PCM & Gladstones - Statement of Defence

The_Slithy_Tove

In [5] and [6], you talk about freeholders and title deeds, but in [8] it talks about leaseholders and leases. Which is it? If you own your property freehold (or even leasehold), the common areas such as roads and verges will not be part of the property. So you need to be clear about what rights YOU have and what rights the LANDOWNER of those areas have.

Kas22

The_Slithy_Tove wrote: »

In [5] and [6], you talk about freeholders and title deeds, but in [8] it talks about leaseholders and leases. Which is it? If you own your property freehold (or even leasehold), the common areas such as roads and verges will not be part of the property. So you need to be clear about what rights YOU have and what rights the LANDOWNER of those areas have.

Having looked through the deeds I can't find stipulations of vehicles parking on the pavement.

They do say that the Managing Agent has responsibility looking after the communal areas, access ways and pathways.

Just because I'm not a leaseholder, doesn't mean that [8] is invalid , as everyone on the estate should have received communications about this?


Perhaps I should re-word [8] and mention that all dwellings should have received advanced notices, and [FONT=&quot]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.[/FONT]
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[FONT=&quot]Unless there is an Act for Freeholders rights?
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Coupon-mad

Perhaps I should re-word [8] and mention that all dwellings should have received advanced notices, and 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.

Yes re-word it, even though IMHO (and bear in mind I am not legally trained) I believe the L&T Act would not apply unless the communal areas are available to you under a separate lease (I don't expect so?).

I suspect parking is made available under an easement, where yours is the 'dominant tenement' and the 'servient tenement' allows you certain rights which were first contemplated in 2001 (if that was when the Development started).

Explained here:

https://www.tanfieldchambers.co.uk/resources/articles/what-is-an-easement-and-how-are-they-created-and-used

The classic case of Re: Ellenborough Park [1956] Ch. 131 sets out the four essential characteristics of an easement which are as follows:

There must be a dominant and servient tenement;
The easement must accommodate the dominant tenement;
The dominant and servient owners must be different people;
The right must be capable of forming the subject matter of a grant.

Add something about you having enjoyed an easement since 2001, long before any parking restrictions, and mention the case of Moncrieff v Jamieson [2007] UKHL 42

https://www.lawteacher.net/cases/moncrieff-v-jamieson.php

The court held that the right to park could be ancillary to the easement otherwise provided where it was necessary for the enjoyment of the land which benefits from the easement, especially where this could have been in the contemplation of the parties at the time of the making of the easement (for which a deciding court must consider the full context and details of the case).

and I found this one, Kettel v Bloomfold [2012] EWHC 1422 (Ch)

https://www.bristows.com/news-and-publications/articles/parking-rights-and-the-implications-for-developers-following-kettel-v-bloomfold/

seems to be on all fours with your case; very similar.

''...stating that a servient landowner has no unilateral right to extinguish an easement over one area of land...the judge...decided that an injunction was an appropriate award for the claimants in this case, in order to prevent the defendant achieving an 'expropriation' of the claimant’s property rights.''

Conclusion

Developers must ensure that they are aware of all rights that have been granted over land they are proposing to develop and must deal with any issues before development begins;

Kettel v Bloomfold has shown that it may not be possible to simply 'buy out' any problematic rights as a last resort – a court may award an injunction rather than damages if it decides it is necessary. In turn, landlords should ensure that rights granted over retained land are, to the extent possible, granted with the express ability for the landlord to provide a reasonably suitable alternative from time to time – this applies not only to car parking spaces, but also to other rights, such as rights of way or rights of access.

Your argument is that the easement/right to park has created a grant, and that this imposition of a 'private nuisance' of an aggressive third party parking firm charging residents is a 'derogation from grant' as in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011, referenced in post #24 here, an example residential defence by Johnersh, who is a solicitor poster:

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

As well as including some points as above, why not also state in the defence that:

The Managing Agent is at fault and an injunction in the style of Kettel v Bloomfold seems to be an appropriate remedy in this case, in order to prevent the servient tenement (the MA) from achieving an expropriation* of the residents' property rights. As such, the Defendant is contacting other residents with a view to seeking legal advice as a group, to lead to a claim against the MA. Given the facts, this Claimant's claim must fail and the court is invited to strike it out, or impose a stay, or in the alternative, order under the Judge's own discretionary case management powers, a preliminary hearing to examine the same, to save burdening the court with a claim that has no merit.

Seems to me all the residents could (with legal advice, you could all chip in) wallop the MA with an injunction and then reclaim the cost of that and the legal advice...and also claim compensation for derogation from grant/actual losses suffered by anyone who paid, and pure distress caused as well...



*I like that word, must use it again in residential defences.

Le_Kirk

from achieving an expropriation*

*I like that word, must use it again in residential defences.

Word of the day - even though it was night when you posted it!

Kas22

Fantastic research C-M!

To answer your questions, there is no separate lease for communal areas, so the L&T Act will not apply in this instance.

I've also made additional updated from point eight onwards:

[FONT=&quot]8. The defendant, had enjoyed an easement since 2001, long before any parking restrictions, which results in an easement by prescription, obtained by a long period of use of the right. The Claimant may rely on the case of Moncrieff v Jamieson [2007] UKHL 42, where the [/FONT][FONT=&quot]court held that the right to park could be ancillary to the easement otherwise provided where it was necessary for the enjoyment of the land which benefits from the easement, especially where this could have been in the contemplation of the parties at the time of the making of[/FONT][FONT=&quot] the easement (for which a deciding court must consider the full context and details of the [/FONT][FONT=&quot]case).[/FONT]

[FONT=&quot]9. The easement/right to park has created a grant, and that this imposition of a 'private nuisance' of an aggressive third party parking firm charging residents is a 'derogation from grant' as in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011 case.[/FONT]

[FONT=&quot]10. The Managing Agent is at fault and an injunction in the style of Kettel v Bloomfold seems to be an appropriate remedy in this case, in order to prevent the servient tenement (the MA) from achieving an expropriation of the residents' property rights. As such, the Defendant is contacting other residents with a view to seeking legal advice as a group, to lead to a claim against the MA. Given the facts, this Claimant's claim must fail and the court is invited to strike it out, or impose a stay, or in the alternative, order under the Judge's own discretionary case management powers, a preliminary hearing to examine the same, to save burdening the court with a claim that has no merit.[/FONT]

[FONT=&quot]11. The Managing Agent [NAME] were contacted with the assistance of the local MP [NAME], but had failed to respond to communication attempts as to why residents where not consulted prior to the introduction of the scheme.[/FONT]

[FONT=&quot]12. Further and in the alternative, the signs refer that 'vehicles must display a valid PCM permit clearly in the windscreen’, and suggest that by parking without a permit, motorists are contractually agreeing to a parking charge of £100. This is clearly a nonsense, since if there is no permission, there is no offer, and therefore no contract.[/FONT]

[FONT=&quot]12.1 The Claimant, or Management agent failed to provide residents with [/FONT][FONT=&quot]newly issued permits. [/FONT]

[FONT=&quot]13. There have been recent discussions at the House of Commons about the Parking (Code of Practice) Bill, and the rogue industry, which can be read here: https://hansard.parliament.uk/commons/2018-02-02/debates/CC84AF5E-AC6E-4E14-81B1-066E6A892807/Parking(CodeOfPractice)Bill[/FONT]

[FONT=&quot]14. 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.
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[FONT=&quot]Not sure if it's worth adding the below point:[/FONT]
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[FONT=&quot][FONT=&quot]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 £244.06, the Defendant avers that this inflation of the considered amount is a gross abuse of proces[/FONT][/FONT]

Coupon-mad

which results in an easement by prescription,

AFAIK this is wrong which is why I didn't use the words: 'by prescription' in my reply.

Happy to be proved wrong but I thought prescription was 20 years or more.

I think yours is an easement appurtenant.

As this asks the Court to act, I would say it should be placed last, so it is not buried, and split into two paragraphs, for ease of reading:

The Managing Agent (MA) is at fault and an injunction in the style of Kettel v Bloomfold seems to be an appropriate remedy in this case, in order to prevent the servient tenement (the MA) from achieving an expropriation of the residents' property rights. As such, the Defendant is contacting other residents with a view to seeking legal advice as a group, to lead to a claim against the MA.

Given the facts, this Claimant's claim must fail and the court is invited to strike it out, or impose a stay, or in the alternative, order under the Judge's own discretionary case management powers, a preliminary hearing to examine the same, to save burdening the court with a claim that has no merit.

Kas22

Coupon-mad wrote: »

AFAIK this is wrong which is why I didn't use the words: 'by prescription' in my reply.

Happy to be proved wrong but I thought prescription was 20 years or more.

I think yours is an easement appurtenant.

As this asks the Court to act, I would say it should be placed last, so it is not buried, and split into two paragraphs, for ease of reading:

That makes complete sense.



In that case, is it worth removing [14] and subsequent paragraph (For all the reasons stated above...), as we are hoping that the Claimant's claim will fail/or the court will strike it out, or impose a stay?

Coupon-mad

No I would not remove #14 as it provides a valid point about the law as contemplated by Parliament, regarding the maximum sum recoverable.

Kas22

Now that I've settled my previous PCN dispute, and won, I can concentrate on this one.

Received a letter the other day with a notice of Allocation to the Small Claims Track, with the hearing taking place on the 10th May.

Will be preparing a Witness Statement and Skeleton argument.

I believe this might be a trickier case as not only am I disputing the inception of an enforced parking controlled zone across the entire development without any prior written notice, it also involves the Management Agents responsibility as a landlord to inform it's tenants. I also involved my local MP in this to get a response from the MA.

Will post a WS soon. If there is any advice that can be shed on this prior to the first WS draft, would be appreciated.

The_Deep

The whole industry is a scam, relying on threats of court, and the public's ignorance of the Law, A bill is currently before parliament which will regulate the scammers, many of whom are ex-clampers.

This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of alleged contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors. Is has been suggested by an MP that some of these companies may have connections to organised crime.

Parking Eye, CPM, Smart, (especially Smart}, and others have already been named and shamed in the House of Commons as have Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each week), hospital car parks and residential complex tickets have been especially mentioned. They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

The problem has become so widespread that MPs have agreed to enact a Bill to regulate these scammers.

Sir Greg Knight's Private Members Bill to curb the excesses, and perhaps close down, some of these companies passed its Second Reading in the Lords this month, and, with a fair wind, will l become Law later this year..

All five readings are available to watch on the internet, (some 7-8 hours), and published in Hansard. MPs have an extremely low opinion of the industry. Many are complaining that they are becoming overwhelmed by complaints from members of the public. Add to their burden, complain in the most robust terms about the scammers.