PCN while in GF's allocated parking bay - permit slipped off dashboard

Le_Kirk

zimbo_ouen said:

Thanks @KeithP,

Just to check here but I thought it was 2 weeks and not 3 weeks to do the AOS? If the date of issue was the 18th November is it not the 1st December I have until?

But thank you very much for the advice

Just refer to the CPR here:-
https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part15
It is 15.4 that you want.

KeithP

zimbo_ouen said:

KeithP said:

zimbo_ouen said:

So I have recently received a County Court Claim Form...

I have read the guides and it seems I need to do an AOS and Issue Date was 18/11/2021 so think I can do this asap now right?

With a Claim Issue Date of 18th November, you have until Tuesday 7th December to file an Acknowledgment of Service and as you say there is nothing to be gained by delaying it. 

To file an AoS, follow the guidance in the Dropbox file linked from the second post in the NEWBIES thread.

Having filed an AoS in a timely manner, you have until 4pm on Tuesday 21st December 2021 to file your Defence.

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

To create a Defence, and then file a Defence by email, look again at the second post on the NEWBIES thread - immediately following where you found the Acknowledgment of Service instructions.

Don't miss the deadline for filing an Acknowledgment of Service, nor that for filing a Defence.

Do not try and file a Defence via the MoneyClaimOnline website. Once an Acknowledgment of Service has been filed, the MCOL website should be treated as 'read only'.

zimbo_ouen said:

Unsure how long this all takes for a court date as worried it may happen when maybe I'm away for Christmas and the New Year etc

Having filed a Defence in a timely manner, it's unlikely anything will need your attention until middle/late January.
Any hearing will probably be after Easter.

Thanks @KeithP,

Just to check here but I thought it was 2 weeks and not 3 weeks to do the AOS? If the date of issue was the 18th November is it not the 1st December I have until?

But thank you very much for the advice

The back of your Claim Form tells you:

It goes on to say:

zimbo_ouen

Thanks @KeithP I appreciate the info on the dates

zimbo_ouen

Acknowledgment of Service has now been done and will start working on my defence and my girlfriend will work on her Witness Statement and I'll work on mine too

Thanks for your help and guidance all so far

zimbo_ouen

Evening all,

So I want to start working on my defence this week and have seen a lot of examples of defences and I'd like to pick and choose parts to make them into one;
For example I'd like to use some defence points about needing a fob for the secure access into the property where this "charge" was issued, the facts about the lease mentioned before (space is part of the lease, no mention of parking permit in lease etc), the false admin costs etc

Do I just need to find examples of defences for each ones and ensure the relevant ones stay together in a type of order, ensuring no duplicates etc?

Just unsure where the heck to start and how to ensure it's going to be solid  

KeithP

zimbo_ouen said:

Just unsure where the heck to start and how to ensure it's going to be solid  

Have another read of my post on 26 November at 11:29PM.

Particularly this bit...

To create a Defence, and then file a Defence by email, look again at the second post on the NEWBIES thread - immediately following where you found the Acknowledgment of Service instructions.

zimbo_ouen

Thanks @KeithP I did see that but I assumed that defence was just for the false admin costs when I read the url

So all I do is use that template and add anything else not mentioned in that defence from paragraphs 2 and 3?

Apologies if I misunderstood that instruction then and will use that, edit and add my parts and then maybe I can post it here for anyone to review and add their thoughts hopefully.

Thank you and apologies again for getting confused here

Coupon-mad

The template defence tells you what sort of thing to add.  Read the defence, it covers signage and landowner authority too.

Le_Kirk

.... and of course you can post your paragraphs 2 & 3 (plus any others you add) here for critique.  You don't need to post here the rest of the defence template from paragraphs 4 onwards as we are not checking @Coupon-mad's work!

zimbo_ouen

Hi all and hope you are well and keeping safe. I have added the above for easy references to my defence which I have now drafted and would be very grateful for any feedback and/or amendments required and thanks so much for your time in reviewing this:

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The facts as known to the Defendant:

2. It is admitted that the Defendant was the registered keeper of the vehicle in question but liability is denied. It is also admitted that the Defendant was the driver of the vehicle on the day in question but liability is denied.

3. The Particulars of Claim on the N1SDT Claim Form refer to a 'Parking Charge(s)' incurred on XX/XX/XX. 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. 

4. The Particulars refer to the material location as XXXXXXXXXX, XXXXX, XXXXX. The Defendant was an authorised visitor of the Leaseholder who has, since XX/XX/XX, held legal title under the terms of a lease, to Flat No. XX (Plot XX) at that location. At some point, the managing agents contracted with the Claimant company to enforce parking conditions at the estate without any consultation or notice to the Leaseholder.

5. The car parking area contains allocated parking spaces demised to some residents whereby the Leaseholder has one assigned which forms part of their Leasehold (Plot XX of XXXXXXX XXXXX) and is confirmed in the lease (space XX). Entry to the parking area and estate by vehicle 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. The Defendant has the key fob on their car keys which was given to them by the Leaseholder.

6. Under the terms of the Defendant's lease, a number of references are made to conditions of parking motor vehicles and for quiet enjoyment;

- Under clause 2.5 the lease states "The estate also has communal areas. These are facilities which you and others may use, such as the estate roads, footpaths and parking forecourts, or enjoy, such as landscaped areas" 

- In "Chapter 7 - Using Your Apartment", under clause 7.2 it states "Quiet enjoyment: If you pay the rent and comply with your other obligations under your lease you may enjoy your apartment without any interruption or disturbance from us or from anyone claiming under or in trust for us"; The leaseholder complies with all of these requirements and therefore should have this granted to them and their authorised visitors

- In "Chapter 7 - Using Your Apartment", Under clause 7.6 it states for the 'House Rules': "Parking areas - You must not allow any car parking space that may be included with your apartment to be used by anyone who is not living in or visiting your apartment."; The Defendant was and currently is still an authorised visitor

6.1. There are no terms within the lease requiring lessees or their authorised visitors to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same.

7. 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.

8. 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 Leaseholder is unaware of any such vote having been passed by the residents.

9. Despite the fact residents and their authorised visitors shouldn't need to display a permit due to the lack of terms of this requirement in the lease, there are issues with the signage the Claimant uses which are:

- The amount of the PCN (£100) is in small font, and not prominent (Lord Denning's "Red Hand" rule)

- The sign is forbidding and you cannot contract to do that which is forbidden. If you're not permitted to park there without a valid permit, then you cannot contract to park there for an arbitrary sum

- The location number on their sign being displayed nearest to parking space XX is blank and is therefore invalid

9.1. The Defendant's vehicle clearly was 'authorised' as per the lease terms and the Defendant relies on primacy of contract of the lease of XX XXXXXXX XXXXX, XXX XXX and avers that the Claimant's conduct in aggressive ticketing is in fact a matter of tortious interference, being a private nuisance to residents and in breach of their rights to 'Quiet Enjoyment' as previously referenced

9.2. 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 leaseholder's land/property, or his/her use or enjoyment of that land/property and that of their authorised vistors.

10. 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.

11. 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.

12. Other residents in the same estate have previously received multiple 'Parking Charges' from the Claimant, and had their case taken to Court and the charges were dismissed in favour of the Defendants based heavily on the 'primacy of contract' of their Lease (Link Parking v XXXXX XXXXX - Case ref: XXXXXXX and Link Parking v XXXXXX XXXXXX) NOTE - unsure if I am allowed to put their names publicly at the moment so am redacting for now

13. The Leaseholder's parents previously parked in the allocated parking space (space XX) for XX XXXXXXX XXXXX as authorised visitors on the XX/XX/XXXX and also received a 'Parking Charge' for not displaying a permit which the Leaseholder unfortunately paid to prevent her retired parents from having to endure the predatory and harassing correspondence and threats from the Claimant due to their age and the stress this would cause to them

14. Since the 'Parking Charge' mentioned in the Particulars of Claim was issued, the Leaseholder demanded their parking space not be 'policed' by the Claimant any further on the XX/XX/XX to the Management Company and the Claimant and yet on the XX/XX/XX another 'Parking Charge' was issued to the same vehicle in the Particulars of Claim, despite the correct permit being displayed (out of fear) where the Claimant claimed it was parked in the wrong space. This is clearly an example of their predatory and harassing behaviour and this ticket was cancelled but only after I challenged this with the Claimant direct.

** Will insert other parts of the suggested template defence in between these two and amend the last few paragraphs as required **

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

XX. 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.

XX.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 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. 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.

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