UK CPM Court Claim Own Bay Parking

The_Deep

I love 12.1

Coupon-mad

alanta22 wrote: »

IN THE COUNTY COURT
Claim No.: XXXXXXXX
Between
UK Car Park Management
(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 Particulars of Claim on the N1 Claim Form refer to 'Parking Charge(s)' incurred on 24/07/2017 and 28/07/2017. 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. The Particulars refer to the material location as 'land at XXX '. 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.

4. The private car parking area contains allocated parking spaces demised to all residents. Entry to the parking area is by means of a key fob, of a type only issued to residents. Any vehicles parked therein are, therefore, de facto authorised to be there.

5. Under the terms of the Defendant's lease, a number of references are made to conditions of parking motor vehicles.
The Lease states that the property is a flat, there is an allocated parking space, and it is confirmed on the registered plan. In Interpretations, par 1.1 defines the allocated “parking space” as the parking space edged red and numbered 76 on plan2. Letting par 3.2 states that the property is let together with the rights set out in Schedule1. Schedule1.11 states The right to park one vehicle not exceeding two and one half tonnes gross unladen weight in the Parking Space. The copy of the Lease is attached.

5.1. 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.

6. 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.

7. 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. To the best of the Defendant’s knowledge, the residents have not passed such vote. Therefore, the Claimant have had no legal rights to impose any parking permit scheme on the land at XXXXX.

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 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 circumstances. Therefore, this case can be distinguished from Beavis on the facts and circumstances.

10. The Claimant, or their legal representatives, has added an additional sum of £150.96 to the original £200 parking charges, for which no explanation or justification has been provided.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.

11. 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 £350.96, the Defendant avers that this inflation of the considered amount is a gross abuse of process.

12. 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.

12.1. 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)

UK Car Park Management
(Claimant)

-and-


(Defendant)

The above is a very good example of a residential defence.

alanta22

Thanks for comments! I will send it as it is then. One more question about the Defence. Earlier in this thread I was told to submit the Defence online. However, Bargepole in one of his posts said that is't best to send it to the Court by post. What the right thing to do then? and shall I send a copy of the Lease as well?

DoaM

Do both?

PS - personal preference but I would use para rather than par as a reference for paragraph.

The_Deep

Sounds good, however, I don't think I can efficiently word such email for them to take any actions in my favour

I am sure that you can. Unless people take a stand against these pests in residential car parks, MAs will continue to employ them. Only last week, the new MA at one of my flats expressed an interest in engaging CPM.

KeithP

alanta22 wrote: »

One more question about the Defence. Earlier in this thread I was told to submit the Defence online. However, Bargepole in one of his posts said that is't best to send it to the Court by post. What the right thing to do then? and shall I send a copy of the Lease as well?

I say send it by email - but I would say that - I wrote post #2 above.

However you send it, send nothing with your Defence.

Evidence, perhaps including your lease, comes at a later stage - after the case is assigned to your local court.

alanta22

KeithP wrote: »

I say send it by email - but I would say that - I wrote post #2 above.

However you send it, send nothing with your Defence.

Evidence, perhaps including your lease, comes at a later stage - after the case is assigned to your local court.

Ok, i will delete "The copy of the lease is attached" from my Defence then

Thank you!