URGENT: County Court Claim

GolfR12

Apologies, insert the above after forums.moneysavingexpert dot com

Coupon-mad

https://forums.moneysavingexpert.com/discussion/comment/72977032#Comment_72977032

Yes you can base yours on that one, and add in this bit (edit to MAKE SENSE for your case), you have not lived there a decade, I expect, and might not be the owner:

https://forums.moneysavingexpert.com/discussion/comment/74141630#Comment_74141630

But you cannot write as though the Defendant has primacy of contract, unless the home address they have used for you as Defendant, IS actually that residential car park and your family live there and do have primacy of contract.

Do your family/or friend being visited, actually OWN or rent the flat?

What does their lease or tenancy agreement say (if anything) about parking, or permits, or the right to use communal areas including parking spaces, and any charge for parking, and do they have a marked/allocated bay or is it first come first served?

If nothing about parking is in the agreement, then what does the lease/tenancy agreement (please tell us if they OWN the flat) say about the Managing Agent or Landlord/Freeholder, having the right to introduce 'regulations' for the use of the estate?

Let's see the wording exactly, please, unless you can't get the lease right now.

Are you sure about your timing for this defence? Was the claim dated 12th March?

Add in some extra wording right at the start of each defence, listing ALL FOUR CLAIM NUMBERS and stating that:

Due to using a robo-claim automatic claim model with no human checks made regarding facts, evidence or overlap of similar cases whatsoever, this Claimant has, negligently and unreasonably, filed four separate claims about precisely the same matters, same facts, same vehicle, same car park, just different dates. If the court believes the claimant has set out a clear cause of action leading to a potential claim in law against this Defendant, in order to spare court resources and costs and under the doctrine of res judicata, the Defendant respectfully asks that there be only one hearing, to deal with all four repeated claims. Thus, the Defendant requests the cases are combined under Civil Procedure Rules 3.1(2)(g) and 3.1(2)(h) either by the CCBC putting the matter before a Judge in Northampton before/at the point of Allocation to track, or once allocated, by Order of the Defendant's local court Judge when issuing Directions.

GolfR12

Coupon-mad many thanks for your help and guidance. I really do appreciate it.

In addition to the above, do I mention the particulars of my case i.e. did not receive any of the previous letters due to living away from home for a while, residential home car park in which you require an electronic fob or access granted by a resident to enter etc?

I will begin drafting my response now and will upload it in the thread once done.

Thank you once again.

GolfR12

Coupon-mad

Also I do not have access to the terms of the lease agreement as I am unsure if the person who was visited still resides in the same building.

With regards to the timing, the issue date was 12th March 2018. Does this mean i have until 4pm on 16th April 2018 to respond?

KeithP

GolfR12 wrote: »

With regards to the timing, the issue date was 12th March 2018. Does this mean i have until 4pm on 16th April 2018 to respond?

Answered in post #8.

GolfR12

I will post my draft defence below. A few points to note:

1) I am unsure if the resident who lived at the address is still there; therefore, have no access to a lease/tenancy agreement

2) I am unsure if the resident owned or rented the place.

3) Would I need to be more specific regarding the particulars of my case detailed in post #1

GolfR12

Due to using a robo-claim automatic claim model with no human checks made regarding facts, evidence or overlap of similar cases whatsoever, this Claimant has, negligently and unreasonably, filed four separate claims about precisely the same matters, same facts, same vehicle, same car park, just different dates. If the court believes the claimant has set out a clear cause of action leading to a potential claim in law against this Defendant, in order to spare court resources and costs and under the doctrine of res judicata, the Defendant respectfully asks that there be only one hearing, to deal with all four repeated claims. Thus, the Defendant requests the cases are combined under Civil Procedure Rules 3.1(2)(g) and 3.1(2)(h) either by the CCBC putting the matter before a Judge in Northampton before/at the point of Allocation to track, or once allocated, by Order of the Defendant's local court Judge when issuing Directions.

DEFENCE

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 XXZZZ 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 [dates] 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 Defendant 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 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, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.

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 [address], 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. 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 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.

7. The Defendant avers that the operator!!!8217;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 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 Defence - Failure to set out clearly parking terms

8. In the alternative, the Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to consider the imposition of 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 ("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.

10. The defendant was completely unaware that the site was being enforced by any restrictive terms. The Defendant parked legitimately in one of many unallocated visitor bays, used without penalty or charge by various visitors at the site. The residents and the Defendant shared the legitimate expectation of a continuing right of way and unfettered right to use the demised parking bays for visitors with no charge.

11. The Defendant has visited the resident regularly and has always enjoyed the right to park in the visitor spaces. Since there has been no variation of the residents' agreements, a Managing Agent cannot impose this charging regime via an onerous back door method of 'signs and permits' with charges imposed where parking was free.
11.2. The Claimant cannot be heard to point to their sparse/unlit signs, as if the Defendant should have known about some sort of purported 'contract'; they could have put up huge billboards with neon lights and still those terms cannot affect and override the primacy of contract of leaseholders in possession.

12. The Claimants present a significantly detrimental material change and provide no service that is for the comfort and convenience of the visitors; indeed the industry is made up of rogue operators whose modus operandi is to issue predatory, unfair tickets, then sue people under the excuse of the completely different Beavis case. On 2nd February 2018 in the second reading debate about private parking firms, the House of Commons unanimously concluded: ''we need to crack down on these rogue companies. They are an absolute disgrace to this country. Ordinary motorists and ordinary residents should not have to put up with this''.

13.1. For the avoidance of doubt, the Defendant has entered into no contract with any parking firm.

14. 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.

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

16. 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.

Coupon-mad

The paragraph I gave you that you plonked at the top, needs to be a numbered paragraph, and to quote all the claim numbers.

Usual Claimant/Defendant/claim number/court and the word 'DEFENCE' headings are needed at the top, as per all the other examples you see here.

I didn't see the other part I suggested you add/adapt, in my link above?

GolfR12

Thank you. Will add in all the headings and claim numbers.

Which bit should I have amended and added in from the link? I was unsure of what to include as I will not be able to access the lease agreement.

Once again I really appreciate your help.

GolfR12

Hi guys,

I am looking to finish off my defence today and had a few things I wanted to check:

1) The part you suggested I add from your link, were you suggesting I add point 10 or the other points below? I added point 10 as my point 10 in my draft above.

2) I do not have access to the tenancy agreement as I am unsure if the resident is still living there. Does this affect my defence?

3) Do I include the particulars of my case outlined in post 1? I.e. letters were returned as gone away as I was living with a friend for a few months, there is a gated entrance to the car park which means only way of entry is using a key fob or being granted access by a resident?