Defending for a first time

Ralf99

I’ll opt for the other defence lines then.
1. Inadequate signage.
In SAR they said there are four signs at my car park. Car park is divided in two by the access road (kind of C shaped.
In fact there was only one sign on the side I wasn’t parked in. Also from the time the permit system was introduced they remarked the parking bays and they’re different to the ones on the parking permit. So there’s no such a thing as a valid parking permit because visitor bay “V” on the permit refers to bay B1 and B7 on the ground.

2. Leasehold Agreement breach.
They refused to provide a proof that they have a authority from the land owner to issue charges and bring actions regarding the claim.
As a leaseholder I have right to use the common parts and quiet enjoyment.
Will this apply more to the freeholder who derogates from this grant or UKCPM?

KeithP

Ralf99 wrote: »

Issue date is 17th of July.

With a Claim Issue Date of 17th July, you have until Monday 5th August to do the Acknowledgement of Service, but there is nothing to be gained by delaying it. To do the AoS, follow the guidance offered in a Dropbox file linked from post #2 of the NEWBIES FAQ sticky thread. About ten minutes work - no thinking required.

Having done the AoS, you have until 4pm on Monday 19th August 2019 to file your Defence.

That's over three weeks away. Loads of time to produce a perfect Defence, but please don't leave it to the last minute.


When you are happy with the content, your Defence should be filed via email as suggested here:

Print your Defence.
1. Sign it and date it.
   
2. Scan the signed document back in and save it as a pdf.
   
3. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
   
4. 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'.
   
5. Log into MCOL after a few days to see if the Claim is marked "defence received". If not chase the CCBC until it is.
   
6. Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire, they are just trying to keep you under pressure.
   
7. 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.

fisherjim

Two PCNs with 8% interests (£100+£60+8%)x2 = £363.03

That £60 x2 +8% is a false claim it is for debt collection which as no one has paid their no win no fee debt collector is pure fabrication and must be highlighted too.

Ralf99

Thank you All. It’s most helpful.

Ralf99

Hi everyone. Could you be so kind and comment on my defence below please.
Thank you in advance.

Ralf99

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

UK CAR PARK MANAGEMENT LTD (Claimant)

-and-

xxxxxxxxxxxx (Defendant)

DEFENCE
________________________________________

Preliminary

1. The Particulars of Claim lack specificity and are not factual. 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.

2. The Claimant provides conflicting information whether he’s pursuing the charges from a driver or a registered keeper. Claimant is also refusing to provide a proof of authority to pursue the claim in court.

3. Defendant denies that he agreed to pay the charges as stated in the Particulars of Claim. The Defendant was trying to reach an agreement with the Claimant in order to avoid the harassment and aggravation but the Claimant has refused.

4. The Claimant has taken over the location and runs a business as if the site were a public car park, offering terms with £100 per day parking charge on the same basis to residents, as is on offer to the general public and trespassers. The Claimant is also charging £5 for a replacement permit if it gets damaged. This interferes with the terms of Leasehold Agreement First Schedule – Mutual Covenants (1) stating:
“Not to use the Premises nor permit the same to be used for any purpose whatever other than as a private residence in single occupation only nor for any purpose from which a nuisance can arise to the owners lessees or occupiers of the other premises in the Building or of premises in the neighbourhood.”
However, residents are granted a right to park, rights of way and peaceful enjoyment under a Leasehold Agreement Landlord’s Covenant (1) and Easement Second Schedule (1). Parking terms under new and onerous 'permit/licence' cannot be re-offered as a contract by a third party. This interferes with the terms of leases none of which is the Claimant a party to, and neither have they checked 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 and his use or enjoyment of that land/property.

Background

5. Defendant is a Leaseholder of the land, paying the ground rent and a holder of the visitor parking permit issued.

6. Defendant is one of the named drivers of the vehicle registration mark XXZZZ, which is the subject of these proceedings, and is permitted to use it.


Authority to Park and Primacy of Contract

7. It is denied that the Defendant or lawful users of his 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 [address], whose leasehold agreement permits the parking of vehicle 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 the right to park a vehicle in the visitors bay, without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle or the requirement to display a parking permit. A copy of the lease will be provided to the Court, together with witness evidence that prior permission to park had been given.

8. The Defendant avers that the operator’s signs cannot
(i) override the existing rights enjoyed by residents and their visitors and
(ii) cannot retrospectively and unilaterally restrict the parking easements where provided for within the lease. This would be a breach of the well known and well established principle that a grantor shall not derogate from his grant. The Defendant will rely upon:
- Link Parking v Ms P C7GF50J7 [2016]
Judge Louise Metcalf dismissed the claim as parking company could not override the tenant’s right to park by requiring a permit to park.
- PACE Recovery & Storage v Mr N (C7GF51J1),
District Judge Coonan states: ‘What Pace Recovery is seeking to do is, unilaterally outside the contract, restrict that right to only when a permit is displayed. Pace Recovery cannot do that.….. Therefore, the tenancy agreement takes precedence over the arrangement between Sutton and yourself, the claimant, Pace Recovery. As I have said, it is a pure matter of contract that I have to decide. Therefore, the claim is dismissed’.
- UKPC v Mr Aziz Birmingham 9/1/2017 C2HW01A6.
DJ Gibson dismissed the claim on the basis UKPC did not have authority to override the lease and issue charges.

9. Accordingly it is denied that:
9.1. There was any agreement as between the Defendant or driver/keeper of the vehicle and the Claimant
9.2. There was any obligation (at all) to comply with the signage erected by the Claimant; and,
9.3. The signage on the car park can create a valid contract; and,
9.4. The Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

Alternative Defence - Parking terms impossible to meet and inadequate signage.

10. The parking bays marking doesn’t match the bay identification on the parking permits hence there is no valid parking permit existing.
10.1. Parking Conditions imposed by the Claimant require displaying a valid permit which is impossible to comply with throughout no fault of the Defendant.
10.2. Given the above if there was any contract it is invalid under the doctrine of impossibility of performance.

11. The Claimant has provided a map with alleged signage location. This is not factual and there was only one sign out of four claimed on site at the time of alleged contravention. Sign was referring to the left hand side of the car park which is divided by the access road. The vehicle in question was parked on the right hand side of the car park.
11.1. Inadequate and misleading signage does not create a contract. The Defendant will rely upon UKPC v Kapasi C6HW2J0P.


12. The Claimant, or their legal representatives, has added an additional sum of £60 to the original £100 parking charge, after passing the claim to a Debt Recovery Plus Ltd, for which no justification has been provided. In the Particulars of Claim it is said that £60 is a contractual cost yet there’s no mention of it on the signage which allegedly created the contract. 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 £100 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.

13. It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking parking management. The Claimant has provided no proof of any such entitlement.

14. It is denied that the Claimant has any entitlement to the sums sought.

15. It is admitted that interest may be applicable, subject to the discretion of the Court on any sum (if awarded), but it is denied that interest is applicable on the total sums claimed by the Claimant.


I confirm that the contents of this Defence are true.

The_Deep

Read post 11 again and get your ducks in a row. In an "own space" claim the identity of the driver is of no consequence. All that matters is the wording of the lease/AST.

If this gives primacy of contract to the motorist the scammer can whistle dixie in A minor, they are almost certainly liable to lose in court. Primacy of Contract, should be the first point in your defence, not the seventh.

I disagree with Redx wrt counter claiming. read this

https://www.consumeractiongroup.co.uk/topic/324523-ukpc-liable-for-trespass-success/

These scammers must be stopped.

I disagree wth

Ralf99

Thank you.
It’s a visitor parking space so it’s a “common parts” rather than an own space. Will the trespassing still apply given that they probably have some parking management contract with the building manager?
Also should I add a point that I accept the driver liability even though I wasn’t one? Don’t wanna confuse the court and waste a time on a matter of no importance?

Quentin

Please explain what you are trying to achieve by "accepting driver liability" - previously you told us you weren't driver or keeper,?

Ralf99

Bargepole advised me above to forget about driver/keeper nonsense and concentrate on primacy of contract.
I’ve explained what wording I’ve used in a appeal letter and he said I’ve already admitted to being a driver. Although after that letter the claimant said they pursue me as a keeper and they got my details from DVLA, which is not true, they changed their story now and in particulars of claim said that they pursue me as a driver.
I think I haven’t admitted I’m a driver at the time of contravention but only a driver in general. I rely on opinion of others impartial people on this forum though and their experience.