£3000 County Court Claim from Park Direct UK

Coupon-mad

Just remembered your claim isn't filed by solicitors is it, so remove the word in bold:


16.  In view of it having been entirely within the Claimant's Solicitors' gift 

CluelessDefendant

Coupon-mad said:

Just remembered your claim isn't filed by solicitors is it, so remove the word in bold:


16.  In view of it having been entirely within the Claimant's Solicitors' gift 

Good spot

Galloglass

I'm jumping ahead a bit as the claim may be struck out due to the lack of particulars but if it isn't and if the judge indicates he will allow the Claimant to resubmit particulars, your key defence will be Primacy of Contract.

Primacy is a powerful defence as long as a) there hasn't been a change introduced by agreement/default or b) there isn't an "enabling" clause in your parent's agreement to allow later changes. As we haven't seen the text of the tenancy then we can't comment.

But when the Housing Officer calls you back, just get a copy of their current tenancy agreement and post it up here so we can check to see if the HA has changed the Agreements or there is the enabling clause. 

You don't want to be going to court with the other side producing a contract that has an enabling clause in it. Though in saying that the drone they send along usually isn't that clued up.

Edit: The Government provide an example of a tenancy agreement which some organisations use. Clause 3.4  (page 28) is one of those tricky enabling clauses that can be used to shoehorn parking control in to sites.

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1084131/Model_agreement_for_a_shorthold_assured_tenancy.pdf

CluelessDefendant

Galloglass said:

I'm jumping ahead a bit as the claim may be struck out due to the lack of particulars but if it isn't and if the judge indicates he will allow the Claimant to resubmit particulars, your key defence will be Primacy of Contract.

Primacy is a powerful defence as long as a) there hasn't been a change introduced by agreement/default or b) there isn't an "enabling" clause in your parent's agreement to allow later changes. As we haven't seen the text of the tenancy then we can't comment.

But when the Housing Officer calls you back, just get a copy of their current tenancy agreement and post it up here so we can check to see if the HA has changed the Agreements or there is the enabling clause. 

You don't want to be going to court with the other side producing a contract that has an enabling clause in it. Though in saying that the drone they send along usually isn't that clued up.

Edit: The Government provide an example of a tenancy agreement which some organisations use. Clause 3.4  (page 28) is one of those tricky enabling clauses that can be used to shoehorn parking control in to sites.

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1084131/Model_agreement_for_a_shorthold_assured_tenancy.pdf

Thanks, I'll post it here when I get it.

This is my most up to date defence, I'll be proof reading it tonight for a final draft:

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.      The Defendant was the registered keeper and driver of the vehicle on the material dates that the vehicle was driven but liability for the parking charge is denied.

The facts as known to the Defendant;

3.      It is denied that the Defendant was in breach of any parking terms of conditions or was not permitted to park in the locations specified as the Tenancy Agreement grants the Defendant the right to use communal areas without specifying any uses or conditions.

4.      Under this Tenancy the Defendant’s contractual rights and obligations are with the landowner and no other party.

5.      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. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. The Court will be referred to further similar fact cases if this matter proceeds to trial.

6.      Accordingly, it is denied that:

6.1   there was any agreement between the Defendant and the Claimant

6.2   there was any obligation to display a permit; and

6.3   the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim.

7.      The Claimant issued time-limited permits for no justified reason (a permit should be continuous for the life of the tenancy) and then failed to adequately remind the tenants to renew.  To any reasonable independent interpretation, this bears the hallmarks of a scam arrangement that was bound to unfairly catch out authorised drivers.  Several neighbours were similarly tricked and penalised to the tune of hundreds if not thousands of pounds each.

8.      It should be noted that, in the areas where the “terms of conditions” were broken, there was insufficient signage, which was placed in elevated unlit sections of buildings which was impossible to read.

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

10.   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.

11.   The Particulars of Claim are entirely inadequate, in that they fail to particularise (a) the contractual term(s) relied upon; (b) the specifics of any alleged breach of contract; or (c) the alleged loss.

12.   The Defendant is unable, on the basis of the Particulars within the Claim Form, to understand properly and specifically what case is being pursued.  The particulars are embarrassing insofar as they fail to explain precisely what term(s) were breached and on which date(s).  In the context of a residential car park these 'PCNs' could relate to any number of alleged 'contravention codes' with each separate allegation requiring a response.  The Defendant is wholly disadvantaged if they are now forced to wait in limbo to learn of the precise allegations, dates and details until just two weeks before a hearing, when ambushed with this serial Claimant's generic template prolix Witness Statement.

13.   The Particulars appear to be in breach of CPR 16.4, 16PD3 and 16PD7, and fail to "state all facts necessary for the purpose of formulating a complete cause of action”.

14.   The claim has been issued via Money Claims Online and, as a result, is subject to a character limit for the Particulars of Claim section of the Claim Form.  The fact that generic wording appears to have been applied has obstructed any semblance of clarity.  The Defendant trusts that the court will agree that a claim with this many allegations requires proper particularisation in a detailed document within 14 days, per 16PD.3

15.   The guidance for completing Money Claims Online confirms this and clearly states: "If you do not have enough space to explain your claim online and you need to serve extra, more detailed particulars on the defendant, tick the box that appears after the statement 'you may also send detailed particulars direct to the defendant.'"  No further particulars have been filed and to the Defendant's knowledge, no application asking the court service for more time to serve and/or relief from sanctions has been filed either.

16.   In view of it having been entirely within the Claimant's gift to properly plead the claim at the outset and the claim being for a sum, well within the small claims limit, such that the Defendant considers it disproportionate and at odds with the overriding objective (in the context of a failure by the Claimant to properly comply with rules and practice directions) for a Judge to throw the erring Claimant a lifeline by ordering further particulars (to which a further defence might be filed, followed by further referral to a Judge for directions and allocation) the court is invited to strike this claim out.

17.   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: the court process is outside of the Defendant's life experience and they cannot be criticised for adapting some pre-written wording from a reliable advice resource. The Claimant is urged not to patronise the Defendant with (ironically template) unfounded accusations of not understanding their defence.

Coupon-mad

Looks good, with the rest of the template following after that (in case any newbies think thats all!).

CluelessDefendant

Getting a hold of HA is way harder than I thought so I guess I'm on my own here, will try to find the contract for the rent but not holding my breath... I'll be emailing my defence out on Friday. Here goes nothing 

CluelessDefendant

Just to add a few of the tickets I received were from parking in a sports club car park (It's a part of the estate but for the club members only) when there was nowhere else to park and it was empty, does this change much to my defence? I got the SAR response and the pictures show my car being the only one there... 

Coupon-mad

No.  It is their case to prove.  And you have not been asked to respond to specific allegations about different parking areas.

CluelessDefendant

Coupon-mad said:

No.  It is their case to prove.  And you have not been asked to respond to specific allegations about different parking areas.

Thanks for everything by the way, you and everyone else here have been more than helpful, I really do appreciate it 

CluelessDefendant

Hi guys just a couple questions regarding the N180 form:

1. For section D1, is it essential I put "No" down? What is the benefit of going to a hearing?
2. Do I file this form with the court and claimant via email?