Considering suing my freeholder for derogation from grant - any advice?

DullGreyGuy

h2g2 said:

Thank you for all your replies! I'm trying to work out my best course of action.

It seems I have two options:
1. County court is easier and more affordable up front, but there is a flaw/risk that has been pointed out that I haven't suffered proveable monetary loss, and therefore may not be able to win any claim made this way. It would depend on whether I can demand compensation for breach of contract or not, and my case that they claim to issue arbitrary charges to me for claimed breaches of contract may not necessarily mean it works the other way.

2. An injunction is more likely to work, but carries greater financial risk. It's more expensive up front, and if it gets overturned I could be liable for losses incurred as a result. From what I read an injunction is a temporary rather than a final order, and the whole process if far more intimidating, frankly.

You dont get to choose where the case is heard... you state how much you are claiming, you fill in the directions questionnaire but ultimately a judge decides which track and which court will hear it. 

You never answered my question... you said you were going to claim for £60 per day, but not how many days? Or how you came to the decision of that number of days?

Assuming a 100 year lease and no indexation of the damages you'd be implying a claim of over £2m which will be High Court and will be Multi-Track meaning full reasonable legal costs can be claimed. 

Also be aware of the other case on here recently where someone sued their freeholder. It was allocated to Small Track in the County Court but their lease had a provision to say a leaseholder must pay all costs. Even though it was in Small Track the OP in that thread advised that the judge ordered them to pay £18,000 towards the freeholder's legal costs. 

user1977

DullGreyGuy said:

h2g2 said:

Thank you for all your replies! I'm trying to work out my best course of action.

It seems I have two options:
1. County court is easier and more affordable up front, but there is a flaw/risk that has been pointed out that I haven't suffered proveable monetary loss, and therefore may not be able to win any claim made this way. It would depend on whether I can demand compensation for breach of contract or not, and my case that they claim to issue arbitrary charges to me for claimed breaches of contract may not necessarily mean it works the other way.

2. An injunction is more likely to work, but carries greater financial risk. It's more expensive up front, and if it gets overturned I could be liable for losses incurred as a result. From what I read an injunction is a temporary rather than a final order, and the whole process if far more intimidating, frankly.

Assuming a 100 year lease and no indexation of the damages you'd be implying a claim of over £2m which will be High Court and will be Multi-Track meaning full reasonable legal costs can be claimed. 

Which would presumably have to go straight to the parking company in payment of all the OP's future tickets....

No, this is a bit fanciful. Having the irritation of occasional unenforceable tickets is not the same as actually preventing you from parking.

eddddy

If somebody was genuinely stopping the OP from parking, for example by locking a gate, an injunction might be appropriate.

But the obvious solution in this case is to park, and not pay for a parking permit and to not pay any of the parking charges. And if the parking company take the OP to court, the court can decide whether the charges are payable.

In these circumstances, I think a judge might see an injunction application as frivolous and completely unnecessary, and come down heavily on the OP for wasting the court's time.

h2g2

DullGreyGuy said:

<SNIP>

You dont get to choose where the case is heard... you state how much you are claiming, you fill in the directions questionnaire but ultimately a judge decides which track and which court will hear it. 

You never answered my question... you said you were going to claim for £60 per day, but not how many days? Or how you came to the decision of that number of days?

Assuming a 100 year lease and no indexation of the damages you'd be implying a claim of over £2m which will be High Court and will be Multi-Track meaning full reasonable legal costs can be claimed. 

Also be aware of the other case on here recently where someone sued their freeholder. It was allocated to Small Track in the County Court but their lease had a provision to say a leaseholder must pay all costs. Even though it was in Small Track the OP in that thread advised that the judge ordered them to pay £18,000 towards the freeholder's legal costs. 

Aren't an injunction request and a county court money claim entirely different forms? I'm pretty sure they are. The first is an N16A form and the second is an N1 form. So there are definitely two different angles here if I go down that route.

I thought I had answered somewhere, but the number of days would probably start two weeks after the LBA is sent and finish on whatever date they cancel the PCC's enforcement.

Regarding legal costs: they can't get them from me contractually. I have checked for that. They can only recover legal costs related to some specific bits of legislation (specifically Law of Property Act 1925 S. 146 & 147; Landlord And Tenant Act (Covenants) 1995 S. 17.) It also says the landlord cannot be held liable for defects or want of repair unless the landlord has been notified and failed to remedy it in a reasonable time. In this case I have correspondence from the landlord explicitly stating they will not do anything, even if they could make a case that this clause applied.

eddddy said:
In these circumstances, I think a judge might see an injunction application as frivolous and completely unnecessary, and come down heavily on the OP for wasting the court's time.

Any previous examples? There's clear breaches of the leasehold agreement going on. All the other advice I've had is to avoid incurring necessary costs by displaying the permit under protest and meanwhile try to resolve the situation reasonably. Can't purposefully baiting an invalid PCN in order to create a reason to counter-claim be seen as unreasonable behaviour?

Or is it the case that the landlord is free to ignore their obligations in the leasehold agreement so long as it doesn't actually cause actual measurable monetary loss, even if it restricts my ability to use the space I bought?

eddddy

I think we're just going round in circles. As a final thought, consider the following:

I, eddddy, am serving notice on you that I will charge you £100 every time you park in your own parking place.


As a result of the notice above that I have just served on you, are you going to take out an injunction against me to stop me charging you - or would that just be a silly waste of everyone's time?

h2g2

eddddy said:

I think we're just going round in circles. As a final thought, consider the following:

I, eddddy, am serving notice on you that I will charge you £100 every time you park in your own parking place.


As a result of the notice above that I have just served on you, are you going to take out an injunction against me to stop me charging you - or would that just be a silly waste of everyone's time?

A Mr. Roger Davey obtained such an injunction in 2001 when parking controls were implemented at his residence and also won back the costs of obtaining the injunction in court.

NameUnavailable

Is this the same issue I read about in another thread where the OP has been parking in front of their garage on what is effectively an access road?

If this is the same issue the problem isn't about being fined for parking in their own space, it's about parking on 'common' ground that they don't have the right to.

Coupon-mad

eddddy said:

If somebody was genuinely stopping the OP from parking, for example by locking a gate, an injunction might be appropriate.

But the obvious solution in this case is to park, and not pay for a parking permit and to not pay any of the parking charges. And if the parking company take the OP to court, the court can decide whether the charges are payable.

In these circumstances, I think a judge might see an injunction application as frivolous and completely unnecessary, and come down heavily on the OP for wasting the court's time.

No that won't happen.  Didn't happen to Roger Davey when he got an injunction against UKPC in similar circumstances.

And this advice from @DullGreyGuy is also incorrect:

You don't get to choose where the case is heard... you state how much you are claiming, you fill in the directions questionnaire but ultimately a judge decides which track and which court will hear it. 

An individual DOES get to choose their local county court if suing a company.  And it will be allocated to the small claims track.

The reason for updating this thread now, is because we are discussing various similar cases on the parking board, including on a thread started there by @h2g2 who may be encouraged to read this:

https://forums.moneysavingexpert.com/discussion/6421843/i-sued-a-parking-company-and-won/p1

That poster sued a PPC successfully, then also sued (and won against) a residential RTM company for DPA 2018 breaches. Others are doing similar.

@h2g2 is considering doing the same. And other residents have pledged to support/join in any legal action he/she pursues.  Thread here on the parking board has the most recent updates:

https://forums.moneysavingexpert.com/discussion/6499026/pcc-claiming-to-be-able-to-charge-me-for-parking-in-space-granted-to-me-via-leasehold/p4

DullGreyGuy

Coupon-mad said:

You don't get to choose where the case is heard... you state how much you are claiming, you fill in the directions questionnaire but ultimately a judge decides which track and which court will hear it. 

An individual DOES get to choose their local county court if suing a company.  And it will be allocated to the small claims track.

They get to chose the location, they dont get to choose which track of the court it is to be heard in. If something goes into multi-track it may be heard in county court or may go up to the high court

Coupon-mad

DullGreyGuy said:

Coupon-mad said:

You don't get to choose where the case is heard... you state how much you are claiming, you fill in the directions questionnaire but ultimately a judge decides which track and which court will hear it. 

An individual DOES get to choose their local county court if suing a company.  And it will be allocated to the small claims track.

They get to chose the location, they dont get to choose which track of the court it is to be heard in. If something goes into multi-track it may be heard in county court or may go up to the high court

I think we both know it wouldn't go to multi-track for the sum and cause of action this poster is considering suing over.