Claim Form, 2 contract breaches, own parking space, no permit displayed, Link Parking

Elo88

Hi all,

First of all thanks to all you people running this forum, if I didn't find this I would not only have no clue what do do but also not realise how serious situation I ended up in.

To start with, I read through the threads in newbiews and know what needs to be done. I am however a bit lost as I am not native and some wording in i.e. defence draft is really hard for me to understand. Therefore before submitting my defence I though I'll create this separate post.

Background:

I am a leaseholder of a flat in block of flats, there is an underground parking in our building where there are spots assigned to each flat (no visitor parking), it is gated and managed by Link Parking. My lease allows me to park there, no mention of displaying a permit. There are very clear signs from the parking company displayed in the parking area telling me I must display a permit (will upload the photo in response to this post). The sign says they can fine me for each 24hr period of non displaying, what they did, in exactly 24 hr intervals (I never found the 2nd ticket, only know from the letters they were sending).

When I found the ticket at my windshield I used their (Link Parking) appeal form. It asked me for my address which I foolishly gave. I wrote the below:

Dear Sir or Madam,
I am writing in relation to the parking charge notice no. XXXXXXXX issued to me on 30 Sept 2020.
On the day my vehicle (silver Ford, XXXXXXX) was parked in the parking bay no. XXX in XXXXXXXXXXXXXX without clearly displayed permit.
The aforementioned bay belongs to the flat I own and I do have a valid permit to park there, which however was not clearly displayed on the day, 
as it slipped off the dashboard. Please find a photograph of my permit attached to this form.
I ask that you take these factors into account so as to reconsider the above mentioned parking charge notice.
Yours sincerely,

They just replied with regular response that I am in breach of cotract. I received a number of letters that I was ignoring for months, some of them I didn't even bother opening. Then the last one came in gray envelope (scary) - turned out to be a claim form - will be attached too.

Accordingly to directions from Newbies I filled the AOS online and started drafting my defense.

I got a bit lost because I am not sure if my defense is good for the wording on the PC signage and in Parcitulars of Claim.

I tried to tailor the resident draft from newbies to my circumstances. I would appreciate if you guys could have a look and tell me if it's any good.

Also, I am worried I may have made a mistake writing to them at the first place, as I admitted to non displaying my permit, thinking they have common sense (sorry, dealing with these !!!!!! for the first time).

Any advise (and criticism!) welcome!

Thanks,
Mat


A draft of my defence below:
(after point 7 it's no different than the residential defence from this forum, only fees tailored to my case)

------------------------------------------------------------------------------------------------------

IN THE COUNTY COURT

Claim No.: XXXXXXXXXX

Between

LINK PARKING LIMITED

(Claimant)

-and-

Mat

(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.

Background

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

3. It is admitted that between 29/09/2020 and 30/09/2020 the Defendant's vehicle was parked at ***my address here***, underground parking, space number 102.

4. The Particulars of Claim on the N1SDT Claim Form refer to '2 Parking Charge Notices' incurred between 29/09/2020 and 30/09/2020. 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. 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.

5. The Particulars refer to the Material Location as ‘private land operated and managed by the Claimant’, which is ***my address here***. The Defendant has, since 4.03.2020, held legal title under the terms of a lease, to ***my flat number here*** at that location. There is a private parking space number 102 allocated to the flat.  At some point, the managing agents contracted with the Claimant company to enforce parking conditions at the estate.

6. The underground car parking area contains allocated parking spaces demised to residents. Entry to the underground parking 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.

7. Under the terms of the Defendant's lease, a number of references are made to conditions of parking motor vehicles.

• DEFINITIONS, (...) “Allocated Parking Space” means the parking space marked with the same plot number as the Property and shown edged green on the Plan.

• THE TENANT'S COVENANTS, (v) Use: (...) 4. (...) The tenant must not park any caravan or boat on any private garden or any parking space or on any other part of the Premises or the Estate.

• RIGHTS AND EASEMENTS GRANTED, 2. The right: (...) 6. The right to use the Allocated Parking Space (if any) for the parking of a domestic motor vehicle only.

7.1. 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.

8. 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.

9. 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.

10. Further and in the alternative, the signs refer to ‘Vehicles displaying a valid parking permit and parked in the correct allocated bay’, and suggest that by parking without permission, motorists are contractually agreeing to a parking charge of £100. This is clearly nonsense, since if there is no permission, there is no offer, and therefore no contract.

10.1. 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 private nuisance to residents.

10.2. 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, and parking terms under a new and onerous 'permit' 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 property, or his/her use or enjoyment of that property.

11. 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.

12. The Claimant, or their legal representatives, has added an additional sum of £120 to the original £200 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 £200 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.

13. 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 £200 - already significantly inflated and mostly representing profit, as was found in Beavis - but the amount claimed on the claim form is inexplicably £329,50, the Defendant avers that this inflation of the considered amount is a gross abuse of process.

14. 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.

14.1. 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.

………………………………………………………. (Defendant)

……………………… (Date)

Elo88

Particulars of claim and signage below:

Jenni_D

There have been several residential cases here recently - might be worth finding them and having a read. Have you checked your lease to see what it says about parking and parking management? Does it state that you need to display a permit?

* What is the Issue Date on the claim form?
* Have you done the Acknowledgment of Service (AoS)? If yes, when?

Based on the above @KeithP will be able to confirm your deadlines for submission of AoS (if necessary) and defence. The court section of the NEWBIES thread also has a full guide to the court process so you can understand what happens next.

Elo88

Hi Jenni,

• Issue date on a claim form is 25 May,
  
• My AOS was submitted 1 Jun, Acknowledged 2 Jun (after 5 days as advised),
• No mention in my lease that I need to display a permit, but it allows me to park a 'domestic vehicle' in my allocated spot, my defense has the relevant quotes.

I've seen other cases, however wording on my sign slightly differs, no clue i.e. if I can call a 'no offer no contract' argument.

Thanks!
Mat

KeithP

Elo88 said:

• Issue date on a claim form is 25 May,
  
• My AOS was submitted 1 Jun, Acknowledged 2 Jun (after 5 days as advised),

With a Claim Issue Date of 25th May, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 28th June 2021 to file your Defence.

That's well over a week 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.

Elo88

Thank you, I have already drafted mine and it's in the original post. My concern is whether it is applicable considering the text on my sign? Also, is it fine as it is or I should use the standard template from newbies?

Coupon-mad

Why is a leaseholder in these circumstances displaying a permit at all? My goodness you need to read more residential defence threads, you have rights that override the signs!

Elo88

Hi Coupon-mad,
I am basing my defence on primacy of contract. Need to understand though if what I wrote is sufficient.
Thanks,
Mat

Elo88

After further reading I decided to change my line of defense and follow the one from the similar case by @eagle5 : https://forums.moneysavingexpert.com/discussion/6270306/link-parking-bw-legal-own-residential-parking-bay/p1
Will post my defence for review once complete.

Half_way

If you are a leaseholder and have a pre-existing right to  park /use that space then any signage erected by a third party is irrelevant.

This is known as derogation of grant, a third party ( ise parking company) can not remove something to which you have a pre-existing right to

One thing you should have done long ago is contact the management agency/company, and tell them that they must instruct their agents ( link parking) to stop the court case, pay your costs and stop issuing tickets on land they have no right to do so.

 

Its important to get the management company involved as you will need to show that you have taken reasonable steps to avoid this going to court - you should also be aware that the management company may try and feed you nonsense along the lines that once court proceedings have started they can not stop them, this is nonsense.

 If you want to hammer the management company you can also tell them you expect them to pay like for like costs to you for £100 a day from the moment you moved in up to the moment their agents stop patrolling the car park.

 

D_P_Dance

Have you read these?

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

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

https://www.consumeractiongroup.co.uk/topic/324523-ukpc-liable-for-trespass-success/

Have you complained to your MP?