Court Proceedings - Defence Critique Please

MsSLP

Good afternoon,

I have drafted a defence after court paper were issued for a PCN back in 2015.  The context is that I was the driver at the time, but my Mum is the registered keeper.  The 'contravention' is alleged to have taken place in the car park of a residential building, of which my boyfriend owns a flat and whom I was living with at the time. 

My mum has asked for liability to be transferred to myself several times, prior to the commencement of court proceedings but this has been refused.  I, as the driver have even emailed to provide my own name and address to allow this to happen - but they are still pursuing my mum for this claim.  

For additional context - I was actually stopped in a communal area to load luggage for a trip - I was not causing an obstruction to any people, cars, access or doors.  I have checked the leasehold agreement for the building and there is no reference parking conditions being enforced by a third party.

Following submitting the AoS I have read through lots of threads to try to compile my defence - I have predominantly used the example from Coupon Mad here, with additions for the other aspects e.g. Transfer of Liability.  The defence needs to be submitted by this Sunday. 

Looking for help and critique please - I'm worried it jumps about too much and if some of it is contradictory.  Also difficult positioning and differentiating between the driver (me) and the Defendant (my mum), so want to make sure it makes sense!  I have redacted this version.



_______________________________________________________________________________________________________________________

DEFENCE

________________________________________

The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all, based on the following:

1)     Transfer of Liability 

 

1.2  As registered keeper of the vehicle the Defendant has notified the Claimant and the legal representative on no fewer than six occasions prior to commencement of court proceedings.  The claimant has been informed of the driver’s details, including full name and serviceable address via email, phone and post in response to letters received from the claimant pursuing this PCN – all of which can be evidenced.

 

The Defendant had initially contacted NGPM Ltd directly but was informed that NGPM Ltd could not discuss nor amend the PCN details as it was now the responsibility of their legal representative.  The Defendant also subsequently emailed DCBL as well – who said they would not transfer liability despite the fact that no court proceedings had been initiated at this point.  Having followed up with phone calls and emails insisting this should take place in accordance with POFA both the Claimant and the Legal Representative ceased communication.  As the Defendant had not had any further correspondence they presumed Transfer of Liability had taken place, until they were informed otherwise when they received court papers confirming they were still being wrongly pursued for this claim.

 

1.3  Having provided the name and address of the driver (on numerous occasions, and prior to commencement of court proceedings as prescribed by POFA) the Defendant has no keeper liability under POFA and so it is requested that the claim be struck out.

 

1.4  NGPM Ltd also appear to have been issuing tickets on the entrance to this roadway which is in Cardiff Council Highways’ adoption area and so bringing into question their conduct in the management of this land, and their willingness to issue and pursue PCNs on adopted highway. 

 

1.5  New Generation Parking Management Ltd have been particularly obstructive when dealing with the Subject Access Request in fact failing to recognise that the Defendant was making a SAR at all, which was made at the time the Defendant requested rectification of their data in relation to the Transfer of Liability.  The initial response from the Claimant was obstructive and asked for arbitrary information to validate ID, despite the Defendant having previously and repeatedly provided sufficient information and correspondence that should have satisfied this need.  The Defendant followed up with an explicit SAR (despite not being required to be explicit in the request as per UK GDPR) the output of which the Defendant is still waiting upon.  DCBL did follow up to the initial request with copies of some of the Defendants personal data, but this was substantially incomplete and did not include any previous correspondence referring to the request for Transfer of Liability, case notes or any copies of personal data being processed by NGP Ltd. 

 

According to the ICO as to what constitutes an SAR, this request appears excessive and onerous, and amounts to obstruction to comply with the General Data Protection Regulations by which they are bound.  Whilst this is not a matter for this court to deal with, (I will be notifying the ICO) it infers the inappropriate conduct and behaviour of the NGP’s operation and the willingness to ignore the rules and regulations (POFA and GDPR) intended to protect consumers and the public, in the pursuit of these charges. 

 

1.6  Furthermore, the behaviour of both NGP Ltd and DCBL ltd has been unscrupulous and underhanded.  Letters are deliberately vague and confusing – using interchangeable reference  numbers, not listing company name accurately, not stating the contravention, date and/or location in all correspondence. I believe this further indicates the inappropriate conduct of the Claimant and the Legal Representative. 

 

 

2) Authority to enforce

2.1  The particulars of this claim refer to Aquila House, Falcon Drive Cardiff.  The driver’s partner has held legal title under the terms of a lease to Flat 116 since 2015.  At some point the managing agent contracted with the Claimant company to enforce parking conditions on the estate (a relationship that has since been terminated.)

 

2.2   The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

 

2.3  The Leaseholder Agreement to which the owner of the property has signed makes no reference to a third-party contract to enforce any parking regulation that supersedes the primary contract – and signs erected on the premises do not override or negate existing contract terms.  

 

Whilst there is reference to terms relating to parking of vehicles, there are no terms within the lease requiring lessees to pay penalties to third parties, such as the Claimant for not complying with the erected signs on site.  Nothing in the Leasehold Agreement confers any rights on any person pursuant to the Contracts (Rights of Third Parties) Act 1999.

 

 

2.4  The driver, at all material times, parked in accordance with the terms of the Leasehold Agreement.  The erection of the Claimant’s signage, and the purported contractual terms conveyed therein, are incapable of binding the driver in any way, and their existence does not constitute a legally valid variation to the terms of the Leasehold Agreement.  Accordingly, the driver denies having breached any contractual terms whether express, implied or by conduct.

 

2.5  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 Leaseholder is unaware of any such vote having been passed by the residents.

2.6  Even though not a requirement of the Leasehold Agreement - the Car itself was registered with the landowner (CCHA) and had been issued with a permit to park on the premises, as was a vehicle both the Leaseholder and the driver both frequently used – the car park is accessed by means of a fob, which had been provided to the driver by the Leaseholder.  Any vehicle parked therein are , therefore, de facto authorised to be there.

 

2.7  The driver at the time was actually loading the vehicle – the driver remember this occasion given that the driver was picking up luggage for a trip to Munich the next day – the driver is sure that they were not parked there for a significant duration as they left shortly after to stay at alternative accommodation nearer the airport.  It was necessary to unload at the front of the building and not in a marked bay as all spaces were full - there is no reference in the Leasehold Agreement that loading is not permitted. 

 

 

 

3)     Abuse of Process: Costs on the claim - disproportionate and disingenuous

 

3.1  The Defendant's vehicle clearly was 'authorised' as per the lease and 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.

 

3.2  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.

 

3.3  The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 as a binding precedent on the lower court. However, that only assists the Claimant if the facts of the case are the same, or broadly the same. In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas it is the Defendant's position that no such breach occurred in this case, because there was no valid contract, and also because the 'legitimate interest' in enforcing parking rules for retailers and shoppers in Beavis does not apply to these circumstances. Therefore, this case can be distinguished from Beavis on the facts and circumstances.

 

3.4  The Claimant, or their legal representatives, has added an additional sum of £60 to the original £100 parking charge, for which no explanation or justification has been provided. Schedule 4 of the Protection of Freedoms Act, at 4(5), states that the maximum sum which can be recovered is that specified in the Notice to Keeper, which is £100 in this instance. It is submitted that this is an attempt at double recovery by the Claimant, which the Court should not uphold, even in the event that Judgment for Claimant is awarded.

 

3.5   In summary, the Claimant's particulars disclose no legal basis for the sum claimed and it is the Defendant's position that the poorly pleaded claim discloses no cause of action and no liability in law for any sum at all. The Claimant's vexatious conduct from the outset has been intimidating, misleading and indeed untrue in terms of the added costs alleged and the statements made, in trying to justify the unjustifiable.

 

 

 

4)     Summary

 

4.1    For all or any of the reasons stated above, the Court is invited to dismiss the Claim in its entirety, and to award the Defendant such costs as are allowable on the small claims track, pursuant to Civil Procedure Rule 27.14. Given that the claim is based on an alleged contractual parking charge of £100 - already significantly inflated and mostly representing profit, as was found in Beavis - but the amount claimed on the claim form is inexplicably £214.48, the Defendant avers that this inflation of the considered amount is a gross abuse of process.

Given that it appears that this Claimant's conduct provides for no cause of action, and this is intentional and contumelious, the Claimant's claim must fail.

 

4.2    Accordingly, the Court is invited to make an Order of its own initiative, dismissing this claim in its entirety using its case management powers pursuant to Civil Procedure Rule 3.4. and to allow such Defendant's costs as are permissible under CPR 27.14 on the indemnity basis, taking judicial note of the wholly unreasonable conduct of this Claimant.

 

 

 

"I believe the facts contained in this Defence Statement are true."

<<<End>>>

____________________________________________________________________________________________________________________

Any help would be greatly appreciated! 

Thanks in advance!

Miss SLP

Fruitcake

You would be better using whole paragraph numbers rather than sub-para numbers.

A minor point, but your first para might be better written as,

1.2  As registered keeper of the vehicle the Defendant has notified the Claimant and their legal representative on no fewer than six occasions prior to commencement of court proceedings .The that the claimant has had been informed of the driver’s details. This included the  , including full name and serviceable address of the driver via email, phone and post in response to letters received from the claimant pursuing this PCN – all of which can be evidenced.

The rest of it is a bit long, and a bit wordy, and much of it would be better used in the defendant's witness statement.

The defence should be a series of short, sharp legal points. Leave the narrative of who did what to the WS stage.

Somewhere in your defence you should include the Jopson vs Homeguard case where around para 19 or 20 of the judgment, the judge stated that loading and unloading is not parking. The transcript is available online so you should quote the case number, B9GF0A9E, and the judge's comments, plus the fact that this was an appeal case so the judgment is persuasive on the lower courts.

Coupon-mad

That's not the Template Defence.  That's an old one from 2018.

Which PPC and which roboclaim solicitor?

I have drafted a defence after court paper were issued for a PCN back in 2015. 

Can't be 2015. Please check?

Le_Kirk

If it was 2015, you are clear and clean due to the six-year statutory limitation period!  Also, who is the defendant?  If it is Mum are you compiling the defence on her behalf?  If so, it will have to be in her name and she will have to sign it.  As indicated by @Coupon-mad you have used the wrong statement of truth probably because you have found an old template defence.

MsSLP

Sorry, no it's 2018. Apologies for the confusion.  

I had another one to deal with from the same location (whilst unloading shopping!) and mixed up the dates ...I believe that one has been dropped now though due to the six-year statutory limitation period.  

This one is definitely 2018.  

Thank you all for the guidance so far - I am currently amending the draft and will then repost for further feedback.  

MsSLP

Fruitcake said:

You would be better using whole paragraph numbers rather than sub-para numbers.

A minor point, but your first para might be better written as,

1.2  As registered keeper of the vehicle the Defendant has notified the Claimant and their legal representative on no fewer than six occasions prior to commencement of court proceedings .The that the claimant has had been informed of the driver’s details. This included the  , including full name and serviceable address of the driver via email, phone and post in response to letters received from the claimant pursuing this PCN – all of which can be evidenced.

The rest of it is a bit long, and a bit wordy, and much of it would be better used in the defendant's witness statement.

The defence should be a series of short, sharp legal points. Leave the narrative of who did what to the WS stage.

Somewhere in your defence you should include the Jopson vs Homeguard case where around para 19 or 20 of the judgment, the judge stated that loading and unloading is not parking. The transcript is available online so you should quote the case number, B9GF0A9E, and the judge's comments, plus the fact that this was an appeal case so the judgment is persuasive on the lower courts.

Thanks for this feedback.  Ye, I think I got a bit carried away with the narrative - and yes should save this for the witness statement.  I'm just redrafting to make it more succinct, will look up Jopson v Homeguard and add that in, and address the paragraph numbering too. 

Thanks again. 

MsSLP

Coupon-mad said:

That's not the Template Defence.  That's an old one from 2018.

Which PPC and which roboclaim solicitor?

I have drafted a defence after court paper were issued for a PCN back in 2015. 

Can't be 2015. Please check?

The PCN is from 2018.

Apologies, it was sign posted as a template, but it did say to plagiarize the defence in the post, so I did. 
Grateful for the guidance it did provide (even if I did go a little OTT on the narrative in the first instance!).  

KeithP

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.

Coupon-mad

MsSLP said:

Coupon-mad said:

That's not the Template Defence.  That's an old one from 2018.

Which PPC and which roboclaim solicitor?

I have drafted a defence after court paper were issued for a PCN back in 2015. 

Can't be 2015. Please check?

The PCN is from 2018.

Apologies, it was sign posted as a template, but it did say to plagiarize the defence in the post, so I did. 
Grateful for the guidance it did provide (even if I did go a little OTT on the narrative in the first instance!).  

But it isn't the right template for 2022. The right one is a sticky thread at the top.

MsSLP

Ok! I've edited my defence - I don’t think this has ended up shorter at all! 
I have taken out the additional narrative I added (in para 2, 4 and 11), but didn’t want to mess about too much with the other wording as this was lifted from other defences.  If there is anything else that doesn’t need to be in there, can I get some guidance on what else to remove please?

I added in reference to Jopson v Homeguard in para 11. I added in the interpretation that loading/unloading does not constitute parking and also added in para 12 – which states that the lease in the Jopson case provided an easement to the building – as does the Leasehold Agreement for the property where my PCN was issued, so thought it was worth including reference to this too?

I’ve renumbered the paragraphs, as suggested.  Some of the formatting has gone askew when copying over to this text box, but it's fine in the actual word document. 

Is there anything else anyone thinks should be included/changed – or is this good to go?  

I’m hoping to submit this Friday (towards the end of the day of course!) so I don’t worry about it all weekend!

 

Thanks again for taking the time to help me with this 😊

_____________________________________________________________________________________________________

IN THE COUNTY COURT BUSINESS CENTRE 

CLAIM No:

BETWEEN:

****

-and-

****

________________________________________

DEFENCE

________________________________________

The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all, based on the following:

Transfer of Liability 

 

1.      As registered keeper of the vehicle the Defendant notified the Claimant and the legal representative on no fewer than six occasions prior to commencement of court proceedings, that the claimant has been informed of the driver’s details.  This included the full name and serviceable address via email, phone and post in response to letters received from the claimant pursuing this PCN – all of which can be evidenced.  As the Defendant had not had any further correspondence until receiving court paper - it was presumed Transfer of Liability had taken place.

 

2.      Having provided the name and address of the driver (on numerous occasions, and prior to commencement of court proceedings as prescribed by POFA) the Defendant has no keeper liability under POFA and so it is requested that the claim be struck out.

Conduct of the Claimant

 

3.      ***Claimant*** also appear to have been issuing tickets on the entrance to this roadway which is in **LA** adoption area and so bringing into question their conduct in the management of this land, and their willingness to issue and pursue PCNs on adopted highway. 

 

4.      **Claimant** have been particularly obstructive when dealing with the Subject Access Request – the Claimant provided no information and the legal representative only provided partial information and failed to comply with UK GDPR by which they are bound.

Whilst this is not a matter for this court to deal with, it infers the inappropriate conduct and behaviour of the **Claimant’s** operation and the willingness to ignore the rules and regulations (POFA and GDPR) intended to protect consumers and the public, in the pursuit of these charges. 

 

Furthermore, the behaviour of both **Claimant** and **Legal** ltd has been unscrupulous and underhanded.  Letters have been deliberately vague and confusing and have not provided the relevant information for the Defendant to deal with. 

 

 

Authority to enforce

5.      The particulars of this claim refer to ***address***  The driver’s partner has held legal title under the terms of a lease to *no* since *year*.  At some point the managing agent contracted with the Claimant company to enforce parking conditions on the estate (a relationship that has since been terminated.)

 

6.      The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

 

7.      The Leaseholder Agreement to which the owner of the property has signed makes no reference to a third-party contract to enforce any parking regulation that supersedes the primary contract – and signs erected on the premises do not override or negate existing contract terms. 

 

Whilst there is reference to terms relating to parking of vehicles, there are no terms within the lease requiring lessees to pay penalties to third parties, such as the Claimant for not complying with the erected signs on site.  Nothing in the Leasehold Agreement confers any rights on any person pursuant to the Contracts (Rights of Third Parties) Act 1999.

 

8.      The driver, at all material times, parked in accordance with the terms of the Leasehold Agreement.  The erection of the Claimant’s signage, and the purported contractual terms conveyed therein, are incapable of binding the driver in any way, and their existence does not constitute a legally valid variation to the terms of the Leasehold Agreement.  Accordingly, the driver denies having breached any contractual terms whether express, implied or by conduct.

 

9.      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 Leaseholder is unaware of any such vote having been passed by the residents.

10.  Even though not a requirement of the Leasehold Agreement - the Car itself was registered with the landowner ***name*** and had been issued with a permit to park on the premises, as was a vehicle both the Leaseholder and the driver both frequently used – the car park is accessed by means of a fob, which had been provided to the driver by the Leaseholder.  Any vehicle parked therein are , therefore, de facto authorised to be there.

 

11.  The driver at the time was actually loading the vehicle at the time the PCN was issued - there is no reference in the Leasehold Agreement that loading is not permitted.  Furthermore, Jopson v Homeguard determined in an appeal case that loading and unloading does not constitute parking: 

 

Jopson v Homeguard (case no B9GF0A9E)

 

Paragraph 19:
The purported prohibition was upon “parking”, and it is possible to draw a real and sensible distinction between pausing for a few moments or minutes to enable 8 © Crown Copyright passengers to alight or for awkward or heavy items to be unloaded, and parking in the sense of leaving a car for some significant duration of time…

 

As this is an appeal judgement this sets the precedence that the legal interpretation of loading or unloading does not constitute parking - that interpretation should be applied in this instance. 

12.  In addition to the definition of loading and unloading being determined, Jopson v Homeguard also established that the lease contained an easement to the entrance of the building the Leasehold Agreement for *address* also includes a similar easement:

Schedule 2 – Included Rights:

Full right and liberty for the Tenant and all persons authorised by him (in

common with all other persons entitled to the like right) at all times and for all purposes

in connection with the permitted user of the Demised Premises to go pass and repass

over and through and along the Common Parts including the main entrances and the

passages landings halls lifts and staircases leading to the Demised Premises but

excluding any balcony terrace or patio forming part of the Building…

 

 

Abuse of Process: Costs on the claim - disproportionate and disingenuous

 

13.  The Defendant's vehicle clearly was 'authorised' as per the lease and 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.

 

14.  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.

 

15.  The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 as a binding precedent on the lower court. However, that only assists the Claimant if the facts of the case are the same, or broadly the same. In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas it is the Defendant's position that no such breach occurred in this case, because there was no valid contract, and also because the 'legitimate interest' in enforcing parking rules for retailers and shoppers in Beavis does not apply to these circumstances. Therefore, this case can be distinguished from Beavis on the facts and circumstances.

 

16.  The Claimant, or their legal representatives, has added an additional sum of £60 to the original £100 parking charge, for which no explanation or justification has been provided. Schedule 4 of the Protection of Freedoms Act, at 4(5), states that the maximum sum which can be recovered is that specified in the Notice to Keeper, which is £100 in this instance. It is submitted that this is an attempt at double recovery by the Claimant, which the Court should not uphold, even in the event that Judgment for Claimant is awarded.

 

17.   In summary, the Claimant's particulars disclose no legal basis for the sum claimed and it is the Defendant's position that the poorly pleaded claim discloses no cause of action and no liability in law for any sum at all. The Claimant's vexatious conduct from the outset has been intimidating, misleading and indeed untrue in terms of the added costs alleged and the statements made, in trying to justify the unjustifiable.

 

 

 

Summary

 

18.  For all or any of the reasons stated above, the Court is invited to dismiss the Claim in its entirety, and to award the Defendant such costs as are allowable on the small claims track, pursuant to Civil Procedure Rule 27.14. Given that the claim is based on an alleged contractual parking charge of £100 - already significantly inflated and mostly representing profit, as was found in Beavis - but the amount claimed on the claim form is inexplicably £214.48, the Defendant avers that this inflation of the considered amount is a gross abuse of process.

Given that it appears that this Claimant's conduct provides for no cause of action, and this is intentional and contumelious, the Claimant's claim must fail.

 

19.  Accordingly, the Court is invited to make an Order of its own initiative, dismissing this claim in its entirety using its case management powers pursuant to Civil Procedure Rule 3.4. and to allow such Defendant's costs as are permissible under CPR 27.14 on the indemnity basis, taking judicial note of the wholly unreasonable conduct of this Claimant.

"I believe the facts contained in this Defence Statement are true."

 Signed: *****

______________________________________________________________________________________________________

 

Coupon-mad

That's still not based on the 2022 Template Defence.