Residential PCN help please - ***I WON***

amateurgirl

Hello The Deep. Just read it and I'm pleased she won. I'm clearly missing something because I'm not sure why you asked me to read it?

amateurgirl

Hello again
I'm ready to post my defence but in your last post you said: "Alternatively copy the text into wordpad/notepad or similar and paste it here. Don't do it direct from Microsoft Word as it boggers up the formatting"
Does that mean I can't just copy and paste it from my Word document? I don't have wordpad or notepad.
thanks.

amateurgirl

Hello all
have taken a chance and copied my defence below. Please let me know your thoughts, I'm getting truly spaced out about this whole thing.
thanks



In The County Court Business Centre Claim No:
BETWEEN UK Parking Control Ltd Claimant
-and-
xxxxxxxxxxxxx Defendant

DEFENCE

I am xxxx the defendant in this matter and the registered keeper of vehicle xxxx.

I deny I am liable for the entirety of the claim on the following grounds:

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

The Particulars of Claim state that the Defendant was the registered keeper and/or the driver of the vehicle. These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5.

1. Background
1.1 The Defendant is the leasehold owner-occupier of a flat in a residential block on a private housing development and has resided there since it was built in 2001.
1.2 Under the Lease the Defendant is demised an allocated parking space giving the Defendant “The right to exclusive use of the Parking Space for the purpose of parking a private motor vehicle not exceeding three tonnes gross laden weight”. The location of the Parking Space is marked on the Parking Plan attached to the Lease. It is therefore evident that the Defendant has purchased the Parking Space along with the flat. There is no requirement anywhere in the lease for the display of a Parking Permit of any kind.
1.3 The Defendant’s vehicle was parked in the Defendant’s demised Parking Space on each of the occasions on which the Parking Charge Notices (PCN’s) were issued.
1.4 In 20xx, without any consultation with the Defendant or other residents, the Management Company unilaterally introduced a parking enforcement scheme using UKPC, a private parking management Company, for this purpose. UKPC’s signage appeared in the parking area following which all the residents received PCNs on their vehicles parked in their own spaces. It was not until after this that the Defendant and other residents received a letter from the Management Company informing them that that they had engaged UKPC to enforce parking on the Development and enclosing UKPC-branded parking permits. This was the first and only communication from the Management Company with the Defendant on this matter. There was no mention in the letter of the Lessor xxxx or that they had been involved.

2 No Variation of Lease and Primacy of Contract

2.1 The Defendant avers that the scheme introduced by the Management Company and operated by the Claimant constitutes a variation of the terms of the Lease. No such variation has ever been sought of the Defendant nor agreed by the Defendant.
2.2 The contract between UKPC and the Management Company requires that vehicles “Park within a marked bay” and “Display a valid permit at all times” and this is repeated on the parking signs. It therefore seeks to remove the Defendant’s right to “exclusive use” of the Defendant’s demised parking space and allows anyone with a permit to park there. This is a clear detriment to the Lessee and a Derogation from Grant under the Lease.
2.3 The Defendant refers the court to the cases of Link Parking v Parkinson 2016 C7GF50J7 and Pace Recovery v Mr N 2016 C7GF51J1 where District Judge Metcalf and District Judge Coonan respectively, ruled that the Management Company could not unilaterally vary the Lease.
2.4 Given there has been no variation to the Lease, the Lease has primacy of contract over any subsequent contract the Management Company has entered into with UKPC. The Defendant refers the court to the case of Jopson v Homeguard 2016 BNGF0A9E in which His Honour Judge Harris ruled that a resident’s Lease takes precedence over any arrangement between the Management Company and a third-parking Parking Management Company unless the Lease has been varied. The Defendant also refers the court to the case of UKPC v Mr Aziz 2017 C2HW01A6 in which District Judge Gibson ruled that UKPC had no authority to override the Lease.
2.5 In correspondence the Claimant has referred to a clause in the Defendant’s Lease which gives the Management Company the “power to make and at any time vary such Development Regulations as it may think fit for the preservation of the amenities of the Development or for the general convenience of the Dwellings”. Such ‘sweeping up clauses’ cannot in principle override the substantive terms of the Defendant’s Lease. There is no Development Regulation in the Lease relating to the Parking Space and no reference to the Management Company being involved at all in the operation or use of the Parking Space. The Defendant refers the court to the case of Link v Parkinson in which District Judge Metcalf questioned whether the management of the parking space fell within the ambit of the Management Company as it was not mentioned in the Lease. Even if the Management Company were entitled to introduce the Claimant’s parking scheme as a new Development Regulation, they are not entitled to impose a contractual relationship with a third party on the Defendant nor charge for any failing to comply with a new Development Regulation.

3 No Contract with the Claimant and Residential Parking

3.1 The Claimant avers that the Defendant entered into a contract with them by parking in the space. However the Defendant already had authority to park there under the Lease. There was no offer to the Defendant to park as the Defendant already had the right to park in the demised space and therefore the Defendant could and did not accept any such offer by parking in the space. There was no consideration as the Defendant already owned and had paid for the Parking Space under the Lease. The Defendant refers the court to the case of UKPC v Mr Aziz in which District Judge Gibson ruled that residents (or their visitors) would not agree to pay a charge of £100 to park in spaces they owned.
3.2 The Defendant refers the court to the case of UKPC v Sean Masterson 2016 B6QZ4H3R where Deputy District Judge Ellington ruled that UKPC signage identical to that installed on the Defendant’s Development, was ‘forbidding’ and thus sought to prohibit unauthorised parking rather than constitute an offer to contract to park. There was therefore no contract to park. The Judge ruled similarly in Horizon Parking v Mr J 2016 Guildford C5GF17X2 and that therefore the matter was one of trespass and as the claimant was not the landowner they could not bring such a claim.
3.3 In correspondence the Claimant refers to the case of Parking Eye Ltd v Beavis 2015 UKSC 67. However the circumstances in that case were very different in that it involved a commercial parking site and not private residential parking. In a number of cases since it has been decided that the loss and the commercial consideration that were essential to this ruling do not apply to private residential parking. As only the Defendant can legitimately park in the Defendant’s “exclusive” Parking Space there cannot be any loss to the Claimant nor any legitimate interest for anyone else, e.g. retailers or shoppers’ parking there.
3.4 The Defendant refers the court to the case of Pace Recovery v Mr N in which District Judge Coonan ruled that residential parking spaces were unlike a commercial site such as a supermarket and that the ruling did not apply. In Link Parking v Parkinson District Judge Metcalf took a similar view as did District Judge Gibson in UKPC v Mr Aziz.

4 Parking Charge Notice dated xxxx
4.1 The Defendant was on holiday until xxxx when this PCN was issued. During this time the parking permit had peeled off the car windscreen. The Defendant appealed the PCN via the Claimant’s online appeal process explaining this and that the PCN had been issued against the Defendant’s own vehicle parked in the Defendant’s own space. UKPC rejected the appeal giving no reasons for their decision. This was entirely unreasonable.
4.2 Although UKPC clearly supply the permits, as they are UKPC-branded, UKPC said a replacement permit had to be obtained via the Management Company. The Defendant has since provided the Claimant with copies of the Defendant’s email chain with the Management Company concerning a replacement permit. In the interim the Defendant taped a piece of white paper behind the imprint left behind by the lost permit on the windscreen to highlight it.

5 Parking Charge Notice dated xxxx
5.1 Despite reminders, the Management Company had still not provided a replacement permit by this date. An email from them on xxxx, a copy of which the Defendant has provided to the Claimant, clearly states the permit had not yet been sent but they would do so that day. The Claimant has a responsibility to communicate with its contractual partner where they are both involved in replacement permits, and not to issue PCN’s until a new one has been provided.
5.2 Clearly the Defendant could not display a permit which had not been provided by the Claimant nor its contractual partner the Management Company, and yet the Claimant has proceeded to take Court action knowing that the Defendant did not have a permit to display.
5.3 In correspondence, the Claimant refers to a “request for an exemption" of the vehicle, and stating that the Claimant had not received such a request. The Defendant avers that at no time had the Defendant been made aware of such an exemption process, nor had such an option ever been made available to the Defendant either by the Claimant or the Management Company.


6 Parking Charge Notice dated xxxx
6.1 On this day the Defendant arrived home having been away and found the new permit had been delivered. The Defendant emailed the Management Company at xxx to say it had been received. However when the Defendant went to place it in the vehicle it was found that another PCN had been issued earlier that day.
6.2 The Defendant refers the court to the case of Link Parking v Parkinson in which there was a similar issue of timing in relation to receipt of the permit. Link Parking was refused an appeal. The timing is unfortunate, but the Defendant could not have displayed the permit any sooner. Any reasonable procedure would allow time for new permits to be received (the Court allows 5 days for service). However as above the Claimant clearly does not communicate with its contractual partner over replacement permits. Again the Claimant has proceeded to Court in full knowledge of the timing.

7 Parking Charge Notice dated xxxx
7.1 The Defendant placed the new permit on the windscreen of the vehicle on xxxx and it has been displayed ever since. The Defendant uses the car only rarely and it is parked in the parking space at all times when not in use. The Claimant’s Operative will have visited the site on numerous occasions since that date and will have seen the permit in the windscreen. Only on this one occasion has the Operative alleged the permit to be a photocopy. The Defendant had no conceivable reason to replace a valid permit with a photocopy on this or any occasion.
7.2 The Claimant’s Operative gives no rationale for the allegation, merely a simple statement of “non-valid photocopied permit”. The photos provided by the Claimant look exactly the same as the recent photo taken of the same permit by the Defendant on xxxx except that the permit has faded over time.
7.3 The Defendant avers that anybody can say that something is a photocopy. The Operative’s statement alone is not sufficient to prove the claim given the complete lack of any supporting evidence. All the evidence is to the contrary in that, on every other occasion the Claimant’s Operatives have visited the site, no further PCN’s have been issued thus implying that the Operatives have recognised a valid permit on display.
In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

Statement of Truth
I believe the facts stated in this Defence are true.
Signed:
Full Name:
Dated:

The_Deep

An excellent effort, but why do you display a permit if your lease entitles you to park, they cannot 0ffer you anything you do not already have.

Read this

https://forums.moneysavingexpert.com/discussion/5969018jestershoe&page=5 post 93 et seq

Have you considered counter claiming? read this

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

Nine times out of ten these tickets are scams so consider complaining to your MP.

Parliament is well aware of the MO of these private parking companies, many of whom are former clampers, 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.

Redx

Read the thread by Jestershoe where no consideration = no contract when permission to park exists

amateurgirl

Thank you both.
Thanks for your point, The Deep, I will amend the defence to cover this.
Is this defence suitable now to be lodged with the court? I have about 10 days before it's due in but it would be a relief if I could do so now. I've seen your guidelines in other posts on how best to lodge a defence i.e., save as a PDF and scan it to email, but I have no access to scanning facilities so planned to send it in hard copy along with the N1 I received from the court. Do you have any views on this?
Thank you all, I do so appreciate your help.

Redx

Take a picture of your signature on a piece of paper and add it to your pdf as a digital signature , instead of printing and scanning

Check what Jestershoe put in her defence, against yours , adapting where possible

amateurgirl

Hello Redx. Thanks for the tip. I've found jestershoe's defence and agree it's a good one. Is it just her points about no consideration = no contract that I need to adapt mine to or are there other aspects? Or is it the whole thing?
thanks.

Redx

Add or adapt anything that helps your defence, remove anything that doesn't, just apply common sense

She won using the CRA 2015

amateurgirl

Thanks Redx. I'm not sure what doesn't help my defence - I thought it all did! Can you give me any pointers please as to what doesn't help?
thanks.