DCBL - Court Hearing

Fiiii

Hello please check my draft WS 

I will add more from templates but just want some advice if I am writing this in right direction?

my tenancy agreement only states : Parking clause: parking permitted. That’s it 

Witness Statement of Defendant

1.    I am xxx, and I am the defendant against whom this claim is made. The facts below are true to the best of my belief and my account has been prepared based upon my own knowledge.

2.      In my statement I shall refer to (Exhibits 1-12) within the evidence supplied with this statement, referring to page and reference numbers where appropriate. My defence is repeated, and I will say as follows:

 

Background and Facts:

 

3.      It is admitted that all material times I am the registered keeper and driver of the vehicle registration xxx which is subject of these proceedings.

4.      It is admitted that I am a hold full valid tenancy residence status which authorises me to park a roadworthy vehicle in this carpark of the property which is in question.

 

5. Authority to Park and Primacy of Contract: It is denied that I was in breach of any contract or parking conditions as my tenancy agreement clearly permits my vehicle to be authorised to park on land. (Exhibit 1 to evidence this Primacy of Contract)

I declare that there was an absolute entitlement to park deriving from the terms of the tenancy, which cannot be fettered by any alleged parking terms. The tenancy agreement term provides me the right to park a vehicle in the residence parking area, without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle, or without any limitation of parking permit or bay area mentioned. (Refer to Exhibit 1)

The operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the tenancy contract. I shall rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011.

5.      Parking Notice: The claimant pursues a claim for ‘Permit displayed does not match Bay/area vehicle is parked in.’ On the day of the alleged parking events, I parked my vehicle wholly within a bay as per the visible signage indicating parking restrictions or regulations, there is no mention of parking only within your designated flat bay. In the absence of contractual signs located proximate to the bay, clearly visible and easily readable from within the vehicle or immediately upon exiting, the absence of any contractual agreement becomes evident. (See Exhibits 05 & 06).

 

6.      No Contract, No Breach: Without a 'relevant obligation' stipulated by such signage, there can be no breach. The instructions on the signage at location does not mention anything about a ‘designated bay’ or matching a bay number with permit no' hence this might be thought to be ambiguous, the Consumer Rights Act 2015 confirms:

“Section 69: Contract terms that may have different meanings

Contract terms can be ambiguous and capable of being interpreted in different ways, especially if they are not in writing or in an accessible format. In these cases, this section ensures that the interpretation that is most beneficial to the consumer, rather than the trader, is the interpretation that is used.”

Fiiii

@KeithP @Coupon-mad @Gr1pr please review if you can 

Fiiii

I feel like I’m going round and round in circles

As there argument is based of breach of contract 

so I could either counter by saying there is no mention of bay number to match permit no on your signage 

or I could completely base it on the primacy of contract where I can say there is no contract between me and parking company and my tenancy agreement allows to lawfully park without any permits/bays restrictions mentioned

or can I include both points?

Coupon-mad

Hmmm... do all four sets of photos (all 4 PCNs) show your car clearly parked in a wrong bay (someone else's bay)?

Or sometimes on a side area?

Also, in your defence you mentioned some good evidence you hold about complaints made, notes and other stuff that shows that NPE were negligent in their management of the spaces. Yet you seem to have forgotten that evidence now?

Yes, a second signed WS from the neighbour (stating whether they are a tenant or a leasehold owner of their flat x and from what date) confirming that they allowed you to use their bay on these occasions because NPE's operation was shambolic, could help you turn this around.

Gr1pr

4) does not make sense, the grammar is not correct ( I have no Idea if English is your primary language but it doesn't read properly. )

The pictures of the tenancy agreement are too big, cut off so unreadable, please go back and fix them or fix and repost the relevant clauses 

I assume that the Claimant is NPM , National Parking Management. ?

You still haven't answered the question about hearing date and deadline date for the bundle submission, unless I missed it 

Fiiii

@Coupon-mad yes in all 4 tickets I’m parked in another bay and not on the side road 

ok I’ll evidence the complaints bit

is there a particular format to be followed in WS?

Fiiii

Thanks @Gr1pr I’ll correct changes and repost 
tbh tomorrow is the last day to file the witness as hearing is in 2 weeks 

Coupon-mad

Fiiii said:

@Coupon-mad yes in all 4 tickets I’m parked in another bay and not on the side road 

ok I’ll evidence the complaints bit

is there a particular format to be followed in WS?

Yes as explained in the NEWBIES thread with linked examples and a whole a-f list of suggested Exhibits. 

No link. Easy to find. As I said here to this person just minutes ago:
https://forums.moneysavingexpert.com/discussion/comment/80927625/#Comment_80927625

Gr1pr

The particular format are the half a dozen ones listed by user name by coupon mad in the exemplar witness statements listed by her in the second post in the newbies sticky thread in announcements, a few threads down from the top of the forum 

I did mention that fact earlier on 

I did suspect that your deadline was imminent 

Fiiii

Hello please if someone can review my final draft? Thanks for all the inputs 

Witness Statement of Defendant

1.    I am xx, and I am the defendant against whom this claim is made. The facts below are true to the best of my belief and my account has been prepared based upon my own knowledge.

2.    In my statement I shall refer to (Exhibits 1-12) within the evidence supplied with this statement, referring to page and reference numbers where appropriate.

Background and Facts:

3.    It is admitted that all material times I am the registered keeper and driver of the vehicle registration xx which is subject of these proceedings.

 

4.      It is admitted that I hold a full valid tenancy residence status which authorises me to park a roadworthy vehicle within the carpark which is in question.

5.      The claims against me relates to parking charges that were allegedly to occurred at my current address of residence at which I have been residing as a tenant for 5 years at xx from Oct 2019 to present date. (Please refer to Exhibit 1 for Tenancy Agreement)

Authority to Park and Primacy of Contract:

1. It is denied that I was in breach of any contract or parking conditions as my tenancy agreement clearly permits my vehicle to be authorised to park on land. (Please refer to Exhibit 2 for the parking clause in my Tenancy Agreement)

 

1. I declare that there was an absolute entitlement to park deriving from the terms of the tenancy, which cannot be fettered by any alleged parking terms. The tenancy agreement term provides me the right to park a vehicle in the residence parking area, without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle, or without any limitation of a specific parking permit or bay area mentioned.
   
   

 

1. The operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the tenancy contract. I shall rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) where on appeal it was found that the parking company could not override the tenant's right to temporarily stop near the building entrance for loading/unloading.
   
   

 

1. 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 same. Therefore, my case relies on Primacy of Contract. I refer previous cases such as Pace v Mr N [2016] C6GF14F0 [2016] (Exhibit 3), where it was found that the parking company could not override the tenant's right to park by requiring a permit to park.

 

No Contract – No Breach:

1. No 'relevant contract' or 'relevant obligation' was communicated to residents, nor would I have accepted a contract foisted upon me with onerous terms and charges. It is not enough to put signs up and ride roughshod over the rights of residents that already exist, and which take precedence, given the tenancy title held.
   
   
2. This Claimant is trying to run our residence car park like a commercial site, on the same punitive terms as a trespasser would be charged. This would clearly be a derogation from my grant, and I wish to make clear that I did not agree to contractual terms, just because a permit was imposed upon me with no opt out offered. Permits were displayed as a courtesy only, to show other residents who was parked, and we have previously always been able to stop to unload or load items anywhere in the car park area. 
   
   

Parking Notice and Signage:

 

12.  The claimant pursues a claim based on the parking notice displayed in the parking area. However, their claim against me refers to ‘Permit displayed does not match Bay/area vehicle is parked in.’ On the day of the alleged parking events, I was correctly parked with my vehicle wholly within a bay as per the visible signage indicating parking restrictions or regulations, there is no mention of parking only within your designated flat bay.  In the absence of contractual signs located proximate to the bay, clearly visible and easily readable from within the vehicle or immediately upon exiting, the absence of any contractual agreement becomes evident. (See Exhibits 04 & 05).

 

13.  Without a 'relevant obligation' stipulated by such signage, there can be no breach. The instructions on the signage at location does not mention anything about a ‘designated bay’ or ‘matching a bay number with permit no' hence this might be thought to be ambiguous as the Consumer Rights Act 2015 confirms: “Section 69: Contract terms that may have different meanings Contract terms can be ambiguous and capable of being interpreted in different ways, especially if they are not in writing or in an accessible format. In these cases, this section ensures that the interpretation that is most beneficial to the consumer, rather than the trader, is the interpretation that is used.” (the signage as provided by the Claimant in Evidence Exhibit 2 and in my Exhibit 6 confirms this)

 

14.   The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 (Exhibit D) 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 my 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 and the Beavis case does not clearly apply to residential parking.

15. I’d like to also state the Claimant did not display clear, large, prominent signs within the site that were capable of being read from the driver's seat and/or forming a contract, contrary to the BPA CoP, PoFA and the Beavis Vs ParkingEye 2015 case. (Exhibit 7 pictures of Bay and Signage). From the pictorial evidence you can see that the font type is incredibly small and would not be legible from the driver’s seat, and is purely aimed at only unauthorised driver, not myself.

Poor parking management and neighbours exhibits:

16. To further prove my stance, I have attached phone calls reference to the customer service team of National Parking Control Limited (Exhibit 8) where they did not attend my phone calls at the time of alleged contravention. At the time of my arrival to the car park, I found unknown vehicles (non-residence) to be parked in my bay (proof attached in Exhibit 9-10)hence I temporarily either parked in Bay 136 (as the tenant did not have a vehicle to park and gave me his verbal permission to use when required) or I had parked in Bay 133 (for which I have attached written permission from the tenant at the time, see Exhibit 11)

17. Regarding the dissatisfaction of the Claimant’s management of our residence car park and their conduct in aggressive ticketing is in fact a huge problem being faced by the current residents (one such complaint is served as an example to the court in Exhibit 12) and it is also a matter of tortious interference, being a private nuisance to residents. In this case, the claimant continues to cause a substantial and unreasonable interference with the defendant’s property of tenancy, or his use or enjoyment of the land/property. (To evidence, complaints to the renting company are provided inExhibit 13 and also see Exhibit 14 for some baseless ticketing and retraction examples of the Claimant)