CASE WON Student Accommodation with free parking

Galloglass

What is your legitimate interest in the secondary obligation?

This is civil court - balance of probabilities. Best not to ask anything other than present the facts as you see them.

You actually don't want to give them a chance to add to their case even if you think it's nonsense.

You may be by the judge asked how many tickets were issued after a) the signs went up and b) the warden informed about the changes in parking management.

If b was before a, there may not have been a contract (no terms) but once the signs went up there may have been. But only a judge will decide.

Mouse007

Galloglass said:

This is civil court - balance of probabilities. Best not to ask anything other than present the facts as you see them.

You actually don't want to give them a chance to add to their case even if you think it's nonsense.

While it was posted as a mischievous question and might be slightly misplaced in this case

I don't understand the relevance of your "balance of probabilities" point to the possible answer. The sign (alleged contract) either had a secondary obligation or it did not. To the Claimant, "Where is that? point to it, read it out to me and then explain why you, the Claimant, have an interest in it". If it doesn't have a secondary obligation then what is the primary obligation? and what is being offered in return? and why do you, the Claimant, have an interest in that?

What I'm driving at is they have no contractual rights, there is no contract.

and for those of you going !!!!!!?

The primary obligation in Beavis was to leave within 2 hours

The secondary obligation was to pay £85 if you did not

The legitimate interest in this charge being the encouragment of parking turnover for the benefit of the retail outlets and

the £85 charge was reasonable to cover the cost of operating the scheme and return a profit.

7 Law Lords decided the penalty rule was in play but the £85 charge, in these circumstances (retail car park) was not a penalty when the Claimant had a reasonable legitimate interest in the secondary obligation.

My question is what legitimate interest does the claimant have in charging tenants who park in breach of their made up terms and conditions? What benefit flows to the landowner which justifies the Claimant doing so? Money flowing to the Claimant is not in itself a legitimate interest if that is the only benefit. The only party benefiting here is the rogure PPC.

Mouse007

Rats

The Court writes to inform you, that your hearing due to take place on Tuesday 24th January has been vacated due to Judge unavailability.

Mrs Mouse has volunteered to stand in for them

Galloglass

You've indicated in other threads that you have commercial experience so varying a contract should be something that is familiar. Contracts are nearly always varied in some shape or other. Rarely are they as fixed as you think they are.

So when does a variation of the contract (request to use a permit) become a breach of contract they are alleging? Usually when the signs go up. Or when there is a request from someone with the landowner's authority.

Was the request to use a permit "unreasonable" given there is a legitimate need to identify those with the benefit of free parking - the secondary obligation. In addition, has the variation to the contract (use of permit) been agreed and accepted as "reasonable" or is the driver refusing, quoting the AST, and collecting further one?

By all means press on with the idea that the AST is fixed in tablets of stone or alternatively see what they claim in their WS and see which of their claims might have some basis.

Mouse007

There was no clause in the AST which allowed for any variation. So in this case it is fixed unless agreed by both parties.

Meanwhile a third party (PPC) has no right whatsoever to tool up with a bunch of signs and start dishing out PCNs, especially so when they didn't even have the permission of the landowner.

Was there a legitimate need to identify those entitled to free parking? No, it was a simply case of a rogue PPC looking for an opportunity to scam unworldly students. There were no parking problems on the site which needed to be"managed" none at all. The only party benefiting from the scam was the PPC, there was nothing in it for the landlord or the tenants.

We did not object to registering the VRN on a whitelist, after all that's not exactly a big deal. What we do object to is being charged for not doing so when that requirement had not been communicated to us. That was the start of term trap set across the city to fleece hundreds of new and green students.

Galloglass

Meanwhile a third party (PPC) has no right whatsoever to tool up with a bunch of signs and start dishing out PCNs, especially so when they didn't even have the permission of the landowner.

If you are absolutely sure of this, then this is a breach of the relevant COP and should be communicated to the Trade Association and the DVLA. It's a major breach of the DVLA's terms.

Landowner permission is an absolute must so best to check before one is produced at the hearing. 

Coupon-mad

When your hearing gets rearranged, bear in mind that you CANNOT ask any questions of the legal rep.

They can cross examine you but because they are not a witness you cannot ask questions of them.

You address the Judge and only the Judge.  Unless the actual witness or employee of the PPC turn up.

Mouse007

Galloglass said:

Meanwhile a third party (PPC) has no right whatsoever to tool up with a bunch of signs and start dishing out PCNs, especially so when they didn't even have the permission of the landowner.

If you are absolutely sure of this, then this is a breach of the relevant COP and should be communicated to the Trade Association and the DVLA. It's a major breach of the DVLA's terms.

Landowner permission is an absolute must so best to check before one is produced at the hearing. 

The Claimant produced the agreement, Defence Witness Statement went

43.    The disclosed contract (Claimant’s paginated bundle ‘NA01' pages P1 to P4 inclusive) for the provision of car parking management services at 7 & 9 XX is between CSL and Premier Parking Solutions Limited (company number 06659134). The legal identity of CSL is not given but a limited liability company of the same name is registered at Companies House under company number 073XXXX.

46.    The Land Registry entry DNXXXX for 7 & 9 XX, Plymouth, PL4 XXX records the owner as Bxxxxx Limited (company number 058XXXX). (Exhibit 13)
    
47.    My AST identifies Bxxxxx Ltd as the landlord.  (Exhibit 2)
    
48.    The 31 August 2021 accounts filed at Companies House for Bxxxxx Limited (058XXXX) disclose investment properties held as assets. The 31 August 2021 accounts filed at Companies House for CSL (073XXXX) disclose that no freehold property is held by that company.

49.    CSL do not own this or any other property or car parks. No evidence is given that they have any authority from the landlord over the land. It follows that they have no standing to grant any rights to any other third parties over the land.

and in response to their WS

63.    I have identified the owner as Bxxxxx Limited at paragraph 46 above (Exhibit 13).

64.    CSL were not an occupier of any part of the residential property which was let to students only. Accordingly CSL, being neither the owner nor an occupier, could not give authority to regulate parking.

65.    As a tenant I was an occupier of the land and the Claimant did not have any authority from me to regulate parking.

66.    The Claimant has not provided a copy of any Land Owner Agreement (as Ordered by District Judge Moore on 11 August 2022) giving authority to regulate parking on the land in question.

67.    Neither have they provided any evidence that CSL is authorised by the Land Owner. Without this there is no link between PPS and the actual owner of the property with whom I had a contract.

Galloglass

I should have read your WS before now and have now done so. The sign appears clear and was there when your son first entered the area.

So if they can prove or convince the judge they have authority to be there (though para #99 of Beavis suggests that might not be necessary) what other defence is there?

Mouse007

Galloglass said:

The sign appears clear and was there when your son first entered the area.

Clear about what? and why would it matter if it was there when my son first entered the area? My son had signed his AST before that first visit, the signs were not applicable to him.

I don't think para 99 of Beavis will help them. It was acknowledged that Parking Eye had landowner permission because it was in the landowner's interest to manage parking. I note what Mr Butcher QC was angling for but would submit Parking Eye's other legitimate interest (not mentioned) would be the satisfactory performance of the contract to meet the BA Pension Fund's objective. Otherwise they would risk having their contract terminated. The Law Lords viewed it slightly differently and did not appear to make this link, preferring to say the legitimate interests of both the landlord and Parking Eye should be considered. No where does it suggest Parking Eye could operate without landowner authority.

As for other Defence, from the Witness Statement

The Claimant has no landowner authority and therefore has no right to bring these proceedings in their own name. If the Claimant did have authority they had no relevant interest in nor commercial justification for managing parking on the site. Either way the Claimant’s signs are forbidding and incapable of creating a contractual licence. Meanwhile the Defendant had the absolute right to park without conditions or obligations in accordance with his Assured Shorthold Tenancy (AST) agreement which in any event takes primacy of contract over anything the Claimant could have put on a sign.