Parking in own space - Gladstoned

[Deleted User]

Redx wrote: »

read the NEWBIES thread post #2 and do the AOS on the MCOL website using the walkthrough listed in that NEWBIES thread

also email a SAR to the claimant tonight (PPM ?) to their DPO with the usual 30 days warning etc

then start drafting your defence, starting with the concise defence by BARGEPOLE

Yes, PPM. SAR being done and we'll do the AoS over the weekend to submit on Monday. When issuing a SAR annotated with a 'Proof of Postage' statement, are there any known cases of scum claiming that they never received it?


Edit - just noticed you suggest emailing the SAR - will do it that way rather than post it.

KeithP

johnsmith1890 wrote: »

Yes, forms from Northampton.
ISSUE DATE: 25 February 2019.

With a Claim Issue Date of 25th February, you have until Monday 18th March to do the Acknowledgement of Service, but there is nothing to be gained by delaying it. To do the AoS, follow the guidance offered in a Dropbox link from post #2 of the NEWBIES FAQ sticky thread. About ten minutes work - no thinking required.

Having done the AoS, you have until 4pm on Monday 1st April 2019 to file your Defence.

That's a month away. Loads of time to produce a perfect Defence, but don't leave it to the very last minute.


When you are happy with the content, your Defence should be filed via email as suggested here:

Print your Defence.
1. Sign it and date it.
   
2. Scan the signed document back in and save it as a pdf.
   
3. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
   
4. Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
   
5. Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
   
6. Do not be surprised to receive a copy of the Claimant's Directions Questionnaire, they are just trying to put you under pressure.
   
7. Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.

johnsmith1890 wrote: »

...we'll do the AoS over the weekend to submit on Monday.

Do the AoS online - as described above.

[Deleted User]

Thanks guys for the help and advice so far. We'll send the front page of the court papers to the scammer as 'proof of ID' when filing for a SAR. Are there any cases you're aware of where they try to make things difficult and insist on driving licence etc (not that they could compare such a document with anything else to confirm identity!).


Also, not wanting to get ahead of ourselves at this point, but is there any sort of guidance as to the value of a counterclaim. We'd be going for the standard stuff - time off work to attend court, admin etc.

KeithP

johnsmith1890 wrote: »

Also, not wanting to get ahead of ourselves at this point, but is there any sort of guidance as to the value of a counterclaim. We'd be going for the standard stuff - time off work to attend court, admin etc.

That 'standard stuff' you mention should be set out in a Costs Schedule. Again you need to see post #2 of the NEWBIES thread for details of that.

A counterclaim is not needed for that.

Le_Kirk

johnsmith1890 wrote: »

We'll send the front page of the court papers to the scammer as 'proof of ID' when filing for a SAR. Are there any cases you're aware of where they try to make things difficult and insist on driving licence etc (not that they could compare such a document with anything else to confirm identity!).

You should attach a scan of your V5C as well.

[Deleted User]

Le_Kirk wrote: »

You should attach a scan of your V5C as well.

Don't own the car now, so can't do that. We just sent the first page of the court papers. I wouldn't be surprised if the scammer wants more, but he isn't getting anything else.


I got to thinking about possible ways forward here, and briefly considered whether or not scammers accept out of court settlements. For instance, if we were to send a copy of the lease to the them and invoiced them for say, £60, might they drop the case? This would mean they wouldn't face a potential counterclaim. However, I guess they could just refuse to pay the £60 and withdraw from the court case - effectively cancel it. We wouldn't then have an opportunity for a counterclaim. Is this normal scammer practice?

[Deleted User]

A couple of quick questions:


AoS - is it compulsory to enter your date of birth (and phone/email), and if you do, will the scammer get to see it?


Presumably there's no need to contact Gladstones at this point for anything (SAR has already been done and this is court papers rather than LBC).
Thanks.

Coupon-mad

Yes you need to fill in your DOB in the AOS. I don't think the Claimant sees it as such, I believe the CCBC just updates MCOL saying that the claim is acknowledged.

No need to contact Gladstones, no.

[Deleted User]

Hi Guys,
I've used Bargepole's template for a defence (parking in own space), amended as shown in red, and with strike-outs where I think the text is not needed (they already know the name of the driver). There is absolutely nothing in the lease about the need to display a parking permit. In fact, the entire lease has just the single mention of parking, as shown here under point 5.

Where it says in Point 11: "...but the amount claimed on the claim form is inexplicably £xxx.xx". What figure goes in here? Is it the total amount the scammers are claiming, including court costs?
Any comments gratefully received:

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 N1 Claim Form refer to a 'Parking Charge' 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. [STRIKE]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.
[/STRIKE]
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. XX at that location. At some point, the managing agents contracted with the Claimant company to enforce parking conditions at the estate.

4. The underground car parking area contains allocated parking spaces demised to some residents, and a general area for residents who do not have an allocated space. Entry to the underground parking 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, reference is made to conditions of parking motor vehicles.

In schedule 4, 'Rights Included in the Demise', paragraph 1.10 states, 'the right to the exclusive us of the Allocated Parking Space for the purpose of parking one private motor vehicle not exceeding 2000kg unladen weight and subject to the Building Management Company's or the Lessor's right on serving written notice to the Lessee to vary the position of the Allocated Parking Space within the Development and subject always to the regulations.

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 state 'By parking or remaining at this site otherwise than in accordance with the above [Parking is Permitted For: ....], you the driver, are agreeing to the following contractual terms. You agree to pay consideration in the form of a 'parking charge' in the sum of £100 to be paid within 28 days of issue …'. This suggests that motorists are contractually agreeing to a 'parking charge'. This is clearly a nonsense, since if there is no permission necessary, 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 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 £xxx.xx, 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)

Coupon-mad

Where it says in Point 11: "...but the amount claimed on the claim form is inexplicably £xxx.xx". What figure goes in here? Is it the total amount the scammers are claiming, including court costs?

Yes. The highest figure, because the other costs (not the court fee) are fake.

Just checking all this (below) is true about key fobs & an undercroft?

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

Your defence is very good, IMHO, and the bit you crossed out makes sense in your case, not to be included.

I would add the usual point, seen in almost every other defence example, about the parking firm not being the landowners and that any contract they hold is likely to be merely with a residents' association or non-landowning Managing Agent, and you put them to strict proof of authority flowing from the overall site freeholder, to sue residents.