VCS Court Claim (Residential Parking, Disabled Passenger) - Defence Advice Needed

satinheartmgmt

Hi everyone. My court date is 25th January which means I have only tomorrow to write a full witness statement and submit it. With the Royal Mail strikes my post was delayed and I only got this letter a few days ago, but I have been too busy to start it. 

I have read the pinned FAQ's detailing the court process and witness statements, but is there anything that any of you recommend I include, or any advice specific to my case? I feel completely confused and lost with were to even start.

Thank you

KeithP

In the middle of October your case was still with the CCBC. You hadn't even been sent a Directions Questionnaire at that time.

Now you are telling us that you have completed a DQ, the case has been transferred to your chosen court, your chosen court has assigned a hearing date and your Witness Statement and evidence are due tomorrow?

That's amazing. Never do we see HMCTS act so swiftly.

Coupon-mad

My court date is 25th January which means I have only tomorrow to write a full witness statement and submit it. 

Surely you have 2 days to do this - until 11th - because you can email this or deliver a printed version to the local court by hand if it exceeds 50 pages, which it will in your case...).

I wish you had started to prepare this earlier because you have LOADS of angles to cover with evidence...half a day's work tomorrow, maybe!

Read and adapt the WS by @aphex007 and add in some specific stuff about:
  
- the Equality Act 2010 and

- lack of keeper liability (non-POFA NTKs and you were not driving for the 2 that occurred when you moved in).  

And search for defences adducing:

- Jopson v HomeGuard, and 

- Excel v Smith

(you need both transcripts - Google them). And Excel v Wilkinson of course.

You need to provide detail and evidence about your facts about what happened with all 3 PCNs, so I'm just quoting your defence facts below, to remind everyone because there is a LOT to cover:



(excerpt from your defence):

The facts as known to the Defendant:

2. It is admitted that the Defendant was the registered keeper of the vehicle in question but liability is denied for PCN: VCSxxxxx1 and PCN: VCSxxxxx2. However, defendant admits being the driver and keeper for PCN: VCSxxxxx3 but liability is denied. 

3. The Defendant had just got keys for her new flat 2 weeks prior, which included a permit for an allocated parking bay.  The Defendant had many people help move her belongings who also had access to the vehicle between the dates: 15/06/20 – 18/06/20. The Defendant was not the driver as she was decorating her apartment.  The Defendant does not know who was driving.  The Defendant first heard about PCN: VCSxxxxx1 on 02.07.2020 which is 17 days after the contravention date.  The issue date on PCN: VCSxxxxx1 is 30.06.2020 and contravention date on PCN: VCSxxxxx1 is 16.06.2020, therefore the Defendant cannot be held liable due to the Claimant not complying with the ‘keeper liability’ requirements set out it in the Protection of Freedoms Act 2012, Schedule 4.  The Defendant first heard about PCN: VCSxxxxx2 on 04.07.2020 which is 17 days after the contravention date.  The issue date on PCN: VCSxxxxx2 is 02.07.2020 and the contravention date on PCN: VCSxxxxx2 is 18.06.2020, therefore the Defendant cannot be held liable due to the Claimant not complying with the ‘keeper liability’ requirements set out in the Protection of Freedoms Act 2012, Schedule 4.

3.1. The Defendant has felt bombarded, harassed and threatened by the Claimant.  The Defendant has had a serious decline in her mental health since this has started.  The Defendant has been regularly seeing a therapist to help her overcome the anxieties that this has caused her.  The Defendant mentions that with the Covid-19 pandemic and the rising cost of living, they do not wish this on anybody.  

3.2. For PCN: VCSxxxxx3, the Defendant had a disabled passenger with her which was her mother. The bay that was allocated for her at her residential parking was not suitable for them to leave or enter the vehicle. As this was the Defendants first time witnessing the obstructed parking bay (the Defendant signed the lease on 01/06/2020), the disabled passenger did not have her blue badge with her to display and there was no suitable alternative, accessible options that were obvious to the Defendant and the disabled passenger at the time. The Defendant had to make a decision to park in the bay next to it to ensure the needs of her disabled passenger where met. The Defendant had contacted their landlord and building manager to get the bay swapped to a more suitable option, but was ignored.  Due to the Defendant’s relationship with the disabled passenger, this quickly became an issue as the EHRC statutory code was not followed.  The Defendant vacated the property 10 months later partly due to the discrimination the disabled passenger faced and not having a reasonable adjustment to their disabilities. 

Department for Levelling Up, Housing and Communities ('DLUHC') published in February 2022, a statutory Code of Practice, found here: LINK HERE which has a section on accessible parking:

“4. Accessible Parking Where parking is being provided as a service, parking operators need to have regard to the obligations placed upon them by the Equality Act 2010 and the EHRC statutory code, in particular to make reasonable adaptations to accommodate disabled people. Reference should also be given to the car park accessibility section in Inclusive Mobility, guidance published on GOV.UK by the Department for Transport on the creation and maintenance of an accessible and inclusive built environment and public realm, an essential document for those seeking to produce an inclusive environment and meet the requirements of the Act, including the public sector Equality Duty, and other legislation. Many parking operators and landowners choose to recognise the Blue Badge scheme and provide designated provision with specific bays which allow more space for opening vehicle doors, getting in and out of the vehicle, accessing a wheelchair etc. This might be appropriate for recognising the needs of people with limited physical mobility, but adaptations are not purely physical - people with other disabilities might reasonably need longer consideration period and grace periods, more time to access payment machinery, and other ways to pay where payment is required. Recognition of these obligations is important in the consideration of appeals.”

4. 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.

5. 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.

6. 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.

satinheartmgmt

Coupon-mad said:

My court date is 25th January which means I have only tomorrow to write a full witness statement and submit it. 

Surely you have 2 days to do this - until 11th - because you can email this or deliver a printed version to the local court by hand if it exceeds 50 pages, which it will in your case...).

I wish you had started to prepare this earlier because you have LOADS of angles to cover with evidence...half a day's work tomorrow, maybe!

Read and adapt the WS by @aphex007 and add in some specific stuff about:
  
- the Equality Act 2010 and

- lack of keeper liability (non-POFA NTKs and you were not driving for the 2 that occurred when you moved in).  

And search for defences adducing:

- Jopson v HomeGuard, and 

- Excel v Smith

(you need both transcripts - Google them). And Excel v Wilkinson of course.

You need to provide detail and evidence about your facts about what happened with all 3 PCNs, so I'm just quoting your defence facts below, to remind everyone because there is a LOT to cover:



(excerpt from your defence):

The facts as known to the Defendant:

2. It is admitted that the Defendant was the registered keeper of the vehicle in question but liability is denied for PCN: VCSxxxxx1 and PCN: VCSxxxxx2. However, defendant admits being the driver and keeper for PCN: VCSxxxxx3 but liability is denied. 

3. The Defendant had just got keys for her new flat 2 weeks prior, which included a permit for an allocated parking bay.  The Defendant had many people help move her belongings who also had access to the vehicle between the dates: 15/06/20 – 18/06/20. The Defendant was not the driver as she was decorating her apartment.  The Defendant does not know who was driving.  The Defendant first heard about PCN: VCSxxxxx1 on 02.07.2020 which is 17 days after the contravention date.  The issue date on PCN: VCSxxxxx1 is 30.06.2020 and contravention date on PCN: VCSxxxxx1 is 16.06.2020, therefore the Defendant cannot be held liable due to the Claimant not complying with the ‘keeper liability’ requirements set out it in the Protection of Freedoms Act 2012, Schedule 4.  The Defendant first heard about PCN: VCSxxxxx2 on 04.07.2020 which is 17 days after the contravention date.  The issue date on PCN: VCSxxxxx2 is 02.07.2020 and the contravention date on PCN: VCSxxxxx2 is 18.06.2020, therefore the Defendant cannot be held liable due to the Claimant not complying with the ‘keeper liability’ requirements set out in the Protection of Freedoms Act 2012, Schedule 4.

3.1. The Defendant has felt bombarded, harassed and threatened by the Claimant.  The Defendant has had a serious decline in her mental health since this has started.  The Defendant has been regularly seeing a therapist to help her overcome the anxieties that this has caused her.  The Defendant mentions that with the Covid-19 pandemic and the rising cost of living, they do not wish this on anybody.  

3.2. For PCN: VCSxxxxx3, the Defendant had a disabled passenger with her which was her mother. The bay that was allocated for her at her residential parking was not suitable for them to leave or enter the vehicle. As this was the Defendants first time witnessing the obstructed parking bay (the Defendant signed the lease on 01/06/2020), the disabled passenger did not have her blue badge with her to display and there was no suitable alternative, accessible options that were obvious to the Defendant and the disabled passenger at the time. The Defendant had to make a decision to park in the bay next to it to ensure the needs of her disabled passenger where met. The Defendant had contacted their landlord and building manager to get the bay swapped to a more suitable option, but was ignored.  Due to the Defendant’s relationship with the disabled passenger, this quickly became an issue as the EHRC statutory code was not followed.  The Defendant vacated the property 10 months later partly due to the discrimination the disabled passenger faced and not having a reasonable adjustment to their disabilities. 

Department for Levelling Up, Housing and Communities ('DLUHC') published in February 2022, a statutory Code of Practice, found here: LINK HERE which has a section on accessible parking:

“4. Accessible Parking Where parking is being provided as a service, parking operators need to have regard to the obligations placed upon them by the Equality Act 2010 and the EHRC statutory code, in particular to make reasonable adaptations to accommodate disabled people. Reference should also be given to the car park accessibility section in Inclusive Mobility, guidance published on GOV.UK by the Department for Transport on the creation and maintenance of an accessible and inclusive built environment and public realm, an essential document for those seeking to produce an inclusive environment and meet the requirements of the Act, including the public sector Equality Duty, and other legislation. Many parking operators and landowners choose to recognise the Blue Badge scheme and provide designated provision with specific bays which allow more space for opening vehicle doors, getting in and out of the vehicle, accessing a wheelchair etc. This might be appropriate for recognising the needs of people with limited physical mobility, but adaptations are not purely physical - people with other disabilities might reasonably need longer consideration period and grace periods, more time to access payment machinery, and other ways to pay where payment is required. Recognition of these obligations is important in the consideration of appeals.”

4. 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.

5. 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.

6. 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.

This is great and very helpful thank you very much, I'll start my statement once I finish work this evening.

The disabled passenger has also been identified as a witness so I assume she will have to write one as well.

I do not have a clue how I am going to deliver this by hand as I work 9-5, this is a nightmare!

satinheartmgmt

KeithP said:

In the middle of October your case was still with the CCBC. You hadn't even been sent a Directions Questionnaire at that time.

Now you are telling us that you have completed a DQ, the case has been transferred to your chosen court, your chosen court has assigned a hearing date and your Witness Statement and evidence are due tomorrow?

That's amazing. Never do we see HMCTS act so swiftly.

Yes its crazy, I wasn't expecting it to be so quick.

It's the fact they want me to prepare a WS over the Christmas/new year period and expect it to be in on time even with the royal mail strikes. It's not fair.

Mouse007

satinheartmgmt said:

I do not have a clue how I am going to deliver this by hand as I work 9-5, this is a nightmare!

You're not, you email it to the local court during office hours. Keep it under 50 pages, some Courts are refusing to print anything longer.

As this is residential you might find something helpful in my son's witness statement here, paragraphs 24 to 42. Note in addition to the cases mentioned above the 2 cases in paragraphs 34 and 35.

Galloglass

Playing devil's advocate here, I think you have a strong win on the 2 tickets for loading/unloading even if you were the driver (see Homeguard). The two tickets came in quick succession and the first you knew of the transgression was after the 2nd one was issued. 

The first one though could be an issue. Essentially you trespassed into someone else's space. VCS's argument will be they had the right with their Freeholder/Mgt Agents agreement to police that bay. This may not be true?

Often a specific parking space has been sold with rights to the space which the Freeholder cannot remove or use for themselves. In this case (and others) the VCS agreement is for the common areas and not the demised parking spaces unless the Head Lease allows for it. 

I think you can challenge the VCS authority by making the distinction between common areas which the Freeholder controls absolutely and whether they had the right to manage that particular parking spaces you parked in. 

The Defendant had contacted their landlord and building manager to get the bay swapped to a more suitable option, but was ignored

I'm guessing you were ignored due to the MgtCo not having the authority for anything other than the common areas. Property law and not parking law.

satinheartmgmt

Thanks everyone. 

With my witness statement, do I reply to points that the claimant has made in their witness statement or keep it separate?

In their witness statement they have tried to use the fact I've used a common 'template' for my defence and that this is a waste of the court and claimants time! hahah hilarious, I'm pretty sure their WHOLE witness statement is a template


Thanks

satinheartmgmt

TBH - I don't mind if I get the court fees, admin fees and the other 2 tickets scrapped and then just have to pay £60 for that 1 ticket. I just wanted to fight my battle with them all as I had reason to park there.

KeithP

satinheartmgmt said:

In their witness statement they have tried to use the fact I've used a common 'template' for my defence and that this is a waste of the court and claimants time! hahah hilarious, I'm pretty sure their WHOLE witness statement is a template.

Do they use the word 'nonsensical'? 

Search the forum for that word and see how often we have seen this template.