Court form received help requested

KeithP

sadwithoutmynelson wrote: »

I have submitted an aos today on mcol. I hope this means I have till a good while after Christmas to write my defence and can enjoy the Christmas period. Thankyou for all your help

No need to hope. You already know the answer to that.

Please re-read post #6 above - in your own thread.

sadwithoutmynelson

Thankyou. I submitted my aos on the 20th December. In the meantime Gladstones sent me a letter before action for another one of these tickets as I received several for parking in my own spot. I wrote Gladstones a letter from the newbies thread and also asked for a sar from cpm reminding them any fines should ne dealt with as one case and not several different ones.

I am still awaiting the sar results and am yet to file a defence. Please could you remind me how long I have before I have to file a defence ?

I requested the sar just after Christmas and cpm have said they have 30 days.

I’m conscious I don’t want to miss the time for my defence . Thankyou

KeithP

sadwithoutmynelson wrote: »

Please could you remind me how long I have before I have to file a defence ?

Yes, it is exactly as written in post #6 above.

You Defence filing target date hasn't changed.

Here it is again...

...you have until 4pm on Monday 13th January 2020 to file your Defence.

I also wrote at that time...

That's over four weeks away. Plenty of time to produce a Defence, but please don't leave it to the last minute.

sadwithoutmynelson

O dear I better do it today. I will revisit the newbies thread to write my defence . Thankyou

Le_Kirk

sadwithoutmynelson wrote: »

O dear I better do it today. I will revisit the newbies thread to write my defence . Thankyou

Yes, pop yourself onto post #2 of the NEWBIE sticky and look at the 17 pre-written defences linked there. Also read the threads by CEC16 and basher52 both of which have had extensive work done on them by Coupon-mad and form the basis of a good "standard" defence.

Coupon-mad

I repeatedly stated I wasn’t happy getting fines due to parking in my own spot and wasn’t happy that not only did I feel the permit breached my security.

Include that in your defence to demonstrate that you are the owner of a property and you did not agree to this unwelcome imposition an accepted no third party contract that could interfere with your pre-existing rights and easements.

Search the forum for 'defence Landlord Tenant truth' and/or 'defence easements truth' and you will find one saying the right things, like your case, I am sure!

Copy & adapt after reading at least ten 2019 (not older) search results, once you are confident of how such a defence looks. You are emailing it so you have all weekend.

sadwithoutmynelson

So from what I understand we as homeowners own our parking spots as freeholders. (the parking space is 3 houses one of which is mine and opposite is parking for a block of apartments) . This is the defence I have wrote based on the advice and templates. Thankyou so much for your help. My neighbor is also going through the same as I am trying to help them at the same time. We have both requested directors rights with the management company.
My Defence as below. Thankyou.


IN THE COUNTY COURT

Claim No.: XXXXXXXX

Between

CPM
(Claimant)

-and-


[NAME OF DEFENDANT]
(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 10/11/2018. 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 of the vehicle parked in breach of the terms of parking stipulated on the signage' which indicates that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. 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 'William Way’. The Defendant has, since March 2015, held legal title under the terms of a Freehold, to house No. XX at that location. 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 an accepted no third party contract that could interfere with my pre-existing rights and easements.


4. 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.

5. 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.

6. The Claimant, or Managing Agent, in order to establish a right to impose unilateral terms which vary the terms of the lease to the managed land which also consists of apartments, 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.

7. 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.

8. 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.

8.1 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.

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.

8. The Defendant has the reasonable belief that the Claimant has not incurred an additional £60 in damages or costs to pursue an alleged £100 debt. Alleging that the letters the parking firm sent have caused an additional loss, is simply untrue. The standard wording for parking charge/debt recovery contracts is/was on the Debt Recovery Plus website - ''no recovery/no fee'', thus establishing an argument that the Claimant is breaching the indemnity principle - claiming reimbursement for a cost which has never, in fact, been incurred. This is true, whether or not they used a third party debt collector during the process, because parking charges (unlike other 'debt' claims) must by definition, already encompass the costs of the operation.

9. Whilst quantified costs can be considered on a standard basis, this Claimant's purported added £60 'damages/costs' are wholly disproportionate, are not genuine losses at all and do not stand up to scrutiny. This has finally been recognised in many court areas. Differently from almost any other trader/consumer agreement, when it comes to parking charges on private land, binding case law and two statute laws have the effect that the parking firm's own business/operational costs cannot be added again, to the 'parking charge'.

10. 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 £247.71, the Defendant avers that this inflation of the considered amount is a gross abuse of process.

11. 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. 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.






………………………………………………………. (Defendant)

……………………… (Date)

Coupon-mad

from what I understand we as homeowners own our parking spots as freeholders.

Ooer, hope so! Your case is strong.

We can look at your defence draft in the morning. Reply if you get no comments!

Le_Kirk

Looks like a good standard "own space" defence. You might want to read THIS post and/or the threads by CEC16 and basher52 which all contain good defences of the spurious £60 written by beamerguy and Coupon-mad. If you don't have time before you need to submit your defence, you could add the points to your witness statement later in the process.

beamerguy

Le_Kirk wrote: »

Looks like a good standard "own space" defence. You might want to read THIS post and/or the threads by CEC16 and basher52 which all contain good defences of the spurious £60 written by beamerguy and Coupon-mad. If you don't have time before you need to submit your defence, you could add the points to your witness statement later in the process.

May I make a correction Le_kirk, I started the abuse of process thread and add new spankings as and when they happen.
POST #14 is the magic work of coupon-mad and I cannot take that credit