DCB legal Autosec letter of claim

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They will probably trot out the recent HHJ Simpkiss case !! Reported by Bargepole , so just bear that in mind , Wilkinson case and Recorder Cohen judgment may hold sway , but only the new CoP next year will clarify matters , although it won't be retrospective

holderness

Latest update

We are at evidence stage and it is highly likely that this will go to court unless they come to their senses

I have in writing from the landowner’s agent that the claimant did not have a written contract at the time of the ticket and he certainly does not have one now as he has sold his business. A written contract was given at the end of 2020 in order that he could sell his business, which he did several weeks after obtaining it

I also have in writing that the landowner’s agent has been unable to contact him to ask him to cancel this ticket. The claimant is ignoring them

I have in writing from a director of the company that own the land that they do not give permission for this to proceed to court

He did have a verbal contract before that time with a representative of the landowner’s agent to erect signs and collect money for any infringements.

Because of this verbal contract, neither the claimant nor DCBL are fazed by any of the above with the claimant telling me that they will be relying on One Parking Solutions v Wilshaw and as the signage was erected with permission it therefore forms a binding contract, he stated that it is irrelevant what the landowner’s current wishes are

The fact the signage shows he was a member of the BPA and ignoring their rules on written contracts was also mentioned, they are not fazed by that either now that he is no longer a member

I don’t think they will get beyond that point in court, however...

They know I have a copy of the lease that expressly allows me passage across this land to service my apartment. There is no mention of a parking pass within this legal document (in fact it actually states that any person who is not a party to the lease ‘third party’ has any rights under the Contacts (Rights of Third Parties) Act 1999) My lease expressly allows me ‘to pass with or without vehicles laden or unladen over the common accessway’ His own evidence shows me standing next to my car which backs up the fact that I am unloading and have not just left the car unattended

They are not fazed by that, asserting that the metal signage overrides my lease. My assertion will be that my lease has primacy of contract over a third party agreement between third parties

The fact the signage states ‘authorised vehicles’ and clearly I was authorised under my lease and also by the fact that I used a transponder issued by the landowners agent to enter the locked gate which infers authorisation from them has also been ignored by the claimant

The ticket states that the offence is that I am blocking a fire exit. I pointed out in my defence that this is factually incorrect, this is not a fire exit and named the three fire exits from the building as defined by the Fire Safety Inspector, the door in question is a fire door and is marked as such, there are at least 50 of these leading on to internal public walkways, designed to prevent the spread of fire. I will have a map of the actual fire exits in my evidence, the alleged infringement therefore did not happen

They also have the £70 tagged onto the £100 PCN and I mentioned that in my defence 

I predicted they would turn this meritless case into a frivolous and vindictive charade and therefore got the reasons I believed this would happen into evidence. I believe he is peed off that I took his previous misdemeanours and criminal convictions to the managing agents and threatened that if he wasn’t immediately removed I would contact every owner and resident and tell them who was being allowed access to the common areas

I believe that DCBL will cover themselves by informing the client that this is a weak case with little chance of success but that they will continue at the claimants request. I will still be contacting the SRA for advice once this is all over because this feels like we are entering abuse of process territory

Coupon-mad

Because of this verbal contract, neither the claimant nor DCBL are fazed by any of the above with the claimant telling me that they will be relying on One Parking Solutions v Wilshaw and as the signage was erected with permission it therefore forms a binding contract, he stated that it is irrelevant what the landowner’s current wishes are.

One of the many, many problems with OPS v Wilshaw (a decision made by a Circuit Judge with criminal law experience, not a civil law background, as he said out loud in open court) is that IMHO, it's wrong on some specific issues.  Many District Judges hear parking cases every week.  Circuit Judges don't, and some appear to have only heard of ParkingEye v Beavis and can be led up blind alleys by persuasive barristers.

One issue with HHJ Simpkiss' judgment was - despite the evidence (which included the entire BPA CoP) and at least one skeleton argument telling him otherwise - the presumption that a parking operator doesn't need landowner authority. 

Sorry but they do, otherwise they could not have obtained the data from the DVLA (if they did, in your case).  OPS did obtain DVLA data in Wilshaw, but the Circuit Judge was convinced by almost everything the Claimant's barrister uttered and didn't for one minute realise there is a DVLA KADOE keeper data issue, let alone the added extra of a serious BPA CoP breach, if a PPC operates without the written permission of the landowner.

They know I have a copy of the lease that expressly allows me passage across this land to service my apartment. There is no mention of a parking pass within this legal document (in fact it actually states that any person who is not a party to the lease ‘third party’ has any rights under the Contacts (Rights of Third Parties) Act 1999) My lease expressly allows me ‘to pass with or without vehicles laden or unladen over the common accessway’ 

His own evidence shows me standing next to my car which backs up the fact that I am unloading and have not just left the car unattended

They are not fazed by that, asserting that the metal signage overrides my lease.

Has the property been standing and used for over 20 years by you and your predecessors in title (i.e. leaseholders going back over 20 years) and people living there have always reasonably used that place for brief and necessary loading/unloading?  

If so, unless signs expressly forbid loading/unloading there (or create a contract about loading/unloading that supports the Claimant's position) you can argue there is an easement by prescription.

Maybe do a skeleton argument about your implied right to unload (indeed express right, given you were handed a keyfob and given permission by the landowner/agent!) citing various legal authorities to make them give up.

There is Jopson v Homeguard that I am sure you already have.  

This article includes lots of information and cases to read if you fancy it:

https://gatehouselaw.co.uk/dont-lose-your-way-3-misunderstood-aspects-of-the-law-of-rights-of-way/

The Court of Appeal has heard cases like this and in 2009 Arden LJ (I can't find which case!) said that for the right to park to be implied by a right of vehicular access, the ability to park must be ‘reasonably necessary’ for the exercise or enjoyment of the land being accessed.

Your lease wording sounds very like these binding authorities (they trump the - IMHO very unpersuasive - OPS v Wilshaw!):

(a) Bulstrode v Lambert

https://swarb.co.uk/bulstrode-v-lambert-chd-1953/

Held: A grant "to pass" over and along a right of way may by necessary implication include a right to halt and load and unload vehicles. The words of the grant were plain and unambiguous, and they gave the plaintiff a right over the whole of the yard and not merely a right to enter through the gates as they were in 1944; in the particular case of an auction mart, this meant a right to bring goods, such as furniture and the like, for sale on the premises; vehicles were entitled to remain in the yard for such time as was necessary to enable the plaintiff to enjoy his easement of bringing vehicles into the yard, i.e., for such time as it took to load or unload the vehicles. 

and

(b) Moncrieff v Jamieson [2007] UKHL 42 (House of Lords, on appeal from Scotland) which included Lord Neuberger (he of Supreme Court Beavis case infamy):

https://swarb.co.uk/moncrieff-and-another-v-jamieson-and-others-hl-17-oct-2007/

https://www.bailii.org/uk/cases/UKHL/2007/42.html

"The parties disputed whether a right of way over a road included an implied right for the dominant owner to park on the servient tenement. The Sherriff heard the evidence and reached a conclusion that such an ancillary right arose. 

Lord Rodger said: ‘the express grant of a servitude of access in the pursuers’ title could carry with it an implied right to park on the servient land if this was essential to make the servitude of access effective or to carry out the purpose for which the servitude of access was granted or was a means of obtaining an effective right of access. "

holderness

Has the property been standing and used for over 20 years by you and your predecessors in title (i.e. leaseholders going back over 20 years) and people living there have always reasonably used that place for brief and necessary loading/unloading?  

If so, unless signs expressly forbid loading/unloading there (or create a contract about loading/unloading that supports the Claimant's position) you can argue there is an easement by prescription.

Maybe do a skeleton argument about your implied right to unload (indeed express right, given you were handed a keyfob and given permission by the landowner/agent!) citing various legal authorities to make them give up.

There is Jopson v Homeguard that I am sure you already have.  

No, the building hasnt been in residential use for that long, however in my defence I noted

6.         There are no signs on the walls or floor stating that there is no unloading in that area. In fact it is the area used by the caretaker to park and unload goods during his working hours, and can therefore be considered as a de-facto loading/unloading area unless and until signage or notices are introduced

Thanks for the very useful info, I will be using the Jopson case as well, as stated his own evidence undermines his assertion that I was parked as I am clearly visible in the photo he submitted and therefore it backs up my statement that I am unloading/loading

patient_dream

holderness said:

Latest update

I believe that DCBL will cover themselves by informing the client that this is a weak case with little chance of success but that they will continue at the claimants request. I will still be contacting the SRA for advice once this is all over because this feels like we are entering abuse of process territory

This is a game of poker and from what you say, DCBL will get another court spanking.

Even if Autosec pushed them to continue, DCBL have the final say .
If DCBL are foolish enough to proceed it will be egg on their faces in court which they can ill afford. You will have read the Bargepole case where DCBL were stupid regardinf a VCS case and it cost VCS £1000 ???

And YES, with fakery added on they will be entering a territory that judges do not like.
The simplest explanation is DOUBLE RECOVERY which of course is ABUSE OF PROCESS

The ball court is now in the hands of DCBL. Either they discontinue or get spanked in court ?

And look, whilst it appears that there could have been a verbal contract, the law to a degree allows this, the only proof will be from the person who gave that verbal and I doubt he wants to appear in court.

DCBL are heading for deep water 

YES, such a case is for the SRA to investigate

holderness

Coupon-mad said:

There is Jopson v Homeguard that I am sure you already have.  

Jopson v Homeguard is the killer although the OPS v Wilshaw case actually assists in both my case and other cases of residential parking or loading. The claimant by using OPS v Wilshaw as his catch all caselaw is conflating a carpark open to the general public with a private gated carpark open only to leaseholders. This is discussed in paragraph 53 to 58 of the OPS v Wilshaw appeal ruling in which Jopson v Homeguard is mentioned by HHJ Simpkiss. It discusses stopping v parking and the rights of leaseholders and why they were not applicable in this particular case. For these reasons I believe that OPS v Wilshaw should be disregarded in its entirety for any residential cases

Whilst the infamous OPS v Wilshaw case is heavily in favour of OPS it does state in one part ‘a possessory title is good enough against anyone without a better title’ – Like a lease or rental agreement against a verbal contract you mean? Obviously Norma Wilshaw had no title to the land or easements to use the land she parked on

Taken to the degree of stupidy that this case is – why didn’t Autosec ticket his own vehicle? He was blocking the car park exit with his Chelsea Tractor, not parked in a bay and with no permit showing. I believe I had more rights to be there than him in law

There is also the matter that Autosec had to adhere to the BPA code of practice in order to obtain keeper details in particular BPA AOS 7.1 to 7.4, I will be contacting the BPA and DVLA this week

From the DVLA...

"DVLA will not disclose data to parking or trespass companies who are not members of an ATA. We expect the ATAs to monitor adherence to the code of practice and investigate and address non-compliance when it arises."  

hullensien

Autosec obtain keeper details via TNC collections - or at least they did in mine!

Rodent3768

And we all know his vehicle isn't liveried and he doesn't wear a uniform that identifies him as a legitimate parking control employee. More breaches of CoP.

D_P_Dance

It sounds to me as though the PPC might be in for a bit of trouble, OP appears to know his/her onions.  

Castle

holderness said:

Coupon-mad said:

There is Jopson v Homeguard that I am sure you already have.  

Taken to the degree of stupidy that this case is – why didn’t Autosec ticket his own vehicle? He was blocking the car park exit with his Chelsea Tractor, not parked in a bay and with no permit showing. I believe I had more rights to be there than him in law

Indeed, a potential criminal offence under POFA-section 54(1)(b);-
https://www.legislation.gov.uk/ukpga/2012/9/section/54