Claim by Gladstone Solicitors - UK CPM - Defence written (advice appreciated)

Coupon-mad

Definitely suggest easement by prescription due to use by the adjacent street's shopkeepers for unfettered parking for over twenty years (remove 19, and the use you are relying upon can be historical convention - before you got the shop - and doesn't have to just by YOUR use).

As @Trainerman says, the servient land doesn't have to be right next to your shop.

mrsdriver1

@Trainerman I have read upon the easement of process and somewhat understood it. It actually applies for my case any possibilities you could show me some proof or real examples e.g. court cases or any other relevant scenarios. Would be highly appreciated! In addition to this, I have a dry cleaners next to me which is also a very good friend of mine. They have used this location to park for longer than I have surely I can use them as evidence too.

Coupon-mad

Yes you can.  There appears to be an easement by prescription. Your defence should state that and say the Defendant will provide at least one additional witness statement before hearing stage, confirming shopkeepers in the adjoining road have used the space(s) on the adjacent servient land for unfettered parking of vehicles for well over 20 years.

mrsdriver1

@Coupon-mad @KeithP

My final version of the Defence. I am happy with it would be great if you are able to check it out. Many thanks in helping and guiding me in this situation. I sincerely appreciate everyone on this website.

The facts as known to the Defendant:

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

3.    The address where the parking charge was given to the vehicle has been used by the Defendant for some 20 years’ of unfettered parking. The location itself is a residential place with a big car park and multiple two slot car bays inside and outside of the residential flats. Prior to UK CPM being introduced to the area as a car park enforcer the Defendant has had no issues using this location. In addition to this, no enforcement by tenants/leaseholders/landlords or other car park companies has been put in place prior to UK CPM.

3a.    Where the parking charge incident occurred a road leading to the residential area has two, two slot car bays at the entrance of the road where the Defendant uses for parking purposes. Only after receiving a parking charge was the Defendant able to notice a sign that vaguely states that there is a private parking enforcement in place for the residential area but there are no clear indications as to whether that sign enforces the bay where the Defendant’s vehicle was parked at the time or if it is a sign to notify road users that they are entering a private car park. Nor are there markings or signage on or within the bay indicating that the bay belongs to residential flats and is being enforced by UK CPM.

3b.    The Defendant also claims reasonable expectation of an easement by prescription, as a result of using this location for some 20 years’ for parking purposes as the Defendant has a business within point two miles walking distance. The Defendant may be able to produce a written statement from neighboring shopkeepers who also have used this location to park as well.

3c.    In the alternative, it should be noted that the Defendant's vehicle on that specific date was unable to move from the location as it was giving electrical faults on vehicle start up and required to be towed away. A claim against the parking charge was sent only to be rejected at the time with no valid explanation as to why the appeal was rejected.

Coupon-mad

You should say in #2 'and the driver',

Neighbouring is spelt wrong in your defence.

I say you should state clearly that you are a shopkeeper because otherwise you don't have possible rights and expectations over the servient land adjacent to the small street of shops.  Set the scene, briefly.  State where your shop is, just yards away...etc.

Also make it clear that other shopkeepers have enjoyed an easement by prescription for OVER 20 years (because it must have been used that way for over 20 years by someone for you to claim an easement).


I'm not legally trained but that's my take on it.

mrsdriver1

@Coupon-mad Thank you very much I have changed it around will proof read it a few times and prepare to send it off via email the next day. Appreciate all the efforts.

Le_Kirk

mrsdriver1 said:

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

3.    The address where the parking charge was given to the vehicle has been used by the Defendant for some over 20 years’ of unfettered parking. The location itself is a residential place with a big car park and multiple two slot car bays inside and outside of the residential flats. Prior to UK CPM being introduced to the area as a car park enforcer the Defendant has had no issues using this location. In addition to this, no enforcement by tenants/leaseholders/landlords or other car park companies has been put in place prior to UK CPM.

3a 4.    Where the parking charge incident occurred a road leading to the residential area has two, two slot car bays at the entrance of the road where the Defendant uses for parking purposes. Only after receiving a parking charge and having carried out careful scrutiny was the Defendant able to notice observe a sign that vaguely states that there is a private parking enforcement in place for the residential area but there are no clear indications as to whether that sign enforces the bay where the Defendant’s vehicle was parked at the time or if it is a sign to notify road users that they are entering a private car park. Nor are there any markings or signage on or within the bay indicating that the bay belongs to residential flats and is being enforced by UK CPM.

3b 5.    The Defendant also claims reasonable expectation of an easement by prescription, as a result of using this location for some 20 years’ for parking purposes as the Defendant has a business within point two miles walking distance. The Defendant [may] will be able to produce a written statement from neighboring neighbouring shopkeepers who also have used this location to park as well.

3c 6.    In the alternative, it should be noted that the Defendant's vehicle on that specific date was unable to move from the location as it was giving electrical faults on vehicle start up and required to be towed away. A claim against the parking charge was sent only to be rejected at the time with no valid explanation as to why the appeal was rejected.

Couple of suggestions for you.  Simple numbering is preferred but don't forget to adjust the numbering for the rest of the template.  Added a bit about how difficult it was to see signs.  You seem to have US spelling turned on!  You don't need "also" and "as well", they mean the same thing.

Trainerman

mrsdriver1 said:

@Trainerman I have read upon the easement of process and somewhat understood it. It actually applies for my case any possibilities you could show me some proof or real examples e.g. court cases or any other relevant scenarios. Would be highly appreciated! In addition to this, I have a dry cleaners next to me which is also a very good friend of mine. They have used this location to park for longer than I have surely I can use them as evidence too.

Very much so. The more evidence the better, although it has to be remembered that the dry cleaners gaining an easement does not automatically give you one. Now, I am not a legally trained person but have done a lot of research on this, and can certainly help with sources and so on.

I suggest you look at Hair v Gillman and Virdi v Chana (2008).  Both are easy to find on google and both go to the point of it being possible for parking to be an easement. There are also plenty of commentaries by various authorities, again easy to google. Finally, (for now) have a look at the Law Commission report on land and making it work 2011. Section 2.25 specifically deals with dominant land and burdened land not having to touch.

Let me know if I can help further.

Not_A_Hope

I found 'within point two miles walking distance' confusing. Might be better to say a short distance away or give a measurement in yards or metres.