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

JP26

Thanks @nosferatu1001

Re: the lease, I had permission to park from the tenants living in the flat, not the actual Lessee. Does that matter?

D_P_Dance

... To me, this sounds like any person or company who is acting as the Managing Agent  ...

Indeed, MAs are appointed to manage the block, collect services charges, carry out repairs, etc., etc., etc.  They are usually members ARMA  and often Chartered Surveyors. 

nosferatu1001

Teh tenants had a right to park?

JP26

nosferatu1001 said:

Teh tenants had a right to park?

Yes they do, I'll try and get a copy of the section which relates to parking in the tennacy agreement just in case. 

I can counter their point around that clause in the lease in my skeleton argument, correct?

JP26

I'm also assuming that their comment that they the claimant is not relying on POFA, relates to the fact they are pursuing me as the driver? Which they have assumed in earlier parts of the WS:

"As well as the PCN being affixed to the vehicle and the Defendant clearly being aware of te PCN ( as he appealed the PCN) the Defendant failed to provide any driver details. Furthermore, all correspondence from the claimant and its solicitors has been sent to the Defendant's current address. As such it is the claimants position that the Defendant has had various opportunities to provide the details of the driver prior to the claim being issued, but failed to do so."

Also:

"The claimant doubts that the list of individuals insured to drive the vehicle was so extensive. Therefore, it is the claimant’s position that, by a simple process of elimination that the individual responsible for the breach could have been identified. "

In my Defence, I state that :

" The Defendant, at all material times, parked in accordance with the terms granted by the lease.”

In my WS, I admit that I cannot recall who was driving when the offence occurred ( in June 2018). I have two other people insured on my policy at the time and friends would often use my car on their insurance policies. 

From my WS:

1.  My vehicle was parked at XX during the month of XXX 2018, other parties had use of my vehicle during this time, so I cannot recall who was driving at the time the contravention occurred. The claimant has offered nothing in the way of evidence as to the identity of the driver and if they wish to pursue the Defendant as driver rather than keeper, then they must produce strict proof instead of an assumption.

1.  In light of this, the claimant may only pursue the defendant as keeper of the vehicle in strict adherence to the stipulations outlined by Schedule 4 of the Protection of Freedoms Act 2012 (POFA 2012)

2. It is averred that the claimant has failed to do this on numerous points

3. Furthermore, the claimant may allege that there is a reasonable presumption that the registered keeper was also the driver, allowing them to circumvent the regulations of POFA 2012. The defendant expressly denies that there is any presumption in law that the keeper is the driver. The defendant denies that the keeper is obliged to name the driver to the private parking firm. POFA 2012 makes no such requirement for a keeper to do this.

1. The claimant may seek to rely on the findings of Elliot V Loake (1982) in alleging that the keeper can be presumed to have been the driver. In this criminal case, forensic evidence was produced to a criminal standard. Therefore, the same logic can absolutely not be applied in this instance.

Should I continue this line of defence? Even though I can’t prove I was NOT driving? 

JP26

Ok so here goes on my first WS draft. Have to say I'm feeling a little uneasy about the whole process right now, many hours spent and not 100% confident in my ability to win on the day. The paragraphs have formatted slightly different to my word document, but the points can be referred to for any kind soul on the forum willing to critique

To include as part of the evidence pack:

• Copy of lease with highlighted sections to support JH/001

• Copy of permit confirmation email JH/002

• Pace v Mr N [2016] C6GF14F0 [2016] JH/003

• Beavis Vs ParkingEye 2015 case JH/004

• Pictures of signage from car window - JH/005

• Pictures of permit on drivers seat after the PCN JH/006

• Schedule 4 of the Protection of Freedoms Act 2012 (POFA 2012) (JH/007

• Pace v Mr N [2016] C6GF14F0 [2016] (JH/008)

• Site Plan (JH/009)

• Copy of letters to BW legal

In the County Court

Claim No. XXXXX

Between

XXX(Claimant)

-and-

XXX (Defendant)

---

Witness Statement

---

 I am XXX, of XXXX, the Defendant in this matter.

1.  The facts in this statement come from my personal knowledge. Where they are not within my personal knowledge, they are true to the best of my information and belief.  Attached to this statement is a paginated bundle of documents to which I will reference.
   
2. I am the Registered Keeper of the vehicle in question on the XX June 2018 and thereafter date.
3. The Particulars refer to the material location as XXXX. The Defendant has, since XX June 2018, held a guest permit for this location under the Flat XX ( JH/002), which was provided via invitation from the residents residing at this address at the material time.
4. The permit was attached on the windscreen but during a period of extended lack of use of the Defendant’s’ vehicle, detached from the windscreen where it came to rest on the driver’s seat. ( JH/006)  During the time that the permit was detached a PCN was issued to the Defendant’s vehicle.
5. After receiving the PCN, the Defendant appealed via the Claimants online portal, providing evidence of his permit (JH/006). The appeal was refused with a standard robo-response seemingly ignoring the appeal and instead repeating that I had breached the terms and conditions of the site. 
6. The Defendant’s vehicle was parked at XXX during the month of June 2018, other parties had use of the vehicle during this time, so the Defendant cannot recall who was driving at the time the contravention occurred. The claimant has offered nothing in the way of evidence as to the identity of the driver and if they wish to pursue the Defendant as driver rather than keeper, then they must produce strict proof instead of an assumption. 
7. In light of this, the claimant may only pursue the defendant as keeper of the vehicle in strict adherence to the stipulations outlined by Schedule 4 of the Protection of Freedoms Act 2012 (POFA 2012) (JH/007)
8. It is averred that the claimant has failed to do this on numerous points
9. Furthermore, the claimant may allege that there is a reasonable presumption that the registered keeper was also the driver, allowing them to circumvent the regulations of POFA 2012. The defendant expressly denies that there is any presumption in law that the keeper is the driver. The defendant denies that the keeper is obliged to name the driver to the private parking firm. POFA 2012 makes no such requirement for a keeper to do this.
10. The claimant may seek to rely on the findings of Elliot V Loake (1982) in alleging that the keeper can be presumed to have been the driver. In this criminal case, forensic evidence was produced to a criminal standard. Therefore, the same logic can absolutely not be applied in this instance.
11. Liability for the alleged debt is disputed in its entirety based on the well-established legal principle of primacy of contract: the agreement (JH//001 – Lease Agreements) that exists between the residents and their landlord extends to the use of the specified parking space and overrides any purported contract conveyed by the claimant’s insufficient, demonstrably illegible signage. The lease agreement makes no assertion that a permit must not be displayed to use the bay, nor that a penalty of £100 must be paid in the event of a failure to do so. The lease agreement’s lack of specificity on any conditions related to parking in the relevant bay can only be construed that none of the restrictions asserted by the claimant apply.
12. The lease agreement states on page XX  “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.”This clause refers to any directions given by a company/person/persons who are the responsible Managing Agents, and not a third party company in addition to the managing agent. This clause can therefore not be interpreted as justification for the Claimant to impose parking terms at a later date. The common areas as indicated by the site plan ( JH-009), also do not extend to the parking area which are instead annotated as ‘rights of way’ and therefore not covered by the above clause. 
13. I contend, therefore, that the lease agreement provides an unfettered right to park for themselves and their invited guests. This cannot be superseded, altered, or ignored by a parking management company post hoc. I refer previous cases such as Pace v Mr N [2016] C6GF14F0 [2016] (JH/008), where it was found that the parking company could not override the tenant's right to park by requiring a permit to park.
14. 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 tenants are unaware of any such vote having been passed by the residents.
15. On this matter, the defendant defers to the ruling of ParkingEye Ltd v Barry Beavis (2015) UKSC 67( JH/004), 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 alleged breach of parking terms were clear – both upon entry to the site and throughout. From the evidence (JH/-005) you can see that the font type is incredibly small and woefully insufficient in conveying the terms of any alleged contract, and would not be legible from the drivers seat, and is purely aimed at only unauthorised drivers, not myself.
16. 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 ParkyingEye distinguished.
17. I believe that any parking management company with a legitimate interest in protecting the parking rights of a residential space – which is surely their only purpose – would immediately rescind any charges issued to permit holders.

I believe that the facts stated in this witness statement are true.

Defendant

Signed

1505grandad

Pace v Mr N [2016] C6GF14F0 [2016] JH/003

Does not appear in the WS  -  is it the same as (JH/008)?

Para 15  -  ".......and would not be legible from the drivers seat, and is purely aimed at only unauthorised drivers, not myself."   -    does this suggest you are the driver at time of the parking event in the claim?. Perhaps drop "not myself".

Just checking you will also file a Supplementary WS re Abuse of Process and a costs schedule

JP26

Thanks @1505grandad , I have cleaned up the evidence references and removed the driver wording. I have also developed my WS further including coupon-mads wording regarding Abuse of Process and also added a costs schedule. It's about as good as I think I can get it now.

I'm still unsure of my primacy of contract defence point here:

"Lease states "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.” This clause refers to any directions given by a company/person/persons who are the responsible Managing Agents, and not a third party company in addition to the managing agent. This clause can therefore not be interpreted as justification for the Claimant to impose parking terms at a later date. The common areas as indicated by the site plan ( JH-009), also do not extend to the parking area which are instead annotated as ‘rights of way’ and therefore not covered by the above clause."

> BW have also included in their WS a copy of a letter with information from the management company to residents with regards to a new parking permit scheme being put in place in 2012, which a judge may say is "directions for use made by the lessor or any company firm or person or persons responsible for the time being as Managing Agents" as it came from the management company themselves....?

 That being said this letter does refer to 'ANY PARKING TICKETS ISSUED THAT ARE NOT PAID MAY RESULT IN THE OFFENDING VEHICLES BEING CLAMPED' So I could argue this letter cannot be used as it is not in line with the particulars of claim of recovering the charges through small claims courts etc.

nosferatu1001

You havent shown us the definition of "External Common Areas". Assuming it IS "rights of way", then your FIRST repsonse is to state that this excerpt the C is relying upon has no relevance, as parking is not listed as an External Common Area, but rather as a "right of way", and as such is not covered. You wonder why they would make such an elementary mistake - ir was it intentional to mislead the court?
2012 letter: It coming from the MC is irrelevant, if it is dpoing something the MC has no powers to do. Thats the crux. If the MC had hte power to do this, the C has to prove so. 
The letter stating clamping may happen is no use to you at all. None. 

JP26

@nosferatu1001 Thanks - the only lease clause regarding the external common areas states: "A right to use at all times and for all reasonable purposes the external common areas and the internal common areas described in the legend on the said plans ( subject to the regulations and other conditions hereafter contained"

The plan is available here: https://drive.google.com/open?id=1180pzwbJhdT1vLj6PNWO8xh7rQyr5hkw

Would you class the parking area as external common area or right of way ( or neither)?