Napier Court Claim Form

agent17

Ok.... I read ricky_balboa thread, finally found witness statement, page 6 I think, read it all and the SWS but my brain is completely fried at this point.... lol

The crux of my case is that I leased two shops with one parking space allocated for each, directly behind my shops. Napier made a car park some three months after I moved in and issued permits. I never received any communication from landlord about this but the lease clearly states 'entitled to park'. I got 'caught' forgetting to put my permit in window, the most annoying thing being the wardens know who the shopkeepers are but they still trolled the back of the shops and slapped tickets on all of us at one time or another.

Anyway, my WS explains this and, hopefully, that's good enough for the judge. But whats this about £60 added on? I have read a few bits but, seriously, I don't have time (and my brain hurts) to read loads more posts, so can someone just please tell me if I am meant to mention it in witness statement because, if I understand correctly, they have added this £60 charge.

First letter from Napier
18th May 2021 - £100 or £60 if paid in 14 days

Subsequent letter from BWlegal September 2021 (one of many, I shredded the rest so not sure if figures changed over the last few months)
Principal Debt + Debt Recovery Costs £160
Estimated Interest £4.80
Estimated Court Costs £35
Estimated Solicitors Costs £50
Total £249.80

I assume that £160 is made up of the £100 (because I never paid in 14 days) + this contentious £60 add on. Agree? And do I put that in witness statement?

I have to submit the WS tomorrow, well before 4pm on 1st June, so if anyone has any last pointers to help, please do.

TIA 🙏🏻

Coupon-mad

Agree. The PCN is £100 and can't be £160.

You are meant to pretty much copy the second half (and some exhibits) of the WS seen by ricky and the slightly easier one by @wobs2k

This is easier than you think.

Tomorrow is 31st May.

agent17

Coupon-mad said:

Agree. The PCN is £100 and can't be £160.

You are meant to pretty much copy the second half (and some exhibits) of the WS seen by ricky and the slightly easier one by @wobs2k

This is easier than you think.

Tomorrow is 31st May.

Haha, yes I know today is 31st, I was just thinking I would make sure I got it done today rather than wait until 3.59pm tomorrow... 😀

When you say second half, do you mean copy/paste everything after Sequence of events?

Not sure if Signage or Beavis part it is relevant to me as I had a permit (undisplayed), although the SAR I received back has this info:

Contravention date 13.05.21 10.23am
Observed from 10:22:27 to 10:23:15
First photo 10:22:53
Last photo 10:28:16

Unless I missed something, that is a total of around 5 minutes, so maybe the 10 minute grace period mentioned in Beavis part is also a relevance here? I ask this because I have put in witness statement that the permits were kept in the front of the shop so we had to unlock building, go to front office, retrieve permit, and return to vehicle. So, maybe 5 minutes is unreasonable?

Btw, this is the sign in the car park. It mentions adding £60.

agent17

Coupon-mad said:

They did remove the shop numbers from my back wall which designated the parking spaces, maybe I can claim for that?

They did WHAT? That's your wall (you own it?) and they removed something from it?

yes, back in 2017

Coupon-mad

Wow that's a compelling evidence photograph!  Don't use that sign photo though...that doesn't help you.

When you say second half, do you mean copy/paste everything after Sequence of events?

Put your own sequence of events down, mentioning your own numbered photo and other evidence exhibits, then copy all the generic stuff that follows wobs2k's facts.  Show us what your draft then looks like!

Not sure if Signage or Beavis part it is relevant to me as I had a permit (undisplayed).

Yes it does, but let's see what the draft looks like and we can advise whether any bit needs tweaking.

There has to be a fair grace period to fetch a permit (if you *have* to display one) but equally it sounds like part of your argument is that there was no such relevant obligation or contract.

Sounds like you are saying, the shops were granted a right to use those bays before Napier rocked up and rode roughshod over that grant.  That's not lawful! 

See Sultana v Plustrade and Kettel v Bloomfold (Google those two authorities and find the actual court transcripts - Swarb is usually the best webpage to provide bailii transcripts - and use both as exhibits).

You should also use PACE v Lengyel and Jopson v Homeguard as exhibits, I think, based on what I can glean about your case.  Both are in the Parking Prankster's case law pages.  Add them too.

Search the forum for witness statements where people have already used all those cases in the recent past (last few years), because you can then copy their copy, so to speak, to explain the relevance of those authorities.

agent17

Coupon-mad said:

Wow that's a compelling evidence photograph!  Don't use that sign photo though...that doesn't help you.

When you say second half, do you mean copy/paste everything after Sequence of events?

Put your own sequence of events down, mentioning your own numbered photo and other evidence exhibits, then copy all the generic stuff that follows wobs2k's facts.  Show us what your draft then looks like!

Not sure if Signage or Beavis part it is relevant to me as I had a permit (undisplayed).

Yes it does, but let's see what the draft looks like and we can advise whether any bit needs tweaking.

There has to be a fair grace period to fetch a permit (if you *have* to display one) but equally it sounds like part of your argument is that there was no such relevant obligation or contract.

Sounds like you are saying, the shops were granted a right to use those bays before Napier rocked up and rode roughshod over that grant.  That's not lawful! 

See Sultana v Plustrade and Kettel v Bloomfold (Google those two authorities and find the actual court transcripts - Swarb is usually the best webpage to provide bailii transcripts - and use both as exhibits).

You should also use PACE v Lengyel and Jopson v Homeguard as exhibits, I think, based on what I can glean about your case.  Both are in the Parking Prankster's case law pages.  Add them too.

Search the forum for witness statements where people have already used all those cases in the recent past (last few years), because you can then copy their copy, so to speak, to explain the relevance of those authorities.

I thought the sign photo was good to use because it says they will add additional £60 which, if I understand all that I've read is not allowed?

I've been on this all day, probably wasted my time with loads of stuff I put in that I copy/pasted. I think I've kept relevant stuff but probably not useful legally lol. I got confused between three different witness statements i had downloaded so I really don't know where I am now and I don't think I can absorb any more witness statements... 😩

Should I post witness statement here? It's got all the case numbers and names etc.. I've got to submit it by 4pm tomorrow so I'm starting to panic. a bit to be fair. Also, on the doorstep today was BW legal stuff turn up. About an inch thick lol...

It had a quick read, it has an agreement between my landlord and Napier, signed but not witnessed, is that an important thing?

Coupon-mad

I thought the sign photo was good to use because it says they will add additional £60 which, if I understand all that I've read is not allowed?

No - eek - that is the polar opposite of what you want to show!

If they have prominently stated the £60 on the sign then that's the ONLY legal way they might get it.  Because they can say it was on the sign and therefore part of the agreed contract.

The Govt has banned fake costs but existing cases could scrape through where the sum was on the sign.  The Govt can't unpick or ban 'agreed contracts' from the past.

DO NOT SHOW THAT IMAGE NOR COMMENT ON IT BEING IN THE SIGN.

agent17

Coupon-mad said:

I thought the sign photo was good to use because it says they will add additional £60 which, if I understand all that I've read is not allowed?

No - eek - that is the polar opposite of what you want to show!

If they have prominently stated the £60 on the sign then that's the ONLY legal way they might get it.  Because they can say it was on the sign and therefore part of the agreed contract.

The Govt has banned fake costs but existing cases could scrape through where the sum was on the sign.  The Govt can't unpick or ban 'agreed contracts' from the past.

DO NOT SHOW THAT IMAGE NOR COMMENT ON IT BEING IN THE SIGN.

Lol, see! That's why I've been asking for help, stupid mistakes... 😂

agent17

Ok guys, I have until 4pm to submit my WS. Please feel free to have a read of the following, telling me how bad it is lol, or to add or remove stuff.

I'm really not sure if most of what i have read on this forum is relevant given I had a lease entitling me to park but I've stuck things in that I think may be ok to use. Possibly I only need to present a copy of lease but I believe there is a clause that may allow the landlord to do things. I'm not sure, but here's what I've put, go ahead and have a laugh... 😀

INDEX

Content Page Number

Witness Statement 2-3

EX-01 Lease Ancillary Rights 7

EX-02 Estate Agent - XXXXXXXXXXXXXXXXXXX 8

EX-03 Estate Agent - XXXXXXXXXXXXXXXXXXX 8

EX-04 Designated Parking Area For Shops XXXXXX 9

EX-05 Napier Removed My Signs 9

EX-06 Email To Napier Including Ancillary Rights To Park 10

EX-07 Excel v Wilkinson Case Transcript 11-19

EX-08 Defendants Schedule Of Costs 20

agent17

In the County Court at Portsmouth Claim Number: XXXXXXXX

XXXXX Parking Limited (Claimant)

V  

XXXXXXXXXXXX (Defendant)

____________________

Witness Statement Of Defendant

____________________

1) I am XXXXXXXX, and I am the defendant against whom this claim is made. The facts below are true to the best of my belief and my account has been prepared based upon my own knowledge.

2) In my statement I shall refer to the exhibits within the evidence supplied with this statement, referring to page and reference numbers where appropriate. My defence is repeated and I will say as follows:

Sequence Of Events

3) In February 2017 I signed a commercial lease for XXXXXXXXXXXXXXX. The Ancillary Rights (EX-01) within that lease allowed for the right to park as well as the right to load/unload. No time limit is placed on loading/unloading other than ‘without delay’ and ‘as soon as the task is complete’. Also, according to the estate agent's description, the shop unit benefitted from “one parking space available behind the property” (EX-02). I also took XXXXXXXX under the same terms (Ex-03) i.e. I was entitled to two parking spaces, one for each unit directly behind the properties (EX-04). So, it was reasonable to believe parking was included in all circumstances.

4) There was no managed/enforced car parking at all when the lease was signed, nor were there any form of parking restrictions in place, apart from a padlock to the entrance of the site, which I was given keys to as part of the parking rights for my shops. I  would not have taken these shops if it was known there would be issues with parking at a later date, but that is a moot point.

5) Around  April/May 2017, some 2-3 months after my lease started, the Claimant appeared and bulldozed the strip of land behind, and separate to, the shop/residents parking area, thereby creating a brand new car park in the area that was formally XXXXXXXX (EX-04). the Claimant then followed that by removing the allocated numbers fixed to the back of my two shops where my spaces were designated, without my consent (EX-05), along with other tenants signs, and marked out parking bays in those areas formally allocated for tenants under the terms of their leases. If memory serves correct, the Claimant then issued the first permits around June 2017.

6) With reference to the actual claim, the vehicle in question was used for shop business and may have been parked, or used for loading/unloading, by myself or a member of my staff, so it is not clear who the driver was at the time. Regardless, it should not matter given the right to park/load/unload

7) However, the permits were religiously displayed in any car that was parked in this area, simply to make for a peaceful life and avoid the uncomfortable predatory behaviour of the wardens who regularly moved along the cars parked by the tenants (or tenant agents) in their allocated spaces, peering through front and back windows, waiting to slap a ticket on anyone who forgot, or had not had time to fetch and display their permit. Delivery drivers were also hounded by this unscrupulous operator. It should be noted that the wardens were aware who the legitimate tenants were but were clearly instructed to issue tickets at every opportunity, a hassle tenants should not have had to deal with. It would have made for a friendlier relationship if the wardens would simply knock the door to check if the vehicle was, in fact, legally parked by the tenant under the terms of their lease. No money in that though…

8) That being said, because different vehicles were used at different times, the permits were kept in the front office so, after parking, whoever was driving would need to unlock the rear of the building, disable alarms, make their way to the front office and then return with the permit to place it on the windscreen. So, if a permit was not on display, it would likely be an issue that the driver was held up by a customer, or some other unavoidable issue in the shop and had not yet had time to return to the vehicle, or was in the process of loading and unloading, which would be done as quickly as reasonably possible. This may be irrelevant due to the legitimate right to park but it would still be a relevant factor under normal circumstances where there was no pre-existing right to park. It is considered that five minutes may not be a reasonable grace time to allow loading/unloading or permits to be retrieved and placed in vehicles.

9) An email was sent to the the Claimant on 30.12.21 informing them that the lease gives the leaseholder the right to park one car, attached to which was a copy of section 3.1 Ancillary Rights which states this fact, and advised the Claimant to desist from further action (EX-06). The Claimant did not respond.

10) At no point, either before or after the Claimant created the new car park and removed the signs that designated the tenants rightful parking space, did I receive any communication from the landlord or estate agent regarding this matter. It would appear that spaces in the existing tenant parking area were now available to be used by members of the public which, one would think, would harm the landlord/tenant relationship given the possibility that the tenants space behind their shop may be taken by a random member of the public, thereby preventing parking by the legitimate tenant who pays rent for such privilege.