for harassment). Did they get your data from the DVLA before you appealed? If so then you would have more scope for a counter-claim based upon misappropriation and misuse of your DVLA data, by continuing to process it in breach of the DPA principles and against the DVLA KADOE rules.

mr-robot_2

In the County Court Business Centre
Claim Number: XXXXXX
Between:
Parking Control Management (UK) Ltd
-and-
XXXXX

Defence Statement


I am XXXX, the defendant in this matter and the leaseholder of parking bay XX where the vehicle with the registration XXXX was parked in the parking bay XX on XX/XX/XXXX. I currently reside at XXXX.

I deny I am liable for the entirety of the claim for each of the following reasons:

Section 1: The Claimant has no authority to claim

I deny that the Claimant has any authority over my property and I contend that the Claimant has no authority to bring a claim. The Claimant does not own the land where the vehicle was parked, nor do they have any interest in the land. Therefore, they lack the capacity to offer parking.

1.1 I am the leaseholder of parking bay XX, as detailed in my Lease. Section X.XX of the Lease covers my covenants with regards to parking, and does not include a requirement to display a permit. A permit was displayed purely as a courtesy to facilitate the job of the Claimant's operatives.

1.2 The vehicle was parked on property in accordance with the terms of the Lease.

1.3 Recent cases have set clear precedence that my Lease has primacy of contract over any signage that the Claimant puts up as per judgements in B9GF0A9E Jopson v Homeguard [2016], C6GF14F0 Pace vs Mr N - [2016] and C7GF50J7 Link Parking v Ms P [2016].

1.4. In B9GF0A9E Jopson v Homeguard [2016], the exact question regarding terms in a lease was tested at Oxford County Court on 29/9/2016. The Jopson case is a persuasive decision, where Senior Circuit Judge HHJ Charles Harris QC found that Home Guard had acted unreasonably when issuing a penalty charge notice to Miss Jopson, a resident of a block of flats.

1.5 Furthermore, in the case of C7GF51J1 Pace vs Mr N [2016] District Judge Coonan ruled that any amendments to a leaseholder’s covenants regarding parking cannot be amended by a third party, they must be amended into the Lease by the landowner directly, in accordance with the terms set out within the Lease.

1.6 In the case of Saeed v Plustrade Limited [2001] EWCA Civ 2011 parking restrictions and a change which caused detriment to tenants and their visitors were held to be in breach of the well known and well established principle that ‘a grantor shall not derogate from his grant’.

1.7 The Claimant has not provided proof of a contract or chain of contracts leading from the landowner to the Claimant which show that they have a right to unilaterally remove or interfere with the overriding rights conferred my leasehold agreement. This evidence has been requested from the Claimant and the Claimant’s agents in letters dated xx/xx/2015, xx/xx/2017 and xx/xx/2017 and has not been provided.

1.8 The only legal justification that the claimant has provided in response to my denial of debt has been to quote Elliot vs Loake [1982] which is irrelevant to this case as I have neither admitted or denied that I was the vehicles driver, and the Parking Eye vs Bevis [2015] case which is also irrelevant to this case, as this is a residential parking space, that is in a gated underground car park accessible only via a remote that is only issued to residents. The parking is not public, not a commercial venue.

1.9 The charge is an unenforceable penalty based upon a lack of commercial justification. The Parking Eye vs Bevis [2015] case actually confirmed that the penalty rule is certainly engaged in any case of a private parking charge, and was only disengaged due to the unique circumstances of that case, primarily the specific interests of the landowner, which do not apply to this claim as the parking is not available to commercial tenants, nor to attract customers, nor to ensure turnover to increase customers, nor prevent misuse of the space by commuters, which were the deciding factors in the case.

1.10 There can be no ‘legitimate interest’ in penalising residents for using parking spaces which they own, under the excuse of a scheme where ostensibly and as far as the landowner is concerned, the parking firm is contracted for the benefit of the residents. It is unconscionable, contrary to the requirement of good faith and ‘out of all proportion to any legitimate interest’ to fine residents or their visitors for using the parking spaces they own.

1.11 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.

1.12 The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking for a true cause of action. I believe the term for such conduct is ‘robo-claims’ which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. I have reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to my significant detriment as an unrepresented Defendant.

1.13 In the pre-court stage the Claimant’s solicitor refused to provide me with the necessary information I requested in order to defend myself against the alleged debt.
They did not send me a Letter before Action that complied with the Practice direction on pre-action conduct. The Letter before Action can be seen to miss the following information:
a) A clear summary of facts on which the claim is based.
b) A list of the relevant documents on which they intend to rely.
c) Any form of possible negotiation or ADR offered.

1.14 I suggest that 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.

Section 2: The vehicle was parked in accordance to the Claimant’s terms.

Should it be found that The Claimant does have authority over my property I deny that there was a breach of contract.

2.1 There was in fact a valid parking permit displayed in the vehicle on XX/XX/XXXX, as evidenced by the photo, taken in poor lighting and at an angle designed to support their erroneous claim, provided by the Clamant in their letter dated XX/XX/XXXX.

2.2 Photographic proof of this permit was provided in response to the PCN notice in a letter to the claimant dated XX/XX/XXXX.

2.3 Should the court hold that a contract existed, it is averred that the signage on site fails to comply with their own IPC Trade Body Code of Practice.

Section 3: The Claimant has added unrecoverable sums to the original parking charge

3.1 The provision requiring payment of £160.00 is an unenforceable penalty clause and an unfair term contrary to the Consumer Rights Act 2015 and the Unfair Terms in Consumer Contracts Regulations 2008. It has already been established that the ruling of ParkingEye v Beavis [2015] UKSC 67 is not applicable to cases involving residential parking spaces. This is supported by the cases referenced in section 1.3 above.

3.2 Furthermore, Paragraph 4, Schedule 4 of the Protection of Freedoms Act 2012, makes it clear the keeper can only be liable for the amount on the original notice. The original noticed stated the charge was "£100, reduced to £60 if paid within 14 days".

3.3 I deny that any interest is due, because the Claimant has ignored all requested to provide evidence of their authority to claim. As noted in 1.8 above the Clamant has had multiple occasions since XX/XX/XXXX to provide contractual evidence to support their claim and have failed to respond on every occasion. Had they provided proof that:
a) They had a right to claim.
b) There was a contravention and lawful charge due, the dispute would have been resolved in 2015.
In fact, I proved that neither (a) nor (b) had been fulfilled and it is entirely the choice of the Claimant to unreasonably refuse to cancel the charge and to aggressively resurrect this case now, jumping on the Gladstones parking robo-claims band-wagon, regardless of the facts and lack of merit of any case.

3.4 Furthermore I submit that the £50 legal representatives cost have not actually been incurred by the Claimant; these are figures plucked out of thin air and applied regardless of facts as part of their roboclaim litigation model in an attempt to circumvent the Small Claims costs rules using double recovery. The Court is invited to report Gladstones Solicitors to the Solicitors’ Regulation Authority for this deliberate attempt to mislead the Court, in contravention of their Code of Conduct.

Section 4: Counterclaim
I warned the Claimant that their trespass was causing my wife and I distress, detriment tangible losses, and that should they proceed to litigation that I would counter claim against them. I am counter claiming £300. This amount consists of:
• £150 in damages for trespass, for tortious interference with the quiet enjoyment of my property, a level that the claimant has already determined to be reasonable by the claimant.
• £150 for distress, harassment, and tangible costs incurred in as a result of the claimants continued persistence in perusing the matter to this stage.

I believe that these facts stated in this defence are true.
Signed XXXXX

mr-robot_2

Oups, missing an and in distress, detriment tangible losses

nosferatu1001

Your counterclaim MUST NOT include ordinary or exceptional costs in defending the claim. It is an easy out for the claimant to defend the counterclaim.

You can apply for additional costs under CPR27.14(g)(2) for the claimants unreaosnable behaviour. Issuing a claim at all in these circumstances Is I would argue unraosnable - it is the same as parking a sign on someones personal driveway and then claimaing youre owed £100 for the owner not playing by your made up rules. It is that rediculous a situation.

mr-robot_2

Hi nosferatu1001, are you saying that I can't counter claim for trespass on my property and harassing me?

nosferatu1001

No. I did not say that. I very clearly did not say any such thing. The words "trespass" or "harassment" did not get uttered!

Your counterclaim MUST NOT include ordinary or exceptional costs in defending the claim is explicit.

"costs" are the amount spent dealing with defnding the claim. Time spent making a defence, etc.

They are NOT what you include in a COUNTERclaim. They CANNOT be included in a counterclaim.

Of course, a counterclaim is wher you claim damages. Costs are not damages.

Re unreasonable - I am sayin g tat even them issuing the claim was unreasonable> They had no cause f action. EVERYTHING they did after that jsut made it MORE unreasonable. As such you should be gratned additional costs, NOT NORMALLY ALLOWED in small claims, such as your TIME spent DEFENDING the claim.

The_Deep

Re unreasonable - I am sayin g tat even them issuing the claim was unreasonable> They had no cause f action. EVERYTHING they did after that jsut made it MORE unreasonable.

I agree, this PCN is an attempt to diminish OP's right to "quiet enjoyment" of their property. OP should research this aspect in case a criminal offence has been committed under the Landlord and Tenants Acts.

If I was in their shoes I would employ a law firm specialising in Housing Law.

Loadsofchildren123

Have you filed the defence? If not, change 1.7:
Currently says: The Claimant has not provided proof of a contract or chain of contracts leading from the landowner to the Claimant which show that they have a right to unilaterally remove or interfere with the overriding rights conferred my leasehold agreement. This evidence has been requested from the Claimant and the Claimant’s agents in letters dated xx/xx/2015, xx/xx/2017 and xx/xx/2017 and has not been provided.


Even if the C produces a contract, it can't give it the right to unilaterally remove or interfere with your rights, all it can give is authority to operate on the site.


I'd say:


The C has not provided proof of a contract or chain of contracts leading from the landowner to the Claimant which show that they have any right to operate parking enforcement on the relevant land. Such evidence has been requested from the Claimant and the Claimant’s agents in letters dated xx/xx/2015, xx/xx/2017 and xx/xx/2017, all of which it has ignored. Even if the C can produce such document(s), any rights granted to it cannot include the right to unilaterally remove or interfere with the overriding rights conferred my leasehold agreement.

mr-robot_2

Thanks Loadsofchildren123. It is due on Monday, I am going to post it in this evening.

mr-robot_2

Could I get some feedback on these revisions to the counter claim.

Section 4: Counterclaim

I warned the Claimant that their trespass was causing my wife and I distress, detriment tangible losses, and that should they proceed to litigation that I would counter claim against them. I am counter claiming £300. This amount consists of:

• £150 in damages for trespass, for tortious interference with the quiet enjoyment of my property.
• £150 in damages for distress and harassment, as a result of the claimants continued persistence in perusing the matter to this stage.