VCS 'Parking Outside Designated Bay' defence helpppp needed!

Coupon-mad

nosferatu1001 wrote: »

Was your defence truly amended - you took the original one and crossed out any deletions, and any additions were made in red, so they can be easily seen?

You didn't answer nosferatu1001's question. This is how to amend a defence.

bambooparking

Oh sorry i forgot to reply to that part - yes, the original defence i sent was a rubbish paragraph, the amended defence was the proper one, and it was dated 8th May like in the letter.

bambooparking

So should I post the amended defence to VCS to be safe?

Coupon-mad

Yes but not signed-for (NEVER to a parking firm and never on a Friday!).

bambooparking

UPDATE: Have received a court date for September 16th. What happens from here?

KeithP

bambooparking wrote: »

UPDATE: Have received a court date for September 16th. What happens from here?

As you might imagine by now, you need to be reading post #2 of the NEWBIES thread.

Pay particular attention to Bargepole's 'what happens when' post linked from there.

In summary, gather evidence and write a Witness Statement.

bambooparking

In the County Court
Claim No:

Between
Vehicle Control Services Ltd (Claimant)
-and-
Mr B (Defendant)

____________
WITNESS STATEMENT
____________

I, Mr. B, Defendant in this case, deny liability for the entirety of the claim.

1. Two parking charges were issued to my vehicle (registration: ) on Saturday 24/11/2018 and Sunday 25/11/2018, over one period of parking where the car was not moved in between.
2. As the registered keeper of the vehicle, I confirm that my vehicle was parked in bay -- belonging to Flat. --, of which I have held legal title (see Exhibit A: Land Registry) under the terms of a lease since 10.06.2016 (see Exhibit B: Lease).
3. At some point, the managing agents contracted with the Claimant company as a contractor, but they are strangers to the lease and in common with other residents. I was led to believe that the regime was intended to deter trespassers. No ‘relevant contract’ or ‘relevant obligation’ was communicated to residents, nor would I have accepted a contract foisted upon me with onerous terms and charges. It is not enough to put signs up and ride roughshod over the rights of residents that already exist, and which take precedence, given the leasehold title.
4. Trying to re-offer a parking (in or out of the allocated bay) right or easement that I already enjoy by express or implied right under my lease, lacks any aspect of consideration.
5. There is no licence to park that this Claimant can possibly offer me that I do not already have as an unfettered right. The Claimant is trying to run our home car park like a commercial site, on the same punitive terms as a trespasser would be charged. This would clearly be a derogation from grant and I wish to make clear that I did not agree to contractual terms: to display permits, to park within marked bays, face excessive charges and litigation, or any such propositions imposed on me with no opt out offered.
6. Under the terms of my lease (see Exhibit B: Lease), one reference is made about the parking space” numbered P-- shown edge with red on the Site Plan” under the title “the Premises”. The reference simply states that the overall lease arrangement is for the apartment and an allocated parking space with the right to use a parking space.
7. There is no mention of any such parking management services under section 3.10 “Third Party Access”. There are no terms within the lease requiring lessees to display parking permits, to park within allocated bays or to pay penalties to third parties, such as the Claimant, for non-display of same, or for parking outside marked bays. Therefore, my case relies on Primacy of Contract. I refer to previous cases such as Pace v Mr N (2016) C6GF14F0 (see Exhibit C: Pace v Mr N), where it was found that the parking company could not override the tenant’s right to park by requiring a permit to park.
8. I did, at all material times, park 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 me in any way, and their existence does not constitute a legally valid variation of the terms of the lease. Accordingly, I deny having breached any contractual terms whether express, implied, or by conduct.!
9. !My vehicle clearly was 'authorised' as per the lease and 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. Section 6.3 “Quiet Enjoyment” of my lease (see Exhibit B: Lease) states that “the Lessee…shall and may peaceably and quietly hold and enjoy the Premises during the Term without any interruption or disturbance from or by the Lessor its successors in title or any person or persons lawfully claiming under or in trust for or through them.” In this case the Claimant continues to cause a substantial and unreasonable interference with my land/property, or my use or enjoyment of that land/property.
10. 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 I am unaware of any such vote having been passed by the residents.
11. The Claimant may argue that I parked outside the designated bay shown in the site plan of my lease. If so, the Claimant is put to strict proof that they have the contractual authorisation by the landowner of bay -- to issue charges and pursue litigation on their behalf. I refer to the case of Jopson v Homeguard [2016] B9GF0A9E (Exhibit Jopson v Homeguard), where on appeal it was found that the parking company could not override the tenant's right to temporarily stop near the building entrance for loading/unloading – an area outside of the tenant’s designated bay.
12. The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 (Exhibit E: ParkingEye v Beavis) 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 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.
13. The Claimant alleges that the car was “NOT WHOLLY PARKED WITHIN THE MARKINGS OF A DESIGNATED PARKING BAY”, with images showing part of my front wheel parked into bay 43.
a. Bay 43 is currently being rented by the tenants who reside at Flat. --, Mr. J--- and Miss ---. During an informal conversation between myself and Mr. J on the 05/09/18, consent was given to use the parking bay as neither Mr. J nor his partner own a vehicle. A letter confirming this (Exhibit F: Witness Letter) as well as the tenancy agreement that clearly shows Mr. Joseph – is the rightful leaseholder of the bay (Exhibit G: Witness Tenancy Agreement) has been attached to this bundle.
b. As authorisation was given by the tenant who pays monthly rent for the flat and the allocated bay to park wholly in the bay, it is reasonable to assume that part of the wheel being parked in their bay is acceptable.
14. In response to this claim, I assert that the markings of the bay are not plentiful and easily visible, as they are only marked on the front corner, with no consistent line marking the parameters of the bay (see Exhibit H: photo of Bay and Signage). This means that as you drive into the bay, you do not know whether you are in the bay by looking over your shoulder. You would need to open the door and check that your wheel is in the marked bay, which you would not have to do if the bay was marked consistently. It is unreasonable to expect someone to notice this when parking in the dark. I would argue that the need to do this causes a substantial and unreasonable interference with my land/property, or my use or enjoyment of that land/property.
15. I’d like to also state the Claimant did not display clear, large, prominent signs within the site that were capable of being read from the driver's seat and/or forming a contract, contrary to the BPA CoP, PoFA and the Beavis Vs ParkingEye 2015 case. (Exhibit H pictures of Bay and Signage). From the pictorial evidence you can see that the font type is incredibly small and would not be legible from the drivers seat, and is purely aimed at only unauthorised driver, not myself.
16. Even if the court is minded to accept that a sign was visible, the wording on the sign was prohibitive. Unlike in the Beavis vs ParkingEye case, the Claimant offered no licence to park if not a ‘valid permit holder’. A purported licence to stop without a permit, in exchange for payment of a ‘charge’ on the one hand, cannot be offered when that same conduct is, on the other hand, expressly prohibited in the signage wording. This does not create any possible contract.
17. This is clear from several cases. An example In PCM-UK v Bull et all B4GF26K6 [2016] (See Exhibit I: PCM-UK v Bull), residents were parking on access roads. The signage forbade parking and so no contract was in place. A trespass had occurred, but that meant only the landowner could claim, not the parking company.
18. Finally, I draw attention the Court that the Claimant has failed to respond to emails, Subject Access Requests, and even oblige court procedures by delivering the defence or any such correspondence to myself. I have attached postal receipts, and copies of my correspondence to the Claimant which have been ignored and not reciprocated (see Exhibit J: evidence of correspondence).
19. With this in mind, I encourage the court to strike out the claims against the Defendant as there are no sound grounds of claim and to grant compensation in accordance to the defendant cost of schedule (see Exhibit K: costs schedule) as are allowable on the small claims track, pursuant to Civil Procedure Rule 27.14.

Statement of Truth:
I believe the facts stated in the Defence are true.

Name:


Signature:


Date:


Would appreciate any feedback on this first draft! Thanks

DoaM

I gave up trying to read ... please put a blank line between each numbered item.

bambooparking

so sorry will do that right now!

In the County Court
Claim No:

Between
Vehicle Control Services Ltd (Claimant)
-and-
Mr B (Defendant)

____________
WITNESS STATEMENT
____________

I, Mr. B, Defendant in this case, deny liability for the entirety of the claim.

1. Two parking charges were issued to my vehicle (registration: ) on Saturday 24/11/2018 and Sunday 25/11/2018, over one period of parking where the car was not moved in between.

2. As the registered keeper of the vehicle, I confirm that my vehicle was parked in bay -- belonging to Flat. --, of which I have held legal title (see Exhibit A: Land Registry) under the terms of a lease since 10.06.2016 (see Exhibit B: Lease).

3. At some point, the managing agents contracted with the Claimant company as a contractor, but they are strangers to the lease and in common with other residents. I was led to believe that the regime was intended to deter trespassers. No ‘relevant contract’ or ‘relevant obligation’ was communicated to residents, nor would I have accepted a contract foisted upon me with onerous terms and charges. It is not enough to put signs up and ride roughshod over the rights of residents that already exist, and which take precedence, given the leasehold title.

4. Trying to re-offer a parking (in or out of the allocated bay) right or easement that I already enjoy by express or implied right under my lease, lacks any aspect of consideration.

5. There is no licence to park that this Claimant can possibly offer me that I do not already have as an unfettered right. The Claimant is trying to run our home car park like a commercial site, on the same punitive terms as a trespasser would be charged. This would clearly be a derogation from grant and I wish to make clear that I did not agree to contractual terms: to display permits, to park within marked bays, face excessive charges and litigation, or any such propositions imposed on me with no opt out offered.

6. Under the terms of my lease (see Exhibit B: Lease), one reference is made about the parking space” numbered P-- shown edge with red on the Site Plan” under the title “the Premises”. The reference simply states that the overall lease arrangement is for the apartment and an allocated parking space with the right to use a parking space.

7. There is no mention of any such parking management services under section 3.10 “Third Party Access”. There are no terms within the lease requiring lessees to display parking permits, to park within allocated bays or to pay penalties to third parties, such as the Claimant, for non-display of same, or for parking outside marked bays. Therefore, my case relies on Primacy of Contract. I refer to previous cases such as Pace v Mr N (2016) C6GF14F0 (see Exhibit C: Pace v Mr N), where it was found that the parking company could not override the tenant’s right to park by requiring a permit to park.

8. I did, at all material times, park 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 me in any way, and their existence does not constitute a legally valid variation of the terms of the lease. Accordingly, I deny having breached any contractual terms whether express, implied, or by conduct.

9. !My vehicle clearly was 'authorised' as per the lease and 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. Section 6.3 “Quiet Enjoyment” of my lease (see Exhibit B: Lease) states that “the Lessee…shall and may peaceably and quietly hold and enjoy the Premises during the Term without any interruption or disturbance from or by the Lessor its successors in title or any person or persons lawfully claiming under or in trust for or through them.” In this case the Claimant continues to cause a substantial and unreasonable interference with my land/property, or my use or enjoyment of that land/property.

10. 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 I am unaware of any such vote having been passed by the residents.

11. The Claimant may argue that I parked outside the designated bay shown in the site plan of my lease. If so, the Claimant is put to strict proof that they have the contractual authorisation by the landowner of bay -- to issue charges and pursue litigation on their behalf. I refer to the case of Jopson v Homeguard [2016] B9GF0A9E (Exhibit Jopson v Homeguard), where on appeal it was found that the parking company could not override the tenant's right to temporarily stop near the building entrance for loading/unloading – an area outside of the tenant’s designated bay.

12. The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 (Exhibit E: ParkingEye v Beavis) 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 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.

13. The Claimant alleges that the car was “NOT WHOLLY PARKED WITHIN THE MARKINGS OF A DESIGNATED PARKING BAY”, with images showing part of my front wheel parked into bay 43.

a. Bay 43 is currently being rented by the tenants who reside at Flat. --, Mr. J--- and Miss ---. During an informal conversation between myself and Mr. J on the 05/09/18, consent was given to use the parking bay as neither Mr. J nor his partner own a vehicle. A letter confirming this (Exhibit F: Witness Letter) as well as the tenancy agreement that clearly shows Mr. Joseph – is the rightful leaseholder of the bay (Exhibit G: Witness Tenancy Agreement) has been attached to this bundle.

b. As authorisation was given by the tenant who pays monthly rent for the flat and the allocated bay to park wholly in the bay, it is reasonable to assume that part of the wheel being parked in their bay is acceptable.

14. In response to this claim, I assert that the markings of the bay are not plentiful and easily visible, as they are only marked on the front corner, with no consistent line marking the parameters of the bay (see Exhibit H: photo of Bay and Signage). This means that as you drive into the bay, you do not know whether you are in the bay by looking over your shoulder. You would need to open the door and check that your wheel is in the marked bay, which you would not have to do if the bay was marked consistently. It is unreasonable to expect someone to notice this when parking in the dark. I would argue that the need to do this causes a substantial and unreasonable interference with my land/property, or my use or enjoyment of that land/property.

15. I’d like to also state the Claimant did not display clear, large, prominent signs within the site that were capable of being read from the driver's seat and/or forming a contract, contrary to the BPA CoP, PoFA and the Beavis Vs ParkingEye 2015 case. (Exhibit H pictures of Bay and Signage). From the pictorial evidence you can see that the font type is incredibly small and would not be legible from the drivers seat, and is purely aimed at only unauthorised driver, not myself.

16. Even if the court is minded to accept that a sign was visible, the wording on the sign was prohibitive. Unlike in the Beavis vs ParkingEye case, the Claimant offered no licence to park if not a ‘valid permit holder’. A purported licence to stop without a permit, in exchange for payment of a ‘charge’ on the one hand, cannot be offered when that same conduct is, on the other hand, expressly prohibited in the signage wording. This does not create any possible contract.

17. This is clear from several cases. An example In PCM-UK v Bull et all B4GF26K6 [2016] (See Exhibit I: PCM-UK v Bull), residents were parking on access roads. The signage forbade parking and so no contract was in place. A trespass had occurred, but that meant only the landowner could claim, not the parking company.

18. Finally, I draw attention the Court that the Claimant has failed to respond to emails, Subject Access Requests, and even oblige court procedures by delivering the defence or any such correspondence to myself. I have attached postal receipts, and copies of my correspondence to the Claimant which have been ignored and not reciprocated (see Exhibit J: evidence of correspondence).

19. With this in mind, I encourage the court to strike out the claims against the Defendant as there are no sound grounds of claim and to grant compensation in accordance to the defendant cost of schedule (see Exhibit K: costs schedule) as are allowable on the small claims track, pursuant to Civil Procedure Rule 27.14.

Statement of Truth:

I believe the facts stated in the Defence are true.

Name:
Signature:
Date:

there you go

bambooparking

Would really appreciate some feedback as I want to hand in the bundle on Tuesday! thank you