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VCS - Renshaw-Smith -- (again!) -- Residential parking case / defence and Beavis
growbag
Posts: 36 Forumite
New poster. I have read through the Newbies stickies and would appreciate some views/advise on this one.
Vehicle Control Services is taking me to CC. I am a tenant in a residential block of flats with a parking permit (fob access to gated residents only parking area). Returned from work one evening to find another car in my allotted bay. Left car in unmarked area (not in another resident's bay or blocking access) to try to find the building manager. Not there very long (less than 30 mins) but later received a VCS charge notice in the post under the charge of "parking outside of marked bays"). Appealed and exclaimed circumstances through the IAP but this was (inevitably) rejected. Now facing a court action (£160+£25 court fee). I will return the Acknowledgement of Service.
I do not dispute the wording on the signage ("no parking outside of marked bays") - although the parking area was being repainted at the time (unreadable bay numbers) and the automatic gate was broken/stuck open -- but I have no photographic evidence of this. My best possible line of defence may be the 'variation on the terms of the lease' described in one of the brilliant responses on the Newbie sticky thread (thanks!). I have cut out the relevant paragraphs for my case (as I see it) below:
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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.
====================================
My questions are:
1. Does the Claimant (VCS) need to show that such a variation to the lease exists (as I tenant I do not have access to it) and that they therefore have a legal basis for the contract terms?
2. Am I correct in interpreting (9) relating to 'legitimate interest' that the Beavis ruling does not apply because the VCS contract is not legally binding on residents?
Many thanks!!
Vehicle Control Services is taking me to CC. I am a tenant in a residential block of flats with a parking permit (fob access to gated residents only parking area). Returned from work one evening to find another car in my allotted bay. Left car in unmarked area (not in another resident's bay or blocking access) to try to find the building manager. Not there very long (less than 30 mins) but later received a VCS charge notice in the post under the charge of "parking outside of marked bays"). Appealed and exclaimed circumstances through the IAP but this was (inevitably) rejected. Now facing a court action (£160+£25 court fee). I will return the Acknowledgement of Service.
I do not dispute the wording on the signage ("no parking outside of marked bays") - although the parking area was being repainted at the time (unreadable bay numbers) and the automatic gate was broken/stuck open -- but I have no photographic evidence of this. My best possible line of defence may be the 'variation on the terms of the lease' described in one of the brilliant responses on the Newbie sticky thread (thanks!). I have cut out the relevant paragraphs for my case (as I see it) below:
==========================================
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.
====================================
My questions are:
1. Does the Claimant (VCS) need to show that such a variation to the lease exists (as I tenant I do not have access to it) and that they therefore have a legal basis for the contract terms?
2. Am I correct in interpreting (9) relating to 'legitimate interest' that the Beavis ruling does not apply because the VCS contract is not legally binding on residents?
Many thanks!!
0
Comments
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Follow up. The building management company notice to residents (stuck on the entrance) regarding parking only states "Each apartment has one parking space allocated to it, and you should be aware of which parking space is allocated to your property ... Under no circumstances should residents park in a space allocated to another property. A parking permit scheme in is place at XX and you must clearly display a permit in the front windscreen of your vehicle".
I would argue that I was complying with these terms (I did not park in another users bay and my permit was displayed). There is nothing in these terms displayed to residents by the building management company referring to "parking outside of marked bays".0 -
Have you received a County Court Claim Form?
If so, what is the Issue Date on it?1 -
THE BEAVIS CASE: The problem the parking companies and their dodgy legals have is the complete lack of understanding of the case. Beavis claimed the amount of £85 was not fair. . The judges ruled it was. So unless you are claiming the same as Beavis, no precedent has been set. This is just a cloud dreaming exercise by dodgy parking companies.
There is a jewel in the crown though .... I assume VCS has added their usual fake £60 to their claim to which they have already been spanked in court. When VCS say they are going to rely on Beavis, it will be you who relies on Beavis because in the ruling .... 198. ''...The charge has to be and is set at a level which enables the managers to recover the costs of operating the scheme...''
That simply means VCS are acting against the Beavis case and they get spanked in court for ABUSE OF PROCESS ......... All info here .....
https://forums.moneysavingexpert.com/discussion/6014081/abuse-of-process-district-judge-tells-bwlegal/p1?new=1
You mention Renshaw-Smith ....... he should carefully read the outcome of the Beavis and not make stupid statements on just a small part of the Supreme Court decision1 -
Have you read this?
http://parking-prankster.blogspot.com/2016/11/residential-parking.html
what does your lease/AST say about parking? Does it mention the need to display a permit? If not then it may take primacy over the self serving TnC of the scammer, and interfere with your lawful right to “quiet enjoyment” of your property, possible an offence under The Landlord and Tenants Acts.
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.
You never know how far you can go until you go too far.1 -
Yes they added £60 as debt collection costs.beamerguy said:THE BEAVIS CASE: The problem the parking companies and their dodgy legals have is the complete lack of understanding of the case. Beavis claimed the amount of £85 was not fair. . The judges ruled it was. So unless you are claiming the same as Beavis, no precedent has been set. This is just a cloud dreaming exercise by dodgy parking companies.
There is a jewel in the crown though .... I assume VCS has added their usual fake £60 to their claim to which they have already been spanked in court. When VCS say they are going to rely on Beavis, it will be you who relies on Beavis because in the ruling .... 198. ''...The charge has to be and is set at a level which enables the managers to recover the costs of operating the scheme...''
That simply means VCS are acting against the Beavis case and they get spanked in court for ABUSE OF PROCESS ......... All info here .....
https://forums.moneysavingexpert.com/discussion/6014081/abuse-of-process-district-judge-tells-bwlegal/p1?new=1
You mention Renshaw-Smith ....... he should carefully read the outcome of the Beavis and not make stupid statements on just a small part of the Supreme Court decision0 -
Not quite.growbag said:
yes - 17/02. Makes day of service 22/02 and I have 14 days from then to return the ackowledgment + 28 days?KeithP said:Have you received a County Court Claim Form?
If so, what is the Issue Date on it?
With a Claim Issue Date of 17th February, you have until Monday 9th March to file an Acknowledgment of Service, but there is nothing to be gained by delaying it. To file an AoS, follow the guidance offered in a Dropbox file linked from post #2 of the NEWBIES FAQ sticky thread - https://forums.moneysavingexpert.com/discussion/4816822/newbies-private-parking-ticket-old-or-new-read-these-faqs-first-thankyou
About ten minutes work - no thinking required.
Having filed an AoS, you have until 4pm on Monday 23rd March 2020 to file your Defence.
That's four weeks 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.
- Sign it and date it.
- Scan the signed document back in and save it as a pdf.
- Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
- 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'.
- 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.
After filing your Defence, there is more to do... - Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire. Nothing of interest there. Just file it.
- Wait for your own Directions Questionnaire from the CCBC, or download one from the internet - https://www.gov.uk/government/publications/form-n180-directions-questionnaire-small-claims-track , and then complete it as described by bargepole in his 'what happens when' post linked from post #2 of the NEWBIES thread - https://forums.moneysavingexpert.com/discussion/4816822/newbies-private-parking-ticket-old-or-new-read-these-faqs-first-thankyou"]
- The completed DQ should be returned by email to the CCBC to the same address and in the same way as your Defence was filed earlier.
- Send a copy of your completed DQ to the Claimant - to their address on your Claim Form.
1 - Print your Defence.
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Any views on my best line of defence? Primacy of lease - if I can get hold of a copy (I guess I need to ask the landlord or I could request info from the Building Management Company? I can also use ‘counter Beavis’0
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I am working on a single (non-ParkingEye) template defence that people can adapt and might have it here this week.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD1 -
Please now visit this thread >>>>>growbag said:
Yes they added £60 as debt collection costs.beamerguy said:THE BEAVIS CASE: The problem the parking companies and their dodgy legals have is the complete lack of understanding of the case. Beavis claimed the amount of £85 was not fair. . The judges ruled it was. So unless you are claiming the same as Beavis, no precedent has been set. This is just a cloud dreaming exercise by dodgy parking companies.
There is a jewel in the crown though .... I assume VCS has added their usual fake £60 to their claim to which they have already been spanked in court. When VCS say they are going to rely on Beavis, it will be you who relies on Beavis because in the ruling .... 198. ''...The charge has to be and is set at a level which enables the managers to recover the costs of operating the scheme...''
That simply means VCS are acting against the Beavis case and they get spanked in court for ABUSE OF PROCESS ......... All info here .....
https://forums.moneysavingexpert.com/discussion/6014081/abuse-of-process-district-judge-tells-bwlegal/p1?new=1
You mention Renshaw-Smith ....... he should carefully read the outcome of the Beavis and not make stupid statements on just a small part of the Supreme Court decision
https://forums.moneysavingexpert.com/discussion/6103933/abuse-of-process-thread-part-2/p1?new=1
There you will find in the first post, your defence for ABUSE OF PROCESS by coupon-mad and the strike out for VCS1
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