Letter Before Claim - Gladstones [Residential Parking]

otterpanda

I've still not heard anything from the court following my emails to them to move the date forward, and I can't imagine that they will suddenly give me a date now.

I'm working on my witness statement still with a view of submitting it before I go and I think I will send a letter to the court now to ask for a delay in the hearing.

I've been reading the posts about abuse of process and I just wondered, does that apply if I didn't receive a NTK (only the windscreen PCN). I have vaguely in my mind that they cannot inflate costs as the signage didn't include anything about additional costs if failure to pay the PCN? I've also found a cached copy of DRP website saying they operate on a no collection no fee basis, though they have since removed it..

otterpanda

Le_Kirk wrote: »

ETA And apologies to the OP for side-tracking the thread.

That's no problem, it has been informative for me as well. What I'm taking from this is that I really need to try and attend.

Say I attended and won, would it be considered 'reasonable costs' if I claimed my flight costs back?

Coupon-mad

I've also found a cached copy of DRP website saying they operate on a no collection no fee basis, though they have since removed it..

Their actual leaflet has been posted here recently.

Of course the abuse of process argument applies if they added £60 'damages' because the Beavis case says the parking charge already covers the business costs. They cannot have 'double recovery'.

otterpanda

So I have drafted my witness statement, I would greatly appreciate some feedback on it if possible.

I have used the witness statement that Coupon-mad helped Stuart Hamilton draft as a template for my own. There is one point (25) on there that I'm unsure whether it applies to me as Stuart was the property owner whereas I was a renting tenant.

The evidence I have is (not necessarily in order of appendices below):
1. Tenancy Agreement
2. Property Lease
3. Parking Permits
4. POFA Schedule 4
5. Copies of judgements quoted below
6. Photos of forbidding signage

I am xx and I am the Defendant in this matter. If the documents are not set out in the way that the Claimant may do, I trust the Court will excuse this. The facts and matters stated are true and within my own knowledge, except where indicated otherwise.

I will say as follows:

Background
1. This Claim arises from an alleged breach of contract relating to a parking incident in my own parking space outside an apartment that my partner and I rented from the owner.

2. The apartment is at xx and also included allocated parking space number xx.

3. This is an apartment flat which comes with unfettered rights to the parking space. When my partner and I took occupancy of the flat on xx, there was an Assured Shorthold Tenancy agreement in place which outlined the terms and conditions in relation to the tenancy. A copy of this is shown at Exhibit A.

4. We also took possession of a parking permit disc for display in my car. A copy of this is shown at Exhibit B.

Facts
5. There was also a Lease in existence in relation to the apartment and a copy of which was subsequently obtained from the owner and. I have reason to believe that the terms of the lease have not varied from the document dated xx.

6. I have attached a copy of the complete lease document as Exhibit C and have highlighted the following salient points:
a. The allocated parking space on the front page – “the use of Car Parking Space xx”
b. Page 16 - Paragraph 6.3 – Quiet enjoyment
“That the Tenant paying rent hereby reserved and performing and observing the several covenants conditions and agreements herein contained and on the Tenants part to be performed and observed shall and may peaceably and quietly hold and enjoy the Premises during the term hereby granted without any interruption or disturbance from or by the Landlord its successors in title or any person or persons lawfully claiming under or in trust for or through them.”
c. Page 20 - Schedule 2 Paragraph 8 –
The right (subject to observance of the regulations set out in Schedule 5 as applicable) to use the Allocated Parking Space for the parking of one private motor vehicle only together with the right to pass and repass at all times with a vehicle or on foot (as appropriate) over and along the roads and footpaths on the Estate Maintained Property as shall provide access and egress in respect of the Allocated Parking Space”
d. Page 30 - Schedule 5 Paragraph 12
“The Allocated Parking Space shall be used only for the parking of one private motor car or one motorcycle in a good and roadworthy condition with a current MOT certificate (where required) and bearing a valid vehicle excise license and shall not be used for the purpose of any trade manufacture or business of any description (other than a black cab) and for the avoidance of doubt no vans commercial vehicles boats caravans or an similar item may be parking in the parking spaces and motor vehicles shall not be parked elsewhere than on parking spaces so designated and no repair or mechanical work may be carried out to any motor vehicle parked on the Allocated Parking Space of elsewhere on the Estate”

7. On xx my xx motor car index number xx was correctly parked in my allocated parking space number xx, with the issued parking permit clearly visible through the windscreen. There had been a Parking Charge Notice No xx affixed to the windscreen, alleging that the vehicle was parked in permit only parking area without clearly displaying a valid permit. This Parking Charge Notice (PCN) was flawed in as much as the location was incorrect, stating that the vehicle was parked at xx. On xx I followed the appeals process using the agent shown on the reverse of the notice, which was issued by New World Facilities East Essex Ltd (NWFEEL).

8. Whilst waiting for the outcome of my appeal in relation to PCN No xx and without any other information from the management company - xx or NWFEEL, on xx a second PCN No xx was affixed to my xx motor car index number xx. This PCN alleged that the vehicle was parking on private land without a valid permit and/or authorisation. On xx, after a period of leave, I contacted the management company by email querying the reasons why the PCN was issued and the facts regarding the parking permit; my landlord was copied into this email.

9. I then made a visual check of the other vehicles in the parking area to ascertain whether there were any different parking permits. As far as I could see there were no visible differences to any of the other permits compared to one displayed in the xx motor car. However, it was at a later date I discovered the fact that the reference numbers shown on the permits had changed which I had not been made aware of.

10. On xx at xx a third PCN was issued (number: xx) with the reason “parking on private land without a valid permit and/or authorisation”.

11. Between xx and xx, a series of communications between my landlord, xx management company and myself resulted in the cancellation of the 1st and a 3rd PCN (issued on xx and xx respectively). These communications included using the management company’s stage one and two complaints procedures. However, the PCN issued on xx was not cancelled as an outcome of this. Copies of correspondence can be provided on request.

12. On xx, my appeal for PCN no xx was rejected, 18 days after my appeal was lodged.

13. As a tenant of xx which comes with allocated space xx, I was residing under the terms of the both the tenancy agreement and the Lease. This allowed unfettered rights to park in the allocated parking space, as well as pass and repass at all times

14. At no time has the management company acknowledged the contents of the lease in relation to the matters raised previously.

15. In relation to the lease, which underpins the conduct of tenancy I will refer to the following judgments which refer to the fact that the terms of a lease cannot be altered without formal consultation, and taking the appropriate steps.

16. As the tenant of the flat the Defendant has primacy of contract, being indisputably authorised and ‘sanctioned’ the right to park a car in the Defendant’s allocated space which is assigned to the apartment. There is no term or contract applicable to me as tenant nor the legal owner of the apartment flat, mandating the requirement to display a permit, or to pay a penalty to a third party for non-display of same.

17. NWFEEL’s signage at this site states “No unauthorised parking’’ and refers among other ambiguous and not clearly-worded headings: ‘‘visitors or residents not displaying a valid permit’’ and ‘‘parking in a bay where authorisation has not been granted by the landowner’’.

18. In the event that the Court believes there was an attempt at forming a contract, the Defendant will interpret the above clauses with their normal meaning and assert that parking was granted and ‘sanctioned’ and was not ‘unauthorised’.

19. It is submitted that this notice is attempting to make a contractual offer which is forbidding, and as such does not fulfil the basic requirement of a contract, i.e. each party to the contract must offer valuable consideration to the other party, on clear terms capable of acceptance. In this case, the parking operator is not offering anything to a party with leasehold title who already enjoys an unequivocal right to park and access the property, unhindered. The notices cannot reasonably be construed as having created a contractual relationship between the original parking operator and the Defendant, remembering that this Claimant was not that ‘parking operator’ anyway.

20. I cite as Authority, the Judgment in the Appeal case of Jopson v Homeguard Services [2016] B9GF0A9E, Oxford County Court, 29 June 2016*). In his Judgment, HHJ Harris QC states, at [18]: ‘It therefore seems clear to me that the respondent was not in any position unilaterally to override the right of access which the claimant had bought when she purchased the lease …’ and this Senior Circuit Judge commented that life in a block of flats would be unworkable if authorised access to properties by parties entitled to that grant, were to be subject to a penalty. (*Appended as Exhibit D).

21. A similar case was recently heard at Croydon County Court, in PACE Recovery & Storage v Mr N (C7GF51J1)*, where District Judge Coonan stated in her Judgment at [18] ‘I have to be satisfied that the contract has been varied to include such a provision and I am not satisfied because I am not satisfied that clause 6(3) was complied with at any relevant stage. Therefore, the tenancy agreement takes precedence over the arrangement between Sutton and yourself, the claimant, Pace Recovery. As I have said, it is a pure matter of contract that I have to decide. Therefore, the claim is dismissed’. (*Appended as Exhibit E).

22. In a similar case in UKPC v Masterson, B6QZ4H3R* at Edmonton in May 2016, DDJ Ellington in the Judgement at [6], found that signage stating ‘no unauthorised parking’ made no offer. He held: ‘‘I am not able to consider that that is an open offer to contract to park at first sight. If anything, it prohibits unauthorised parking on my reading of it.’’ (*Appended as Exhibit F)

23. I submit that these cases provide persuasive authority for my contention that the property lease title has primacy of contract over the original creditor’s signage, which in any event exempts cars parked with authority or ‘sanction’. I consider that the attempt to impose a ‘fine’ on me for parking in the allocated bay of my rental property is a case of derogation from grant which is not something for the courts to support against a flat owner.

24. There is no comparable ‘legitimate interest’ as found at the Supreme Court in the complex and completely different (retail park) case of ParkingEye v Beavis [2015] UKSC 67. In the UKPC v Masterson case, DDJ Ellington also distinguished the case from Beavis: ‘‘I am unable to accept that the particular circumstances of this case reveal a contractual licence to park with a contract between the parking manager, in this case UKPC, in the Supreme Court authority ParkingEye, and the vehicle owner or driver, in this case the defendant, and in the Supreme Court authority, Mr Beavis.''

25. The Claimant is put to strict proof that any assignment they might plead conformed to the Law of Property Act 1925 and was properly executed in respect of the alleged debt before proceedings were issued. It is specifically denied that the letter produced by them purporting to have originated from their Assignor represents proper notice.

26. The particulars of claim include a substantial charge additional to the parking charge which it is alleged the defendant contract to pay. This additional charge is not recoverable under the protection of freedoms act 2012, schedule 4 not with reference to the judgement in Parking Eye vs Beavis. It is an abuse of process from the claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. In the event it is claimed these contractual charges include the employment of Debt Recovery Plus and Zenith Collections, I must make the court aware that both companies advertise themselves as operating a “no collection, no fee” service.

27. The Court is invited to dismiss the Claim as being without merit, and further, in the event that the Claimant should discontinue this Claim, to maintain the listed hearing date of xx as a costs hearing, in order that I can apply for a Costs Order against the Claimant

I believe the facts stated in this Witness Statement are true to the best of my knowledge.

Coupon-mad

derogation from grant which is not something for the courts to support against a flat owner.

Not 'flat owner'. Change to 'resident'.

And you need this as evidence; I did say it has been posted, I think on beamerguy's Abuse of Process thread recently:

I've also found a cached copy of DRP website saying they operate on a no collection no fee basis, though they have since removed it..
Their actual leaflet has been posted here recently.

Are you attaching the inflated imaginary costs/abuse of process argument as a separate supplementary sheet with the judgments as well (see post #14 of the Abuse of Process thread). The judgments are meant to be used by everyone.

otterpanda

Not 'flat owner'. Change to 'resident'.

Noted.

Are you attaching the inflated imaginary costs/abuse of process argument as a separate supplementary sheet with the judgments as well (see post #14 of the Abuse of Process thread). The judgments are meant to be used by everyone.

I will go and read through the thread thoroughly - by supplementary sheet with the judgements, would that be like everything else where I have marked as Appendix A / B / C etc? (Sorry to be dense) or should the entire point be expanded on as a supplementary sheet?

otterpanda

Getting ready to post everything out and before I print out the supplementary witness statement, do I need to include the "my name is ... of xx address and I say as follows" bit at the start or can I go straight in to the points Coupon-mad makes in post #14?

Thank you!

KeithP

Yes, you need to somehow tell the reader that it is a Supplemental Witness Statement from the Defendant.

Coupon-mad

I would do it exactly like the WS, with all the same headings and intro, and signature & date, etc.

All the same top & bottom, except the word 'Supplementary' and a sub-heading like: Claimants costs are false, disingenuous and an attempt at double recovery

otterpanda

Perfect thank you both. I will add that in the morning.

I can't quite believe that I'm at this stage now!