Court form received help requested

sadwithoutmynelson

Thankyou for your help. Sometimes it is hard to understand things  . Things aren't always straightforward for me to understand. I can find things challenging to understand at times. 

Correct the court order hasn't arrived yet . 

I will go through the threads again and work on the file. 

Thankyou for your help. 

sadwithoutmynelson

DEFENCE

Preliminary
1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all. The Particulars of Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.

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 engage in pre-action correspondence in accordance with the pre-action protocol and with the express aim of avoiding contested litigation.

Background
3. It is admitted that at all material times the Defendant is the registered keeper of vehicle registration mark ### which is the subject of these proceedings. The vehicle is insured with #  with two named drivers permitted to use it.

4. It is admitted that on # and # the Defendant's vehicle was parked at #

5. It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.
5.1. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA")
5.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
5.2.1. there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
5.2.2. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
It is not admitted that the Claimant has complied with the relevant statutory requirements.

5.3. To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.

Authority to Park 

6. The Particulars refer to the material location as '#’. The Defendant has, since # 2015, held legal title under the terms of a Freehold, to house No. 33 # at that location with two parking spaces included in the freehold. At some point, the managing agents contracted with the Claimant company to enforce parking conditions at the estate. The defendant did not agree to this unwelcome imposition and accepted no third party contract that could interfere with pre-existing rights and easements as a freeholder.

7. There are no terms within the freehold requiring home owners to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same.

8. The Defendant, at all material times, parked in accordance with the terms granted by the Freehold. 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. It is denied that the Defendant or lawful users of her vehicle were 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 and freeholder of 33, whose freehold permits the parking of vehicle(s) on land. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the freehold, which cannot be fettered by any alleged parking terms. The freehold terms provide the right to park a vehicle in the relevant 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 freehold site plan will be provided to the Court, together with witness evidence that prior permission to park over the lines onto number 31, had been given.

10. 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 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 freehold 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 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 freeholds, 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.

11. 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.

12. 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.

13. Accordingly it is denied that:
13.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant
13.2. there was any obligation (at all) to display a permit; and
13.3. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

14. 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 £#, the Defendant avers that this inflation of the considered amount is a gross abuse of process.

15. 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.

15.1. 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. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.
#………………………………………………………. (Defendant)

#…………………… (Date)

 

KeithP

I like that.

I think I would truncate the last sentence of para 9 so that it reads "A copy of the freehold site plan will be provided to the Court". Talking about parking outside of the lines is perhaps not a good idea at this stage.


But you do need to update the Statement of Truth to that which applies from April 2020.
It can be found in the second post of the NEWBIES thread.

sadwithoutmynelson

Thankyou so much Keith. Most grateful. Will apply those changes.  Working away on the Witness Statement. Thankyou

Umkomaas

You've been quite categoric on the driver/keeper front that the PPC fails to meet the requirements of the Protection of Freedoms Act 2012 (Schedule 4). Are you absolutely certain on this?  Can you evidence where they fail, because most PPCs have now got their PoFA ducks in a row? If they prove they do meet the requirements, your first major Defence point is blown out of the water. The driver becomes irrelevant, and it then appears you're trying to find technical loopholes as your primary Defence. 

Under normal circumstances, in residential cases, there are much stronger points than PoFA, like 'this is my property, I own it, including the parking spaces, I can prove it, here are my deeds, and no made up PPC rules can override my rights to a peaceful enjoyment of my land' (or words to that effect). I don't see any mention of 'derogation from grant' which is also a term that has significant relevance in residential cases, and it should be included somewhere in your Defence. 

Redx

Umkomaas is correct , it's well known and been reported on here by members like Bargepole that in residential parking cases it's better to be the driver or keeper defending as such as an aggrieved homeowner or owner or freeholder in your case , based on what he said above

I would not be talking about the parking lines because on your map it appears to show the narrow access strip and says the management company own the orange parts. Keep it about your 2 freehold parking spaces that you own and the map shows and your solicitors letter indicated

But a good draft nevertheless and better than I expected , draft 2 should nail it

Your WS can mention exhibits , laws , letters etc with reference numbers , plus add your numbered exhibits to the bundle , then add your summary costs assessment to that bundle

When complete , submit everything to the claimant and to the court as well , by deadline day, usually by email

sadwithoutmynelson

Umkomaas said:

You've been quite categoric on the driver/keeper front that the PPC fails to meet the requirements of the Protection of Freedoms Act 2012 (Schedule 4). Are you absolutely certain on this?  Can you evidence where they fail, because most PPCs have now got their PoFA ducks in a row? If they prove they do meet the requirements, your first major Defence point is blown out of the water. The driver becomes irrelevant, and it then appears you're trying to find technical loopholes as your primary Defence. 

Under normal circumstances, in residential cases, there are much stronger points than PoFA, like 'this is my property, I own it, including the parking spaces, I can prove it, here are my deeds, and no made up PPC rules can override my rights to a peaceful enjoyment of my land' (or words to that effect). I don't see any mention of 'derogation from grant' which is also a term that has significant relevance in residential cases, and it should be included somewhere in your Defence. 

Thankyou I shall remove that point and change it. Much appreciated. 

sadwithoutmynelson

Redx said:

Umkomaas is correct , it's well known and been reported on here by members like Bargepole that in residential parking cases it's better to be the driver or keeper defending as such as an aggrieved homeowner or owner or freeholder in your case , based on what he said above

I would not be talking about the parking lines because on your map it appears to show the narrow access strip and says the management company own the orange parts. Keep it about your 2 freehold parking spaces that you own and the map shows and your solicitors letter indicated

But a good draft nevertheless and better than I expected , draft 2 should nail it

Your WS can mention exhibits , laws , letters etc with reference numbers , plus add your numbered exhibits to the bundle , then add your summary costs assessment to that bundle

When complete , submit everything to the claimant and to the court as well , by deadline day, usually by email

Thankyou so much.  I read through multiple withess statements such as that of chefdave. I still have a lot of work to do on it as I can see all the witness  statements are different . Il keep going.

I also read couponmads template  letter regarding telephone hearings so I will also include this. Thankyou for your help. 

D_P_Dance

Have you read this?

https://www.consumeractiongroup.co.uk/topic/324523-ukpc-liable-for-trespass-success/

This is what can befall a PPC who takes on a freeholder.

sadwithoutmynelson

D_P_Dance said:

Have you read this?

https://www.consumeractiongroup.co.uk/topic/324523-ukpc-liable-for-trespass-success/

This is what can befall a PPC who takes on a freeholder.

Very much like my case. What an excellent result!