LOC from BW Legal - advice requested

Coupon-mad

I know.  I saw that. Settle on one or the other, or quote their one with (sic) after the word.

jd576

I’ve included a section on primacy of contract, since the parking managed by the parking company is in a residential housing estate. There is no commercial parking available in this site - only parking for tenants and their visitors. The right to use the parking bays is included in the tenancy agreement (precise wording below, supplied by the tenant) and the tenant has confirmed that there is no agreement in place between the tenant and the parking management company. The parking conditions have been imposed on the tenant by the Claimant.

I’ve cobbled together the below from a number of sources linked on this forum. Would appreciate any comments as to how cogent this section is.

 

Authority to Park and Primacy of Contract

16.   The Tenant’s [the term Tenant is defined elsewhere in the Defence] lease agreement with the lessor [LESSOR NAME] dated [DATE] allows the Tenant “the right to park up to six vehicles at the Landlord’s Development in such places and at such times and subject to such conditions as the landlord acting reasonably shall determine from time to time”.

17.   The Defendant denies being in breach of any parking conditions, which cannot override the Tenant’s tenancy agreement that permits the parking of vehicles and includes no relevant obligation for a parking fee or an obligation to use a permit system. The terms of the Tenant’s lease agreement confer an absolute entitlement to park, which cannot be fettered by any alleged parking terms imposed by the Claimant, a third-party. The Claimant, who has no standing, targets tenants and attempts to run a businesses that relies on unfairly charging tenants and their legitimate visitors for parking rights already conferred by the signing of the tenancy agreement.

18.   In Pace v Mr N C6GF14F0 [2016] and Link Parking v Ms P C7GF50J7 [2016], it was found that the parking company could not override the tenant’s right to park by requiring a permit to park.

19.   Furthermore, it is not sufficient for an operator to point to a clause which allows a lease to be varied: the lease must explicitly be varied by the lessor in writing. In Pace v Mr N C6GF14F0 [2016], it was found that clauses in the lease agreement allowing a lessor to impose further conditions required at least a month’s notice in writing from the lessor. A clause ostensibly permitting variations, however, does not give carte blanche to introduce any terms at the whim of the lessor.  Such unilateral variation clauses should not be to the significant detriment of the lessee.

20.   In Jopson v Homeguard [2016] B9GF0A9E it was established that ParkingEye vs Beavis [2015] UKSC 67 does not apply to residential parking, bringing the penalty doctrine back into play. The charge will therefore likely be a penalty and unfair consumer charge unless it is found that the charge is a genuine pre-estimate of loss or there is commercial justification. The supreme court, however, found that £85 was not a genuine pre-estimate of loss in Beavis as there was no direct loss to the parking company and additionally, it would be nigh on impossible to establish a commercial justification for charging tenants and their visitors hundreds of pounds a year to park in their own parking spaces.

21.   The Defendant avers that the Claimant’s signs cannot i.)  override the existing rights enjoyed by tenants and their visitors; and ii.) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard [2016] B9GF0A9E and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011.

 

jd576

If anyone has any pointers to more case law on the lease agreement clauses that allow variation and what the limitations on that might be, it would be appreciated

Coupon-mad

I think that looks very good.

jd576

So, I just filed the defence by email. I received an auto-reply



Looking at the linked practice direction 5B, it has some details I was unaware of. Specifically

• The email must be in text or RTF format, not in HTML. By default, Outlook sends in HTML format, so this defence I emailed is in HTML format. The actual defence is a PDF document attached to the email
• The subject line must include the party names as well as the claim number, abbreviated if necessary. I put only the claim number
• The email must include the telephone number of the sender, which I didn't add.

BUT, 5B 2.3(c) also states that "only one e-mail, including any attachments, may be sent to the court to take any step in the proceedings and a party may not send another e-mail or a hard copy of any additional document as part of that step", so I cannot send another email correcting the HTML format and adding the party names to the subject line. 

The delay in responding they've given is after the deadline for submission of the defence, so it's too long to wait for a reply. I've currently been waiting on the CNBC phone for a bit under an hour with no response and I'm not optimistic they'll pick up before phone-line closing time at 5pm.

Any recommendations on what to do?

jd576

jd576 said:

So, I just filed the defence by email. I received an auto-reply


Looking at the linked practice direction 5B, it has some details I was unaware of. Specifically

• The email must be in text or RTF format, not in HTML. By default, Outlook sends in HTML format, so this defence I emailed is in HTML format. The actual defence is a PDF document attached to the email
• The subject line must include the party names as well as the claim number, abbreviated if necessary. I put only the claim number
• The email must include the telephone number of the sender, which I didn't add.

BUT, 5B 2.3(c) also states that "only one e-mail, including any attachments, may be sent to the court to take any step in the proceedings and a party may not send another e-mail or a hard copy of any additional document as part of that step", so I cannot send another email correcting the HTML format and adding the party names to the subject line. 

The delay in responding they've given is after the deadline for submission of the defence, so it's too long to wait for a reply. I've currently been waiting on the CNBC phone for a bit under an hour with no response and I'm not optimistic they'll pick up before phone-line closing time at 5pm.

Any recommendations on what to do?

Well, they picked up the phone just prior to 5pm and the person on the phone was super helpful. I directed her to practice direction 5B and explained the concerns.

She said she was unaware even of these technical requirements, that I was the first person ever to make such a query of her and noted how surprised she was that I actually went and read the linked document.

She said they normally recommend on the phone to defendants an email subject line exactly as I put it "Claim [NUMBER] - Defence attached". 

She said that they will never reject a defence because the subject line doesn't contain the party names or the body doesn't contain a telephone number. The only reason they'd reject a defence would be if it is unsigned or over 10MB/25 pages in size. 

That said, it might be worthwhile putting this info (text/RTF format, party names in the subject line, telephone number in the body) into point 5 of the template defence instructions. May as well dot i's and cross t's

LDast

Don't worry. The requirement for the "email" to be in text or RTF format only applies if the body of the email is to be regarded as a document for submission. I tis not. The email is simply a "container" used to carry your PDF document that is the document being submitted.

Likewise regarding the subject line, as long as the claim number is in there, it will not be rejected.

Again, not providing a phone number will not have any effect on your submission. Not everyone has a phone number.

You have the required email auto-response and your defence was a PDF attachment and the email subject contained the claim number. All is good and you can stop panicking.

Le_Kirk

If they were serious about rejecting defences (or any e-mails) that broke their "rules" why is it not made perfectly clear BEFORE you send the e-mail with your defence attached.  It is a bit late afterwards.  Someone at CNBC needs to try spending a day outside their environment trying to deal with themselves - especially trying to get someone to answer a phone call!

jd576

I just reread the link from the CPR 5B Clause 1.3(b) to the email guidance, a document that doesn't actually exist anymore, but is available on the government archive (http://aka.justice.gov.uk/courts/email-guidance#canfile), since I tend to obsess over these things and check them multiple times, which tendency is exacerbated by the recent reports on this forum of failures by CNBC to record submissions or respond in time. 

To my dismay, I noted that there's a specific requirement that I bone-headedly omitted - typing my name under the signature which follows the statement of truth. I put only my signature and the date.

If you are filing a document by email that contains a statement of truth you are reminded that you should retain the document containing the original signature. The version of the document which is filed by email must satisfy one of the following requirements:

(a) the name of the person who has signed the statement of truth is typed underneath the statement

(b) the person who has signed the statement of truth has applied a facsimile of his signature to the statement in the document by mechanical means

[ Surprisingly, electronic signatures apparently not permitted, but I did sign my physically ]

Further down the guidance, it notes

What the court will do with your email
The court will check your email and either respond to your enquiry or, where further action is required, will confirm in due course.

The date of filing will normally be the date of receipt unless the time of receipt is recorded as after 16.00 in which case the date of filing will be the next day the court office is open.If your email does not comply with the requirements of the Practice Direction your documents will be treated as having not been filed and in due course you will be sent a reply stating that it has been rejected and the reasons why.

So I called the CNBC again today for advice. After holding for literally two hours, they were totally unhelpful. The only thing they suggested was file a N244 application to amend my response to the claim at an exorbitant fee.

CNBC said they only pass it on the to the court. They don't know if it will be rejected or not. They can't speed up processing. I can't send another email according to CPR 5B.



So, I can't send another email with a corrected signature block, and with the ridiculously long times CNBC takes to process anything, by the time they come back to me, if the defence is rejected for technical reasons, I'm well outside the time required to respond and it's a default CCJ against me.

Anyone had similar experiences or has some practical advice on what to do you? File an amended defence on form N244 or just wait and see. It would be a disaster if the defence is rejected for technical reasons. At this stage, it would be cheaper to just pay the parking company's extortion demand than pay for an amended response, but the consequence of rejection of the defence if I fail to do amend it on form N244 is a potential default CCJ against me. 

It's Fawlty Towers style stuff. Totally inadequate procedures, linking of guidance on making a submission only after that submission is already made, inability to correct a technical signature error, etc., technical rules that are linked on non-existent websites and spread all over the place. The list of inadequacies is long.

I have until 5 August. (Date of issue of claim 03 July 2024)

Coupon-mad

Just wait. No-one has had an issue.  MCOL might already show your defence as filed?  If not, it will soon.