RESIDENTIAL PARKIN FINE - LEASE IN PARTNERS NAME

Brie

I'd be stating not thinking....as in "My wife was the driver of the vehicle and as leaseholder had the right to park in the space designated to her property"  or similar.  Nothing wishy washy about she might have been driving or we don't know.  State it as a fact.

D_P_Dance

I could not complain to the landowner as the parking ticket was from 5 years ago.

Of course you can complain.  

Fruitcake

D_P_Dance said:

I could not complain to the landowner as the parking ticket was from 5 years ago.

Of course you can complain.  

Agreed. Even if they are no longer the landowner, they were at the time of the alleged event and are responsible for the actions of the PPC.

jaykodi

Thank you all for the replies - I am most grateful.

I will put a defence together and post it here before emailing to the court.

Thanks 

MothballsWallet

@jaykodi Remember to use the template defence linked from the NEWBIES thread and only show us what you want to use for paragraphs 2 & 3 (which you have to write for your specific case).

And always use Claimant and Defendant type wording - the "I, me, we" type stuff is in your WS down the line.

jaykodi

Happy new year All
I am looking to file the defence below. I posted most of the paragraphs as I had to make reference to "the defendant's wife" and was wondering if this was the appropriate use.

Thank you


IN THE COUNTY COURT

Claim No.: XXXXXXXX

Between

[NAME OF PARKING COMPANY]

(Claimant)

-and-

[NAME OF DEFENDANT]

(Defendant)

DEFENCE

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The Particulars of Claim on the N1 Claim Form refer to 'Parking Charge(s)' incurred on xx/xx/xxx. 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. In addition, the particulars state 'The Defendant was driving the vehicle and/or is the keeper of the vehicle' which indicates that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. 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.

3. The Particulars refer to the material location as xxx. The Defendant’s wife was the driver of the vehicle and has, since 30th xxxxx  held legal title under the terms of a lease, to Flat No. xxx at that location.  At some point, the managing agents contracted with the Claimant company to enforce parking conditions at the estate.

4. The car parking area contains allocated parking spaces demised to some residents. Entry to the car parking area 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.

5. Under the terms of the Defendant's Wife lease, a  reference was made to conditions of parking a motor vehicle.

{ In Schedule 3, para.2, the lease states that the Lessee has the right to the exclusive use of the Car Parking Space for the purpose of parking one private motor vehicle not exceeding three tonnes gross laden weight}

5.1. 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.

6. The Defendant’s Wife, 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’s Wife 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.

7. 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’s Wife is unaware of any such vote having been passed by the residents.

8. Further and in the alternative, the signs refer to 'Authorised Vehicles Only/Terms of parking without permission', and suggest that by parking without permission, motorists are contractually agreeing to a parking charge of £100. This is clearly a nonsense, since if there is no permission, there is no offer, and therefore no contract.

8.1. The Defendant's vehicle clearly was 'authorised' as per the Defendant’s wife’s 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.

8.2. 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/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 wife’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.

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 £307.00, the Defendant avers that this inflation of the considered amount is a gross abuse of process.

Coupon-mad

That's not based on the template defence.  That's an old defence relying in one point only (dangerous).  We suggest people use the template defence then slot in some facts.

In your case, the fact the driver was not you and the stuff about the POFA and keeper liability that everyone uses in cases when they were not driving (but you've missed) plus the stuff about the lease.

The examples in the Newbies thread are there to help you see what to slot into the template defence, not to copy entirely, word for word, an old 'one trick pony' defence that covers nothing else.

It will mean adding maybe 5 or 6 paras to the template and renumbering it below.

jaykodi

Coupon-mad said:

That's not based on the template defence.  That's an old defence relying in one point only (dangerous).  We suggest people use the template defence then slot in some facts.

In your case, the fact the driver was not you and the stuff about the POFA and keeper liability that everyone uses in cases when they were not driving (but you've missed) plus the stuff about the lease.

The examples in the Newbies thread are there to help you see what to slot into the template defence, not to copy entirely, word for word, an old 'one trick pony' defence that covers nothing else.

It will mean adding maybe 5 or 6 paras to the template and renumbering it below.

Thank you for pointing me in the right direction - I think my nervousness took the better of me. 

I have now added 4 paragraphs to the defence template and renumbered the remaining.
please see below
NOTE - I have only  posted the first 6 paragraphs

IN THE COUNTY COURT

Claim No.: XXXXXXXX

Between

(full name of parking firm, not the solicitor!) 

(Claimant) 

- and -  

Defendant’s name from N1 claim (can’t be changed to someone else now)                        

 (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. 

The vehicle with registration mark xxx insured with xxx with 2 named drivers permitted to use it.

3. It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.

3.1. The Claimant has provided no evidence that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA")

3.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:

3.2.1. there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and

3.2.2. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.

It is not admitted that the Claimant has complied with the relevant statutory requirements.

 

4  It is admitted that the Defendant’s Wife was the driver. The Particulars refer to the material location as xxxxxxx. The Defendant’s wife has since xxxxxx  held legal title under the terms of a lease, to Flat No. xxx at that location.  At some point, the managing agents contracted with the Claimant company to enforce parking conditions at the estate. The car parking area contains allocated parking spaces demised to some residents. Entry to the car parking area 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.

5 Under the terms of the Defendant's Wife’s lease, a  reference was made to conditions of parking a motor vehicle.

{ In Schedule 3, para.2, the lease states that the Lessee has the right to the exclusive use of the Car Parking Space for the purpose of parking one private motor vehicle not exceeding three tonnes gross laden weight}. As such ,she was legally permitted to park in her allocated bay. 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 Particulars of Claim set out an incoherent statement of case and the quantum has been enhanced in excess of any sum hidden in small print on the signage that the Claimant may be relying upon.  Claiming ‘costs/damages’ on an indemnity basis is stated to be unfair in the Unfair Contract Terms Guidance, CMA37, para 5.14.3.  That is the official Government guidance on the Consumer Rights Act 2015 ('CRA 2015') legislation which must be considered, given the duty in s71.  The Defendant avers that the CRA 2015 has been breached due to unfair terms and/or unclear notices (signs), pursuant to s62 and with regard to the requirements for transparency and good faith, and paying regard to examples 6, 10, 14 and 18 in Sch2.  NB: this is different from the UTCCRs considered by the Supreme Court, in that there is now a requirement for contract terms and notices to be fair.

Coupon-mad

Looks fine to me.

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.