Unpaid CCJ letter received from DCBL today

remzeh1 · 28 August 2023 at 1:15PM

I'm currently drafting my defence

As a reminder so you don't have to read the above - this is a PCN for parking in my own bay in a resident's car park

I don't have the lease anymore as this was 3/4 years ago, but I'm going to ring the estate agent tomorrow to see if I can get a copy of it

I can remember however that my AST did mention permits in it - so I think this limits my arguments about the lease?

So I'm planning to argue the grace period and say that I parked and went to obtain a new permit that was in date after returning from holiday.

Does anyone know of any good example's where it was a residents car park and their lease/AST DID mention permits?

Of course I have the fall back of all the signage etc as well and I will still mention about it being a residential car park etc and my rights - combined with the Grace Period, I think this should suffice?

And I'm submitting a WS along with the defence as well?

I have a successful POPLA appeal from 2020 which I can leverage a lot from for my WS

Coupon-mad · 28 August 2023 at 1:36PM

Just grab some words from Johnersh's residential defence example linked in the NEWBIES thread and use them for your facts paragraphs (I suspect you will need to add more than just para 3, so obviously you re-number the Template Defence below it).

Johnersh is a solicitor, so his well-worded paragraphs are worth using but not that whole defence as it is out of date and misses out stuff that's in our - completely up to date - August 2023 template defence.

KeithP · 28 August 2023 at 1:41PM

remzeh1 said:

And I'm submitting a WS along with the defence as well?

Witness Statement and evidence comes later - some months away.

remzeh1 · 28 August 2023 at 2:27PM

Is Jonershh the new account for Bargepole?

I've found a similar situation from @womblecat that I'm leveraging

Will post my first draft here later...

Coupon-mad · 28 August 2023 at 2:40PM

No they are different posters.

Why not simply look at what I link for everyone in the NEWBIES thread? It's there for you already, and @Johnersh is a solicitor.

remzeh1 · 28 August 2023 at 3:04PM

Coupon-mad said:

No they are different posters.

Why not simply look at what I link for everyone in the NEWBIES thread? It's there for you already, and @Johnersh is a solicitor.

I've looked numerous times and can't see the example of Johnersh's residential defence, only bargepole's and the parking prankster links

remzeh1 · 28 August 2023 at 3:05PM

Anyways, I've drafted an initial defence as follows:

1. 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 in breach of any term. Further, it is denied that this Claimant (understood to have a bare licence as agents) 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 boilerplate text in the Particulars of Claim ('the POC').

The facts known to the Defendant:

2. The facts in this defence come from the Defendant's own knowledge and honest belief. Conversely, the Defendant observes after researching other parking claims with the same POC that this claim sets out a cut-and-paste incoherent statement of case. The POC is sparse on facts and specific breach allegation, making it very difficult to respond. However, it is admitted that the Defendant was the registered keeper and driver of the vehicle.

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 apartment complex, 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 the one on display at the time of the alleged parking event was out of date as the Defendant had just returned from holiday and had gone to take his luggage up to his apartment and then retrieve a new, in-date, permit from the concierge office. Upon return to the vehicle, the Defendant found he had been issued with a parking charge notice from the Claimant. This did not breach the parking conditions when taking into consideration the BPA Code of Practice (13), as this was allowable under the 11 minute Grace Period.

6. The Claimant have evidenced that they did not take the BPA Grace Period into consideration as their photos are time-stamped between 14:41:45 and 14:42:50, showing they were only present at the alleged parking event for a mere one minute.

6.1. Following the above, the Claimant have also failed to state the period for which the vehicle was parked without a valid permit as the Notice to Keeper states that the alleged parking event took place ‘at’ 14:41. This is a point in time and is therefore not in line with requirements of PoFA which required a Notice to Keeper to state a period of time.

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. 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.

9. 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 £100. This is clearly a nonsense, since if there is no authorisation, there is no offer, and therefore no contract.

10. 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.

11. 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.

12. 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.

Alternative Defence - Failure to set out clearly parking terms

13. In the alternative, the Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to consider the imposition of a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.

13.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate.

13.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;

13.1.2. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee’s ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and

13.1.3. The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3

13.2. The Defendant avers that the residential site that is the subject of these proceedings is not a site where there is a commercial value to be protected. The Claimant has not suffered loss or pecuniary disadvantage. The penalty charge is, accordingly, unconscionable in this context, with ParkingEye distinguished.

14. It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking parking management. The Claimant has provided no proof of any such entitlement.

15. It is also important to note that this defence is one following a Judgment for Claimant having been set aside due to improper service. It follows that if a claim is set aside for failure to be served correctly, then the claim cannot be resurrected and served again after 4 months has passed from the date of filing pursuant to CPR 7.5(1). This is on point with the court of appeal in Dubai Financial Group Llc v National Private Air Transport Services Company (National Air Services) Ltd [2016] EWCA Civ 71 (09 February 2016).

16. The Claimant's conduct in issuing another claim, numbered XXXXXX, against the Defendant with substantially identical particulars (except for dates), for the same cause of action is a clear abuse of the civil litigation process. Both the first and the second claim have resulted in significant damage to the Defendant's credit rating, as default CCJ were obtained both times. The Defendant has otherwise had an impeccable credit rating and never before had any issues with his credit rating. Such actions, involving the filing of two separate claims by the same Claimant for essentially the same cause of action, undermine the integrity of the legal system and the principles of fairness and efficiency.

17. The long-established case law in Henderson v Henderson [1843] 67 ER 313 firmly establishes the principle that when a matter becomes the subject of litigation, the parties are required to present their entire case. In Arnold v National Westminster Bank plc [1991] 3 All ER 41, the court observed that cause of action estoppel applies when a cause of action in a second action is identical to a cause of action in the first, involving the same parties or their privies and the same subject matter. This decision remains valid and has been cited approvingly in subsequent cases, including Aldi Stores v WSP Group plc [2008] 1 WLR 748 and Henley v Bloom [2010] 1 WLR 1770.

18. In light of the aforementioned legal principles, the Defendant respectfully requests that the Court exercises its authority under CPR 3.4 2(b) to strike out the second claim on the grounds of cause of action estoppel. Furthermore, the Court is invited to apply appropriate sanctions against the Claimants for their filing of two abusive and exaggerated claims, which have unduly burdened the legal process.

19. The Claimant should not be given extra opportunities to waste the Court’s time after failing to follow pre-action protocols for debt claims, breaching the IPC code of practice and the CPRs about taking 'reasonable steps' (CPR 6.9) to check a Defendant's address.

Coupon-mad · 28 August 2023 at 3:15PM

remzeh1 said:

Coupon-mad said:

No they are different posters.

Why not simply look at what I link for everyone in the NEWBIES thread? It's there for you already, and @Johnersh is a solicitor.

I've looked numerous times and can't see the example of Johnersh's residential defence, only bargepole's and the parking prankster links

Ah, apologies, Johnersh's wording was used in the exemplar defence this month by @Rinches19 which is clearly the most up to date example linked there already (in the NEWBIES thread bit about residential defences).

I added it this month.

I also edited para 2 of the Template Defence this week and it reads slightly differently now.

Your defence is very good though. You mention another duplicate facts claim. Are both claims at the same stage?

I'd say you don't need any of 13 - 13.2 because the Template Defence already more than covers 'unclear signs'.

remzeh1 · 28 August 2023 at 6:26PM

Thanks....

Is this good to go....

The facts known to the Defendant:

2. The facts in this defence come from the Defendant's own knowledge and honest belief. Conversely, the Defendant observes after researching other parking claims with the same POC that this claim sets out a cut-and-paste incoherent statement of case. The POC is sparse on facts and specific breach allegation, making it very difficult to respond. However, it is admitted that the Defendant was the registered keeper and driver of the vehicle.

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 apartment complex, 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 the one on display at the time of the alleged parking event was out of date as the Defendant had just returned from holiday and had gone to take his luggage up to his apartment and then retrieve a new, in-date, permit from the concierge office. Upon return to the vehicle, the Defendant found he had been issued with a parking charge notice from the Claimant. This did not breach the parking conditions when taking into consideration the BPA Code of Practice (13), as this was allowable under the 11 minute Grace Period.

6. The Claimant have evidenced that they did not take the BPA Grace Period into consideration as their photos are time-stamped between 14:41:45 and 14:42:50, showing they were only present at the alleged parking event for a mere one minute.

6.1. Following the above, the Claimant have also failed to state the period for which the vehicle was parked without a valid permit as the Notice to Keeper states that the alleged parking event took place ‘at’ 14:41. This is a point in time and is therefore not in line with requirements of PoFA which required a Notice to Keeper to state a period of time.

6.2 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.

6.3 Maintaining the residents' rights to peaceful enjoyment of the property does not include allowing everyone to be unfairly charged by a lurking ex-wheelclamper for normal life necessities like parking to unload luggage. Clearly there is no 'legitimate interest' supporting these enhanced parking charges in these circumstances and also no reason for the Claimant to sit on their hands for nearly 4 years hoping to profit even further from exaggerated interest calculations.

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.

7.4. the Claimant could now (without offending against the doctrine of good faith) attempt to claim a disingenuous reward of nearly four years interest, as was stated on the POC on the claim form that was never served, due to their own lazy and improper service to an unchecked address.