County Court Claim Form

Erfan1135

Hello everyone, hope you all are well and staying safe.
I have received a county court Bussinues Centre claim form and the issue date for this letter is 25th of NOV. the Particulars of Claim is for unpaid tickets for parking in a private car part from 01/2018 to 09/2018 (16 tickets they said when I have called them up to find out more). the Form also states that the defendant contravened the claimant's displayed terms and conditions. the total amount is £1280 (added by £70 court fee, £80 legal representative's costs)
I live with my parents and my dad is the legal tenant, I have evidence such as driving licence and bank statements that states I do live at this particular house since 2016. 
So, first of all, I do not know if I have been charged because not showing the permit or not parking in my own space as I park my vehicle at my neighbour's space as they do not have a car themselves and allow me to use their. have to mention that their consent has been gained verbally and I can ask them to put in writing as they are happy to do so.
What I have done so far: 
I have read the newbies and created the MCOL login and submitted the AoS (26th), and preparing my defence (I have a few essays to do this came at the worst time ever.) I have contacted citizen advice and have an appointment with them next week as I don't understand much of law and these stuffs, however, I am not sure if that is gonna be any help. I have read thru my dad's tenancy agreement and It states that the landlord shall permit the tenant to have quiet enjoyment of the property without interruption and there is nothing about needing to display any sort of permits which obviously means there is no obligation to display any sort of permit and my dad's lease has primacy of contract.
This is my draft, any feedback would be greatly appreciated (A bit confused on section 4)(as I do not have the details about what breach of contract they are referring to, I thought I must mention that too.)

Erfan1135

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 01/2018 to 09/2018. 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 ‘XXXX’. The Defendant has, since 30/09/2015, lived with his parents who held legal title under the terms of a lease, to Flat No. 33 at that location. At some point, the managing agents contracted with the Claimant company to enforce parking conditions at the estate.

4. The outside car parking area contains allocated parking spaces demised to some residents and a general area for residents who do not have an allocated space. The defendant father owns a vehicle and uses the specific bay to park his vehicle. The bay No. 34 occupied by the defendant on several occasions and it had been authorised by the neighbour and who held legal title under the terms of a lease and did not own a vehicle to use (consent has been gained).  

5. Under the terms of the Defendant's lease, 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 '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 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 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.

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 £1185.41, 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 case wasting the court's time by bringing beleaguered residents to court under excuse of a contractual breach that cannot lawfully exist.

In the matter of costs, the Defendant seeks:

16.   (a) standard witness costs for attendance at Court, pursuant to CPR 27.14, and

(b) that any hearing is not vacated but continues as a costs hearing, in the event of a late Notice of Discontinuance.  The Defendant seeks a finding of unreasonable behaviour in the pre-and post-action phases by this Claimant, and will seek further costs pursuant to CPR 46.5.

17.   The Defendant invites the court to find that this exaggerated claim is entirely without merit and to dismiss the claim. 

 

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’s signature:

Date:

KeithP

Hello and welcome.

Erfan1135 said:

I have received a county court Bussinues Centre claim form and the issue date for this letter is 25th of NOV.
I have read the newbies and created the MCOL login and submitted the AoS (26th)...

 Hello and welcome.

With a Claim Issue Date of 25th November, and having filed an Acknowledgment of Service on 26th November, you have until 4pm on Tuesday 29th December 2020 to file your Defence.

That's almost four 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 at the second post in the NEWBIES thread.

Don't miss the deadline for filing a Defence.

Fruitcake

Please use the template defence from the sticky threads and only show us the two paragraphs you have changed. We don't need to check the work that Coupon-mad has already done in producing the template.
You jumped the gun by sending the AoS too soon, but there is no harm done. Leaving it a few days would have given you extra time to produce a defence.
In future, follow the guidance on this forum precisely rather than rushing to do things. Conversely though you must make sure you do not miss any submission dates, but you are doing okay so far.

What is the address shown on your V5C? This will be proof that you live at the address where the car was parked.

You definitely need to get the neighbour's permission to park in writing. It needs to show the permission is retrospective, quoting the date when it came into operation.
You need to see and copy the neighbour's lease/AST to make sure the terms are the same as your parents. You also need to get a copy of the head lease (if their is one).

What happened when you complained to the landowner/MA? 

Was a ballot of tenants done in accordance with Section 37 of the Landlord and Tenant Act that allowed a change in the lease terms to be carried out?
If not, ask the MA when (not if) the ballot was carried out as it is a legal requirement.
Ask the MA for a copy of the parking contract, and instruct them to point out which part of it allows the scammers to scam residents.

Your (parents') lease will have primacy over anything an unregulated third party scammer has to say.

Cancel your appointment with the CAB. Whilst they are good at some things they have repeatedly proven themselves to be ignorant of private parking matters and often give out of date and sometimes dangerously incorrect advice.

Stick with this forum to get the best, free advice there is about this subject.

1505grandad

Who is the claimant?

KeithP

Fruitcake said:

You jumped the gun by sending the AoS too soon, but there is no harm done. Leaving it a few days would have given you extra time to produce a defence.

In fact @Fruitcake, in this case, because of the courts' Christmas closures, the early filing of the AoS made no difference to the Defence filing target date.

But that was more luck than judgement.  

Fruitcake

Thanks Keith. Your understanding of this subject is why you are such an asset and valued member of this forum.

Erfan1135

1505grandad said:

Who is the claimant?

Anchor Security Services Ltd, T/A care parking
Fruitcake said:

What is the address shown on your V5C? This will be proof that you live at the address where the car was parked.
You definitely need to get the neighbour's permission to park in writing. It needs to show the permission is retrospective, quoting the date when it came into operation.
....

Thank you for your reply,
I have a never attended the court before nor I have received such letters like these and once I have seen the claim form I have started panicking and done AOS early.
I have my V5C at the moment but might send it to DVLA as I have noticed one single word spelling mistake on my middle name. but my first and family name and the address is all correct and proves that I do live here. 
I will ask my neighbour to see his lease and copy his full lease agreement to ensure that I have that as evidence.

Fruitcake said:

What happened when you complained to the landowner/MA? 
Was a ballot of tenants done in accordance with Section 37 of the Landlord and Tenant Act that allowed a change in the lease terms to be carried out?
If not, ask the MA when (not if) the ballot was carried out as it is a legal requirement.
Ask the MA for a copy of the parking contract, and instruct them to point out which part of it allows the scammers to scam residents.

Spoke to Landlord's agency and tbh they did not have a clue about what to do and told me to go to citizen advice and defend the claim. I will go back to them tomorrow and ask them about this, meanwhile working on my defence.

Fruitcake

Have you established who employed the scammers? That is to whom you should be complaining, asking about the ballot in accordance with the Landlord and Tenants Act 1987 telling them to get the charge/court claim cancelled, and telling them if they don't you will require them to attend court as a witness to explain to the judge why they have changed your (parents') tenancy agreement and that of the neighbour without complying with the law.

The mistake on your V5C is not important as far as this case is concerned, but it does need correcting with the DVLA.

Print off the relevant Part IV, Section 37 of the L & T Act to show the MA.

Landlord and Tenant Act 1987 (legislation.gov.uk)

Coupon-mad

I have contacted citizen advice and have an appointment with them next week.

Cancel it immediately.  Not joking, the CAB do not have the foggiest clue about parking ticket scams and certainly not about the fact that most can be beaten, and how to do that. They will tell you that ''you entered into a contract due to the signs'' (well, in most cases, people had no idea) and will suggest that you agree to mediation and make an offer, NONE of which is in any way what to do!

Umkomaas

Coupon-mad said:

I have contacted citizen advice and have an appointment with them next week.

Cancel it immediately.  Not joking, the CAB do not have the foggiest clue about parking ticket scams and certainly not about the fact that most can be beaten, and how to do that. They will tell you that ''you entered into a contract due to the signs'' (well, in most cases, people had no idea) and will suggest that you agree to mediation and make an offer, NONE of which is in any way what to do!

If you're not going to cancel it - although I, like @Coupon-mad, recommend you do - spend the intervening time reading this forum and I will guarantee that you will see the major holes in the advice you will be given by the CAB adviser. 

Be aware that their script has been provided to them by the private parking companies' representative body - the British Parking Association (BPA).