PCN - parking in my own space

Coupon-mad

We've seen one or two residential cases lost (not lost by us on this forum but it's never guaranteed).

Compare the transcript of Link v Parkinson, to that of Link v Blaney. The Parking Prankster hosts the former winning case here (for some reason, he doesn't have the Blaney case that was lost...):

http://www.parking-prankster.com/more-case-law.html

but the BMPA does:

https://bmpa.zendesk.com/hc/en-us/articles/115004207805-Link-v-Blaney-C9GF03Q9

Spot the difference.

nasescoba1985

@ coup, yes I have read both those transcripts. The blaney one hopefully doesn't relate to mine as my lease has no hidden extras where the management company can implement a parking company. Sounds like the lease of these guys had a hidden agenda which lost them the case. Plus they occurre a hefty load of charges over a period of time. The other case more relates to mine where the defendant won the case on her lease rights alone.

nasescoba1985

Guys,

Can someone just briefly look at my draft defense i have compiled and just give me feedback if this is a strong defense or not, or if it needs altering/ changed please? I go travelling with my partner in xxx and the last thing i want is to be away and having to draft a defense together whilst abroad, so i'm pretty much writing a defense out as if i am close to the court stages. Obviously i will alter bits if it corresponds with what ever needs changing but below is my defense and i just want to get some feedback please.

---

In the county court xxxx Claim No:xxxxxx

Between: xxxxxx

And. ... Defendant

xxxx



Defence



I, xxxxxxxx, Defendant in this case, deny liability for the entirety of the claim.

1. This matter relates to a parking charge issued to the defendants vehicle (registration: xxxxx on xxxxxxx. It is admitted that at all material times the Defendant is the registered keeper of this vehicle.

Background

2. Prior to the parking enforcement appointment, the small gated development and residents of xxxxxx enjoyed peaceful usage of the allocated spaces and parking facilities provided when purchasing the properties. No problems occurred between residents and under no circumstances could any outside member of the public gain access to the complex, due to strict fob only and code access for residents only. The residents received an email on xxxxx from Mr xxxxxx on behalf of xxxxxx management, to notify tenants of a parking management company being implemented. The permits were put through the door of every tenant a week later. No consultation was made prior to this and an appointment was made in breach of the tenants lease. The tenant had no choice but to comply with the current regime and display a permit, until matters were resolved. Under no circumstances did the defendant enter in any contract with the parking management company whatsoever.

Authority to Park and Primacy of Contract


3. The defendant confirms that their vehicle was parked in Bay x on xxxxxx , belonging to Flat x xxxxxxxxxxxx(address of property) . The vehicle was parked there as the defendant is the owner of Flat x and Bay x is allocated as per lease. The defendant has the right to park in their own space and have the right to peaceful unfettered enjoyment of the space as they please. Unfettered meaning exactly that, i.e no requirement to follow rules, conditions or other punitive terms for use of the areas which are absent from the defendants lease. The primacy of contract can't be altered and there is no mention in the defendants lease of a permit needing to be displayed, parking restrictions or the right for the management company to change the terms of the lease without the defendants permission. As no parking constraints mentioned in the defendants lease, then the defendant does have unfettered use with the right of peaceful enjoyment of the facilities within their housing complex. The defendant did not enter into any "agreement on the charge", no consideration flowed between the parties and no contract was established.


4. The defendant tried to be compliant in their 1st letter explaining the circumstances as to why the permit fell off the dashboard, but the claimant proved to be very unreasonable in this matter. The claimant acknowledged the defendant was the rightful owner of the parking space in their rejection letter as the defendant provided them with photocopy proof of permit, which relates to Bay x in question, but the claimant still refused to overturn the PCN.

5. As the claimant has repeatedly failed to acknowledge the terms of the defendants lease , the defendant has assumed that it relates to an alleged breach of contract.

6. Therefore, liability for the alleged debt is disputed in its entirety based on the well-established legal principle of primacy of contract: the agreement (ITEM X) that exists between the Owner of Flat x and management company extends to the use of the specified parking space and overrides any purported contract conveyed by the claimants insufficient, demonstrably illegible signage (Items X). The tenants contract makes no assertion that a permit must be displayed to use the bay, nor that a penalty of £100 must be paid in the event of a failure to do so (Item X, pages xyz). The tenancy agreement's lack of specificity on any conditions related to parking in the relevant bay can only be construed that none of the restrictions asserted by the claimant apply.

7. The Defendant will rely upon the judgments on appeal of PACE RECOVERY v MR N.Redacted (2016) - Claim No. C6GF14F0, Link Parking LTD v Jayne Gaynor Parkinson (2016) - Claim No: G7GF50J7 and Link parking Ltd v Mr David and Michael Blaney (2017) - Claim No:C9GF03Q9. The Court will be referred to these and further similar fact cases that mirror the exact same circumstance as the defendants case in the event that this matter proceeds to trial. The defendant has printed transcripts of all these cases that are relevant to this.

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

9. The defendant contends, therefore, that the tenant's agreement provides an unfettered right to park in their assigned bay for themselves and their invited guests. This cannot be superseded, altered, or ignored by a parking management company post hoc.

10. The defendant believes that any parking management company with a legitimate interest in protecting the parking rights of a residential space; which is surely their only purpose; would immediately rescind any charges issued to residents and their legitimate visitors, especially when it relates to parking in the residents own allocated space.

11. In this belief, therefore, the defendant appealed, as the keeper of the vehicle, on X DATE (ITEM X).

12. The defendants appeal was rejected with the claimant behaving very unreasonably (see ITEM x).


13. An offer to appeal to an independent arbitrator was made on xxxxxx ,to the Independent appeals service (IAS) , which was investigated but rejected on xxxxx via email, despite the defendant providing evidence snippets of the lease which prove the defendants unfettered rights to park in the allocated space and providing proof of permit which proved the defendant was the owner of the property and parking space in question.


14. It should be noted at this point that the !!!8216;Independent Appeals Service (IAS), which the IPC utilises as its alternative dispute resolution, has a prominent reputation of biased rulings in favour of parking operators. Evidence supporting this assertion is readily available in the public domain, and appeals made by motorists through this service are largely futile. Unlike the equivalent service, offered by the BPA, Parking on Private Land Appeals (POPLA), the IAS lacks any independent scrutinising body, and it defies the usual methodology of an ADR service by expecting the consumer (rather than the claimant) to bear the burden of proof, and by using anonymous assessors, contrary to usual ADR rules.
a. Statistics show that in the twelve months ending 31st March 2015, 52.65% of appeals made to POPLA were allowed, while 47.35% were refused. For the IAS, however, only around 20% of appeals were upheld, with the opposing 80% refused in favour of parking operators.
b. Crucially, the IPC, who utilise the IAS, is a company formed and directed by Misters Will Hurley and John Davies, who, incidentally, are the same individuals who run Gladstones Solicitors (SEE ITEMS XYZ, Companies House data), the claimants current representative (and a prolific agent working on behalf of parking management companies in the small claims court). Any opportunity of a fair review of one's appeal under the IAS is absolutely lost, since it is clearly in the best interest of the IAS to refuse motorists their appeals, allowing Gladstones Solicitors to pick up the debts and take the cases to small claims court.

15. Therefore, the defendant believes no reasonable efforts were made to resolve this dispute outside of court. It can clearly be seen from the defendants own correspondence that attempts were made in the 2nd appeal to provide sufficient snippets of photocopy evidence of the defendants lease to IAS, which gives them the unfettered right for peaceful enjoyment of their own parking space, but this was met with a rejection.

16. The majority of the correspondence received from the claimant, their debt recovery partners, and their representation, has been threatening, misleading, and in several instances, absolutely duplicitous (ITEMS XYZ, letter from CPM; DRP and Gladstones masquerade; threats to credit rating, etc.)

17. Accordingly, it is maintained that the defendant has no liability for this debt and that the claimant has acted immorally and deceitfully on several occasions, pursuing the alleged debt in an aggressive and intimidating fashion, with the singular intention of coercing the debt from the defendant with continued threats of legal action. No effort was made whatsoever to address the very reasonable assertions made by the defendant that the driver had every right to park in the bay in question; if this particular parking management company truly aimed to protect the rights of residents, this matter could have been resolved amicably and swiftly, without the need of involving the courts.

18. The claimant is attempting to claim additional charges such as legal costs of .... The defendant also has the reasonable belief that the claimant has not incurred the stated additional costs and it is put to strict proof that they have actually been incurred. The additional sum claimed for interest is an insult to justice and evidence of the claimants wilful and vexatious abuse of the court process.


Failure to set out clear parking terms


19. 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 where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.

20. The Defendant avers that the parking signage in this matter was, without prejudice to the primary defence above, woefully inadequate.

21. At the time of the material events the signage was deficient in number, size, distribution, wording and lighting to reasonably convey a contractual obligation;

22. 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

23. There is no signage whatsoever on any of the walls opposite and behind the area where the defendants vehicle was photographed and parked, as per photographic evidence. Thus making the ridiculous signage argument embarrassing. The Code of Practice of the Independent Parking Committee's ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory, states that Text should be of such a size and in a font that can be easily read by a motorist having regard to the likely position of the motorist in relation to the sign. The signage in the area does not meet this requirement.


Counter Claim

24. The defendant would also like to counter claim for a data breach as they believe, the claimant have no good cause to obtain the defendants data from the DVLA, which in turn is a data breach and illegal. ( see letter ) where the claimant admitted to obtaining the defendants data through the DVLA without permission .

I believe that the facts stated in this witness statement are true.
SIGNED
DATE

DoaM

Defence ... we're not the 51st state (yet)

nasescoba1985

HAHA bloody iPhone must love Americans

Defence ok?

Coupon-mad

Yes the wording is good (bit long but who am I to talk?!). I realise you are NOT at claim stage yet.

What you do not need at defence stage, is any evidence attached, so no need for things like:

(see ITEM x).

That will come later, nearer the hearing, not with the defence.

nasescoba1985

Hello Coup. I pretty much got most of my evidence ready and waiting. It's literally a case of waiting for the debt collector letters etc ( if they do come ) and reference to that really in my defence if need be.

I have printed pictures of the no signage in front of my car and behind it + the poor signage on the wall furthest away from where I park.

My lease is ready in my bundle, along with my property information form I was telling you about, which has the property management company signing and ticking NO in the box, when asked if the parking was restricted or required permits. This was signed 2015.

I have all the letters from UK CPM + my appeal letters in the pack.

I have printed transcripts of the court cases that mirror mine and have referred to them in my defence.

Sound pretty prepared ?

After all that, they probably won't even pursue it

nasescoba1985

Hey guys,

Thought I would send a last strong email to my property management company and try get this cancelled. Just received an email back today from the property manager to say UK CPM have now cancelled my ticket. Looks like my email worked I will contact UK CPM just to make sure


My email
Below .....................



Good evening ,


As I communicated with you previously in regards to a parking ticket I received in my own private space ( Bay 5 ) on 30/11/2017, I have since got some legal advice and whilst I have a very strong case in Court to fight this on my own, I have been advised that you as the property management company has the right to intervene and get this parking PCN cancelled.

If it was you that hired Uk CPM, then as the agent, you are vicariously liable for the actions of that agent.

As this matter hasn't reached the stages anywhere close to Court yet, there is no reason whatsoever why you can't get UK CPM to rescind this parking charge, when clearly the charge itself is very unreasonable, when they are trying to charge me for parking in my own private space.

This is causing unwarranted needless stress, when it can be resolved amicably and swiftly by yourselves.

We as owners of Flat x pay our service charge and ground rent on time and in full every time we are billed, so as curtesy to good owners, surely you wouldn't want to see this sort of thing occur. Not to mention the fact that UK CPM are supposedly serving the best interests of the residents. This couldn't be further from the truth, if they are fining residents in their own space.

The parking charge notice ref is - xxxxx

I would like you to contact UK CPM and get this cancelled please,

If not, I would like a detailed response as to why in writing, so I can use this in court in my defence ,


Regards

Xxxxx