Link Parking Claim

Le_Kirk

For your use refer to: -
https://www.legislation.gov.uk/ukpga/1987/31/section/37 and: -
https://www.legislation.gov.uk/ukpga/1987/31/contents

Savosmee

Thank you all. I have sent 2 additional emails but they haven't responded and seem to be ignoring me, let's see...

Savosmee

So I had someone check on my mails today and BW Legal just sent supplementary WS and evidence dated 4 weeks after the deadline for doing so.
They start their supplementary WS claiming that I was the one supplying new evidence claiming "the Defendant's evidence seeks to adduce new evidence not previously raised or at least not in any detail in their defence". I have no idea what they are relating to, I only had to provide my evidence a month ago and anything new in my WS from the Defence is just in response of new things they may have claimed or said, there is nothing new really. And they don't detail what they claim is new. They said I should make/ or should have made an application to the court to alter my statement of case in accordance with CPR17.1 then they quote CPR r1.1.(2) - 2 and Barton v Wright Hassall LLP

Then they basically justify their supplementary WS and new evidence as a response to my "new evidence".

They then basically respond to my WS in their supplementary WS only responding to certain points I have made where they failed to evidence something or provided evidence which were wrong or potentially fake... and they respond by basically providing new evidence to cover their failures...
This does not seem reasonable. 

They also suddenly provide the WS of the person who have taken one of the pictures, which in my WS I stated is not a clear picture as it's taken from the back from afar and we cannot see if someone is driving or anything. the WS of Link employee state he confirms he remembers clearly no one was at the driving seat, as if he would remember that picture, among thousands he would have taken, from 2 years ago ??

Grizebeck

Ask the judge to strike out the supplementary one

Savosmee

The supplementary evidence you mean? Or their supplementary WS together with their new evidence as well?

Do I ask the judge at the hearing or do I have to prepare a specific document to send to the court?

I also wanted to give a supplementary witness statement because of a couple of things like the fact that the WS they have served (the original one and this one) is from a Paralegal in their firm and not the Claimant itself which I only realised after sending my WS is contrary to what the judge has ordered in their previous order that each party had to provide a WS.

Also I wanted to mention that they had issued a separate claim in relation to another pcn in the same car park in the supplementary WS, which they did a few days after the deadline for WS/evidence.

So if I ask the judge to strike out their supplementary WS can I myself send a supplementary one? The difference is that their Supplementary WS is just an excuse to provide all the evidence they should have provided in the first place or haven't provided correctly or amend some of the things they say in the first WS which they realise does not stand at all or on its own, where my supplementary WS would only be to mention facts I did not know at the time I had sent my first WS and would be very short. And I had no intention to provide additional evidence.

Coupon-mad

Do NOT start a game of email tennis. Judges hate it.  No more WS.

Ask the Judge at the hearing - at the start, get straight in and after saying 'good morning' and sitting down, politely say you have a significant concern as a preliminary matter - and ask him/her to dismiss the Claimant's late Supplementary WS.

If the Judge allows it into evidence, when it is your turn to speak, point out that the supposed WS from the employee is not only hearsay (because he's not in attendance) but it is implausible - if not impossible - that a ticketer whose sole job is is to issue dozens of PCNs every day, would recollect this single issue. And even if what he says is true, which you completely dispute, why were no evidential photos taken from a fair, close aspect? On the balance of probabilities the car had a driver in it and was not 'parked', as opposed to loading/unloading or merely there briefly collecting a passenger.

I think you have strong chances of winning.  Your position is that your lease trumps all and the MA breached the L&T Act and never consulted you about the significant change relating to the Visitor bays and thus caused a derogation from grant. You were not in breach of contract and there's no evidence the vehicle was even parked/left.

Savosmee

Okay thank you very much will follow that.

So apart from their supplementary evidence, it's best I don't send anything and only talk about also all the below points directly at the hearing and not send any further statement about it that is:

- the fact that the WS is not from the party, but just a paralegal, contrary to the judge's order?

- the cause of action estoppel as they have issue another claim recently AFTER I sent my WS so there is no mention of that anywhere in my Defence or WS?

- also they claimed in their WS, that the management company was allowed under the lease to make some sort of regulations on site for good management from time to time, and I recently went through the details of the lease and there are several terms which to me seem to infer that it would just relate to certain areas on site but not the parking. As a mere example the use of certain communal areas are systematically "subject to the rules and regulations that the management company can form time to time prescribe" but for the parking bays or visitors parking bays there are not such condition. As there are several example that support that in my lease I wanted to point to them and I'm worried that I will have too many things to say at the hearing and would simply not have time or not be able to mention all these then. What do you think?

Coupon-mad

Drop cause of action estoppel from this case. It is relevant only in the second claim.

That will help you to narrow the issues on the day to the fact that your lease trumps any third party signs and the changes made to rules (removing and charging for rights and easements that you are entitled to enjoy) are unwanted and unjustified.

They are not 'reasonable management'.

The parking charges are punitive and outside the allowed management fees and ground rent and were not communicated to residents, nor properly consulted upon.

You should state that, unlike in the Supreme Court case of ParkingEye v Beavis (which was about 'churn' of bays in a retail park) there is no 'legitimate interest' in penalising residents and interfering with lease rights by operating a home car park as if it is a commercial one, hawking out bays at £100 per day to ANY passing trespasser.

And even if the Judge is minded to think that you could be bound by unsolicited third party interference with your lease rights, the evidence of 'parking' is shaky and the driver did not enter into any agreed contract with this Claimant.

Savosmee

Thank you so much for the clarification, that's really helpful.

Castle

Coupon-mad said:

You should state that, unlike in the Supreme Court case of ParkingEye v Beavis (which was about 'churn' of bays in a retail park) there is no 'legitimate interest' in penalising residents and interfering with lease rights by operating a home car park as if it is a commercial one, hawking out bays at £100 per day to ANY passing trespasser.

Actually it's £100 per visit.