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

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I don't comment on defences or witness statements other than common sense, spelling errors etc and incorrect facts, but I will point people at other interesting cases that may be relevant

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amateurgirl

Hello all
please see below my revised Defence for your approval please. I have less time than I thought to lodge it so please respond asap!.
thanks all.

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

DEFENCE

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

1.2 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 list of options. 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.

2. Background
2.1 It is admitted that at all material times the Defendant was the registered keeper of vehicle registration xxxxxx which is the subject of these proceedings.

2.2 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.
Under the Defendant’s 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 and forming part of the Lease. The Lease contains no clause requiring a permit to park, nor any clause requiring the Leaseholder or those authorized by the Leaseholder to make payments to any third party who is a stranger to that lease.

2.3 The Defendant’s vehicle was parked in the Defendant’s demised Parking Space on the material dates and was parked in the Parking Space in accordance with the terms of the Lease.

3. Authority to park and Primacy of Contract
3.1 In xxxx without any consultation with the Defendant or other residents the Management Company unilaterally introduced a parking management scheme using UKPC, a private parking management company, for this purpose. UKPC’s signage appeared in the parking areas immediately upon 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 manage 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 or that they had been involved at any stage.

3.2 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. Under s37 of the Landlord and Tenant Act 1987 the Management Company would require the approval of 75% of the leaseholders in order to impose unilateral terms that vary the lease. No such variation has ever been sought by the Management Company nor agreed by the Defendant. The Defendant will rely upon the judgments in 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.

3.3 The Defendant avers that in the absence of a variation to the Lease the Lease has primacy of contract over any subsequent contract the Management Company has entered into with UKPC. The Defendant will rely upon the judgment in the case of Jopson v Homeguard 2016 BNGF0A9E in which His Honour Judge Harris ruled that unless the Lease has been varied a resident’s Lease takes precedence over any arrangement between the Management Company and a third-parking Parking Management Company.

3.4 The Defendant therefore denies that the Claimant has any authority over the Leaseholder’s property and avers that the Claimant has no authority to bring a claim. The Claimant does not own the land on which the vehicle was parked nor do they have any interest in the land. Therefore, the Claimant lacks the capacity to offer parking. The Defendant will rely upon the judgement in the case of UKPC v Mr Aziz 2017 C2HW01A6 in which District Judge Gibson ruled that UKPC had no authority to override the Lease.

3.5 The Claimant is put to strict proof that that they have a right to unilaterally remove or interfere with the overriding rights conferred by the Leasehold agreement.

3.6 The Claimant is put to strict proof that they have sufficient proprietary interest in the land or that they have the necessary authorization from the landowner to issue parking charge notices and to pursue payment by means of litigation.

3.7 In correspondence with the Defendant the Claimant relies on 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 will rely on the judgement in the case of Link Parking 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.

4. No Contract with the Claimant and Residential Parking
4.1 The Claimant avers that the Defendant entered into a contract with them by parking in the space. However there was no offer to the Defendant to park as the Defendant already had authority to park in the space under the Lease and therefore the Claimant could not make any such offer. The Defendant will rely upon 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. In Horizon Parking v Mr J 2016 Guildford C5GF17X2 the Judge ruled similarly.

4.2 The Defendant avers that as there was no offer there could be no acceptance and that the Defendant could not and did not accept any such offer by parking in the Defendant’s own Parking Space.

4.3 There was no consideration as the Defendant already owned and had paid for the Parking Space under the Lease. The Defendant will rely on 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. The Defendant will also rely on the case of VCS Ltd v Miss R in which the Judge ruled that parties to a contract must exchange something of value in order for there to be a consideration and VCS Ltd could not offer Miss R anything of value as she already had the right to park in her own demised residential parking space.

4.4 It is therefore denied that the Claimant has any 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.

4.5 In correspondence with the Defendant the Claimant refers to the case of ParkingEye Ltd v Beavis [2015] UKSC 67. However the Defendant avers that this case is distinguished from that of the Defendant’s in that it involved a commercial parking site and not private residential parking. The Defendant will rely on the cases of Pace Recovery v Mr N and Link Parking v Parkinson in which District Judge Coonan and District Judge Metcalf respectively ruled that the Beavis ruling did not apply to residential parking spaces as they were unlike commercial sites such as a supermarket. 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, to park there. In the case of UKPC v Mr Aziz District Judge Gibson ruled similarly. The Defendant avers that ergo the issued Parking Charge Notices are either unenforceable penalties which a private company is unable to issue or speculative invoices.

5. Fairness of the contractual terms and the ‘penalty’ in question

5.1 Section 5(1) of the Unfair Terms in Consumer Contracts Regulations 1999 provides that “a contractual term which has not been individually negotiated shall be regarded as unfair if contrary to the requirement of good faith it causes a significant imbalance in the parties’ rights and obligations under the contract, to the detriment of the consumer”.
The contract which the Claimant seeks to impose and which the Defendant had no choice but to enter into has not been individually negotiated and the Defendant avers that is therefore clearly unfair within the meaning of the 1999 Regulations.

5.2 The Claimant has added the sum of £60 to the original £100 parking charge for which no explanation or justification has been provided. Under Schedule 4 of the Protection of Freedoms Act the maximum sum which can be recovered is that specified in the Notice to Keeper which in this instance is £100. The Defendant avers that this additional sum represents an attempt at double recovery by the Claimant which the court should not uphold even in the event that judgment for Claimant is awarded. Furthermore the Defendant avers that no Legal Representative’s costs have actually been incurred by the Claimant and that the letters the Legal Representatives have sent are templates used as part of their mass litigation operation.

6. Derogation from Grant and Quiet Enjoyment
6.1 The contract document 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 Claimant’s signs. The Defendant avers that both the Claimant’s contract document and signs therefore seek to remove the Defendant’s right to “exclusive use” of the Defendant’s demised Parking Space granted under the Lease and allows anyone with a permit to park in the space. This is a clear detriment to the Lessee and constitutes Derogation from Grant under the Lease. The Defendant will rely on the case of William Hill (Southern) Ltd v Cabras Ltd (1986) in which Judge Nourse ruled that “the court will not construe a general provision in a lease so as to take away with the other hand that which has already been granted with one hand in the dispositive provisions of the lease”.

6.2 The Defendant’s Lease grants the Defendant the right to “peaceably hold and enjoy the Demised Premises and the rights hereby granted during the Term” and the Defendant avers that the terms of the Claimant’s contract and signs cause a substantial and unreasonable interference with the Defendant's property and quiet enjoyment of that property.

7. Summary
In summary the Defendant avers 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:

KeithP

What is the Issue Date on your County Court Claim Form?

amateurgirl

Hello KeithP
issue date is 31st July.

KeithP

amateurgirl wrote: »

Issue date is 31st July.

I'm going to assume you did the Acknowledgement of Service by Monday 19th August - last Monday.


With a Claim Issue Date of 31st July, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Monday 2nd September 2019 to file your Defence.

That's more than a week away.


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 [URL="https://forums.moneysavingexpert.com/discussion/4816822NEWBIES FAQ sticky thread[/URL] to find out exactly what to do with it.

amateurgirl

Hello again KeithP
no I did my AoS on 2nd August hence I say I've got little time left.
I am happy with my content so if no-one has any comments on it I will lodge it shortly.
I'm not able to scan my document as I don't have access to scanning facilities. I was planning on sending it in hard copy with the N1 form but I can save it as a pdf and email it as an attachment if that's better?

KeithP

It matters not when you did the AoS, as long as it was done before 19th August - which you did.

Hence I say... your target for filing your Defence is 4pm on Monday 2nd September 2019.

Emailing as a pdf is better. Much less chance of it getting lost.
But remember the pdf needs to be signed - maybe take a picture of your signature on very white paper and embed that photo in your Defence document at the appropriate place.

amateurgirl

Thanks Keith P.
I know this isn't an IT advisory site but I've no idea how to embed a photo into my document?

amateurgirl

Hello all
I’ve sent off my defence so now I need to think about my witness statement. I’ve also drafted a SAR letter but I’ve already got quite a bit of info from them that I’ve collected over time so I wonder if it’s worth sending the SAR? Your views appreciated!
Thanks.

KeithP

Why would you not send a SAR?

You say you have already written it, so send it.

Where does 'worth' come into it? It's not a massive cost sending an email is it?