BW Legal Claim / Parking in my space

Coupon-mad

This goes into your defence but AFTER the important point tgat I said needs to be at #3:  

I genuinely don't know who drove the car when it was parked up. It's my 2nd car, a convertible I make limited use of in the summer. It was moved to the space 6 months previously and wasn't moved again until after the tickets were issued, it would have been me or my brother that drove it there but I don't know which. 

Just change 'I' to 'the Defendant' and the above is a great point well made.

Would it be true to say it may have been parked before the Claimant's signs went up?  If so, no breach occurred.

jon_1827

Coupon-mad said:

Would it be true to say it may have been parked before the Claimant's signs went up?  If so, no breach occurred.

No, signs were up before the car was parked. But my reading of the signs is that the contract is formed when entering the car park and parking, so I'm going to make the point they need to base their case on the signs that were up when that happened - rather than the signs at the time the issued the tickets.

Coupon-mad

Quite right.

jon_1827

So I'll be using the template defence (from October 2020), replacing 2/3 with the following....

2. It is admitted that the Defendant was/is the registered keeper of the vehicle but liability is denied. The Defendant does not know who drove the vehicle when it was parked. The vehicle is the Defendants second vehicle, a convertible of which there is limited use generally only during the summer months. The vehicle was parked in the space six months prior to the Parking Charge Notices being issued and was not moved again until sometime after. The vehicle would have been parked by the Defendant or the Defendants brother, it is unknown as to which.

3. The Defendant has, since dd/mm/yyyy, held legal title under the terms of a lease, to apartment address, this lease includes the legal title to parking space “###” to which this claim refers.

4. The parking areas at the building contain numbered parking spaces, the legal title to the majority are held by apartment leaseholders, with the remainder allocated for use by an onsite gym. Entry to the parking areas is by means of a key fob or access code, which are only issued to authorised users of the parking spaces. Any vehicles parked therein are, therefore, de facto authorised to be there.

5. Under the terms of the Defendant’s lease, references are made to the conditions for use of the parking spaces. These conditions include; a weight limit on the vehicle, only to park where authorised by the lease (ie in parking space “###”), not to perform repairs on vehicles and to only park vehicles in a reasonable condition. 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. When purchasing the leasehold for the property in mmm yyyy, the Defendant was provided with a letter from the solicitors for the landlord stating that “We are not aware of any variations to the lease”. An email sent by the Managing Agents in mmm yyyy to the Defendant stated “The parking stipulations are clearly highlighted within the Lease”. No other written communications from the Managing Agent regarding parking restrictions has been received by the Defendant. This suggests that no variations have been made to the lease and that the only parking restrictions applicable to the Defendant are as written in the lease.

7. The vehicle was, 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.

8. The Claimant’s signage state in a prominent position and font that the car park is “Private Property”. As the Defendant holds legal title to the parking spaces, they believed that as it was their private property the vehicle was being parked on that the conditions on the signage would not apply.

9. 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 leaseholders.

10. 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 parking space leaseholders, as is on offer to the general public and trespassers. However, leaseholders 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 the lease, which this parking firm is not 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.

11. The lease states that the service charges paid by the Defendant cover the enforcement of the covenants listed in the lease. As use of the parking areas falls within these covenants it means the cost of managing the parking areas is covered by the service charge. With this claim the Claimant is charging for services already paid for by the Defendant as part of the service charge.

12. In the alternative, as the vehicle entered and was parked some six months prior to the Parking Charge Notices being issued, around mmm yyyy, the contractual terms in effect would have been those on the signage at that time as this is when the contract would have been formed. It is unclear what those conditions were at the time and the Claimant is put to strict proof of what they were.

13. In the alternative, a valid parking permit was on display within the vehicle, in accordance with the conditions on the signage. The permit was fully visible and located in the windscreen area, with the space number on the permit matching the space the vehicle was parked in. This is evidenced by the photos supplied by the Claimant with the original Parking Charge Notices. It is unclear as to the basis of the Claimant’s case and reasons for issuing these Parking Charge Notices.

14. In the alternative, the Claimants claim is for two separate Parking Charge Notices but under the conditions on the signage only a single breach would have occurred as the vehicle was not moved between the first and second Parking Charge Notices being issued. The Parking Charge Notices were both appealed at the time, but the Claimant failed to give due consideration to the appeal or provide an explanation as to why they rejected the appeals as required by the BPA Code of Practice. The Claimant also levied a surcharge at the time for credit/debit card payments which had been banned some months previously. The Defendant feels these actions render the Parking Charge Notices unenforceable or that the claim should be restricted to a single Parking Charge Notice.

Coupon-mad

Very good.  I think they will discontinue your case before a hearing.

1505grandad

A heads-up:-

Hopefully you have read and understood the Template Defence and therefore realise that the existing para 7  in the Template states -  "He was not taken by either party to Somerfield in point #5 above and in any event it is worth noting that the lead Southampton case of Britannia v Crosby was not appealed."

As you now have more than paras 2 and 3 - and therefore have to renumber the subsequent paras - you have altered the reference to point 5 accordingly.

jon_1827

1505grandad said:

As you now have more than paras 2 and 3 - and therefore have to renumber the subsequent paras - you have altered the reference to point 5 accordingly.

Thanks - I updated this prior to submitting the defence.

D_P_Dance

When you win in court consider asking for costs for unreasonable behavuour.  ubder CPR 27.14(2)(g)

jon_1827

My defence is showing as received on MCOL so all good, just waiting to see what happens next.

Looking ahead, I'm wondering if the document below could be used in anyway if it goes to court.

The red boxes is the name of the Managing Agent.
The blue box is the building address.
The gold box is the date the agreement between the Managing Agent and Premier Park started.

It was submitted by them as evidence to POPLA for a previous ticket issued in 2015 which they haven't pursued (despite winning with POPLA). It states the Managing Agent is the landowner and they're not (building is owned by a 3rd party) and the Managing Agent acts on behalf of the management company (another 3rd party) rather than the landowner.

Most interesting question is who Clive Stevens is. They do not work for the Managing Agent, I have an email from the Managing Agent stating this and also that they had not given authorisation for them to make this statement on their behalf. The assumption is they work for Premier Park. Even the Managing Agents thought it was one their employees at first.

Coupon-mad

I seem to recall that pepipoo forum exposed that 'Clive Stevens' was indeed a PP employee.

May have imagined this but I also think something in the new BPA CoP says that PPCs can't sign their own landowner authority ageememts.