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

Coupon-mad

Troublesum1 said:

Good evening all,

So my court date has been set for this matter, for 9th Novemember 2023 at 10am, with a time estimate of 3 hours. Apologies for my lack of updates I did find this out a few weeks ago but I'm currently preparing for the birth of my firstborn (due in less than a week) as well as normal adulting. So today I received the Claimant's witness statement. In which the claimant notifies the court that they will not be attending the final hearing. The witness statement is fairly large but reading through it the crux of their argument against my defence is as follows:

1. They have authority to manage and enforce parking rules via a Landholder agreement
2. T&C state valid permit must be clearly displayed in front windscreen at all times
3. They make mention to not having seen the tenancy agreement that I (the defendant) refer to
4. Then, maybe unfortunately for me, they say "the Defendant's Landlord was not entitled to give any rights to Defendant in relation to parking or otherwise, pursuant to the terms of the Lease dated 19th January 2017"

So point (4.) is quite worrying to me. The document they have attached to the WS is about 40-50pgs and after skimming through it I see nothing really of note. in the WS the part of the lease they quote is the following: "Clause 12.1 of the Lease states 'the Tenant shall not grant to any third party any rights of any nature over the premises." So by Tenant in this lease they are referring to my Landlord a this time. On the face of it that seems quite damning for me. Only thing maybe I can argue is I've taken my tenancy agreement as the authority on the matter and had no way of knowing the terms of the lease between my Landlord and their Landlord?

Any help would be greatly appreciated. I guess I need to submit my WS soon too - thanks in advance all!

Have a look at the WS by @_blueberry_ and @vincentvega27 because there is a new CCJ set aside case of CEL v Chan that supports the view that the entire inadequately pleaded claim should have been struck out at the CCJ set aside hearing.

You also need to put your Tenancy Agreement in as an Exhibit.

And Jopson v Homeguard too.

The fact they've only just sprung on you (ambushed you with) an unrelated lease that you were not party to, supports the view that the claim was not properly pleaded at the outset and gave you little opportunity to understand the allegations.

Also, does the Head Lease also say something like: “This Agreement shall not operate to confer any rights on any third party. A person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement”?  If so, then it can be argued that the third party parking firm has no rights either.  Certainly less than you do/did as a resident!

Have a look at the wording this person used in their defence, which could be amended to be used in your WS, if your tenancy agreement has comparable clauses:
https://forums.moneysavingexpert.com/discussion/comment/80051834/#Comment_80051834

Also go through their evidence with a fine tooth comb. For example:

Is the landowner agreement with UK Car Park Management or is it with the wrong name (we've seen one before in the name UK Car Parking Management Ltd, a dormant firm).

Look at everything.

Are the dates of their photos of the signage in situ relevant dates, or old images (or are the photos undated?).

Is the landowner agreement signed by the landowner (site freeholder) or just the Managing Agents, if the latter is there any evidence of authority (maybe in that Head Lease?) flowing from the landowner to the MA to give them the right to set regulations? What sort of regulations?

And assuming you eventually saw a copy of the POC, did Gladstones add a massive 10.25% interest? If so, that looks extortionate as the court rules cap it at 8% and we have wording about that. Search the forum for:

Gladstones deplorable 10.25% interest

Troublesum1

Coupon-mad said:

Troublesum1 said:

Good evening all,

So my court date has been set for this matter, for 9th Novemember 2023 at 10am, with a time estimate of 3 hours. Apologies for my lack of updates I did find this out a few weeks ago but I'm currently preparing for the birth of my firstborn (due in less than a week) as well as normal adulting. So today I received the Claimant's witness statement. In which the claimant notifies the court that they will not be attending the final hearing. The witness statement is fairly large but reading through it the crux of their argument against my defence is as follows:

1. They have authority to manage and enforce parking rules via a Landholder agreement
2. T&C state valid permit must be clearly displayed in front windscreen at all times
3. They make mention to not having seen the tenancy agreement that I (the defendant) refer to
4. Then, maybe unfortunately for me, they say "the Defendant's Landlord was not entitled to give any rights to Defendant in relation to parking or otherwise, pursuant to the terms of the Lease dated 19th January 2017"

So point (4.) is quite worrying to me. The document they have attached to the WS is about 40-50pgs and after skimming through it I see nothing really of note. in the WS the part of the lease they quote is the following: "Clause 12.1 of the Lease states 'the Tenant shall not grant to any third party any rights of any nature over the premises." So by Tenant in this lease they are referring to my Landlord a this time. On the face of it that seems quite damning for me. Only thing maybe I can argue is I've taken my tenancy agreement as the authority on the matter and had no way of knowing the terms of the lease between my Landlord and their Landlord?

Any help would be greatly appreciated. I guess I need to submit my WS soon too - thanks in advance all!

Have a look at the WS by @_blueberry_ and @vincentvega27 because there is a new CCJ set aside case of CEL v Chan that supports the view that the entire inadequately pleaded claim should have been struck out at the CCJ set aside hearing.

You also need to put your Tenancy Agreement in as an Exhibit.

And Jopson v Homeguard too.

The fact they've only just sprung on you (ambushed you with) an unrelated lease that you were not party to, supports the view that the claim was not properly pleaded at the outset and gave you little opportunity to understand the allegations.

Also, does the Head Lease also say something like: “This Agreement shall not operate to confer any rights on any third party. A person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement”?  If so, then it can be argued that the third party parking firm has no rights either.  Certainly less than you do/did as a resident!

Have a look at the wording this person used in their defence, which could be amended to be used in your WS, if your tenancy agreement has comparable clauses:
https://forums.moneysavingexpert.com/discussion/comment/80051834/#Comment_80051834

Also go through their evidence with a fine tooth comb. For example:

Is the landowner agreement with UK Car Park Management or is it with the wrong name (we've seen one before in the name UK Car Parking Management Ltd, a dormant firm).

Look at everything.

Are the dates of their photos of the signage in situ relevant dates, or old images (or are the photos undated?).

Is the landowner agreement signed by the landowner (site freeholder) or just the Managing Agents, if the latter is there any evidence of authority (maybe in that Head Lease?) flowing from the landowner to the MA to give them the right to set regulations? What sort of regulations?

And assuming you eventually saw a copy of the POC, did Gladstones add a massive 10.25% interest? If so, that looks extortionate as the court rules cap it at 8% and we have wording about that. Search the forum for:

Gladstones deplorable 10.25% interest

Thank you very much coupon. I will have a deep dive into this tomorrow morning.

My WS needs to be in "no later than fourteen days before the hearing" so if the hearing is on the 9th November am I correct in saying I need to email out my WS by the 26th October? 

Thanks for any help - I will post an update as to what I find in the claimant WS tomorrow.

Troublesum1

Coupon-mad said:

Have a look at the WS by @_blueberry_ and @vincentvega27 because there is a new CCJ set aside case of CEL v Chan that supports the view that the entire inadequately pleaded claim should have been struck out at the CCJ set aside hearing.

You also need to put your Tenancy Agreement in as an Exhibit.

And Jopson v Homeguard too.

So as always thank you coupon you are a star. I've got straight onto this and thought I would address a couple of points to start with.

I've had a look at the CEL v Chan case. Are you suggesting the sheer precedent of a set aside case also striking out the claim could help me here? If so that would be nice. Having looked at the case notes it seems different to my case in that the claimant has failed to clarify the exact breach of contract the defendant has committed which is why the claim was struck out. In my case the alleged breach of contract is clear (failure to display windscreen permit). Where I believe my set aside case was particularly strong was their failure to reasonably search for my correct address. Not sure I could extend that to argue the whole claim should be struck out though.

Jopson v Homeguard seems to be good foundation to reinforce the primacy of my Tenancy Agreement, although the main issue for me there is my TA makes very little mention to parking at all. 

Looking at other avenues for defence, isit possible I should revisit the inadequate signage defence? Though the signs are certainly in the parking lot, the claimant hasn't provided the best pictures of the sign in situ and the signs are all placed quite high up on a pole. I'll quote my post with the pictures below:

Troublesum1 said:

 .

I'm going to get a coffee then move on to going through the Head Lease with a fine-tooth comb

UncleThomasCobley

Troublesum1 said:

In my case the alleged breach of contract is clear (failure to display windscreen permit).

Do the PoC on your claim form specifically state “failure to display windscreen permit”? Or, do they just state that you breached the terms?

Coupon-mad

 In my case the alleged breach of contract is clear (failure to display windscreen permit).

No it isn't.

You are missing the point that Chan looks at the POC.  Your POC do not state the breach.  Same as the Chan case and yes, we are telling EVERYONE that this appeal case will see claims struck out.

Yours is the same.

Troublesum1

UncleThomasCobley said:

Troublesum1 said:

In my case the alleged breach of contract is clear (failure to display windscreen permit).

Do the PoC on your claim form specifically state “failure to display windscreen permit”? Or, do they just state that you breached the terms?

Coupon-mad said:

 In my case the alleged breach of contract is clear (failure to display windscreen permit).

No it isn't.

You are missing the point that Chan looks at the POC.  Your POC do not state the breach.  Same as the Chan case and yes, we are telling EVERYONE that this appeal case will see claims struck out.

Yours is the same.

Thank you both, sorry I am slightly confused, I have never seen a claim form for this case since it was a result of a set aside from a default judgement which was served at a wrong address - where are you seeing the POC? Or where do I need to look to see the POC? 

Coupon-mad

We assumed you'd asked the CCBC for a copy of the POC at the start of all this. Most Defendants setting aside a CCJ do.

Ring the CCBC (now called the CNBC) at Northampton now and ask to be emailed the Particulars of Claim now urgently.

1505grandad

Hopefully the following observations are not relevant (FWIW) re PoC details:-

Not wishing to muddy the waters but OP's opening post states in a draft WS(?):_

"2.2.  I had an active parking permit, registered with the flat management at the time of the alleged offence and given the opportunity I would have appealed the ticket on this basis"

Then stated the following in this post  -  https://forums.moneysavingexpert.com/discussion/comment/80071252/#Comment_80071252

 "They claim my defence(?) for the ticket itself is invalid as the signage clearly states a permit must be shown on windscreen therefore merely owning a permit is not enough"

Troublesum1

Coupon-mad said:

We assumed you'd asked the CCBC for a copy of the POC at the start of all this. Most Defendants setting aside a CCJ do.

Ring the CCBC (now called the CNBC) at Northampton now and ask to be emailed the Particulars of Claim now urgently.

Sorry coupon you are very right, I did request it:

"THE DRIVER OF THE VEHICLE WITH REGISTRATION XXX (THE 'VEHICLE') PARKED IN BREACH OF THE TERMS OF PARKING STIPULATED ON THE SIGNAGE (THE 'CONTRACT') AT XXX, ON 01/06/2021, 04/06/2021, THUS INCURRING THE PARKING CHARGES (THE 'PCN'S'). THE PCN'S WERENOT PAID WITHIN 28 DAYS OF ISSUE. THE CLAIMANT CLAIMS THE UNPAID PCN'S FROM THE DEFENDANT AS THE DRIVER/KEEPER OF THE VEHICLE. DESPITE DEMANDS BEING MADE, THE DEFENDANT HAS FAILED TO SETTLE THEIR OUTSTANDING LIABILITY. THE CLAIMANT CLAIMS £100 PER PCN, £70.00 PER PCN CONTRACTUAL COSTS PURSUANT TO THE CONTRACT AND PCN TERMS AND CONDITIONS, TOGETHER WITH STATUTORY INTEREST OF £34.87 PURSUANT TO S69 OF THE COUNTY COURTS ACT 1984 AT 8.00% PER ANNUM, CONTINUING AT £0.07 PER DAY."

A lot of the literature in my original defence references the permit, will I still be ok to use this defence from the CEL v Chan case?

Coupon-mad

Yes. This is for everyone to use.