Victory over One Parking Solution / DCB Legal

valiant24

Coupon-mad said:

To save hassle my granddaughter did obtain a permit from the POC, but the company had changed some months before and the old company's permits were not honoured by the new one (of course not, that would have stemmed an income stream).

My defence will be that, whatever the POC's contract with the RTM or its management agent to which she was not party, her right to park a car there under her lease is unaffected.

Show us your draft defence first, here. You need more than that and I am suggesting people with an OPS claim adapt the one I wrote for basher52.
Please find below first draft for comment and correction.  I particularly need help with 5.2 (establishing a link between my car being parked and my granddaughter's right to park under her Lease, without admitting who was driving, which is immaterial anyway as the car was parked!).

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

2. The Particulars of Claim on the Claim Form refer to 'Parking Charge(s)' incurred on 10/07/2017. 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 driver agreed to pay within 28 days but did not.  Defendant is liable as the driver or keeper…” without explaining why it believes this to be the case.  This indicates that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices.

3. The Particulars refer to the location as <insert site name>. The Defendant’s granddaughter did, from Oct 2011 until May 2019, hold legal title under the terms of a Lease, to a Tenancy to Flat No. 1 at that location. At some point, the managing Agents contracted with the Claimant company to enforce parking conditions at the estate.

4. The secure car parking area at the site contains allocated parking spaces demised to one resident, and a general area for residents who do not have an allocated space.  Entry to the heavily-fortified parking area is by means of a key code issued to residents. Any vehicles parked therein are, therefore, de facto authorised to be there.

5. Under the terms of the Defendant's Lease at the site, a clear reference is made to conditions of parking motor vehicles.  Specifically:

“The Flat, (for the purposes of obligation as well as grant) includes … the right to park one private motor car in such location as the landlord shall from time to time determine”.

5.1 <need to insert something here establishing that the tenant’s right to park one vehicle extended to cars owned by her visitors>

5.2. There are no terms within the lease requiring lessees to display parking permits, or to pay charges for permissions from, or penalties to, third parties, such as the Claimant, for non-display of same.

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 Landlord may under the terms of the lease “In the interests of good estate management impose or revoke such regulations of general application regarding the Building or the flats therein as it may as its absolute discretion think fit (but so that any such regulations shall not conflict with this Lease) [my emphasis].

8. The Landlord may under the terms of the lease “Engage Agents to manage the Building and to collect the Rents and Service Charges in respect of the flats therein and to carry out other such duties as may from time to time be assigned”.  The Landlord has in fact engaged Agents, and it is a junior employee of these Agents (not a director) who executed the contract between the Landlord and the Claimant with regards to parking control.   It is unclear that the junior employee had the authority to execute the contract on behalf of the Landlord.   The Directors of the Agents have not replied to multiple requests from the Defendant for evidence of its authority.  In any case it is clear that the Agents have exceeded their authority in attempting to execute an agreement between the Landlord and the Claimant which requires tenants – who are not party to the agreement – to pay a charge for a parking permit, which payment breaches the terms of the tenant’s unfettered right to park a motor vehicle at the site in the designated area.   Although the Claimant has not taken the trouble to note this in its claim, the vehicle was in fact displaying a permit from the previous parking managers, who had been replaced in February 2017.  These permits, unlike the ones for which the Claimant was demanding a fee as an additional revenue stream, were distributed free of charge by the Agents.

9. The Claimant’s sign, which it claims form the basis of the alleged Contract between Claimant and Defendant, is not clearly visible from the parking space.   Upon Subject Access Request the Claimant provided a high-resolution photograph of the sign taken from the parking space, but even with zooming using specialist imaging software, the wording cannot be made out from this image, and therefore obviously could not have been seen from the parking space.   The Claimant acknowledged this in helpfully sending also a close-up image of the sign, taken several days earlier, from which the wording can be determined.  

10. Further and in the alternative, the sign states that “Parking is Permitted for …Pre-authorised Vehicles”.  It suggests that by parking without permission, motorists are contractually agreeing to a parking charge of £100. This is clearly a nonsense, since if there is no permission, there is no offer, and therefore no contract.

10.1. 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.

10.2. In this case the Claimant has taken over the location and runs a business as if the site were a public car park, offering terms with £100 penalty on the same basis to tenants, as is on offer to the general public and trespassers (should the general public and trespassers somehow be able to penetrate the tight fortification of the site). However, residents are granted a right to park and parking terms under a new and onerous 'permit/licence', particularly one that compromises the tenant’s right to park one vehicle by demanding a charge for "permission to park" not provided for in the tenant’s lease, cannot be re-offered as a contract by a third party. This interferes with the terms of Leases and tenancy agreements, none of which is this parking firm a party to, and neither have they provided for any rights or easements that their regime will interfere with (the Claimant is put to strict proof). This causes a substantial and unreasonable interference with the Defendant's land/property, or his/her use or enjoyment of that land/property.

10.3. A director of the Right to Manage company, which has the rights of the Landlord under the lease, wrote in an email to the Defendant that “This [the instruction to the Agents to engage a company such as the Claimant] was to prevent people parking in there who had no right, or those residents being selfish and parking more than their allocated 1 vehicle … I can confirm the [Landlord does] not have the right to alter / amend anyone’s lease as far as I am aware and can confirm when it comes to parking we haven’t been involved other than the clear instruction we needed to get control instructing the use of a parking company”.   It is clear then that the junior employee of the Agents who signed the management contract with the Claimant has greatly exceeded his brief and authority in compromising the rights of tenants to park a motor vehicle at the site, and in demanding a charge for “permission” to do so.

 11. The Claimant, or their legal representatives, has added an additional sum of £60 to the original £100 parking charge, for which no explanation or justification has been provided. 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.

11. For all or any of the reasons stated above, the Court is invited to dismiss the Claim in its entirety, and to award the Defendant such costs as are allowable on the small claims track, pursuant to Civil Procedure Rule 27.14, giving full regard to the fact that the Claimant has now issued three Letters before Claim on this matter,  each requiring significant work to reply to, the Claimant's various representatives in the other two in September and November 2017 having withdrawn them once the Defendant had, at considerable cost, responded to them. Given that the claim is based on an alleged contractual parking charge of £100 - already significantly inflated and mostly representing profit, as was found in Beavis - but the amount claimed on the claim form is inexplicably £267.43 the Defendant avers that this inflation of the considered amount is a gross abuse of process.

12. Given that it appears that this Claimant's conduct provides for no cause of action, the Claimant's claim must fail and the court is invited to strike it out.

12.1. In the alternative, the Court is invited, under the Judge's own discretionary case management powers, to set a preliminary hearing to examine the question of this Claimant's substantial interference with easements, rights and 'primacy of contract' of residents at this site, to put an end to not only this litigation but to send a clear message to the Claimant to case wasting the court's time by bringing beleaguered residents and visitors to court under excuse of a contractual breach that cannot lawfully exist.

I believe that the facts stated in this Defence are true.

valiant24

As mentioned, I am unsure how to link the Leaseholder's right to park with this case.  The tenant in this case was my granddaughter, but I have avoided stating that she was driving, relying instead on her right to allow my car to be parked in her space.   I had read that a tenant's right to park a car extends to his or her visitors, but I can no longer find this anywhere: I thought it was on the Parking Prankster site but I can't find it.

valiant24

Hi, I've re-written this based upon feedback from friends, new version below.
If any of the knowledgeable experts on this forum could find the time to comment also I'd be so grateful, thanks.
V

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

2.       The Particulars of Claim on the Claim Form refer to 'Parking Charge(s)' incurred on 10/07/2017. 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 driver agreed to pay within 28 days but did not.  Defendant is liable as the driver or keeper…” without explaining why it believes this to be the case.  This indicates that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices.

3.       The Particulars refer to the location as <insert site name>.  The vehicle was parked at the site in the course of use by the defendant and her granddaughter.  

4.       The Defendant’s granddaughter did, from Oct 2011 until May 2019, hold legal title under the terms of a Lease, to a Tenancy to Flat No. 1 at the location.  In the terms of the Tenant’s lease at the site, clear reference is made to conditions of parking motor vehicles.  Specifically:

4.1.    The lease states that “The Flat, (for the purposes of obligation as well as grant) includes … the right to park one private motor car in such location as the landlord shall from time to time determine”.

4.2.    There are no terms within the lease requiring Tenant to display parking permits, or to pay charges for permissions from, or penalties to, third parties, such as the Claimant, for non-display of same.

5.       The secure car parking area at the site contains allocated parking spaces demised to one resident, and a general area for all other residents, who do not have an allocated space.  Entry to the heavily-fortified parking area is by means of a regukarly-changed key code issued to residents. Any vehicles parked therein are, therefore, de facto authorised to be there.

6.       Under the Terms of the Lease, the Landlord may “In the interests of good estate management impose or revoke such regulations of general application regarding the Building or the flats therein as it may as its absolute discretion think fit (but so that any such regulations shall not conflict with this Lease) [Defendant’s emphasis].

 

7.       Under an agreement dated 15/11/2016, pupportedly between the Landlord and the Claimant, the Landlord is supposed to have entered into an agreement with the Claimant to provide certain services, specifically “The Issuing of Parking Charge Notices (PCN)” at the site. 

 

It is noted that:

 

7.1.   Under the terms of the contract, amongst many other terms, the Landlord is, to “provide [the Claimant] with the details of any vehicles authorised to park at the site”, and that the contract seeks to bind parties not at all party to this contract to display a “valid” permit, and to adhere to the Claimant’s “Complaints” process.

 

7.2.   The contract was executed not by the Landlord at all, but by a junior employee at an Agent.   Under the terms of the Landlord-Tenant lease the Landlord may “Engage Agents to manage the Building and to collect the Rents and Service Charges in respect of the flats therein and to carry out other such duties as may from time to time be assigned”.   The Claimant is requested to provide evidence that this employee at the Agent was explicitly authorised by the Landlord to execute such an agreement in its name.

 

8.       The Defendant, at all material times, parked in accordance with the terms granted by the Tenant’s 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.

9.       The Directors of the Agent have not replied to multiple requests from the Defendant for evidence of its authority to execute an agreement for the Issuing of Penalty Charge Notices at the site.  In any case it is clear that the Agents have exceeded their authority in attempting to execute an agreement between the Landlord and the Claimant which requires tenants – who are not party to the agreement – to pay a charge for a parking permit, which payment breaches the terms of the tenant’s unfettered right to park a motor vehicle at the site in the designated area.   Although the Claimant has not taken the trouble to note this in its claim, the vehicle was in fact displaying a permit from the previous parking management company, who had been replaced in January 2017.  This permit, unlike the ones for which the Claimant was demanding a fee, obviously as an additional revenue stream, was distributed free of charge by the Agents.

10.   A director of the Landlord company wrote in an email to the Defendant that “This [the idea to engage a company such as the Claimant] was to prevent people parking in there who had no right, or those residents being selfish and parking more than their allocated 1 vehicle … I can confirm the [Landlord does] not have the right to alter / amend anyone’s lease as far as I am aware and can confirm when it comes to parking we haven’t been involved other than the clear instruction we needed to get control instructing the use of a parking company”.   It is clear then that the junior employee of the Agents who signed the management contract with the Claimant has greatly exceeded his brief and authority in compromising the rights of Tenants to park a motor vehicle at the site, and in demanding a charge for “permission” to do so.

11.   The Claimant’s sign, which it claims form the basis of the alleged Contract between Claimant and Defendant which is in any case disputed, is not clearly visible from the parking space.   Upon Subject Access Request the Claimant provided to the Defendant a high-resolution photograph of the sign taken from the parking space, but even with “zooming” using specialist imaging software, the wording cannot be made out from this image, and therefore obviously could not have been seen from the parking space.   The Claimant acknowledged this in helpfully sending an additional close-up image of the sign, taken several days earlier, so that the wording can be determined. 

12.   Further and in the alternative, the sign states that “Parking is Permitted for …Pre-authorised Vehicles”.  It suggests that by parking without permission, motorists are contractually agreeing to a parking charge of £100. This is clearly a nonsense, since if there is no permission, there is no offer, and therefore no contract.

13.   The Defendant's vehicle clearly was 'authorised' as per the Tenant’s 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.

14.   In this case the Claimant has taken over the location and runs a business as if the site were a public car park, offering terms with £100 penalty on the same basis to Tenants, as is on offer to the general public and trespassers (should the general public and trespassers somehow be able to penetrate the tight fortification of the site). However, residents are granted through Lease a right to park at the site by the Landlord.  Parking terms under a new and onerous 'permit/licence', particularly one that compromises the Tenant’s right to park one vehicle by demanding a charge for "permission to park" not provided for in the Tenant’s lease, cannot be re-offered as a contract by a third party. This interferes with the terms of Leases and Tenancy agreements, none of which is the Claimant party to, and neither have they provided for any rights or easements that their regime will interfere with (the Claimant is put to strict proof). This causes a substantial and unreasonable interference with the Defendant's land/property, or his/her use or enjoyment of that land/property.

15.   The Claimant, or its legal representative, has added an additional sum of £60 to the original £100 parking charge, for which no explanation or justification has been provided. 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.

16.   For all or any of the reasons stated above, the Court is invited to dismiss the Claim in its entirety, and to award the Defendant such costs as are allowable on the small claims track, pursuant to Civil Procedure Rule 27.14.  The Court is invited to give full regard to the fact that the Claimant has now issued three Letters before Claim on this matter,  each requiring significant work on the part of the Defendant to address, the Claimant's various representatives in the other two in October and then November 2017 having withdrawn the Claims once the Defendant had at considerable cost responded to them. Given that this claim is based on an alleged contractual parking charge of £100 - already significantly inflated and mostly representing profit, as was found in Beavis - but the amount claimed on the claim form is inexplicably £267.43, the Defendant avers that this inflation of the considered amount is a gross abuse of process.

17.   Given that it appears that this Claimant's conduct provides for no cause of action, the Claimant's claim must fail and the court is invited to strike it out.

18.   In the alternative, the Court is invited, under the Judge's own discretionary case management powers, to set a preliminary hearing to examine the question of this Claimant's substantial interference with easements, rights and 'primacy of contract' of Tenants at this site, to put an end to not only this litigation but to send a clear message to the Claimant to case wasting the court's time by bringing beleaguered residents and visitors to court under excuse of a contractual breach that cannot lawfully exist.

I believe that the facts stated in this Defence are true.

Le_Kirk

I think you need to look again at your paragraph 2.  where is the "menu of choices" to which you refer?  I think you have copied part of this from one of the pre-written defences in the NEWBIE sticky but have omitted a bit. Check it again.

valiant24

Le_Kirk said:

I think you need to look again at your paragraph 2.  where is the "menu of choices" to which you refer?  I think you have copied part of this from one of the pre-written defences in the NEWBIE sticky but have omitted a bit. Check it again.

Yes, you're right, I adapted the template written by Coupon-Mad.   In fairness I didn't really understand the point Coupon-Mad was making when s/he said:
In addition, the particulars state 'The Defendant was driving the vehicle and/or is the 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. 
and consequently I don't understand why mine does not make sense in the same way.
It's probably best that I just omit this section altogether, as I don't understand it and couldn't substantiate it in Court.

Le_Kirk

No, leave it in as Coupon-mad wrote.

............was driving the vehicle and/or is the keeper of the vehicle.

That is the menu of choices.  If they positively knew you were driving, they would not need to put and/or, they would just say you were the driver.  It is in every defence, not sure it makes much difference as I have read that a couple of the legal types who used to post on this forum didn't think it meant much.

valiant24

Le_Kirk said:

No, leave it in as Coupon-mad wrote.

............was driving the vehicle and/or is the keeper of the vehicle.

That is the menu of choices.  If they positively knew you were driving, they would not need to put and/or, they would just say you were the driver.  It is in every defence, not sure it makes much difference as I have read that a couple of the legal types who used to post on this forum didn't think it meant much.

Thanks for explaining that.
The rest of my defence was perfect then?
Have you any thoughts on how I can tie in my granddaughter's right to park one car with the right for my car to be parked there, without admitting that she was driving?

valiant24

I found a case to support the Tenant's right to derogate parking rights under Lease to a visitor: C8HW2E9Q – UKPC v Miss C, Reading 12/07/2017 before District Judge Harrison written up by Bargepole.
I can't find anything about the case other than Bargepole's account though.  Is it safe to cite this case in my defence absent any independent transcript?

Coupon-mad

Not much point without a transcript.
I just wrote a new ending suggestion for someone with a similar case, try bringing in some of this:
https://forums.moneysavingexpert.com/discussion/6097447/uk-car-park-pcn-help-needed
It is also about a tenant so you might find some words to change on your one if you like some of that better - but having skim read your draft I like it, lots of specific facts.

I've probably already asked but is this a Brighton/Worthing court area case?

valiant24

Coupon-mad said:

I've probably already asked but is this a Brighton/Worthing court area case?

Thanks for the comments and the kind words ;-)
Yes, it was at the Deco Building on the Lewes Road.