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Claim Form Received - Case Struck Out - Remote Hearing
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HeavyEvy
Posts: 43 Forumite
[FONT="]Hi Folks,[/FONT]
[FONT="]I've received a Claim Form from the CCBC in Northampton, please could you provide some feedback on my defence?[/FONT]
[FONT="]Apologies for the length of this post, I want to provide you with information and make sure I have the correct wording. I don’t want to submit anything I do not understand...[/FONT]
[FONT="]
General information for you...
I let a group of friends use my van to move house. They picked it up from my family home but returned it to my rented flat as I asked them to. The vehicle was left parked in a parking bay that is allocated to that flat. When I received the NTK I did ask my friends who dropped off the vehicle, but nobody was willing to admit to being the driver, or taking the windscreen notice, which I assume they did as I never found anything.
[/FONT][FONT="] I rented the flat because it was advertised as having an assigned parking space. My tenancy agreement makes no mention of any need to display a parking permit in order to use this parking space.[/FONT][FONT="]
[/FONT]
[FONT="]The specific car park for my block of flats only had one sign within its boundary, high up on a lamppost and behind the vehicle when it was reversed in to the bay. There were no entry or exit signs, in fact there are other signs that give the impression that the area under management does not start until you get further into the site potentially misleading motorists into believing the car park related to my block of flats isn’t part of the zone. Basically it was easily possible to enter the car park, reverse into the parking bay, get out of the vehicle and walk out, without ever seeing a sign.[/FONT]
[FONT="]The ‘entrance signs’ that are after the entrance to the relevant car park actually say “Private Property. Parking For Residents Only. xxxx xxxx Management Company limited”. The signs potentially contradict aspects of the PPCs signs, but I’m not sure how relevant this will be.[/FONT]
[FONT="]After I sent the PPC (a member of the IPC AOS) an 'appeal' 2 additional signs were put up within the boundary of the car park.[/FONT]
[FONT="]
So the 3 aspects of my defence will essentially be[/FONT]
Defence below is primarily based on the one written by johnersh (thank you), with some changes where I think they had to be made and some tweaks so I felt comfortable with it. I want to completely understand anything I write in the formal documents.[/FONT]
Couple of points I want to test here……
The advert for the property I am renting included "assigned parking", but the tenancy agreement has zero reference to parking. However, as far as I am concerned the parking bay was part of the property I was renting as indicated by the rightmove advert. I’m therefore uncertain of the wording in para 4 and 5. Specifically I think the right to park is inferred rather than explicitly mentioned in the tenancy. I have changed some of the wording, but would appreciate your expert opinions.
Should 6.3 and some of 7.2 be included? I thought talking about them actually losing money was not something to argue anymore?
Should I add more details to 7.1 and the sub items to mention potentially misleading signs, or leave this for the more detailed witness statement?
Should I also highlight the unreasonable addition of £60, which seems to be the ‘no win no fee’ for DRP and is effectively double accouting?
Thank you very much for being here to help us all.
[FONT="]
[/FONT]
IN THE COUNTY COURT
CLAIM No: xxxxxxxxxx
BETWEEN:
UK CAR PARK MANAGEMENT LTD (Claimant)
-and-
xxxxxxxxxxxx (Defendant)
DEFENCE
Background
1. It is admitted that at all material times the Defendant is the registered keeper of vehicle registration mark xxxxx which is the subject of these proceedings.
2. It is admitted that on xxxxx the Defendant's vehicle was parked in the parking bay assigned to xxxxx, which is a part of the location referred to as xxx in the Particulars of Claim.
3. It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.
3.1. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA")
3.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
3.3. It is not admitted that the Claimant has complied with the relevant statutory requirements.
Authority to Park and Primacy of Contract
4. It is denied that the Defendant or lawful users of his vehicle were in breach of any parking conditions as permission to park had been granted by the current occupier and leaseholder of xxxxx. The Defendant avers that there was an entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms. The lease terms provide an inferred right to park a vehicle in the relevant allocated 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.
5. The Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted. 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. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial.
6. Accordingly it is denied that:
6.1. there was any contractual agreement as between the Defendant or driver of the vehicle and the Claimant
6.2. there was any obligation (at all) to display a permit; and
6.3. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.
Alternative Defence - Failure to set out parking terms clearly
7. In the alternative, the Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to consider the imposition of 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.
7.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate.
7.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;
7.1.2. 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
7.1.3. 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
7.2. 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 the Claimant distinguished.
8. 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.
9. It is denied that the Claimant has any entitlement to the sums sought.
10. 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.
STATEMENT OF TRUTH
I confirm that the contents of this Defence are true.
[FONT="]I've received a Claim Form from the CCBC in Northampton, please could you provide some feedback on my defence?[/FONT]
[FONT="]Apologies for the length of this post, I want to provide you with information and make sure I have the correct wording. I don’t want to submit anything I do not understand...[/FONT]
[FONT="]
General information for you...
I let a group of friends use my van to move house. They picked it up from my family home but returned it to my rented flat as I asked them to. The vehicle was left parked in a parking bay that is allocated to that flat. When I received the NTK I did ask my friends who dropped off the vehicle, but nobody was willing to admit to being the driver, or taking the windscreen notice, which I assume they did as I never found anything.
[/FONT][FONT="] I rented the flat because it was advertised as having an assigned parking space. My tenancy agreement makes no mention of any need to display a parking permit in order to use this parking space.[/FONT][FONT="]
[/FONT]
[FONT="]The specific car park for my block of flats only had one sign within its boundary, high up on a lamppost and behind the vehicle when it was reversed in to the bay. There were no entry or exit signs, in fact there are other signs that give the impression that the area under management does not start until you get further into the site potentially misleading motorists into believing the car park related to my block of flats isn’t part of the zone. Basically it was easily possible to enter the car park, reverse into the parking bay, get out of the vehicle and walk out, without ever seeing a sign.[/FONT]
[FONT="]The ‘entrance signs’ that are after the entrance to the relevant car park actually say “Private Property. Parking For Residents Only. xxxx xxxx Management Company limited”. The signs potentially contradict aspects of the PPCs signs, but I’m not sure how relevant this will be.[/FONT]
[FONT="]After I sent the PPC (a member of the IPC AOS) an 'appeal' 2 additional signs were put up within the boundary of the car park.[/FONT]
[FONT="]
So the 3 aspects of my defence will essentially be[/FONT]
- [FONT="]The NTK was inadequate in that it did not appropriately define land where the vehicle was parked (I’d challenge anybody to identify the location of my vehicle based solely on the information in the NTK, so far I have found 7 residential areas of the same name throughout the UK).[/FONT]
- [FONT="]Defence: Primacy of contract[/FONT]
- [FONT="]Alternative: Inadequate and misleading signage (PPC clearly agrees as they added more)[/FONT]
- [FONT="]I have completed the AOS online following the guidance in the newbies thread. 28 Days after Day of Service = 17th August[/FONT]
- [FONT="]I have read the newbies thread and lots of other threads. It is overwhelming, but after about 50 hours of effort I think I have an understanding of the basics[/FONT]
- [FONT="]I have complained to my MP (actually to the MPs responsible for my family home and the rented property)[/FONT]
- [FONT="]I want to put in a counter claim, but I am not sure I am confident enough, just trying to defend this is hard enough
[/FONT]
Defence below is primarily based on the one written by johnersh (thank you), with some changes where I think they had to be made and some tweaks so I felt comfortable with it. I want to completely understand anything I write in the formal documents.[/FONT]
Couple of points I want to test here……
The advert for the property I am renting included "assigned parking", but the tenancy agreement has zero reference to parking. However, as far as I am concerned the parking bay was part of the property I was renting as indicated by the rightmove advert. I’m therefore uncertain of the wording in para 4 and 5. Specifically I think the right to park is inferred rather than explicitly mentioned in the tenancy. I have changed some of the wording, but would appreciate your expert opinions.
Should 6.3 and some of 7.2 be included? I thought talking about them actually losing money was not something to argue anymore?
Should I add more details to 7.1 and the sub items to mention potentially misleading signs, or leave this for the more detailed witness statement?
Should I also highlight the unreasonable addition of £60, which seems to be the ‘no win no fee’ for DRP and is effectively double accouting?
Thank you very much for being here to help us all.
[FONT="]
[/FONT]
IN THE COUNTY COURT
CLAIM No: xxxxxxxxxx
BETWEEN:
UK CAR PARK MANAGEMENT LTD (Claimant)
-and-
xxxxxxxxxxxx (Defendant)
DEFENCE
Background
1. It is admitted that at all material times the Defendant is the registered keeper of vehicle registration mark xxxxx which is the subject of these proceedings.
2. It is admitted that on xxxxx the Defendant's vehicle was parked in the parking bay assigned to xxxxx, which is a part of the location referred to as xxx in the Particulars of Claim.
3. It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.
3.1. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA")
3.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
- there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
- that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
3.3. It is not admitted that the Claimant has complied with the relevant statutory requirements.
Authority to Park and Primacy of Contract
4. It is denied that the Defendant or lawful users of his vehicle were in breach of any parking conditions as permission to park had been granted by the current occupier and leaseholder of xxxxx. The Defendant avers that there was an entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms. The lease terms provide an inferred right to park a vehicle in the relevant allocated 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.
5. The Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted. 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. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial.
6. Accordingly it is denied that:
6.1. there was any contractual agreement as between the Defendant or driver of the vehicle and the Claimant
6.2. there was any obligation (at all) to display a permit; and
6.3. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.
Alternative Defence - Failure to set out parking terms clearly
7. In the alternative, the Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to consider the imposition of 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.
7.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate.
7.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;
7.1.2. 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
7.1.3. 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
7.2. 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 the Claimant distinguished.
8. 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.
9. It is denied that the Claimant has any entitlement to the sums sought.
10. 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.
STATEMENT OF TRUTH
I confirm that the contents of this Defence are true.
0
Comments
-
What is the Issue Date on your Claim Form?0
-
To counter claim you need a cause of action for the POC, to decide on a claim figure , to have evidence and to pay a fee at the start, so as this will be a high bar to meet if it's anxiety and harassment think carefully before doing so
Getting your costs back of say £95 and complaining about unreasonableness etc may mean extra costs for them on top, which may yield dividends
Wanting to do damage and actually having a case to do so are different topics
Everyone wants to hit back, but choose your battles wisely0 -
With a Claim Issue Date of 15th July, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Monday 19th August 2019 to file your Defence.The Issue Date on the Claim Form is the 15th of July 2019
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.
- Sign it and date it.
- Scan the signed document back in and save it as a pdf.
- Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
- 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'.
- Log into MCOL after a few days to see if the Claim is marked "defence received". If not chase the CCBC until it is.
- Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire, they are just trying to keep you under pressure.
- 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.
0 - Sign it and date it.
-
You seem to have a pretty good understanding of the process.
What does the landowner/MA/lessor have to say about this claim as whoever employed the scammers is jointly liable for the actions of their agents?I married my cousin. I had to...I don't have a sister.
All my screwdrivers are cordless."You're Safety Is My Primary Concern Dear" - Laks0 -
You seem to have a pretty good understanding of the process.
What does the landowner/MA/lessor have to say about this claim as whoever employed the scammers is jointly liable for the actions of their agents?
Hi Fruitcake,
I haven't contacted the Landlord but I spoke to the letting agent that represents them. They were shocked that a resident had been ticketed, but didn't want anything to do with it.
I struggled to work out who the landowner is. There's a limited management company, which I can find references to online, but then it gets complicated as to who they are and where they are based. One of the residents in the block is apparently a director of the mangement company, but when I spoke to her she just didn't care.0 -
Nine times out of ten these tickets are scams so, if you need a bit of muscle, complain to your MP.
Parliament is well aware of the MO of these private parking companies, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, persistent offenders denied access to the DVLA database and unable to operate.
Hopefully life will become impossible for the worst of these scammers, but until this is done you should still complain to your MP, citing the new legislation.
http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted
Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.You never know how far you can go until you go too far.0 -
Nine times out of ten these tickets are scams so, if you need a bit of muscle, complain to your MP.
Parliament is well aware of the MO of these private parking companies, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, persistent offenders denied access to the DVLA database and unable to operate.
Hopefully life will become impossible for the worst of these scammers, but until this is done you should still complain to your MP, citing the new legislation.
Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.
Thanks The Deep,
I wrote to my MP and mentioned my case and my MP spoke to Greg Knight on my behalf.
As part of my background research I even read every transcript word of all of the stages of Sir Greg Knights bill as it went through parliament.1 -
It sounds a possibility (given what you say about a resident being a director) that the owners of the properties may own the freehold of the estate too.
Can you speak to the landlord. They would have some knowledge of this and will also have a copy of their lease which may have reference to parking.
You mention the lease in your defence - do you mean this or do you mean tenancy agreement? And what does the tenancy agreement actually say about the parking space? You say "inferred" right - not sure what you mean by that.
Sorry - may be me!. But I am not entirely clear.0 -
Hi NeilCr,
Thanks for the insight, I will try to contact the landlord and find out if this is the case. If I cannot contact the landlord specifically the folks in the flat above are owners and one of them was a director for 1 month (apparently it was just awful), so he may know more.It sounds a possibility (given what you say about a resident being a director) that the owners of the properties may own the freehold of the estate too.
Can you speak to the landlord. They would have some knowledge of this and will also have a copy of their lease which may have reference to parking.
Thanks. I mean the tenancy agreement that I have between me and the landlord. I either forgot to change that from the template or might have thought they were the same thing. I shall re-wordYou mention the lease in your defence - do you mean this or do you mean tenancy agreement? And what does the tenancy agreement actually say about the parking space? You say "inferred" right - not sure what you mean by that.
My tenenacy agreement makes no mention of parking at all. However the advert used to market the property sepcifically mentioned in the Key Features... "Allocated Parking Space"... and then again in the Full Description it says "...and there is a reserved parking space outside."
The way I have interpreted my tenancy agreement is that 1) the advert specifically mentions that the parking space is included in the rental of the property and therefore the tenancy agreement covers the parking space as well 2) the agreement itself does not ask me to dislay a permit.
So while parking is not explicitly mentioned in the tenancy agreement I believe the parking space is part of the property and so by renting the property I have also rented the parking space.
Does that makes sense?0
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