Unpaid CCJ letter received from DCBL today

remzeh1

DEFENCE

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 Claimant sets out a cut-and-paste incoherent and sparse statement of case.  The POC is devoid of any detail and even lacks specific breach allegation(s), 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out of courtesy, rather than an obligation, however the one on display at the time of the alleged parking event was out of date as the Defendant had just returned from holiday and had gone to take his luggage up to his apartment and then retrieve a new, in-date, permit from the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.

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.

13. 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.

14. 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).

15. 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.

16. 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.

17. 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.

18. 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.

Then it continues as the standard defence from this point....

19. The Claimant will concede that no financial loss has arisen and that in order to impose an inflated parking charge, as well as proving a term was breached, there must be:

Are we good to go?

I'm emailing the Newcastle County Court, and shall I cc in the woman from DCBL who's been emailing me before the set aside as well as the generic DCBL email?

Thanks so much for all the help all

1505grandad

A pedantic check:

Rinches19 stated  -  "Being a Curo(Housing Association)leaseholder(property purchased 2007), I received 2 PCNs dated 16/12/2017 and 23/12/2017 related to parking outside of a marked bay."

You state  -  "3. The Defendant had an Assured Shorthold Tenancy Agreement ...."

However you state "lease" as in the exemplar  -  should it be AST where appropriate?

remzeh1

Thanks - it's a good spot and Yeh I think I will change that

@Coupon-mad do you agree?

Coupon-mad

Yes.  And yes cc in DCBLegal (you have to).

The BPA do not allow 11 minutes for anything. In fact the 'consideration period' to read signs/fetch a permit is a minimum of 5 minutes in their CoP.

Add these words:

charged by a lurking ex-wheelclamper for attending to normal life necessities like parking to unload luggage. 

remzeh1

so do I need to remove the thing about 11 minutes? I thought that was the 'grace period' - do I need to reword this?

Coupon-mad

I advised you which bit of the BPA CoP apples and what it says and how many minutes it allows.  I trusted that you'd simply go & read it and just grab the right wording.

remzeh1

Okay I'll read it tomorrow night then

remzeh1

Hi @Coupon-mad

Under the BPA Code of Practice Version 7, which covers my PCN as this was December 2019, I've found the following:

'If the parking location is one where parking is normally permitted, you must allow the driver a reasonable grace period in addition to the parking event before enforcement action is taken. In such instances the grace period must be a minimum of 10 minutes.'


So I think I just need to change the 11 minutes to 10 minutes and then I'm good to go?

Coupon-mad

No because (as my reply told you) it's not a grace period.

remzeh1

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, as this was allowable under the Consideration Period which allows at least 5 minutes to retrieve a valid permit.

6. The Claimant have evidenced that they did not take the BPA Consideration 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 attending to 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.

Updated those bits
@Coupon-mad thanks so much, you really are a genuine hero I hope you know that

Is this good to go now?