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OWN SPACE DEFENCE - PLEASE ADVISE
Hussar1715
Posts: 11 Forumite
MSE,
Please advise both on the content / amended template chosen below and on the specific question in para 3. I have applied for the AoS and have photographs of the gated, private entrance to use also. The Claim Form issue date was 02 Apr 2020 and the AoS was submitted on 10 Apr 2020.
IN THE COUNTY COURT
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 26/01/2016. 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 Defendant was driving the vehicle and/or is the keeper of the vehicle' 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 'COLOR="red"]LOCATION[/COLOR - WHAT IS THIS PLEASE?. The Defendant has, since COLOR="Red"]DATE[/COLOR, held legal title under the terms of a lease, to Flat No. 71 at that location. At some point, the managing agents contracted with the Claimant company to enforce parking conditions at the estate.
4. The gated, private car parking area contains allocated parking spaces demised to residents and a visitor bay. Entry to the gated, private parking is by means of a key fob, of a type only issued to residents. Any vehicles parked therein are, therefore, de facto authorised to be there.
5. Under the terms of the Defendant's lease, a number of references are made to conditions of parking motor vehicles. The definitions, at the Fourth Schedule, Clause 6: 'The right to the exclusive use of the Parking Space for the purpose of parking a private motor vehicle...' and in the Eighth Schedule, Part Two, Clause 3, 'Not to use the Parking Space for any purpose other than for the purpose of parking a private motor vehicle ...'
5.1. 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.
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 'a controlled area / authorised vehicles and 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.
10. The Claimant, or their legal representatives, has added an additional sum 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.
11. 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 £213.53, the Defendant avers that this inflation of the considered amount is a gross abuse of process.
12. 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.
12.1. 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 cease 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.
……………………To follow on…………………………………. (Defendant)
……16.04.2020………………… (Date)
Please advise both on the content / amended template chosen below and on the specific question in para 3. I have applied for the AoS and have photographs of the gated, private entrance to use also. The Claim Form issue date was 02 Apr 2020 and the AoS was submitted on 10 Apr 2020.
IN THE COUNTY COURT
Claim No.: G******0
BetweenObservices Parking Consultancy Limited
(Claimant)
-and-
Capt M ************
(Defendant)
DEFENCE
(Claimant)
-and-
Capt M ************
(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 26/01/2016. 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 Defendant was driving the vehicle and/or is the keeper of the vehicle' 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 'COLOR="red"]LOCATION[/COLOR - WHAT IS THIS PLEASE?. The Defendant has, since COLOR="Red"]DATE[/COLOR, held legal title under the terms of a lease, to Flat No. 71 at that location. At some point, the managing agents contracted with the Claimant company to enforce parking conditions at the estate.
4. The gated, private car parking area contains allocated parking spaces demised to residents and a visitor bay. Entry to the gated, private parking is by means of a key fob, of a type only issued to residents. Any vehicles parked therein are, therefore, de facto authorised to be there.
5. Under the terms of the Defendant's lease, a number of references are made to conditions of parking motor vehicles. The definitions, at the Fourth Schedule, Clause 6: 'The right to the exclusive use of the Parking Space for the purpose of parking a private motor vehicle...' and in the Eighth Schedule, Part Two, Clause 3, 'Not to use the Parking Space for any purpose other than for the purpose of parking a private motor vehicle ...'
5.1. 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.
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 'a controlled area / authorised vehicles and 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.
10. The Claimant, or their legal representatives, has added an additional sum 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.
11. 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 £213.53, the Defendant avers that this inflation of the considered amount is a gross abuse of process.
12. 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.
12.1. 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 cease 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.
……………………To follow on…………………………………. (Defendant)
……16.04.2020………………… (Date)
0
Comments
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... The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 as a binding precedent
Beavis has nothing t do with "own space" PCNs. Whether the driver is identified or not is also of little consequence. What matters is what the lease/AST says, read these,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.2 -
Hussar1715 said:The Claim Form issue date was 02 Apr 2020 and the AoS was submitted on 10 Apr 2020.With a Claim Issue Date of 2nd April, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Tuesday 5th May 2020 to file your Defence.That's over two weeks away. Plenty of time to produce a Defence, but please don't leave it to the last minute.To file a Defence, follow the guidance in this post:Guidance on creating a Defence is also in that thread - in the first post on that thread.Don't miss the deadline for filing a Defence.3
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Have you been in touch with the management company who hired this so called parking company?From the Plain Language Commission:
"The BPA has surely become one of the most socially dangerous organisations in the UK"2 -
Use the template defence instead, as linked by KeithP, and add in facts in #16 and #17 of it.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
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Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD2 -
D_P_Dance - Thank you for the links. I quite agree (about the ID of the driver), not being a legal man, I was merely copying the most suitable defence form the Newbies thread as directed. // There is nothing in the lease about needing to display a permit so yes I hope the lease will take primacy. I know my MP well and will indeed raise this issue with him.
KeithP - Thank you for the Defence guidance link. I had taken my attempt from the Newbies thread - it was the most applicable especially with the private, gated parking element. I assumed it was spot on but happy to use a different one if this is the latest advice (which it appears to be from these comments). So thank you.
Half_way - We (the Board of Directors) for the block sacked them (OPC) a few years ago because they were inept. I had no idea they could sit tight for five years and then launch this claim. What would you have me ask the Board now out of interest?
Coupon-mad - Ack. Will do. Thank you. I'll come back once complete. One related question for you all - this is about a ticket in 2016. I have letters from 'DCB legal' regarding a dozen or so identical tickets from 2015-2016. Basically every time I came back from barracks if I didn't put my permit front and centre of the car dash / windscreen they would issue another ticket (even though clearly it was always the same car in the same spot). is there anything I can do to not have to repeat this process a dozen times over the next few months as they inevitably write to me about every single ticket?1 -
Please write a letter to DCB legal - begging them to stop harassing you - (hopefully by email so that you have a log/record). Let us know how they respond. There is so much going on behind the scenes ... and it all helps
4 -
Add in some paragraphs saying this (you'll need to add a para or two to the template defence):
16. This claim relates to one 2016 parking charge, cherry-picked by the Claimants and their legal representative robo-claim firm, 'DCB Legal' and it is admitted that the Defendant was most likely the driver. The facts are that, every time the Defendant came back from barracks and had not had a fair opportunity to place the permit 'front and centre' of the car dashboard within a minute or two, this predatory ex-clamper firm (whose current Director, Douglas Harris, has convictions along with this Claimant company, where he admitted 13 offences including displaying misleading signs and sending misleading letters) would pounce and issue another 'parking charge'. This was without any grace period being observed and despite the operatives knowing that the vehicle had a permit and that it was always the same car in the same permitted space. There was no contravention, no consideration flowed between the Claimant and the Defendant on these occasions and there was no 'meeting of minds' nor agreement by the conduct of parking, to pay a three figure penalty if the permit could not be located in the adjacent premises and placed centrally on the car dashboard within two minutes flat.
17. The Defendant has been harassed and bombarded by (somewhere close to a hundred in total) intimidating 'PCNs' 'reminders', misleading debt demands and pre-action letters over the years from the same Claimant and more recently, DCBL Collections, then DCBLegal, regarding a dozen or so (identical facts) charges from 2015-2016. The Claimant has acted aggressively, oppressively and wholly vexatiously from the outset in pre-and post-action behaviour. It is the Defendant's belief that - aided and abetted by their robo-claim legal firm - this Claimant is setting up to file individual claims against him one by one, and thus accumulate disproportionate court costs and an unrecoverable £60 to each and every one, as well as seeking unjust enrichment in the form of several years of interest, despite the delay being entirely theirs.
18. The Claimant seems to have already met the high bar of 'unreasonableness' as set in the recent case of Dammerman v Lanyon Bowdler LLP [2017] EXCA Civ 269 (12 April 2017). The Defendant will seek his full costs in defending each and every claim, should they not be struck out for the various abuses of process. If the Claimant seeks to amend their claim to try to recover their negligent conduct by adding in the other PCNs hovering at pre-action stage at the present time, then relief from sanctions should not be allowed. The court is invited to find on the facts already disclosed by both parties that this Claimant's conduct provides for no cause of action, and that this meritless claim is intentional and contumelious. The court is invited to use the discretion within its case management powers to summarily strike out the entire claim, and/or order that the Claimant be debarred from filing new claims for parking charges of substantially identical facts. In the alternative, the court is invited to set a preliminary telephone hearing to require the Claimant to explain its predatory conduct and why they should not be the subject of an order for costs on the indemnity basis.
19. The court is also taken to the well known rule in Henderson v Henderson [1843-60] All E.R. Rep. 378 that was considered in Johnson v Gore Wood & Co (No. 1). That rule provides that when a matter becomes the subject of litigation between parties in a court of competent jurisdiction, the Claimant must bring their whole case before the court. In the absence of special circumstances, the parties cannot return to the court to advance arguments or fresh claims which they could have put forward for decision on the first occasion but failed to raise. The abuse at which this rule is directed, as articulated in Barrow v Bankside Agency Ltd., is ''…desirability, in the general interest as well as that of the parties themselves, that litigation should not drag on forever and that a defendant should not be oppressed by successive suits when one would do”. In this case, these unfair parking charges have dragged on for five years and still the Claimant has filed only one claim, yet continues to threaten something like a dozen more.
PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
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Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD3 -
There is another OBSERVICES residential thread like yours here:
https://forums.moneysavingexpert.com/discussion/6132180/claim-form-defence-advice-please
I suggest you send them a pm and see if you are both local to each other and can support each other with evidence and photos, if this is about the same place.
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 THREAD2 -
bear in mind your statement of truth is incorrect, it changed a couple of weeks ago to a new longer version
2 -
Good point, this is hard to pick up each time!
I've put it in the NEWBIES thread but need to edit the defence template itself to change that and more than one thing.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 THREAD2
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