CCBC Claim Form - Parking in visitor spot in gated area where I live

ssm90

Hi All,

I have finally received a CCBC Claim form. I have two queries - Probability of success and Lay Representative.
I have read all the threads and followed all the steps- I have requested a SAR and received all images. I have collated all documentation such as the property deeds showing what parts of the land I own.

Probability of Success
Summary below:
- Received a ticket for parking in an 'blank'/'unmarked' visitors spot in a barrier-car park for the flats where I reside. This was on 08/04/2021. The reason the car was parked in the visitors spot as opposed to the owned spot was because we were moving out of the flat that day (but we still own the flat and the parking spot to this day as it is being rented out).
- The CCBC was issued on the 18/11/21.
- The total claim value is c.£250 
- The reason for claim is not displaying a valid permit

The reason I am asking for probability of success here is because we have received tickets for parking in our OWN bay before (three times) which we have challenged previously. We did receive Letter Before Claim which we responded to with a SAR etc. but they stopped chasing on those and it fizzled out- I assume because they knew it was unlikely they would win a case for where we were parked in our own bay.

However, they have chosen to pursue this particular case as the car was parked in the visitors bay as opposed to our own and I imagine they think they have a more solid case. My entire defence that I had been working on was with regards to me OWNING my own bay but I am not so sure what my chances are for parking in a visitors bay without a permit as this was given to the new residents. Should I pursue the case with what I think is a potentially weaker defence or is the consensus that I ignore their right to give me a ticket at this point too?

Lay Representative
I own the flat and the car parking bay, however, it is my wifes car and she is the main driver and was driving at the time.
I have done all the leg work so far and would ideally prefer to do the talking in court too, however, I have come across the Mackenzie Friend/Lay Representative situation.
From reading multiple threads,  reading up on the .gov site and googling things, I seem to have come across conflicting information- some saying I can do all of the talking on the day while others say that I can be present and only be allowed to support the defendant and only speak when allowed to. I realise that my wife has to be present on the day in either case.

Can someone clarify this for me please? Especially if you have been in a situation where you have acted as the representative of someone else. I am not in the law/solicitor profession.

Thanks in advance.

Coupon-mad

I have two queries - Probability of success

99% win rate here for over five years.  Many discontinuances and plenty won at hearings. Very few lost and if they do, they pay less than the court claim, of course, because it is exaggerated.  Your case is the same as lots of others.

My entire defence that I had been working on was with regards to me OWNING my own bay but I am not so sure what my chances are for parking in a visitors bay without a permit as this was given to the new residents. Should I pursue the case with what I think is a potentially weaker defence or is the consensus that I ignore their right to give me a ticket at this point too?

What weaker defence?  You were loading and moving out!  Read JOPSON V HOME GUARD and find defences quoting that appeal case.  You will be using the forum template defence plus your own facts in paragraph 3 (maybe a few more paragraphs too) that's all.

and Lay Representative.

A lay rep can speak.  A McKenzie friend cannot.  No need for permission in advance for either of them, but the Defendant has to attend too, that's all.  No need to Google, just read stuff on this forum. Lay reps are commonplace and needs nothing to be done about that now.  We talk about them a fair bit.

we have received tickets for parking in our OWN bay before (three times) which we have challenged previously. We did receive Letter Before Claim which we responded to with a SAR etc. but they stopped chasing on those and it fizzled out- I assume because they knew it was unlikely they would win a case for where we were parked in our own bay.

Are you sure about that?  They don't fizzle out pre-court.  You moved house.  Did you give them your new address?  If not, that's how people get default CCJs literally every month on here, we help loads of people who thought a case had fizzled out but in fact they'd moved address and missed a claim form and got a CCJ by default, behind their back.  I hope that's not you.

Anyway, re this one, what's the issue date of the Claim?  On what date did your wife (not you, a third party) do her AOS online like the NEWBIES thread shows in pictures?

KeithP

ssm90 said:

- The CCBC was issued on the 18/11/21.

With a Claim Issue Date of 18th November, you have until Tuesday 7th December to file an Acknowledgment of Service but there is nothing to be gained by delaying it. 

To file an AoS, follow the guidance in the Dropbox file linked from the second post in the NEWBIES thread.

Having filed an AoS in a timely manner, you have until 4pm on Tuesday 21st December 2021 to file your Defence.

That's four weeks 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 again at the second post on the NEWBIES thread - immediately following where you found the Acknowledgment of Service instructions.

Don't miss the deadline for filing an Acknowledgment of Service, nor that for filing a Defence.

Do not try and file a Defence via the MoneyClaimOnline website. Once an Acknowledgment of Service has been filed, the MCOL website should be treated as 'read only'.

D_P_Dance

 The reason the car was parked in the visitors spot as opposed to the owned spot was because we were moving out of the flat that day (but we still own the flat and the parking spot to this day as it is being rented out).

Are you saying that you had a parking space but your rented it out?  Does your lease?AST allow this?  If so you may struggle in  court imo.

- The total claim value is c.£250 

They have added what appears to be an extra unlawful amount for debt collection. Judges have dismissed an entire claim because of this. Read this and complain to your MP.

Excel v Wilkinson

At the Bradford County Court, District Judge Claire Jackson (now HHJ Jackson, a Specialist Civil Circuit Judge) decided to hear a 'test case' a few months ago, where £60 had been added to a parking charge despite Judges up and down the country repeatedly disallowing that sum and warning parking firms not to waste court time with such spurious claims.   That case was Excel v Wilkinson: G4QZ465V, heard in July 2020 and leave to appeal was refused and that route was not pursued.  The Judge concluded that such claims are proceedings with 'an improper collateral purpose'.   This Judge - and others who have since copied her words and struck dozens of cases out in late 2020 and into 2021 - went into significant detail and concluded that parking operators (such as this Claimant) are seeking to circumvent CPR 27.14 as well as breaching the Consumer Rights Act 2015.   DJ Hickinbottom has recently struck more cases out in that court area, stating: ''I find that striking out this claim is the only appropriate manner in which the disapproval of the court can be shown''.

https://www.dropbox.com/s/16qovzulab1szem/G4QZ465V%20Excel%20v%20Wilkinson.pdf?dl=0

Also read this

https://forums.moneysavingexpert.com/discussion/6279348/witness-statements-2-transcripts-re-parking-firms-false-costs-recorder-cohen-qc-judgment-2021/p1

ssm90

Thank you all for your replies.

CCoupon-mad said:

Are you sure about that?  They don't fizzle out pre-court.  You moved house.  Did you give them your new address?  If not, that's how people get default CCJs literally every month on here, we help loads of people who thought a case had fizzled out but in fact they'd moved address and missed a claim form and got a CCJ by default, behind their back.  I hope that's not you.

Anyway, re this one, what's the issue date of the Claim?  On what date did your wife (not you, a third party) do her AOS online like the NEWBIES thread shows in pictures?

I believe so as this current Claim is for a ticket that was received a year after the others and I haven't heard on the others in a long time. I would have thought they would have claimed on the original tickets first.

I have family members living in the flat and I have had no further letters being posted to that address or my new address for the older tickets.

My wife did her AOS on the 28/11 (making sure it was at least 5 days after the issue of the claim).

KeithP said:

With a Claim Issue Date of 18th November, you have until Tuesday 7th December to file an Acknowledgment of Service but there is nothing to be gained by delaying it. 

To file an AoS, follow the guidance in the Dropbox file linked from the second post in the NEWBIES thread.

Having filed an AoS in a timely manner, you have until 4pm on Tuesday 21st December 2021 to file your Defence.

That's four weeks 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 again at the second post on the NEWBIES thread - immediately following where you found the Acknowledgment of Service instructions.

Don't miss the deadline for filing an Acknowledgment of Service, nor that for filing a Defence.

Do not try and file a Defence via the MoneyClaimOnline website. Once an Acknowledgment of Service has been filed, the MCOL website should be treated as 'read only'.

Thank you for your advice, as per the NEWBIES thread, my wife went through the MoneyClaim website and to file the AOS.

D_P_Dance said:

 The reason the car was parked in the visitors spot as opposed to the owned spot was because we were moving out of the flat that day (but we still own the flat and the parking spot to this day as it is being rented out).

Are you saying that you had a parking space but your rented it out?  Does your lease?AST allow this?  If so you may struggle in  court imo.

So the flat is still owned by me and whilst we have moved out, it is being used by family members so at no point was it rented out to a third party. It was only on the day of moving out where the family member had parked in my bay and my wife had parked in the visitors bay to load up the car.

Draft Defence

I have read through all the sources provided above and been through the forum to look at other similar defences. I have now put together a first draft of the defence and I would be grateful if you could read through it and let me know if there are any areas that I am missing or areas that I have repeated myself or just areas that are poorly worded. Some of the points I have used are copy pasted from other defences as they are applicable to me whilst I have modified other points to suit this situation.

IN THE COUNTY COURT

Claim No.: XXXXXXXX

Between

(LINK Parking Ltd) 

(Claimant) 

- and -  

                        XX XXXXXX XXXXXXX                       

 (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.

 

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. It is admitted that the Defendant was also the driver of the vehicle in question but liability is denied. 

 

3.       The car park is part of a residential set of flats and has a barrier entry as a form of control to prevent unauthorised use. The flat is owned by the Defendant’s husband, as the leasehold owner, along with owning a designated car park bay for each flat as supported by the HM Land Registry register which will be provided to the Court.

 

4.       It is noted that the Defendant was parked in the ‘unmarked’ visitors bay as opposed to the Defendant’s assigned bay on the day in question as the Defendant was moving out of the flat and was only briefly parked to load up the car. At no point was there any intent to stay parked in the spot for longer than needed. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011.

 

5.      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.

 

6.     The Defendant asserts that the operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Defendant's vehicle clearly was 'authorised' to park within the car park as per the lease and the Defendant relies on primacy of contract and asserts that the Claimant's conduct in aggressive ticketing is in fact a matter of tortious interference, being a private nuisance to residents.

 

7.      It is denied that the Defendant or lawful users of the vehicle were in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the Defendant permitting the vehicle to be parked by the current occupier and leaseholder of the property whose tenancy agreement permits the parking of vehicle(s) on land. The Defendant asserts that there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms. The lease terms provide the right to park a vehicle in the relevant allocated bay, without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle or the requirement to display a parking permit. A copy of the lease will be provided to the Court.

  

8.      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/rights of way and to peaceful enjoyment, and parking terms under a new and onerous 'permit/licence' 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 land/property, or his/her use or enjoyment of that land/property.

 

9.      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.

 

10.      The Claimant, or their legal representatives, has added an additional sum of £60 to the original £100 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 £100 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. The Defendant will rely upon the judgments on appeal of Excel v Wilkinson [2020].

 

11.       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 £100 - already significantly inflated and mostly representing profit, as was found in Beavis - but the amount claimed on the claim form is inexplicably £249.98, the Defendant asserts that this inflation of the considered amount is a gross abuse of process.

12.      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.

13       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.

 

14.      It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking parking management. The Claimant has provided no proof of any such entitlement.

15.      It is admitted that interest may be applicable, subject to the discretion of the Court on any sum (if awarded), but it is denied that interest is applicable on the total sums claimed by the Claimant.

 

Statement of Truth

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’s signature:

Date:

 

Coupon-mad

Looks fine as you have replaced the template defence lower part with a specific residential defence written by bargepole which covers the exact same matters.

In #2 why didn't you just write one sentence 'keeper and driver'?  No idea why people keep writing two sentences there, very common that we keep saying this.

The only other issue is remove any phrase about tenancy agreements. You are flat owners, not tenants:

whose tenancy agreement 

1505grandad

To clarify:-

Para 11  -  ".... but the amount claimed on the claim form is inexplicably £249.98, the Defendant asserts that this inflation of the considered amount is a gross abuse of process."

Does the amount include Court fees which presumably are not an abuse of process? Or is the amount before Court fees.

ssm90

Thank you all for your help so far. I have now received the attached from BW Legal stating that they intend to proceed. I have not yet received any communications from the court.

Can I just confirm that at this point I need to wait for the court to issue me with a date and that I do not need to do anything else for now? Apart from preparing for how to approach the actual hearing itself?

EDIT: Tried to rotate the image but I can't figure out how!

KeithP

That letter is nothing new. Everyone gets one. I won't even try standing on my head to read it.

You know exactly what happens next - and it is not to wait for a hearing date.
Refresh your memory by re-reading that list you were following when you filed your Defence.

Coupon-mad

The 12 point step by step list in post #1 of the Template Defence thread.

ssm90

KeithP said:

I won't even try standing on my head to read it.

That made me chuckle, thanks haha.

Thank you for confirming. I have now received the questionnaire and just wanted clarity one part of the questionnaire - the D3 - Witnesses part.

I have been through all information in the stickies as per https://forums.moneysavingexpert.com/discussion/6108153/suggested-template-defence-to-adapt-for-all-parking-charge-cases-where-they-add-false-admin-costs/p1 and https://forums.moneysavingexpert.com/discussion/comment/64350585#Comment_64350585 and https://forums.moneysavingexpert.com/discussion/comment/71763411#Comment_71763411 and https://forums.moneysavingexpert.com/discussion/5546325/court-claim-procedure-updated-october-2016/p1.

However, I can't find what I am looking for. I know the driver in question (my wife in this case) will be one of the witnesses and I imagine I will need to add myself as the second witness. But how do I go about making it clear that I will be representing her on the day, is there a way for me to communicate this in the questionnaire or do I need to let the court/judge know ahead of time in a particular manner so they know what to expect?

Thank you again.