UKCPM Claim form received - Allocated Space/Access By KeyFob

dspan156

Defence submitted 10/04/2020
HM courts and tribunals service acknowledge receipt of my defence 14/04/2020 

dspan156

Hello,
I have received the notice to the small claims track (hearing) 90 minutes by telephone 
By 08/09/2020 by 4pm parties are to send to court and each other a bundle containing all documents on which they intend to rely on in trial.
I have received Gladstones WS by Jack Chapman and evidence - their evidence is based on me not displaying a full valid permit (i had a valid permit but their hologram was not visible at the time)
I am writing my witness statement based on my defense of abuse of process £60 add-on scam and my tenancy agreement not mentioning i need to display a valid permit and i have the use of an allocated parking bay throughout the tenancy. i am bundling all evidence, i would appreciate any help/advice 
Thank you in advance  

Redx

Post the WS draft below for critique

Ensure it has the new statement of truth

Ensure it has references to your exhibits

Ensure that you include the summary costs assessment in the bundle

The £60 add on is double recovery and not allowed , it may be an abuse of process

Le_Kirk

dspan156 said:

Hello,
I have received the notice to the small claims track (hearing) 90 minutes by telephone 
By 08/09/2020 by 4pm parties are to send to court and each other a bundle containing all documents on which they intend to rely on in trial.
I have received Gladstones WS by Jack Chapman and evidence - their evidence is based on me not displaying a full valid permit (i had a valid permit but their hologram was not visible at the time)
I am writing my witness statement based on my defense defence of abuse of process £60 add-on scam and my tenancy agreement not mentioning i need to display a valid permit and i have the use of an allocated parking bay throughout the tenancy. i am bundling all evidence, i would appreciate any help/advice 
Thank you in advance  

Abuse of process is not a defence by itself, it is designed to limit the amount that the PPC/solicitor can claim.  Trying to add on "debt control" or "admin" costs is not allowed.  Your defence needs to be based on your other points about primacy of contract, allocated parking bay and no clause in the tenancy agreement requiring you to display a permit.  If you have displayed a permit before it was only as a courtesy.

dspan156

Noted thank you for the feedback,
Im in the process of writing the WS and the claimant has attached a copy of the senior lease from the land owner and management company (first time seeing this), and this is a different document to the tenancy agreement my estate agent gave me when i moved in to the property. which has slightly made me doubt my defence.
In the senior lease there is still no mention of having to display a valid permit but there is a section headed Parking charges but again there is no mention of the need to display a permit, but i fear it may point to the fact the management company agrees to the terms on the parking firms signage terms 

Le_Kirk

dspan156 said:

Noted thank you for the feedback,
Im in the process of writing the WS and the claimant has attached a copy of the senior lease from the land owner and management company (first time seeing this), and this is a different document to the tenancy agreement my estate agent gave me when i moved in to the property. which has slightly made me doubt my defence defense.
In the senior lease there is still no mention of having to display a valid permit but there is a section headed Parking charges but again there is no mention of the need to display a permit, but i fear it may point to the fact the management company agrees to the terms on the parking firms signage terms 

If the senior lease (presume you mean head lease) is silent on the subject of permits, that is to your advantage.  Can you post here the relevant part of the senior lease that mentions parking and more importantly the lease that YOU signed as that is the one to which you will be bound.

dspan156

Below is the only mention of parking on the lease I signed, attaching images now of mentioned parking on the head lease (used in claimants WS bundle)
3. SPECIAL PROVISIONS

b) It is agreed that the Tenant has use of one car parking space - for car registration XXX - at the Property throughout

the Tenancy Period

dspan156

Le_Kirk

That seems pretty clear cut to me, not only do you have the right to park in your allocated parking spot in the basement, you are paying towards its upkeep.  Any judge would send the PPC packing.

dspan156

First draft of my WS

IN THE COUNTY COURT AT STAINES

CLAIM No: XXXXXXX 

BETWEEN:

UK CAR PARK MANAGEMENT LTD (Claimant)

-and-

XXXXXXXX (Defendant)

Witness Statement

I am XXXXXXXXXXXXX, and the Defendant in this matter. Any evidence to my statement I will refer to the attached documents as Exhibit A01, Exhibit A02 and so on.

1. The facts in this statement come from my personal knowledge. Where they are not within my personal knowledge, they are true to the best of my information and belief.

2. I am the Registered Keeper of the vehicle in question on the 7th December 2018 and thereafter.

Summary

3. The claim against me relates to parking charges that allegedly occurred at my previous address XXXXX from which I was a tenant from 31st August 2018 to 30th August 2020 (See exhibit A01 tenancy agreement).

4. When I moved into the property the landlord told me parking bay 170 was allocated to the property. At some point, previous to my tenancy the managing agents contracted with the Claimant company as a contractor, but they are strangers to the lease I signed, and I was led to believe that the regime was intended to deter trespassers not good standing residents who pay towards the buildings upkeep.

5. On the date of the incident my vehicle was partially displaying the parking permit, where part of the Claimant’s logo and bay number is visible. The parking attendant clearly saw this permit as they have provided photographs of it. [See exhibit, A01]

6. I had not purposefully partially hidden the parking permit as I had no reason to do so. The only parking permit in my possession was the one for the allocated bay my vehicle was parked in, which I displayed out of courtesy for other residents to see.

7. The underground car park contains allocated parking spaces demised to residents, and a few visitor-parking bays. Access to this car park is restricted and the electric gate opened only by using a key fob, given only to residents authorised to enter the car park.

Primacy of Contract

8. There is no licence to park that this Claimant can possibly offer me that I did not already have as an unfettered right. This Claimant is trying to run the car park like a commercial site, on the same punitive terms as a trespasser would be charged. This would clearly be a derogation from grant and I wish to make clear that I did not agree to contractual terms, just because a permit was imposed upon me with no opt out offered. Permits were displayed as a courtesy only, to show other residents who was parked.

9. Under the terms of my lease (Exhibit A02), there is one reference made about parking motor vehicles. States under special provisions The ‘Rights granted to the Tenant’ within the ‘Lease’ “It is agreed that the Tenant has use of one car parking space - for car registration XXX - at the Property throughout the Tenancy Period” no mention of needing to display a valid permit.

10. The parking bay allocated to the property where my car was parked on a nightly and daily basis is clearly marked with number 170 (Exhibit A03), as allocated solely to the resident of marked apartment.

11. 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 the same. Therefore, my case relies on Primacy of Contract. I refer previous cases such as Pace v Mr N [2016] C6GF14F0 [2016] (Exhibit A04), where it was found that the parking company could not override the tenant's right to park by requiring a permit to park.

12. I did, at all material times, park 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 me in any way, and their existence does not constitute a legally valid variation of the terms of the lease. Accordingly, I deny having breached any contractual terms whether express, implied, or by conduct.

13. My vehicle clearly was 'authorised' as per the lease and 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. In this case the Claimant continues to cause a substantial and unreasonable interference with the land/property, or my use or enjoyment of that land/property.

14. 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 I am unaware of any such vote having been passed by the residents.


15. The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 (Exhibit A05) 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 my 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.

16. If the court is minded to accept that a sign was visible, the wording on the sign was prohibitive. Unlike in the Beavis vs ParkingEye case, the Claimant offered no licence to park if not a ‘permit holder’. A purported licence to stop without a permit, in exchange for payment of a ‘charge’ on the one hand, cannot be offered when that same conduct is, on the other hand, expressly prohibited in the signage wording. This does not create any possible contract.

17. This is clear from several cases. An example In PCM-UK v Bull et all B4GF26K6 [2016], residents were parking on access roads. The signage forbade parking and so no contract was in place. A trespass had occurred, but that meant only the landowner could claim, not the parking company.

18. The lease does not limit, nor can it limit the use of the allocated parking bay nor can I, the Leaseholder be charged for using it appropriately. There is no requirement under the lease to display a permit to park in the allocated parking bay for the associated property. The lease has primacy of contract. This attests to the judgement of Deputy District Judge Metcalf in the Link Parking Ltd v Parkinson – C7GF50J7 case. [See A06]

DE MINIMIS PRINCIPAL / UNFAIR TERM

19. I parked in accordance with the Lease agreement with the Landlord and genuinely made every effort to comply with the spirit of parking in accordance with maintaining the control intended by the Landlord. The permit simply slipped into the dashboard due to poor adhesive yet was still visible, therefore this small human error comes under the de minimis principle.

20. In Jolley v Carmel Ltd [2000] 2 –EGLR -154, it was held that a party who makes reasonable endeavours and takes reasonable steps to comply with contractual terms, should not be penalised for breach outside of their control. [exhibit A07]

21. It is my view that the display of a valid permit in some circumstances can be synonymous with a parking ticket bought from a machine. Fluttering tickets are routinely accepted as a valid defence to Council Penalty Charge Notices and whilst contractual principles are not applied to such notices, it is indicative of the fact that circumstances out of your control, and where the driver has clearly paid for the parking, are deemed to be a good reason for those notices to be cancelled.

22. The term in the alleged contract, relating to ‘fully’ displaying a parking permit as opposed to partially displaying it/and or proving ownership of the correct permit can be considered an unfair term according to the Unfair Terms in Consumer Contract Regulations 1999, the term was drafted in advance and was not individually negotiated with myself, and I argue that it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer, especially as I am relying on the effectiveness of the item we are provided by the Claimant to function as expected. [exhibit A08 ]

Abuse of Process

23. The Letter of Claim include £60 for ‘debt recovery costs’. I have the reasonable belief that the Claimant has not incurred £60 costs to pursue an alleged £100 debt. Any debt collection letters are likely a standard feature of a low-cost business model and are already counted within the parking charge itself. The Protection of Freedoms Act 2012, Schedule 4, Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper. In this case, £100 therefore the maximum sum that may be received would be £100.

24. According to Ladak v DRC Locums UKEAT/0488/13/LA a Claimant can only recover the direct and provable costs of the time spent preparing the claim in a legal capacity, not any administration costs allegedly incurred by already remunerated administrative staff

Statement of truth

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

Signed