Claim Form - County Court Business Centre (UKPC // DCB legal)

KeithP

supacoopa10 said:

I believe I need to submit on Friday given the recommendation to do so within work hours.

You have the best part of next Monday too - including all of next weekend.

I wrote earlier...

...you have until 4pm on Monday 5th September 2022 to file your Defence.

KeithP

Back on 24th August you proposed putting this in your Defence...

3. The vehicle in question was parked in the space allocated to the Defendant under the terms of private residential lease agreement.

Now, your latest proposal includes...

3.1. The Defendant parked in a parking bay allocated to the Defendant under the terms of their rental agreement...

I am not saying your latest iteration is wrong, just wondering whether you are right to admit that the Defendant was the driver?
In which case, perhaps your paragraph 2 should read...

2. It is admitted that the Defendant was the registered keeper and driver of the vehicle in question.

Do you understand that a keeper has more protection in law than an admitted driver?

supacoopa10

thank you Keith. I find it odd tbh referring to the 'driver' considering that the car was stationary in a space allocated to the keeper. I can revert to the original wording if it offers more protection?

Coupon-mad

supacoopa10 said:

thank you Coupon-mad. I've had another go at paras 2-3 and pasted them below for reference. I did consider using other bits I found but ended up confusing myself. It would be really useful to know if this is strong enough or needs additional work. I believe I need to submit on Friday given the recommendation to do so within work hours. As this is very confusing for me any help or tips would be greatly received.

The facts as known to the Defendant:

2. It is admitted that the Defendant was the registered keeper of the vehicle in question.

3. The defendant denies liability for the entirety of the claim for the following reasons:

3.1. The Defendant parked in a parking bay allocated to the Defendant under the terms of their rental agreement with a private landlord. As part of this agreement, The Defendant was given a parking pass which correlated to the space number and vehicle details. The parking pass casing was not in good condition, with all adhesive capabilities eroded at the time the Defendant took control of it, making it not fit for purpose. This pass, to the Defendants knowledge, was in place the right way up when the car was locked and left parked. At some point this pass fell from the drivers side dashboard and into the foot well of the car, but could still be seen from outside the car if reasonable attempts were made to do so. The Defendant has no knowledge of the point at which the ticket fell, but made all reasonable endeavours, and complied by conduct. 

3.2 The Defendant cannot be responsible for the possibility that:

a) A gust of wind may have later moved the unfit-for-purpose parking pass onto the floor of the car, either as the driver moved out of the car or despite the windows & doors being locked.

b) The employee of the Claimant may have caused the ticket to move from sight, perhaps accidentally when leaning across the car or pushing between vehicles. No suggestion of foul play is intended.

c) A passer-by may have leaned on the car, when squeezing between the small bays to get to their own vehicle or to the bin store which was located next to the parking space in question.

3.3 None of the above scenarios are within a driver's control. This appears to have been a case of casus fortuitus "chance occurrence, unavoidable accident", which is a doctrine that essentially frees both parties from liability or obligation when an extraordinary event or circumstance beyond the control of the parties renders the contract frustrated.

3.4 Notwithstanding the above, the quality of the parking pass certainly played its part, and that is within the control of the Claimant. It is the case that a pass of reasonable condition was not provided to the Defendant at the commencement of the rental agreement. There are a number of similar cases, known as ''fluttering tickets'’, which enable parking companies to profit from drivers' misfortune caused by their own tickets' inability to withstand British weather. Several similar court cases have been previously dismissed on the basis that it is deemed by the judge to be the responsibility of the parking company to provide good condition sticky backed tickets (e.g. C8GF30W7 Link Parking v Mr H. 14/11/2016 Port Talbot)

3.5 The Court is invited to consider the fairness of the position in this case, giving due consideration to the flimsiness of the piece of paper provided, which appears to cause significant imbalance in the rights of a consumer, to their detriment, and the Defendant relies on Section 62 of the Consumer Rights Act.

3.6 Furthermore, the Defendant did not receive any further correspondence from the Claimant in response to the appeal. The Defendant moved from the property in mid September 2017 in advance of a formal lease termination date of 1st October 2017. Therefore the appeal outcome dated 25 September 2017, notwithstanding the legality and process behind this appeal decision, was not seen by the Defendant until the documents requested via a Subject Access Request were formally received by the Defendant on 15 August 2022. By this time the Defendant had already received a Letter of Claim with a ridiculous and disproportionate amount claimed.

Re-number it all with normal sequential numbers and of course re-number the template below it.

You've gone quite far in terms of using the fluttering ticket argument but not included any of the residential defence points about not being 'unauthorised' and having primacy of contract, that you also need. I advised you to take parts from both those examples linked in the NEWBIES thread but I see nothing in this about 'primacy of contract' under your lease and being an authorised resident.

If you were the driver who parked that day, and you know that for sure, you should say so in 2 and forget the PoFA 'protection' which is weak and non-existent in most cases anyway.

KeithP

supacoopa10 said:

thank you Keith. I find it odd tbh referring to the 'driver' considering that the car was stationary in a space allocated to the keeper.

OK, but what was wrong with your original - "the vehicle was parked..."?

supacoopa10

KeithP said:

supacoopa10 said:

thank you Keith. I find it odd tbh referring to the 'driver' considering that the car was stationary in a space allocated to the keeper.

OK, but what was wrong with your original - "the vehicle was parked..."?

Nothing, I just think in the act of splicing bits from various threads it got changed. I'll revert to the original wording. Thank you

supacoopa10

Coupon-mad said:

You've gone quite far in terms of using the fluttering ticket argument but not included any of the residential defence points about not being 'unauthorised' and having primacy of contract, that you also need. I advised you to take parts from both those examples linked in the NEWBIES thread but I see nothing in this about 'primacy of contract' under your lease and being an authorised resident.

Apologies for the double post, but I've now read this extract from the following thread found in the newbies article: https://forums.moneysavingexpert.com/discussion/comment/72977032#Comment_72977032


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 of [address], whose tenancy agreement 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 limitation as to type of vehicle, ownership of vehicle, the user of the vehicle or the requirement to display a parking permit. A copy of the lease will be provided to the Court, together with witness evidence that prior permission to park had been given.

7. 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.

7. Accordingly it is denied that:
7.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant
7.2. there was any obligation (at all) to display a permit; and
7.3. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.


My issue with this is I don't have access to the tenancy agreement (if there ever was one, given the loose approach taken by my then-landlord) so don't know exactly what, if anything, was written in about parking. I can say that there was a space assigned to the flat I lived in, and that I was given a parking pass which had no identifiable info on it, be it flat, person or vehicle details.

And with that backdrop, the rest of the detail is quite impenetrable in terms of knowing what bits are relevant and which bits aren't. 

Coupon-mad

Most of that is absolutely relevant - add it but tailor it to say what you know:

"there was a space assigned to the flat and a parking pass which had no identifiable info on it, be it flat, person or vehicle details."

supacoopa10

Thank you coupon-mad, I really do appreciate it. This is now what I have. I've left bits in regarding the need to display a pass but I wonder whether to edit those out? Is there much more that can be done to improve this?

 

1. The parking charges referred to in this claim did not arise from any agreement of terms. The charge and the claim was an unexpected shock. 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 was a breach of any prominent term and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue or form contracts in their own name. Liability is denied, whether or not the Claimant is claiming 'keeper liability', which is unclear from the Particulars.

The facts as known to the Defendant:

2. It is admitted that the Defendant was the registered keeper of the vehicle in question.

3. The defendant denies liability for the entirety of the claim for the following reasons:

4. The vehicle in question was parked in the space allocated to the Defendant under the terms of private residential lease agreement.  As part of this agreement, The Defendant was given a parking pass which provided no additional details to correlate the space number to vehicle details. The parking pass casing was not in good condition, with all adhesive capabilities eroded at the time the Defendant took control of it, making it not fit for purpose. This pass, to the Defendants knowledge, was in place the right way up when the car was locked and left parked. At some point this pass fell from the drivers side dashboard and into the foot well of the car, but could still be seen from outside the car if reasonable attempts were made to do so. The Defendant has no knowledge of the point at which the ticket fell, but made all reasonable endeavours, and complied by conduct. 

5. The Defendant cannot be responsible for the possibility that:

a) A gust of wind may have later moved the unfit-for-purpose parking pass onto the floor of the car, either as the driver moved out of the car or despite the windows & doors being locked.

b) The employee of the Claimant may have caused the ticket to move from sight, perhaps accidentally when leaning across the car or pushing between vehicles. No suggestion of foul play is intended.

c) A passer-by may have leaned on the car, when squeezing between the small bays to get to their own vehicle or to the bin store which was located next to the parking space in question.

6. None of the above scenarios are within a driver's control. This appears to have been a case of casus fortuitus "chance occurrence, unavoidable accident", which is a doctrine that essentially frees both parties from liability or obligation when an extraordinary event or circumstance beyond the control of the parties renders the contract frustrated.

7. Notwithstanding the above, the quality of the parking pass certainly played its part, and that is within the control of the Claimant. It is the case that a pass of reasonable condition was not provided to the Defendant at the commencement of the rental agreement. There are a number of similar cases, known as ''fluttering tickets'’, which enable parking companies to profit from drivers' misfortune caused by their own tickets' inability to withstand British weather. Several similar court cases have been previously dismissed on the basis that it is deemed by the judge to be the responsibility of the parking company to provide good condition sticky backed tickets (e.g. C8GF30W7 Link Parking v Mr H. 14/11/2016 Port Talbot)

8. The Court is invited to consider the fairness of the position in this case, giving due consideration to the flimsiness of the piece of paper provided, which appears to cause significant imbalance in the rights of a consumer, to their detriment, and the Defendant relies on Section 62 of the Consumer Rights Act.

9. Furthermore, the Defendant did not receive any further correspondence from the Claimant in response to the appeal. The Defendant moved from the property in mid September 2017 in advance of a formal lease termination date of 1st October 2017. Therefore the appeal outcome dated 25 September 2017, notwithstanding the legality and process behind this appeal decision, was not seen by the Defendant until the documents requested via a Subject Access Request were formally received by the Defendant on 15 August 2022. By this time the Defendant had already received a Letter of Claim with a ridiculous and disproportionate amount claimed.

10. It is denied that the Defendant or lawful users of the Defendant’s 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 of 7 Carver Court, Cheltenham, whose tenancy agreement permits the parking of a vehicle in a designated parking bay allocated to this property.. 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 limitation as to type of vehicle, ownership of vehicle, the user of the vehicle or the requirement to display a parking permit. 

11. 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.

12. Accordingly it is denied that:

a) there was any agreement as between the Defendant or driver of the vehicle and the Claimant

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

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

13. The facts in this defence come from the Defendant's own knowledge and honest belief.  To pre-empt the usual template responses from this serial litigator: the court process is outside of the Defendant's life experience and they cannot be criticised for adapting some pre-written wording from a reliable advice resource. The Claimant is urged not to patronise the Defendant with (ironically template) unfounded accusations of not understanding their defence.

Coupon-mad

That's great, keep it all in as your 'facts' section has to cover a fluttering permit scenario as well as a primacy of contract resident's defence.

Re-number all the rest of the template below it and don't remove anything.

Then re-read the first post of the Template Defence thread (the 12 first steps) so you don't have to come and ask us about the next standard letter and form.