Gladstones Letter Before Claim

deedot

IN THE COUNTY COURT
Claim No.: XXXXXXXX
Between

[NAME OF PARKING COMPANY]
(Claimant)

-and-


[NAME OF DEFENDANT]
(Defendant)



DEFENCE

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 'Parking Charge(s)' 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. In addition, the particulars state 'The Defendant was driving the vehicle and/or is the keeper of the vehicle' which indicates that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5.

3. The Particulars refer to the material location as '[LOCATION]'. The Defendant has, since [DATE], held legal title under the terms of a lease, to Flat No. 1 at that location. At some point, the managing agents contracted with the Claimant company to enforce parking conditions at the estate.

4. The road contains allocated parking spaces demised to some residents, and a general area for residents who do not have an allocated space. Entry to the road 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.

5. Under the terms of the Defendant's lease, a number of references are made to conditions of parking motor vehicles.
The definitions, at para.1.1, define the "Allocated Space" as the car parking space numbered P77 on the Plan for which a right to use is granted. In Schedule 4, para.10, the Lease states that the lessee has the right to use the Allocated Space for parking one private motor vehicle.

5.1. 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.

6. The Defendant, 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 the Defendant in any way, and their existence does not constitute a legally valid variation of the terms of the lease. Accordingly, the Defendant denies having breached any contractual terms whether express, implied, or by conduct.

7. 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.

8. Further and in the alternative, the signs refer to 'Authorised Vehicles Only/Terms of parking without permission', and suggest that by parking without permission, 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.

8.1. The Defendant's vehicle clearly was 'authorised' as per the lease and the Defendant relies on 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.

8.2. In this case the Claimant has taken over the location and runs a business as if the site were a public car park, offering terms with £100 penalty on the same basis to residents, as is on offer to the general public and trespassers. However, residents are granted a right to park/rights of way and to peaceful enjoyment, and parking terms under a new and onerous 'permit/licence' cannot be re-offered as a contract by a third party. This interferes with the terms of leases and tenancy agreements, none of which is this parking firm a party to, and neither have they bothered to check for any rights or easements that their regime will interfere with (the Claimant is put to strict proof). This causes a substantial and unreasonable interference with the Defendant's land/property, or his/her use or enjoyment of that land/property.

9. The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 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 the Defendant's 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.

10. 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.

11. 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 £245.53, the Defendant avers that this inflation of the considered amount is a gross abuse of process.

12. Given that it appears that this Claimant's conduct provides for no cause of action, and this is intentional and contumelious, the Claimant's claim must fail and the court is invited to strike it out.

12.1. In the alternative, the Court is invited, under the Judge's own discretionary case management powers, to set a preliminary hearing to examine the question of this Claimant's substantial interference with easements, rights and 'primacy of contract' of residents at this site, to put an end to not only this litigation but to send a clear message to the Claimant to case wasting the court's time by bringing beleaguered residents to court under excuse of a contractual breach that cannot lawfully exist.

I believe that the facts stated in this Defence are true.






………………………………………………………. (Defendant)

……………………… (Date)

So the above will be used as my defence.

I have modified a few bits from bargepole's template, and will be changing the date and names when submitting.

A few questions:
Note 3 refers to a location.
In the claim form and in the previous letters sent to me, they state that the vehicle was parked in breach of signage at XX Park - XX Road.

The Park is correct, however the road is wrong as well as the postcode. (The road stated is the road adjacent to the road I actually park on)
I would like to include this error but also state that I held legal title at the correct location. How can I word this in a professional way?

Do I need to state how much I would like to claim back in the case that I win? Or do I need to work out a figure ahead of the case?

Thanks,
D

Coupon-mad

A few questions:
Note 3 refers to a location.
In the claim form and in the previous letters sent to me, they state that the vehicle was parked in breach of signage at XX Park - XX Road.

The Park is correct, however the road is wrong as well as the postcode. (The road stated is the road adjacent to the road I actually park on)
I would like to include this error but also state that I held legal title at the correct location. How can I word this in a professional way?

Edit #3 to say what you just said, and show us how it looks!

Do I need to state how much I would like to claim back in the case that I win? Or do I need to work out a figure ahead of the case?

Depends what you are thinking of!

If you mean your costs, such as loss of salary/leave and travel to get to your local court later on, and maybe some p&p costs and time, then this goes in a costs schedule nearer the hearing date (see NEWBIES thread, search it for 'costs schedule'). NOT FOR NOW.

If you are talking about a counter claim because you believe the PPC had no 'reasonable cause' under any excuse within their DVLA KADOE contract, to even issue a PCN and get your DVLA data, then you would have to file a separate COUNTER CLAIM, for a few hundred pounds, and also phone the CCBC after filing the defence and counter-claim, to pay the appropriate filing fee for your part of the claim. You can Google court fees & find out how much it costs, not much.

If you are thinking of the latter, then search the forum for 'Henry Hippo' and read the other thread where a poster is following the counter claim route which won Henry Hippo's case on pepipoo where I helped write his counter claim. You need to read the thread on here that's talking about Henry Hippo's case and copy what they are doing in terms of wording the counter claim properly about data misuse, citing Vidal Hall v Google and the Data Protection Act and GDPR.

Be aware I seem to recall Daniel San lost one of his cases, so defending is not a shoo-in, albeit we have 99% success rate here. Counter claims are a bit more shaky but of that's you plan and you believe you have total primacy of contract and exclusive use of the bay due to ownership (not just allocation) then go for it.

deedot

Coupon-mad wrote: »

Edit #3 to say what you just said, and show us how it looks!

Depends what you are thinking of!

If you mean your costs, such as loss of salary/leave and travel to get to your local court later on, and maybe some p&p costs and time, then this goes in a costs schedule nearer the hearing date (see NEWBIES thread, search it for 'costs schedule'). NOT FOR NOW.

If you are talking about a counter claim because you believe the PPC had no 'reasonable cause' under any excuse within their DVLA KADOE contract, to even issue a PCN and get your DVLA data, then you would have to file a separate COUNTER CLAIM, for a few hundred pounds, and also phone the CCBC after filing the defence and counter-claim, to pay the appropriate filing fee for your part of the claim. You can Google court fees & find out how much it costs, not much.

If you are thinking of the latter, then search the forum for 'Henry Hippo' and read the other thread where a poster is following the counter claim route which won Henry Hippo's case on pepipoo where I helped write his counter claim. You need to read the thread on here that's talking about Henry Hippo's case and copy what they are doing in terms of wording the counter claim properly about data misuse, citing Vidal Hall v Google and the Data Protection Act and GDPR.

Be aware I seem to recall Daniel San lost one of his cases, so defending is not a shoo-in, albeit we have 99% success rate here. Counter claims are a bit more shaky but of that's you plan and you believe you have total primacy of contract and exclusive use of the bay due to ownership (not just allocation) then go for it.

Ah, not to counter claim, just to list the costs incurred. I will leave that until later.

What do you think of the below:

3. The Particulars refer to the material location as 'XX Park - XX Road'. The Defendant has, since [DATE], held legal title under the terms of a lease, to Flat No. 1 at XX Park - YY Road. At some point, the managing agents contracted with the Claimant company to enforce parking conditions at the estate. It should be noted that the Particulars state the vehicle was parked in breach of the terms at XX Road, however the vehicle has never parked at XX Road but at YY Road.

Thanks
D.

Coupon-mad

Very good. Says what it needs to say.

deedot

Thank you Coupon-mad.

I shall submit my defence today.

Unfortunately, Link parking has suddenly gone mad and has just chased me and my partner for other parking fines. Shall I make a new thread for these or would it be best if I include them here?

Thanks,
D.

deedot

Just an update, defence was received in time on 10/6/19.
I have received the claimant's DQ and am awaiting my own DQ.

Is this something I download or does it get sent out to me?

Thanks.

Umkomaas

deedot wrote: »

Just an update, defence was received in time on 10/6/19.
I have received the claimant's DQ and am awaiting my own DQ.

Is this something I download or does it get sent out to me?

Thanks.

Please re-read post#9. It's already been covered for you.

Coupon-mad

deedot wrote: »

Thank you Coupon-mad.

I shall submit my defence today.

Unfortunately, Link parking has suddenly gone mad and has just chased me and my partner for other parking fines. Shall I make a new thread for these or would it be best if I include them here?

Thanks,
D.

Separate threads needed for them, as they are not at court.

deedot

Update:

Have not received a DQ so downloaded my own and have just filled it out.

Where do I send this to for the court/claimant?
I assume in both cases this can be done by email and not necessarily physically.

I was thinking to email to CCBC@Justice.gov.uk and
enquiries@gladstonessolicitors.co.uk respectively.

Thanks
D.

Umkomaas

deedot wrote: »

Update:

Have not received a DQ so downloaded my own and have just filled it out.

Where do I send this to for the court/claimant?
I assume in both cases this can be done by email and not necessarily physically.

I was thinking to email to CCBC@Justice.gov.uk and
enquiries@gladstonessolicitors.co.uk respectively.

Thanks
D.

Have a look at post #9 above and read bullet-point #8 that KeithP has already provided for you - tells you exactly how to deal with this.