Old Claim Form for unpaid PCN for incident over 3 years ago

Coupon-mad

I think remove the bulk of stuff that says you had a 'right' to park (you didn't, perhaps?) and instead state that the operator failed to provide a permit in a timely manner or to act professionally and fairly, by simply adding the Defendant's VRM to the electronic White List, despite knowing from the application that he (she?) had applied for a permit and was a genuine resident.  To sit on their hands, delay the paper permit, not add the car to the White List then send a ticketer to target that (known) resident's vehicle is disingenuous and plainly wrong.

Mouse007

Troublesum1 said:

The Tenant acknowledges they have been made aware that as part of the Landlord’s planning obligations (1.1. under Schedule 4 of the S106 Agreement) the Tenant or any resident or occupier of XXX is not permitted to use or apply for a permit to park a vehicle in a place designated in an Order made under section 45(2) of the Road Regulation Act 1984 (unless the occupant is the holder of a disabled person’s badge issued pursuant to section 21 of the Chronically Sick and Disabled Persons Act 1970).

Doesn't make any sense to me actually.

I think that means you may not apply for a permit to park in a disabled bay unless you have a blue badge.

Does the tenancy agreement mention use of common areas or did you have a parking bay allocated to your flat?

Troublesum1

Coupon-mad said:

I think remove the bulk of stuff that says you had a 'right' to park (you didn't, perhaps?) and instead state that the operator failed to provide a permit in a timely manner or to act professionally and fairly, by simply adding the Defendant's VRM to the electronic White List, despite knowing from the application that he (she?) had applied for a permit and was a genuine resident.  To sit on their hands, delay the paper permit, not add the car to the White List then send a ticketer to target that (known) resident's vehicle is disingenuous and plainly wrong.

I don't think my first draft defence has anything about my right to park so I'm assuming you're referring to the points @mouse has suggested I add. Let me know if I've understood that correctly. If so that's fine I can whip up a paragraph about that definitely. The building operators changed about 3 or 4 times whilst I lived there - will that go in my favour or go against me?

Again many thanks for everyone's help.

FYI my pronoun is he just for ease of comms.

Troublesum1

Mouse007 said:

Troublesum1 said:

The Tenant acknowledges they have been made aware that as part of the Landlord’s planning obligations (1.1. under Schedule 4 of the S106 Agreement) the Tenant or any resident or occupier of XXX is not permitted to use or apply for a permit to park a vehicle in a place designated in an Order made under section 45(2) of the Road Regulation Act 1984 (unless the occupant is the holder of a disabled person’s badge issued pursuant to section 21 of the Chronically Sick and Disabled Persons Act 1970).

Doesn't make any sense to me actually.

I think that means you may not apply for a permit to park in a disabled bay unless you have a blue badge.

Does the tenancy agreement mention use of common areas or did you have a parking bay allocated to your flat?

Nope. Nothing else on parking or on permits. I remember specifically they were not giving people their own bays, you just displayed a permit which would in turn allow you to park in the car park in any bay.

Mouse007

Troublesum1 said:

Mouse007 said:

Does the tenancy agreement mention use of common areas or did you have a parking bay allocated to your flat?

Nope. Nothing else on parking or on permits. I remember specifically they were not giving people their own bays, you just displayed a permit which would in turn allow you to park in the car park in any bay.

But what about use of common areas?

It might help for you to have a look at my son's defence here, there was no mention of parking in his AST either.

We followed up on these defence points in his Witness Statement with

31.    My AST (Exhibit 2) at condition 45 states “The Tenant will have access to the common areas with a non exclusive license (sic) in common with the other tenants of the Landlord”. Access means use and it was clearly the intention that this use including parking from the property particulars published by CSL and advertised on their website and Facebook pages (Exhibit 1) and my conversations with them.

32.    The AST does not include any requirements to obtain and display a permit or whitelist a VRN.

33.    My AST further states in the final paragraph “THE LANDLORD hereby agrees with the Tenant(s) that the Tenant(s)” ... “shall quietly possess and enjoy the premises” ... “without interruption” from the landlord or any “reversionary or other person”.   

34.    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. (Exhibit 11)

35.    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. (Exhibit 12)

36.    My AST takes primacy over any alleged contractual licence flowing from words on a sign.

and further on

57.    If this claim from PPS ostensibly authorised by CSL was authorised by Landlord Limited it would be a clear breach of my AST and a derogation of grant.

Troublesum1

Mouse007 said:

Troublesum1 said:

Mouse007 said:

Does the tenancy agreement mention use of common areas or did you have a parking bay allocated to your flat?

Nope. Nothing else on parking or on permits. I remember specifically they were not giving people their own bays, you just displayed a permit which would in turn allow you to park in the car park in any bay.

But what about use of common areas?

It might help for you to have a look at my son's defence here, there was no mention of parking in his AST either.

We followed up on these defence points in his Witness Statement with

31.    My AST (Exhibit 2) at condition 45 states “The Tenant will have access to the common areas with a non exclusive license (sic) in common with the other tenants of the Landlord”. Access means use and it was clearly the intention that this use including parking from the property particulars published by CSL and advertised on their website and Facebook pages (Exhibit 1) and my conversations with them.

32.    The AST does not include any requirements to obtain and display a permit or whitelist a VRN.

33.    My AST further states in the final paragraph “THE LANDLORD hereby agrees with the Tenant(s) that the Tenant(s)” ... “shall quietly possess and enjoy the premises” ... “without interruption” from the landlord or any “reversionary or other person”.   

34.    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. (Exhibit 11)

35.    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. (Exhibit 12)

36.    My AST takes primacy over any alleged contractual licence flowing from words on a sign.

and further on

57.    If this claim from PPS ostensibly authorised by CSL was authorised by Landlord Limited it would be a clear breach of my AST and a derogation of grant.

Thanks for this Mouse. I've had a whole day of training and work so have only just had a moment to look at this now. Unfortunately I see no mention of common areas or anything of the sort in the Tenancy Agreement. At this point I think I'm going to be heading down the route of not mentioning any right to park and drilling down on the operator's failure to provide a permit in a timely manner. 

I'm going to update my draft before I sleep and hopefully get some feedback from you guys in the morning, after which I will submit around midday given my deadline is 4pm..

Troublesum1

Mouse007 said:

Troublesum1 said:

The Tenant acknowledges they have been made aware that as part of the Landlord’s planning obligations (1.1. under Schedule 4 of the S106 Agreement) the Tenant or any resident or occupier of XXX is not permitted to use or apply for a permit to park a vehicle in a place designated in an Order made under section 45(2) of the Road Regulation Act 1984 (unless the occupant is the holder of a disabled person’s badge issued pursuant to section 21 of the Chronically Sick and Disabled Persons Act 1970).

Doesn't make any sense to me actually.

I think that means you may not apply for a permit to park in a disabled bay unless you have a blue badge.

Does the tenancy agreement mention use of common areas or did you have a parking bay allocated to your flat?

Just did a bit more digging into this one and I think this is basically the operator/landlord's way of saying the tenant is not entitled to a council parking permit - as we were not. It was part of the crookery of the whole situation that despite having to pay council tax we were not allowed to apply for parking permits from the council. Some type of deal the flat owners made with the council, I never fully understood it. All this meant you were forced to buy the inflated parking permit if you wanted to park anywhere near your place of residence.

Troublesum1

So my updated 2 & 3 would be the following

2.       It is admitted that the Defendant was the registered keeper of the vehicle in question but liability is denied. The identity of the driver at the material time is unknown to the Defendant. The Defendant was not the only insured driver of the vehicle in question and is unable to recall who was or was not driving on that unremarkable day, almost four years ago.

3. Defendant does not recall the PCN in question nor any correspondence related to the PCN. Defendant kept spare key for car which was accessible by many family members and close friends. The location of the incident was the Defendant's place of residence so any driver could have plausibly parked the vehicle in an attempt to return the vehicle to the owner. The tenancy agreement the Defendant signed with operator of the premises states that the Defendant was unable to apply for a council parking permit which in turn forced the Defendant to have to pay for the operator's parking permit if the Defendant wanted to park their vehicle in a reasonable distance to their place of residence. The Defendant was told no parking permits were available at the time of signing the tenancy agreement in March 2018 and was subsequently put on the waiting list. The defendant did not receive this parking permit until December 2019 over 18 months later. The operator clearly did not act professionally, failing to provide the parking permit in a reasonable amount of time. The defendant notes during this time period the car park itself was generally under capacity and made several remarks about this to the operator. The operator has acted unfairly by delaying this paper permit for no good reason and not providing any alternative to accommodate a genuine resident with willingness to pay for the permit.

---

Please let me know your thoughts on this, must admit I've typed this up after a long day at work, it probably needs a bit of work. Many thanks all.

Coupon-mad

Looks good to me.

Troublesum1

Coupon-mad said:

Looks good to me.

Thank you. I think I only have 2 questions at this point (maybe 3 but the last is a simple confirmation):

1.  Point 7 in the template defence which references the banned fees added by the PPC, should I be editing that point to show the fees in my case? For example: 7. Following on from where it is noted that the Claimant has elected not to comply with the 'keeper liability' requirements set out in PoFA, Claimant has included a clear falsehood in their POC which were signed under a statement of truth by Yasmin Mia - Claimant’s legal representative who should know (as the Claimant undoubtedly does) that it is untrue to state that the Defendant is 'liable as keeper'. This can never be the case with a Highview claim because this parking firm, same as any Group Nexus company, have never used the POFA 2012 wording, of their own volition. Not only does the POC include this misleading untruth, but the Claimant has also added an unidentified sum in false 'damages' to enhance the claims.  So sparse is their statement of case, that the Claimant has failed to even state any facts about the alleged breach or the amount of the parking charge that was on the signage, because it cannot have been over £100. Which then leads to the question of how they arrive at the Amount Claimed for a Total of £213.28 (The Defendant has excluded the £35 Court Fee & £50 Legal representative's costs for the purposes of this defence point) 
2. Should I split point 3 in my defence up into smaller points? If yes could anyone suggest optimal formatting?
   
3. After I've finalised this defence I'm assuming I submit this via the mcol page where it says "Start Defence"?

For question 2 I guess an example could be:

3. i) Defendant does not recall the PCN in question nor any correspondence related to the PCN. Defendant kept spare key for car which was accessible by many family members and close friends. The location of the incident was the Defendant's place of residence so any driver could have plausibly parked the vehicle in an attempt to return the vehicle to the owner. 

ii) The tenancy agreement the Defendant signed with operator of the premises states that the Defendant was unable to apply for a council parking permit which in turn forced the Defendant to have to pay for the operator's parking permit if the Defendant wanted to park their vehicle in a reasonable distance to their place of residence. The Defendant was told no parking permits were available at the time of signing the tenancy agreement in March 2018 and was subsequently put on the waiting list. The defendant did not receive this parking permit until December 2019 over 18 months later. The operator clearly did not act professionally, failing to provide the parking permit in a reasonable amount of time. The defendant notes during this time period the car park itself was generally under capacity and made several remarks about this to the operator. The operator has acted unfairly by delaying this paper permit for no good reason and not providing any alternative to accommodate a genuine resident with willingness to pay for the permit.

Again many thanks for the support, will be submitting this soon, fingers crossed it leads to the right result.