CCJ Set Aside Help - Residential Parking

AdoptedNortherner

Thanks Nosferatu.

So, we have put together our Defence as laid out below, feedback as always welcomed. Plan is to get this out first thing on Monday morning.

From our understanding, we are literally sending out a Defence as a first port of call here, no schedules or other components required?
_________________________


Claim No.: XXXXXXX

Between

UK Parking Patrol Office (Claimant)

-and-

(Defendant)


_____________________

DEFENCE
_____________________

Liability

1. The particulars of claim from the Claimant state that the defendant is liable for unpaid an Parking Charge Notice (PCN). The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.


Parking Enforcement

2. The Particulars refer to the material location as 'Private Parking areas at XXXX XXXX’. The Defendant has, since XX/XX/XXX, held legal title under the terms of a lease, to Flat. at that location. At some point, the managing agents contracted with the Claimant company to enforce parking conditions at the estate.


3. The Claimant asserts that there was an absolute entitlement to park deriving from the terms of their residential tenancy and a primacy of contract which cannot be fettered by any alleged parking terms.

3.1 The tenancy contract cannot be unilaterally altered by one party without the permission of the other, for example by introducing a permit in order to park. The lease provides the right to park a vehicle, without limitation as to ownership of vehicle, the user of the vehicle or the requirement to display a parking permit. 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. There are also no clauses in the lease which allow management agents the right to impose further conditions.

3.2 The land in question, XXX XXXXX underground car parking area contains allocated parking spaces demised to residents. 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.


4. 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 use and enjoyment of that land/property.


5. 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


Signage

6. The Defendant, at all material times, parked in accordance with the terms granted by the lease. 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 Defendant further avers that the operator’s signs cannot:

(a) override the existing rights enjoyed by residents and their visitors for peaceful enjoyment of their space and

(b) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease


8. The Claimant has only provided an example of their parking notice in the form of a stock image, therefore the claimant is invited to provide a photograph directly from the day of the alleged offence.


9. The Defendant will rely upon the judgment in Pace v Mr N [2016] C6GF14F0 [2016] where it was found that the parking company could not override the tenant's right to park by requiring a permit to park. In Link Parking v Ms P C7GF50J7 [2016] it was also found that the parking company could not override the tenant's right to park by requiring a permit to park.


10. The claimant relies on the case of Parking Eye V Beavis 2015 in point 5 of their Witness Statement, however, this could only assist 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 residential circumstances. Therefore, this case can be distinguished from Beavis on the facts and circumstances.


11. The Defendant will also call to attention the original appeal made for the PCN from which this claim has derived, whereby it was argued by the Defendant and equally adjudged by the independent adjudicator of the IAS that in fact a permit was present within the vehicle, it had simply slipped to a point of partial visibility. Therefore invalidating the allegation of any breach on the basis of “No Permit”


Circular Letter

12. The Defendant unequivocally denies the Claimants attempt at suggesting all residents were aware of permit control owing to a circular letter distributed to all residents, as well as the provision of the parking terms and conditions upon retrieval of a parking permit;


12.1 The circular letter provided within the Claimants particulars is dated XX/XX/20XX; this date is precisely forty two days before the Defendant had even entered the property in commencement of their lease, within which time the letter would have been removed from the Defendants post-box or property;

12.2 The Claimants circular letter also stipulates dates within which residents were able to retrieve their permits, between “XXXX - XXXXX”. Yet the Claimants provision of an email directly from the Mainstay Property Management alleges the Defendant picked up the permit on XXXXX. This date is in fact a Sunday, a day on which the Office isn’t open, as evidenced within the same circular letter, meaning to retrieve a permit on that date wasn’t even possible;

12.3 In furtherance, the Defendant’s lease commenced on the XXXXXX, therefore the dates provided within the Claimants schedules and as supplied by Mainstay Property Management are factually incorrect


13. The Claimant has proven wild inconsistency in their enforcement of these alleged breaches with the Defendant and therefore cannot be esteemed to be ethical, competent or genuine in their attempts to prevent only unauthorised vehicles parking within the land in question;

13.1 The Defendant originally received two separate PCN’s on consecutive days for the same alleged breach of contract, the first on XXXXX and the second on XXXXX. After appeal directly with the Claimant to prove residency, the Claimant immediately dismissed the second PCN dated XXXXX. The first PCN was upheld and the Defendant was required appeal through the Independent Appeals Service (IAS).


13.2 The Defendant had historically received a PCN from the Claimant on XXXXX after moving into the property on XXXXX. The Defendant had not been informed of any parking regulations in place prior to moving in Property Management provided a 5 day waiting period to obtain a parking permit, within which time the Defendant left a note in the vehicle explaining as such. It was within this 5 day window that the Claimant issued the PCN on XXXXX, completely disregarding the note. The PCN was promptly cancelled upon appeal directly with the Claimant proving residency.

13.3 After conducting a Subject Access Request with the Claimant in XXXXX, internal notes provided show the Claimant appears to use these two cancelled PCN’s as reason for not cancelling this PCN in question, despite being for the same alleged breach of contract.


14. The current claim and attempts at extorting residents are not unique to the Defendant, the Claimant is a renowned roboclaimer seeking to operate in a predatory nature to deliberately target tenants, creating private nuisance and causing derogation from grant to multiple tenants within the same property


Use of Information and GDPR

15. The Defendant accepts the admission of being the driver during the IAS appeals process


16. The Defendant refutes the notion that the Claimant didn’t need to request information from the DVLA; for the period between XXXXX and XXXX when the Claimants particulars were submitted to the Courts there was an absolute need to obtain information from the DVLA for reasonable doubt as to the Defendant's address owing to in excess of 14 months without contact between parties;

16.1 On that basis, the Defendant believes an absolute infringement of GDPR Art.5 1(d) “Principles relating to processing of personal data” which states:

“Personal data shall be: accurate and, where necessary, kept up to date; every reasonable step must be taken to ensure that personal data that are inaccurate, having regard to the purposes for which they are processed, are erased or rectified without delay (‘accuracy’);”

16.2 The Defendant will be asking in recognition of this breach to further rely upon GDPR Art. 82 and their right to compensation for the suffering of non-material damage as a result of this infringement; whether that be the Claimant or the organisation upon which they allegedly relied upon for the inaccurate personal information used


Costs Statement

17. The Claimant, or their legal representatives, have added an additional sum of £60 plus interest to the original £100 parking charge, for which they justify as being a ‘reasonable sum’ for the cost of trying to cover the debt. 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.


18. The defendant received no correspondence from any debt recovery or legal parties whatsoever and the last correspondence received from the Claimant was a letter dated XXXXX which was responded to on XXXXX. No further response was received to this letter and no further correspondence was received until XXXX when the Defendant was made aware of a CCJ on record.


19. It is not believed that the Claimant has incurred additional costs - be it legal or debt collector costs or even their unlawful, fixed sum card surcharge for payments. The Defendant conducted Subject Access Requests with the Claimant and associated debt recovery agents in XXXXXX, but no evidence has been provided that the Claimant paid any debt collector so the £60 additional charge is invalid. The Claimant is put to strict proof that they have actually incurred and can lawfully add an extra sums and that those sums formed part of the permit/parking contract formed with the resident in the first instance.


20. 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 £206.60, the Defendant avers that this inflation of the considered amount is a gross abuse of process.


21. 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.


22. 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.

Coupon-mad

AdoptedNortherner wrote: »

I received the following written order:

1. Judgement in this claim is set aside

2. The Particulars of Claim do not comply with CPR 16.4 (1) (a) and are hereby struck out

3. The Claimant must by XX on XXXXXX file and serve a particulars of claim verified by a statement of truth which must contain full particulars of claim including but not limited to the following:-

a. Whether the claim is brought under Schedule 4 of the Protection of Freedoms At 2012;

I) By Reference to the definition of "relevant obligation" in paragraph 2 os Schedule 4 to the protection of Freedoms Act 2012, whether it is alleged that the claim is based on a relevant obligation:-

a. Arising in any circumstances where there is no relevant contract, as a result of a trespass or other tort committed by parking on the relevant land

ii) If a contract is alleged what was the consideration provided by the Claimant and what was the breach of contract

iii) If no contract is alleged what was the trespass or other tort committed by parking the vehicle on the relevant land

If the claim is not brought under the Protection of Freedoms Act 2012 then it must include:-
b. The cause of action against the named Defendant and how it arose with full particulars

4) Unless the Claimant complies with the above direction the claim shall be struck out automatically without further order

5) If the Claimant does comply with the above direction then the Defendant must file and serve an amended defence within 14 days of service of the amended particulars of claim

6. The Claimants shall pay the Defendants costs of the application assessed in the sum of the court fee of £255.00

Nice set aside Order! Looks like a clued-up Court, Manchester by any chance?

Had a quick look and you will need to remove this, as it is wrong:

16. The Defendant refutes the notion that the Claimant didn’t need to request information from the DVLA; for the period between XXXXX and XXXX when the Claimants particulars were submitted to the Courts there was an absolute need to obtain information from the DVLA for reasonable doubt as to the Defendant's address owing to in excess of 14 months without contact between parties.

PPCs are disallowed from applying twice to the DVLA - they cannot have done even if they wanted to check your address.

AdoptedNortherner

Coupon-mad wrote: »

Nice set aside Order! Looks like a clued-up Court, Manchester by any chance?

Hi C-M, yes indeed it is Manchester.

Coupon-mad wrote: »

Had a quick look and you will need to remove this, as it is wrong:
PPCs are disallowed from applying twice to the DVLA - they cannot have done even if they wanted to check your address.

So UKPP didn't even go to DVLA in the first instance, there's no record of either them, their debt recovery agency or solicitors from obtaining information from the DVLA.

We've completed SAR requests with all of them, no evidence of obtaining up to date information at any point. Therefore, wouldn't that make it valid to keep in?

Umkomaas

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.

Cease?

So UKPP didn't even go to DVLA in the first instance, there's no record of either them, their debt recovery agency or solicitors from obtaining information from the DVLA.

They only have to go to the DVLA for your data if they wish to pursue the keeper under the Protection of Freedoms Act 2012 (Schedule 4).

If they alleged PoFA liability in their NtK (having not accessed your data from the DVLA), there's a case for complaining to the DVLA to check whether this somehow breaches their KADOE contract with the PPC.

The other avenue is to seek the source of the information transfer of your data to the PPC, as that may well be a breach of DPA principles.

Some thoughts .... see if others wish to comment.

The_Slithy_Tove

AdoptedNortherner wrote: »

3. The Claimant asserts that there was an absolute entitlement to park deriving from the terms of their residential tenancy and a primacy of contract which cannot be fettered by any alleged parking terms.

Do you mean Defendant?

AdoptedNortherner

Umkomaas, Slithy, thanks for your pointers!

The other avenue is to seek the source of the information transfer of your data to the PPC, as that may well be a breach of DPA principles.

Likelihood is they would have used the address provided during our initial appeals, both directly with them and the IAS.

However, for the misuse and storage of inaccurate data at the point of bringing the claim to court, which has had a significant impact on us - we'll still be highlighting as a GDPR infringement.

I assume then within the context of their claim, we won't be refuting their requirement to obtain information from the DVLA directly. We'll just be highlighting a GDPR infringement.

nosferatu1001

yes, just a defence. Nothing more. Point 5 is clear on that

For breach of a costs order can you apply for a warrant of control? That would be hilarious to see.

AdoptedNortherner

Hi all,

I submitted the DQ and Defence well before deadline back in Feb, but have just received the below from the court. Bit confused by this as I was expecting the next step to the Notice of Allocation. Does this mean the claimant hasn't supplied something they should have or is this a normal part of the process?

General Form of Judgement of Order

Before District Judge XXXX sitting at the County Court at XXXX.

WARNING: you must comply with the terms imposed upon you by this Order: otherwise your case is liable to be struck out or some other sanction imposed. If you cannot comply you are expected to make a formal application to the Court before any deadline imposed upon you expires.

IT IS ORDERED THAT

1. The claimant shall file and serve a reply to Defence by XXXX at 4pm

2. Because this Order has been made without a hearing, the parties have the right to apply to have the order set aside, varied or stayed. A party making such an application must send or deliver the application to the court (together with any appropriate fee) to arrive within seven days of service of this Order.

Umkomaas

1. The claimant shall file and serve a reply to Defence by XXXX at 4pm

Is that date in the future or in the past. Why not just type it in?

AdoptedNortherner

It's in the future