PCN Defence Advice

TrodneyRotter22

Hi.

Thanks to everyone who has made contributions over the years to this forum, much appreciated,

I have written a defence for my Court Claim (or cobbled together from different sources that seem relevant) which I haven't submitted yet.

The Parking charge was issued at the front of my residential apartment in 2016

I'm not sure if it's too long or makes sense so any advice on how it reads would be welcome.

DEFENCE

I, Trodney Rotter, Defendant in this case, deny liability for the entirety of the claim.

1. This matter relates to a parking charge issued to my previously owned vehicle (registration: DHV 938D) on DATE/TIME. It is admitted that the Defendant was the registered keeper of the vehicle at the time the parking charge was issued.

2. I confirm that my vehicle was parked on the access road ADDRESS.

3. The Particulars of Claim on the N1 Claim Form refer to 'Parking Charge(s)' incurred on DATE. 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.

4. The Particulars refer to the material location as ADDRESS. The Defendant was a resident, between DATE and DATE, and held legal title under the terms of a tenancy agreement, to Flat No. X at that location. At some point, the managing agents contracted with the Claimant company to enforce parking conditions at the location.

a) 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 is unaware of any such vote having been passed by the residents.

b) Parking control was brought to deter vehicles from blocking the refuse lorry emptying the bins at the front of the block. A letter detailing that, for residents only, there is parking all week except on DAY/TIME and DAY/TIME to keep the area clear for refuse collection. Refuse collections at the block were made every Friday except after a public holiday when collections where moved back to a Saturday or to the following week. The Monday prior to DATE was Easter Monday, a public holiday.

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.

6. It is denied that the Defendant or lawful users of the vehicle above were in breach of any parking conditions or were not permitted to park in circumstances where permission to park had been granted to the Defendant as current occupier of ADDRESS. 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.

7. 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 express, implied, or by conduct. Plustrade Ltd [2001] EWCA Civ 2011.

8. 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 wrongful interference, being a private nuisance to residents.

9. Even if there was a breach to the terms, the Claimant is obliged by the compulsory Code of Practice of its own Accredited Trade Association (BPA) to apply separate grace periods of at least 10 minutes at the start and end of each period of parking. There is no explanation for why the Claimant has declined to apply any grace period at all, which is a clear breach of the CoP to which they have signed up to.

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 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.

11. 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.

12. 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.

Between the Notice to Keeper Final Reminder (DATE) and the First Notice of Debt Recovery letter (DATE) there was over X years and X months (X days) and there was no correspondence from the Claimant to pursue any claim. In that time the Defendant moved house and also changed car, the Defendants DVLA details were (and are) up to date. The claimant has included interest in the final amount for this time when it made no attempt to make contact regarding the Parking charge. Also the length of time means it is very difficult to remember all the facts. 

14. It is not accepted that the Claimant has adhered to the landholder's definitions, exemptions, grace period, hours of operation, etc. and any instructions to cancel charges due to complaints.

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

16. Given that it appears that this Claimant's conduct provides for no cause of action, and this is intentional and scornful, the Claimant's claim must fail and the court is invited to strike it out.

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.

D_P_Dance

If you feel that a solicitor has acted unprofessionally, complain here.

https://www.sra.org.uk/consumers/problems/report-solicitor/ 

Le_Kirk

You might like to read the standard defence template which is one of the five announcements on the first page of the parking forum, as it sets out a defence where you only have to adjust paragraphs 2 & 3 and you do not use "I" and "me" or "my" as it is all third person.

KeithP

What is the Issue Date on your County Court Claim Form?

Have you filed an Acknowledgment of Service?
If so, upon what date did you do so?
Your MCOL Claim History will have the definitive answer to that.

TrodneyRotter22

Issue Date is 11 Jan 2022, I filed AoS on 24 Jan 2022

KeithP

TrodneyRotter22 said:

Issue Date is 11 Jan 2022, I filed AoS on 24 Jan 2022

With a Claim Issue Date of 11th January, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 14th February 2022 to file your Defence.

That's just a week away. Plenty of time to produce a Defence and it is good to see that you are not leaving it to the last minute.

To create a Defence, and then file a Defence by email, look at the second post in the NEWBIES thread.

Don't miss the deadline 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'.

Of course everywhere I have written 'you' or 'your' I mean the named Defendant.

Coupon-mad

Since you aren't using the Template defence, your point 14 doesn't go quite far enough in saying 'no landowner authority' as the template does.

You have used a decent example though, just add in what you are missing.

That would include adding to point #8 that this contention is supported by the Government (then quote the part from yesterday's newly published statutory Code of Practice that talks about not interfering with residents' lease rights by trying to 'qualify' them with permit scheme obligations not in the lease).

You also need to observe, where you later talk about the false added 'debt recovery' sum (which the Template Defence deals with robustly) that the Government also announced they are banning debt recovery added money on top because the industry failed to evidence that any sum was necessary, or even incurred.

1505grandad

Who is the claimant?

Para 7  -  "Plustrade Ltd [2001] EWCA Civ 2011."  -  why is this stated?

Coupon-mad

TrodneyRotter22 said:

Issue Date is 11 Jan 2022, I filed AoS on 24 Jan 2022

Did you submit a fuller defence in time and got an acknowledgement email from the CCBC?  Is your case now showing as defended on MCOL?

TrodneyRotter22

Coupon-mad said:

TrodneyRotter22 said:

Issue Date is 11 Jan 2022, I filed AoS on 24 Jan 2022

Did you submit a fuller defence in time and got an acknowledgement email from the CCBC?  Is your case now showing as defended on MCOL?

Yes, I submitted my defence and got a letter through the post confirming it was received on 11th Feb. I received an email from the Claimant on 1st March saying they received my defence and they planned to proceed but they would give me 7 days to discuss settlement. I didn't reply and I've not heard anything further from the Court.

TrodneyRotter22

An update on this case:

I was given a date in November for a court hearing.

7 days ago I received a reduced offer (about half of the "outstanding balance") with a 7 day deadline.

Today I received a Notice of Discontinuance.

What a waste of time.