Residential Parking Charge - Advice Please

Coupon-mad

Remove it.  No copy is needed anything like yet anyway, so don't tell them!

womblecat

Thank you I'll completely remove paragraph 4.
Would you include it as part of the standard defence template or would you use the shorter template by Bargepole about key fobs?

Le_Kirk

As I said yesterday, remove anything about the lease being missing and use the standard defence template adding anything  useful from the residential defence example that does not duplicate parts from the standard defence template.

womblecat

Thanks for the advice. I've removed para 4 regarding not having the lease, the rest is the same apart from I have added points 6 & 7. After point 10 the defence goes back to the standard template at the point "The claimant may rely on Parkingeye vs Beavis". Please let me know if there is anything else you think I should change? Otherwise I will print it and sign on Monday.

Oh, something I forgot to mention earlier, I got the photos from the SAR - the quality of the photos is so low that you can only make out the words "No unauthorised parking" clearly on the sign - is this worth mentioning or the photo just to prove that the signage was there? 

2. It is admitted that the Defendant was the registered keeper and driver of the vehicle in question.

3. The Defendant had an Assured Shorthold Tenancy Agreement with XXX(Lettings Agent) for XXX, which commenced on XXX and expired on xxx. The tenancy agreement included 1 x Parking Space in the car park underneath the block of flats, accessed via roller shutters.

4. The signage displayed by the Claimant on entry to the underground car park specifies “No unauthorised parking”. The underground car parking area contains parking spaces demised to residents. 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. 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. The Defendant had been displaying a permit out of courtesy, rather than an obligation, however this had slipped down the dashboard causing the expiry date to not be visible.

6. It is denied that the Defendant was in breach of any parking conditions or was not permitted to park in circumstances where an express permission to park had been granted to the Defendant permitting their vehicle to be parked by the current occupier and leaseholder of XXX, whose tenancy agreement permits the parking of vehicle(s) on land. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms or verbal requests. The Shorthold Tenancy Agreement entitled the defendant to 1 x parking space without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle or the requirement to display a parking permit.

7. The Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease.

Accordingly, it is denied that:
7.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant
7.2. there was any obligation (at all) to display a permit; and
7.3. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

8. Further and in the alternative, the signs refer to 'No Unauthorised Parking’, and suggest that by parking without authorisation, motorists are contractually agreeing to a parking charge of £90. This is clearly a nonsense, since if there is no authorisation, there is no offer, and therefore no contract.

9. The Defendant's vehicle clearly was 'authorised' as per the lease and the use of the key fob for accessing the car park, 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 £90 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.

Coupon-mad

womblecat said:

Thanks for the advice. I've removed para 4 regarding not having the lease, the rest is the same apart from I have added points 6 & 7. After point 10 the defence goes back to the standard template at the point "The claimant may rely on Parkingeye vs Beavis". Please let me know if there is anything else you think I should change? Otherwise I will print it and sign on Monday.

But paragraph 4 in the Template Defence starts:

"4. The facts in this defence come from the Defendant's own knowledge and honest belief.  To pre-empt the usual template responses from this serial litigator... blah blah"

womblecat

Apologies, my next two points came from Bargepole's defence (paras 11 and 12 below), then para 13 goes back to "the facts in this defence..." as you've said above.

11. 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.

12. The Claimant, or their legal representatives, has added an additional sum of £60 to the original £90 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 £90 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  

Coupon-mad

But both of those points are already lower in the template. It's repetition.

womblecat

Thank you, deleted points 11 & 12, now goes from my point 10 into the "The facts in this defence..." paragraph.

Unless there is anything else I'll print/sign and send it after the weekend.
Thank you all for your help.

womblecat

Morning all, This week I received the Claimant's DQ in the post, however I have not been sent mine by the Court yet. I saw on another post to check the MCOL site and the last activity on there is that my defence was received on 7/2.

Do I just keep waiting til the Court sends me one or am I better to download one and fill it out? 
Cheers

B789

womblecat said:

Do I just keep waiting til the Court sends me one or am I better to download one and fill it out? 
Cheers

You can just download it and complete it yourself.

Have you read this thread which gives you some idea about how this will progress as it is from the bottom-swelling DCB Legal and their equally sub-sewer UKPC:

DCB LEGAL RECORD OF PRIVATE PARKING COURT CLAIM DISCONTINUATIONS