UKPPO Defence for no permit in residential space

parkingfella

Hello

I have received a claim form from the courts. Claimant is UK Parking Patrol Office Ltd, being represented by BW Legal.
I have followed the previous forums and posts on this site which have been very helpful – I have filed the AOS and now believe I need to send in my defence. The deadline for this is13th November.

I will post a copy of the claim form and my proposed defence response in a response to this thread. Key points to note on this one are:

• - Parked in my partner’s parking space with his permission (partner owns a numbered space in a block of flats which can only be entered using a fob)
• - Hadn’t displayed a permit but from what I can see in the lease there is no requirement to do this
• - When completing a SAR, the parking company haven’t provided me with any photographic evidence of me being parked in that space.
• - They also haven’t proved that I was the driver (only the keeper)
• - They have added extra charges above the £100 of notice to keeper, being £60 at BW Legal and then a further £75 of legal representative’s fees and court costs.
  If someone could have a read over my proposed defence and let me know if I’m on the right track that would be much appreciated. I also guess I need to get a statement from my partner stating that he authorised me to park in his space – if someone has a template for how this should look that would be great.

Also I have seen comments on this site around a counter claim given they have trespassed on my partner’s land without permission – is this something I can include in this claim given it’s his land and not mine?


Thanks in advance for your help.

parkingfella

Proposed defence:
I have also highlighted where it states it's the defendant's space because this isn't true but not sure the best way to word in this scenario - given it's my partner's space. If anyone can suggest updated wording that would be much appreciated!




IN THE COUNTY COURT

Claim No.: [xxxxxxxx]

Between

[UK Parking Patrol Office Limited]
(Claimant)

-and-


[xxx]
(Defendant)



DEFENCE

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 N1 Claim Form refer to 'Parking Charge(s)' incurred on [DATE]. 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. 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 '[LOCATION]'. [The Defendant has], since 04 January 2018, held legal title under the terms of a lease, to Parking Space 48 and 48a at that location. At some point, the managing agents contracted with the Claimant company to enforce parking conditions at the estate.

4. The underground car parking area contains allocated parking spaces demised to some residents. Entry to the underground parking is by means of a key fob, of a type only issued to residents. Any vehicles parked therein are, therefore, de facto authorised to be there.

5. Under the terms of the Defendant's lease, a number of references are made to conditions of parking motor vehicles.
Para. (4) (a) from the lease states ‘That no part of the Property shall be used for any purposes other than for the parking of one private motor vehicle with a current M.O.T.’

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.

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. Further and in the alternative, the signs refer to '[Authorised Vehicles Only/Terms of parking without permission]', and suggest 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.

8.1. 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.

8.2. 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 residents, as is on offer to the general public and trespassers. However, residents are granted a right to park/rights of way and to peaceful enjoyment, and parking terms under a new and onerous 'permit/licence' 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 bothered to check 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.

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, 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. 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 £244.30, 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, and this is intentional and contumelious, 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 to court under excuse of a contractual breach that cannot lawfully exist.

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

KeithP

Hello and welcome to the forum.

What is the Issue Date on your County Court Claim Form?

parkingfella

Hi KeithP, it's 11 October.

KeithP

parkingfella wrote: »

Hi KeithP, it's 11 October.

With a Claim Issue Date of 11th October, and having done the Acknowledgment of Service in a timely manner, you have until 4pm on Wednesday 13th November 2019 to file your Defence.

That's just a few days 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.

parkingfella

Thanks KeithP, very helpful.
Do you have any thoughts/comments on the suggested defence I have added above based on the outlined facts in my post?

The_Deep

Read this

http://parking-prankster.blogspot.com/2016/11/residential-parking.html

In most/nearly all cases the resident's lease/AST trumps the self serving terms of the parking parasite. Familiarise yourself with the legal concept "Primacy of Contract"

[FONT=Times New Roman, serif]Nine times out of ten these tickets are scams, so consider complaining to your MP after the election, it can cause the scammer extra costs and work.

Parliament is well aware of the MO of these private parking companies, many of whom are former clampers, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, persistent offenders denied access to the DVLA database and unable to operate.

Hopefully life will become impossible for the worst of these scammers, but until this is done you should still complain to your MP, citing the new legislation.

[/FONT][FONT=Times New Roman, serif]http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted[/FONT][FONT=Times New Roman, serif]

Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.[/FONT]
.

Coupon-mad

parkingfella wrote: »

Thanks KeithP, very helpful.
Do you have any thoughts/comments on the suggested defence I have added above based on the outlined facts in my post?

Very good defence for a UKPPO residential case, is it Wembley Park Estate like at least two others I've replied to tonight alone?

You should all swap pm's so you can co-ordinate your evidence and help each other, and even go to each other's court hearings as it will help you all to be working on this together - strength in numbers & sharing of evidence, experiences and research.

dan0116

Thanks for your defence Parkingfella and to those who have contributed to it. The issue is very similar to mine and so I'll be using it as a template.


This defence seems very succinct compared to lots that I've seen. Are there any other relevant defences that have been missed such as the POFA driver vs keeper points? Or is the Primacy of Contract defence strong enough here to negate the need for that?

parkingfella

Mine isn't in the same area as the others, it's in Manchester but thanks for the heads up - I will follow the other threads to knowledge share.

parkingfella

I followed all your advice and received a Notice of Transfer of Proceedings in December 2019. I then did not hear anything from the court until May 2020 when I received a General Form of Judgement or Order, stating that a hearing which was originally scheduled for June 2020 was vacated and that because I did not submit any evidence to accompany my submitted defence, the award was given to the claimant. It's my understanding that the evidence is submitted with an accompanying witness statement after the court date has been confirmed (within 14 days of the date).

I have tried to call the courts a number of times (and emailed) between Dec 2019 and now but was absolutely not made aware of a court date being set of June 2020.  The response I have received from the Court states that is I was to set aside the judgement I must make the appropriate application. However I understand this costs £225 which is more than I am being ordered to pay the parking company! I have also asked the court to provide a copy of the letter apparently sent to me informing me of the court date, to which I have to pay a £10 admin fee apparently and have been told I should take it up with Royal Mail as they are responsible for the post.

Has anyone had a similar situation? I don’t think it’s unreasonable in the middle of the current environment to assume I did not receive the letter – I have responded to all other correspondence in a timely fashion, why would I come so far to then not file my defence?! From reading the posts I understand that I am also likely to have a CCJ against me given I have not yet paid the £100, which is really making me anxious. Any advice on how best to proceed with this would be much appreciated.

In the middle of all this I have received a Letter of Claim from BW Legal for another ticket, which I will respond to based on the information found in other threads. However under the original ticket (described above) when I asked for a SAR, it showed that I have 5 tickets outstanding that BW Legal are chasing. They have therefore only brought 2 forward so far separately but I thought they had to bring them all to you at once rather than piecemeal. Is there anything I can do to bring these all together or am I best resolving the first issue and potential ‘set aside/CCJ’ issue separately and then this second one? It might also worth noting that there is no photographic evidence for any of these claims provided under the SAR.

So I think I have three issues:

1)      Ticket 1 - applying to set aside the judgement (but is there any way to do this without paying the fee given I genuinely did not know there was a court date?)

2)      Ticket 2 – replying to the letter of claim

3)      Amalgamating the remaining 3 tickets into one claim from BW Legal

Does anyone have any advice on how best to approach? Thanks in advance for your help and advice.