County Court Claim MET Parking/QDR Solicitors

damncold

I have changed my Defence a bit and included some of the things that have been mentioned. Thanks for the advice! Updated Defence below.

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

3. The Particulars of Claim on the N1 Claim Form refer to a 'Parking Charge' incurred on DATE. The Particulars refer to the material location as LOCATION. The Defendant has, since DATE, held legal title under the terms of a lease, to Flat No. X at that location.

4. The lease has primacy of contract. Under the terms of the Defendant's lease, the lessee has easement rights and privileges granted to the Tenant, which include Right of Way.

“The full and free liberty for the Tenant at all times by day or by night and for all purposes incidental to the occupation and enjoyment of the Flat but not further or otherwise to go pass and repass on foot over the pathways and other areas providing access to the Flat from the adopted highway whether with or without vehicles laden or unladen over along and across the roads and forecourts leading to the Building from the adopted highway in common with the Lessor and all others authorised by them to use the same and in common with all others having a like right”

5. On the date of the alleged incident the Defendant was accessing the flat and unloading their vehicle as is their right under the terms of the lease.

6. Exercising the right of way by vehicle laden or unladen as per the lease to load or unload is not 'parking' and signs cannot override existing rights enjoyed by leaseholders, as was found in the Appeal case decided by His Honour Judge Harris QC at Oxford County Court, in case number B9GF0A9E: 'JOPSON V HOME GUARD SERVICES’.

(i) In the Jopson appeal in June 2016, the Senior Circuit Judge found that the position was analogous to the right to unload which was the subject of Bulstrode v Lambert [1953] 2 All ER 728. The right of way in that case was: “To pass and re-pass with or without vehicles…for the purposes of obtaining access to the building…known as the auction mart.''

(ii) In the Jopson appeal it was also held as a finding of fact, that stopping to unload was not 'parking'.

(iii) In the Jopson appeal it was held that ParkingEye Ltd v Beavis [2015] UKSC 67 had no application to a situation involving drivers with a right and expectation to be entitled to park under the grants flowing from a lease.

(iv) In the Jopson appeal it was also held that signs added later by a third party parking firm are of no consequence to authorised visitors to premises where other rights prevail and supersede any alleged new 'parking contract’.

7. The Claimant, or Freeholder, 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.

8. There are no terms within the lease requiring lessees to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same.

9. 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.

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 £100 penalty on the same basis to residents, as is on offer to the general public and trespassers. However, leaseholders are granted a right of way and to peaceful enjoyment. 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.

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. Management and maintenance of the site at LOCATION, including the common parts and the forecourt, has been transferred to RIGHT TO MANAGE COMPANY with the date of acquisition on DATE. The Claimant does not have authorisation to operate at LOCATION from the Right To Manage company. The signs on the site have been installed without permission and are there illegally.

How is it now?

damncold

Coupon-mad said:

damncold said:

B789 said:

Your Defence is more like a Witness Statement. You only need to provide the legal "hooks" that you will later hang your WS on.

If your lease does not mention anything about permits or gives you full rights to park then you will also need to include a reference to the Landlord and Tenant Act 1987 Section 35(a) or (b).

Think I understand what you mean. That's a good way of explaining it. Should I remove this part "5. On the date of the alleged incident the Defendant was accessing the flat and unloading their vehicle as is their right under the terms of the lease." I don't need to explain that at this point and should save it...

No definitely include that vital fact and quote Jopson v Homeguard like everyone else does in an unloading defence.

Easy to find and copy from. Do a forum search and change results to NEWEST.

Thanks, I have included that in section 6 of my updated Defence.

Coupon-mad

The D only has 'legal title' in land you own.  If you are a tenant, don't use that phrase.

damncold

Coupon-mad said:

The D only has 'legal title' in land you own.  If you are a tenant, don't use that phrase.

I own the leasehold flat. So on land registry I own the legal title to the property. But it is leasehold so I don’t own the land. Is legal title incorrect then? I will change legal title to leasehold title.

Coupon-mad

Yes you have legal title.  Worth checking though.

damncold

Update on this claim

I filed my defence in a timely manner via email and received a letter from the court saying they had received my defence. I didn't hear anything from the court for quite a while and was checking MCOL for any updates. MCOL then showed that on 01/08/2023 a DQ had been sent to me. I never received the DQ from the court and after reading the forums I downloaded the form and sent it via email to the court and the claimants solicitor as per the instructions on the forum on the 21/08/2024. I received the automated reply back from the court saying they had received my email. Today on 23/08/2024 I have now received the DQ from the court with the letter dated 1 August 2023. The letter states that I must by 18 August 2023 complete the DQ and file it with the office. The envelope it was posted in has a postage stamp date of 22/08/23. So they have posted it to me 4 days after their deadline! MCOL hasn't updated and is still showing as DQ sent to you on 01/08/2023. As I emailed my DQ 3 days after their deadline is this now going to be an issue, despite them not even posting it to me until 4 days after their deadline? Is this something that often happens with late postage and what would be the best way to make sure that they have accepted my DQ?

KeithP

damncold said:

...what would be the best way to make sure that they have accepted my DQ?

Give them a call and ask them. There's a phone number on your Claim Form.

Coupon-mad

Same as here:

https://forums.moneysavingexpert.com/discussion/comment/80252254/#Comment_80252254

How dare the CCBC post letters 3 weeks late that contain a deadline inthe past? This is pathetic.

damncold

Hi,

The hearing for this case is next month, some 19 months after originally receiving the claim. I am in the process of having all my exhibits and Witness Statement in place. Since submitting my Defence in June 2023 there has been new case law such as CEL v Chan. Since CEL v Chan was heard in August 2023 I was unable to include it in my Defence. If it does apply to my case, am I still able to include it in my Witness Statement even though I was unable to include it in my Defence?

The Notice of Allocation to the Small Claims Track (Hearing) gives me the date I need to submit my Witness Statement by but doesn't provide an email address. The form has the address of the county court (Edmonton) which I presume I can post it to but doesn't provide any email address. I will post it but would like to email as well if possible. Where can I find the correct email address to send it for Edmonton County Court? I have searched on Google and this forum but can't find it.

When I send my Witness Statement and exhibits do I need to also re send my Defence even though this was already submitted last year?

Many thanks

Coupon-mad

Ring them up and ask for the email address.

Yes you can rely on Chan and also Akande. Two persuasive appeal cases.

Search the forum for examples to copy:

Chan Akande witness statement follows true