Rights of Third Parties Act?

my-goodness

I've now received a Claim Form, issue date 27th December. I've drafted a defence and would be very grateful for any feedback.

POC:
A claim for an outstanding parking charge has been issued against the defendant of the vehicle, registration [REG] parked on [SITE]. The land is managed by the claimant UKCPS Ltd, and signage is present on the land stipulating conditions of parking, that a £100.00 charge will be due for any breach of those conditions, including additional costs if recovery steps are taken. In parking on the land, the driver contractually agreed to be bound by these conditions. The driver of the vehicle parked on [DATE] at [TIME], was in breach of one or more conditions. The registered keeper who may have been the driver or alternatively has chosen not to name the driver is responsible for the charge under Schedule 4 of the Protection of Freedoms Act 2012. The parking charge remains unpaid; an additional charge of £60.00 for administration cost (admin, postage and letters) has been incurred whereby this becomes a commercially justifiable figure.

Defence:
IN THE COUNTY COURT

CLAIM No:

BETWEEN:

UKCPS LTD (Claimant)

-and-


DEFENCE
Preliminary
1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
2. The Particulars of Claim on the Claim Form refer to a 'parking charge' incurred on [DATE]. However, they do not state the basis of any purported liability for these charges, in that they do not state what the terms of parking were, or in what way they are alleged to have been breached. As such, the Claim fails to comply Civil Practice Direction 16, paragraphs 7.3 to 7.5.
3. The Defendant notes the Claimant's failure to engage in pre-action correspondence in accordance with the Practice Direction on Pre-Action Conduct and Protocol and with the express aim of avoiding contested litigation. The Claimant’s Letter Before Claim fails to include the basis on which the claim is made, and a list of the essential documents on which the Claimant intends to rely. The Defendant has requested a compliant Letter Before Claim from the Claimant on two occasions. The Claimant has failed to provide one.

Background
4. It is admitted that at all material times the Defendant is the registered keeper of vehicle registration mark [REG] which is the subject of these proceedings.
5. It is admitted that on [DATE] at [TIME] the Defendant’s vehicle was parked at [SITE].
5. 1. It is noted that the Claimant sent the Defendant a letter on [DATE], claiming that the Defendant’s vehicle was parked at [SITE] at [WRONG TIME] on [DATE]. This is untrue. The Claimant has subsequently changed the time of parking to [CORRECT TIME] on the same date.
6. The Defendant has, since [DATE], held legal title under the terms of a lease, to [APARTMENT] at [SITE]. The Claimant is not party to this lease.

Authority to Park and Primacy of Contract
7. It is denied that the Defendant was in breach of any parking conditions or was not permitted to park. Under the terms of the Defendant’s lease of [APARTMENT], the Defendant has the right to exclusive use of the [PARKING SPACE NUMBER]. 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 imposed by a third party. A copy of the lease will be provided to the Court.
8. 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.
9. The land in question is an underground residential car park. Entry to the underground parking 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.
10. The Defendant’s lease stipulates that the Defendant must comply with all reasonable regulations made by the Landlord or the Management Company at any time for their running or management. It is not stipulated that the Defendant must enter contractual obligations with the Claimant. The Defendant therefore denies that the Claimant’s £100 parking charge constitutes a ‘reasonable regulation’ under the lease.
11. Accordingly it is denied that:
11.1. there was any contract between the Defendant and the Claimant; and
11.2. there was any obligation to follow the conditions set out on the Claimant’s signage.

Alternative Defence – Rights of Third Parties Act
12. In the alternative, the Defendant relies upon a clause in the lease pertaining to the Contracts (Rights of Third Parties) Act 1999. The lease stipulates that a person who is not party to this lease has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this lease but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
13. The Defendant avers that the Claimant has no right to enforce any terms of the lease, as the Claimant is not party to the lease. The Claimant therefore has no right to enforce regulations concerning the Defendant’s Parking Space.

Alternative Defence – Signage
14. Further, the signage in the car park states that “parking is permitted for: permit holders when displaying a valid permit in the windscreen with all details clearly visible”, and suggests that by parking without permission, motorists are contractually agreeing to a parking charge of £100. This is clearly nonsense, since if there is no permission, there is no offer, and therefore no contract.

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

STATEMENT OF TRUTH
I confirm that the contents of this Defence are true.

KeithP

my-goodness wrote: »

I've now received a Claim Form, issue date 27th December.

With a Claim Issue Date of 27th December, you have until Tuesday 15th January to do the Acknowledgement of Service, but there is nothing to be gained by delaying it. To do the AoS, follow the guidance offered in a Dropbox link from post #2 of the NEWBIES FAQ sticky thread.

Having done the AoS, you then have until 4pm on Tuesday 29th January 2019 to file your Defence.

That's nearly four weeks away. Loads of time to hone your Defence to perfection, but don't leave it to the very last minute.


When you are happy with the content, your Defence should be filed via email as suggested here:

Print your Defence.
1. Sign it and date it.
   
2. Scan the signed document back in and save it as a pdf.
   
3. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
   
4. Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
   
5. Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
   
6. Do not be surprised to receive a copy of the Claimant's Directions Questionnaire, they are just trying to put you under pressure.
   
7. Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.

my-goodness

Thanks KeithP, I have submitted AoS. Do you have any feedback on the content of my defence please?

Coupon-mad

That defence looks to nail the issues.

my-goodness

Thank you v much Coupon-mad

my-goodness

Hello MSE angels

I now have a court date - 30th August. I've drafted my WS - feedback very much appreciated!

I am [NAME], of [ADDRESS], the Defendant in this case. I will say as follows:
1. The facts in this statement come from my personal knowledge. Where they are not within my own knowledge they are true to the best of my information and belief.

2. I have been the owner of [PROPERTY], on the [SITE] residential complex, since [DATE (Friday)].

3. On [DATE (Friday)] I picked up the keys to the property, along with a fob for the grounds, from [ESTATE AGENT].

4. When picking up the keys, I asked how I should go about parking in the car park at [SITE]. I was instructed to enter the car park using the fob, then park in the bay assigned to me in my lease.

5. Upon checking my lease, I saw that [PARAGRAPH] gave me exclusive rights to use the parking space demised to me. I saw from the car park map included in the lease that this was bay [X].

6. I drove to the [SITE] site after work, to start moving into my new property.

7. I am not certain of the exact time I arrived and parked in bay [X]. However, given that I normally finish work at 5pm, I believe it was around 5.30pm.

8. The [SITE] site has a concierge office. Its opening hours are 7.45am-5.30pm Monday – Friday, so I was unable to visit the office until [DATE (Monday)]. It was at this point that the concierge informed me that I was expected to display a parking permit in the car park.

9. I was confused by this, given that my lease gives me the right to exclusive use of bay [X]. However, to avoid any stress or arguments, I paid the £5 necessary to obtain a permit.

10. I note that the parking permit is only obtainable, at a charge, from the concierge office.

11. On [DATE], the Claimant sent me a letter, demanding a parking charge for not displaying a permit. I assumed this to be a simple misunderstanding, and appealed to the Claimant with the relevant information. They dismissed my appeal.

12. On [DATE], the Claimant sent another letter to me. This letter contained much of the same information as the previous one, but it stated that my car was parked at [SITE] at on [DATE] at [WRONG TIME]. I was not at [SITE] at the time in question, and can only assume that this was an error on the Claimant’s part. They have not mentioned parking at this time since that letter. I take this mistake as evidence of their incompetence.

13. I subsequently received many letters from the Claimant and by companies contracted by them.

14. On [SITE], the Claimant sent me what I assumed to be a Letter Before Claim, although it did not contain the basis on which the claim was made, or a list of the essential documents on which the claimant intended to rely. I wrote to the Claimant on [DATE] requesting a compliant Letter Before Claim, as per the Practice Direction on Pre-action Conduct.

15. The Claimant wrote to me again on [DATE], wrongly claiming that their Letter Before Claim was compliant.

16. I wrote back to the Claimant on [DATE], detailing their noncompliance with the Practice Direction, and once again requesting a compliant Letter Before Claim.

17. The Claimant filed the Claim Form on [DATE]. Again, the detail included in the Particulars of Claim was insufficient and did not comply with the Civil Practice Direction 16, paras. 7.3 to 7.5. They do not state the basis of any purported liability for these charges, in that they do not state what the terms of parking were, or in what way they are alleged to have been breached.

Statement of Truth

I believe that the facts stated in this Witness Statement are true.

Signature
Date

KeithP

You haven't referrenced any evidence.

For example, in para 5 you perhaps should include some extra words:

5. Upon checking my lease (see exhibit MG001) I saw that [PARAGRAPH] gave me exclusive rights to use the parking space demised to me. I saw from the car park map(see exhibit MG002) included in the lease that this was bay [X].

where MG = your initials and 001/002 are sequential numbers indexed in you evidence folder.

Similarly perhaps para 16 should read:

16. I wrote back to the Claimant on [DATE] (see exhibit MG003), detailing their noncompliance with the Practice Direction, and once again requesting a compliant Letter Before Claim.

Adjust other paragraphs similarly.

Where possible you need to prove everything.

my-goodness

Thank you very much, I'll go through and do this now.

my-goodness

On that note, I'm struggling to understand exactly what's needed in my evidence bundle. I know that I should include relevant evidence and transcripts from other cases. But do I also need things like my defence and the Claim Form, or will the court already have copies of these? What about correspondence - do I need to include every letter they've sent?

Also, would I need to go through and add a page number to every document?

Sorry if this is a really obvious question - I've tried searching the board and the newbies post, but I can't find an answer.

bargepole

my-goodness wrote: »

On that note, I'm struggling to understand exactly what's needed in my evidence bundle. I know that I should include relevant evidence and transcripts from other cases. But do I also need things like my defence and the Claim Form, or will the court already have copies of these? What about correspondence - do I need to include every letter they've sent?

Also, would I need to go through and add a page number to every document?

Sorry if this is a really obvious question - I've tried searching the board and the newbies post, but I can't find an answer.

You don't need to include the Claim Form or the Defence, copies of all those will already be in the court file.

You should, when you have assembled the complete bundle including your WS and evidence exhibits, you should then number every page of the bundle, so that in court you can say to the Judge "Sir, may I take you to paragraph 3 on page 11 of the Defence bundle", and save time shuffling papers looking for the right bit.

Judges love numbered bundles - on the Fast Track and Multitrack (the levels above small claims) they are compulsory.