Private parking ticket in my own space- tenant

Bertal8992

Hi everyone,

Firstly, thank you very much for all the information that is made available here.

I think I completed all Newbie duties, I read the Newbie page, used the template and other examples available and produced my draft defence which I will post below. I would be so grateful if you could help me and give me advice. They are claiming several hundred pounds.

Issue date: 23 nov 2020

AoS online: acknowledge 10/12/2020

 I summarised the specifics of my case below to give some background:

• Several PCNs from a private parking management company for parking in my own space in residential car park
• I was a tenant and there are no reference of the car park in the actual tenancy agreement
• The only ‘official’ document from the letting agency that states the parking is the inventory document. In this document, it says that a parking permit for the place No XX was provided as well as a key fob.
• The previous tenant was supposed to pass the permit to me, however he lost it before.
• I actively requested a new permit to the letting agency but they took over 3 months to give it to me. By that time I received several PCNs.
• I asked the letting agency to pay the PCNs for me and of course they refused and even advised me to forget about them.
• The access to the car park is by mean of a fob. Before the access gate there is a sign ‘Authorised vehicles and permit holder only”
• Inside the parking, there are plenty of signs and they are clear enough, so I will not use any examples where the signage was poor
• I contacted them early days, to dispute the first PCN but of course they rejected my explanations (that was before discovering this forum and understanding that my actions were useless)

 Considering the above, I was thinking of having three sections in my defence:

Part 1 – #1 to #10 - I was not contractually required to display a permit, and I uses examples given with primacy of contract, or with authorised vehicles, before inviting the court to dismiss the claim. If this does not work then,

Part 2 – #11 I actively requested the permit (I have written proofs), the letting agency is responsible. I gave a brief timeline stating the facts and ask again the court to dismiss the claim. Finally, if this does not work either,

Part 3 – #12 to #20 the contract is unfair and the sum claimed is extremely high. If the court does not dismiss the claims, it should at least decrease the value.

 

Please see below the whole text. To save you time, I have put in bold what is new or amended, the rest is copy/paste from the template.

What do you think?

 Thank you in advance for your time and efforts.

Bertal8992

IN THE COUNTY COURT

Claim No.: XXXXXX

Between

XXXX Parking

(Claimant) 

- and -  

XXXX XXXX

 (Defendant)

____________________

DEFENCE

____________________

 

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that a contract was entered into - by conduct or otherwise - whereby it was ‘agreed’ to pay a ‘parking charge’ and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue, nor to form contracts in their own name at the location.

2. It is denied that the Defendant has accepted to pay within 28 days but did not, as written by the Claimant in the Particulars of Claim.

3. The defendant denies having received a PCN on the XX/XX/20XX as written by the Claimant in the Particulars of Claim. The date is incorrect for PCN No. XXXXXX and it should be XX/XX/20XX.

4. It is admitted that the Defendant was the registered keeper and driver of the vehicle in question, but liability is denied. 

5. It is denied that the Defendant was in breach of any parking conditions in circumstances where an express permission to park had been granted to the Defendant permitting the mentioned vehicle to be parked by the current occupier of XXX, XXXX street, XXXXX, in the underground residential parking at the same address.

5.1. The defendant was resident and was paying for the free use of the parking at the address above.

5.2. No references were made about any parking conditions in the tenancy agreement, which is the only contract agreed and signed by the Defendant. No terms were agreed requiring the defendant to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same.

5.3 One reference is made of the parking in the inventory document, showing that the space no.XX is allocated to the Defendant.

6. The Defendant, at all material times, parked in accordance with the terms granted by the tenancy agreement. 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 tenancy agreement. Accordingly, the Defendant denies having breached any contractual terms whether express, implied, or by conduct.

7. the Defendant relies on primacy of contract and avers that the Claimant's conduct in aggressive ticketing (X, X and X of XXXXX XXXX) is in fact a matter of tortious interference, being a private nuisance to residents.

8. Further and in the alternative, the sign at the parking access gate refers to ‘Authorised Vehicles & Permit Holders Only', and suggest that both types of vehicles, authorised and permit holders, can use the car park.

8.1. The car parking area contains allocated parking spaces demised to residents. Entry to the parking is by means of a key fob. Any vehicles parked therein are, therefore, de facto authorised to be there.

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. For all or any of the reasons stated above, the Court is invited to dismiss the Claim in its entirety.

11. Further and in the alternative that the court does not agree with the above, and that it is now accepted that the Defendant should have displayed a parking permit, the Defendant could not have fulfilled this requirement because the letting agency failed to provide him with a permit in due course

11.1 The defendant moved in on the XX/XXXX

11.2 The defendant has not been provided with a permit (lost by previous tenant)

11.3 The defendant requested a new permit to the letting agency within a week after moving in.

11.4 The defendant requested several times the permit, either by phone, by email or directly at the letting agency office. Written proof will be made available to the court.

11.5 The permit was only provided to the Defendant at the end of XX, by when he had already received XX (several PCNs) in total. Please note that all PCNs were received before the parking permit was provided to the Defendant by the letting agency.

11.6 The Defendant requested and insisted by email for the letting agency to pay the PCNs. However, the letting agency refused and advised the Defendant not to pay, I quote “XXXXXXX’. No further responses were received from the letting agency.

 

The ParkingEye Ltd v Beavis [2015] UKSC 67 case is distinguished

12. Unlike in this case, ParkingEye demonstrated a commercial justification for their £85 private PCN, which included all operational costs, and they were able to overcome the real possibility of the charge being dismissed as punitive and unrecoverable.  However, their Lordships were very clear that ‘the penalty rule is plainly engaged’ in such cases.  

13. Their decision was specific to what was stated to be a unique set of facts: the legitimate interest/commercial justification, the car park location and prominent and clear signs with the parking charge itself in the largest/boldest text.  The unintended consequence is that, rather than persuade courts considering other cases that all parking charges are automatically justified, the Beavis case facts and pleadings (and in particular, the brief and very conspicuous yellow/black signs) set a high bar that this Claimant has failed to reach.

14.   Without the Beavis case to support the claim and no alternative calculation of loss/damage, this claim must fail.  Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of an overriding legitimate interest in performance extending beyond the prospect of compensation flowing directly from the alleged breach.  

15.   The Supreme Court held that the intention cannot be to punish a motorist - nor to present them with concealed pitfalls, traps, hidden terms or unfair/unexpected obligations - and nor can the operator claim an unconscionable sum. In the present case, the Claimant has fallen foul of the tests in Beavis.

16.   Fairness and clarity are paramount in the new statutory CoP being finalised by the MHCLG and this stance is supported by the BPA and IPC alike. In the November 2020 issue of Parking Review, solicitor Will Hurley, the Chief Executive of the IPC Trade Body, observed:  'Any regulation or instruction either has clarity or it doesn’t. If it’s clear to one person but not another, there is no clarity. The same is true for fairness. Something that is fair, by definition, has to be all-inclusive of all parties involved – it’s either fair or it isn’t. The introduction of a new ‘Code of Practice for Parking’ provides a wonderful opportunity to provide clarity and fairness for motorists and landowners alike."   

16.1 The Defendant's position is that the signs and terms the Claimant is relying upon were unfair and the Beavis case is fully distinguished.  

16.2 Residential parking companies are there to protect the residents from outside motorists, and not for them to fleece residents parking in their own spaces.

16.3 No distinction is made between unauthorised vehicle using the parking and authorised vehicle from residents that could not display their permit at a particular time, resulting in an excessive sum claimed of £XX per PCN that can be renewed every 24 hrs.

16.3 By trying to enrol automatically any person, including residents, who use the parking into the Claimant’s contract, and stipulating clauses that cannot always be met, such as displaying a permit at all time, the Claimant is creating his own occasions to justify the issue of PCNs and unfairly claim money.

16.4 The Defendant used the Independent Appeals Service and explained this difficult situation to the Claimant, which was rejected.   

16.5. 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.

17.  In the alternative, the Claimant is also put to strict proof, by means of contemporaneous and unredacted evidence, of a chain of authority flowing from the landholder of the relevant land to the Claimant.  It is not accepted that the Claimant has adhered to the landholder's definitions, exemptions, grace period, hours of operation, etc. and any instructions to cancel charges due to complaints.  There is no evidence that the freeholder authorises this Claimant to issue parking charges or what the land enforcement boundary and start/expiry dates are, nor whether this Claimant has standing to enforce such charges by means of civil litigation in their own name rather than a bare licence to act as an agent ‘on behalf of’ the landowner.

18.  Pursuant to Sch4 of the POFA at 4(5), the sum claimed exceeds the maximum potentially recoverable from a registered keeper, even in cases where a parking firm has complied with its other requirements. It is worth noting that even though the driver was known in Beavis, the Supreme Court considered the POFA, given that it was the only legislation specifically dealing with parking on private land. 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.

19. The defendant asks the court to consider that the Defendant was authorised to use the parking and that even the original overall sum claimed of £XXX for X PCNs is excessive considering the situation and is mostly profit.

20. It is admitted that interest may be applicable, subject to the discretion of the Court on any sum (if awarded), but it is denied that interest is applicable on the total sums claimed by the Claimant.

 

In the matter of costs, the Defendant seeks:

20.   (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.

21.   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

Bertal8992 said:

Issue date: 23 nov 2020

AoS online: acknowledge 10/12/2020

With a Claim Issue Date of 23rd November, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Tuesday 29th December 2020 to file your Defence.

That's nearly two 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.

Bertal8992

Hello,
Has anyone any advice regarding my draft defence? I am conscious of the bad timing in this end of year, but I must respond within the next few days so I would really appreciate if you could let me know your point of view.
Thank you very much.

Coupon-mad

Looks fine to me.  Very detailed.

D_P_Dance

Have you complained to your MP?  Have you read this?

http://parking-prankster.blogspot.com/2016/11/residential-parking.html

Bertal8992

Yes thank you I have read it. I have not complained to my MP, should I?

I struggle to find an answer to this querry, the MCOL webpage says 'The following claims have been made against you and you have chosen to respond to them online.', as I did the AoS online. Unfortunately it only accepts a defence of 122 lines so I will send it by email as advised, to the address ccbcaq@justice.gov.uk.  What should I do with the MCOL? Do I just leave the box blank? or should I respond that I sent it by email so at least my file is up to date?
Thank you

Coupon-mad

I am sure the NEWBIES thread and/or the template defence thread, make this crystal clear.

KeithP

Bertal8992 said:

Unfortunately it only accepts a defence of 122 lines so I will send it by email as advised, to the address ccbcaq@justice.gov.uk.

That's good. Exactly what you were guided towards doing.

Bertal8992 said:

What should I do with the MCOL? Do I just leave the box blank? or should I respond that I sent it by email so at least my file is up to date?

Does the guidance suggest you do that?

Or did you perhaps read "Do NOT put anything in the 'Defence and Counterclaim' text box, not even a full stop".
If you haven't yet read that, then you haven't yet read all the stuff linked from the second post of the NEWBIES thread.

Unfortunately all the volunteers here do not have the time, or inclination, to list all the things you don't need to do, but you will see comprehensive lists of all the things you do need to do.

Bertal8992

Hello everyone,

The big day is approaching for me as I have my hearing on Thursday. I think I did everything requested. I sent my defence and WS on time and I have just finished my crib following the example provided in this forum. Hopefully I am ready.

There is just one thing that I am not sure I understood properly and apologies in advance if it was explained somewhere.

I found the below text that confuses me:

' parties must assume that the Judge will not have access to the case file, and the parties must liaise to agree and email a bundle of all relevant documents'

The instructions given on the letter for the telephone hearing were very clear. They only asked me to send everything in one pdf to a specific email address. Nothing else. Could you just confirm to me please if I am suppose to do anything else at this stage?

Thank you very much.

Johnersh

Nope. You're ready. 

If you're working off separate pdf bundles, I hope youve seen the claimants?

And please, for the love of god, tell me you paginated your bundle? It's properly tricky to ensure the judge is on the  same page (literally) if you haven't.