Summons to Court and Time is Running Out!

Jasch

A question to those of you with experience of sending SARs: I've adapted the template posted by Abedegno (Post #4 in the thread linked to on Newbies). Based off of the rest of the thread, two questions before I send it off:
- Is it worth inserting a request in line with the demands below:
"Permit (residents car park) cases - you'd want all photos, all letters/the PCN & NTK, and you should ask for all ''whitelist'' data about your car and/or complaints you might have made that were shared by the Managing Agent with the parking firm. And/or all copies of letters or emails ever sent to your home or email address about the 'permit scheme' and all data held from the initial 'due diligence' checks they and the Managing Agent made* to ensure no unconscionable PCNs would be issued to residents who already enjoyed the right to park and/or all responses made to the introduction of the scheme and the percentage of residents who agreed or objected and any formal variation of the leases that occurred to enable the onerous nuisance of a parking firm to override residents' existing primacy of contract."
This was suggested by Coupon-Mad (Post #49) and would be useful information to have as evidence.

- Do I preemptively send proof of ID, alongside my V5C certificate? If it's going to be a loophole that allows them to procrastinate, is it better that I cut off that potential excuse? Since the ICO allows them to request information - albeit within 'proportionality' - it seems to be an avenue they can exploit.

I have scoured the thread for advice on these matters but would be interested to hear any opinions/experiences of what makes a precise and effective SAR.

Many thanks, as ever!

Loadsofchildren123

Have you got a full copy of your lease?


It will contain a list of "estate regulations" or something similar.


There is usually a clause allowing the freeholder/MC to introduce new estate regulations. You need to look carefully at the definition of estate regulations, and what the existing regulations deal with. The parking co will claim that this clause is what allowed them to introduce new parking controls, including the permit requirement.


First of all, you need to double check that your parking space is part of the demised property - this means you actually own it, although there will be covenants restricting your use of it (eg no commercial vehicles). If this is the case, it may well be that no estate regulations apply to it, because it's property you own (and estate regulations only apply to the common parts owned by the freeholder and not any leaseholders).


Other types of leases don't include the parking space as part of the demised property, they just grant you exclusive use of it. So you don't own it, therefore it MAY be that the estate regulations do/could apply to the parking area and new regulations COULD be introduced.


This is all down to the precise wording on the lease.


If you own your parking space, you are in a stronger position.
If you don't own it but have exclusive rights to use it, it's a bit more of a grey area - legally I say it is right that they have no right to introduce new regulations over your use of it, and no right to impose on you a contractual relationship with a third party (the PPC) and no right to levy a separate charge for breaching any new regulation (the only thing they can charge you is what's in the lease, which will be ground rent/service charge). However some judges have been known to find that the clause includes the right to introduce new parking regs.


Then there is the question of IF the freeholder/MC is entitled to introduce new regulations over the use of the parking spaces, was this properly done?


And then there's the argument that even if you fail on all the above, what in the lease entitles the freeholder/MC to impose on you a contractual relationship with a third party (the PPC) and to require you to pay a separate charge for failing to comply with the new regulation(s) (the parking charge) when the lease clearly says they can only charge you whatever is included in the definition of the ground rent/service charge.


There are some fairly particular technical arguments over these types of cases. All set out in detail in other threads. So you need to start by reading those. I can't point you to any specific ones, but the arguments about the entitlement to introduce new estate regs is all in a thread by hairray.

Loadsofchildren123

Start gathering evidence too. You said the PPC had their contract ended because of malpractice - I imagine the annoyance of targeting genuine residents and that a big fuss was made by the residents at the time. Could you gather evidence of this from the residents' committee/management company? You should mention this in your defence but include all the detail in your WS. I think it will be quite powerful in painting them in a very bad light from the start.


And get a copy of the contract between Link and freeholder/MC

nosferatu1001

Yes, get as much information as you can
If you know they will ask for ID, then preempt them
You could also add that this request is proportional and cannot be viewed as excessive. Any attempts to delay release will be reported to the ICO for breach ofthe DPA2018.

Jasch

Right, bless you lot for your continues excellent in support. The SAR was sent off, although I doubt anything other than the perfunctories will come of it.

Below is my draft defence, taken from a rather beautiful example on pepipoo by SchoolRunMum (CouponMad, is that you!?). If you have time, any feedback would be greatly appreciated. I've amended where it seems prudent to do so - apropos the whole Parkingeye vs Beavis fiasco - my case rests on primacy of contract and the land belonging to me. Does it still make sense to keep this is lest they rely on it? Or since the signage in my estate seems quite thorough (beyond missing a location number and 'managed by') would it be best to leave this bit out?

Statement of Defence

In the County Court Business Centre
Claim Number: ___

Between:
Uk Car Park Management v ___

DEFENCE
Preliminary
1. The Particulars of Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.

1.1. The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking for a true cause of action. HMCS have identified thousands of similar poorly pleaded claims.

1.2. The Defendant believes the term for such conduct is ‘robo-claims’ which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. I have reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to my significant detriment as an unrepresented Defendant.

2. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct.

2.1 The Defendant further notes the Claimant's failure to engage in pre-action correspondence in accordance with the pre-action protocol and with the express aim of avoiding contested litigation.

2.2 The Defendant has discovered that the Claimant's Trade Body, the Independent Parking Committee (IPC), is an organisation operated by the same Directors as are/were recorded at Gladstones Solicitors, at least until very recently. They - John Davies and Will Hurley - are also responsible for the IAS.

2.4 Now the Defendant notes that Gladstones are employed in bringing this claim, demonstrating a clear conflict of interests.

Background

3) It is admitted that at all material times the Defendant was the owner of the vehicle in question.

4) It is denied that any "parking charges or indemnity costs" (whatever they might be) as stated on the Particulars of claim are owed and any debt is denied in its entirety.

5) It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking 'parking management'. The Claimant has provided no proof of any such entitlement.

6) It is admitted that the Defendant parked the vehicle on the material date, whilst residing at the private residential property. It is denied that there was any relevant obligation upon the Defendant that can have been breached. The Defendant did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.



Authority to Park and Primacy of Contract
7) It is denied that the Defendant was in breach of any parking conditions or was not permitted to park, in circumstances where the Lease does permit the parking of vehicle(s) on this land. The Defendant avers that there was at the very least, a prior and overriding grant of a licence to park, and indeed believes there was an absolute entitlement to park, deriving from the terms of the lease, which cannot be fettered by any alleged parking terms. The lease terms provide residents with the right to park a vehicle on this private land, without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle or ‘terms of parking’. This is further supported by both the lease and Land Registry Title Plan confirming the plot of land that represents the parking space as being legally owned by the defendant.

8) It is not admitted that the Claimant has contractual or other lawful authority to make contracts with residents at this location, and/or to bring proceedings against the Defendant. The Claimant is put to strict proof. Further, and in the alternative, the Defendant avers that the Claimant requires the permission the owner of the relevant land - not merely another contractor or site agent not in possession - in order to commence proceedings.

9) The Defendant avers that the Claimant cannot:
(i) override the existing rights enjoyed by residents and their visitors, or
(ii) offer parking on more onerous terms than were already granted and agreed in the lease/tenancy Agreement, or
(iii) decide to remove parking bays from use by residents and/or start charging for them.

9.1 Parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial.

9.2 Further to this, parking easements cannot be enforced in cases where the parking space is considered part of the property. The Defendant will rely upon the judgements of DDJ Metcalf in Parkinson vs Link Parking Ltd (2016).

No contract and no breach - this bay has never been ''undesignated'' nor was it clearly marked as such

10) It is denied that the vehicle was “parked outside of designated area”. The Defendant parked legitimately in a bay.

11) This Claimant has pursued – a predatory parking regime targeting residents and has unilaterally attempted to foist upon residents a change of rules, in complete disregard to any existing rights and grants; this has led to the Management Company of the property seeking ‘alternative companies who could manage the development’.

12) The site plan issued in the lease clearly demarcates the parking space in question – XXX – to be considered as part of the same ‘property/plot’ as the claimant’s current abode; this is corroborated by the title plan issued by the Land Registry.

13) The Defendant denies any separate contract with the Claimant in respect of parking arrangements. The Claimant has offered nothing by way of consideration, given the primacy of contract enjoyed by residents who already have rights of way and have a reasonable expectation to park, free of harassment, predatory conduct and 'parking charges'.

14) It is denied that there was any breach of contract or of any relevant parking terms. The Claimant's claim is wholly misconceived.

In the Alternative: Failure to set out clear parking terms - ParkingEye Ltd v Beavis (2015) UKSC 67 distinguished

15) The Defendant relies upon ParkingEye Ltd v Beavis, insofar as the Court were only willing to exempt a parking charge from falling foul of the penalty rule which would normally render it unrecoverable, in the context of a site of commercial value, it being a 'complex' case where the driver was a visitor with no prior licence or rights, and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.
15.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate.
15.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;
15.1.2. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee’s ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and
15.1.3. The signage contained particularly onerous terms not sufficiently drawn to the attention of existing residents, as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3

15.2. The Defendant avers that the residential site that is the subject of these proceedings is not a site where there is a commercial value to be protected. In fact, the existing rights of residents should have been protected.

15.3 The charge is, accordingly, unconscionable in this context, with ParkingEye v Beavis distinguished.

Wholly unreasonable and vexatious claim

16) It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, the Defendant is keeping careful note of all wasted time/costs in dealing with this matter and should the case continue to trial (or in the event of the Claimant filing a Notice of Discontinuance) the Defendant will seek further costs, pursuant to Civil Procedure Rule 27.14(2)(g).

17) The Defendant respectfully suggests that parking companies using the small claims track as a form of aggressive, automated monetary demands against residents, alleging 'debts' for parking at their own homes is not something the Courts should be seen to support.

18) The Court is invited to take Judicial Notice of the fact that the Claimant's solicitors, Gladstones, is engaged in a course of conduct which involves issuing tens of thousands of totally meritless Claims, which are routinely dismissed by District Judges sitting in this Court, and other County Court hearing centres in all parts of England & Wales. The Court is therefore invited to refer the matter to the Designated Civil Judge, for consideration of the issuing an Extended Civil Restraint Order against the Claimant, pursuant to CPR Practice Direction 3.1(3).

19) The Defendant denies the claim in its entirety, voiding any liability to the Claimant for all amounts due to the aforementioned reasons. The Defendant asks that the court gives consideration to exercise its discretion to order the case to be struck out under CPR Rule 3.4, for want of a detailed cause of action and/or for the claim having no realistic prospects of success.

20) If the court is not minded to make such an order, then when Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because it is expected that the Claimant will use its witness statement to provide the sort of detail which should have been disclosed much earlier, and the Defendant should have the opportunity to consider it, prior to serving evidence and witness statements in support of this defence.

I confirm that the above facts and statements are true to the best of my knowledge and recollection.

Signed

Date

As ever, all the thanks.

C

Redx

yes its her, although she is PPR here at the moment (sorry to say)

a few pointers for the above

1) its DEFENCE , not statement of , one word only, so edit it

2) seems a lot of points in there, not concise, read the BARGEPOLE defences he has posted recently and note the differences, try to slim it down because 20 points seems to be the "scattergun approach" that he detests

Jasch

Thanks RedX - Bargepole's posts made for interesting reading re. 'pay and spray' defences.

In light of this, I have shaved off 750(!) words and six(!!) sections. The reformed version looks like this:

Defence

In the County Court Business Centre
Claim Number: ___

Between:
Uk Car Park Management v ___

DEFENCE
Preliminary
1. The Particulars of Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.

Background

2) It is admitted that at all material times the Defendant was the owner of the vehicle in question.

3) It is denied that any ‘parking charges’ (whatever they might be) for ‘breaching the term of parking on the land at Arena Place’ are applicable and any debt is denied in its entirety. The incident in question saw the defendant park in a space they are entitled to, as stated by the lease.

4) It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking 'parking management'. The Claimant has provided no proof of any such entitlement.

5) It is admitted that the Defendant parked the vehicle on the material date, whilst residing at the private residential property. It is denied that there was any relevant obligation upon the Defendant that can have been breached. The Defendant did not enter into any agreement to display a permit, no consideration flowed between the parties and no contract was established.



Authority to Park and Primacy of Contract
6) It is denied that the Defendant was in breach of any parking conditions or was not permitted to park. The Defendant avers that there was at the very least, a prior and overriding grant of a licence to park, and indeed believes there was an absolute entitlement to park, deriving from the terms of the lease, which cannot be fettered by any alleged parking terms. The lease terms provide residents with the right to park a vehicle on this private land, without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle or ‘terms of parking’. This is further supported by both the lease and Land Registry Title Plan confirming the plot of land that represents the parking space as being legally owned by the defendant.

7) It is not admitted that the Claimant has contractual or other lawful authority to make contracts with residents at this location, and/or to bring proceedings against the Defendant. The Claimant is put to strict proof.

8) The Defendant avers that the Claimant cannot override the existing rights enjoyed by residents and their visitors

8.1 Parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial.

8.2 Further to this, parking easements cannot be enforced in cases where the parking space is considered part of the property. The Defendant will rely upon the judgements of DDJ Metcalf in Parkinson vs Link Parking Ltd (2016).

No contract and no breach – the land that parking bay exists on is legally assigned to the claimant

9) The site plan issued in the lease clearly demarcates the parking space in question – XXX – to be considered as part of the same ‘property/plot’ as the claimant’s current abode; this is corroborated by the title plan issued by the Land Registry.

10) The Defendant denies any separate contract with the Claimant in respect of parking arrangements. The Claimant has offered nothing by way of consideration, given the primacy of contract enjoyed by residents who already have rights of way and have a reasonable expectation to park, free of harassment, predatory conduct and 'parking charges'.

In the Alternative: Failure to set out clear parking terms - ParkingEye Ltd v Beavis (2015) UKSC 67 distinguished
11) The Defendant asserts that the circumstances of the events leading to this matter are materially different from the Beavis case determined by the Supreme Court, and consequently the Claimant cannot rely upon that Judgment as creating a binding precedent

Wholly unreasonable and vexatious claim
12) It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, the Defendant is keeping careful note of all wasted time/costs in dealing with this matter and should the case continue to trial (or in the event of the Claimant filing a Notice of Discontinuance) the Defendant will seek further costs, pursuant to Civil Procedure Rule 27.14(2)(g).

13) The Defendant denies the claim in its entirety, voiding any liability to the Claimant for all amounts due to the aforementioned reasons. The Defendant asks that the court gives consideration to exercise its discretion to order the case to be struck out under CPR Rule 3.4, for want of a detailed cause of action and/or for the claim having no realistic prospects of success.

14) If the court is not minded to make such an order, then when Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because it is expected that the Claimant will use its witness statement to provide the sort of detail which should have been disclosed much earlier, and the Defendant should have the opportunity to consider it, prior to serving evidence and witness statements in support of this defence.

I confirm that the above facts and statements are true to the best of my knowledge and recollection.

Signed

Date

There are some sections I was thinking of deleting, namely 1,12,13 and 14. However, they seem to serve as useful precedents should the claimants try to pull a fast one.Thoughts? I also know the Bargpole recommended against citing case law, but I have read elsewhere to include it, ergo my decision to.

Jasch

And the defence is sent! Watch this space...

Coupon-mad

We watched, but nothing happened.

How did you get on? You never came back at Witness Statement stage.