County Court Claim for *unadvised* militant approach

Fruitcake

How do you know that a person or persons unknown didn't bounce up and down on the car to deliberately displace the permit? Who do you know that would benefit from such a jolly jape?

As above, is there a requirement in your lease specifically stating that you need to display a permit, or were you displaying one out of curtesy to prevent a parking operative from unnecessarily issuing a charge?

Is the permit visible in any of the PPC's images? If so, were they deliberately taken from obscure positions and angles to pretend the permit was not on display? Was any of the permit visible at all, and if so, was enough of it visible to determine that it was a valid permit?
Why weren't residents' and leaseholders' VRMs entered onto a white list of permitted vehicles to prevent the need for permits and reduce the chances of a genuine resident or leaseholder from getting a PCN?

CourDeLion

Thank you all so much for your feedback so far. I have pasted the beginning of the letter I've drafted, taking all of your advice so far on board in clause 2.

I have lifted clauses 3 and 4 from Johnersh's template here https://forums.moneysavingexpert.com/discussion/comment/72977032#Comment_72977032"The facts in this defence come from the Defendant's own knowledge and honest belief...")

DEFENCE

 

1.       The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all. It is denied that any conduct by the driver gave rise to a ‘parking charge’ and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue or 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.

2.1.    The Defendant is a leaseholder of a property at the premises with the right to peaceably hold and enjoy the premises and the rights granted without any lawful interruption from or by the Lessor or any person lawfully claiming under or in trust for it. The lease has primacy of contract and includes the right to use the allocated parking spaces, but does not stipulate the requirement to display a permit.

2.2.    On the date in question, the defendant had parked his vehicle in a visitors bay as he was visiting his family who live at the property. While the lease does not require the display of any permit to enjoy the parking facilities on the premises, the defendant had displayed the paper permit issued by the Claimant at the time as a courtesy to prevent a parking operative from unnecessarily issuing a charge. No means of securely affixing the paper permit to ensure visibility have been provided by the Claimant.

2.3.    The Defendant also feels that this is an entrapment scheme with inadequate signage and it is their belief that the signage was insufficient to draw the parking charge to the attention of drivers as the only clearly visible letters “NO UNATHORISED PARKING”, which do not apply to the Defendant as authorisation is granted to them in their lease. The Defendant challenges why residents' and leaseholders' VRMs were not entered onto a white list of permitted vehicles to prevent the need for permits and reduce the chances of a genuine resident or leaseholder from getting a PCN

 

Authority to Park and Primacy of Contract

3.       It is denied that the Defendant or lawful users of his/her vehicle were in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the Defendant permitting the above-mentioned vehicle to be parked by the current occupier and leaseholder, whose lease permits the parking of vehicle(s) on land. 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, without the requirement to display a parking permit. A copy of the lease will be provided to the Court.

4.       The Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial.

Accordingly it is denied that:

4.1.    there was any agreement as between the Defendant or driver of the vehicle and the Claimant

4.2.    there was any obligation (at all) to display a permit; and

4.3.    the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

Coupon-mad

That's very good indeed.  Using some of a residential defence written by Johnersh, a solicitor, then continuing with the template defence from this forum to cover everything else, makes for a very strong defence.

Le_Kirk

You cannot get a better mentor than @Johnersh, as he is a lawyerly type and an endorsement from @Coupon-mad is the cherry on the cake!

CourDeLion

Thank you guys. I wanted to add something in about the fact that the charge went up from £100 to £160 when the handed over to a debt collection firm. Isn't that no longer permitted?

Umkomaas

CourDeLion said:

Thank you guys. I wanted to add something in about the fact that the charge went up from £100 to £160 when the handed over to a debt collection firm. Isn't that no longer permitted?

It's already included in the template defence. 

CourDeLion

Wow, that's great. Do you think it's ready then? I'm going to keep reading through and catching any errors I may have made, but would you recommend sending it closer to the time? I still have about 4 weeks.

Le_Kirk

See my post here Today at 1:16PM <<<<LINK.  I would suggest that was telling you it was ready to go providing you add it to the rest of the template..

CourDeLion

Le_Kirk said:

See my post here Today at 1:16PM <<<<LINK.  I would suggest that was telling you it was ready to go providing you add it to the rest of the template..

Thank you @Le_Kirk. I was also asking if I should send it now (in the next couple of days once I've proof-read it) or closer to the deadline of 10 May that @KeithP mentioned here

Le_Kirk

Not sure there is anything to gain (or lose) if you are ready to send it.  Just make sure to e-mail it during working hours as we have recently had instances where the CCBC servers do not accept e-mails after 16.00 or before 09.00. Make sure you receive and auto acknowledgment.