BW Legal Defence Thread - WS Stage - Court Date < 2 weeks

JP26

Thanks Keith, I will call them tomorrow first thing. What a nightmare.

It would be a farce if I had missed the deadline through the failure of Royal Mail.

KeithP

Even if you have missed the deadline, don't give up.

Put the finishing touches to your Witness Statement and gather the rest of your evidence, and don't forget your Costs Schedule.

JP26

So I can still rely on my witness statement even If I haven't submitted it to the courts by the deadline? I'll get working on that this evening. 

Since I last posted I also obtained a copy of the lease agreement for the property where I was issued the PCN. The lease itself is dated 1985, very short, and has no mention of parking or having to display a permit, other than:

'The tenant has the right to use at all times and all reasonable purposes the external common and internal common areas ( which include parking'

'Not to use or permit to be used the demised premises for any purpose other than as a private residence and the car parking space for the parking of one private vehicle only.'

There is also no clause that relates to the landlord being able to make amendments to the lease that could involve authorising third party parking operators, so I'm hoping this can support my defence point of the primacy of contract.

KeithP

Fro time to time we see Witness Statements get filed late on here.

Even seen a WS taken on the day to the hearing and the Defendant still won.

Not suggesting you do it that late though.

JP26

Spoke to the courts this morning, they confirmed a notice of allocation was sent on 10/12/19, which I obviously never received. The 14 day deadline for filing my evidence is today, so they are asking the judge to reschedule the hearing date. 

Fingers crossed. 

nosferatu1001

You were expecting a notice of allocation, so while the post didnt deliver, you also didnt chase it up. Theres some failure on both sides.
Dont "fingers crossed"
Get your WS written. Today. BY 4pm . FILE IT ANYWAY. 
Because if the judge says no, and you havent written it, youre now even closer to the hearing date.
Prudence requires you to be active here. 
That lease sounds golden
I would be tempted to send them a letter incouding a copy of the lease and giving THEM an offer to settle - they pay you your £100 costs of hearing NOW, and they dont have to hire someone for the day to go along to court and lose. 

JP26

Indeed, I know the wheels of justice move slowly but exactly how slow I wasn’t sure. Otherwise I would have chased. Luckily the judge has granted an extension until the 25th, and I’m half way through my WS and gathering my evidence. Thanks all for your help on this, and good idea @nosferatu1001on the letter, I’ll put one together and send it, they didn’t respond to my last letter regarding the lease but hopefully a copy will get their attention.

nosferatu1001

Phew. You have that in writing?
Give them 7 days to accept your offer. 
Exhibits are referenced INITIALS/001. No other method. 

JP26

Today I received confirmation of the extension to submit my WS by next Tuesday, with the hearing scheduled for the 2nd.

I also received a copy of BW legal’s WS, and some of their responses to my defence have me a bit concerned. I’m 70% through my WS, but wanted to get some help from here in case this influences WS further.

Primacy of Contract:

1. They have included a copy of the lease, and quote the following with regards to primacy of contract:

“Not to use the External Common Areas for any purposes other than ( where appropriate) recreation and leisure and in accordance with any directions for use made by the lessor or any company firm or person or persons responsible for the time being as Managing Agents in the cultivation and maintenance of the External Common Areas.”

>My thoughts on this are that by looking at  the site map, the parking area ( Star’d) has not been marked as an ‘External common Area’, would appreciate a second pair of eyes:

https://drive.google.com/drive/folders/1slXB_npRz9k4LmsBkt6M67RWRRfq34_6?usp=sharing

This clause also refers to ‘any company firm or person or persons responsible for the time being as Managing Agents’. To me, this sounds like any person or company who is acting as the Managing Agent and NOT a third party company in addition to the managing agent. Can someone confirm please?

They have also included a copy of the agreement between the Management company and BPS ltd.

They also state that:

“The claimant notes that the Defendant is not a resident of XXX and submits that the Defendant’s allegations in relation to primacy of contract are irrelevant as the Defendant is not a party to the lease.”

> This has concerned me from the beginning, does it matter than the Lease agreement is not a contract that I signed or am part of? OR is it the case that the lease governs the land and permissions for all occupiers and not just the leaseholder? 

The rest is just a series of comments around my defence being a ‘copy and paste job from the internet’ and the ‘Claimant does not rely on the Protection of Freedoms Act 2012 and therefore any comments related to it are irrelevant.’

No comments on the abuse of process defence point however. 

 

nosferatu1001

1) Indeed - if it does not meet the definition, then they cant use this. 
Also
Parking regs dont do anything for "cultivation and maintenance"! Yes, only MAs
Lease - you had a licence to park by a lessee.