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Help on Claim from DCB Legal and UKPC Defence
SimonStone09
Posts: 4 Newbie
Hello MSE friends,
I received claim form from DCB Legal and has followed the *NEWBIES thread to get an SAR and completed AOS on my case. I'm writing up my defence now and need some helps.
Basically I parked my vehicle at my friend's rental place and parked at his allocated car park. He has lost his permit therefore I phoned up the building management who instructed me to parking at the allocated parking space. However the second day I received a PCN from UKPC. Quite unfortunately I was a bit naïve and have appealed the situation and all was recorded in the correspondence as below:
Here's my defence below borrowing the "a residential site with secure key fob access" example
Own Apartment Parking Fine - Page 2 — MoneySavingExpert Forum
However I have following three questions:
1. I don't have a copy of my friend's flat lease - should I write the lease granded the permision?
2. I have a copy of the parking entry photo from google maps where it clearly displaced "remote activated gate" - should I attach that as an evidance?
3. I have some text message screenshot between my friend and the building management agent which report lost parking permit, should I attach that?
Many thanks
Simon
I received claim form from DCB Legal and has followed the *NEWBIES thread to get an SAR and completed AOS on my case. I'm writing up my defence now and need some helps.
Basically I parked my vehicle at my friend's rental place and parked at his allocated car park. He has lost his permit therefore I phoned up the building management who instructed me to parking at the allocated parking space. However the second day I received a PCN from UKPC. Quite unfortunately I was a bit naïve and have appealed the situation and all was recorded in the correspondence as below:
Here's my defence below borrowing the "a residential site with secure key fob access" example
Own Apartment Parking Fine - Page 2 — MoneySavingExpert Forum
However I have following three questions:
1. I don't have a copy of my friend's flat lease - should I write the lease granded the permision?
2. I have a copy of the parking entry photo from google maps where it clearly displaced "remote activated gate" - should I attach that as an evidance?
3. I have some text message screenshot between my friend and the building management agent which report lost parking permit, should I attach that?
Many thanks
Simon
The facts as known to the Defendant:
2. It is admitted that the Defendant was the registered keeper and the driver of the vehicle in question.
3. The Particulars of Claim on the N1 Claim Form refer to 'Parking Charge(s)' incurred on xxx. However, they do not state the basis of any purported liability for these charges, in that they do not state what the terms of parking were, or in what way they are alleged to have been breached. In addition, the particulars state 'The Defendant was driving the vehicle and/or is the keeper of the vehicle' which indicates that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5.
4. The Particulars refer to the material location as 'xxxxx”'. As the visitor to the location, the Defendant held legal title under the terms of a lease, to Flat xx at that location. At some point, the managing agents contracted with the Claimant company to enforce parking conditions at the estate.
5. The car parking area contains allocated parking spaces demised to some residents. Entry to the underground parking is by means of a key fob, of a type only issued to residents. Any vehicles parked therein are, therefore, de facto authorised to be there.
6. Under the terms of the Defendant's lease, a number of references are made to conditions of parking motor vehicles. The definitions define an 'Authorised Vehicle' as one which is taxed, roadworthy, and under 2 metres in height. The Lessee agrees to only park a vehicle in an area set aside for that purpose. The Schedule to the Lease states that Lessees must not allow commercial vehicles, caravans, boats, trailers, etc. to be parked anywhere.
6.1. There are no terms within the lease requiring lessees or visitor to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same.
7. 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.
8. 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.
9. Further and in the alternative, the signs refer to 'Authorised Vehicles Only/Terms of parking without permission', and suggest that by parking without permission, motorists are contractually agreeing to a parking charge of £100. This is clearly a nonsense, since if there is no permission, there is no offer, and therefore no contract.
9.1. The Defendant's vehicle clearly was 'authorised' as per the lease and was authorised to park on the allocated space. 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.
9.2. 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 park/rights of way and 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.
2. It is admitted that the Defendant was the registered keeper and the driver of the vehicle in question.
3. The Particulars of Claim on the N1 Claim Form refer to 'Parking Charge(s)' incurred on xxx. However, they do not state the basis of any purported liability for these charges, in that they do not state what the terms of parking were, or in what way they are alleged to have been breached. In addition, the particulars state 'The Defendant was driving the vehicle and/or is the keeper of the vehicle' which indicates that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5.
4. The Particulars refer to the material location as 'xxxxx”'. As the visitor to the location, the Defendant held legal title under the terms of a lease, to Flat xx at that location. At some point, the managing agents contracted with the Claimant company to enforce parking conditions at the estate.
5. The car parking area contains allocated parking spaces demised to some residents. Entry to the underground parking is by means of a key fob, of a type only issued to residents. Any vehicles parked therein are, therefore, de facto authorised to be there.
6. Under the terms of the Defendant's lease, a number of references are made to conditions of parking motor vehicles. The definitions define an 'Authorised Vehicle' as one which is taxed, roadworthy, and under 2 metres in height. The Lessee agrees to only park a vehicle in an area set aside for that purpose. The Schedule to the Lease states that Lessees must not allow commercial vehicles, caravans, boats, trailers, etc. to be parked anywhere.
6.1. There are no terms within the lease requiring lessees or visitor to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same.
7. 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.
8. 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.
9. Further and in the alternative, the signs refer to 'Authorised Vehicles Only/Terms of parking without permission', and suggest that by parking without permission, motorists are contractually agreeing to a parking charge of £100. This is clearly a nonsense, since if there is no permission, there is no offer, and therefore no contract.
9.1. The Defendant's vehicle clearly was 'authorised' as per the lease and was authorised to park on the allocated space. 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.
9.2. 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 park/rights of way and 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.
0
Comments
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Hello and welcome.
What is the Issue Date on your County Court Claim Form?
Upon what date did you file an Acknowledgment of Service?
Your MCOL Claim History will have the definitive answer to that.
2 -
Plan A is always to complain to the landowner, building manager, and your MP.
No evidence goes with the defence. You submit evidence and exhibits at a later date with your witness statement. However, in order to include said evidence, you must have mentioned it first in your defence.
In other words, you state that you had permission to park from the resident, and from the building manager, in your defence. You mention primacy of contract and that the resident's rights according to their lease/AST etcetera were transferred to you. What the lease/AST does not say is equally important.
When you get to the WS stage, you then include a copy of the relevant parts of the lease/AST concerning residents rights about visitor parking. You include a witness statement from the resident, and ideally from the person you spoke to in the building management company/department.
I married my cousin. I had to...I don't have a sister.
All my screwdrivers are cordless."You're Safety Is My Primary Concern Dear" - Laks2 -
Thank a lot for your reply Keith, seems that I have untill 5th Sept to file a defence? plan to submit 2nd Sept.KeithP said:Hello and welcome.
What is the Issue Date on your County Court Claim Form?
Upon what date did you file an Acknowledgment of Service?
Your MCOL Claim History will have the definitive answer to that.
0 -
What do you mean by "lease/AST does not say is equally important"?Fruitcake said:Plan A is always to complain to the landowner, building manager, and your MP.
No evidence goes with the defence. You submit evidence and exhibits at a later date with your witness statement. However, in order to include said evidence, you must have mentioned it first in your defence.
In other words, you state that you had permission to park from the resident, and from the building manager, in your defence. You mention primacy of contract and that the resident's rights according to their lease/AST etcetera were transferred to you. What the lease/AST does not say is equally important.
When you get to the WS stage, you then include a copy of the relevant parts of the lease/AST concerning residents rights about visitor parking. You include a witness statement from the resident, and ideally from the person you spoke to in the building management company/department.
Quite unfortunately it was back 5 years (2017) ago and at the time I did complain to the Building manager but didn't get away with it. The lease is with a friend. I probably won't be able to get a copy of it given the years.
Should I still mention the primacy of the contract?
0 -
Yes you are right with your Defence filing deadline but there might be something useful here...SimonStone09 said:
Thank a lot for your reply Keith, seems that I have untill 5th Sept to file a defence? plan to submit 2nd Sept.KeithP said:Hello and welcome.
What is the Issue Date on your County Court Claim Form?
Upon what date did you file an Acknowledgment of Service?
Your MCOL Claim History will have the definitive answer to that.With a Claim Issue Date of 3rd August, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 5th September 2022 to file your Defence.
That's just a few days away. Plenty of time to produce a Defence and it is good to see 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'.2 -
If the lease does not say "you must wear green shoes whilst parking" then you do not have to do it, so anything the lease does NOT say, such as displaying a permit, you do NOT have to do!SimonStone09 said:What do you mean by "lease/AST does not say is equally important"?5 -
Yes, still mention primacy of contract and aver that the resident's lease/AST/property rental agreement did not require visitors to display a permit, and put the claimant to strict proof that the contrary is true.SimonStone09 said:
What do you mean by "lease/AST does not say is equally important"?Fruitcake said:Plan A is always to complain to the landowner, building manager, and your MP.
No evidence goes with the defence. You submit evidence and exhibits at a later date with your witness statement. However, in order to include said evidence, you must have mentioned it first in your defence.
In other words, you state that you had permission to park from the resident, and from the building manager, in your defence. You mention primacy of contract and that the resident's rights according to their lease/AST etcetera were transferred to you. What the lease/AST does not say is equally important.
When you get to the WS stage, you then include a copy of the relevant parts of the lease/AST concerning residents rights about visitor parking. You include a witness statement from the resident, and ideally from the person you spoke to in the building management company/department.
Quite unfortunately it was back 5 years (2017) ago and at the time I did complain to the Building manager but didn't get away with it. The lease is with a friend. I probably won't be able to get a copy of it given the years.
Should I still mention the primacy of the contract?
In other words, make them prove that a permit was required by the resident's contract to live at the property.
If you can't get a copy of the lease from your friend, could you get a witness statement from them starting what the lease did or did not say for use at the witness statement stage?I married my cousin. I had to...I don't have a sister.All my screwdrivers are cordless."You're Safety Is My Primary Concern Dear" - Laks1 -
Good news!
Just want to report the result of this legal case. The counterpart legal team has decided to "discontinue Court proceedings and close our file".
Thanks a lot to the form and KeithP, Fruitcake and Le_Kirk!
5 -
SimonStone09 said:Good news!
Just want to report the result of this legal case. The counterpart legal team has decided to "discontinue Court proceedings and close our file".
Thanks a lot to the form and KeithP, Fruitcake and Le_Kirk!Yay! As expected but great news!.
ANOTHER DISCONTINUANCE!ANOTHER UKPC ONE BITES THE DUST!
And we sincerely hope that you are au fait with the need to respond to the final Government Public Consultation this Summer?
Anticipated July/August.
We all need to ram the nail in the coffin of the false £70 'DRA fee' add-on, that actually funds the court claim and toxic CCJ culture, as well as the DRA and roboclaim 'legals' gaslighting of people.
Please come back here when it opens.
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