Secure-A-Space/DCB Legal County Court Claim- Parked in residential parking

Marissoura17

Hi all, 

Thank you for all your help and advice so far.

I have gone through the lease and thankfully found some quotations which I'm sure will be helpful, as follows:

- "Common Parts of the Estate" means any cycle shed refuse/bin store drying area footpaths accessways gardens and landscaped areas which are intended to be or are capable of being enjoyed or used by the owners tenants and occupiers of premises in the Estate and for the purposes only of the Landlords repairing obligations in 5.3 shall include the Parking Space and all other parking spaces within the Estate notwithstanding that a parking space may have been granted as part of the demise'

- 'Not to use the parking space forming part of the Property (if any) other than for the parking of one private motor car or motor bike and in particular not to park or keep any caravan trailer or boat thereon'

- 'Not to park at any time on any part of the Parking Space (if any) any caravan boat commercial vehicle trailer or untaxed or dilapidated vehicle nor to carry out repairs to any vehicle at any time within the Estate'

-'To observe and comply with all regulations made from time to time by the Landlord in respect of the parking spaces.'

I will copy some of these into the defence.

Also, can I still mention POFA 2012 schedule 4 if we identify the driver?

KeithP

Marissoura17 said:

Also, can I still mention POFA 2012 schedule 4 if we identify the driver?

The whole point of Sch4 of POFA is to transfer any driver's liability to a keeper.

If the driver is identified, what's the point of mentioning POFA?

Marissoura17

I'm aware of this, I just don't know then if we should admit the driver and delete that point. Or keep the driver unidentified so we can argue POFA.

Coupon-mad

The Template Defence thread already explains this - of course you admit to driving in para 2 like it coaches you to do.  And you can't use PoFA.

DO NOT QUOTE THIS ONE:

-'To observe and comply with all regulations made from time to time by the Landlord in respect of the parking spaces.'

Marissoura17

What do you think of an updated defence with a quote from the lease:

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.

The facts as known to the Defendant:

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

3. The Defendant is a resident of the housing estate where the alleged contravention took place and possesses a valid permit as well as a demised parking bay. Upon arrival late at night, the defendant discovered another vehicle occupying their designated bay. Faced with no alternative, the defendant parked in an unmarked space within the residential car park. It is worth noting that this particular area is frequently utilised by other residents of the building, without causing any obstruction to entrances, exits, or designated residential bays.

4.The terms and conditions set out by signage in the residential car park stated that ‘You should not park on yellow lines/hatched area, paved or landscaped areas’. The Defendant’s vehicle was not parked in any of these areas. The Defendant was unable to park in their allocated bay as another vehicle was occupying it. The Claimant failed their duty to keep the defendant’s space clear and have therefore frustrated any alleged contract the Defendant may have entered into with them. 

5.The signage in the residential car park forms the alleged contract but cannot override, amend, or remove the Defendant’s existing rights to park. Nevertheless, this is void for impossibility since the Defendant was prevented from complying with the terms and conditions outlined on the signage due to another vehicle occupying their designated parking bay.

6. The language used on the signage was vague, using the term "should" rather than "must", and the only prohibition is on parking on yellow/hatched lines, or paved or landscaped areas. It was open to the Claimants to word their sign more clearly as an obligatory contractual instruction but they did not. It was also open to the Claimant to mark all non-bay areas with yellow or hatched lines if that's the landowner's intention, however, they left some kerbs unmarked. Therefore there is no breach; any terms about the unmarked areas are conspicuous by their absence.  

7. Under the doctrine of contra proferentem now encompassed in the Consumer Rights Act 2015, it is reasonable to interpret the signage as allowing a resident to stop in unmarked areas, especially when they were confronted with another vehicle parked in their flat's allocated bay at night time. 

8. The Defendant could not leave the site, and there is no helpline or information on what to do in such a foreseeable situation, which may even have been caused by the Claimant's ticketer deliberately or negligently blocking what they know is an allocated space. The Claimant is put to strict proof of the ticketer's account.

9.  The Lease clearly establishes that Defendant possesses an unencumbered right to park within their designated bay without being subjected to additional conditions or restrictions. The Defendant's rights are protected by these agreements.

10.  The Defendant possessed the lawful right to access and move about the premises without hindrance.

‘"Common Parts of the Estate" means any cycle shed refuse / bin store drying area footpaths accessways gardens and landscaped areas which are intended to be or are capable of being enjoyed or used by the owners tenants and occupiers of premises in the Estate.’ This includes ‘the Parking Space and all other parking spaces within the Estate notwithstanding that a parking space may have been granted as part of the demise.’

11. A contractual relationship exists solely between the Defendant and the landlord under the terms of the Lease, and no other party has any rights or obligations arising from that agreement.

12. The Defendant did not sign any contract agreeing to the terms imposed by Secure A Space Ltd.

__________________________________________________________________________________

The rest of course as per the template by Johny86 and the template defence.

Marissoura17

I now realise I have focused probably too much on the night-time incident when another PCN was issued for the same 'offence' in the daytime. Is it sufficient to just change paragraph 3 to mention the second incident in the daytime as well, since everything else that follows is relevant to both PCNs?

Coupon-mad

Yes that's fine.  Good defence!

Do not use para 4 from Johny's defence or para 4 from the Template Defence (neither make sense for your case) so remove those, then re-number what you are left with.

Marissoura17

Hi all,
Thanks so much for all the help so far.
We're ready to send off the defence- my dad is quite keen to get this step out of the way ASAP however I have seen in newer threads that the recommendation this month is to hold out until the defence deadline as the DLUHC draft Impact Assessment will be published soon.

Our deadline is 24th July though- is there any benefit in waiting the extra couple of days just in case this assessment is published? 

KeithP

Marissoura17 said:

Our deadline is 24th July though- is there any benefit in waiting the extra couple of days just in case this assessment is published? 

Yes of course there is... or, yes of course there might be.
If you are asking whether there will be anything useful happening on Thursday or Friday, the answer is... no-one knows.

What have you got to lose by waiting? Nothing.

I would suggest that you leave the filing of the Defence until sometime on Monday in the hope that something useful can be added to it.

Coupon-mad

Seconded. You'll kick yourselves if the Government publish something that will vastly improve our Template Defence.