County Court Defence - Parking in Someone Else's Allocated Bay

ellas200

Thank you IamEmanresu!

It's really not safe to park outside of the secure car park here. Also, I had spoken to the receptionist, and staid for more than an hour trying to resolve the issue.

UPDATE: I have now submitted the AoS, giving me a little time to get this defense together. Could you please take a look at my defense? They have put in a very generic claim, so I believe the best advice is a generic claim calling for it to be thrown out by the court before it's heard?

Should I leave out the terms of the lease? Do they not have to prove I am guilty rather than vise-versa?

Thank you very much for your help - £535 is a lot of money!

IN THE COUNTY COURT
Claim No.: XXXXXXXXX
Between
XXXXXXXX
(Claimant)

-and-


XXXXXXX
(Defendant)


DEFENCE

Preliminary Matters

1. The claimant failed to include a copy of their written contract as per Practice Direction
16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the Claimants contractual authority to operate there as required by the Claimants Trade Association's Code of Practice B1.1 which says that if you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the ‘Creditor’ within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges. There is no prescribed form for such agreement and it need not necessarily be as part of a contract but it must include the express ability for an operator to recover parking charges on the landowner’s behalf or provide sufficient right to occupy the land in question so that charges can be recovered by the operator directly. This applies whether or not you intend to use the keeper liability provisions.
2. The Particulars of Claim on the N1 Claim Form refer to 'Parking Charges' incurred on [DATES]. 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. 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.
2.1. On the 20th September 2016 a poorly pleaded private parking
charge claim by Gladstones was struck out by District Judge Cross of St
Albans County Court without a hearing due to their ‘roboclaim’ particulars being
incoherent, failing to comply with CPR. 16.4 and ‘providing no facts that could
give rise to any apparent claim in law.’

3. The Claimant has not complied with the pre-court protocol
3.1. No Letter of Claim was sent to the Defendant and no initial information was sent to
the Defendant.
3.2. I'd refer the court to Para 4 on non-compliance and sanction, and I'd also point out
that there can be no reasonable excuse for the Claimant's failure to follow the
Pre-action Conduct process.

Statement of defence

4. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
5. 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.
6. The secure car parking area contains allocated parking spaces demised to some residents. Entry to the gated parking is by means of a key fob, of a type only issued to residents by the landlord. Any vehicles parked therein are, therefore, de facto authorised to be there.
7. Under the terms of the Defendant's lease, a number of references are made to conditions of parking motor vehicles.

“23.1 – To park private vehicle(s) only at the Premises” (Where Premises refers to the address of the flat state in the lease
“23.2 – To park only in the car parking space, garage, or driveway allocated to the Premisis, if applicable”

7.1. 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.
7.2. In Saeed v Plustrade Ltd [2001] EWCA Civ 2011 it was found the managing agent could not reduce the amount of parking spaces available to residents, nor charge for them, or this would constitute a matter of 'derogation from grant' which the courts could not support.
7.3. he 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 refer to 'Authorised Vehicles Only/Terms of parking without permission', and suggest that by parking without permission, motorists are contractually agreeing to a parking charge of £100. This i) does not apply to the defendant, as the vehicle is authorised in accordance with point 4, and ii) is clearly a nonsense, since if there is no permission, 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/her 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 residential circumstances. Therefore, this case can be distinguished from Beavis on both the facts and circumstances.
10. 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 - the Defendant avers that this inflation of the considered amount is a gross abuse of process.
11. 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.
11.1. 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

That's very long & generic & waffly and doesn't cut to the heart of the matter.

I would instead use as a base, one of bargepole's concise defences from the NEWBIES thread 2nd post. Then change point #2 about the facts, to suit the facts of this case.

Have a read of DJ Iyer's decision in the transcript of PACE v Lengyel here:

http://www.parking-prankster.com/more-case-law.html

I think it gives you a way to argue the defence, and I think you do have a defence.

Estate Reception were aware of the issue and knew where you were parked, what your contact details were, and that you were not a trespasser. Effectively you can argue that you understood that they agreed to (effectively authorised) your use of that space instead, that week, and no contract terms were discussed, nor any charges.

Estate Reception knew it would be 'impossible' for you to display a correct permit for that alternative bay, but did not tell you to move elsewhere (so they could not provide parking for you somewhere else), nor did they warn you that you would be paying £100 per day for the privilege of this temporary arrangement, caused by another car in your allocated bay.

Nor did they add you to a daily or weekly 'white list' (easy for them to do, e.g. for contractors vehicles which have to park in the estate) or give you a note of exemption for the car dashboard. A simple remedy to avoid residents being unfairly penalised, would be if Estate staff handed over a temporary permit to cover such eventualities, a generic permit allowing parking outside of a bay if the allocated bay was, for whatever reason, rendered unavailable. No such remedy was offered so the D concludes that the discussion itself formed a verbal agreement to stay there until the issue was sorted, and the C was not party to that agreement.

Clearly you did not agree to pay any third party £100 per day for parking, regardless of their signage. You could have parked for less than £100 all week at the Airport which would have been more convenient for your flight, so clearly this was not a bargain that was struck and not 'an understandable ingredient of a scheme serving legitimate interests' (para 199 of the Beavis case decision). There can be no legitimate interest in merely punishing a driver.

The Claimant was not party to the verbal discussion with estate staff and you did not accept their terms by conduct - the terms agreed with estate Reception were that your car could remain there and they would find out whose bay it was and would be in touch with you if there was a problem.

If Estate staff decided that you were trespassing, then they certainly did not tell you this nor voice any major concerns with the temporarily changed parking bays, and in any case, if they had, that would be a matter for the landowner to sue over, under the tort of trespass, and not for a third party to dress up under contract.

Have a look at PACE v Lengyel about the signs (in fact the whole transcript is relevant). DJ Iyer's remarks about the signs not forming a contract just because they had 't&cs' (which is not synonymous with 'contract') and being worded more against trespassing, might help. Plus the impossibility of having a permit for that bay.

So might PCM v Bull be useful, which is another case hosted by the Parking Prankster, about signs that prohibit parking without a valid permit.

Neither are precedents. They are merely county court cases but are worth reading and understanding, and can later be adduced as exhibits alongside your Witness Statement.

Show us a picture of the sign at the estate if you can get one before the defence is due in; quite possibly the wording does not actually offer a 'parking licence for £100 a day' to those without a valid permit.

ellas200

Sorry for the delay getting back. I only realised my AOS was denied recently, and I've submitted a new one which will be accepted hopefully.

It was denied as they thought I was a third party. Having called them up I believe this is because the claim isn't filed under my name, but my first name and then they've used my middle name as my surname. Is this worth including in the defence?

Also, I never received notice that they would be taking this to court. Is this worth including?

I no longer live at the apartment, but I am getting a friend to photograph the current notices so we can see what they say.

And, thanks for the references, I've read these and am figuring out how to write them into my defence.

I modified the defence you wrote here: forums.moneysavingexpert.com/ showthread.php?p=74708527#post74708527[ Would I be better to go with a shorter one? I felt this was the closest template, as it also refers to residential parking with a key fob.

Thanks!

KeithP

You absolutely must get that AoS done today!!

It is already overdue and the way has been open for the Claimant to get a Default Judgment against you for three days.

What does MCOL say about the status of the claim?

ellas200

It just says:
Your acknowledgment of service was received on 08/10/2018
Your acknowledgment of service was rejected on 09/10/2018
Your acknowledgment of service was received on 22/10/2018

Coupon-mad

https://forums.moneysavingexpert.com/discussion/comment/74708527#Comment_74708527

That is the bargepole template keyfob one, more or less. It's fine.

Add to the first point:

The Defendant - whose legal name is Fred James Bloggs, not 'James Bloggs' as stated in the claim - denies that the Claimant is entitled to relief in the sum claimed, or at all.

And when you email the defence to the usual CCBCAQ justice email account, put URGENT DEFENCE - CLAIM XXXXXXX in the subject line and then in the body of the email tell the CCBC that the attached defence IS from the defendant, not from a third party, but the claimant has got the name wrong as explained in point #1 of the Defence attached.

ellas200

That's fantastic. Thanks Coupon-Mad. I'll write in these edits, and try to make it a little more concise and then post my final(ish) version. Again, thank you so much for your help!

ellas200

Could somebody please take a look over this and let me know if I've missed anything crucial? It becomes very hard to notice any errors after reading it through for the 100th time! Thank you!

DEFENCE

Preliminary Matters

1. The Defendant - whose legal name is XXXX XXXX, not ‘XXXX XXXX’ as stated in the claim - denies that the Claimant is entitled to relief in the sum claimed, or at all.
2. The claimant failed to include a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the Claimants contractual authority to operate there as required by the Claimants Trade Association's Code of Practice B1.1 which says that if you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the ‘Creditor’ within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges. There is no prescribed form for such agreement and it need not necessarily be as part of a contract but it must include the express ability for an operator to recover parking charges on the landowner’s behalf or provide sufficient right to occupy the land in question so that charges can be recovered by the operator directly. This applies whether or not you intend to use the keeper liability provisions.
3. The Particulars of Claim on the N1 Claim Form refer to 'Parking Charges' incurred on [DATES]. 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. 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.
3.1. On the 20th September 2016 a similar private parking
charge claim was struck out by District Judge Cross of St
Albans County Court without a hearing due to their ‘roboclaim’ particulars being
incoherent, failing to comply with CPR. 16.4 and ‘providing no facts that could
give rise to any apparent claim in law.’

4. The Claimant has not complied with the pre-court protocol
4.1. No Letter of Claim was sent to the Defendant and no initial information was sent to
the Defendant.
4.2. I’d like to refer the court to Para 4 on non-compliance and sanction, and point out
that there can be no reasonable excuse for the Claimant's failure to follow the
Pre-action Conduct process.


Statement of defence

5. 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.
6. The secure car parking area contains allocated parking spaces demised to some residents. Entry to the gated parking is by means of a key fob, of a type only issued to residents by the landlord. Any vehicles parked therein are, therefore, de facto authorised to be there.
7. A parking space is made available for the Defendant under the terms of the residential lease.
7.1. 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.
7.2. In Saeed v Plustrade Ltd [2001] EWCA Civ 2011 it was found the managing agent could not reduce the amount of parking spaces available to residents, nor charge for them, or this would constitute a matter of 'derogation from grant' which the courts could not support.
7.3. 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. Furthermore, the defendant had verbal permission from the property receptionist to park in the space for the entire duration in which these 5 tickets were received.
9. The signs refer to 'Authorised Vehicles Only/Terms of parking without permission', and suggest that by parking without permission, motorists are contractually agreeing to a parking charge of £100. This does not apply as:
9.1. The Defendant's vehicle clearly was 'authorised' as per the lease and the key fob
9.2. The Claimant 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. Parking terms 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).
10. 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. This is not the case:
10.1. In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas no such breach occurred in this case, because there was no valid contract.
10.2. The 'legitimate interest' in enforcing parking rules for retailers and shoppers in Beavis does not apply to these residential circumstances. Especially considering this case applies to 5 tickets over a very short period of time in a gated residential carpark which a key fob is required to access.
11. As established in ParkingEye v Beavis [2015] UKSC 67 the claimant can only claim for actual damages, not fictional amounts. This key-fob access only, residential car park always had spaces all 9 months I lived there. As such even if the claim were true, the claimant would have suffered no actual damages, and to £500 is greater than the amount of rent paid monthly as a tenant for the property (which includes parking).
12. 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.

I believe that the facts stated in this Defence are true.

Coupon-mad

You have ''I'd like to'' which is not formal enough language, and there should be no first person in a defence.

This is rubbish, I am not sure who wrote it but people keep finding it. Remove it! The author clearly didn't understand that the 'contract' in the first line (that has to be disclosed to support the action) is the sign, not the landowner contract!

2. The claimant failed to include a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the Claimants contractual authority to operate there as required by the Claimants Trade Association's Code of Practice B1.1 which says that if you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the ‘Creditor’ within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges. There is no prescribed form for such agreement and it need not necessarily be as part of a contract but it must include the express ability for an operator to recover parking charges on the landowner’s behalf or provide sufficient right to occupy the land in question so that charges can be recovered by the operator directly. This applies whether or not you intend to use the keeper liability provisions.

Don't get me wrong, your defence DOES need bargepole's standard defence point about landowner authority. But not the above mish-mash point!

ellas200

Thanks Coupon-Mad!

I've fixed the "I'd like to" section, and broken point 2 into 2 and 3, including the standard text from bargepole on landowner authority I found in the Newbies thread.

Anything else key I'm missing here?:

Preliminary Matters

1. The Defendant - whose legal name is ‘XXXX XXXX’, not ‘XXXX XXXX’ as stated in the claim - denies that the Claimant is entitled to relief in the sum claimed, or at all.
2. The claimant failed to include a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A).
3. 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.
4. The Particulars of Claim on the N1 Claim Form refer to 'Parking Charges' incurred on [DATES]. 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. 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.
4.1. On the 20th September 2016 a similar private parking
charge claim was struck out by District Judge Cross of St
Albans County Court without a hearing due to their ‘roboclaim’ particulars being
incoherent, failing to comply with CPR. 16.4 and ‘providing no facts that could
give rise to any apparent claim in law.’

5. The Claimant has not complied with the pre-court protocol
5.1. No Letter of Claim was sent to the Defendant and no initial information was sent to
the Defendant.
5.2. According to Para 4 on non-compliance and sanction there can be no reasonable excuse for the Claimant's failure to follow the Pre-action Conduct process.


Statement of defence

6. 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.
7. The secure car parking area contains allocated parking spaces demised to some residents. Entry to the gated parking is by means of a key fob, of a type only issued to residents by the landlord. Any vehicles parked therein are, therefore, de facto authorised to be there.
8. A parking space is made available for the Defendant under the terms of the residential lease.
8.1. 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.
8.2. In Saeed v Plustrade Ltd [2001] EWCA Civ 2011 it was found the managing agent could not reduce the amount of parking spaces available to residents, nor charge for them, or this would constitute a matter of 'derogation from grant' which the courts could not support.
8.3. 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.
9. Furthermore, the defendant had verbal permission from the property receptionist to park in the space for the entire duration in which these 5 tickets were received.
10. The signs refer to 'Authorised Vehicles Only/Terms of parking without permission', and suggest that by parking without permission, motorists are contractually agreeing to a parking charge of £100. This does not apply as:
10.1. The Defendant's vehicle clearly was 'authorised' as per the lease and the key fob
10.2. The Claimant 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. Parking terms 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.
11. 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. This is not the case:
11.1. In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas no such breach occurred in this case, because there was no valid contract.
11.2. The 'legitimate interest' in enforcing parking rules for retailers and shoppers in Beavis does not apply to these residential circumstances. Especially considering this case applies to 5 tickets over a very short period of time in a gated residential carpark which a key fob is required to access.
12. As established in ParkingEye v Beavis [2015] UKSC 67 the claimant can only claim for actual damages, not fictional amounts. This key-fob access only, residential car park always had spaces all 9 months I lived there. As such even if the claim were true, the claimant would have suffered no actual damages, and to £500 is greater than the amount of rent paid monthly as a tenant for the property (which includes parking).
13. 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.

I believe that the facts stated in this Defence are true.