DCB Legal Claim form - private parking ticket issued at main residence

1505grandad

As above  -  also if using non-driver make sure you do not state under a SoT similar to the following:-

"10.  The Defendant, at all material times, stopped their vehicle in accordance with the terms granted by the lease."

schmuel

Thanks both for the comments. The truth is I'm not sure who the last person to drive the car was, it could have been me or my wife; so perhaps it's better to just delete paras 3 to 5?

Coupon-mad

Yes and change 10 to say:

It is not known who was driving on this occasion and the Claimant has provided no evidence regarding any alleged keeper (or alternatively, driver) liability.  Both are denied. The Defendant and/or his wife, at all material times...

Trainerman

If you do not know who was driving, can you reasonably claim that it was there for loading (your point 7) ?

Coupon-mad

I think they can.  Maybe saying this would only have been for that purpose.

schmuel

Thanks all. I have redrafted the "facts as known to the Defendant" section as follows (ignore the numbering, it's started it at one again after I copied it over):

1.     It is admitted that the Defendant is the registered keeper of the vehicle in question. The vehicle was insured on the date in question with two named drivers permitted to use it.

2.     The Particulars refer to the material location as 'London Wharf, Hackney, London, E2 9BD’.  The Defendant has, since mid-2005, held legal title under the terms of a lease, to Flat No. 3A at that location. At some point, the managing agents contracted with the Claimant company to enforce parking conditions at the estate.

3.     The location includes two separate parking areas: the first, at ground level, comprises 12 unallocated spaces and has open access from the street; the second, at basement level, comprises approximately 10 allocated spaces which are enclosed by an electronic gate, with fob access provided for leaseholders and residents. The Claimant enforces parking conditions at the ground level area but not at the basement level area.

4.     The Defendant and his wife habitually park their car in the basement area due to the enhanced security provided by the security gate and the absence of third-party parking enforcement. However, the Claimant (or one of their agents) affixed a “Parking Charge” notice to the vehicle in question on 13 June 2019 while the vehicle was stopped in the ground level car park. It is admitted that on this date the Defendant’s vehicle was stopped at this location for the purposes of loading the vehicle.

5.     Under the terms of the Defendant’s lease, a number of references are made to conditions of access of vehicles to the Estate for leaseholders.

a.     The Second Schedule, paragraph 1.(a), affords leaseholders the right from time to time to pass and repass with or without vehicles over the roadways forming part of the Estate.

b.     The Second Schedule, paragraph 2., affords leaseholders the right to use such facilities (if any) that may from time to time be designated by the Landlord for use by the tenants of the Block or of properties within the Estate.

c.     The Second Schedule, paragraph 5.(b), affords leaseholders the right in common with the Landlord and such lessees and occupiers of other flats in the Block as aforesaid and all other persons having the like right to pass and repass over and along the paths roads ways and grounds leading to and from the block and to use the common facilities (if any) available for use by the lessees of the Block in general.

6.     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.

7.     It is not known who was driving on this occasion and the Claimant has provided no evidence regarding any alleged keeper (or alternatively, driver) liability. Both are denied. The Defendant and/or his wife, at all material times, stopped their vehicle 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 ‘No Unauthorised Parking/Terms of Parking Apply at All Times’, and suggest that by parking without authorisation, motorists are contractually agreeing to a parking charge of £100. This is clearly a nonsense, since if there is no authorisation, there is no offer, and therefore no contract. 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.

10.  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.

11.  The Claimant, or their legal representatives, has added an additional sum of £108.92 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.

12.  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 £208.92, the Defendant avers that this inflation of the considered amount is a gross abuse of process.

Coupon-mad

Remove 11 and 12 which are a bit muddled and cover points already in the rest of the Template Defence.

I didn't see Jopson mentioned, did I miss it?

Mouse007

Unspecified use of common areas means you can do what you like and that includes parking, in addition to Jopson I think you should include:

N.    In Pace v Mr N C6GF14F0 [2016] it was found that the parking company could not override the tenant's right to park by requiring a permit to park.

and

N.    In Link Parking v Ms P C7GF50J7 [2016] it was also found that the parking company could not override the tenant's right to park by requiring a permit to park.

At WS stage you can then include these case transcripts from the parking prankster website

Le_Kirk

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 with not more than 10% objecting, pursuant to s37 of the Landlord & Tenant Act 1987, and the Defendant is unaware of any such vote having been passed by the residents.

Adds a bit of weight to it.

schmuel

Again, thanks so much for the advice, it's really appreciated.

I have made the suggested amends and additions, below:

1.     It is admitted that the Defendant is the registered keeper of the vehicle in question. The vehicle was insured on the date in question with two named drivers permitted to use it.

2.     The Particulars refer to the material location as 'London Wharf, Hackney, London, E2 9BD’.  The Defendant has, since mid-2005, held legal title under the terms of a lease, to Flat No. 3A at that location. At some point, the managing agents contracted with the Claimant company to enforce parking conditions at the estate.

3.     The location includes two separate parking areas: the first, at ground level, comprises 12 unallocated spaces and has open access from the street; the second, at basement level, comprises approximately 10 allocated spaces which are enclosed by an electronic gate, with fob access provided for leaseholders and residents. The Claimant enforces parking conditions at the ground level area but not at the basement level area.

4.     The Defendant and his wife habitually park their car in the basement area due to the enhanced security provided by the security gate and the absence of third-party parking enforcement. However, the Claimant (or one of their agents) affixed a “Parking Charge” notice to the vehicle in question on 13 June 2019 while the vehicle was stopped in the ground level car park. It is admitted that on this date the Defendant’s vehicle was stopped at this location for the purposes of loading the vehicle.

5.     In Laura Jopson vs Homeguard Securities case number B9GF0A9E, His Honour Judge J Harris QC determined that loading and unloading is not parking. This was an appeal court case and thus persuasive on the lower courts. The court transcript of that hearing and judgment, heard on appeal by HHJ Harris sitting at Oxford Court, will be provided at witness statement stage in support of this defence.

6.     Under the terms of the Defendant’s lease, a number of references are made to conditions of access of vehicles to the Estate for leaseholders.

a.     The Second Schedule, paragraph 1(a), affords leaseholders the right from time to time to pass and repass with or without vehicles over the roadways forming part of the Estate.

b.     The Second Schedule, paragraph 2., affords leaseholders the right to use such facilities (if any) that may from time to time be designated by the Landlord for use by the tenants of the Block or of properties within the Estate.

c.     The Second Schedule, paragraph 5(b), affords leaseholders the right in common with the Landlord and such lessees and occupiers of other flats in the Block as aforesaid and all other persons having the like right to pass and repass over and along the paths roads ways and grounds leading to and from the block and to use the common facilities (if any) available for use by the lessees of the Block in general.

7.     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.

8.     In Pace v Mr N case number C6GF14F0 [2016] it was found that the parking company could not override the tenant's right to park by requiring a permit to park. Furthermore, in Link Parking v Ms P case number C7GF50J7 [2016] it was also found that the parking company could not override the tenant's right to park by requiring a permit to park. The court transcripts of these hearings and judgments will be provided at witness statement stage in support of this defence.

9.     It is not known who was driving on this occasion and the Claimant has provided no evidence regarding any alleged keeper (or alternatively, driver) liability. Both are denied. The Defendant and/or his wife, at all material times, stopped their vehicle 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.

10.  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 with not more than 10% objecting, pursuant to s37 of the Landlord & Tenant Act 1987, and the Defendant is unaware of any such vote having been passed by the residents.

11.  Further and in the alternative, the signs refer to ‘No Unauthorised Parking/Terms of Parking Apply at All Times’, and suggest that by parking without authorisation, motorists are contractually agreeing to a parking charge of £100. This is clearly a nonsense, since if there is no authorisation, there is no offer, and therefore no contract. 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.

12.  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.