VCS Defence draft

Redx

13.9 needs altering

I believe that its supposed to say that the judge ( or the order said) ORDERED the strike out, not that you are telling the judge what to do , those words were in the order

0range

It was taken from Coupon-mad's template who said to number when putting them into the defence - but that bit should come under the last para. It will be corrected.

0range

Whats it looking like as a defence? This is a first attempt. Any advice for the highlighted bits?

0range

Hey lovely people,

Has anyone any more feedback on this defence? The deadline is the 24th, so it needs to be sent off asap.
Thank you

KeithP

0range wrote: »

The deadline is the 24th, so it needs to be sent off asap.

No, it does not need to be sent until Wednesday.

0range

Sorry Keith I didn't explain that properly, by that I meant the defendant is working away and so needs to get it tied up and sent asap so the deadline isn't missed.

Le_Kirk

Your 13.9 appears to be giving an order to the court, whereas it should be made clear it is a QUOTE from the District Judges sitting at the courts you mention.

Coupon-mad

I'd have the start something like this, removing the original #2 completely and incorporating your facts, and I've adjusted the numbering quite a bit:

DEFENCE

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

2. The Particulars refer to the material location as ‘XXXXX XXXXXXX '. The Defendant has, since XX/XX/XXXX resided with their partner XXXXXX XXXXXXX who has held legal title under the terms of a lease, to Flat No. XXX at that location.

3. The car parking area contains allocated parking spaces demised to some residents, and visitor parking spaces to be used by residents [STRIKE]who do not have an allocated space[/STRIKE] or visitors. It is established practice that [STRIKE]Of which the[/STRIKE] residents - including XXXXX XXXXXXXX - the Director and Property Manager of XXXXXXXXXX - have been using the generic 'visitor or resident - first come first served' spaces since the defendant began living at the property in XXXX.

4. At some point, the managing agents contracted with the Claimant company [STRIKE]to enforce parking conditions[/STRIKE] at the estate but with no consultation with leaseholders and no agreement to vary the leases, contrary to the Landlord & Tenant Act. Where a majority of the leaseholders agree to any proposed variation, if there are less than 9 leases all or all but one of the parties must consent and if there are more than 8 leases, 75% of the parties must consent, and not more than 10% must not object to the proposed variation. This degree of consensus is notoriously hard to achieve and it is averred the Claimant and it's client have simply not bothered, and merely set up some signs and imposed permits upon people out of the blue. The Claimant's conduct in aggressive ticketing is in fact a matter of tortious interference, being a private nuisance to residents.

5. In a comparable residential estate unfair private parking ticket case no. C7GF81FK in 2017, District Judge Britton at Aldershot & Farnham UKCPM v Niven dismissed the parking firm's contention that they were authorised to impose a parking scheme requiring permits at the estate, stating ''It is simply not a case where, as the Supreme Court dealt with in Beavis v ParkingEye, there is a situation where the company which grants the right to administer a parking scheme has the sole right to say who can and cannot park on there and a situation where the freeholder or the landowner has not granted other rights over the land already. This is one where the freeholder has already granted a right to park and that cannot be affected or discharged without either a variation of the tenancy agreement, which has not happened, or a novation agreement involving all the people who were involved in this particular agreement. Therefore on that basis, there is a pre-existing right to park. Accordingly, I must dismiss the claim that basis.''

5.1 This transcript and other cases of similar fact will be adduced in evidence, including a persuasive case heard on appeal, Jopson v Homeguard [2016] B9GF0A9E, where once again the ParkingEye Ltd v Beavis [2015] UKSC 67 case was fully distinguished and it was held that a parking company could not override a resident's rights and easements just by putting some signs up and issuing unsolicited permits, as if display of same suddenly formed part of the estate residents' lawful obligations.

5.2 There is a large body of previously heard parking ticket cases which establishes these facts and protects the rights enjoyed by tenants and leaseholder residents. In Link Parking Ltd v Parkinson [2016] C7GF50J7, the Judge, referring to a similar case in In Pace Recovery v Noor [2016] C6GF14F0 [2016] ruled that: “…the Judge in that case found that the parking company could not amend the terms of the tenancy agreement to bind a tenant, but rather that it would have to be the other party to the contract.''

6. Under the terms of the Defendant's partner XXXXXXXXXXX’s lease, only this reference is made about the conditions of parking vehicles in spaces.
6.1. At XX schedule para.XX, not to keep place or permit to be kept or placed in or upon the parking space or spaces any commercial vehicle any caravan boat trailer house on wheels or any other apparatus capable of being towed.
6.2. 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.

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 Defendant is aware that at the time in question, numerous residents had received PCNs just after midnight, with the Claimant's ticketer acting in a predatory fashion deliberately seeking to issue PCNs to captive victims - the residents. One of the other residents who received a PCN that night was a neighbour, who is happy to supply a witness statement confirming that she had her parking notice cancelled as a result of informing VCS that she was a resident. This suggests the Claimant in some cases, but with no consistency, accepts when challenged, that the PCNs issued overnight were unrecoverable and an abuse of residents' rights and easements.

9. This is not the first time the defendant has been targeted by VCS with their misleading windscreen notices. A ‘this is not a parking charge’ card was placed on the Defendant's windscreen while they were parked in a visitor bay with a valid permit clearly displayed. The Defendant again informed the Property Manager who wrote back ‘Please send me the PCN number and registration number. I wasn't aware they were issuing tickets for people using Visitors spaces.’ This suggests that the Claimant's conduct has fallen outside any limited authorisation they may claim to have from the Property Management company, who are not in any case the landowner.

10. Further and in the alternative, the signs purport to create a contractual licence granting 'Parking for valid parking permits only – park within allocated bays. If a valid permit/ticket is required, the permit/ticket must be clearly displayed...'. Not only does this create a nonsense contract, since if there is no permission, there is no offer, but because it states ''IF'' a valid permit/ticket is required – then the primacy of the leaseholder's rights negate the need for a permit in any case.

11. 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 (not merely an agent) to issue parking charge notices after midnight, targeting residents rather than, say, trespassers using the car park to go off to work for the day. The Claimant is also put to proof that it has the right flowing from the landowner, to unilaterally pursue residents by means of litigation in their own name and to show how they believe they can interfere with the rights & easements enjoyed by the resident leaseholders and their families at the estate.

Remove your original #10 and #11 as they are more than covered in the end 'costs' paragraphs.

I'd say keep this narrative for your WS later on:

The Defendant approached ‘X’, the estate Director and Property Manager, whom herself owns a property in the same block as the defendant. ‘X’ used to park in the visitors spots, when she resided in the building, and told the defendant that when she took over managing the complex in 2016 (this was only 9 months after the PCN) she agreed that a 2 week grace period was implemented with VCS to cover the matter of expiring permits, so this sort of incident was prevented.

Plus at WS & evidence stage (before the hearing) you will need the case transcripts I referred to above UKCPM v Niven, Jopson v Homeguard , Link Parking Ltd v Parkinson, and PACE v Noor - and you can use other similar transcripts too from the Parking Prankster 'case law' webpages.

0range

Thank you Coupon-mad, honestly really appreciate you guys taking the time to look over this. :A:A:A:A:A:A

0range

Just filling out the Directions Questionnaire - on Newbies Thread know it says

D3 = 1 witness (that’s you) (or more if you are going to get another person to provide a statement)

Does this mean anyone the defendant has write a witness statement is to attend the hearing? The defendant's neighbour has said they would write a statement to support defence, wasn't sure if they needed to be included in this?