How to approach a change of address with a company

MRHCYORK

Brilliant, thanks Coupon-Mad.

Fingers crossed I can get it set aside and then prepare a full defence! Wish me luck!

MRHCYORK

Hi all,

So wanted to update on my Set Aside hearing that was heard today and share my experience.

So fortunately I was granted the Set Aside, although it wasn't smooth sailing whatsoever and took a lot of discussion with judge to bring her around. To start the claimant didn't attend, I was taken in 15 minutes early by the usher as they weren't there. When I went in the judge explained they had written to say they wouldn't be attending but disputed the set aside hearing and provided all there evidence, most of which I hadn't seen and was unaware of.

The Judge then told me early on that it looked unlikely from the documents she had that I had a case for setting aside. She said that in their evidence they'd admitted I'd attempted to contact them regarding an address change 27/9/18, however the claim had been sent before that. I disputed this and asked her to double check the dates as I had the email regarding the address change, dated, and the claim form from the information I'd been provided with said that it was served to the address on 4/10/18. She checked and confirmed I was correct, which was a strong point on my side then.

She then pressed forward saying she understood the dispute regarding that but the real issue was with my defence. I wanted to defend on Primacy of Contract, stating that my tenancy agreement had no mention of a parking permit and that their signs shouldn't supersede my right to my own parking spot. She said that this was difficult as she didn't have the tenancy agreement, which I produced for her. I handed it to her and explained I'd gone through and highlighted any and all parts applicable. This was a BIG point in my favour as she explained it often takes her a while to read through the extensive documents and she was impressed I'd saved her the hassle. She read the highlighted parts about how I had full access to the 'premises' and then the part where it listed what constituted the premises, including 'parking space'. She asked if there was any mention whatsoever beyond this of a parking permit being necessary and I explained how there wasn't, particularly as the parking permits were brought in after we'd moved in.

She nodded to all of this and said that given what I'd presented and explained, she was willing to grant the set aside. She did explain that the defence was shaky and needed tightening down (which I'm hoping Coupon-Mad and the team might help me with over the next few days as would love to beat them as well!). I did ask about the refund of application fees, she said that I was maybe pushing it but that if I won next time in defending the full case I should ask for it then.

All in all it was quite a nerve-wracking experience, however I stood my ground and most importantly I had done my homework and had all the necessary paperwork in order so I wasn't panicking when she threw things at me.

I now have 14 days to provide a defence, and still believe I can defend on Primacy of Contract. If anyone can point me in the right direction of a draft defence, and a list of things necessary to send in with it, and the next steps etc, I really would love now to go and beat them!

Thanks all, and look forward to hearing from you.

Le_Kirk

Well done on getting it set aside. If you return to the NEWBIE sticky post # 2, there are 17 prewritten defence examples and some of them are own-space defences. You can also search the forum using similar keyword(s).

MRHCYORK

Hi all, just preparing my defence for court required back within 14 days (7 days left). I've followed the lead of two of the newbie threads, mainly a draft defence by Coupon-mad. I'm having trouble considering some other defences to add to this after Primacy of Contract, my main one. I'll put some questions following my draft, if anyone can answer them I would be really grateful!

IN THE COUNTY COURT BUSINESS CENTRE
Claim No. XXX
BETWEEN:!

UK CAR PARK MANAGEMENT Claimant !
-- and --!
XXX Defendant
_____________________________________

DEFENCE

_____________________________________

Background
1. It is admitted that on DATE the Defendant's vehicle was parked in ADDRESS.

Authority to Park and Primacy of Contract

2. The Particulars refer to the material location as ADDRESS. The Defendant held residency here between DATE and DATE, and held legal title under the terms of a lease, to Flat No. XX at that location. At time of moving into the premises, there was no parking permit scheme in place by the claimant.

3. The car parking area contains allocated parking spaces demised to residents. Entry to the car park is by means of a key fob, of a type only issued to residents. Any vehicles parked therein are, therefore, de facto authorised to be there.

4. There are no terms within the lease requiring lessees to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same.

5. The Defendant, at all material times, parked in accordance with the terms granted by the lease. The erection of the Claimant's signage, and the purported contractual terms conveyed therein, are incapable of binding the Defendant in any way, and their existence does not constitute a legally valid variation of the terms of the lease. Accordingly, the Defendant denies having breached any contractual terms whether express, implied, or by conduct.

6. The Claimant, or Managing Agent, in order to establish a right to impose unilateral terms which vary the terms of the lease, must have such variation approved by at least 75% of the leaseholders, pursuant to s37 of the Landlord & Tenant Act 1987, and the Defendant is unaware of any such vote having been passed by the residents.

7. The Defendant's vehicle clearly was 'authorised' as per the lease and the Defendant relies on primacy of contract and avers that the Claimant's conduct in aggressive ticketing is in fact a matter of tortious interference, being a private nuisance to residents.

8. In this case the Claimant has taken over the location and runs a business as if the site were a public car park, offering terms with £100 penalty on the same basis to residents, as is on offer to the general public and trespassers. However, residents are granted a right to park/rights of way and to peaceful enjoyment, and parking terms under a new and onerous 'permit/licence' cannot be re-offered as a contract by a third party. This interferes with the terms of leases and tenancy agreements, none of which is this parking firm a party to, and neither have they bothered to check for any rights or easements that their regime will interfere with (the Claimant is put to strict proof). This causes a substantial and unreasonable interference with the Defendant's land/property, or his/her use or enjoyment of that land/property.

9. The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 as a binding precedent on the lower court. However, that only assists the Claimant if the facts of the case are the same, or broadly the same. In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas it is the Defendant's position that no such breach occurred in this case, because there was no valid contract, and also because the 'legitimate interest' in enforcing parking rules for retailers and shoppers in Beavis does not apply to these circumstances. Therefore, this case can be distinguished from Beavis on the facts and circumstances.

10. The Claimant, or their legal representatives, has added an additional sum of £60 to the original £100 parking charge, for which no explanation or justification has been provided. Schedule 4 of the Protection Of Freedoms Act, at 4(5), states that the maximum sum which can be recovered is that specified in the Notice to Keeper, which is £100 in this instance. It is submitted that this is an attempt at double recovery by the Claimant, which the Court should not uphold, even in the event that Judgment for Claimant is awarded.

11. For all or any of the reasons stated above, the Court is invited to dismiss the Claim in its entirety, and to award the Defendant such costs as are allowable on the small claims track, pursuant to Civil Procedure Rule 27.14. Given that the claim is based on an alleged contractual parking charge of £100 - already significantly inflated and mostly representing profit, as was found in Beavis - but the amount claimed on the claim form is inexplicably £160.00, the Defendant avers that this inflation of the considered amount is a gross abuse of process.

12. Given that it appears that this Claimant's conduct provides for no cause of action, and this is intentional and contumelious, the Claimant's claim must fail and the court is invited to strike it out.

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

QUESTIONS:
1. Should I reference that I never received a POPLA code in their appeal rejection, despite them being BPA?

2. What signage defence would I consider if they have a clear picture of me parked next to a sign? Or should I ignore this as a defence route?

3. Should I request for the PPC to provide a copy of their authority to operate and a copy of their agreement with the landowner, etc that they would claim overrides my lease and right to park?

4. A major issue is that in my appeal I admit to it being my vehicle (despite not being the Keeper) and also I acknowledge that a permit is required, where should I go with that?

5. Can I counter their use of my appeals letter by simply stating that at the time of the appeal I hadn’t fully clarified my legal rights to occupy my parking space rightfully without displaying a parking permit?

6. In the letter sent to the court by Gladstones, they ask that if it was set aside, they ask for me to file my defence in 14 days and also supply my tenancy agreement, however, in the order setting aside judgment, they only said that the condition was I filed a defence within 14 days with no mention of the tenancy agreement, does that mean I just have to send in the defence and not my tenancy agreement yet?

7. Can I include somewhere asking for costs for the set aside application fee should I be successful?

Sorry for such a long post, and thank you in advance for any help!!

Coupon-mad

QUESTIONS:
1. Should I reference that I never received a POPLA code in their appeal rejection, despite them being BPA?

Yes.

2. What signage defence would I consider if they have a clear picture of me parked next to a sign? Or should I ignore this as a defence route?

Ignore it as you are saying the signs were a nullity due to your primacy of contract, like in the residential appeal case of Jopson v Homeguard.

3. Should I request for the PPC to provide a copy of their authority to operate and a copy of their agreement with the landowner, etc that they would claim overrides my lease and right to park?

Yes.

4. A major issue is that in my appeal I admit to it being my vehicle (despite not being the Keeper) and also I acknowledge that a permit is required, where should I go with that?

Oh dear.

5. Can I counter their use of my appeals letter by simply stating that at the time of the appeal I hadn’t fully clarified my legal rights to occupy my parking space rightfully without displaying a parking permit?

Good idea, say the system was foisted upon residents and you were made to feel you were in the wrong, by the tone of the letters, but in fact after research you realise the parking firm were interfering with your rights and grants, and creating a private nuisance against your peaceful enjoyment of the property that had existed before they rocked up with some cardboard signs stuck up with parcel ties.

6. In the letter sent to the court by Gladstones, they ask that if it was set aside, they ask for me to file my defence in 14 days and also supply my tenancy agreement, however, in the order setting aside judgment, they only said that the condition was I filed a defence within 14 days with no mention of the tenancy agreement, does that mean I just have to send in the defence and not my tenancy agreement yet?

Yes just do what the Court has ordered. You should then get a hearing date and further directions about evidence exchange.

7. Can I include somewhere asking for costs for the set aside application fee should I be successful?

Yes, I would. Mention that you will be filing and serving a costs schedule of at least £350, given the £255 set aside fee and two hearing attendances, and await the court's directions about when to file and serve your substantive witness statement and evidence for the case.

KeithP

What signage defence would I consider if they have a clear picture of me parked next to a sign?

Or do they perhaps have a picture of your car parked next to a sign?

MRHCYORK

Hi all,

Thanks for the responses and thanks Coupon-Mad for answering each question. I've re-written it again and added a couple more questions at the end which again I'd be very grateful for anyone who can help.

IN THE COUNTY COURT BUSINESS CENTRE

Claim No. XXX

BETWEEN:!

XXX Claimant!

-- and --!

XXX Defendant
_____________________________________

DEFENCE

_____________________________________

Background
1. It is admitted that on DATE the Defendant's vehicle was parked in ADDRESS.

Authority to Park and Primacy of Contract

2. The Particulars refer to the material location as ADDRESS. The Defendant held residency here between DATE and DATE, and held legal title under the terms of a lease, to Flat No. XX at that location. At time of moving into the premises, there was no parking permit scheme in place by the Claimant.

3. The car parking area contains allocated parking spaces demised to residents. Entry to the car park is by means of a key fob, of a type only issued to residents. Any vehicles parked therein are, therefore, de facto authorised to be there.

4. There are no terms within the lease requiring lessees to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same.

5. The Defendant, at all material times, parked in accordance with the terms granted by the lease. The erection of the Claimant's signage, and the purported contractual terms conveyed therein, are incapable of binding the Defendant in any way, and their existence does not constitute a legally valid variation of the terms of the lease. Accordingly, the Defendant denies having breached any contractual terms whether express, implied, or by conduct.

6. The Defendant's vehicle clearly was 'authorised' as per the lease and the Defendant relies on primacy of contract and avers that the Claimant's conduct in aggressive ticketing is in fact a matter of tortious interference, being a private nuisance to residents.

7. In this case the Claimant has taken over the location and runs a business as if the site were a public car park, offering terms with £100 penalty on the same basis to residents, as is on offer to the general public and trespassers. However, residents are granted a right to park/rights of way and to peaceful enjoyment, and parking terms under a new and onerous 'permit/licence' cannot be re-offered as a contract by a third party. This interferes with the terms of leases and tenancy agreements, none of which is this parking firm a party to, and neither have they bothered to check for any rights or easements that their regime will interfere with (the Claimant is put to strict proof). This causes a substantial and unreasonable interference with the Defendant's land/property, or his/her use or enjoyment of that land/property.

8. The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 as a binding precedent on the lower court. However, that only assists the Claimant if the facts of the case are the same, or broadly the same. In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas it is the Defendant's position that no such breach occurred in this case, because there was no valid contract, and also because the 'legitimate interest' in enforcing parking rules for retailers and shoppers in Beavis does not apply to these circumstances. Therefore, this case can be distinguished from Beavis on the facts and circumstances.

8.1. The Claimant may produce and rely upon a previous appeal letter supplied by the Defendant after receiving the private parking charge. The Defendant produced that letter in haste before they fully appreciated their legal right to occupy the car parking space without having to produce a permit to do so. The demands sent by the Claimant made the Defendant feel culpable, however, after researching the matter they feel that the Claimant only proceeded to infringe on their rights and created a private nuisance to the Defendant’s peaceful enjoyment of the property that had existed before they erected signs and implemented an inproper permit scheme. Therefore, the Defendant would like the appeals letter disregarded and denies any wrongdoing.

9. The Claimant, or their legal representatives, has added an additional sum of £60 to the original £100 parking charge, for which no explanation or justification has been provided. Schedule 4 of the Protection Of Freedoms Act, at 4(5), states that the maximum sum which can be recovered is that specified in the Notice to Keeper, which is £100 in this instance. It is submitted that this is an attempt at double recovery by the Claimant, which the Court should not uphold, even in the event that Judgment for Claimant is awarded.

POPLA CODE

10. The Defendant would also like it noted that having sent an appeal letter to the Claimant they responded rejecting the appeal. However, the Claimant failed to provide a POPLA code, denying the defendant their right to independent appeal and neglecting the British Parking Association Code of Conduct, of which the Claimant is a member and expected to abide by their rules.

LANDOWNER AUTHORTIY

11. It is the Claimant’s assertion that they had sufficient rights to occupy the parking area at the location and in turn the correct legal framework to supersede the Defendant’s tenancy agreement, a tenancy agreement that was signed prior to the Claimant’s company placing up signage and providing parking conditions and which the Defendant strongly refutes. Because of this, the Defendant respectfully requests that the Claimant provide them with all paperwork they believe entitles them to be on the premises including their authority to operate.

SCHEDULE OF COSTS

12. For all or any of the reasons stated above, the Court is invited to dismiss the Claim in its entirety, and to award the Defendant such costs as are allowable on the small claims track, pursuant to Civil Procedure Rule 27.

13. Given that the claim is based on an alleged contractual parking charge of £100 - already significantly inflated and mostly representing profit, as was found in Beavis - but the amount claimed on the claim form is inexplicably £160.00, the Defendant avers that this inflation of the considered amount is a gross abuse of process.

14. The Defendant would also like it noted that they intend to file a costs schedule of at least £350 relating to £255 in applications fees to obtain a Set Aside hearing as well as two court hearing attendances.

15. Given that it appears that this Claimant's conduct provides for no cause of action, and this is intentional and contumelious, the Claimant's claim must fail and the court is invited to strike it out.

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

QUESTIONS:

1. Is this enough to be considered my defence and send in? Or do I need to include more?

2. Does it have any structuring issues, including numbering and titles to different subjects?

3. Are points 8.1 and 10 and 11 sufficient as I wrote them myself?

4. I’ve added a bit about Schedule of costs, is it correct and do points 14 and 15 fit okay together?

5. Do I have to send my defence to my local county court or to Northampton Business CC? Thanks all in advance!

Le_Kirk

Landowner authority point is the right thing to ask but usually phrased as: -

The Claimant is put to strict proof that it is has the authority........

For the full and correct wording look at any defence in the 17 or so written in the NEWBIE sticky post # 2.
Schedule of costs is normally submitted with WS and evidence. Given this is a defence as part of a set-aside (already heard) what did the order say about costs (the £255).

1505grandad

Just checking:-

para 10 - in post #3 - thought that this clarified that UKCPM are IPC - therefore no POPLA

MRHCYORK

Le_Kirk wrote: »

Landowner authority point is the right thing to ask but usually phrased as: -
For the full and correct wording look at any defence in the 17 or so written in the NEWBIE sticky post # 2.
Schedule of costs is normally submitted with WS and evidence. Given this is a defence as part of a set-aside (already heard) what did the order say about costs (the £255).

Thanks for the response. During the set aside hearing I did ask the judge about recovering costs and she told me to bring it up at this hearing?