PCM CCJ Residential Parking Set Aside Advice

Siee

I have outlined a brief defence (using your post in the Newbies thread as a guide) earlier in the thread as I hope to challenge them on primacy of contract.
I have applied for Help With Fees and have a number that I will put on my form but I haven't been told if I qualify for any reduced fees yet.
Thank you for the advice on taking it to my local court! I didn't think about that! I just want to make sure I have everything in the correct and proper order before I go

Siee

Hello again everyone.

Thanks to all your help I was granted the set aside and the case is to be heard in less than three weeks. The conditions of the set aside were to present my defence within 14 days which I did, using the virtually same defence I listed earlier based on the template posted in the newbies thread.

For the hearing, witness statements are to be presented within 14 days of the hearing and Gladstones have provided me with theirs. I have yet to reply and was wondering if I could ask for help again?

My main arguments are:

1) Primacy of contract: my AST allows to park with no mention of permits or penalty charges for non compliance.

2) the parking enforcement didn't start until a month after I moved in. They didn't send me a letter informing of such change or a permit until 4 months later, after the three parking charges were issued. They only sent this reluctantly after I kept nagging my landlord to sort it out.

Unfortunately in their witness statement, which I will post below shortly, they have provided a signed contract with the managing agent of the property and have pointed to a section in my AST that complies to my follow the obligations of the head lease. I have not seen what these obligations are and have not seen a copy despite asking for it on several occasions.

Would anyone be able to help me tackle this for my witness statement due next week? I'm not sure whether my argument of primacy of contract will still apply with this new information.

Siee

The Defence

4. The Defendant has been issued with the above charges owing to the fact his vehicle was parked
in a manner that did not adhere to the terms and conditions of the signage contained on site,
namely that he was parked on ‘Liberty Rise’ without a relevant permit.
5. I refer to a copy of the signage from the Land which sets out the terms of parking and states:
 “Vehicles must be parked with a valid parking permit fully displayed within the windscreen
and parked wholly within the confines of a marked bay appropriate for the permit on
display; or,
 Vehicles must be parked with a valid 24 hour maximum stay scratch card fully displayed
within the windscreen and parked wholly within the confines of a marked visitor V bay”.

Nature of the Offences / Breach of Contract:

6. The attached photographs taken of the Defendant’s vehicle confirm that at the time of the above
incidents, there was no valid permit on display in his vehicle. As such parking could not be
validated and the charges were correctly issued to him.
7. The Defendant points to their residency of the development in question as grounds for the claim
to be dismissed. It should be noted that the Defendant’s status as a resident is not disputed and
equally, it is submitted that one’s residency is irrelevant to the matters at hand and the basis of
the claim.
8. Indeed, it is the manner in which the vehicle had parked that forms the crux of the case. The
terms and conditions for the use of the land are unambiguously clear and provide no concessions
for certain types of motorists. That is to say, the terms are applied equally to all users of the land,
including residents.
9. It is noted that the Defendant has provided a copy of his tenancy agreement to support his
Defence. Having reviewed the same, I would like to highlight the following sections:
a. Section 15 “cars and parking” namely 15.1 “to park in the car parking space, garage or
driveway allocated, if applicable”.
10. The fact that the Defendant has allocated parking is not disputed.
a. Section 19 “Head Lease” which at 19.1 states “to comply with the obligations of the Head
Lease as far as these relate to the occupier of the property”.
11. The Defendant has not provided a copy of the Head Lease however I would like to highlight that
any further obligations as imposed by the Landlord were subject to compliance by all residents
(section 19). Therefore it is not agreed that the Defendant was not subject to the parking
regulations as bought in by the managing agent of the Land, enforceable by my Company.
12. Being a resident did not exempt the Defendant from complying with the terms of the parking
regulations. The onus was on the driver to ensure compliance with the terms and conditions for the use of the land; therefore, if one was unable to comply with these terms (for whatever reason) and wished to avoid a charge, alternative parking should have been sought immediately.
13. It is not agreed that the Defendant was not in breach of contract as per the terms of the signage.
The rules of interpretation require simply that the parties knew of their obligations to one-
another. The Defendant was offered to use the Land and thereafter either follow the rules and
park for free or in breach of the rules agree to pay £100. The rules here just so happen to be as
set out above at paragraph 5 above.
14. In the case of Alder v Moore (1961) The court concluded that one should consider the obligations
imposed by the agreement, not the terminology used i.e. the agreement’s substance, not form.
15. The principles in this case are the same as in the Parking Eye case, save that in the Parking Eye
case, as the particular parking rules were different, the rule breached was that motorists must
leave the site within 2 hours, whereas here the rule was as set out above. In that case it was
accepted as an established principle that a valid contract can be made by an offer in the form of
the terms and conditions set out on the sign, and accepted by the driver’s actions as prescribed
therein.
16. The Court may conclude that the Land is managed as follows; the Claimant grants a contractual
license to all; this license allows anyone permission to be on the Land. This is inferred by the
nature of the land and the lack of any general prohibition of entry on the signage. In this regard,
the Defendant (as were all the motorists) was offered to comply with the normal conditions (as
clear on the sign), or park otherwise than in accordance with the normal conditions and incur a
£100 charge. The acceptance was at the point the Defendant decided to park, having read the
sign, and his consideration was the promise to pay £100 for the privilege of parking outside the
normal conditions. The Claimant’s consideration is the provision of parking services.
17. I refer to the Court to Judge Hegarty’s comments in ParkingEye v Somerfield (2011) that “If this is
the price payable for the privilege, it does not seem to me that it can be regarded as a penalty,
even though it is substantial and obviously intended to discourage motorists from leaving their
cars on the car park”.
18. Alternatively; it could be concluded that, any person can use the Land provided they do not
exceed the licensed activity as set out on the sign and in failing to comply with the license
granted to them, they in turn agree to the Claimant’s entirely distinct offer from that license
which is ‘to park otherwise than in accordance with the license for a charge of £100’.
19. The signage at the site is clearly visible and the information on the signage informs the driver of
the parking conditions at the location. Signage is prominent throughout the parking area.
Signage location, size, content and font has been audited and approved by the International
Parking Community (“the IPC”). The site plan attached to this statement at exhibit “GSL1”
evidences that there are sufficient signs on the Relevant Land, these are marked by way of the
blue ‘x’ as shown on the plan attached. I submit that the terms of parking were readily made
available to the Defendant.
20. It is the driver’s responsibility, to check for signage, check the legality and obtain any
authorisation for parking before leaving their vehicle. The signage on site is the contractual
document. By parking in the manner in which the Defendant did, the charges were properly
incurred.

Charge is excessive/No loss suffered:

21. The charge sought is industry standard and is set at a rate so as to suitably satisfy my Company’s
legitimate interest. In the case of ParkingEye v Beavis 2015 it was held that an £85.00 charge was
neither extravagant nor unconscionable. The Accredited Trade Associations of which parking
operators must be a member in order to apply for DVLA data prescribe a maximum charge of
£100. My Company’s charges are within this level. The charge is not, therefore, excessive.
22. The recent decision of the Supreme Court also made it clear that the charges are not penal nor
do they have to be reflective of the parking operator’s loss. Furthermore, they are they are
entitled to be at a level that provides a deterrent effect.
23. Whilst the Defendant is of the view that the charges in this matter are excessive, his opinion
does not prevent his liability towards payment of the same. Furthermore the original charges
that was issued on the day of the incident provided the Defendant with the opportunity to pay a
reduced charge with regards to settlement. This was open to the Defendant for a period of 14
days, no response was received from the Defendant. The Defendant may feel as though the
charge have been “inflated”, in light of the above it is clear that the charges have correctly been
issued and as a result of the Defendant failing to address the same sooner, the charges have
rightly so increased.

The Current Debt

24. In view of the Defendant not paying the charge within the 28 days allowed they are in breach of
the contract. Breach of contract entitles the innocent party to damages as of right in addition to
the parking charge incurred.
25. My Company is an Accredited Operator of the International Parking Community (IPC) who
prescribes a maximum charge of £100. The Code of Practice states:
"Parking charges must not exceed £100 unless agreed in advance with the IPC. Where
there is a prospect of additional charges, reference should be made to this where
appropriate on the signage and/ or other documentation.
Where a parking charge becomes overdue a reasonable sum may be added. This sum
must not exceed £60 (inclusive of VAT where applicable) unless Court Proceedings have
been initiated."
26. In view of the Defendant not paying the charge within the initial 28 days allowed or the further
28 days allowed after the Notice to Keeper has been sent, the parking charge has become
overdue and a reasonable sum of £60 has been added.
27. The Sign states the prescribed charge for failing to comply with the terms is £100, however it
also specifies “where a parking charge becomes due an application may be made to the DVLA for
the keeper’s details. Non-payment will result in additional charges which will be added to the
value of the charge and for which the driver will be liable on an indemnity basis”. Further the
Letter Before Claim also made it clear the debt may increase in respect of costs and interest if a
claim had to be issued. Due to the Defendant not paying the charge the matter was passed to myCompany's legal representatives, Gladstones Solicitors Ltd, who were instructed to commence
legal proceedings. The potential additional costs mentioned above are now sought.
28. The debt has, as a result of this referral risen as my Company’s staff have spent time and
material in facilitating the recovery of this debt. This time could have been better spent on other
elements of my Company’s business. My Company believes the costs associated with such time
spent were incurred naturally as a direct result of the Defendant’s breach and as such asks that
this element of the claim be awarded as a damage. The costs claimed are a pre-determined and
nominal contribution to the actual losses. Alternatively, my Company does have a right to costs
pursuant to the sign (i.e. the contract).

Coupon-mad

Firstly search the forum for these, to read similar threads about that template WS:

Gladstones template WS

and/or

primacy witness statement

as keywords, changing the ADVANCED search to 'SHOW RESULTS AS POSTS'.

And have they included the Head Lease they referred to? If not, it means nothing as the Head lease might say that tenants and leaseholders have an exclusive right to park!

Siee

Thanks Coupon-mad.


No, they have not provided the head lease, only a signed piece of paper giving them authority to put in parking controls by the management group which I have only just seen.


I have done a witness statement to counter theirs and to include major points of defence I set above. I will be evidencing my tenancy agreement, inventory check, two supportive case laws, protection of freedoms act + receipts for costs etc..


Would you mind checking my witness statement below?



I WILL SAY AS FOLLOWS:

1. In October 2016, I began my tenancy at a flat that would last for a period of a year with my tenancy ending in October 2017.

2. The vehicle, which I am the registered keeper of, in each of the parking charges is parked in a bay allocated to the Flat, which is located underneath the building. I was a resident at the address each time the parking charge was issued.

3. The underground car parking area contains allocated parking spaces demised to some residents and an outdoor parking area containing allocated spaces for residents and allocated spaces for visitors. Entry to the underground parking 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.

4. At the start of my tenancy, a garage key fob was issued to me as evidenced by the pre-tenancy inventory check. No parking permits were provided.

5. There was no parking scheme at the start of my tenancy. I did not receive any notice or warning of when the parking scheme was to commence, nor did I receive any notification that the terms of my tenancy agreement were to change.

PRIMACY OF CONTRACT

6. There are no terms within the Assured Shorthold Tenancy Agreement requiring tenants to pay additional charges for parking permits or pay charges for not displaying a permit. As per my tenancy agreement:

i. Schedule 1
ii. 3. Further Charges to be paid by the Tenant
iii. 3.2. To pay all charges falling due for the following services used during the Tenancy and to pay the proportion of any standing charge for those services which reflects the period of time that this Agreement was in force:
iv. Gas;
v. Water including sewerage and other environmental services;
vi. Electricity;
vii. Any other fuel charges;
viii. Telecommunications.

7. There are no terms within the tenancy agreement requiring tenants to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same. Under the terms of my tenancy agreement:

i. Schedule 1
ii. 15 Cars and Parking
iii. 15.1. To park in the car parking space, garage or driveway allocated to the Property, if applicable.
iv. 15.2. To keep any garage, driveway, or parking space free of oil and to pay for the removal and cleaning of any spillage caused by a vehicle of the Tenant, his family, contractors or visitors.
v. 15.3. To remove all vehicles belonging to the Tenant, his family or visitors at the end of the Tenancy.
vi. 15.4. To park any vehicle at the Property that is not in road worthy condition and fully taxed.

8. At all times, I parked in accordance with the terms granted by the tenancy agreement. The erection of the Claimant’s signage and the purported contractual terms conveyed therein, are incapable of binding me in any way and their existence does not constitute a legally valid variation of the terms of the tenancy agreement. Accordingly, I deny that I have breached any contractual terms whether express, implied, or by conduct.

9. I do not agree with the Claimant that my residency is irrelevant to the matter at hand. As a resident, my vehicle was clearly authorised and parked in accordance with the conditions provided by my tenancy agreement and I rely on primacy of contract.

10. I aver that the Claimant’s signs cannot override my existing rights or that parking easements cannot retrospectively and unilaterally be restricted where provided for within the tenancy agreement.

11. The Claimant draws attention to section 19 but omits that a copy of obligations is required in Schedule 5 of the tenancy agreement. There are no obligations relating to changes in parking easements in Schedule 5. As per the tenancy agreement:

i. Schedule 1
ii. 19. Head Lease (if any)
iii. 19.1. To comply with the obligations of the Head Lease as far as these relate to the occupier of the Property, provided a copy of the obligations is attached to or included within (in Schedule 5) this Agreement and to reimburse the Landlord for any costs caused by any breach of such obligations.

12. I have not received the head lease so I am not obliged to comply with any new conditions or terms without notice. No prior notice was given to me by the Landlord, the Claimant, or any Superior Landlord regarding the changes of the parking conditions. As per the tenancy agreement:

i. The Main Terms of the Tenancy
ii. Definitions & Interpretation
iii. 7.16 “Head Lease” or “Superior Lease” means the document which sets out the promises the Landlord has made to the Superior Landlord. The promises contained in this Head Lease will bind the tenant if he has prior knowledge of those promises.

13. I do not agree that my residency did not exempt me from complying from the terms of the parking regulations. I aver that I have primacy of contract and the Claimant, as a 3rd party, cannot introduce terms to an existing contract between myself and the landlord of the property.

14. I would like to draw attention to the following judgments:
i. Pace v Mr N [2016] C6GF14F0 whereby the tenancy agreement provided the right to park on the estate and did not say “on condition that you display a permit”.
ii. Link Parking Ltd v Parkinson [2016] C7GF50J7 whereby the management company could not interfere with the enjoyment of the property or charge Parkinson for the usage via a parking charge or otherwise. It would have required a variation of the original lease and no such variation was evidenced.

15. I reject the Claimant’s consideration of the provision of parking services when they have already been provided in the tenancy agreement without additional terms. As such, no contract has been formed between me and the Claimant.

16. The Claimant has failed to produce any evidence to demonstrate that Residential Management Group or themselves have any right to impose this scheme without amendment to my tenancy agreement.

17. The Claimant has failed to produce any evidence to demonstrate that notification was given nor did I receive any notice by my landlord or superior landlord that the terms of my tenancy agreement were to change in respect of parking easements and as a result, I cannot be bound by obligations I was not aware of.

18. As a managing agent, Residential Management Group cannot override the existing contract I have with the landlord. I have received no prior notice that further terms and conditions were to be added to my tenancy agreement and I cannot be bound by promises or obligations made under the head lease without prior knowledge.

SIGNAGE

19. I do not agree that the comments Judge Hergarty made in regards to ParkingEye v Somerfield (2011) are relevant to this case. This case involves residential, not commercial, parking and as parking was provided under the conditions of the tenancy agreement, they cannot be considered a privilege. There can be no advantage to discouraging residents from parking in their own allocated car parking space.

20. The signage is determinative of the contract between driver and parking company, if one is held to exist. Alder v Moore (1961) is an authority which, by and large, has been superseded by the Supreme Court judgment in Parking Eye v Beavis on penalty charges. Even were that not to be the case, it is averred that the Alder matter can be distinguished, relating as it did to a commercial policy of insurance where to allow the Defendant to receive his insurance payment and pay no liquidated damages would have resulted in unjust enrichment.

21. The Claimant refers to signage but makes no mention of when the signage was erected. The signs were not in place at the start of my tenancy agreement and at all times I was parked in conditions set out in my tenancy agreement.

NO PERMIT RECEIVED

22. Should the Court find that Primacy of Contract has not been found in my favour, I would like to draw attention to the fact that no permit was issued by the Claimant when parking enforcement began.

23. The Claimant was notified on numerous occasions after receiving the first parking charge that no permit was received and no prior notice had been given.

24. It was not until after all three parking charges were received that the Claimant sent a parking permit. The Claimant knew I had not received a parking permit yet has continued to pursue these parking charges.

CHARGE IS EXCESSIVE

25. The Claimant refers to 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 my 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.

26. The Claimant has added additional sums of £60 for each of the three original £100 parking charges, for which they have referenced the IPC Code of Practice. As they are operators under IPC, they are required to follow the Protection of Freedoms Act 2012.

27. 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 per parking charge in this instance. The Claimant confirms this is the maximum charge that is allowed by being a member of the Accredited trade Association. 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.

28. The additional sum of £60 per parking charge was not added by the Claimant or their representatives but by an unauthorised 3rd party debt collector. The Claimant has knowingly provided my personal and private information against my express consent.



COSTS

29. I do not agree that it is myself to blame that the Claimant has spent time and material in facilitating the recovery of this debt. The Claimant has been made aware of my primacy of contract in the original appeal and has been advised that no variations to my tenancy agreement were sent and have still not been evidenced. I have advised the Claimant I had received no prior notice nor was I sent a permit and yet they have decided to involve the Courts rather than acting with reasonableness.

30. As ordered by Judge John Smith, the costs of the set aside of the original claim are reserved to this hearing. I will therefore be claiming costs of £255 of the set aside application fee plus costs of time spent at both the set aside and the upcoming hearing.

STATEMENT OF TRUTH

I believe that the facts stated in this witness statement are true.

Coupon-mad

I would add somewhere that it is ironic and surely fatal to the Claimant's case against a resident (with a far more solid basis of interest in the land than the parking firm do), that they criticise you for not supplying a copy of 'Head Lease' terms you've never seen and thus can't be bound by under any interpretation of the Consumer Rights Act 2015, and yet have failed to put in evidence the Head Lease themselves.

Siee

Thank you. Unfortunately I had to hand it in a couple of days before your suggestion but I will take it as part of my notes to bring in.

I added a couple of sections to the above, namely discussing Pace v Mr N on appeal and that leases should be varied and procedure correctly followed.

You make a good point, if I haven't seen it, how can I be bound by it! (also noting how the claimant ignores a sentence in the AST that states I am only bound by obligations if it is included in in sch 5 of the tenancy agreement, which it isn't).

The hearing is in a couple of days so I will let you know the outcome.

Coupon-mad

Pace v Mr N wasn't an appeal; it's just a county court case and not persuasive.

Also take UKCPM v Niven x 3 copies to the hearing in your bundle as well, as that explains the primacy of contract enjoyed by tenants, very well (again only a county court first instance decision but a goodie):

https://www.dropbox.com/preview/NIVEN%20-%20%20CLAIM%20C7GF81FK%20Judgment%20UKCPM%20v%20NIVEN%20-%20Primacy%20of%20Tenancy%20agreement.pdf?

Nor sure if that link works, looks a bit long?

Siee

OK I will have a read through. Unfortunately the link doesn't work, it takes me to my Dropbox and says the folder doesn't exist.

The_Deep

What a waste of everyone's time, it must be costing the PPC a fortune, and I cannot see how they have a glimmer of a chance of winning their claim for BOC.

Clearly Beavis does not apply, and your AST takes primacy. As for the head lease, FWIIW, I have in forty years letting proprerty supplied any of my tenants with a copy of the head lease, AFAIAA, it is not necessary.

I hope you have counter-claimed for interference with your right to peaceful enjoyment of your property, or at the very least are considering a claim for unreasonable behaviour.

What part has the MA/former landlord played in all this?

Finally, have you read this?

https://forums.moneysavingexpert.com/discussion/6014081/abuse-of-process-district-judge-tells-bwlegal

it might be useful if the dirty shirt has over-claimed.