One Parking Solution + DCB legal - Residential Parking Defence

Parking_Nightmare835

I received a claim form with an issue date of 21 April, I filed my AOR, so I should have until 24h May to file my defence.

The spaces are shared residential spaces at the flats where I am a resident, before OPS came on the scene there were just signs saying 'Residents parking only' and I had parked there for a couple of years previously with no issues. During lockdown, I went out to my car one day to discover signs had been put up and a ticket was on my car, this was the first I had heard of any changes to the parking spaces. There was only one ticket on the car, although they have sent me 2 claims for 2 tickets and I have letters referring to 2 tickets.

I'm a tenant, there is no mention of the parking in my tenancy, it's a very generic agreement. 

I've contacted the landlady to ask if there was a ballot of leaseholders, I haven't heard anything yet, will chase again soon.

I need to contact the management agency to check exactly what date the signs were put up. I also need to file a SAR request with OPS.

After researching on this forum I have drafted a defence (I'll use your template), I plan to submit the same one for both claims, as the circumstances are the same for both (they were issued close together, just outside of a 24hr period), what do you guys think of the draft?

2. It is admitted that the Defendant was the registered keeper of the vehicle in question but liability is denied. It is the Defendant’s position that no contract was entered into with the Claimant, whether express, implied, or by conduct. Therefore, as a matter of contract as well as consumer law, the Defendant cannot be held liable to the Claimant for any charge or damages arising from any alleged breach of the purported terms. Whilst there is a lack of evidence from the Claimant, the Defendant sets out this defence as clearly as possible in the circumstances, insofar as the facts below are known.

3. It is admitted that on [date] the Defendant's vehicle was parked at [location] in the shared residential parking spaces.

3.1. It is denied that there were any signs visible at the time the driver parked the vehicle.

3.1.1. Accordingly it is denied that:

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

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

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

3.2. The Defendant avers that the residential site that is the subject of these proceedings is not a site where there is a commercial value to be protected. The Claimant has not suffered loss or pecuniary disadvantage. The penalty charge is, accordingly, unconscionable in this context, with ParkingEye distinguished.

Mouse007

Have another look at your tenancy agreement, is there any reference to use of common areas? If so that would cover the residential parking spaces.

You might find my defence helpful here https://forums.moneysavingexpert.com/discussion/6357887/student-accommodation-with-free-parking-now-have-4-pcns-and-a-cc-claim/p1, scroll down for the updated version which mentions cases from here http://parking-prankster.blogspot.com/2016/11/residential-parking.html.

Also consider complaining to landlord about derogation from grant

Fruitcake

Also see if there is any reference to your right to quiet enjoyment in your tenancy agreement.

D_P_Dance

Read these, read the newbies and similar threads, google "primacy of contract", and complain to your  MP.

http://parking-prankster.blogspot.com/2016/11/residential-parking.html

https://forums.landlordzone.co.uk/forum/residential-letting-questions/1053920-private-parking-companies

 .  

KeithP

Parking_Nightmare835 said:

I received a claim form with an issue date of 21 April, I filed my AOR, so I should have until 24h May to file my defence.

Upon what date did you file an Acknowledgment of Service?
Your MCOL Claim History will have the definitive answer to that.
I'll assume that you filed an Acknowledgment of Service after 25th April and before Wednesday 11th May, in which case you are right with your Defence filing target date. Please confirm.

With a Claim Issue Date of 21st April, and having filed an Acknowledgment of Service in a timely manner, you do indeed have until 4pm on Wednesday 24th May 2022 to file your Defence.

That's under 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'.

Parking_Nightmare835 said:

There was only one ticket on the car, although they have sent me 2 claims for 2 tickets and I have letters referring to 2 tickets.

After researching on this forum I have drafted a defence (I'll use your template), I plan to submit the same one for both claims, as the circumstances are the same for both (they were issued close together, just outside of a 24hr period)...

This is a bit concerning.
It is wrong for you have two County Court Claims about essentially the same parking events - just the dates being different.
I'll leave it for others to comment on how best to deal with this.

Coupon-mad

Search the forum for Henderson cause of action estoppel and add the necessary words about two 'duplicate facts' claims at the start of your defence AND in the body if every single email you send at every stage, until a Judge takes a look, picks up what you are saying and consolidates the claims so there's only one hearing.

Parking_Nightmare835

Thanks for your comments everyone.

I've checked on MCOL I posted my AOR lateish on 29th April, and it was received on 3rd May.

I'll see what I can find in the tenancy agreement and if that works for a primacy of contract defence. I'll add that in about the double claims too. I'll post my revised defence when I've drafted it.

KeithP

Parking_Nightmare835 said:

I've checked on MCOL I posted my AOR lateish on 29th April, and it was received on 3rd May.

Then the date in my earlier post - and the Defence filing target date you were already working to - is good.

Parking_Nightmare835

I've updated my defence with the additional points on primacy of contract (there was a mention of right to quiet enjoyment in my tenancy agreement) and cause of action estoppel (I'll be sure to include this in the body of my email too).

Thanks again for your helpful advice, do you think it's ready to go now?

2.1. It is admitted that the Defendant was the registered keeper of the vehicle in question but liability is denied. It is the Defendant’s position that no contract was entered into with the Claimant, whether express, implied, or by conduct. Therefore, as a matter of contract as well as consumer law, the Defendant cannot be held liable to the Claimant for any charge or damages arising from any alleged breach of the purported terms. Whilst there is a lack of evidence from the Claimant, the Defendant sets out this defence as clearly as possible in the circumstances, insofar as the facts below are known.

2.2. Cause of Action estoppel

2.2.1. Being legally represented, the Claimant knows, or should know, that by detaching or allowing to remain detached, elements of alleged debts and issuing separate claims, each which rely upon essentially duplicate particulars and facts, is an abuse of the civil litigation process. 

2.2.2. This Claimant has issued two claims relating to parking charges:

2.2.3. Claim number [claim number] - relates to a PCN issued on [date];

2.2.4. Claim number [claim number] - relates to a PCN issued on [date], relying on the same facts.

2.2.5. In Arnold v National Westminster Bank plc [1991] 3 All ER 41 the court noted that cause of action estoppel “…applies where a cause of action in a second action is identical to a cause of action in the first, the latter having been between the same parties or their privies and having involved the same subject matter.”

2.2.6. In Henderson -v- Henderson [1843] 67 ER 313 the court noted the following:

2.2.7. when a matter becomes subject to litigation, the parties are required to advance their whole case;

2.2.8. the Court will not permit the same parties to re-open the same subject of litigation regarding matters which should have been advanced in the earlier litigation, but were not owing to negligence, inadvertence, or error;

2.2.9. this bar applies to all matters, both those on which the Court determined in the original litigation and those which would have been advanced if the party in question had exercised ''reasonable diligence''.

2.2.10. The Claimant filing the first claim and failing to advance their whole case, any cause of action was immediately extinguished for any other similar fact parking charges against myself as Defendant.   The courts may estop a second claim where the cause of action is substantially the same.  I invite the court to dismiss the second claim under the grounds of cause of action estoppel.  In the alternative, the Court is invited to consolidate the claims to be determined together, and to apply appropriate sanctions against the Claimant.

3. It is admitted that on [date] the Defendant's vehicle was parked at [location] in the shared residential parking spaces.

3.1. It is denied that there were any signs visible at the time the driver parked the vehicle.

3.1.1. Accordingly it is denied that:

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

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

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

3.2. The Defendant avers that the residential site that is the subject of these proceedings is not a site where there is a commercial value to be protected. The Claimant has not suffered loss or pecuniary disadvantage. The penalty charge is, accordingly, unconscionable in this context, with ParkingEye distinguished.

3.3.1. 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.

3.3.2. 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 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.

Still no response for the landlord on the ballot, I still need to send my SAR and contact the management agency.

Umkomaas

Ditch the complicated para numbering, stick to standard 1, 2, 3, 4 ..... 

I'm not sure whether you've read the thread by @zimbo_ouen, whose case is a little further ahead than yours, but there's some good points in it, especially the Witness Statements by him and his girlfriend that may be helpful to you in due course. It's a different PPC, but the points they cover are not PPC-specific. 

I'd bookmark it for easier future access. 

Parking_Nightmare835

I've now got a court date at Brighton on 2nd November and the deadline for my WS has come round quite quickly (I have had a lot going on this month)! Here's a draft based on the one mentioned in the comment above. In the appendix I will include my tenancy agreement, photos of the signs from a driver's POV, the IPC Code of Practice and the relevant judgements.

Am I on the right lines here?

NB: pasting this into the comments had made the numbering go wrong, in my document they are continuous though the whole document.

1. I am XXXX XXXX of XXXX, 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 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:
   
   

Background:

1. I have been a resident at XXXX since November 2018, as a private tenant.
   
   

2. There are parking spaces near the flats that are for residents, they are not allocated to specific residents. There were no permits required and I had no issues parking there for over 2 years, from November 2018, until I found PCN OPS560830 on my car.
   
   

3. My tenancy agreement states that I have the right to quiet enjoyment of the property and makes no mention of parking permits for residents. The Claimant’s letters containing references to bailiffs and county court judgements have caused me a great deal of stress, impacting my enjoyment of the property.
   
   

4. I did not receive any notification of the changes to the parking situation, or any change to my tenancy agreement.
   
   

5. On 07/02/2021 I parked my car in one of the spaces as usual, there were no signs present mentioning OneParking Solution or permits. As there were no signs there to see when I parked my car there, I did not form a contract with OneParking Solution, or agree to pay them anything.
   
   

6. As we were in a national lockdown period I did not return to my car until 14/02/2021. On 14/02/2021 I went out to my car in the afternoon and found PCN OPS560830 on my car and an additional sign nearby.
   
   

7. PCN OPS562538 had been issued on the previous day, but had been removed from my car. As the letters I received were the same template, I thought there had been an error in the Claimaint’s systems and did not realise there were 2 PCNs. Therefore I only appealed PCN OPS560830.
   
   

8. After my initial appeal was turned down I did some research online and learned that the private parking company appeals processes are generally a waste of time and therefore did not pursue them further.

Abuse of process - the quantum

1. The quantum and interest has also been enhanced. It is denied that the sum sought is recoverable and a significant chunk of this claim represents a penalty, per the authority from two well-known ParkingEye cases. Attention is drawn to paras 98, 193, 198 of ParkingEye Ltd v Beavis [2015] UKSC 67 - Exhibit XX-12 . Also ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the same modern penalty law rationale was applied, yet here, the learned Judge also considered added 'costs'. The parking charge was set at £75 (discounted to £37.50 for prompt payment) then 'admin costs' inflated it to £135. At paras 419-428, HHJ Hegarty sitting at the High Court (decision ratified by the CoA) found that adding £60 to enhance the sum sought to £135 'would appear to be penal', i.e. unrecoverable
   
   

2. In addition to this, the ‘additional charge’ constitutes a double recovery and the court is invited to find the quantum claimed is false and an abuse of process as found by HHJ Jackson in Excel v Wilkinson in which £60 had been added to a parking charge - Exhibit XX-13
   
   

3. The Defendant's stance regarding this punitive add-on is now underpinned by Government intervention and regulation. The Department for Levelling Up, Housing and Communities ('DLUHC') published on 7 February 2022, a statutory Code of Practice which all private parking operators must comply with, found here: [link goes here]
   
   

4. Adding 'debt recovery' costs, damages or fees (however described) on top of a parking charge is banned. In a very short section called 'Escalation of costs' the new statutory Code of Practice now being implemented says: "The parking operator must not levy additional costs over and above the level of a parking charge or parking tariff as originally issued."
   
   

5. This particular Claimant's legal team pursues a sum on top of the PCN, despite indisputably knowing that these are banned costs. The claim is exaggerated by inclusion of a false, wholly disproportionate and unincurred 'administration' enhancement of £70 upon which the Claimant seems to have also added interest at 8% calculated from the date of parking. Clearly an abuse of the court process.
   
   

6. The DLUHC considered evidence and took over two years to consult a wide mix of stakeholders before deciding this contentious issue. According to the DLUHC, almost a fifth of all respondents in 2021 'called for the proposal to be scrapped and debt collection to be banned altogether'. This is despite the parking industry flooding both public consultations, some even masquerading as consumers. The DLUHC saw through this and exposed as fact, in its published Response to the Technical Consultation (also on 7/2/22) that some respondents were 'parking firms posing as motorists'. Genuine consumer replies pointed out that successful debt recovery does not trigger court proceedings and the debt recovery/robo-claim law firms operate on a 'no win, no fee' basis and are effectively Trade Body Board member colleagues passing motorists' data around electronically and inflating parking charges. This Claimant has not incurred any additional costs.
   
   

7. The Ministerial Foreword to the new Code is unequivocal about abusive existing cases such as the present claim: "Private firms issue roughly 22,000 parking tickets every day, often adopting a labyrinthine system of misleading and confusing signage, opaque appeals services, aggressive debt collection and unreasonable fees designed to extort money from motorists."
   
   

8. These are now banned costs which the Claimant has neither paid nor incurred, and were not quantified in prominent lettering on signage. Introducing the purported 'costs' add-on in later debt demands is a money making exercise to extract a high fixed sum from weaker motorists, and came far too late. I did not agree to it.
   
   

9. Whilst the new Code is not retrospective, it was brought in due to the failure of the previous two competing (self-serving) BPA & IPC codes of practice and the Ministerial Foreword is indisputably talking about existing cases when declaring the add-on to be 'designed to extort money'. A clear steer for the Courts from now on.
   
   

10. This overrides the mistakes and presumptions in the appeal cases that the parkingindustry had been relying upon ( Britannia v Semark-Jullien , One Parking Solution v Wilshaw , Vehicle Control Services v Ward and Vehicle Control Services v Percy ). Far from being persuasive or assisting with clarifying the law, regrettably these one-sided appeals were findings by Circuit Judges who appeared to be inexperienced in niche private parking law and where the litigant-in-person consumers had no financial wherewithal to appeal further.
    
    

11. It is pertinent to note that the Britannia v Semark-Jullien appeal judgment by HHJ Parkes criticised the District Judges at Southampton, for apparently not having enough evidence to conclude that Britannia 'knew' that their added costs were abusive (unincurred, unpaid and unjustified). Unbeknown to HHJ Parkes, of course all District Judges deal with template, generic evidence and arguments from parking operators every week, and BPA member firms including Britannia, certainly had been told this by Judges up and down the Country for many years. And the decision and words used by the DLUHC show that DJ Grand and DJ Taylor were right all along. As was HHJ Jackson in Excel v Wilkinson (not appealed-see Exhibit xx-12) where she went into great detail about this abuse.
    
    

12. The Semark-Jullien case is now unreliable going forward, and is fully distinguished now that the Government has at last stepped in and exposed and published the truth. This Claimant indisputably has knowledge (and always had knowledge) that they have not paid a penny in debt recovery costs, nor incurred any additional costs that the £100 parking charge is not designed to more than cover. The abuse is now clearly established and a new judgment re-stating this position, in the light of the damning words in the Foreword and the Explanatory Document published alongside the Code of Practice and stating (for the avoidance of doubt) the knowledge that District Judges have from years of experience of seeing these template enhanced claims and telling this Claimant to stop bringing exaggerated parking claims to court, would be welcomed to bring much-needed clarity for consumers and Judges across England and Wales.
    
    

13. In case this Claimant tries to rely upon those old cases, significant errors were made. Evidence - including unclear signage and Codes of Practice - was either ignored, even when in evidence at both hearings (Wilshaw, where the Judge was also oblivious to regulatory DVLA KADOE rules requiring landowner authority) or the judgment referred to the wrong rules, with one Judge seeking out the inapplicable BPA Code after the hearing and using it erroneously (Percy). In Ward, a few seconds' emergency stop out of the control of the driver, was inexplicably aligned with Beavis. The learned Judges were led in one direction by Counsel for parking firms, and were not in possession of the same level of facts and evidence as the DLUHC.

My fixed witness costs - ref PD 27, 7.3(1) and CPR 27.14

1. As a litigant-in-person I have had to learn relevant law from the ground up and spent a considerable time researching the law online, processing and preparing my defence plus this witness statement. I ask for my fixed witness costs. I am advised that costs on the Small Claims track are governed by rule 27.14 of the CPR and (unless a finding of 'wholly unreasonable conduct' is made against the Claimant) the Court may not order a party to pay another party’s costs, except fixed costs such as witness expenses which a party has reasonably incurred in travelling to and from the hearing (including fares and/or parking fees) plus the court may award a set amount allowable for loss of earnings or loss of leave.
   
   

2. The fixed sum for loss of earnings/loss of leave apply to any hearing format and are fixed costs at PD 27, 7.3(1) ''The amounts which a party may be ordered to pay under rule 27.14(3)(c) (loss of earnings)... are: (1) for the loss of earnings or loss of leave of each party or witness due to attending a hearing ... a sum not exceeding £95 per day for each person.''

Statement of truth:

1. I believe that the facts stated in this Witness Statement 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.