Parked in someone else's bay instead of allocated

HoveNotHappy

Hi

First time poster.
I've been sent a County Court notice.....Claimant, One Parking Solutions/Gladstone.
I didn't respond to the letter before claim as I didn't deem it to be legit.
I've now acknowledged the MCOL on 17/12/2019.

I have drafted a defence pieced together from what I've seen on here.
My issue is I need to now tailor it to my issue.
I parked in a residential car park where I own a property and a parking bay but I parked in someone else's bay which was closer to the building while loading it up. I left a note in the window as I was in and out just in case someone needed to get back into it. We are meant to display a permit which I failed to have on my dashboard at the time (I keep it in a CD case as it is quite large and put it on the dash when I need it). One Parking Solutions came and took pictures after spotting me on camera and left a PCN and took a picture of my note saying to call if it was an issue.

My question is can I still use the Primacy of Contract route? and can anyone advise on any wording that can be added to help bolster this case.

Tomorrow I am going to speak with the owner of the space to see if he will provide a witness statement to say it was ok for me to use their space.

Any help would be great.

Fruitcake

Whether you can use primacy of contract depends on what your lease/AST says or doesn't say about parking, permits, issuing charges, and issuing court claims.

The Jopson vs Homeguard case helps because there the judge defined parking as opposed to stopping, loading and unloading.

http://nebula.wsimg.com/f6d657adf7df70d27e1dd285688b5701?AccessKeyId=4CB8F2392A09CF228A46&disposition=0&alloworigin=1

KeithP

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

HoveNotHappy

The issue date was 06/12/2019 and acknowledgment of service was received on 17/12/2019.

KeithP

HoveNotHappy wrote: »

The issue date was 06/12/2019 and acknowledgment of service was received on 17/12/2019.

With a Claim Issue Date of 6th December, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Wednesday 8th January 2020 to file your Defence.

That's a little over a week 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. No need to do anything on MCOL, but do check it 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 trying to keep you under pressure. Just file it.
   
7. Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of [URL="https://forums.moneysavingexpert.com/discussion/4816822NEWBIES FAQ sticky thread[/URL] to find out exactly what to do with it.

HoveNotHappy

Thanks for the info. I'll have a look at this and see about adding it into my defence. I didn't have my hazards on to indicate I was loading and I was over 10 minutes which is when I got the PCN on the window.

Coupon-mad

Ingram Crescent area?

I've added you to my allowed private messages as I can help locally at court and am happy to speak for you if you wish, free of charge.

You do not need hazards on to load, and this is clearly predatory ticketing. You will be able to use Jopson v Homeguard as an exhibit at the later WS & evidence stage.

Please also attach a copy of DJ Grand's Southampton order (from CEC16's thread) and DDJ Joseph's Warwick order from CrystalTips' thread, to your defence email and mention them both in the defence, like others have done.

Search the forum for: 'summarily struck out in Southampton, Caernarfon and Warwick' ... and copy the end wording others have used. I am really keen that the Judges at the local Brighton & Worthing courts see the Southampton and Warwick strike-out wording used a lot in 2020.

HoveNotHappy

Hi Coupon-mad. This is in the Channings block which is on the Hove seafront at the end of Carlisle road.

I've been drafting a defence but I feel it repeats itself and doesn't really help my issue. I've never had to do anything like this before. Is it ok if I email you my draft defence? It's a lot of plagiarising from other people but I could do with some help as to how to tailor it to my needs. Thankyou so much for your help, very kind of you to offer.

I did a SAR and got everything back, would it be worth me emailing back asking for evidence that I was the one driving the vehicle as they failed to prove it was me.

Thanks

Le_Kirk

Just post your defence on the forum where all the regulars will see it and be able to offer advice and support.

HoveNotHappy

Ok Thanks...


1. The defendant was not the driver of the vehicle for the period in question.

2. The claimant has not identified the driver.

3. The vehicle was insured for two people and the defendant was not the main driver on the insurance so the assumption that the defendant was the driver for the period in question is erroneous.

4. The identity of the driver of the vehicle on the date in question has not been ascertained. The Defendant does not know who the driver was. He has made reasonable enquiries of third parties who were authorized to drive the said vehicle at the time of the alleged incident. None have admitted that they were the driver because they cannot remember, and the Defendant cannot remember who used the car on the date in question. The Defendant has no means of finding out who the driver was, and in any event is not obliged to do so by the Protection of Freedoms Act 2012 or any other legislation, or pursuant to any contractual obligation.
4.1. The Claimant has provided no evidence 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")
4.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
4.2.1. there was a !!!8216;relevant obligation!!!8217;; either by way of a breach of contract, trespass or other tort; and
4.2.2. 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.
4.3. To the extent that the Claimant may seek to allege that any such presumption exists, 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.

5. With regard to the Claimant’s assertion that the Defendant, as keeper of the vehicle, should be presumed to be the driver unless he sufficiently rebuts this presumption, which it claims is a principle established by Elliott v Loake 1983 Crim LR 36, I dispute it:
The case relied upon does not provide that any such presumption can or should be made, nor that it is for the Defendant to rebut it. A claim is for the Claimant to prove and there is no reverse burden of proof in respect of parking charges; in addition the case was a criminal case.
In the case relied upon there was overwhelming evidence that the keeper of the car was driving it at the relevant time – there is no such evidence in this Claim.

6. To be liable as the “Keeper” of a vehicle under paragraph 4(1) of Schedule 4 to the Protection of Freedoms Act 2012 (“the Act” and “the Schedule” respectively), paragraph 4(2)of the Schedule clearly states that this is only if each of the four conditions set out in paragraphs 5, 6, 11 and 12 of the Schedule have been complied with. The Claimant has failed to comply with those conditions, as set out below. Having failed to comply with the conditions, there is no legal basis whatsoever to enforce the parking charge against the Defendant as the vehicle’s registered keeper. There is no other basis, at common law or by statute, for the Defendant to be held liable for the parking charges which are the subject matter of this Claim

7. It is denied that any "parking charges or indemnity costs" (whatever they might be) as stated on the Particulars of claim are owed and any debt is denied in its entirety.

8. The claimants signage specifically cites the driver as with whom a contract is agreed.

9. The claimants letters to myself have again specifically cited the driver of the car.

10. As this alleged contravention occurred in April 2018, it is unreasonable of the claimant to assume that it can be recalled who was the driver at the time.

11. It is not admitted that the Claimant has contractual or other lawful authority to make contracts with residents at this location, and/or to bring proceedings against the Defendant. The Claimant is put to strict proof. Further, and in the alternative, the Defendant avers that the Claimant requires the permission of the owner of the relevant land - not merely another contractor or site agent not in possession - in order to commence proceedings

12. The Defendant avers that the Claimant cannot:
(i) override the existing rights enjoyed by residents and their visitors, or
(ii) offer parking on more onerous terms than were already granted and agreed in the lease/tenancy Agreement, or
(iii) decide to remove parking bays from use by residents and their visitors and/or start charging for them.

13.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.
13.1. The Defendant avers that there has been no variation of the resident's lease under the Landlord and Tenant Act 1987. The Defendant understands that for such a variation to have been agreed by the residents, 75% of the parties must have consented and not more than 10% must not have objected to any proposed material change (which this most certainly is).
13.2 Due process has not been followed and the Claimant is put to strict proof, including proving delivery of the requisite notices and the consensus obtained for the introduction of this unwelcome nuisance. Onerous terms cannot be foisted upon residents merely by a third party putting some signs up and beginning a predatory charging regime - even with the authority of a site agent - since this would be a derogation from grant. In this case the Claimant continues to cause a substantial and unreasonable interference with the Defendant's land/property, or his/her use or enjoyment of that land/property.
13.3 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.
13.4 In D7GF307F - UKCPM v Mr D - before Deputy District Judge Skelly on 1st February 2018 at Clerkenwell, a similar thin excuse of an argument from a private parking firm inflicting a nuisance on residents & visitors was dismissed. When not sitting as a Judge, DDJ Skelly is a barrister specialising in property law. The managing agents were named as a party to the lease, and there was a clause which said that they could make regulations for the 'comfort and convenience' of lessees. However, this could not excuse a change as intrusive and onerous as to override the grant of free resident/visitor parking, effectively restricting and charging for a right previously enjoyed, without the required consensus and deed of variation. It would be like the agents suddenly stipulating that residents had to hang a Union Jack out of the window whenever they were at home; clearly unreasonable and not in the interests of the consumer.

14. This Claimant has only in recent months, begun a predatory parking regime targeting residents and their visitors and has unilaterally attempted to foist upon residents a change of rules, in complete disregard to any existing rights and grants; the Claimant being a stranger to the various residents' Agreements. No variation of residents' Agreements has taken place and any such variation would be solely a matter between the landowner and the resident, in any case


15. The Particulars of Claim lack specificity. 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.


16. The Particulars of Claim disclose no cause of action and are in breach of several aspects of the Civil Procedure Rules (“CPR”), so much so that they are incoherent and do not amount to any recognisable claim. They should be struck out;

17. 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.
17.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate.
17.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;
17.1.2. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee!!!8217;s ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and
17.1.3. 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
17.2. 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

18. The Defendant denies any separate contract with the Claimant in respect of parking arrangements. The Claimant has offered nothing by way of consideration, given the primacy of contract enjoyed by residents who already have rights of way, and have been parking in that space for years and have a reasonable expectation to continue to do so, free of harassment, predatory conduct and 'parking charges'.
18.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate.
18.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;
18.1.2. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee!!!8217;s ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and
18.1.3. The signage contained particularly onerous terms not sufficiently drawn to the attention of existing residents, as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3
18.2. 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. In fact, the existing rights of residents should have been protected.
18.3 The charge is, accordingly, unconscionable in this context, with ParkingEye v Beavis distinguished.

19. 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.

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


21. 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.

22. It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, the Defendant is keeping careful note of all wasted time/costs in dealing with this matter and should the case continue to trial (or in the event of the Claimant filing a Notice of Discontinuance) the Defendant will seek further costs, pursuant to Civil Procedure Rule 27.14(2)(g).

23. The Court is invited to take Judicial Notice of the fact that the Claimant's solicitors, Gladstones, is engaged in a course of conduct which involves issuing tens of thousands of totally meritless Claims, which are routinely dismissed by District Judges sitting in this Court, and other County Court hearing centres in all parts of England & Wales. The Court is therefore invited to refer the matter to the Designated Civil Judge, for consideration of the issuing an Extended Civil Restraint Order against the Claimant, pursuant to CPR Practice Direction 3.1(3).

24. The Defendant denies the claim in its entirety, voiding any liability to the Claimant for all amounts due to the aforementioned reasons. The Defendant asks that the court gives consideration to exercise its discretion to order the case to be struck out under CPR Rule 3.4, for want of a detailed cause of action and/or for the claim having no realistic prospects of success.

25. If the court is not minded to make such an order, then when Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because it is expected that the Claimant will use its witness statement to provide the sort of detail which should have been disclosed much earlier, and the Defendant should have the opportunity to consider it, prior to serving evidence and witness statements in support of this defence.

I confirm that the above facts and statements are true to the best of my knowledge and recollection.


Signed

Date

The_Deep

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

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.

http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted

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