Period of validity

Missaver

[STRIKE][/STRIKE]Defence

1. It is admitted that the Defendant is the registered keeper of the vehicle in question.

2. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

3. The facts are that the vehicle, registration XXXXXX, of which the Defendant is the registered keeper, entered the site described as XXXXXXXXXXXX on the material date. The purpose of the car being there was for the unloading of heavy and large items for moving in and was not left parked for a period of time.

4. The defendant has no liability as they are the Keeper of the vehicle, and the Claimant has failed to comply with the strict provisions of PoFA 2012 to hold anyone other than the driver liable for the charge. PoFA 2012 states a notice is given either to the driver or placed on the vehicle and if so to repeat the information in that notice about paying the parking charge and when. There was no windscreen Parking Charge Notice at the time of the alleged incident and no Notice was given to the driver.

5. The claimant states on the original Parking Charge Keeper Liability letter that the contractual terms and conditions for use of the car park were clearly signposted in the parking area. However, the signs are sparse and not prominent & incapable of binding even a parked driver, let alone one who is simply unloading with express permission and access granted. Furthermore, the alleged incident did not happen in a car park but at an entrance outside to a block of flats.

6. The spot where the car was parked is just inside some rising bollards which can be opened / lowered only by authorised people. In this case, it is my belief as registered keeper that the car was parked inside the premises with permission from the security & concierge staff for loading/Unloading heavy items during the time of the alleged incident.

7. The driver was allowed the right to load/unload by the security / concierge staff, relying on an express verbal agreement with the on duty security/reception staff.

8. The primacy of contract remains with existing residents with a lease/agreement. These are rights/easements that can't just be overridden by slapping a few signs up with cable ties

9. Primacy of contract – is that the contract cannot be unilaterally altered by one party without the permission of the other. The freehold gives the Defendant the unfettered right to park, therefore these rights/easements cannot be altered later, for instance by requiring a permit to park, or by placing signs up.

10. The reason for this parking company's presence on this site can only be for the sole purpose of deterring parking by uninvited persons. Instead, contrary to various consumer laws, this Claimant carries out a predatory operation on those very people whose interests they are purportedly there to uphold.

11. This permission created the prevailing and overriding contract - the only contract - and the business was concluded as agreed, at no cost or penalty.

12. Loading or unloading with the permission of the landholder is not 'parking' and signs cannot override existing rights enjoyed by landowners and their visitors, as was found in the Appeal case decided by His Honour Judge Harris QC at Oxford County Court, in case number B9GF0A9E: 'JOPSON V HOME GUARD Services' which also involved a residential car park like this one.

13. (i) In the Jopson appeal in June 2016, the Senior Circuit Judge found that the position was analogous to the right to unload which was the subject of Bulstrode v Lambert [1953] 2 All ER 728. The right of way in that case was: “To pass and re-pass with or without vehicles…for the purposes of obtaining access to the building…known as the auction mart.''

(ii) In the Jopson appeal it was also held as a finding of fact, that stopping to unload was not 'parking'.

(iii) In the Jopson appeal it was held that ParkingEye Ltd v Beavis [2015] UKSC 67 had no application to a situation involving drivers with a right and expectation to be entitled to park under the grants flowing from a lease.

(iv) In the Jopson appeal it was also held that signs added later by a third party parking firm are of no consequence to authorised visitors to premises where other rights prevail and supersede any alleged new 'parking contract’.

14. The right of the landowner to allow authorised vehicles to load/unload pre-dates the arrival of this Claimant.

15. It is denied that the vehicle was “parked within a restricted area”. The driver parked legitimately on the pavement with a drop down kerb.
The car is clearly shown as parked off the road alongside double yellow lines. In any event, unloading activity is a specified exemption, allowed on yellow lines and nothing about these markings communicates anything different than the established rules that a circumspect driver, familiar with the Highway code and the exemptions allowed on yellow lines, would expect. Any ambiguity of a term or notice must be interpreted in the way that most favours the consumer. .

16. If there was an agreement, it is denied that the penalty charge is incorporated into it. The leaseholders' lease is missing any reference to parking permit requirements and involvement of PCM. And there is no evidence that the original lease contract with specific details of PCM's role and involvement was shared with the defendant.

17. It is denied that the Claimant has authority to bring this claim. The proper Claimant is the landowner. Strict proof is required that there is a chain of contracts leading from the landowner to PCM (UK) Ltd and that they have a right to unilaterally remove or interfere with the overriding rights enjoyed by all residents and extended to permitted drivers who were expressly allowed on site.

18. The claimant is unable to re-offer a contract to park on more onerous terms that those already specified in the lease, which grants an easement/ right to park for everyone and an entitlement to peaceful enjoyment.

19. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation. The Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name, and that they have no right to bring any action regarding this claim.

20. Rights or easements to park already exist and the claimant is causing a 'private nuisance' to residents in their own homes, disregarding the rights of all residents in possession of title and tenancy agreements on site.

21. There is an abuse of process by the Claimant in trying to claim £xxx when the signs were for £100... contrary to the CRA 2015, the Beavis case and the POFA 2012.

22. Alternatively, even if there was a contract, the provision requiring payment of £xxx is an unenforceable penalty clause.

23. Further and alternatively, the provision requiring payment of £xxx is unenforceable as an unfair term contrary to the Consumer Rights Act 2015.

24. This charge represents a breach of the well-known and well-established principle of promissory estoppel, i.e. that a promise is enforceable by law, even if made without formal consideration, when party A has made a promise to party B, who then relies on that promise to his subsequent detriment.

25. This charge represents a breach of the well-known and well-established principle that 'a grantor shall not derogate from his grant'. This rule embodies a general legal principle that, if A agrees to confer a benefit on B, then A should not do anything that substantially deprives B of the enjoyment of that benefit.

26. On the one hand the security/reception staff verbally allowed access and lowered the bollards, to enable unloading on more than one occasion (the vehicle could not have entered without such express permission and this is proved by the very fact that the gate was opened to allow the entry of the vehicle). Landholders cannot allow or promise this on the one hand, then on the other hand, take away this permission or promise, in allowing a third party to disallow and/or seek to charge for the permitted action by a driver.

27. In 'Saeed v Plustrade Limited [2001] EWCA Civ 2011' a tenant was granted a right in common with others to park on such part of the forecourt as might from time to time be specified by the landholder, who later proposed to reduce the availability of parking and to charge for it. On appeal it was held that the landholder was only entitled to change the location of spaces, not to reduce their number, nor to unreasonably restrict parking previously offered, nor to charge for it. Such restrictions would interfere with easements enjoyed under the lease.


Statement of Truth:


The Defendant believes that the facts stated in this defence are true.

Coupon-mad

12. Loading or unloading with the permission of the landholder is not 'parking' and signs cannot override existing rights enjoyed by landowners and their visitors, as was found in the Appeal case decided by His Honour Judge Harris QC at Oxford County Court, in case number B9GF0A9E: 'JOPSON V HOME GUARD SERVICES’ which also involved a residential car park like this one. [STRIKE]adduced a business car park decision, analogous to this present case.[/STRIKE]

15. It is denied that the vehicle was “parked within a restricted area”. The Defendant parked legitimately on the pavement with a drop down kerb. The car is clearly shown as parked off the road alongside double yellow lines. [STRIKE]If it had been parked on the double yellow lines, it would be deemed dangerous and an obstruction to any other traffic that were to pass.[/STRIKE] In any event, unloading activity is a specified exemption, allowed on yellow lines, and nothing about these markings communicates anything different than the established rules that a circumspect driver, familiar with the Highway code and the exemptions allowed on yellow lines, would expect. Any ambiguity of a term or notice must be interpreted in the way that most favours the consumer. .

Remove #16 as this is plain wrong for a person to query. What they are getting at is, in a car park, agreement is by conduct of parking, by implication, not some written agreement - and they are right to say this:
[STRIKE]16. The original parking charge notice also states ‘the vehicle was parked in a manner whereby the driver agreed to pay a charge’. This is clearly nonsense, as there has been no evidence of such an agreement to date.[/STRIKE]

Remove #22 as it is too wordy and talk about adding legal costs which they can (fixed at £50)! That is NOT the same thing as the fake added 'damages' of £60.

I confirm that the contents of this statement are true to the best of my knowledge and belief.

No, it should say:

The Defendant believes that the facts stated in this defence are true.

1505grandad

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Missaver

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Missaver

I will edit again later with cm's advice

Missaver

I have now edited the Defence, any other comments please?

Coupon-mad

That is good. Submit that as a signed document by email as per the earlier advice.

And stick around, checking each court letter against bargepole's COURT PROCEDURES thread linked in the NEWBIES thread under the red heading about knowing what happens when.

See you at WS stage.

Missaver

Thank you very much CM and grateful for everyone's input.

Missaver

I have gone through the defence working one more time - question - is it worth pointing out somewhere that the unloading activity was related to the Driver moving in on the day, hence, being new to the area, unaware of the alleged parking restrictions ?

Coupon-mad

Yes, one line in point #3, making it clear the activity was unloading large times (furniture/cases that were heavy to carry?) and that the car was not left parked for a period of time.