Unpaid CCJ letter received from DCBL today

Coupon-mad

Looks great to fit into the full template defence.

remzeh1

Here's my defence prior to the remainder of the full defence template for other people's reference:

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out of courtesy, rather than an obligation, however the one on display at the time of the alleged parking event was out of date as the Defendant had just returned from holiday and had gone to take his luggage up to his apartment and then retrieve a new, in-date, permit from the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, 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.

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.

I will be submitting this tomorrow to the county court and cc'ing in DCBL

Many thanks all, let's hope you can add me to the UKPC/DCBL discontinuation thread!

remzeh1

I’ve had this response from DCBL yesterday…

We write further to your email of the 6th September 2023, and confirm receipt of your Defence.

Upon the review of the contents therein, we note you state you have the authority to park on the Land, by way of your Shorthold Tenancy Lease. To allow us to review the position in full, please provide a copy of your full lease within 14 days of the date of this email.

Failure to provide the requested information may result in further action being taken against you. Should you be unsure of your position, you may wish to seek your own independent legal advice.

I don’t actually have a copy of the lease anymore - I will try and ring the estate agents with today but what if I can’t get a copy?

Coupon-mad

Reply and say that you are not living there any more - which they are well aware of - and therefore do not hold a copy of the old lease/tenancy agreement. Like most of AST agreements, the period of stay is months not years and the fact that DCB serially take advantage of the transience of the flat-renting UK population, then try to blame the consumer when court claims are negligently or deliberately improperly served, is something not lost on Judges.

However, their own client must hold or have access to a copy of the Head Lease through the Managing Agents because (prior to slapping up their cardboard signs and operating a business in the car park that undoubtedly targets residents) professional parking operators are required to ensure that contractual restrictions will not interfere with the rights and easements afforded to leaseholders, landlords, their families, their tenants and authorised visitors.  The DLUHC confirms this in their statutory CoP (Feb 2022) but it was always the case; it is trite law with various authorities behind the legal position.

So you suggest that DCBLegal ask their clients where the Head Lease is and what it says, and what steps were taken to avoid interfering with the prior and transferable rights and easements of residents, which includes a right to peaceful enjoyment.

The only obligations, fees and costs were as stated on the leases.  The tenancy agreement included a designated Parking Space in the car park underneath the apartment complex, accessed via roller shutters and this was not an area open to abuse by trespassers.  Running a business designed purely to trip up residents whilst they fetch permits, or to take advantage of a slipped permit, etc.,  is a business model akin to a protection racket. This is exactly what the DLUHC is stepping in to end.

The signage displayed by the Claimant on entry to the underground car park specifies “No unauthorised parking” but it is common ground that the Defendant was never 'unauthorised'.  Your client's PCN was predatory rubbish, based on inadequate signs and a lack of grace period.  Cut out the procrastination, cough up my £275 awarded by the last Judge and discontinue before UKPC is further exposed to costs.

remzeh1

Hi

I managed to get a copy of the AST today from my old letting agent. It says the following about the parking space:

1. The Property includes:

   Parking: Space 26
   

1. Car parking space:

1. 4.1  Only park roadworthy and taxed private motor vehicles.

2. 4.2  Only park in the allocated space.

3. 4.3  Not sublet or share the car parking space.

4. 4.4  Not to work on any vehicles parked in allocated spaces beyond normal day to day issues such as checking oil levels, refilling screen wash bottles.

What shall I do now - I think this works in my favour right?

B789

Does it mention that you are liable to pay parking charges for using your own spot to a third party? If not, then you are not liable. Your AST has supremacy of contract.

Coupon-mad

Looks good to me.

You can send that with the sort of robust response I wrote above.  Be pushy.  You want this crap over!

remzeh1

thanks everyone, here's the email I sent...

Hi X,

Yes you're quite right, I did state that I had the authority to park because that's factual information, that I'm confident a Judge will agree with.

You can see the AST attached, and the key points this mentions with regards to the parking space are as follows:

1. The Property includes:

   Parking: Space 26
   

1. Car parking space:

1. 4.1  Only park roadworthy and taxed private motor vehicles.

2. 4.2  Only park in the allocated space.

3. 4.3  Not sublet or share the car parking space.

4. 4.4  Not to work on any vehicles parked in allocated spaces beyond normal day to day issues such as checking oil levels, refilling screen wash bottles.

As we can clearly see, there is no mention that I would be liable to pay parking charges for using my own car parking space to a third party. My AST obviously has supremacy of contract therefore I am not liable. You already know this.

Furthermore, your client will also hold a copy of the Head Lease from the Managing Agent which would have stated the rights and easements afforded to leaseholders, landlords, families, tenants and authorised visitors in there. Had they utilised this correctly, this situation never would have arisen.

The only obligations, fees and costs are what are stated in the lease/AST, which I have detailed above. We can both see that the AST included a designated space (26, which was the one I was parked in), which was underneath the apartment complex and accessed by roller shutters which was not an open area to be abused by trespassers. Running a business designed purely to trip up residents whilst they fetch permits or unload vehicles etc is a business model akin to a protection racket which is exactly why the DLUHC is stepping in to end this.

The signage displayed by the Claimant on entry to the underground car park (which is barely visible, quite laughable actually) states that there is 'No unauthorised parking' but it is common ground that in this instance the Defendant was never 'unauthorised' at all. 

I strongly suggest you discontinue the claim before you expose UKPC to further costs, which I deem very likely, following the Judge awarding me my £275 application costs at the first hearing. If you don't want to do this then I'll see you in court.


...Let's see what happens now!

Coupon-mad

Nice!  The only change I'd have made would have been a sarky ending copying their patronising phrase:

"Should you be unsure of your position, you may wish to seek your own independent legal advice."

(save it for the last word, next time!). 

patient_dream

Nice one : remzeh1

And you know, with all the rubbish UKPC cases DCBL try it on with, Coupon is right .... DCBL should seek "independent legal advice.", someone that knows what they doing before DCBL make yet another fool of themselves