Claim issued over residential parking

malihat

We live in a block of flats where unallocated parking is available. This wasn't managed at all when we bought the property over 3 years ago, but the management company gave UKPC control over it not too long afterwards. Anyway, my partner has received a few tickets for not displaying a valid permit (even though the permit was on display) and for not parking in a marked bay (there was no other parking available). He appealed one with a picture of his permit and it was cancelled but he ignored the rest, which I know he shouldn't have done.

Anyway, he got some debt recovery letters and finally a letter from SCS law saying that a claim had been issued for almost 2k and he should get a claim form from the court in due course. However, no claim forms followed and a few weeks ago he received a CCJ. Called the county court up and was told to file a complaint with Royal Mail. Started working on an application to set aside the judgement but a couple of hours later he got an email from the county court saying it was an error on their part and they actually didn't send the claim forms out. Told him the claim would be re-issued and he shouldn't complain to Royal Mail. We were both quite annoyed about this, as the CCJ had stressed both of us out. Anyway, received the claim forms now and working on a defence. Tried to acknowledge service online but getting the following message "A bar has been put in place on this claim. You cannot respond to the claim at this time." so have emailed the court for guidance. Will post the defence soon for advice.

Ralph-y

hi, and welcome





we need to know what your tenancy / lease agreement says re parking ...
bit late now but what did the management company say ?


are you following the guidance in the newbies thread re court ?


Ralph:cool:

malihat

Sorry for disappearing. There was a lot of confusion in correspondence with the county court about whether the same claim will be re-issued or a new claim will be issued but it has all been sorted now.

The lease only says that the management company "will maintain properly repaired and cleansed the private car parking areas." Nothing else about parking, and like I said when we moved in there was no permit system in place. Not sure if it matters, but our flat is located quite deep inside the estate and I don't see why anyone other than residents would park in this area.

My partner hasn't contacted the management company. Would there be any point in doing this now?

Fruitcake

Of course you should complain to the MA, pointing out they are liable for the actions of their agents which is outwith the terms of your lease/AST. Consequently the MA will be included in any court claim and they should make themselves available to attend if the court claim against you is pursued.

You should also complain to your MP about this unregulated scam.

If there is no mention of a parking permit scheme in your lease/AST, why are you displaying one in the first place instead of telling both the MA and the parking scammers that you don't need to as your lease/AST has primacy of contract.
It cannot be varied by a third party after the fact.

NeilCr

Fruitcake wrote: »

If there is no mention of a parking permit scheme in your lease/AST, why are you displaying one in the first place instead of telling both the MA and the parking scammers that you don't need to as your lease/AST has primacy of contract.
It cannot be varied by a third party after the fact.

I am always a bit surprised when I see this question. The vast amount of residents don't have the in depth knowledge on private parking that this forum has - nor do they know what is in their lease in detail. If someone (MA/MC/whoever) says there is a parking scheme with permits and here is yours they accept it and display the permit and get on with their day.

You can argue that they should know - but in the real world that is how it is

OP is your estate "resident owned and run" or is there an outside freeholder? I certainly agree with Fruitcake about contacting the MA - I'd try a softer tack first time (but that's how I work) and I'd ask who the contract with the PPC is with. I'd also be asking on what authority the PPC was introduced to the estate. When you say outside of a bay what does that actually mean? And is there in any "catch all" in your lease - a clause that says the MC can introduce such measures as they deem necessary for the smooth runnng of the estate. Or words to that effect?

The_Deep

The managing agents should be informed that thei chosen firm are fraudsters

https://www.telegraph.co.uk/news/uknews/crime/11858473/Parking-firm-UKPC-admits-faking-tickets-to-fine-drivers.html

and should not be allowed anywhere near a residential complex as their very presence can devalue house prices. Also please bring this to the attention of the Residents' Association. Some reading

https://www.consumeractiongroup.co.uk/forum/showthread.php?377246-UKPC-liable-for-trespass-**SUCCESS**

http://parking-prankster.blogspot.com/2016/11/residential-parking.html

This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of alleged contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors.

Parking Eye, CPM, Smart, and others have already been named and shamed in the House of Commons as have Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each week, hospital car parks and residential complex tickets have been especially mentioned. They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

The problem has become so widespread that MPs have agreed to enact a Bill to regulate these scammers. It has even been suggested that some of these companies have links with organised crime.

Watch the video of the Second Reading and committee stage in the House of Commons recently. MPs have a very low opinion of this industry.

http://parliamentlive.tv/event/index/2f0384f2-eba5-4fff-ab07-cf24b6a22918?in=12:49:41

https://hansard.parliament.uk/commons/2018-07-19/debates/2b90805c-bff8-4707-8bdc-b0bfae5a7ad5/Parking(CodeOfPractice)Bill(FirstSitting)

and complain in the most robust terms to your MP. With a fair wind they will be out of business by in the not too distant future..

malihat

Fruitcake wrote: »

Of course you should complain to the MA, pointing out they are liable for the actions of their agents which is outwith the terms of your lease/AST. Consequently the MA will be included in any court claim and they should make themselves available to attend if the court claim against you is pursued.

Partner is going to give the managing agents a call tomorrow.

NeilCr wrote: »

I am always a bit surprised when I see this question. The vast amount of residents don't have the in depth knowledge on private parking that this forum has - nor do they know what is in their lease in detail. If someone (MA/MC/whoever) says there is a parking scheme with permits and here is yours they accept it and display the permit and get on with their day.

You can argue that they should know - but in the real world that is how it is

OP is your estate "resident owned and run" or is there an outside freeholder? I certainly agree with Fruitcake about contacting the MA - I'd try a softer tack first time (but that's how I work) and I'd ask who the contract with the PPC is with. I'd also be asking on what authority the PPC was introduced to the estate. When you say outside of a bay what does that actually mean? And is there in any "catch all" in your lease - a clause that says the MC can introduce such measures as they deem necessary for the smooth runnng of the estate. Or words to that effect?

Yep, people definitely aren't aware of this, and the neighbours have actually been paying their PCNs.

There is an outside freeholder. There are painted bays and lines on the road where you can park and my partner parked outside of these, but the car didn't block anything/anyone and wasn't in the way.

The only thing I can find to that effect is this: "The manager will make and enforce such regulations as it may in its absolute discretion consider necessary and desirable to enable all residents on the estate to enjoy the communal lands."

malihat

This is the defence my partner has prepared:

In the County Court

Claim No: xxxx

BETWEEN:

XXX (Claimant)

and

XXXXXX (Defendant)

Defence Statement

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The Defendant's lease has primacy of contract over any restrictions the Claimant places on the land.
2.1. There are no terms within the Defendant's lease requiring lessees to display parking permits or park in a marked bay, or to pay penalties to third parties, such as the Claimant, for non-display of same and there is a large body of case law which establishes this.
In Pace v Mr N [2016] C6GF14F0 [2016] 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.
2.2. The Claimant states, in their Particulars of Claim, that ‘parking at each of the specified sites was offered subject to the Claimant’s terms and conditions, which were clearly displayed on signage throughout the site. These terms and conditions were accepted by the driver of the vehicle(s) when they parked their vehicle(s) at the specified sites ('the agreement’) and the Defendant was therefore bound by the same in their capacity as driver of the vehicle(s) and/or registered keeper. It was a term of the agreement that in the event of breach of the terms of parking, a Parking Charge Notice ('PCN') would be issued for a sum & be payable within 28 days.' The Defendant avers that the operator’s signs cannot override the existing rights enjoyed by residents. Accordingly it is denied that:
2.2.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant
2.2.2. there was any obligation (at all) to display a permit; and
2.2.3. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.
2.3. It is further denied that the signage is clearly displayed. The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself.

3. 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 of way and parking terms under a new and onerous 'permit' cannot be re-offered as a contract by a third party. This interferes with the terms of lease, of which this parking firm is not a party to, nor will they have bothered to check for any rights or easements that their regime will interfere with (the Claimant is put to strict proof).

4. 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.

5. The Claimant, or their legal representatives, has added an additional sum of £60 or £40 to each 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.

6. 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 alleged contractual parking charges of £xxx - 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.

7. 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.

8. 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 cease wasting the court's time by bringing beleaguered residents to court under excuse of a contractual breach that cannot lawfully exist.

Additionally

9. I, XXXXX, am not an individual of legal background, I am a Science teacher in a state secondary school.

10. While I have spent significant time online researching the particulars of the case and tried to ensure that I have followed the etiquette of legal writing, I apologise in advance if I have made a mistake in my communication, structure or clarity of the points I have made.


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


………………………………………………………. (Defendant)

……………………… (Date)

malihat

Any feedback would be greatly appreciated.

KeithP

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

1) Print your Defence.
2) Sign it and date it.
3) Scan the signed document back in and save it as a pdf.
4) Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
5) 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'.
6) Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
7) Wait for your Directions Questionnaire and then re-read post #2 of the NEWBIES thread to find out exactly what to do with it.

The_Deep

Partner is going to give the managing agents a call tomorrow.

Never deal with matters such as this, which are likely to go to court, on the telephone. Put everything in a letter, judges love paper trails.

If your husband has already made the call, send the MA a record of the conversation and ask them whether they agree with what was said.