CCJ from Old Address - Seeking Advice on Draft Order and WS

Troublesum1

Hi All,

Thank you all for your input I really appreciate it. Taking everything you have said into account I have arrived at the following:

2. It is admitted that the Defendant was the registered keeper of the vehicle. The defendant was driving the vehicle at the time of interest and parked the car in the residential car park as de facto authorised in the tenancy agreement

Assuming this is fine.

3.1 The defendant denies any contract with the claimant. The defendant has parked in allocated car park space in apartment complex as allowed by tenancy agreement. The tenancy agreement between landlord and tenant makes no mention to any requirement of a permit for residents. The defendant argues that the tenancy agreement has primacy of contract over any other agreement between any parties regarding parking in this parking area

3.2 The defendant also argues that in the case a permit is deemed to have been required, the defendant did in fact own a permit, purchased out of courtesy rather than any contractual obligation

I think the above is good but do I need to add anything more specific about primacy of contract here?

Then I have chosen to keep all the points in the template defence to be safe but I'm considering removing the "POFA and CRA breaches" points as we've observed the PPC in this case has adhered to POFA - please let me know your thoughts on this.

Then in conclusions pertaining to costs:

26. In the matter of costs, the Defendant asks:

(a) at the very least, for standard witness costs for attendance at Court, pursuant to CPR 27.14, and

(b) for a finding of unreasonable conduct by this Claimant, seeking costs pursuant to CPR 46.5. 

(c) costs reserved by judge in set a side hearing of £275

Hopefully point 26c is referenced correctly. Honestly I'm a little unsure of 26a & 26b. Doing a little bit of reading on the witness costs it appears you need your employer to fill in some forms. I'm lucky that my work is quite flexible and I should be able to attend court without needing to take the day off - it would of course mean I need to work longer that day, is that still something worth claiming for here? With regards to 26b, I'm struggling to understand that one completely - would be grateful for any help there.

Once I clear up these questions I'll be ready to submit this defence well in time of the August 7th deadline, I'm assuming the quicker the better? Thanks again all.

Coupon-mad

Doing a little bit of reading on the witness costs it appears you need your employer to fill in some forms.

No you don't.  I think you have been reading about Tribunals or something else other than small claims.

26b just says you think they have been unreasonable from the start of the litigation and should be liable for all your costs.

Your defence looks fine except I'd save 3.2 for witness statement stage.  And if you knew nothing about the PCN and had no opportunity to appeal it at the time, say so in this defence.

Also - why not just use some of the wording crafted by bargepole as your point 3, as seen in a link I provide in the NEWBIES thread to an example residential defence?  He's legally qualified and it reads well, but don't use that whole defence because it is pre-DLUHC statutory CoP.

1505grandad

"....but I'm considering removing the "POFA and CRA breaches" points as we've observed the PPC in this case has adhered to POFA ...."

Unless the the experts disagree I would keep those paras in  -  i.e. some relate to the actual sum claimed is larger than in POFA etc.

Troublesum1

Coupon-mad said:

Doing a little bit of reading on the witness costs it appears you need your employer to fill in some forms.

No you don't.  I think you have been reading about Tribunals or something else other than small claims.

26b just says you think they have been unreasonable from the start of the litigation and should be liable for all your costs.

Your defence looks fine except I'd save 3.2 for witness statement stage.  And if you knew nothing about the PCN and had no opportunity to appeal it at the time, say so in this defence.

Also - why not just use some of the wording crafted by bargepole as your point 3, as seen in a link I provide in the NEWBIES thread to an example residential defence?  He's legally qualified and it reads well, but don't use that whole defence because it is pre-DLUHC statutory CoP.

Thank you coupon. So I've had a look at some of bargpole's wording and shaped it into the following please let me know your thoughts?

The Defendant had been a leaseholder of the flat at X since March 2018 – June 2021, and UKCPM were brought in to operate a permit scheme in 2019. The residential car park can only be accessed by via a gate, all residents with a permit were given means to access via said gate. Some spaces are numbered, and allocated to specific flats, while the rest are unmarked, and available on a first come, first served basis. The defendant parked in a numbered bay.

The Defendant’s lease makes no mention to parking restrictions and therefore de facto grants them a right to park subject to vehicles being taxed and roadworthy, with no commercial vehicles, caravans or trailers permitted.

The Defendant’s case is any agreement between Landlord or Managing Agent and Claimant had to be consistent with the lease terms, and this was not, it would have required a properly executed variation of lease. The Defendant references the case Jopson, Noor, and Parkinson. 

The defendant would also like to remark that the PCN was not a windscreen PCN and was issued as a NTK which was delivered after the date of the Defendant moving to another residence, therefore the defendant had knew nothing about the PCN and had no opportunity to appeal it at the time.

I'm a little unsure about the gate part. The parking area was a closed area but the gate that closed the area was mainly out of service (whether by design or malfunction). I'm sure the intention was that those with permits would have key fobs or a code for the gate. I feel like I could get away with having that in the defence but it also may not be worth it.

Coupon-mad

I think leave the gate in. The Claimants have no idea either way!  Only you are a true witness.  That defence is better.

All paragraphs need a number.

These are three different cases and bargepole cites them properly; don't try to shorten his sentences:

The Defendant references the case Jopson, Noor, and Parkinson. 

1505grandad

"....therefore the defendant (had) knew nothing about the PCN and had no opportunity to appeal it at the time."

Troublesum1

Again many thanks @Coupon-mad, @1505grandad

Here is what my penultimate draft is looking like:

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.

2. It is admitted that the Defendant was the registered keeper of the vehicle. The defendant was driving the vehicle at the time of interest and parked the car in the residential car park as de facto authorised in the tenancy agreement

3.1 The Defendant had been a leaseholder of the flat at X since March 2018 – June 2021, and UKCPM were brought in to operate a permit scheme in 2019. The residential car park can only be accessed by via a gate, all residents with a permit were given means to access via said gate. Some spaces are numbered, and allocated to specific flats, while the rest are unmarked, and available on a first come, first served basis. The defendant parked in a numbered bay.

3.2 The Defendant’s lease makes no mention to parking restrictions and therefore de facto grants them a right to park subject to vehicles being taxed and roadworthy, with no commercial vehicles, caravans or trailers permitted.

3.3 The Defendant’s case is any agreement between Landlord or Managing Agent and Claimant had to be consistent with the lease terms, and this was not, it would have required a properly executed variation of lease. The Defendant references the cases Jopson, Noor, and Parkinson.

3.4 The defendant would also like to remark that the PCN was not a windscreen PCN and was issued as a NTK which was delivered after the date of the Defendant moving to another residence, therefore the defendant knew nothing about the PCN and had no opportunity to appeal it at the time

And then all the template defence would follow (adding the reserved costs from the set a side hearing in conclusion). Please let me know if you have any comments, I will aim to get this sent out by the end of the day really. 

Coupon-mad

The Defendant references the cases Jopson, Noor, and Parkinson.

These mean nothing to a Judge.  Full citations needed.

Troublesum1

Coupon-mad said:

The Defendant references the cases Jopson, Noor, and Parkinson.

These mean nothing to a Judge.  Full citations needed.

Thank you coupon. So I think I initially found the wrong bargpole thread when I was making this defence. I went back and found the one I think you were originally referring to. So my point 3 now doesn't reference those cases at all and looks like this:

3.1 The Defendant had been a leaseholder of the flat at X since March 2018 – June 2021, and UKCPM were brought in to operate a permit scheme in 2019. The residential car park can only be accessed by via a gate, all residents with a permit were given means to access via said gate. Some spaces are numbered, and allocated to specific flats, while the rest are unmarked, and available on a first come, first served basis. The defendant parked in a numbered bay.

3.2 The Defendant’s lease makes no mention to parking restrictions and therefore de facto grants them a right to park subject to vehicles being taxed and roadworthy, with no commercial vehicles, caravans or trailers permitted.

3.3 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.

3.4 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.

3.5 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 Defendant is unaware of any such vote having been passed by the residents

3.6 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.

3.7 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.

3.8 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.

3.9 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 £xxx.xx, the Defendant avers that this inflation of the considered amount is a gross abuse of process.

3.10 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.

3.11 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.

3.12 The defendant would also like to remark that the PCN was not a windscreen PCN and was issued as a NTK which was delivered after the date of the Defendant moving to another residence, therefore the defendant knew nothing about the PCN and had no opportunity to appeal it at the time.

Am I good to keep all of that in? If I do should I still leave the rest of the template defence in (from point 4)? Many thanks again all

Coupon-mad

Remove 3.8 and 3.9 (out of date and no point trying) and the rest is all good to fit within the usual template defence.

As your deadline must be next week or later, then WAIT!  No rushing the defence early and this is why:

https://forums.moneysavingexpert.com/discussion/comment/80201586/#Comment_80201586

Whatever the DLUHC publish, I can pretty much guarantee that I will be editing the Template Defence.  You want the latest version!