Own Apartment Parking Fine

Nell22

Right second draft - 1st person! Let me know what you think!

---- WITNESS STATEMENT ----

I, xxxx, of xxxx, am the Defendant in this matter, and will say as follows.

I am the Defendant in this matter. Attached to this statement is a paginated bundle of documents marked NR1 to which I will refer.

1. The facts in this statement come from my personal knowledge. Where they are not within my personal knowledge, they are true to the best of my information and belief.

2. I am the Registered Keeper of the vehicle in question on the 26th March 2017 and thereafter date.

3. The claims against me relates to parking charges that were allegedly to occurred at my current address from which I had ownership since 23rd January 2017 to present date (Exhibit A – land registry).

4. The Particulars refer to the material location as Pulse – Lingard Ave. The Defendant has, since 16th November 2016, held legal title under the terms of a lease, to Flat X, XXX Court at this location.

5. At some point, the managing agents contracted with the Claimant company as a contractor, but they are strangers to the lease and in common with other residents, I was led to believe that the regime was intended to deter trespassers. No 'relevant contract' or 'relevant obligation' was communicated to residents, nor would I have accepted a contract foisted upon me with onerous terms and charges. It is not enough to put signs up and ride roughshod over the rights of residents that already exist, and which take precedence, given the leasehold title held.

6. Trying to re-offer a parking/loading (in or out of the allocated bay) right or easement that I already enjoy by express or implied right under my lease, lacks any aspect of consideration.

7. There is no licence to park that this Claimant can possibly offer me that I do not already have as an unfettered right. This Claimant is trying to run our home car park like a commercial site, on the same punitive terms as a trespasser would be charged. This would clearly be a derogation from grant and I wish to make clear that I did not agree to contractual terms, just because a permit was imposed upon me with no opt out offered. Permits were displayed as a courtesy only, to show other residents who was parked, and we have previously always been able to stop to unload or load items anywhere in the car park area.

8. The outside car parking area contains allocated parking spaces demised to some residents, and a general area for residents who do not have an allocated space. Under the terms of my lease (Exhibit , one reference is made about parking motor vehicles. The reference is simply in the header of the lease stating that the overall lease arrangement is for the apartment and an allocated parking space with the right to use a parking space.

9. The parking bay in which my car resides and is parked on a nightly basis, is clearly marked with number of my apartment, number 9 (Exhibit H), as allocated solely to the resident of marked apartment.

10. 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. Therefore, my case relies on Primacy of Contract. I refer previous cases such as Pace v Mr N [2016] C6GF14F0 [2016] (Exhibit C), where it was found that the parking company could not override the tenant's right to park by requiring a permit to park.

11. I did, 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 me in any way, and their existence does not constitute a legally valid variation of the terms of the lease. Accordingly, I deny having breached any contractual terms whether express, implied, or by conduct.

12. My vehicle clearly was 'authorised' as per the lease and 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. In this case the Claimant continues to cause a substantial and unreasonable interference with my land/property, or his/her use or enjoyment of that land/property.

13. 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 I am unaware of any such vote having been passed by the residents.

14. The claimant may argue that I parked outside of the allocated bay for loading. I refer to the case of Jopson v Homeguard [2016] B9GF0A9E (Exhibit F), where on appeal it was found that the parking company could not override the tenant's right to temporarily stop near the building entrance for loading/unloading.

15. The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 (Exhibit D) 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 my 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.

16. I’d like to also state the Claimant did not display clear, large, prominent signs within the site that were capable of being read from the driver's seat and/or forming a contract, contrary to the BPA CoP, PoFA and the Beavis Vs ParkingEye 2015 case. (Exhibit H pictures of Bay and Signage). From the pictorial evidence you can see that the font type is incredibly small and would not be legible from the drivers seat, and is purely aimed at only unauthorised driver, not myself.

17. Even if the court is minded to accept that a sign was visible, the wording on the sign was prohibitive. Unlike in the Beavis vs ParkingEye case, the Claimant offered no licence to park if not a ‘permit holder’. A purported licence to stop without a permit, in exchange for payment of a ‘charge’ on the one hand, cannot be offered when that same conduct is, on the other hand, expressly prohibited in the signage wording. This does not create any possible contract.

18. This is clear from several cases. An example In PCM-UK v Bull et all B4GF26K6 [2016], residents were parking on access roads. The signage forbade parking and so no contract was in place. A trespass had occurred, but that meant only the landowner could claim, not the parking company.

19. Finally, having outlined my witness statement with supporting evidence, I encourage the court to strike out the claims against the Defendant as there are no sound grounds of claim and to grant compensation in accordance to the defendant cost of schedule (Exhibit E)


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

Defendant

Signed

Nell22

My schedule of cost only has the basic £95 and travel in for now.
I cant seem to relate unreasonable behaviour into my argument as they havent submitted anything late etc - but i'll read up more on it tomorrow morning. Just a final query to the several i've posted above, is it okay that i've included cases in my witness statement that i didnt originally include in my defence, would that be an issue?

Coupon-mad

Nell22 wrote: »

Can somebody sent me a link to the actual PCM-UK v Bull et all B4GF26K6 [2016] case.
I've google searched it but it doesnt seem to come up with anything aside from the parking prankster site, which has a dead link to the case? I want to include a copy in my evidence bundle.

It's not a broken link - I just tested it. Try a different PC or browser.

Nell22

Thanks it was a browser issue

Looking to finish everything today and print and pack everything. Any feedback on the 2nd draft and other queries is much appreciated. Thanks

Le_Kirk

I, xxxx, of xxxx, am the Defendant.....

Better as: -

I am xxxx, of xxxx, and I am the Defendant........

that were allegedly to occurred

Better as: -

that allegedly occurred

OR

that were alleged to have occurred

I did, at all material times, parked in .....

I did, at all material times, park in.......

with my land/property, or his/her use

with my land/property, or my use

Nell22

Le_Kirk wrote: »

Better as: -
Better as: -
OR

Thank you!! Revised - draft 3 below.

---- WITNESS STATEMENT ----

I am xxxx, of xxxx, and I am the Defendant in this matter, and will say as follows.

Attached to this statement is a paginated bundle of documents marked NR1 to which I will refer.

1. The facts in this statement come from my personal knowledge. Where they are not within my personal knowledge, they are true to the best of my information and belief.

2. I am the Registered Keeper of the vehicle in question on the 26th March 2017 and thereafter date.

3. The claims against me relates to parking charges that allegedly occurred at my current address from which I had ownership since 23rd January 2017 to present date (Exhibit A – land registry).

4. The Particulars refer to the material location as Pulse – Lingard Ave. The Defendant has, since 16th November 2016, held legal title under the terms of a lease, to Flat 9, Biggs Court at this location.

5. At some point, the managing agents contracted with the Claimant company as a contractor, but they are strangers to the lease and in common with other residents, I was led to believe that the regime was intended to deter trespassers. No 'relevant contract' or 'relevant obligation' was communicated to residents, nor would I have accepted a contract foisted upon me with onerous terms and charges. It is not enough to put signs up and ride roughshod over the rights of residents that already exist, and which take precedence, given the leasehold title held.

6. Trying to re-offer a parking/loading (in or out of the allocated bay) right or easement that I already enjoy by express or implied right under my lease, lacks any aspect of consideration.

7. There is no licence to park that this Claimant can possibly offer me that I do not already have as an unfettered right. This Claimant is trying to run our home car park like a commercial site, on the same punitive terms as a trespasser would be charged. This would clearly be a derogation from grant and I wish to make clear that I did not agree to contractual terms, just because a permit was imposed upon me with no opt out offered. Permits were displayed as a courtesy only, to show other residents who was parked, and we have previously always been able to stop to unload or load items anywhere in the car park area.

8. The outside car parking area contains allocated parking spaces demised to some residents, and a general area for residents who do not have an allocated space. Under the terms of my lease (Exhibit , one reference is made about parking motor vehicles. The reference is simply in the header of the lease stating that the overall lease arrangement is for the apartment and an allocated parking space with the right to use a parking space.

9. The parking bay in which my car resides and is parked on a nightly basis, is clearly marked with number of my apartment, number 9 (Exhibit H), as allocated solely to the resident of marked apartment.

10. 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. Therefore, my case relies on Primacy of Contract. I refer previous cases such as Pace v Mr N [2016] C6GF14F0 [2016] (Exhibit C), where it was found that the parking company could not override the tenant's right to park by requiring a permit to park.

11. I did, at all material times, park 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 me in any way, and their existence does not constitute a legally valid variation of the terms of the lease. Accordingly, I deny having breached any contractual terms whether express, implied, or by conduct.

12. My vehicle clearly was 'authorised' as per the lease and 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. In this case the Claimant continues to cause a substantial and unreasonable interference with my land/property, or my use or enjoyment of that land/property.

13. 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 I am unaware of any such vote having been passed by the residents.

14. The claimant may argue that I parked outside of the allocated bay for loading. I refer to the case of Jopson v Homeguard [2016] B9GF0A9E (Exhibit F), where on appeal it was found that the parking company could not override the tenant's right to temporarily stop near the building entrance for loading/unloading.

15. The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 (Exhibit D) 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 my 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.

16. I’d like to also state the Claimant did not display clear, large, prominent signs within the site that were capable of being read from the driver's seat and/or forming a contract, contrary to the BPA CoP, PoFA and the Beavis Vs ParkingEye 2015 case. (Exhibit H pictures of Bay and Signage). From the pictorial evidence you can see that the font type is incredibly small and would not be legible from the drivers seat, and is purely aimed at only unauthorised driver, not myself.

17. Even if the court is minded to accept that a sign was visible, the wording on the sign was prohibitive. Unlike in the Beavis vs ParkingEye case, the Claimant offered no licence to park if not a ‘permit holder’. A purported licence to stop without a permit, in exchange for payment of a ‘charge’ on the one hand, cannot be offered when that same conduct is, on the other hand, expressly prohibited in the signage wording. This does not create any possible contract.

18. This is clear from several cases. An example In PCM-UK v Bull et all B4GF26K6 [2016], residents were parking on access roads. The signage forbade parking and so no contract was in place. A trespass had occurred, but that meant only the landowner could claim, not the parking company.

19. Finally, having outlined my witness statement with supporting evidence, I encourage the court to strike out the claims against the Defendant as there are no sound grounds of claim and to grant compensation in accordance to the defendant cost of schedule (Exhibit E)


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

Defendant

Signed

Nell22

also might be a stupid question but this is the first time i'll be in court, do i stand or sit whilst reading the witness statement, how would i address the judge?

Le_Kirk

If you go back to the NEWBIE post # 2 you will find a link to a video that shows the courtroom process.

nosferatu1001

If you have a lease stating that you have an allocated space, then that is more specific than the land registrry entry.
They may try to claim their version is true, but if you havea properly executed lease, theyre stuffed on tgat poiint. Just be aware they may try it on.

KeithP

Nell22 wrote: »

also might be a stupid question but this is the first time i'll be in court, do i stand or sit whilst reading the witness statement, how would i address the judge?

Have a look at this short video:

www.youtube.com/watch?v=n93eoaxhzpU