Multiple CCJs decided in default - set asides and defences

Coupon-mad

OK got it re the numbering. As long as the actual version makes sense!

I didn't see the stuff from Rinches19's defence in your draft.  That's my concern.  That example is a really good residential one.

AngryWatermelon123

I'm sorry, I'm still confused.

I don't feel like I can argue frustration of contract, as I am arguing primacy of contract and I did not have the same circumstances as Rinches19, nothing happened to the spaces.

I am also trying to argue prohibitive signage, therefore no contract. I've added the points specific to primacy of contract and rights granted by the lease below. The cases are different but I have seen these mentioned on the forum and newbies thread too.

1. The alleged parking offences relating to the claim refer to the following situations:

2. Firstly, The Defendant was parked in their own private parking space, which they had an exclusive right to use as and when needed, according to their lease. To that respect, the Defendant displayed a permit as a courtesy to the operator, not as a requirement. 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 a permit.

3. The Lease has not been altered at any point throughout the Defendant’s stay at the aforementioned address. The Defendant was not notified of the Claimant’s activities and did not agree with the Claimant conducting a parking scheme, therefore the Claimant could not be considered an agent of the landlord. 

4. Through the Lease, the Defendant had primacy of contract, therefore no third party contract between the Claimant and the landlord could supersede or alter the rights granted to the Defendant, without his prior agreement. 

5. The Lease makes no reference to any parking agreement being in place or to the Claimant’s activities.

6. Similarly, in both Pace v Mr N [2016] C6GF14F0 [2016] and Link Parking v Ms P C7GF50J7 [2016] it was found that the parking agent could not override the tenant's right to park by requiring a permit to park.

7. Then, on some occasions, the Defendant was temporarily stopped in front of his property, to load and unload goods or persons. The signage erected by the Claimant on the private road in front of the Defendant’s property stated there was a ‘No Parking’ zone, not a ‘No Loading/Unloading’ or a ‘No stopping’ zone. 

8. The Lease has granted the Defendant with the right of way, which included free, uninterrupted access to all passageways and amenities, with or without the use of motor vehicles (evidence in lease).

9. The Lease has also granted the defendant with the unfettered right to peaceful enjoyment of the amenities (evidence in lease)

10. As a result, the Claimant’s activities were infringing on the Defendant’s rights and the former had no standing of imposing any restrictions or sanctions. 

11. Furthermore, In Jopson v Homeguard [2016] B9GF0A9E,  it was found that the parking company could not override the tenant's right to temporarily stop near the building entrance for loading/unloading.

12. Thirdly, on one occasion, the Defendant has parked in one of the additional, unnumbered spaces, as his personal parking space was used by another unknown vehicle. There is no mention of a requirement to display a parking permit for the additional spaces in the Lease document and since the Claimant has no standing to form a valid contract with the Defendant and override the Lease, the parking event would be deemed to be acceptable.

13. 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.

14. Further and in the alternative, the signs refer to 'Terms of parking without permission', and suggest that by parking without permission, motorists are contractually agreeing to a parking charge of £100. This is clearly incorrect, since if there is no permission, there is no offer, and therefore no contract.

15. The signage erected by the Claimant is also of prohibitive or forbidding nature, therefore if the Claimant had a legal standing over the land in question, the matter would be classed as trespass, not breach of contract. However, this is not the case as the Claimant has no such rights over the premises.

16. 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 and 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 of which this parking firm is not a party to, and neither have they attempted to check for any rights or easements that their regime will interfere with. This causes a substantial and unreasonable interference with the Defendant's property, or his use and enjoyment of that property.

17. 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.

Coupon-mad

"Offences" - no.  They aren't.

But apart from that word, all of the above is good.  If you then get a hearing date, don't forget to also file & serve a WS (and maybe a skelly) as well as the defence, because you need those case transcripts and your lease and signage photos as authorities and exhibits.

AngryWatermelon123

Brilliant, thanks! We already did witness statements for all the set asides hearings, will look into the skeletons.

Coupon-mad

AngryWatermelon123 said:

Brilliant, thanks! We already did witness statements for all the set asides hearings, will look into the skeletons.

No it's not the same WS.

Coupon-mad

Question to do with the planned complaint to the MoJ that they are using AI to support an automatic 'conveyor belt' system to default CCJs:

Have you obtained from the CCBC, a copy of the POC from the Gladstones Claim Forms of the default CCJ cases?

And do those POC include 10.25% interest?  

AngryWatermelon123

Coupon-mad said:

Question to do with the planned complaint to the MoJ that they are using AI to support an automatic 'conveyor belt' system to default CCJs:

Have you obtained from the CCBC, a copy of the POC from the Gladstones Claim Forms of the default CCJ cases?

And do those POC include 10.25% interest?  

Yep, they certainly do include 10.25% interest.

Coupon-mad

OK (jolly good) let me think about that complaint and how to word it.  I'll reply to your pm some time this week I hope.

Out of interest, did your solicitor notice the 10.25% exceeds the amount allowed for debt claims?  IANAL but these should never have gone through as default CCJs in my view.

Coupon-mad

Which reminds me - you need to add that to your defences.  Search the forum for 10.25% Gladstones defence because we wrote a paragraph about that for a Gladstones case only last month.  You want that bit too.

AngryWatermelon123

He didn't mention anything about the 10.25%, I knew from the forum that interest in itself is likely not lawful.

Will add this to my defence as well, thank you!