Claim issued over residential parking

Coupon-mad

Remove point #9, it has no place in a defence. You can say more in your Witness Statement, later, when you submit your evidence (case transcripts & photos, and your tenancy agreement).

NEVER repeat what the Claimant's case is, I hate this!

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.'

Don't use your defence to state such things.

State that the spaces in question are well within the estate and need no parking enforcement, and that some lines are faded and some spaces where people have always parked have no lines at all, so there was no reason to consider that any contravention had taken place.

State also that even if the driver was displaying a permit they were only doing so as a courtesy because the Managing Agents just issued them one day and asked everyone to do so, and at no point was anyone warned that these 'permits' in fact masked an onerous obligation which could give rise to a penalty. At no point did residents realise they were having a contract foisted upon them.

At no point did the MA remove the easements and rights of way already granted, and at no point did the MA seek authority to alter the lease of your landlord to impose a parking regime and remove the unfettered parking rights and easements that he/she had already passed to you as tenants.

State near the top that you were there first, and at some point with no consultation, a parking firm was imposed on the residents with no consultation, which everyone naively believed were there to stop trespassers, not look for reasons to penalise genuine residents with no way for the Managing Agents to cancel these.

malihat

Coupon-mad wrote: »

Remove point #9, it has no place in a defence. You can say more in your Witness Statement, later, when you submit your evidence (case transcripts & photos, and your tenancy agreement)....believed were there to stop trespassers, not look for reasons to penalise genuine residents with no way for the Managing Agents to cancel these.

Have just edited to include all of this. Thank you very much for your reply.

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 purchased and moved into the property at xxx in June 2015, and at some point after that, a parking firm was imposed on the residents with no consultation, which everyone naively believed were there to stop trespassers, not look for reasons to penalise genuine residents with no way for the Managing Agents to cancel these penalties.

3. The Defendant's lease has primacy of contract over any restrictions the Claimant places on the land.
3.1. 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.
The parking spaces in question are well within the estate and need no parking enforcement. Some lines are faded and some spaces where residents have always parked have no lines at all, so there was no reason to consider that any contravention had taken place.
3.2. Even if the Defendant was displaying a permit, they were only doing so as a courtesy as the Managing Agents had issued them one day and asked everyone to do so, and at no point was anyone warned that these 'permits' in fact masked an onerous obligation which could give rise to a penalty. At no point did residents realise they were having a contract foisted upon them. At no point did the Managing Agents remove the easements and rights of way already granted, and at no point did the Managing Agents seek authority to alter the lease to impose a parking regime and remove the unfettered parking rights and easements that had already passed to the Defendant as a leaseholder.
3.3. The Defendant avers that the operator’s signs cannot override the existing rights enjoyed by residents. Accordingly it is denied that:
3.3.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant.
3.3.2. there was any obligation (at all) to display a permit; and
3.3.3. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.
3.4. 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.

4. 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).

5. 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.

6. 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.

7. 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.

8. 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.

9. 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

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)

Coupon-mad

Looks fine - except the heading:

Defence Statement

should just be:

DEFENCE

malihat

Thank you for all your replies.
Defence has been sent off. Waiting for DQ now. Have also sent an email to the Managing Agents telling them that our lease has primacy of contract over the parking signs.

Have just noticed that in the Particulars of Claim letter sent by SCS law they have gotten the postcode of the place where we parked wrong. Does that matter?

Coupon-mad

No, I don't think a wrong postcode has any effect - it'll be a typo.

malihat

Coupon-mad wrote: »

No, I don't think a wrong postcode has any effect - it'll be a typo.

Thanks for all your help.

An update:

1. SCS Law has sent us a letter asking to see a copy of our lease. Are we meant to provide this?

2. The Managing Agents have responded to our email. They've said the following:

"Please find attached Memorandum and Articles of Association for xxx which should accompany and be read in association with your lease.

Please read these articles so that you may be satisfied with their content referring to the Directors of xxx having the ability to enhance, by way of contract, anything they see fit that would benefit the running of xxx.

With your permission we will forward your concerns as to the suitability of UKPC and their ability run the car parking areas at xxxxx to the Directors of xxx for their continued approval or otherwise."

The_Deep

Appointing these fraudsters

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

cannot conceivably be in the best interests of the residents. Their very signs in the car park can depress rental and resale amounts.

DoaM

malihat wrote: »

1. SCS Law has sent us a letter asking to see a copy of our lease. Are we meant to provide this?

Any evidence you will rely upon in court must be disclosed to the other party. (AFAIK) The key will be timing ... WHEN you need to share a copy with them.

beamerguy

malihat wrote: »

With your permission we will forward your concerns as to the suitability of UKPC and their ability run the car parking areas at xxxxx to the Directors of xxx for their continued approval or otherwise."

So will UKPC tell them that they are fraudsters and scammers ??

nosferatu1001

Share the excerpts of your lease that are relevant, and state that should they not trust you, they are welcome to buy the lease from the land registry.