Devere Parking Services Ltd Claim Form received

reynolds500

Coupon-mad - thanks, I will post. Just checked Devere site and "email is for site enquiries" "Emails will not be read or responded to"

KeithP - Date on claim form is 15th May 2018

KeithP

reynolds500 wrote: »

KeithP - Date on claim form is 15th May 2018

Then you have until 4pm on Monday 18th June 2018 to file your Defence.

reynolds500

Particulars of claim on claim form:

This concerns the issue of a parking charge notice in the private parking area known as xxxx on the 18th Dec 2017 to a car xxxxxxx registered to the Defendant at DVLA, that was parked in breach of the Terms and Conditions in that no permit was displayed on the dashboard or windscreen as required. Signs at this location state the Terms and Conditions of parking and that failure to adhere will result in the issue of said pcn. That the driver will be liable to accept and pay in that they have agreed to do so contractually. The POFA may apply to the registered keeper in these matters. No response was received after the pcn was affixed to the car or after a Payment Reminder being sent. (this is not true, I replied to the NTK/payment reminder) After a Notice of Intent was sent the Defendant writes seeking information prior to issue of claim. However he also states in another letter quite clearly that if the Claimant is a member of the trade association called the IPC which they are, Then he requests that the Claimant Cease and Desist all contact. (which they did not)

First Draft Defence:

In the County Court Business Centre
Claim Number: XXXXXX

Between:

Devere Parking Services Ltd v XXXXXX


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 was the owner of the vehicle in question.

4) It is denied that any "parking charges or loss/damages" (whatever they might be) as stated on the Particulars of claim are owed and any debt is denied in its entirety.

5) The claimant has not provided enough details to file a full defence. In particular, the full details of the contract which it is alleged was broken have not been provided.
a) The Claimant has disclosed no cause of action to give rise to any debt.
b) The Claimant has stated that a parking charges were incurred for parking without clearly displaying a valid permit on the dashboard or windscreen which is wholly denied by the Defendant as a valid permit was clearly visible. ( not sure how to word this as my permit was in the car a visible through driver/passenger windows - permit does not state it needs to be on dash or seen through windscreen

6) It is admitted that the vehicle in question was parked at the location on the material dates, whilst residing at the private residential property. It is denied that there was any relevant obligation upon the Defendant that have been breached. The Defendant did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.

7) The Defendant undertook to appeal the unwarranted parking charges in all good faith, in the hope of resolving the dispute.

Authority to Park and Primacy of Contract

8) 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.

9) 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 of [address], whose tenancy agreement permits the parking of vehicle(s) on the land. (not sure about the lease - I rent property through letting agent, permit was supplied with keys to property when I moved in. Property is privately owned and let.)

10) It is not admitted that the Claimant has contractual or other lawful authority to make contracts with residents at this location, and/or to bring proceedings against the Defendant. The Claimant is put to strict proof. Further, and in the alternative, the Defendant avers that the Claimant requires the permission the owner of the relevant land - not merely another contractor or site agent not in possession - in order to commence proceedings.

11) The Defendant avers that the operators 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.

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

12) The Defendant parked legitimately in the bay allocated to the private rental property of which the Defendant resides, clearly displaying the valid permit, without penalty or charge for many years. After all these years, the Defendant had the legitimate expectation of a continuing right of way and unfettered right to use aforementioned parking bay.

12.1 The Defendant avers that there has been no variation of the owner's lease under the Landlord and Tenant Act 1987. The Defendant understands that for such a variation to have been agreed by the residents, 75% of the parties must have consented and not more than 10% must not have objected to any proposed material change (which this most certainly is).

12.2 Due process has not been followed and the Claimant is put to strict proof, including proving delivery of the requisite notices and the consensus obtained for the introduction of this unwelcome nuisance. Onerous terms cannot be foisted upon residents merely by a third party putting some signs up and beginning a predatory charging regime - even with the authority of a site agent - since this would be a derogation from grant.

12.3 The Defendant will provide a witness statement from the landlord, confirming that the Defendant was authorised by the him/her to park on site, was legitimately and properly parked in their own bay and could not be described as ''unauthorised'' (i.e. a trespasser). In any case, a parking operator firm not in possession of the land, cannot recover such damages.

12.4 In D7GF307F - UKCPM v Mr D - before Deputy District Judge Skelly on 1st February 2018 at Clerkenwell, a similar thin excuse of an argument from a private parking firm inflicting a nuisance on residents & visitors was dismissed. When not sitting as a Judge, DDJ Skelly is a barrister specialising in property law. The managing agents were named as a party to the lease, and there was a clause which said that they could make regulations for the 'comfort and convenience' of lessees. However, this could not excuse a change as intrusive and onerous as to override the grant of free resident/visitor parking, effectively restricting and charging for a right previously enjoyed, without the required consensus and deed of variation. It would be like the agents suddenly stipulating that residents had to hang a Union Jack out of the window whenever they were at home; clearly unreasonable and not in the interests of the consumer.

13) It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, the Defendant is keeping careful note of all wasted time/costs in dealing with this matter and should the case continue to trial (or in the event of the Claimant filing a Notice of Discontinuance) the Defendant will seek further costs, pursuant to Civil Procedure Rule 27.14(2)(g).

14) How can there be a legitimate interest in penalising residents for using parking spaces, under the excuse of a scheme where ostensibly and as far as the landowner is concerned, the parking firm is contracted for the benefit of the residents. It is contrary to the requirement of good faith and out of all proportion to any legitimate interest to fine residents or their visitors for using the parking spaces provided.

14.1. The presence of the Claimant on the land will have supposedly been to prevent parking by uninvited persons, for the benefit of the actual leaseholders. Instead, a predatory operation has been carried out on those very people whose interests the Claimant was purportedly there to uphold.

15) The Defendant respectfully suggests that parking companies using the small claims track as a form of aggressive, automated monetary demands against motorists, alleging 'debts' for parking on free resident parking areas is not something the Courts should be seen to support.

16) The Defendant denies the claim in its entirety, voiding any liability to the Claimant for all amounts due to the aforementioned reasons. The Defendant asks that the court gives consideration to exercise its discretion to order the case to be struck out under CPR Rule 3.4, for want of a detailed cause of action and/or for the claim having no realistic prospects of success.

17) If the court is not minded to make such an order, then when Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because it is expected that the Claimant will use its witness statement to provide the sort of detail which should have been disclosed much earlier, and the Defendant should have the opportunity to consider it, prior to serving evidence and witness statements in support of this defence.

I confirm that the above facts and statements are true to the best of my knowledge and recollection.

Signed

I have copied and pasted this and changed details but as I don't understand all of it some bits may not apply or will need adding.

Thanks for taking the time to help.

reynolds500

Coupon-mad

Between:

Devere Parking Services Ltd

v

XXXXXX


DEFENCE

Preliminary

I noticed you had no heading: 'DEFENCE' so adding it above.

Here in 5 I've added some words to assist:

a) The Claimant has disclosed no cause of action to give rise to any debt.
b) The Claimant has stated that a parking charges were incurred for parking without clearly displaying a valid permit on the dashboard or windscreen which is wholly denied by the Defendant as a valid permit was clearly visible.
c) The Defendant avers that the permit was in the car and was visible through driver/passenger windows.
d) The permit does not state it needs to be on the dash nor seen through the windscreen, nor does the permit refer to any 'relevant obligation' or 'relevant contract' (POFA 2012, Schedule 4) that could give rise to a claim against a registered keeper.
e) The permit was handed to the Defendant as tenant, with no obligation or contractual terms attached, and nor were any signs mentioned as forming part of or creating any contractual clause relating to the permit.
f) At all material times, the permit was displayed purely as a courtesy and not under any agreed contract. The Defendant did not agree to any contract with the Claimant.
g) Even if there were signs in the vicinity, these were not part of any agreed 'permit scheme' and were never drawn to the attention of the Defendant, who was not expecting him/herself (or any authorised visitors or other drivers of this vehicle, parking with or without this permit) to be deemed to have entered into a hidden and onerous contract with an unknown third party, every time they were at home.

And re this:

(not sure about the lease - I rent property through letting agent, permit was supplied with keys to property when I moved in. Property is privately owned and let.)

Tell your private landlord about your current predicament and ask kindly for a copy of:

- his/her leasehold terms that he/she understands allow him/her exclusive use of the parking space (if it is an allocate space?) and/or an unfettered right to park in the shared car park

- any information he/she was given about the permit scheme and when

- any contact from the Managing agent about the permit scheme and/or any request made to formally vary his/her lease to allow this nuisance

And ask if they would kindly write an email confirming that the flat was let to you with full parking rights flowing from his/her lease, and that he/she OWNS the space as part of their demised property (if so) or that they have exclusive rights to park and that the landlord has never contracted with Devere to allow them to police his/her space and effectively run a business on his/her land at his/her expense & detriment.

(or words to that effect, if the landlord will state something it will help later!).

reynolds500

Coupon-mad - Thank you for checking over this. I will make changes.

I will contact the landlord to ask for the above and post when I have the info.


Thanks, reynolds500

System

As regards the SAR you write (if they won't accept emails) to their data controller at the address Devere have given to the ICO. The actual ICO list is down for updating so you may need to wait a few days to get the actual Devere address.

When you do, you send the letter with proof of posting, wait a month then complain if it is not answered. If the letter and the complaint is still not answered you go to the ICO and raise a complaint there.

reynolds500

IamEmanresu - Thank you, I have checked the ICO site and it says "We are currently updating the public register. We will publish the register early next week."

This is a copy of my request based on a template found on ICO site.

my address

my tel. no.

27/05/18

Devere Parking Services Ltd
Office 123
89 Commercial Road
Bournemouth BH2 5RR

FAO Data controller
Dear Sir or Madam

Subject access request

My, my address. Claim No. xxxxxxxx

Please supply the data about me that I am entitled to under data protection law relating to:
County Court Claim Form, Claim No. xxxxxxxx for Parking Charge Notice for car registration number xxxxxxx registered to xxxxxxx

If you need any more data from me, please let me know as soon as possible. It may be helpful for you to know that data protection law requires you to respond to a request for data within one calendar month.

If you do not normally deal with these requests, please pass this letter to your Data Protection Officer, or relevant staff member. If you need advice on dealing with this request, the Information Commissioner!!!8217;s Office can assist you. Its website is
ico.org.uk or it can be contacted on 0303 123 1113.

Yours faithfully


xxxxxxx

Thanks, reynolds500

KeithP

reynolds500 wrote: »

I have checked the ICO site and it says "We are currently updating the public register. We will publish the register early next week."

Isn't that what IamEmanresu told you?

reynolds500

My Landlord has replied.

She has no paperwork from Devere and says the permits were given directly to her letting agent in 2007 when she bought the property for them to give to the first tenants.

She has sent me a plan from when she purchased the house that has the property and the parking space marked in highlighter.

This is it for now, I will ask again for an email stating ownership and parking rights.

Thanks, reynolds500

nosferatu1001

You could also go and grab the full lease from the land registry. Form OC2. Doesnt take long to get to you.