New "Claim Form" papers from CCBC

mrlfc

Dear All,

What are your thoughts on the defence below?

In summary, 2 PCNs were received 3 days apart for a vehicle registered to the defendant parked in a visitor's car park. The defendant was a resident of that premises. There was 20cm of snow the day before the first PCN and thus there was no access to the Residential car parking area due to ungritted and ploughed side roads leading to the residential car park ( there are photos to prove this). Thus the vehicle remained in the visitors area for a further 3 days, when the 2nd PCN was issued.

1. Are there any other points anyone can think of that have been missed?
2. How does the defendant get the case to be heard at their local court?

"IN THE COUNTY COURT

CLAIM No. XXXXXXXX

BETWEEN:

YYY LIMITED (Claimant)

-and-

MR XYZ (Defendant)

DEFENCE STATEMENT

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

2. The facts are that the vehicle, registration XYZXYZ, of which the Defendant is the registered keeper, was parked on the material date in a marked bay in a ‘visitor’s area’, with a valid visitor’s permit displayed. The Defendant was, at the time, a resident of the property in which the visitor’s area lies.

3. The Defendant has access to multiple vehicles, any of which could be seen as a visiting vehicle, including that of the registration XYZXYZ. There was never any declaration made by the Defendant, to the Claimant, about which of the vehicles were classed as visiting vehicles. There is no clear definition of a ‘visitor’ made by the Claimant, and nor was it made clear to the Defendant.

4. Furthermore, from the XYth of Month 2018, there was more than 20cm of snowfall in XYZ location, the level of which had not been seen for over 5 years.
a. This meant that the vehicle could not be taken to the usual residential place of parking as it was not accessible, and dangerous to attempt to do so ***(I have photos/videos to prove the snowfall)****
b. The signage was obscured due to heavy snowfall

5. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

6. 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.

7. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case xxx (** I need to find this out, I have issued an SAR to try and do so**). The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

8. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

I believe the facts contained in this Defence are true.

Coupon-mad

***(I have photos/videos to prove the snowfall)****

should be:

The defendant has photographic evidence of this which will be adduced at the appropriate stage, however the ticketer would of course have been aware of this fact and the Claimant will have their own photographs, so this is not new information.

Where is your point about the fact you have primacy of contract as a resident (see bargepole's other defence linked in the NEWBIES thread). You need to talk about your lease/tenancy agreement not creating any obligation to display a permit or be charged to exercise your existing right to park.

mrlfc

IN THE COUNTY COURT

CLAIM No. XXXXXXXX

BETWEEN:

YYY LIMITED (Claimant)

-and-

MR XYZ (Defendant)

DEFENCE STATEMENT

Preliminary
1. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct.

2. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

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

4. The facts are that the vehicle, registration XYZXYZ, of which the Defendant is the registered keeper, was parked on the material date in a marked bay in a ‘visitor’s area’. The Defendant was, at the time, a resident of the property in which the visitor’s area lies.

5. Further, the visitor’s area is directly accessible via an ‘A’ road – the A??. The ‘residential parking’, i.e. non-visitor parking, is accessible via two single carriage side roads. This fact is highly relevant to this defence statement, as detailed later.

6. The Defendant has access to multiple vehicles, any of which could be used as a visiting vehicle, including that of the registration XYZXYZ. There was never any declaration made by the Defendant, to the Claimant, about which of the vehicles were classed as visiting vehicles, nor was that information requested.
a. Further, there is no clear definition of a ‘visitor’ made by the Claimant, and nor was it made clear to the Defendant at any point, or in any form.

Authority to Park and Primacy of Contract
7. 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.

8. Further, there are no terms within the lease or tenancy agreement requiring lessees to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same. The Defendant avers that the operator’s signs cannot override the existing rights enjoyed by residents and their visitors.
a. 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.

Road Traffic Act 1991
9. From the XYth of Month 2018, there was more than 20cm of snowfall in XYZ location, the level of which had not been seen for over 5 years.
a. This meant that the vehicle could not be taken to the usual residential place of parking as it was not accessible (see point 6), and it would have been dangerous and/or careless to attempt to do so as per the Road Traffic Act 1991 c.40 Part I Section 1 Subsections 2&2A, which states:

Dangerous driving is ‘a person who drives a mechanically propelled vehicle dangerously on a road or other public place is guilty of an offence.’ The meaning is further detailed to state ‘regard shall be had not only to the circumstances of which he could be expected to be aware but also to any circumstances shown to have been within the knowledge of the accused.’

Clearly, any driver attempting to move his/her vehicle with full knowledge of heavy snow on the roads, would be posing a unnecessary risk to him/herself and others.
b. The defendant has photographic evidence of this, which will be adduced at the appropriate stage, however the ticketer would of course been aware of this fact and the Claimant will have their own photographs, so this is not new information.

10. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case xxx (** need to find this out, SAR has been issued to try and do so**). The claim includes an additional £60 for ‘contractual costs’, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

11. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

I believe the facts contained in this Defence are true.

mrlfc

Questions and details on the above.
- The lease details have deliberately not been mentioned as it does state that visitors can park in the visitor’s car park for up to 24 hours. What it does not state is details on this i.e. that a permit must be displayed/that penalties can be applied etc, so I have focused more on these issues. Given that the lease does state the above, should I withdraw Bullets 5&6?
- Have there been any other cases citing adverse weather conditions counting as extenuating circumstances that I can draw on?
- What are your thoughts on using the Road Traffic Act as part of my defence?
- Will the case automatically get allocated to my local court or do I have to request this?
- There were two parking claims given around the same period so, once the case has been allocated to court, is it at that point that I write to the Judge? Will subsequent paperwork tell me who the Judge overseeing the case is?

KeithP

mrlfc wrote: »

- Will the case automatically get allocated to my local court or do I have to request this?

At a later stage in the process, see the mention of Directions Questionnaire in post #10 above, you will be asked which court is your local court and the case will be transferred there.

Coupon-mad

DEFENCE STATEMENT

Not 'statement'. Take a look at bargepole's concise residential defence example in the NEWBIES thread, which gets to the point in less paragraphs.

mrlfc

Thank you @coupon-mad and @KeithP, your help is much appreciated.

I will have a look at Bargepole's post and make some changes, aiming for a more concise statement.

mrlfc

IN THE COUNTY COURT

CLAIM No. XXXXXXXX

BETWEEN:

YYY LIMITED (Claimant)

-and-

MR XYZ (Defendant)

DEFENCE

Preliminary

1. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

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

3. The facts are that the vehicle, registration XYZXYZ, of which the Defendant is the registered keeper, was parked on the material date in a marked bay in a ‘visitor’s area’. The Defendant was, at the time, a resident of the property in which the visitor’s area lies (apartment xxx, xxx rd….etc)

4. Further, the visitor’s area is directly accessible via an ‘A’ road – the AXY. The ‘residential parking’, i.e. non-visitor parking, is accessible via two single carriage side roads. This fact is highly relevant to this defence, as detailed later.

5. The Defendant has access to multiple vehicles, any of which could be used as a visiting vehicle, including that of the registration XYZXYZ. There was never any declaration made by the Defendant as a resident, to the Claimant, about which of his vehicles were classed as visitor vehicles, nor was that information requested.

5.1. Further, there is no clear definition of a ‘visitor’ made by the Claimant, and nor was it made clear to the Defendant at any point, or in any form.

Authority to Park and Primacy of Contract
6. 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.

7. Further, there are no terms within the lease or tenancy agreement requiring lessees to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same. The Defendant avers that the operator’s signs cannot override the existing rights enjoyed by residents and their visitors.

7.1. 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.

Road Traffic Act 1991
8. From the XYth of XY Month 2018, there was more than 20cm of snowfall in XYZ location, the level of which had not been seen for over 5 years.

8.1. This meant that the vehicle could not be taken to the usual residential place of parking as it was not accessible (see point 4), and it would have been dangerous and/or careless to attempt to do so as per the Road Traffic Act 1991 c.40 Part I Section 1 Subsections 2&2A, which states:

Dangerous driving is ‘a person who drives a mechanically propelled vehicle dangerously on a road or other public place is guilty of an offence.’ The meaning is further detailed to state ‘regard shall be had not only to the circumstances of which he could be expected to be aware but also to any circumstances shown to have been within the knowledge of the accused.’

Clearly, any driver attempting to move his/her vehicle with full knowledge of heavy snow on the roads, would be posing a unnecessary risk to him/herself and others.

8.2. The defendant has photographic evidence of this, which will be adduced at the appropriate stage, however the ticketer would of course been aware of this fact and the Claimant will have their own photographs, so this is not new information.

9. 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 Judgment for Claimant is awarded.

10. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

I believe the facts contained in this Defence are true.

mrlfc

I have made some changes to make this more concise. I've tried to be as wide ranging as possible.

Unfortunately, when an appeal was submitted to the PPC, an admission of who was driving the vehicle was made - how does this change my defence, and what precautions do I need to make in court?

Also, what does everyone think about using the road traffic act as a defence?

Thanks again for all your help thus far, I would be grateful if you could advise me if this is 'good to go'.

KeithP

mrlfc wrote: »

Defence (Due 8-2-19)

No, you and I both agreed back on 14th January that:

...you have until 4pm on Wednesday 6th February 2019 to file your Defence.

That's by 4pm tomorrow.