CCJ after CN

Le_Kirk

Your set-aside was just setting aside the judgment, it did nothing for the underlying case.  Now is the time to defend that case.  The template defence should be fine providing you put your defence points in to paragraphs 2 & 3.  See the NEWBIE sticky or the defence template for instructions on how to send it but, of course, it will go to the court as indicated in your General Form of Judgment or Order rather than CCBC.
Fully pleased means exactly what it says on the tin, you put forward all your technical/legal arguments rather than just "it wasn't me Guv"!

Redx

You deal with your local court , as instructed , the CCBC system applies in new cases , not set aside

Your Defence by coupon mad plus maybe a WS plus Exhibits etc probably all go in one bundle ( email ) to the local court plus the claimants solicitor. You are now being fast tracked

The 30 days hold is for LBC stage in normal cases , so not in your case , The n180 doesn't apply either

A set aside case follows a different path to the Bargepole guidance for new claims

Stick to dealing with your defence of the POC you now have , adapt your defence accordingly , add a WS plus exhibits and comply with the order you have been given

MCOL is not dealing with it , it's a resurrection of the original claim

Coupon-mad

tommoCF said:

Le_Kirk said:

Because you have been dealing with a court and the judge ordered you to send a defence, the judge/court will deal with you from now on.  Once the court/judge has received your defence, I expect you will receive further instructions.

But my defence doesn't need to have a WS and the evidence I will rely on including at this stage? The format I send it in can just be as per the the template provided by @Coupon-mad with paragraphs 2 & 3 adapted? I wondered if there's any disitnction with the set-aside order requiring me to submit a 'fully pleaded defence', or whether that's just the standard phrasing?

Put a WS and evidence in anyway. 

As you say, and I agree, these cases are back to front and are unfair because the D never sees the claim and then they are told, after the CCJ is set aside, to just file and serve a defence but at no point are they given any chance (usually) to then file and serve a WS and evidence about the PCN itself.

Which you must.  So send a WS and evidence (see the example by @jrhys and adapt that) to the court and Claimant's solicitor WITH the defence, all together.

And please tell us you know about these other two threads (below) and have done both required urgent tasks?

I really hope you have done the Government Consultation and objected absolutely to ANY debt recovery fake 'costs' being added on top of a parking charge (of course) and told them what you think of them increasing charges to £130 instead of £100...which is already extortionate.

You have 5 days to do the consultation.  Please, please, do and do it by email so you attach evidence.  Spread the word, is closes within days, next week!

Also, I hope you've also registered for the Group Action, against the DVLA (open to anyone with a PCN since 2018?).  Gotta be in it to win it!  Nothing to lose, and it's genuine.

Read the threads about those important matters, they both need doing, right now, this week.

tommoCF

Coupon-mad said:

So send a WS and evidence (see the example by @jrhys and adapt that) to the court and Claimant's solicitor WITH the defence, all together.

Is the WS example by @jrhys you suggest to adapt this one?:
https://forums.moneysavingexpert.com/discussion/6218950/defence-countrywide-parking-management-bw-legal/p1

I'd been using the one by @Neil22 as a template since it seemed to match my own case more closely, mainly with the primacy of contract argument.. (https://forums.moneysavingexpert.com/discussion/5884618/own-apartment-parking-fine/p4).

Or is the @jrhys one better to adapt from? many thanks

Coupon-mad

Merge them to pick the best bits and add the Recorder Cohen case and wording as per the thread I started in May/June about it.

less than 4 days to do the Consultation!

tommoCF

I've started doing the consultation now (online).. didn't quite realised how long it was. 

tommoCF

Got a bit bogged down doing the MHCLG consultation as found it tricky adding free-text explanation to many of the sections, e.g whether and why x parking charge in a blue bay would be an effective or ineffective deterrent in/outside London..
Had plenty to say about the desperate need to end self-regulation of ppcs of course though. 

Am now a bit behind in formulating defence, WS + evidence that I need to send for my case in a few days' time..

Obviously mainly using the defence template provided by Coupon-mad since ppc added costs, amending the relevant wording to para 3.

For my (fast-tracked) case following ccj set-aside, is it right that I only append exhibit evidence to the WS and nothing to the defence despite all the refs to previous cases etc? Realise I need to ensure I'm fully au fait with all cases referred to.

Got a bit confused between WS and defence and what should go where.. further reading and usie of templates has helped thanks.

My WS is fairly long, since there are quite a few background elements to cover. Feels right putting together a comprehensive WS though, in order for it to all make sense in my own mind..

Is it ok to post my draft WS here for review?

Jenni_D

Of course it is - just make sure to redact any personal info.

Le_Kirk

Also, yes, evidence goes with witness statement.

tommoCF

Many thanks for enduring the reading of this.. and apologies for its length! As mentioned I felt I needed to cover things comprehensively so I was clear in my own mind of all the various stages..

Comments and suggested changes very gratefully received (hopefully not 'start again from scratch' as don't have too much time now!) 

Particulars of Claim - THE DRIVER OF THE VEHICLE WITH REGISTRATION x (THE 'VEHICLE') PARKED IN BREACH OF THE TERMS OF PARKING STIPULATED ON THE SIGNAGE (THE 'CONTRACT') AT x, ON x/2019 THUS INCURRING THE PARKING CHARGE(THE 'PCN'). THE PCN WAS NOT PAID WITHIN 28 DAYS OF ISSUE. THE CLAIMANT CLAIMS THE UNPAIDPCN FROM THE DEFENDANT AS THE DRIVER/KEEPER OF THE VEHICLE. DESPITE DEMANDS BEING MADE, THE DEFENDANT HAS FAILED TO SETTLE THEIR OUTSTANDING LIABILITY. THE CLAIMANT CLAIMS £100 FOR THE PCN, £60.00 CONTRACTUAL COSTS PURSUANT TO THE CONTRACT AND PCN TERMS AND CONDITIONS, TOGETHER WITH STATUTORY INTEREST OF £5.48 PURSUANT TO S69 OF THE COUNTY COURTSACT 1984 AT 8.00% PER ANNUM, CONTINUING AT £0.04 PER DAY.

WITNESS STATEMENT

1. I am x of xx and I am the Defendant against whom this claim is made. The facts are true to the best of my belief and my account has been prepared based upon my own knowledge. 

 2. In my statement I shall refer to exhibits within the evidence supplied with this statement, referring to page and reference numbers where appropriate. My defence is repeated and I will say as follows:

 3. The Particulars of the claim refer to an alleged parking charge at the material location of x. I have, since xx 2013 to the present date, held legal title under the terms of a lease, to Flat x at this location (Exhibit x: Land Registry, Official copy of register of title, B: Proprietorship register, title absolute). On the date in question, I was parked in a marked space close to my leasehold property.

 

Background

 4. The x Estate comprises nine blocks of flats totaling x households. The households are a mixture of leaseholders, council tenants and private tenants. Management of the estate is undertaken, on behalf of the Borough of x (who is the freehold owner of the estate), by x.

 5. The estate has several car parking areas close-by to each block of flats. My lease (which to the best of my knowledge is in common with other leases held by registered title-holders across the estate) makes one reference to car parking provision, within the fifth schedule ‘Rights and easements in favour of the Lessee (exhibit x: lease [Q - just that section or the whole lease?]:

“The right (in common with all other persons entitled to the like right) and subject to the availability of the services referred to:-

6.3 To park one private motor vehicle in the area (if any) set aside by the Lessor for parking purposes on the Estate PROVIDED ALWAYS that such motor car is taxed insured and in regular use AND that no maintenance or other work is carried out to or in the motor car whilst the same is parked on the Estate

SUBJECT to such reasonable regulations for the common enjoyment thereof as the Lessor may from time to time prescribe.”

 Later, the eighth schedule of the lease (‘Regulations and standards of conduct’) specifies the Lessor’s requirements for the variation of regulations, such as those referred to in 6.3 above:

“3. Variation

The Lessor may vary the Regulations by giving to the Lessee not less than 28 days notice in writing of such variation and the date the variation is to take effect (such date not to be less than 3 months from the date of services of the notice) PROVIDED THAT within the said period of 28 days the Lessee shall be entitled to comment upon the proposed variation whereupon the Lessor shall consider any comment made in conjunction with any comments made by any other secure tenants or occupier of a Flat/Maisonette in the Reserved Property and having regard to all the comments made the Lessor shall be entitled to confirm modify or withdraw this variation.”

 

Introduction of a controlled parking scheme

6. In a letter to all residents dated 30 January 2017, x stated that agreement had been reached with Ace Security Services to manage and control parking across the estate (Exhibit x: letter). This was the first communication to residents of x’s intention to introduce a controlled parking scheme. The letter stated that a start date for the scheme would be provided shortly. The letter also advised that further information and queries could be requested.  

7. The letter provided no date for the variation to take effect as required by the eighth schedule of the lease concerning regulations for its variation, nor was there provision for Lessees to exercise their entitlement to comment. There was no mechanism outlined within the letter to enable consultation on the variance of the terms of the lease. The variation was not proposed within this letter, rather it was stated and confirmed. 

8. A subsequent letter addressed to me from x, dated 15 May 2017 (exhibit x: letter) stated the commencement date for the parking enforcement scheme as 05 June 2017. This timescale did not provide the 28-day notice period to Lessees required by the eighth schedule of the lease. As before, Lessees were afforded no opportunity to comment. The introduction of a parking scheme was again stated and confirmed within this letter, not proposed.

9. Furthermore, the course of action taken by x to introduce a controlled parking scheme as outlined above, breached the 1987 Landlord Tenant Act s37 (‘Application by majority of parties for variation of leases’) (exhibit x: www.legislation.gov.uk/ukpga/1987/31/section/37), which states:

“(4) An application under this section in respect of any leases may be made by the landlord or any of the tenants under the leases.

(5 ) Any such application shall only be made if—

(a)in a case where the application is in respect of less than nine leases, all, or all but one, of the parties concerned consent to it; or

(b)in a case where the application is in respect of more than eight leases, it is not opposed for any reason by more than 10 per cent. of the total number of the parties concerned and at least 75 per cent. of that number consent to it.” 

10. In response to a Freedom-of-Information (FOI) request that I sent by email to x regarding the background to the introduction of a controlled parking scheme on the estate (exhibit x: FOI email), the Director of xx expressed belief that an on-line consultation had been conducted by the x Tenants and Residents Association, a voluntary organisation not formally recognised as a tenant’s association. In response to several follow-up emails, seeking clarification on a leaseholder vote regarding the parking scheme (to obtain the requisite 75 per cent consent for a variation of the lease), x finally confirmed to me that they hold no record of any vote ever having taken place (exhibit x: email from x).

11. Within the Minutes of a x Residents Association meeting held on 11 May 2017 (exhibit x: meeting minutes), the meeting agreed under agenda item 4, the inclusion of the following text within its constitution:

“’This TRA is not recognised for purposes of section 29 Landlord and Tenant Act 1985’. Recognised TRAs under S29 of the Act have rights to consultation on decisions that affect them. x [freeholder] does not recognise TRAs as legally recognised associations under S29 of the Landlord and Tenant Act 1985. x does consult with residents as a matter of course.”

 There is no evidence that the x Residents Association conducted a consultation regarding the introduction of a controlled parking scheme with leaseholders either in-person or ‘on-line via the website’ as claimed by x. Even if it had, the resident’s association itself confirms within its own constitution that x do not legally recognise TRAs under the Landlord and Tenant Act and as such the association has no right to consultation. 

12. Furthermore, the notion of an online consultation, such as x claims he believes took place, pre-supposes that all leaseholders are able to access a consultation in on-line format, and that it is reasonable for an electronic method of consultation alone to be used for such purpose. It should also be noted that the x Residents Association’s only formally recorded means of communication with leaseholders and tenants is via its in-person meetings. At the meeting held on 11 May 2017, ten residents were recorded present. The estate comprises over 300 households.

13. In conclusion there is no evidence that, with regard the introduction of a controlled parking scheme, x provided requisite notice of its intent, neither did it enable leaseholder comment for consideration, as required by the eighth schedule of the lease, either directly or via a third party. No vote on a variance to the lease took place as required by section 37 of the 1987 Landlord Tenant Act. The introduction of a controlled parking scheme was imposed on the estate rather than ever being proposed or considered, and no proper means of consultation with leaseholders was offered.

 Pace Recovery & Storage Limited/Ace Security Services

14. On the date in question my vehicle was parked in accordance with the terms of my lease, being taxed, insured and in regular use. There are no terms within the lease requiring me to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same. Therefore, my defence relies on Primacy of Contract. I refer to a previous case of Pace v Mr N [2016] C6GF14F0 [2016] (Exhibit x: http://nebula.wsimg.com/c269da31b314e7cc17e383a625b5ae23?AccessKeyId=4CB8F2392A09CF228A46&disposition=0&alloworigin=1), where it was found that the parking company could not override the tenant's right to park by requiring a permit to park. 

 Judgement was found against the Claimant’s company on 16 September 2016. With regard to the tenants right to park, District Judge Coonan ruled:

 “What Pace Recovery is seeking to do is, unilaterally outside the contract, restrict that right to only when a permit is displayed. Pace Recovery cannot do that. It has got to be the other contracting party, Affinity Sutton, which amends the terms of the tenancy agreement to restrict the right to park on a place in circumstances in which a permit is displayed but that is not in this tenancy agreement and you as a third party cannot unilaterally alter the terms of the tenancy agreement.”

15. A further case involving the same parties ruled against the Claimant again in Pace v Mr N [2016] C7GF51J1 (exhibit x: http://nebula.wsimg.com/e3364c37b8859abb00cc079334fc7a52?AccessKeyId=4CB8F2392A09CF228A46&disposition=0&alloworigin=1). The Claimant asserted that clause 6.3 of the tenancy agreement allowed the terms of the agreement to be varied. District Judge Coonan ruled that this clause required a month's notice to be given, and as this had not occurred, the point was moot:

“Having gone through the documentation upon which the claimant has relied to demonstrate that there was an effective variation which meant that Mr N had agreed to be subject to a permit system …, I have to be satisfied that the contract has been varied to include such a provision and I am not satisfied because I am not satisfied that clause 6(3) was complied with at any relevant stage. Therefore, the tenancy agreement at present takes precedence over the arrangement between Sutton and yourself, the claimant, Pace Recovery.”

16. Despite the clarification provided in these judgements (the latter having taken place on 24 November 2016), making apparent the requirement for the contracting party to properly amend the terms of pre-existing contracts before a third party can impose subsequent sanctions on relevant parties to such contracts, on 13 April 2017 the Claimant avers that they entered into agreement with the landowner of x estate (exhibit x – redacted copy of agreement x/Ace, no signatures or names visible [NB - this was submitted by C in their WS for CCJ set-aside, can I include it as evidence myself?]). 

17. The context for the alleged agreement between the Claimant and x appears similar to the cases ruled upon against the Claimant in September and November 2016. The Claimant is put to proof that they conducted due diligence before embarking on this agreement with the landowner, or that they made even the most basic of checks regarding pre-existing contracts such as tenancy agreements or leases, despite rulings from Judge Coonan just a few months earlier, making clear of the need for such checks to be carried out.

18. At the introdution of the controlled parking scheme, x issued parking permits to leaseholders free-of-charge and also made available visitor permits for a nominal fee, one of which I purchased. I was aware that since signage had been imposed across the estate in unison with the start date of the controlled parking scheme, and since no opt-out was offered, it became a matter of courtesy to display a permit, to show other leaseholders and tenants who was parked. This I did. 

19. In <date> I moved to my current permanent address. I remain a leaseholder and rent out the property on a short-term secured tenancy basis. During periods when the property is not rented out I return for a short period in order to maintain its condition, as required by covenants within my lease.  On these occasions I am usually temporarily resident for a few days. On the night in question I had been resident for a few days at the property. I assumed the controlled parking scheme was still in operation (albeit without validity), so I displayed the visitor’s permit (exhibit x: photo of visitor’s permit), as a courtesy to other leaseholders and tenants who may not be aware that the operation of parking controls on the estate lacks validity. 

20. Despite displaying the permit prominently, with the correct date and registration number entered, the Claimant affixed a charge notice to my vehicle. The operation of the parking scheme is ambiguous since the main permits contain an Ace Security Services logo of while visitor’s permits contain x’s logo. The text on the visitors permits is equally ambiguous since it refers at the top to ‘this permit’ (singular) despite then providing space to enter date and vehicle registration details into 12 separate permits. The terms ‘permit’ and ‘parking period’ are also used interchangeably without any clarity of what is being referred to.

21. With reference again to the fifth schedule of the lease (exhibit x), which states that the Lessee’s right to park one motor vehicle may be subject to such ‘reasonable regulations’ for the common enjoyment as the Lessor may from time to time prescribe, I contend that the introduction of a private parking company such as Ace Security Services, who run the estate parking areas as a private car park requiring permits, is in no way reasonable. Indeed, from conversations with other leaseholders on the estate who have also been targeted with charge notices despite displaying permits (when in fact none is required), the Claimant is causing abject misery to those who own cars and/or receive visitors.