Letter of Claim from BW Legal / Norwich Traffic Control

Coupon-mad

Everything can be used against scammers in a defence.

slash1551

Hi @Coupon-mad - hopefully the below is the defence you were referring to? I've amended it to the specifics of this case. (Any resident referral is now "lessee", date, location etc)

How does it look now?

IN THE COUNTY COURT

Claim No.: XXXXXXXX

Between

[NAME OF PARKING COMPANY]
(Claimant)

-and-


[NAME OF DEFENDANT]
(Defendant)


DEFENCE

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

2. The facts are that the vehicle, registration XXXXXXXXX, of which the Defendant is the registered keeper, was parked on the material date XXXXXXXXX, at the material location XXXXXXXXX, in bay marked "2".

3. It is admitted that, at all material times, the Defendant was the registered keeper of the XXX with vehicle registration number XXX which is the subject of these proceedings.

4. The Particulars of Claim on the N1 Claim Form refer to a 'Parking Charge Notice' incurred on XXXXXXXXX. 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.

5. The Particulars refer to the material location as XXXXXXXXX. The Defendant has, since [23/09/2016], held legal title under the terms of a lease, at that location. At some point, the managing agents contracted with the Claimant company to enforce parking conditions at the estate.

6. The car parking area contains allocated parking spaces. Entry to the parking spaces is by means of a parking post secured with a padlock, of a type only issued to lessees. Any vehicles parked therein are, therefore, de facto authorised to be there.

7. Under the terms of the Defendant's lease, 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.

8. The Defendant, at all material times, parked in accordance with the terms granted by the lease. The erection of the Claimant's signage, and the purported contractual terms conveyed therein, are incapable of binding the Defendant in any way, and their existence does not constitute a legally valid variation of the terms of the lease. Accordingly, the Defendant denies having breached any contractual terms whether express, implied, or by conduct.

9. 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 is clearly a nonsense, since if there is no permission, there is no offer, and therefore no contract.

9.1. 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 tortuous interference, being a private nuisance to lessees.

9.2. 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 lessees, as is on offer to the general public and trespassers. However, lessees 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, 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.

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. 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.

11. The Claimant, or their legal representatives, has added an additional sum of £60 to the 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 Judgement for Claimant is awarded.

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. 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 - but the amount claimed on the claim form is inexplicably £241.90, the Defendant avers that this inflation of the considered amount is a gross abuse of process.

13. 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.

13.1. 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 lessees 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 lessees 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)

slash1551

Does anyone have any feedback on the above defence?

nosferatu1001

You shoudl admit or deny the vehicle was parked in the place alleged - or at least confirm WHEre It was

It also needs to be said who drove, in so much as it needs to be said that he vehicle was parked with permission of the lessor at least.
If you choose to defend as driver - idont know if this is an option - then para 9 is removed, as POFA no longer applies.

slash1551

I have changed it a bit regarding your first point (please let me know if I should point #2 by itself or use point #2 / #3).

I'll wait for further advice whether to defend as driver or keeper.

nosferatu1001

You have 2 "2"s, and 3 is a repeat of the first 2. State IT WAS IN BAY MARKED X as this is the bay in question, no? Dont give them any chance to say it was elsewhere in the car park.

slash1551

Done. Anything else?

Do I need to include counter-claim details in this as well?

Umkomaas

Do I need to include counter-claim details in this as well?

Yes, it's with the defence (second section, or a separate sheet attached) a counterclaim is made. You also have to pay the court fee at the same time.

What are you counterclaiming for? How much for?

I'd suggest you let a court expert have a chance of viewing the set out of your counterclaim first, before firing it off.

Coupon-mad

slash1551 wrote: »

Do I need to include counter-claim details in this as well?

Almost no poster has a counter claim worth trying. Waste of time, like here:

http://forums.pepipoo.com/index.php?showtopic=122492&st=80&start=80

Misconceived and wasted the OP's money on a counterclaim they were steered into, like the template defence they grabbed (even though they had a perfectly good and winnable case anyway). Don't even look at the defence used there - no grasping at straws - I am just showing you what I consider to be a bad counterclaim example.

You will get a chance to reclaim your costs if you win anyway. No counterclaim.

slash1551

What are you counterclaiming for? How much for?

I'd suggest you let a court expert have a chance of viewing the set out of your counterclaim first, before firing it off.

It would be for the data breach as they had no reasonable cause to access my details, and then pass on to third parties. I have read cases on this forum (and others) claims ranging from £250 - £750 per breach.

You will get a chance to reclaim your costs if you win anyway. No counterclaim.

Ok fine, happy to be steered by the experts! I won't bother with the counterclaim.

Shall I get the defence submitted as it is then?