*Updated* SUCCESS against BW Legal/UK Parking Patrol Office Ltd

Le_Kirk

That ^^^^ is useful stuff for your witness statement.  Keep the photos safe.

Rosa_Klebb

Okay so have acknowledged service.  Don't see any point delaying submitting my defense as I would rather get things moving.  Bring it on BW, I'm up for this fight.  Quite enjoying it too!  So what do we think about this for my defense?  Looking good to go?

The facts known to the defendant:

2. It is admitted that the Defendant was the registered keeper of vehicle XXX but was not the driver at the time.  Liability is denied.

3. The Defendant cannot be held liable as ‘Keeper’ due to the Claimant not complying with the ‘Keeper Liability’ requirements as set out in the Protection of Freedoms Act 2012, Schedule 4.

4. The Particulars of Claim on the N1 Claim Form refer to a 'Parking Charge' incurred on the XX/XX/20XX.  They also refer to a ‘Contractual Breach’ and a ‘Failure to comply with Terms and Conditions’.  However, they do not state the basis of any purported liability for these charges, in that they do not state what the terms and conditions of parking were, or in what way they are alleged to have been breached. 

5. As a leasehold owner at XXX, the Defendant’s residential Leasehold Contract states that the Leaseholder has the rights as follows: “The rights for the Lessee’s visitors to park one roadworthy private motor car on a Visitor’s Parking Space for short term parking on a first come first served temporary basis and subject to any regulations made by the Management Company”. 

5.1 There is no mention in the Leasehold Contract of any ‘24hr Parking Limit’ for Visitor parking.  There is also no mention of ‘Parking Charges’ or ‘Penalties’ payable to third parties such as the Claimant.  At some point, the Management Company contracted with the Claimant to enforce parking conditions at the estate.  The Defendant has never accepted, or had the opportunity to accept via the Management Company, any such contract with the Claimant.

5.2 The residential development / land is owned by XXX, who are the Freeholders of the car park in question.  I have not seen, or been provided by the Claimant, confirmation of authorisation from XXX, or any license agreement between XXX and the Claimant devolving authority or giving permission for the Claimant to operate on this site.  The Defendant suspects that no such permission exists.

6. The Claimant is a member of the International Parking Community (IPC) and is signed up to their Accredited Operator Scheme.  The Claimant is therefore duly required to adhere to the operational requirements as stipulated in the IPC’s Code of Practice. 

6.1 The Defendant can demonstrate that the signage in the car park, on which the Claimant relies, does not comply with the requirements stipulated in the IPC Code of Practice at the time their Parking Charge Notice was issued.  The car park signage is both inadequate and insufficient for any contract to have been formed or implied.  The Defendant has already highlighted this to the Claimant, with clear photographs that disprove the Claimants assertions.  The Claimants own photographs sent to the Defendant disprove the Claimants assertions.  The Defendant, is unsure therefore why the Claimant continues to pursue this Parking Charge Notice and therefore suspects that the Claimant is acting in a vexatious manner.

KeithP

Para 5 and 5.1 can be condensed into one...

5. As a leasehold owner at XXX, the Defendant’s residential Leasehold Contract makes no mention of any ‘24hr Parking Limit’ for Visitor parking.  There is also no mention of ‘Parking Charges’ or ‘Penalties’ payable to third parties such as the Claimant.  At some point, the Management Company contracted with the Claimant to enforce parking conditions at the estate.  The Defendant has never accepted, or had the opportunity to accept via the Management Company, any such contract with the Claimant.

You've slipped into the first person in para 5.2.

The detail in para 6.1 would be better placed in your Witness Statement.

D_P_Dance

This may be of interest,

https://forums.landlordzone.co.uk/forum/residential-letting-questions/1053920-private-parking-companies

Fruitcake

You say you do not see any point in delaying your defence, but I would disagree. There is still room for improvement, and time to do it.

I would replace the word "suspects" with "avers" in 5.2.

I think you should mention the expression, "primacy of contract" when referring to the lease, and that an unregulated parking company that was not a party to the lease cannot amend or take away your existing rights, including the right to allow a visitor to park for a short period in a visitor parking space.

I suggest you also look at the Landlord and Tenant Act 1987, Part IV Variation of Leases, and state that no ballot in accordance with the Act was carried out, therefore varying the lease was a breach of said Act.

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

You should also ask the MA/MC when (not if) the ballot was carried out, pointing out that not doing so is a breach of the Act and a breach of your rights.

Rosa_Klebb

Thank you Keith and please see amended below taking this into account.  Any better?

The facts known to the defendant:

2. It is admitted that the Defendant was the registered keeper of vehicle XXX but was not the driver at the time.  Liability is denied.

3. The Defendant cannot be held liable as ‘Keeper’ due to the Claimant not complying with the ‘Keeper Liability’ requirements as set out in the Protection of Freedoms Act 2012, Schedule 4.

4. The Particulars of Claim on the N1 Claim Form refer to a 'Parking Charge' incurred on the XX/XX/XXXX.  They also refer to a ‘Contractual Breach’ and a ‘Failure to comply with Terms and Conditions’.  However, they do not state the basis of any purported liability for these charges, in that they do not state what the terms and conditions of parking were, or in what way they are alleged to have been breached.

5. As a leasehold owner at XXX, the Defendant’s residential Leasehold Contract makes no mention of any ‘24hr Parking Limit’ for Visitor parking.  There is also no mention of ‘Parking Charges’ or ‘Penalties’ payable to third parties such as the Claimant.  At some point, the Management Company contracted with the Claimant to enforce parking conditions at the estate.  The Defendant has never accepted, or had the opportunity to accept via the Management Company, any such contract with the Claimant.  The Claimant has no authority to amend, remove, or add conditions to the Defendant's existing entitlements as outlined in the Defendants Leasehold Contract.  The Defendant believes that Primacy of Contract would apply in this instance.

6. The residential development / land is owned by XXX, who are the Freeholders of the car park in question.  The Defendant has not seen, or been provided by the Claimant, confirmation of authorisation from XXX, or any license agreement between XXX and the Claimant devolving authority or giving permission for the Claimant to operate on this site.  The Defendant avers that no such permission exists.

7. The Claimant is a member of the International Parking Community (IPC) and is signed up to their Accredited Operator Scheme.  The Claimant is therefore duly required to adhere to the operational requirements as stipulated by the IPC’s Code of Practice.  The Defendant can demonstrate that the signage in the car park, on which the Claimant relies, does not comply with the requirements stipulated by the IPC Code of Practice at the time that the Claimant’s Parking Charge Notice was issued.  The inadequate nature of the Claimant’s signage would make it unreasonable to assume that any contract could have been formed or implied.

Rosa_Klebb

Fruitcake said:

You say you do not see any point in delaying your defence, but I would disagree. There is still room for improvement, and time to do it.

I would replace the word "suspects" with "avers" in 5.2.

I think you should mention the expression, "primacy of contract" when referring to the lease, and that an unregulated parking company that was not a party to the lease cannot amend or take away your existing rights, including the right to allow a visitor to park for a short period in a visitor parking space.

I suggest you also look at the Landlord and Tenant Act 1987, Part IV Variation of Leases, and state that no ballot in accordance with the Act was carried out, therefore varying the lease was a breach of said Act.

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

You should also ask the MA/MC when (not if) the ballot was carried out, pointing out that not doing so is a breach of the Act and a breach of your rights.

Thanks Fruitcake, have added 'avers' and will look into the rest to see if I can get my head around it.  Managing Agent has changed since as the last ones were useless.  Sadly more chance of getting blood out of a stone I think since they weren't interested even when they were employed by the Management Company.  If my defense is sufficient without contact with them then it would make my life easier I think.  What do you think?

SayNoToPCN

Try. Then you can point out their unreasonable behaviour. Always better to have attempted contact. 

is 6 not partly covered later on in the defence? The template covers no contract

In 7 - ther D avers that the signage does not comply. 

Rosa_Klebb

SayNoToPCN said:

Try. Then you can point out their unreasonable behaviour. Always better to have attempted contact. 

is 6 not partly covered later on in the defence? The template covers no contract

In 7 - ther D avers that the signage does not comply. 

Thanks have sent them an email.

Yes No. 6 is covered by No. 16 in the template.  Should I remove my No. 6, just go with the template No. 16, or amalgamate both somehow?  

Have noticed also that my No. 4 is similar to No. 4 in the template and my No. 7 is similar to the template Nos. 13/14/15.  Does the same apply here?

Le_Kirk

You don't want to duplicate points, that doesn't lead to double emphasis just double confusion.  Keep your most important points towards the beginning of the defence.  If you have something more to add in your #7 and it strengthens and emphasises the points #13/14/15 then keep your #7 and remove duplication from the other paragraphs.