My parking bay - County Court claim received!

D_P_Dance

I would delete the word "accidently".

Le_Kirk

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

Maybe better as above, plus add the bit posted by @1505grandad and remove the part indicated by @Coupon-mad and adjust your numbering later on if/when you add back the rest of the template as per the advice often posted by @1505grandad: -

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.

Fruitcake

Quitto said:

Please could you review my defence and make any suggestions? Thanks!


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

3. The Claimant states that the vehicle was parked in breach of the terms of parking stipulated on the signage at the material location referred as ‘xxxxxxx’. The Defendant has, since xx December 2013, held legal title under the terms of a lease, to xxxxxxx with an allocated parking space as indicated in the lease. At some point in 2018-2019 after signing the lease, the managing agents contracted with the Claimant company to enforce introduce parking conditions at the property, but not the defendant's demised space.

4. The Defendant had been issued with a valid parking permit in January 2019, but no variation to the defendant's existing property (insert relevant wording with regards to lease/ownership here) had been agreed by the landowner/leaseholder (delete as appropriate). At the time of receiving the Parking Charge Notice, the Defendant’s parking permit had been accidentally left in a glovebox compartment of the vehicle after a long trip.

5. As specified in Schedule 1 of the Defendant's lease “the Premises” demised to the Defendant by the Landlord consist of “xxxxxx on the xxxx floor of the building shown edged red on the attached plan and the parking space edge red on the attached parking space plan”.

6. The parking bays at the building contain numbered parking spaces, the legal titles to the majority are held by apartment leaseholders, with the remainder allocated for use by Blue Badge holders. The Defendant’s parking bay is number 4 as indicated on the parking allocation plan included within the lease.

7. Under the terms of the Defendant’s lease, there are no specific references made to the conditions for use of the demised parking spaces. 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. No written communications from the Landlord regarding any variations to the lease have been received by the Defendant which suggests that the only parking restrictions applicable to the Defendant are as written in the lease.

8. Clause 4.2 of the lease states that: “To comply with such reasonable regulations as the Landlord or the Superior Landlord may make from time to time relating to the orderly and proper use of the Common Parts and security of the Building and including (for the avoidance of doubt) regulations as to the manner of use of any car parking space or visitors car parking spaces and the nature of any vehicle which may be parked thereon.”. This Clause specifically excludes “the Premises” leased to the Defendant and, therefore, the definition of “parking space” is contradictory.

9. The contract for provision of services between the Claimant and the Landlord cannot be considered “reasonable regulations” under the above Clause 4.2 of the lease. The Defendant has not been a party to this agreement nor consulted during the Claimant’s appointment process. As such, the Claimant’s activities within the parking bay 4 at xxxxx are considered to be in breach of the Defendant’s exclusive rights of free use of “the Premises” leased to them for a period of 99 years.

10. The Defendant avers 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 4, without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle or the requirement to display a parking permit. The Defendant, 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 expressed, implied, or by conduct. A copy of the lease will be provided to the Court.

11. The Claimant, or Landlord, 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 Part IV, Section 37 of the Landlord & Tenant Act 1987, and the Defendant is unaware of any such vote having been passed by the residents. It should be noted that no such ballot of all landlords and tenants evert took place as required by the Act, therefore there can never have been a valid variation of the defendant's lease. The claimant is put to strict proof that the contrary is true.

12. Further and in the alternative, the signs refer to “No Unauthorised Parking”. The Defendant’s vehicle clearly was “authorised” as  the Defendant had been issued with a valid parking permit via post to the Defendant’s registered address at xxxxxxxxxx by the Claimant.
The subsequent Parking Charge Notice and any other correspondence issued by the Claimant and their representatives had been posted to the same address as stated on their lease, so the Claimant was clearly aware that the vehicle was “authorised” to park in the parking bay 4.

13. Further and in the alternative, the signs refer to 'No Unauthorised Parking”.
A reputable and diligent company would have checked the defendant's existing rights to park according to their lease before commencing operations at the property.
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 residents.

14. 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.

In the matter of costs, the Defendant seeks:

15. (a) standard witness costs for attendance at Court, pursuant to CPR 27.14, and

(b) that any hearing is not vacated but continues as a costs hearing, in the event of a late Notice of Discontinuance. The Defendant seeks a finding of unreasonable behaviour in the pre-and post-action phases by this Claimant, and will seek further costs pursuant to CPR 46.5.

16. The Defendant invites the court to find that this exaggerated claim is entirely without merit and to dismiss the claim.

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:

A few suggestions.

If your lease mentions anywhere a right to quiet enjoyment, you should include it in para 8 above.

Quitto

Thank you all for your very helpful and insightful inputs!

I will review and amend as suggested and post again.

Quitto

Please see my revised defence below.

Do I need to add anything in relation to the total amount claimed (£100  PCN + £70 "contractual costs" + interest)?

Do I need to make references to other cases?

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 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 and driver of the vehicle in question but liability is denied.

3.     The Claimant states that the vehicle was parked in breach of the terms of parking stipulated on the signage at the material location referred as ‘xxxxx’. The Defendant has, since xx December 2013, held legal title under the terms of a lease, to xxxxxxxx with an allocated parking space as indicated in the lease. At some point in 2018-2019 the Landlord contracted with the Claimant company to introduce parking conditions at the property, but not the Defendant’s demised space.

4.     The Defendant had been issued with a parking permit in January 2019, but no variation to the Defendant's existing property (referred to as “the Premises” and defined in Schedule 1 of the lease as “xxxxxxxx on the xxxx floor of the building shown edged red on the attached plan and the parking space edge red on the attached parking space plan”) had been agreed by the Landlord.

5.     At the time of receiving the Parking Charge Notice, the Defendant’s parking permit, which had, previously, only been displayed as a matter of courtesy, had been left in a glovebox compartment of the vehicle after a long trip.

6.     The parking bays at the building contain numbered parking spaces, the legal titles to the majority are held by apartment leaseholders, with the remainder allocated for use by Blue Badge holders. The Defendant’s parking bay is number xx as indicated on the parking allocation plan included within their lease.

7.     Under the terms of the Defendant’s lease, there are no specific references made to the conditions for use of the demised parking spaces. Paragraph 18(a) of Schedule 2 of the lease explicitly allows the Defendant to park a private car upon allocated parking space. 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. No written communications from the Landlord regarding any variations to the lease have been received by the Defendant which suggests that the only parking restrictions applicable to the Defendant are as written in the lease.

8.     Clause 4.2 of the lease states that: “To comply with such reasonable regulations as the Landlord or the Superior Landlord may make from time to time relating to the orderly and proper use of the Common Parts and security of the building and including (for the avoidance of doubt) regulations as to the manner of use of any car parking space or visitors car parking spaces and the nature of any vehicle which may be parked thereon.”. This Clause specifically excludes “the Premises” leased to the Defendant and, therefore, the definition of “parking space” is contradictory.

9.     The contract for provision of services between the Claimant and the Landlord cannot be considered “reasonable regulations” under the above Clause 4.2 of the lease. The Defendant has not been a party to this agreement nor consulted during the Claimant’s appointment process. As such, the Claimant’s activities within the parking bay xx at xxxxxxx are considered to be in breach of the Defendant’s exclusive rights of free use of “the Premises” leased to them for a period of 99 years.

10.  The Defendant avers 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 xx, without limitation as to the ownership of vehicle, the user of the vehicle or the requirement to display a parking permit.

11.  The Defendant, 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 expressed, implied, or by conduct. A copy of the lease will be provided to the Court.

12.  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 space, they believed that as it was their private property the vehicle was being parked on that the conditions on the signage would not apply.

13.  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 their use or enjoyment of that land/property.

14.  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.

15.  The Claimant, or Landlord, 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 Part IV, Section 37 of the Landlord & Tenant Act 1987. It should be noted that no such ballot of all landlords and tenants ever took place as required by the Act, therefore there can never have been a valid variation of the Defendant's lease. The Claimant is put to strict proof that the contrary is true.

16.  Further and in the alternative, the Defendant’s vehicle clearly was ‘authorised’ as the Defendant had been issued with a valid parking permit via post to the Defendant’s registered address at xxxxxxxx by the Claimant. The subsequent Parking Charge Notice and any other correspondence issued by the Claimant and their representatives had been posted to the same address as stated on their lease, so the Claimant was clearly aware that the vehicle was ‘authorised’ to park in the parking bay xx.

17.  Further and in the alternative, a reputable and diligent company would have checked the Defendant's existing rights to park according to their lease before commencing operations at the property. 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 residents.

In the matter of costs, the Defendant seeks:

18.  (a) standard witness costs for attendance at Court, pursuant to CPR 27.14, and

(b) that any hearing is not vacated but continues as a costs hearing, in the event of a late Notice of Discontinuance. The Defendant seeks a finding of unreasonable behaviour in the pre-and post-action phases by this Claimant, and will seek further costs pursuant to CPR 46.5.

19.  The Defendant invites the court to find that this exaggerated claim is entirely without merit and to dismiss the claim.

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.

Le_Kirk

Do I need to add anything in relation to the total amount claimed (£100  PCN + £70 "contractual costs" + interest)?

The standard defence template already contains words about the added spurious "debt management" costs.  Are you not using that defence as as template and adding in your own facts to it?

Quitto

Le_Kirk said:

Do I need to add anything in relation to the total amount claimed (£100  PCN + £70 "contractual costs" + interest)?

The standard defence template already contains words about the added spurious "debt management" costs.  Are you not using that defence as as template and adding in your own facts to it?

I wasn't sure if  it was relevant at first but understand it applies to my case too. I will add those paragraphs. How about the rest, does it look ok?

Le_Kirk

You've had it checked and edited by several regulars.

Coupon-mad

Looks fine if you add the paras from the template about the added costs and 'no landowner authority' if you are missing that at the moment.

Quitto

Would I really need to include paragraphs about added costs if I am arguing the penalty was unlawful to begin with?

Correct me if I'm wrong but it kind of contradicts what I laid out in my defence.