Letter before claim

Dutch81

Dear All,

This is a new thread, I have not posted on here before. Some details regarding the situation:

I received a PCN in November 2015. This was issued by a private parking company as the car was parked in a residential car park without a permit. I did in fact reside in a property at the time with rights to use of the car park, however I was awaiting a car parking permit from the Landlords, who advised I could use my 'Visitors Clock' whilst I awaited this. However, this needs to be updated every four hours, and not possible during the night - hence the ticket.

I contested the charge with the private parking company, explaining the above, I also noticed the PCN contained incorrect details, the contravention code was wrong stating I had 'Parked after the expiry of time in a pay and display car park' - there were no pay and display machines within the area at the time (and I'm fairly sure there still isn't), the car park was for resident permit holders.

After various emails / letters, the company would not budge, so I appealed via IAS - this was dismissed. I did not hear anything back from the parking company after this.

Since then, I have moved property and a few years have passed. I was then made aware a few days a go that a 'Letter Before Claim' had been received for my attention - this was sent to an incorrect address but luckily handed to me.

I immediately sent a 'Subject Access Request' (SAR) notifying the company of my new address and also requesting all the relevant info as advised in the Newbies Thread.

...and this is where I currently am, awaiting a response.

Any advice would be gratefully received.

Many thanks

Coupon-mad

Which company, and did they file the claim themselves, or if not, which solicitor?

Dutch81

Hi, company was VCS, no mention of any solicitors in their letter.
Thanks

Coupon-mad

I contested the charge with the private parking company, explaining the above,

I guess you admitted to driving, then.

You need to prepare for a claim form that will soon follow, and spend this time reading any residential defence threads, and any VCS defence threads on here. Loads of them!

Dutch81

*Update*

Hi there,

As per my post above, I submitted a SAR on 15th May.

VCS have today (18th June) responded to this by providing all requested info.

I note that Data Protection Law requires them to respond within one calendar month, which they have failed to do. Does this have any affect on proceedings?

I have not yet received the expected Claim Form.

Many thanks

The_Deep

Who was driving is largely unimportant in an "own space" claim.

What matter is does the resident havwe prtimacy of contract by virtue of their lease/AST? If they do the scammer can go whistle Dixie.

Read this and tell us what your lease/AST said about permits.

https://parking-prankster.blogspot.com/2016/11/residential-parking.html

Trying to claim failure to pay in a residential car park will have holed them catastrophically below the water line anyway.

Coupon-mad

Dutch81 wrote: »

*Update*
As per my post above, I submitted a SAR on 15th May.

VCS have today (18th June) responded to this by providing all requested info.

I note that Data Protection Law requires them to respond within one calendar month, which they have failed to do. Does this have any affect on proceedings?

No, it's good enough.

When you get a claim, you can use bargepole's example residential defence (one of two by bargepole that are linked in the NEWBIES thread) and add some facts like this:

noticed the PCN contained incorrect details, the contravention code was wrong stating I had 'Parked after the expiry of time in a pay and display car park'

That's very relevant to show the PCN was not properly served or worded.

...and this fact too:

I did in fact reside in a property at the time with rights to use of the car park, however I was awaiting a car parking permit from the Landlords, who advised I could use my 'Visitors Clock' whilst I awaited this. However, this needs to be updated every four hours, and not possible during the night - hence the ticket.

Also very useful as it shows two things:

- promissory estoppel - you relied on the assurance of the landlord

- and VCS' terms are 'void for impossibility' and not fit for purpose for overnight visitor parking which the landlords did allow.

Did you rent this property and do you still have a copy of the agreement, to check it (and maybe the flat advert if archived online on Rightmove or something) for anything stated about a right to park, or an allocated space without any charges or caveats.

Dutch81

Thank you for this info.

I was in the Shared Ownership scheme at the property, and I do have a copy of the lease (somewhere!) which I will review.

Thanks again

Coupon-mad

So you owned it, very good, you had rights and easements as a result of your possession. And have you got it in writing about being allowed to use a visitors' bay while you awaited a permit?

If not, can you email the Landlords NOW and gently prompt them to confirm it (try pushing them into replying 'yes' with a carefully worded email).

Dutch81

*Update*

Hi All,

Claim now received. Unfortunately I could not locate the lease, however I have located countless documents stating the flat dose include 2 x parking spaces. I also have written conformation that the landlord would issue a 'Visitors Permit'.

Please see my defense below, any advice welcome! Thank you in advance:

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 a 'Parking Charge' incurred on **/11/2015. However, the allegation of ‘parked after the expiry of the time in a pay and display car park’ is false. At the time of the issue of the PCN, the car park in question, which is located off ******* in ******, ******, and adjacent to ********, was a car park designated for the use of residents of the surrounding flats. There were no pay and display machines within the vicinity, and no signage in place stating this was the case. (I have photgraphic evidence of this)

3. The Particulars refer to the material location as '**********'. The Defendant, at the time of the issue of the factually incorrect PCN, was a resident and owner of Flat No.**, ********, at that location.

4. The car parking area in question contains allocated parking spaces to residents of *********.

**********, who are the property agents for the area, issued letters to the residents advising that each flat were entitled to two parking permits each.

5. At the time of the issue of the PCN, the Defendant had clearly displayed a valid ‘Visitors Parking Permit’ in the window of the vehicle. Although the Defendant was actually a resident, the reason for the valid ‘Visitors’ permit being displayed is that the car was new to the Defendant and as such a permanent resident’s permit was being sought from *********. During this process, ******* advised (in writing) that a ‘Visitors Permit’ could be supplied, and subsequently was. This permit was clearly displayed within the car at the time of the PCN issue.

6. A ‘visitor’s clock’ was also provided, to enable visitors to change the time every four hours. For a permanent resident, this is not always possible to adjust (especially during night time hours).

7. 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.

8. 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.


9. Further and in the alternative, the signs refer to 'Valid Permit Holders', and no mention of a ‘Pay & Display Scheme’, which makes up the basis of the claim.


9.1. 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.


10. 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.

11. The Claimant, or their legal representatives, has added an additional sum of £100 to the original £60 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 £60 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.

12. 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 £60 - already significantly inflated and mostly representing profit, as was found in Beavis - but the amount claimed on the claim form is inexplicably £160, the Defendant avers that this inflation of the considered amount is a gross abuse of process.

13. 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.

13.1. 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.

The_Deep

Have you read this?

https://parking-prankster.blogspot.com/2016/11/residential-parking.html