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County court claim from Parking and property maintenance and BW legal (own space)
rotster
Posts: 16 Forumite
Hi,
apologies for the super-long first post. Have read lots of threads and tried to post all the salient information here in one post.
I have been issues with a claim from the County Court Business Centre (and have returned the acknowledgement of service) for a PCN that was issued to my car by Parking & Property Maintenance (represented by BW Legal) when parked in my own allocated parking space (the permit was not displayed at the time).
After receiving the initial ticket, I wrote to Parking & Property Maintenance confirming that it was my vehicle, my space and that I had no intention of paying a fine. I ignored all subsequent communications from P&PM and BW Legal.
The particulars of claim state:
“the claimants claim is for the sum of £100 being monies due from the defendant to the claimant is respect of a Parking Charge Notice (PCN) issues on [issue date] at [time] at [development]. The PCN relates to [car make] under registration [registration]. The terms of the PCN allowed the defendant 28 days from the issue date to pay the PCN, but the defendant has failed to do so. Despite demand having been made, the defendant has failed to settle their outstanding liability. The claims also includes statutory interest pursuant to section 69 of the County Courts Act 1984 at a rate of 8% per annum a daily rate of 0.02 from [issue date] being an amount of £[amount]. The Claimant also claims £60.00 contractual costs pursuant to PCN terms and condition”
I own the property in question (leasehold). The allocated parking space is included in the lease.
I moved in over ten years ago. The parking enforcement scheme was introduced by the management company in Summer last year. In introducing the scheme, the management company stated:
“…we are inundated with complaints about parking throughout the development and abusing ‘VISITOR’ bays; even after a number of requests to abide by the lease we are still having residents breach their lease. Therefore as residents failed to comply we will be enforcing parking enforcement to enforce the lease and areas affected. Failure to park in your allocated bay carparking in the visitor bays will result in your receiving a parking ticket and having to pay a fine. The ticket is legally enforceable as owners will have signed a lease when you purchased or moved into your property.”
My lease contains nothing about a requirement to display a parking permit. I was, at all times, behaving in accordance with my lease. Worth also noting that in all the time I have lived here (12 years), I've only on two occasions experiences someone parking in my space.
The only clauses in the lease relating to the parking space are the usual clauses about:
1. the space only including the macadam surface
2. maintaining the space
3. not using the parking space for anything other than a private car, not carrying out major maintenance to a vehicle in the space, not storing petrol on the space (other than that in the car)
The lease grants me the right to “peaceably hold and enjoy the property…without any interruption by the Developer”. (Covenants by the developer)
The lease does grant the Management Company the ‘Power to impose or vary regulations’:
“The company may at any time…impose such regulations of general application regarding the Development or the flats and parking spaces therein as it may in its absolute discretion think fit in addition to or in place of the Regulations (but so that any such regulations shall not conflict with this Lease) and the Company shall have the power in its absolute discretion to revoke amend or add to such regulations or any additions thereto or substitutions thereof’.
None of the regulations listed in the lease relate to parking. No indication was given by the management company that the introduction of parking enforcement was intended to formally introduce a new regulation and, in any case, I think this would not be permissible in this case as it would conflict with the Lease, specifically the covenant by the developer to allow the leaseholder to ‘peaceably hold and enjoy the property…without any interruption by the Developer’.
Having looked at lots of other threads and seen the great advice (many thanks!), it seems my defence is one of primacy of contract, with possibly a second defence relating to poor signage. Having looked at a few threads I have drafted the following defence (mostly taking extracts from others):
--
IN THE COUNTY COURT
Claim No.: XXXXXXXX
Between
Parking and Property management Ltd (Claimant) -and- [Rotster] (Defendant)
DEFENCE
Background
1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
2. The Particulars of Claim lack specificity. They refer to a ‘Parking Charge Notice [PCN]' incurred on [DATE] at [TIME]. 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. Accordingly, the Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.
3. It is admitted that at all material times the Defendant is the registered keeper of vehicle registration mark XXZZZ which is the subject of these proceedings.
4. It is admitted that on [date] the Defendant's vehicle was parked at [location].
5. 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 Particulars refer to the material location as '[LOCATION]'. The Defendant has, since 2007, held legal title under the terms of a lease, to Flat No. XX at that location.
7. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms. The lease terms provide the right to park a vehicle in the relevant allocated bay. A copy of the lease will be provided to the Court.
8. 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.
9. Parking ‘enforcement’ was only introduced at the property in the Summer of 2018.
10. In introducing ‘parking enforcement’, the management company at the material location stated that they were introducing the scheme as a result of “residents breaching their lease”. They further state that “failure to park in your allocated parking space or parking in the visitor bays will result in you receiving a penalty ticket”.
11. The Defendant, at all material times, parked in accordance with the terms granted by the lease (parking only within his allocated bay). 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.
12. The Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011.
13. 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.
14. 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.
15. 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.
16. Accordingly it is denied that:
a. there was any agreement as between the Defendant or driver of the vehicle and the Claimant
b. that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so
c. there was any obligation (at all) to display a permit; and
d. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.
17. It is denied that the Claimant has any entitlement to the sums sought.
18. 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 that the facts stated in this Defence are true.
--
I’d be grateful for any advice or guidance that could be offered on the defence or the next steps.
With many thanks again to everyone who gives so much time to this forum.
apologies for the super-long first post. Have read lots of threads and tried to post all the salient information here in one post.
I have been issues with a claim from the County Court Business Centre (and have returned the acknowledgement of service) for a PCN that was issued to my car by Parking & Property Maintenance (represented by BW Legal) when parked in my own allocated parking space (the permit was not displayed at the time).
After receiving the initial ticket, I wrote to Parking & Property Maintenance confirming that it was my vehicle, my space and that I had no intention of paying a fine. I ignored all subsequent communications from P&PM and BW Legal.
The particulars of claim state:
“the claimants claim is for the sum of £100 being monies due from the defendant to the claimant is respect of a Parking Charge Notice (PCN) issues on [issue date] at [time] at [development]. The PCN relates to [car make] under registration [registration]. The terms of the PCN allowed the defendant 28 days from the issue date to pay the PCN, but the defendant has failed to do so. Despite demand having been made, the defendant has failed to settle their outstanding liability. The claims also includes statutory interest pursuant to section 69 of the County Courts Act 1984 at a rate of 8% per annum a daily rate of 0.02 from [issue date] being an amount of £[amount]. The Claimant also claims £60.00 contractual costs pursuant to PCN terms and condition”
I own the property in question (leasehold). The allocated parking space is included in the lease.
I moved in over ten years ago. The parking enforcement scheme was introduced by the management company in Summer last year. In introducing the scheme, the management company stated:
“…we are inundated with complaints about parking throughout the development and abusing ‘VISITOR’ bays; even after a number of requests to abide by the lease we are still having residents breach their lease. Therefore as residents failed to comply we will be enforcing parking enforcement to enforce the lease and areas affected. Failure to park in your allocated bay carparking in the visitor bays will result in your receiving a parking ticket and having to pay a fine. The ticket is legally enforceable as owners will have signed a lease when you purchased or moved into your property.”
My lease contains nothing about a requirement to display a parking permit. I was, at all times, behaving in accordance with my lease. Worth also noting that in all the time I have lived here (12 years), I've only on two occasions experiences someone parking in my space.
The only clauses in the lease relating to the parking space are the usual clauses about:
1. the space only including the macadam surface
2. maintaining the space
3. not using the parking space for anything other than a private car, not carrying out major maintenance to a vehicle in the space, not storing petrol on the space (other than that in the car)
The lease grants me the right to “peaceably hold and enjoy the property…without any interruption by the Developer”. (Covenants by the developer)
The lease does grant the Management Company the ‘Power to impose or vary regulations’:
“The company may at any time…impose such regulations of general application regarding the Development or the flats and parking spaces therein as it may in its absolute discretion think fit in addition to or in place of the Regulations (but so that any such regulations shall not conflict with this Lease) and the Company shall have the power in its absolute discretion to revoke amend or add to such regulations or any additions thereto or substitutions thereof’.
None of the regulations listed in the lease relate to parking. No indication was given by the management company that the introduction of parking enforcement was intended to formally introduce a new regulation and, in any case, I think this would not be permissible in this case as it would conflict with the Lease, specifically the covenant by the developer to allow the leaseholder to ‘peaceably hold and enjoy the property…without any interruption by the Developer’.
Having looked at lots of other threads and seen the great advice (many thanks!), it seems my defence is one of primacy of contract, with possibly a second defence relating to poor signage. Having looked at a few threads I have drafted the following defence (mostly taking extracts from others):
--
IN THE COUNTY COURT
Claim No.: XXXXXXXX
Between
Parking and Property management Ltd (Claimant) -and- [Rotster] (Defendant)
DEFENCE
Background
1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
2. The Particulars of Claim lack specificity. They refer to a ‘Parking Charge Notice [PCN]' incurred on [DATE] at [TIME]. 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. Accordingly, the Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.
3. It is admitted that at all material times the Defendant is the registered keeper of vehicle registration mark XXZZZ which is the subject of these proceedings.
4. It is admitted that on [date] the Defendant's vehicle was parked at [location].
5. 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 Particulars refer to the material location as '[LOCATION]'. The Defendant has, since 2007, held legal title under the terms of a lease, to Flat No. XX at that location.
7. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms. The lease terms provide the right to park a vehicle in the relevant allocated bay. A copy of the lease will be provided to the Court.
8. 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.
9. Parking ‘enforcement’ was only introduced at the property in the Summer of 2018.
10. In introducing ‘parking enforcement’, the management company at the material location stated that they were introducing the scheme as a result of “residents breaching their lease”. They further state that “failure to park in your allocated parking space or parking in the visitor bays will result in you receiving a penalty ticket”.
11. The Defendant, at all material times, parked in accordance with the terms granted by the lease (parking only within his allocated bay). 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.
12. The Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011.
13. 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.
14. 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.
15. 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.
16. Accordingly it is denied that:
a. there was any agreement as between the Defendant or driver of the vehicle and the Claimant
b. that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so
c. there was any obligation (at all) to display a permit; and
d. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.
17. It is denied that the Claimant has any entitlement to the sums sought.
18. 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 that the facts stated in this Defence are true.
--
I’d be grateful for any advice or guidance that could be offered on the defence or the next steps.
With many thanks again to everyone who gives so much time to this forum.
0
Comments
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In the absence of one of the very few who advise on defences, I'll chip in and ask if you've seen the defence model, which has a residential focus, prepared by legal expert bargepole, which is linked in the NEWBIES FAQ sticky, post #2?
The other point, as I understand it, is that in order to change leaseholder rights, the management company must achieve a 75% majority in favour and no less than 10% objecting. Do some Google searches on that.Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.Private Parking Firms - Killing the High Street0 -
What is the Issue Date on your Claim Form?0
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In the absence of one of the very few who advise on defences, I'll chip in and ask if you've seen the defence model, which has a residential focus, prepared by legal expert bargepole, which is linked in the NEWBIES FAQ sticky, post #2?
The other point, as I understand it, is that in order to change leaseholder rights, the management company must achieve a 75% majority in favour and no less than 10% objecting. Do some Google searches on that.
Thanks for the reply - on the first point, yes, this is mostly based on that and one other similar defence. I'll do some checking on your second point - thanks
0 -
That's right - lots of time.7th March - so still a bit of time to figure things out.
With a Claim Issue Date of 7th March, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Tuesday 9th April 2019 to file your Defence.
That's over three weeks away. Loads of time to produce a perfect Defence, and it is good to see that you are not leaving it to the very last minute.
When you are happy with the content, your Defence should be filed via email as suggested here:-
Print your Defence.
- Sign it and date it.
- Scan the signed document back in and save it as a pdf.
- Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
- Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
- Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
- Do not be surprised to receive a copy of the Claimant's Directions Questionnaire, they are just trying to put you under pressure.
- Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.
0 - Sign it and date it.
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What PPC's tend to forget is, that unless they are renting the car parking and road network within the development, they have no landowner rights.
Basically, under English contract Law, a 3rd party (in your case, the PPC) cannot enable a contract between the first and scond parties (the manco and you).
There is also the issue of whether the management company has ist person status. If the freehold is owned by a company (either resident-owned, or a commercial organisation) who then appointed the management company, then even the manco does not have the power to enable a contract between you and them.
Your lease is a very powerful document. Feel free to scan and highlight the section about your allocatted parking space and include it in you defence pack. It will emphasise to both the Court and the PPC that you know you are in the right and they are not.
No harm in writing to the manco stating that you will no longer be displaying the permit and will consider any further attempts to ticket your vehicle to be an act of trespass upon your property.Never Knowingly Understood.
Member #1 of £1,000 challenge - £13.74/ £1000 (that's 1.374%)
3-6 month EF £0/£3600 (that's 0 days worth)0 -
Thanks, @keithp, that's really y helpful 0
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There is also the issue of whether the management company has ist person status. If the freehold is owned by a company (either resident-owned, or a commercial organisation) who then appointed the management company, then even the manco does not have the power to enable a contract between you and them.
Thanks, @patman99, really helpful. The latter point (quoted) is interesting. The lease is between three parties (developer, manco and tenant) and the inter-relationship between the three parties is something that's quite confusing!, It is the developer that grants 'peaceable enjoyment' as a term of the lease, so presumably the manco cannot do anything to interfere with this? Will do a bit more reading around this.
Thanks again 0 -
So, I have now received a second claim from the County Court Business Centre for a second ticket (all exactly the same as above but ticket issued on a different date). Can they do that? Shouldn't they be pursuing any outstanding claims they think they have against me as one action, not multiple actions? Anyone any thoughts?0
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All this stuff is automated and at this stage there is unlikely to have been any human intervention, so apart from you, no one else is likely to know about the separate claims.
You will need to add a line to each defence that to save court's time, yours and that of the claimant, you ask the court to direct the claimant to amalgamate all claims against you.Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.Private Parking Firms - Killing the High Street0
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