We'd like to remind Forumites to please avoid political debate on the Forum... Read More »
IMPORTANT: Please make sure your posts do not contain any personally identifiable information (both your own and that of others). When uploading images, please take care that you have redacted all personal information including number plates, reference numbers and QR codes (which may reveal vehicle information when scanned).
Resident Parking Fine-No Permit Displayed
Robos
Posts: 3 Newbie
I own an apartment within a complex, and there is no allocated parking as whoever comes first gets parking. The parking area is managed by UK CPM. I received a claim form from the County Court Business Centre. Claim is in reference to “parking in breach of terms of parking stipulated on the signage (contract)”, which took place on last year breaching the terms of parking/not displaying a permit.
On the date in question, I had parked as usual in any parking space, though my permit had fallen from my windscreen and become lodged between the windscreen and the top of the dashboard. Since the land is a private property, I ignored the PCN, DRP Debt recovery and Gladstone letters. The claim form did not provide photos of my car as I was expecting
I have completed AOS, now I want to prepare my defence, as shown blow please review and advice.
IN THE COUNTY COURT
CLAIM No: xxxxxxxxx
BETWEEN:
UK CAR PARK MANAGEMENT LTD (Claimant)
-and-
ME (Defendant)
________________________________________
DEFENCE STATEMENT
________________________________________
1. It is admitted that at all material times the Defendant is the registered keeper of vehicle registration mark XXXXXX which is the subject of these proceedings. The vehicle was insured with 2 drivers permitted to use it.
1.1 It is admitted that on DATE the Defendant's vehicle was parked at LOCATION and the Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
2. The Particulars of Claim on the N1 Claim Form refer to 'Parking Charge(s)' incurred on 10 OCTOBER 2018. However, they do not state the basis of any purported liability for these charges, in that they do not state what the terms of parking were, or in what way they are alleged to have been breached. In addition, the particulars state 'The Defendant as the driver/keeper of the vehicle' which indicates 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.
3. The Particulars refer to the material location as ”XXX”. The Defendant has, since 09 February 2011, held legal title under the terms of a lease, to “XXX” at that location. At some point, the managing agents contracted with the Claimant company to enforce parking conditions at the estate.
4. The outside car parking area is open to all residents to park as it is un allocated parking.
5. Under the terms of the Defendant's lease, The Schedule Part 1, item 11 on page xx states the defendant has, “the right in common with others entitled thereto from time to time to park one domestic private motor vehicle only on the Estate in any free parking space other than those specifically allocated or to be allocated.” Clearly the defendant had the right to park on the free parking space as a resident and owner of a property. The leases are a self-contained set of rights and obligations. They grant a leasehold title in relation to the parking space and the flat/houses. Therefore, the claimant has no right to charge a penalty for parking in it, irrespective of the display of a permit.
5.1 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. Therefore, my case relies on Primacy of Contract. I refer previous cases such as Pace v Mr N [2016] C6GF14F0 [2016] (Exhibit C), where it was found that the parking company could not override the tenant's right to park by requiring a permit to park.
6. 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.
7. The Claimant, or Managing Agent, in order to establish a right to impose unilateral terms which vary the terms of the lease, must have such variation approved by at least 75% of the leaseholders, pursuant to s37 of the Landlord & Tenant Act 1987, and the Defendant is unaware of any such vote having been passed by the residents.
8. The Defendant's vehicle clearly was 'authorised' as per the lease and the Defendant relies on primacy of contract and avers that the Claimant's conduct in aggressive ticketing is in fact a matter of tortious interference, being a private nuisance to residents. In this case the Claimant continues to cause a substantial and unreasonable interference with the Defendant's land/property, or his/her use or enjoyment of that land/property.
9. The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 as a binding precedent on the lower court. However, that only assists the Claimant if the facts of the case are the same, or broadly the same. In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas it is the Defendant's position that no such breach occurred in this case, because there was no valid contract, and also because the 'legitimate interest' in enforcing parking rules for retailers and shoppers in Beavis does not apply to these circumstances. Therefore, this case can be distinguished from Beavis on the facts and circumstances.
10. The Claimant has at no time provided an explanation how the sum has been
calculated, the conduct that gave rise to it or how the amount has climbed from £100 to £160. This appears to be an added cost with apparently no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows. 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.
10.1 No figure for additional charges was 'agreed' nor could it have formed part of the alleged 'contract' because no such indemnity costs were quantified on the signs. Terms cannot be bolted on later with figures plucked out of thin air.
10.2 The Claimant described the charge of £50.00 "legal representative costs" not "contractual costs" CPR 27.14 does not permit these to be recovered in the Small Claims Court.
10.3 The burden of proof is on the Operator to prove their case on balance of probabilities. In the present case, I find that although the Operator has provided a breakdown of their costs, they have not clearly shown how did they arrive to legal advice costs and I am therefore, not satisfied that the Operator has proved that the parking charge represents a genuine pre-estimate of loss.
10.4 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.
11. For all or any of the reasons stated above, the Court is invited to dismiss the Claim in its entirety. Given that the claim is based on an alleged contractual parking charge of £100, which is in breach of the defendant’s lease and already significantly inflated and mostly representing profit. This was also not found in Beavis case as the claimant ma suggest. The Defendant avers that this inflation of the considered amount is a gross abuse of process.
I believe that the facts stated in this Defence are true.
Name Claimant
On the date in question, I had parked as usual in any parking space, though my permit had fallen from my windscreen and become lodged between the windscreen and the top of the dashboard. Since the land is a private property, I ignored the PCN, DRP Debt recovery and Gladstone letters. The claim form did not provide photos of my car as I was expecting
I have completed AOS, now I want to prepare my defence, as shown blow please review and advice.
IN THE COUNTY COURT
CLAIM No: xxxxxxxxx
BETWEEN:
UK CAR PARK MANAGEMENT LTD (Claimant)
-and-
ME (Defendant)
________________________________________
DEFENCE STATEMENT
________________________________________
1. It is admitted that at all material times the Defendant is the registered keeper of vehicle registration mark XXXXXX which is the subject of these proceedings. The vehicle was insured with 2 drivers permitted to use it.
1.1 It is admitted that on DATE the Defendant's vehicle was parked at LOCATION and the Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
2. The Particulars of Claim on the N1 Claim Form refer to 'Parking Charge(s)' incurred on 10 OCTOBER 2018. However, they do not state the basis of any purported liability for these charges, in that they do not state what the terms of parking were, or in what way they are alleged to have been breached. In addition, the particulars state 'The Defendant as the driver/keeper of the vehicle' which indicates 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.
3. The Particulars refer to the material location as ”XXX”. The Defendant has, since 09 February 2011, held legal title under the terms of a lease, to “XXX” at that location. At some point, the managing agents contracted with the Claimant company to enforce parking conditions at the estate.
4. The outside car parking area is open to all residents to park as it is un allocated parking.
5. Under the terms of the Defendant's lease, The Schedule Part 1, item 11 on page xx states the defendant has, “the right in common with others entitled thereto from time to time to park one domestic private motor vehicle only on the Estate in any free parking space other than those specifically allocated or to be allocated.” Clearly the defendant had the right to park on the free parking space as a resident and owner of a property. The leases are a self-contained set of rights and obligations. They grant a leasehold title in relation to the parking space and the flat/houses. Therefore, the claimant has no right to charge a penalty for parking in it, irrespective of the display of a permit.
5.1 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. Therefore, my case relies on Primacy of Contract. I refer previous cases such as Pace v Mr N [2016] C6GF14F0 [2016] (Exhibit C), where it was found that the parking company could not override the tenant's right to park by requiring a permit to park.
6. 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.
7. The Claimant, or Managing Agent, in order to establish a right to impose unilateral terms which vary the terms of the lease, must have such variation approved by at least 75% of the leaseholders, pursuant to s37 of the Landlord & Tenant Act 1987, and the Defendant is unaware of any such vote having been passed by the residents.
8. The Defendant's vehicle clearly was 'authorised' as per the lease and the Defendant relies on primacy of contract and avers that the Claimant's conduct in aggressive ticketing is in fact a matter of tortious interference, being a private nuisance to residents. In this case the Claimant continues to cause a substantial and unreasonable interference with the Defendant's land/property, or his/her use or enjoyment of that land/property.
9. The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 as a binding precedent on the lower court. However, that only assists the Claimant if the facts of the case are the same, or broadly the same. In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas it is the Defendant's position that no such breach occurred in this case, because there was no valid contract, and also because the 'legitimate interest' in enforcing parking rules for retailers and shoppers in Beavis does not apply to these circumstances. Therefore, this case can be distinguished from Beavis on the facts and circumstances.
10. The Claimant has at no time provided an explanation how the sum has been
calculated, the conduct that gave rise to it or how the amount has climbed from £100 to £160. This appears to be an added cost with apparently no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows. 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.
10.1 No figure for additional charges was 'agreed' nor could it have formed part of the alleged 'contract' because no such indemnity costs were quantified on the signs. Terms cannot be bolted on later with figures plucked out of thin air.
10.2 The Claimant described the charge of £50.00 "legal representative costs" not "contractual costs" CPR 27.14 does not permit these to be recovered in the Small Claims Court.
10.3 The burden of proof is on the Operator to prove their case on balance of probabilities. In the present case, I find that although the Operator has provided a breakdown of their costs, they have not clearly shown how did they arrive to legal advice costs and I am therefore, not satisfied that the Operator has proved that the parking charge represents a genuine pre-estimate of loss.
10.4 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.
11. For all or any of the reasons stated above, the Court is invited to dismiss the Claim in its entirety. Given that the claim is based on an alleged contractual parking charge of £100, which is in breach of the defendant’s lease and already significantly inflated and mostly representing profit. This was also not found in Beavis case as the claimant ma suggest. The Defendant avers that this inflation of the considered amount is a gross abuse of process.
I believe that the facts stated in this Defence are true.
Name Claimant
0
Comments
-
If it is private property and you had the landowner,s permission to park, then under the CRA 2015 the PPC are offering you nothing
No consideration equals no contract
See the thread by Jestershoe and add to the defence, plus abuse of process over spurious charges if it's not in there ?
Post the issue date from the CCBC claim form below0 -
This is only relevant if the keeper is being held liable under Protection of Freedoms Act 2012 (Schedule 4) and the driver has not been identified.This appears to be an added cost with apparently no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows. 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.
You have to be very careful what you write on a public forum .....On the date in question, I had parked as usual in any parking space, though my permit had fallen from my windscreen and become lodged between the windscreen and the top of the dashboard.
However, if the PPC has met all PoFA requirements then it can hold the keeper liable, so little point in trying to hide behind PoFA. It's a much easier task to put your case before a Judge if you're not trying to squeeze through any loopholes. But you will need to check first whether the dates and statements made in the Notice to Keeper meet the strict requirements of PoFA.
Ditch GPEOL - the train crash that was Beavis all but destroyed that as an argument.10.3 The burden of proof is on the Operator to prove their case on balance of probabilities. In the present case, I find that although the Operator has provided a breakdown of their costs, they have not clearly shown how did they arrive to legal advice costs and I am therefore, not satisfied that the Operator has proved that the parking charge represents a genuine pre-estimate of loss.Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.Private Parking Firms - Killing the High Street0 -
Definitely ditch Beavis , and a driver witness defence may be better for a residential case like this where you have always been able to park , meaning pofa is irrelevant , hence why you should read the case by Jestershoe0
-
The issue date of the CCBC claim is 8 Aug.
This was a residential parking of which I own a house/flat there.
Thanks for the advice0 -
Read the thread by johnsmith1980 which lost today
Try not to repeat it by knowing what to do , what to write , what to avoid etc0 -
I am going to assume you did the Acknowledgement of Service before 27th August - yesterday. Please confirm.The issue date of the CCBC claim is 8 Aug.
With a Claim Issue Date of 8th August, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Tuesday 10th September 2019 to file your Defence.
That's nearly two weeks away. Plenty of time to produce a 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 [URL="https://forums.moneysavingexpert.com/discussion/4816822NEWBIES FAQ sticky thread[/URL] to find out exactly what to do with it.
0 - Sign it and date it.
-
Thank you so much for your asistance and I can confirm I completed the acknowlegement later on the 13 of August.
I will prepare my defense and share here too.0
This discussion has been closed.
Confirm your email address to Create Threads and Reply
Categories
- All Categories
- 350.1K Banking & Borrowing
- 252.8K Reduce Debt & Boost Income
- 453.1K Spending & Discounts
- 243K Work, Benefits & Business
- 597.4K Mortgages, Homes & Bills
- 176.5K Life & Family
- 256K Travel & Transport
- 1.5M Hobbies & Leisure
- 16.1K Discuss & Feedback
- 37.6K Read-Only Boards