Claim form - Residential parking - Issue date 06 SEP 2019 - GLADSTONES

hi3rophant

Hi
I want to start by thanking you for putting this forum together. It makes it easier for us to fight back the scammers.

Last year, shortly after moving in to this building I got served two PCNs during a weekend we didn’t use the car for an alleged contravention of “Permit not fully and clearly displayed in front windscreen”.
I did some reading on the forum in the past week and one thing I would like to stop on is the primacy of contract. There are two references on the parking in the Fixed term agreement ( Assured shorthold tenancy ) :

1. Property details
Property type ……………….…. Apartment
Garden/courtyard ………….... N/A
Parking space/garage ……… One Parking Space Provided
Number of bedrooms ………..Two
Floor level (for flats only) …. Second
Other notes (optional) ……………………….
References in this Tenancy Agreement to the ‘scheme’ mean the building, scheme or estate where the property detailed above (the ‘Property’) is located.

2. Parking and roadways
Where parking is permitted on a scheme, you, the permitted occupants and your or their visitors may only park in areas designated for parking and must comply with any separate rules and regulations that may be issued for the use of designated parking spaces and garages.
You must not:
• park or leave any untaxed or unroadworthy vehicle (including motor cycles) on any part of the scheme;
• park, store, repair or maintain vehicles, vans, motorcycles, caravans, boats or trailers in or upon the Property or anywhere on the scheme (including any designated parking space or garage) in such a way as to cause a nuisance to other tenants or occupiers of the scheme or to us;
• park any camper, trailer or commercial vehicle whether in your allocated space or garage or elsewhere without first obtaining our written permission; or
• drive or park any vehicle over kerbs that have not been lowered or on any pavement or grassed area; or
• block local roadways or other vehicular access. In particular, you must not park any vehicle in a way that could cause a danger or obstruction to emergency or service vehicles.
We may remove without notice any vehicle parked on the scheme which we consider is causing an obstruction or is a nuisance or a risk to safety.

Is this in my favour? I am working on my defence and I will post it soon. Any suggestions are more than welcomed.
Thank you

KeithP

hi3rophant wrote: »

Claim form - Issue date 06 SEP 2019

With a Claim Issue Date of 6th September, you have until Wednesday 25th September to do the Acknowledgement of Service, but there is nothing to be gained by delaying it. To do the AoS, follow the guidance offered in a Dropbox file linked from post #2 of the NEWBIES FAQ sticky thread. About ten minutes work - no thinking required.

Having done the AoS, you have until 4pm on Wednesday 9th October 2019 to file your Defence.

That's almost four 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 could 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 the NEWBIES FAQ sticky thread to find out exactly what to do with it.

NeilCr

"Where parking is permitted on a scheme, you, the permitted occupants must comply with any separate rules and regulations that may be issued for the use of designated parking spaces and garages"

This may prove a difficulty for you.

Were you told about/given the permits before you moved in?

How do you know which space is yours? Given the fact that the specific space is not mentioned in the tenancy agreement it would be worthwhile finding out if it forms part of your landlord's lease.

hi3rophant

Yes, the permit was handed to us before we moved in.
There is no specific parking space. The permit allows parking in an area that covers the first floor of the parking lot.

NeilCr

hi3rophant wrote: »

Yes, the permit was handed to us before we moved in.
There is no specific parking space. The permit allows parking in an area that covers the first floor of the parking lot.

To be honest, from what you've said, think you may well struggle with primacy of contract.

Have you tried for a landowner cancellation?

hi3rophant

We did contact the MA before POPLA stage to try and get the PCNs cancelled and they replied that it's not up to them.
When I challenged this first PCN (didn't knew about this forum) on the parking company website I selected form a dropdown menu that I am the driver/keeper of the vehicle. Can I say it was a misclick and deny that I was the driver of the vehicle?

Coupon-mad

Not if denying it would be a lie. You are at court stage, and honesty is key.

hi3rophant

Hi guys,

I found a defence that suits my case and adjusted it a bit. I've included it below for your review. I'm not sure at all about Authority to Park and Primacy of Contract. Should I remove that part? Is there anything I should add?

Thank you all

In The County Court Business Centre Claim No:
BETWEEN 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 fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct. The Defendant further notes the Claimant's failure to negotiate at any stage and engage in pre-action correspondence in accordance with the pre-action protocol and with the express aim of avoiding contested litigation.
Background
2. It is admitted that at all material times the Defendant is likely to be the driver of vehicle registration #### ### which is the subject of these proceedings.
3. It is admitted that on ###### the Defendant's vehicle was parked at ######
Authority to Park and Primacy of Contract
4. It is denied that the Defendant was in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the Defendant permitting the above mentioned vehicle to be parked by the current occupier/tenant or leaseholder of ######### whose lease agreement permits the parking of vehicle(s) in one parking space (Property details - Parking space/garage : One Parking Space Provided). The Defendant avers that there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms.
The lease terms provide the right to park a vehicle in an allocated bay, without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle or the requirement to display a parking permit. A copy of the lease will be provided to the Court.

5. The Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) , of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011, of DEPUTY DISTRICT JUDGE METCALF in Link Parking v Parkinson (2016) and of DISTRICT JUDGE COONAN in PACE Recovery and Storage v Mr N (2016). The Court will be referred to further similar fact cases in the event that this matter proceeds to trial.

6. Accordingly, it is denied that:
6.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant
6.2. there was any obligation (at all) to display a permit; and
6.3. any consideration flowed between the Claimant to the Defendant, thus the basic elements of a contract are absent because the Claimant had nothing of value to offer that the Defendant did not already enjoy, on unfettered terms.

6.4. any 'relevant contract' or 'relevant obligation' exists in this case, using the definitions in Schedule 4 of the Protection of Freedoms Act 2012 (the 'POFA'), thus the Claimant has no right to recover any unpaid parking charges from the keeper of the vehicle. Even in cases where the driver is known, it is clear from the POFA that Parliament (who have recently passed legislation expressly to curb the worst rogue practices of parking firms including this Claimant) intends that charges for parking on private land must be subject to basic prerequisites of contract and obligation, and adequate notice of the parking charge, and in this case these elements are absent.

6.5. there is any 'legitimate interest' excuse which could have saved this charge from falling foul of the penalty rule, which the Judges in the Beavis case held was 'engaged' in private parking cases, all of which will depend upon their own facts. This charge is set purely to penalise residents and has no commercial, moral or contractual justification and lacks the necessary authority flowing from the landowner.

Alternative Defence - Failure to set out clear parking terms
7. In the alternative, the Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 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 breach of parking terms were clear - both upon entry to the site and throughout.
7.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate.
7.1.1. At the time of the material events the signage was deficient in number, distribution, wording legibility and lighting to reasonably convey a contractual obligation;
7.1.2. The signage did not comply with the requirements of the Code of Practice of the IPC Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and
7.1.3. The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3; furthermore
7.1.4 Signage is not present upon entry to the residence courtyard / car park.
7.1.5 The signage contained illegible terms in small print in relation to extra charges that cannot be read at any reasonable distance.
7.1.6 Signage is not legible in dark hours due to non-existent signage lighting.

7.2. The Defendant avers that 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 ParkingEye distinguished.

8. It is denied that the Claimant has 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.

9. It is denied that the Claimant has any entitlement to the sums sought.

10. 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.


The Claim for Costs is disingenuous, misleading and an abuse of the court process.
Coupon-mad template

Coupon-mad

I'm not sure at all about Authority to Park and Primacy of Contract. Should I remove that part?

No, why would you, this is a residential case so do you believe there was no authority to park and primacy of contract?

It's key to most residential cases unless the driver was a trespasser?

The Claim for Costs is disingenuous, misleading and an abuse of the court process. Coupon-mad template.

OK, good, as long as you add paragraph numbers instead of all the hyphens!

hi3rophant

Quick update
Court hearing due 31st March.
Claimant’s Witness Statement and exhibits received. Is it OK to post it here for more experienced users to have a look at it?
Thank you

KeithP

How is your Witness Statement progressing?
When is your Witness Statement and evidence due for filing and serving?
Usually needed fourteen days before the hearing, that's today, but may be different in your case.