Court summons received - Defence written

Turbocat

Hi,

I am helping a friend who has received a court summons now for an outstanding PCN. I've been through all the newbies thread. We've competed the AoS and requested SAR from Vehicle Control services, but won't receive that info before submitting the defence.

I have tried to draft a defence for them. Would anybody be so kind as to glance over it and check for any obvious errors. I've taken out some parts that bargepole states should no longer be relied upon, e.g. Not the Driver.

My one question that I can't find on the threads I've read so far, do we need to include all the evidence when submitting the defence, or is that submitted at a later date? - Sorry Ignore this just found a thread that confirms it won't be until later that evidence needs submitting.

Turbocat

CLAIM No: XXXXXX

BETWEEN:

Vehicle Control Services LTD (Claimant)

and

XXXX (Defendant)


________________________________________
DEFENCE
________________________________________


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

2. 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.

3. It is acknowledged that on [date] the Defendant’s vehicle was parked in the marked bay allocated to the leaseholder of XXXXX
3.1. The keeper of the vehicle (the Defendant) is the leaseholder for XXXXX

_No standing or authority to form contracts and/or litigate_

4. 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 against visitors. The Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name, and that they have no right to bring any action regarding this claim.
No ‘legitimate interest’ or commercial justification.


_Authority to Park and Primacy of Contract_

5. It is denied that the Defendant or lawful users of his or her vehicle were in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the Defendant permitting the above mentioned vehicle to be parked by the current occupier and leaseholder of XXXXX, whose leasehold agreement permits the parking of vehicle(s) on land. 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 that there is a /‘right of way at all times and for all purposes connected with the use and enjoyment of the Demised premises/’ . The ‘Demised premises’ are defined in the terms of the lease as /‘All that the car parking space (or spaces)….shown for the purpose of identification only edged red on the Plan/’. A copy of the lease will be provided to the Court.


6. The Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors under the terms of the lease 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.


7. The Defendant avers that the lease terms that exists between the leaseholder and management company extends to the use of the specified parking space and overrides any purported contract conveyed by the claimant’s insufficient, demonstrably illegible signage. *The limited signage that exists within the car park in no way specifies that a permit must be displayed to use the bay.*

_No Breach of Contract_

8. The signage visible within the car park is purported to amount to a contract by the Claimant. That being so, the terms and conditions of the “contract” are detailed on the sign and nowhere else. The signs on the date the parking charge notice was issued stated:

*‘Valid Permit Holders Only in Designated Bays*
*No Parking for Commercial Vehicles’*

8.1. It it put to the Claimant that the Defendant is a Valid Permit Holder and this was proven by presenting to the Patrol Officer (XXX) the valid permit.
8.2. The Patrol Officer (XXX) issuing the Parking Charge Notice, acknowledged receipt of this, writing on the ticket ‘Owner returned. Produced a valid VCS permit. Photographic evidence of this will be provided to the court.
8.3. It is also put to the Claimant that the vehicle was parked within the ‘Designated Bay’ for that property/permit holder.
8.4. And finally it is put to the Claimant that the vehicle was not a ‘Commercial Vehicle’.
8.5. Therefore in summary the Defendant attests that no breach of contract could have occurred as all the terms and conditions as set out in the “contract” were indeed satisfied.
8.6. Nowhere on the “contract” did it state that the Permit had to be on display.

_Additional points to be considered_

9. It is put to the Claimant that any parking management company with a legitimate interest in protecting the parking rights of a residential space – which is surely their only purpose – would immediately rescind any charges issued to residents and their legitimate visitors.
9.1 In this instance a genuine visitor to the building, with permission granted to use the relevant parking bay, parked in the allocated bay and a parking charge was issued.
9.2. After the Parking Charge Notice was issued, the Defendant immediately presented the valid parking permit to the ‘Patrol Officer’.
9.3. The Defendant upon receipt of the ’Notice to the Keeper’ provided this explanation to the Claimant.
9.4. The Defendant acknowledged this explanation, and implicitly assented to the fact that no breach had occurred by writing to the Defendant to, and I quote “*revoke the PCN provided that £10.00 cancellation fee is received by XXXXX*”.

10. Accordingly it is denied that:
10.1. there was any obligation (at all) to display a permit; and
10.2. there was any agreement as between the Defendant or driver of the vehicle and the Claimant
10.3. even if an agreement had been entered into, there was no breach of contract according to the terms and conditions stipulated. With the Claimants agreement to revoke the charge dated XXXX proving this.
10.4. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

_Failure to set out clearly parking terms_

11. The Defendant relies upon/_ParkingEye Ltd v Barry Beavis_/(2015) UKSC 67 insofar as the Court were willing to impose a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.
11.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate.
11.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;
11.1.2. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee’s (“IPC”) Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and
11.1.3. The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor as set out in the leading judgment of Denning MR in/_J Spurling v Bradshaw_/[1956] EWCA Civ 3
11.2. The Defendant avers that the residential site that is the subject of these proceedings is not a site where there is a commercial value to be protected. The Claimant has not suffered loss or pecuniary disadvantage. The penalty charge is, accordingly, unconscionable in this context, with/_ParkingEye_/distinguished.

_Final Points_

12. 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 pieces of paper that are not ‘charge notices’, and to pursue payment by means of litigation.

13. It is denied that the Claimant has any entitlement to the sums sought. The fee being sought is now been substantially inflated from the initial parking charge of £60 specified on the sign.
13.1 Any additional charges - variously described as ‘initial legal costs’ or ‘debt collection’ depending on the differing template letters I have received over the 4 year period that this dispute has been ongoing - is not recoverable under the Protection of Freedoms Act 2012, Schedule 4, nor with reference to the judgment in ParkingEye Ltd v Beavis [2015] UKSC 67 where only £85 was recovered and it was held that such a case cannot be pleaded in damages.

14. It is an abuse of process for a Claimant to issue a knowingly inflated claim for additional sums which it is not entitled to recover and the court will be invited to strike out the claim.

The_Deep

It looks good to me. but why do you need a permit if no mention is made of one in your lease/AST?

If they are relying on Beavis in an "own space" claim then, imo, they have shot themselves in the foot. Beavis has nothing to do with residential parking.

Have you considered counter-claiming for the four years of harassment you have been subjected to? They have interfered with your "quiet enjoyment" of your property and should be accountable. This will also ensure that they do not discontinue at the last moment and improve your chances of getting CPR27.14.(2)(g) (unreasonable behaviour) costs.

What has your management company done to support you?

Turbocat

Great thanks so much for glancing over it. I'm not sure what they will be relying on but I can't see that they have a leg to stand on, especially given that they agreed to revoke the charge for £10.

So I live in the same complex as my friend and I'm equally as confused about the fact that the parking restriction imposed are not detailed in the lease, but I'm only a tenant so have never seen the leasehold until they showed me it. Back when the flats were first built a working mill operated across the road, and from what I've heard from other tenants they used to have issues with workers from the mill parking in the residents car parks, which was why they introduced the parking control. But I would've thought that to introduce that sort of restriction would require an update/amendment to the leasehold agreement.

I and many other residents have complained to the management company to remove the restrictions now that the mill is no longer in operation, but they're not interested. I have had similar issues and am also fighting a ticket, although I have not received a court summons yet.

My friend tried to get the management company to intervene and revoke the charge but they won't get involved.

In terms of counter claiming, I think they just want this whole thing done and dusted. I've told them to claim for any loss of earnings etc for the court appearance but wasn't aware that they could claim more than that really.

Turbocat

I've removed section 11 regarding their reliance on Beavis. This was more pre-emptive thinking that they would potentially use this in their argument, however it seems unlikely that they would given this is residential parking. My bad I've tried to use previous people's defences as a guide and got confused about the relevance of Beavis.

I've removed that now and included references to the judgments in Pace v Mr N 2016 and Link Parking v Ms P C7GF50J7 [2016] which seem far more relevant.

beamerguy

14. It is an abuse of process for a Claimant to issue a knowingly inflated claim for additional sums which it is not entitled to recover and the court will be invited to strike out the claim.

Add this as reference to ABUSE OF PROCESS

Southampton court threw out a case from BWLegal because of Abuse of Process regarding the fake BWLegal add-on.
Claim number is F0DP201T District Judge Taylor

FOR YOUR INFO ... POST#10
https://forums.moneysavingexpert.com/discussion/comment/75917866#Comment_75917866

Whilst there is no precedence in a county court, you are inviting the judge to read what a District judge has said

Turbocat

Amazing. Thank you so much, I have updated to include this recent development. Ok I think I have a final draft. Would anybody mind giving it one final glance. Much appreciated. :T

Turbocat

# IN THE COUNTY COURT

CLAIM No: XXXXXX

BETWEEN:

Vehicle Control Services LTD (Claimant)

and

XXXXX (Defendant)


________________________________________
DEFENCE
________________________________________


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

2. 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.

3. It is acknowledged that on [date] the Defendant’s vehicle was parked in the marked bay allocated to the leaseholder of XXXX.
3.1. The keeper of the vehicle (the Defendant) is the leaseholder for XXXXX.

_No standing or authority to form contracts and/or litigate_

4. 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 against visitors. The Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name, and that they have no right to bring any action regarding this claim.
No ‘legitimate interest’ or commercial justification.

_Authority to Park and Primacy of Contract_

5. It is denied that the Defendant or lawful users of his or her vehicle were in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the Defendant permitting the above mentioned vehicle to be parked by the current occupier and leaseholder of XXXX whose leasehold agreement permits the parking of vehicle(s) on land. 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 that there is a /‘right of way at all times and for all purposes connected with the use and enjoyment of the Demised premises/’ . The ‘Demised premises’ are defined in the terms of the lease as /‘All that the car parking space (or spaces)….shown for the purpose of identification only edged red on the Plan/’. A copy of the lease will be provided to the Court.

6. The Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors under the terms of the lease and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Defendant will rely upon the judgment of District Judge Connan in Pace v Mr N [2016] and Link Parking v Ms P C7GF50J7 [2016]

7. The Defendant avers that the lease terms that exists between the leaseholder and management company extends to the use of the specified parking space and overrides any purported contract conveyed by the Claimant’s insufficient, demonstrably illegible signage.
This was asserted in the following case CS038 Jopson V Homeguard [2016] 9GF0A9E whereby Judge Harris QC ruled:
/“the respondent was not in any position unilaterally to override the right of access which the claimant had bought when she purchased the lease”/

_No Breach of Contract_

8. The signage visible within the car park is purported to amount to a contract by the Claimant. That being so, the terms and conditions of the “contract” are detailed on the sign and no where else. The signs on the date the parking charge notice was issued stated:

*‘Valid Permit Holders Only in Designated Bays*
*No Parking for Commercial Vehicles’*

8.1. It it put to the Claimant that the Defendant is a Valid Permit Holder and this was proven by presenting to the Patrol Officer (XXXX) the valid permit.
8.2. The Patrol Officer (XXXX) issuing the Parking Charge Notice, acknowledged receipt of this, writing on the ticket ‘Owner returned. Produced a valid VCS permit. Photographic evidence of this will be provided to the court.
8.3. It is also put to the Claimant that the vehicle was parked within the ‘Designated Bay’ for that property/permit holder.
8.4. And finally it is put to the Claimant that the vehicle was not a ‘Commercial Vehicle’.
8.5. Therefore in summary the Defendant attests that no breach of contract could have occurred as all the terms and conditions as set out in the “contract” were indeed satisfied.
8.6. Nowhere on the “contract” did it state that the Permit had to be on display.

_Additional points to be considered_

8. It is put to the Claimant that any parking management company with a legitimate interest in protecting the parking rights of a residential space – which is surely their only purpose – would immediately rescind any charges issued to residents and their legitimate visitors.
8.1 In this instance a genuine visitor to the building, with permission granted to use the relevant parking bay, parked in the allocated bay and a parking charge was issued.
8.2. After the Parking Charge Notice was issued, the Defendant immediately presented the valid parking permit to the ‘Patrol Officer’.
8.3. The Defendant upon receipt of the ’Notice to the Keeper’ provided this explanation to the Claimant.
8.4. The Defendant acknowledged this explanation, and implicitly assented to the fact that no breach had occurred by writing to the Defendant to, and I quote “*revoke the PCN provided that £10.00 cancellation fee is received by XXXX*”.

9. Accordingly it is denied that:
9.1. there was any obligation (at all) to display a permit; and
9.2. there was any agreement as between the Defendant or driver of the vehicle and the Claimant
9.3. even if an agreement had been entered into, there was no breach of contract according to the terms and conditions stipulated. With the Claimants agreement to revoke the charge dated XXXX proving this.
9.4. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

_Abuse of Process_

10. It is an abuse of process for a Claimant to issue a knowingly inflated claim for additional sums which it is not entitled to recover and the court will be invited to strike out the claim.
10.1. The Defendant would like to bring to the attention of the court that on 10th June 2019, District Judge Taylor of Southampton County Court ordered that a claim be struck out for an almost identical abuse of power.

11. It is denied that the Claimant has any entitlement to the sums sought. The fee being sought is now been substantially inflated from the initial parking charge of £100 specified on the sign.
11.1 Any additional charges - variously described as ‘initial legal costs’ or ‘debt collection’ depending on the differing template letters the Defendant has received over the 4 year period that this dispute has been ongoing - is not recoverable under the Protection of Freedoms Act 2012, Schedule 4, nor with reference to the judgment in ParkingEye Ltd v Beavis [2015] UKSC 67 where only £85 was recovered and it was held that such a case cannot be pleaded in damages.

beamerguy

Turbocat wrote: »

Amazing. Thank you so much, I have updated to include this recent development. Ok I think I have a final draft. Would anybody mind giving it one final glance. Much appreciated. :T

go for it, you will need to wait a while for everyone to see it

The_Deep

Have you read this?

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

Turbocat

Yes, but only found it in the last couple of hours. Wish I'd found it earlier as it essentially contained pretty much everything we're using in the defence.

I have now used the references to Pace V Mr N and also Link v Ms P. They seem to be the most similar cases and were successful.

I think I'm pretty happy that I've included all the relevant defence arguments.