Private Parking Ticket - Default CCJ - Set Aside Case, Prepare full defence

theconquest

Initial draft:

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 XXXXX 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 XXDATEXX the Defendant's vehicle was parked at parking premises of XXXADDRESSXXX.

Authority to Park and Primacy of Contract
5. It is denied that the Defendant was 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 9 Sylvan Court, whose tenancy agreement permits the parking of vehicles 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 explicit 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.

6. 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 and 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.

8. 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.

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

10. 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.

Will Add Tenancy Agreement :
Car Parking Section:
3.17 Car Parking
3.17.1 To park private vehicle(s) only at the Property.
3.17.2 To park in the space, garage or driveway allocated to the Property, if applicable.
3.17.3 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.
3.17.4 To remove all vehicles belonging to the Tenant, his family or visitors at the end of the Tenancy.
3.17.5 Not to park any vehicle at the Property which is not in road worthy condition and fully taxed.
3.17.6 Not to park any vehicle at the Property without displaying the correct parking permit if applicable. The agent/landlord will not be held responsible for any costs incurred by the tenant or their guests if they fail to comply with this clause


Will Add Landlord express permission email:

Dear Sirs,

Ref: Flat address
Case Number: XXXXX

I am writing as the agent and on behalf of the landlord of the above property to confirm that Claimant rented the property from July XXX to October XXXX and had the full use of both parking spaces owned by Mr Owner

We would urge you to drop any ongoing claims that may be being made in this regards.

I am not sure whether to add photographs of a permit sitting in the back of the car along with other photographs:

https://www.dropbox.com/sh/v1ql98vmmkiqmgd/AACD_ZClchZYWOtJMjL3rwy7a?dl=0

ampersand

Lose 'embarassing'. Fullstop after specificity.
Your feelings are not quantifiable fact or evidence.
#
2nd sentence makes no sense as it stands: you, op, are 'prejudiced'?
This apart, it is up to you to demonstrate alleged 'prejudice' with fact, quote, precedent.
#
I'd lose all the 'It is admitted/denied' opening clauses. State facts, strongly.
e.g.
Within 5. 'Absolute entitlement to park is granted to the defendant by...'
6. 'The operator's signs do not, and cannot,....'
8. 'The defendant has no standing to ...'blah blah.
9. 'The defendant had no entitlement...'
#
I'm concerned that a judge, who is a humanoid, will see 'weak' language as concession.
Check singular/plural noun+verb agreement. 'was' and 'were' both used with 'defendant' singular (see 5)

I have no time to look further atm. Old hands will be along soon enough.

nosferatu1001

Admitted or denied is correct. But you can just state you deny everything not expressly admitted to make it shorter

If this is a defence at no point will you be adding anything as evidence. That comes much later, as post 2 of newbies lays out.

Le_Kirk

In your witness statement point 5, you state that you have: -

"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 explicit requirement to display a parking permit"

yet in your lease it says at: -
"3.17.6 Not to park any vehicle at the Property without displaying the correct parking permit if applicable."

Not saying it is wrong but it seems to be contradictory. Maybe it will be OK as it states "if applicable"

Loadsofchildren123

On the prejudice point I disagree with ampersand.
The whole point is that the woefully inadequate PoC prejudice you because you are unable to understand properly the case being brought against you and it follows that you are then unable to defend it properly. That is the prejudice. There's no case law, this is the clear meaning, intention and purpose of the rule requiring proper particulars (16.4)
It's also the intention of the pre-action PD. A Defendant is entitled to understand the claim that is being brought, so that he can "take stock", attempt to settle or at least narrow the issues, and if it proceeds so that he can defend it properly.

theconquest

The email below has also been sent to the Parking management company who then forwarded it to the GS solicitors:

Dear Sirs,

Ref: Flat address
Case Number: XXXXX

I am writing as the agent and on behalf of the landlord of the above property to confirm that Claimant rented the property from July XXX to October XXXX and had the full use of both parking spaces owned by Mr Owner

We would urge you to drop any ongoing claims that may be being made in this regards.


The agent was the acting landlord for the property.

Do I need to make a specific point about the Claimant specifically instructed by the landlord not to pursue the case!

This also confirms absolute right to use the allocated parking spaces and the consent of the landlord.

Loadsofchildren123

Yes. In your bundle and in your WS.

theconquest

Any thoughts/suggestion of my dilemma about whether to include the photographic evidence below:

https://www.dropbox.com/sh/v1ql98vmmkiqmgd/AACD_ZClchZYWOtJMjL3rwy7a?dl=0

Loadsofchildren123

what are you saying the photos prove? I haven't got time to read back over the whole thread, sorry!

theconquest

Quick gist of the case:

One rainy night forgot to display the ticket in the front.
Parking ticket issued on mid Nov 14 in a private car park for failure to display parking permit in very early hours of the morning (around 4am!).

I appealed naively to the parking company stating I am officially renting the apartment and been using the parking space for a long time. Apologised for my first mistake of not displaying the permit on the dashboard. – Declined.

Appealed to Independent Appeals - Explaining circumstances and providing proof that even though I did not display the permit in the front there was another one clearly displayed in the back..