Impending CPMS court date, defence review please

nikko9999

Hi guys, I've read all the stickies and cobbled together a defence which I feel is relevant although my understanding of a lot of the concepts is pretty poor so I appreciate some advice.

Context: I informally rent a room in a flat in Manchester, with 2 underground spaces, I came home late from work and parked in the overground communal spaces (you need to get a day pass from reception normally but it was 3am) and next day had a ticket. Received only one letter (notice to keeper) then next letter was the county court claim form with very vague POC, 2 PCN numbers, one of them from several years back so I've no idea if I was actually given a ticket. I submitted the following defence via the online system:

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.

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 xxxxxxx 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 16/5/17 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 Claimant 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 not 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 or by way of amendment to s.172 of the Road Traffic Act 1988. The latter continues to oblige the identification of drivers in strictly limited circumstances, where a criminal offence has been committed.

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 NS301, Royal Mills, 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.

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 Claimant 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.

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 Claim - Failure to set out clearly parking terms
8. The Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to impose 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 the Defence are true.

I have now received the following more detailed amended POC and have a few days to submit my amended defence (Ive been working away so unable to pick up the POC from the post office)

hxxp://tinypic.com/r/2nvyu8j/9

Any tips on how to optimise my defence? If it helps I can upload a pic of the signage, its unlit at night and the bit about £100 charge is small, and yellow writing on a white background so barely legible.

One thing I wasn't sure of is that I'm not an official resident, as in I live here permanently but have no post sent here and dont have my name on a tenant agreement (rented from a friend), so can I make the primacy of contract argument?

Many Thanks

Dan

System

What does your lease or rental agreement say about parking. You say you have unfettered rights but it would be better to show an extract of the wording.

I informally rent a room in a flat in Manchester,

That is not helpful to your case.

XXXXXX

That is not helpful to your case either as it identifies you and they read these threads.

Interesting to see they appear to have dumped Gladstones.

nikko9999

Whoops, forgot to take that out, I've edited the post, would be grateful if you'd remove the quote of my reg number from the forum.

claxtome

I have now received the following more detailed amended POC and have a few days to submit my amended defence (Ive been working away so unable to pick up the POC from the post office)

http://tinypic.com/r/330zou8/9

KeithP

http://tinypic.com/r/330zou8/9

I'll leave it to someone else to stand on their head to read that.

Help people to help you.

nikko9999

Apologies, I've edited the original post, and heres the correct way up link of the letter

hxxp://tinypic.com/r/2nvyu8j/9

nikko9999

Having read various other threads with cases involving residential parking, I've decided to remove that part of my defence. The lease agreement is vague and my registered address is different to where I park my car so I dont think its a relevant defence to me.

System

You want to get this killed off without going to court. Despite what you say you don't have unfettered rights unless the informal agreement came with rights - and those that granted those rights has them to offer in the first place.

If you read Link v Blaney you'll see what you have to produce to show the "unfettered" bit you are claiming. Also "communal" spaces tend to be owned by the Lessor and not the Lessees.

nikko9999

Thanks for all your input!

The specific wording was copied from a suggested defence in this forum regarding a similar scenario, as I've previously said I can't find anything to use to show I live at the address so I'm going to remove it.

How do I get it killed off before going to court?

Without the primacy of contract argument can my defence be amended to win in court? Even with the other arguments included the poor signage?

KeithP

Perhaps you should consider yourself a guest, or visitor, to whoever you are informally renting from?

In that case, your right to park there would depend on what rights your 'informal landlord' has for visitor parking.
He should inspect his tenancy agreement or lease to help decide that.

System

Perhaps you should consider yourself a guest, or visitor, to whoever you are informally renting from?

In that case, your right to park there would depend on what rights your 'informal landlord' has for visitor parking.
He should inspect his tenancy agreement or lease to help decide that.

That's a useful angle and even if there are restrictions on visitors that require them to show a permit, a visitor arriving when the office was closed can claim "frustration of contract" due to impossibility (of getting a permit)

This would have to be worded carefully so as not to drift into perjury so a small, tight defence on the visitor/impossibility angle might work.

Sometimes less is more when it comes to defences.