Recieved a Claim form from UKPC need help on how to proceed

Kellavra

lol thank you i know it is... im just saying mine for ease tbh... everything ive done and written has been in her name so far. in the defence i write the defendant. 

Kellavra

My Wifes Defence is below. 

Kindly let me know if its sufficient or if theres anything i should change.

DEFENCE

 

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

 

1.1 The Claimant failed to follow Pre-Action protocol and send a letter before claim. 

 

2. The Particulars of Claim on the N1 Claim Form refer to 'Parking Charge(s)' incurred on 28.08.2020. 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.

 

3. The Particulars refer to the material location as Car Park Space. The Defendant is a guest of the leaseholder who has, since 2008, held legal title under the terms of a lease, to Flat No. XX at that location. At some point, the managing agents contracted with the Claimant company to enforce parking conditions at the estate.

 

4. The underground car parking area contains allocated parking spaces for every flat. 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.

 

5. Under the terms of the residents lease, a number of references are made to conditions of parking motor vehicles.

 In Schedule 3 para 9. The lease gives the benefit of the right to exclusive use of the allocated parking space for the purpose of parking one passenger private motor vehicle or light passenger motorcar derived commercial vehicle only contained in clause 13.2.8.1 of the transfer but subject as therein mentioned” 

 

5.1. 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.

 

6. 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.

 

7. 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.

 

8. 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.

 

8.1. 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 and their authorised guests.

 

8.2. 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.

 

9. 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.

 

10. 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.

 

11. 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 £276.04, the Defendant avers that this inflation of the considered amount is a gross abuse of process.

 

12. 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 and the court is invited to strike it out.

 

12.1. In the alternative, the Court is invited, under the Judge's own discretionary case management powers, to set a preliminary hearing to examine the question of this Claimant's substantial interference with easements, rights and 'primacy of contract' of residents at this site, to put an end to not only this litigation but to send a clear message to the Claimant to case wasting the court's time by bringing beleaguered residents to court under excuse of a contractual breach that cannot lawfully exist.

 

I believe that the facts stated in this Defence are true.

 

KeithP

It is now two and a half years since the Statement of Truth specification was changed.
The one you have shown us is out of date.

The Template Defence thread has the correct version, as does the second post of the NEWBIES thread.

Is your wife planning to include all the remaining paragraphs from the template into her Defence?

Kellavra

i have the main statement of truth, just hadnt added it.

shown below 

Statement of Truth

I believe that the facts stated in this defence 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.

And 

yes the remaining paragraphs from the template are going to be added to her defence. 

Coupon-mad

This is confusing because she hasn't used the Template Defence, which requires adding only a paragraph or two.  The Defendant only needs to write a very small section.

Please show us that draft (para 3 onwards only...just the added section, not the Template Defence repeated - because I don't need to check my own homework!  - but she does need to use it all).

Kellavra

Okay Find below! 

3.1 The defendant was a guest/spouse of the resident of the home. The permit Slipped off the dash and between the drivers door / seat. It is a Gated Underground Carpark with allocated Parking spaces that requires Secure fob entry. 

         3.2  The Terms of the lease Gives the owner an allocated car park space In Schedule 3 para 9. “The lease gives the benefit of the right to exclusive use of the allocated parking space for the purpose of parking one passenger private motor vehicle or light passenger motorcar derived commercial vehicle only contained in clause 13.2.8.1 of the transfer but subject as therein mentioned”

         3.3 There are no terms within the lease requiring lessees & by extension their guests to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same.

         3.4 The claimants signage states no Authorised parking but as a guest of the owner of the allocated parking space the defendants parking was clearly authorised due to primacy of contract, as per the Residents Lease. 

Coupon-mad

Great! Much better.

I'd put 'exclusive use' in bold. It is the killer phrase.

And when it comes to WS stage, later on, as well as her WS, the leasehold resident (you?) should also supply evidence - the entire lease - and a signed WS yourself - so there will be two witnesses, and you should both attend the hearing.

Kellavra

Thank you i intend to drag the MA into this as well and will be calling them in as witnesses to discuss the leasehold. Ive already threatened them with that and told them i intend to so i can put pressure on them to get it cancelled from their side. 

Umkomaas

Kellavra said:

Thank you i intend to drag the MA into this as well and will be calling them in as witnesses to discuss the leasehold. Ive already threatened them with that and told them i intend to so i can put pressure on them to get it cancelled from their side. 

I'd wager you won't get the chance to call them as witnesses, DCB Legal will discontinue well before any opportunity presents itself.  Read here:

https://forums.moneysavingexpert.com/discussion/6377263/dcb-legal-record-of-private-parking-court-claim-discontinuations/p1

But, your wife must keep going through each and every phase demanded by the court process. Not the time for any complacency. 

Kellavra

Got an Email from DCB rather than from the courts with a Copy of their DQ however we havent recieved a DQ when i checked the MCOL website today i saw they had filed their DQ today does this mean i will be recieving one soon ? or should i  just download and send Ours in.