Claim Form from Civil National Business Centre

CanineLover · 11 September 2024 at 11:09AM

IN THE COUNTY COURT

Claim No.: XXXXX

Between

XXXXXXXXX

(Claimant)

- and -

(Defendant)

XXXXXXXX

_________________

DEFENCE

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all. It is denied that any conduct by the driver was in breach of any term. Further, it is denied that this Claimant (understood to have a bare licence as agents) has standing to sue or form contracts in their own name. Liability is denied, whether or not the Claimant is claiming 'keeper liability', which is unclear from the boilerplate text in the Particulars of Claim ('the POC').

The facts known to the Defendant:

2. The facts in this defence come from the Defendant's own knowledge and honest belief. Conversely, the Claimant sets out a cut-and-paste incoherent and sparse statement of case. The POC appear to be in breach of CPR 16.4, 16PD3 and 16PD7, and fail to "state all facts necessary for the purpose of formulating a complete cause of action". The Defendant is unable, on the basis of the POC, to understand with certainty what case, allegation(s) and what heads of cost are being pursued, making it difficult to respond. However, the vehicle is recognised and it is admitted that the Defendant was the registered keeper.

3. The defendant is contesting the parking fine issued to me for temporarily parking in a restricted area. The circumstances surrounding this parking incident were beyond my control, and I believe my case aligns with the principles established in Jopson v Homeguard Services (2016), where temporary and reasonable use of communal or restricted areas was deemed permissible.

On the day in question, the car lift in my building was broken, preventing me from accessing my designated parking area. As a result, the Defendant had no choice but to park in a restricted area temporarily, ensuring I did not obstruct traffic or cause any damage. The necessity of the situation should be taken into account, just as in the Jopson case, where the judge ruled that temporary stopping to unload items was reasonable.

Jopson v Homeguard Services: In Jopson v Homeguard Services, Judge Harris QC ruled that parking enforcement must consider whether an individual’s actions were reasonable given the circumstances. The court held that brief, reasonable stops (such as unloading furniture) were different from actual parking and should not incur penalties

The defendant’s temporary parking was not a violation in the spirit of the restrictions, similar to how Ms. Jopson’s temporary stop was found not to be. In her case, Judge Harris emphasized that enforcement of parking rules must not disregard practicalities of daily life and the rights of tenants under a lease or agreement.

Furthermore, the Denfendant’s tenancy agreement does not mention any specific regulations regarding temporary parking in restricted areas in the event of unforeseen circumstances, such as a broken car lift. This lack of clarity supports the view that I was not in breach of any specific clause. In Jopson, the judge highlighted that where the lease or agreement does not clearly prohibit such actions, tenants should not be penalized unfairly (

The defendant submits that it is unreasonable and disproportionate to issue a penalty under these specific circumstances. My temporary parking was necessitated by the lack of access to my usual parking spot, and I moved the vehicle as soon as possible. The charge does not reflect a fair balance between enforcement and the reasonable use of space.

4. The Claimant will concede that no financial loss has arisen and that in order to impose an inflated parking charge, as well as proving a term was breached, there must be:

(i). a strong 'legitimate interest' extending beyond mere compensation for loss, and

(Ii). 'adequate notice' of the 'penalty clause' charge which, in the case of a car park, requires prominent signs and lines.

5. The Defendant denies (i) or (ii) have been met. The charge imposed, in all the circumstances is a penalty, not saved by ParkingEye Ltd v Beavis [2015] UKSC67 ('the Beavis case'), which is fully distinguished.

Exaggerated Claim and 'market failure' currently being addressed by UK Government

6. The alleged 'core debt' from any parking charge cannot exceed £100 (the industry cap). It is denied that any 'Debt Fees' or damages were actually paid or incurred.

7. This claim is unfair and inflated and it is denied that any sum is due in debt or damages. This Claimant routinely pursues an unconscionable fixed sum added per PCN, despite knowing that the will of Parliament is to ban it.

8. This is a classic example where adding exaggerated fees funds bulk litigation of weak and/or archive parking cases. No checks and balances are likely to have been made to ensure facts, merit or a cause of action (given away by the woefully inadequate POC).

9. The Department for Levelling Up, Housing and Communities ('the DLUHC') published a statutory Parking Code of Practice in February 2022: https://www.gov.uk/government/publications/private-parking-code-of-practice.

The Ministerial Foreword is damning: "Private firms issue roughly 22,000 parking tickets every day, often adopting a labyrinthine system of misleading and confusing signage, opaque appeals services, aggressive debt collection and unreasonable fees designed to extort money from motorists."

10. Despite legal challenges delaying the Code (temporarily withdrawn) it is now 'live' after a draft Impact Assessment (IA) was published on 30th July 2023. The Government's analysis is found here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1171438/Draft_IA_-_Private_Parking_Code_of_Practice_.pdf

How is this looking ?

Coupon-mad · 11 September 2024 at 11:19AM

CanineLover said:

Having read the tenancy agreement, there isn't any mentioning of parking in a restricted area for any reason, i'm thinking if i submit a defence based on facts from Jopson v Homeguard and it comes to submitting the evidence then i have no leg to stand on as theres nothing in the tenancy agreement.

Luckily, that's wrong. You clearly have a right to park as you have secure access to the car park area.

I see you have now followed our advice and shown us a better draft defence including the words found from other defences about Jopson. Very good!

You do also need to tell the court that you have a key fob to the secure area reached by lift but it was briefly malfunctioning. You were clearly reasonably entitled to wait for access and not be penalised for it.

Suitable wording about key fobs is already written in the examples of residential defences linked in the 2nd post of the NEWBIES thread. Insert it into the Template Defence as paras 3, 4, 5 and re-number the template below it.

Every paragraph needs a number. At the moment yours are not numbered.

And you need the rest of the Template Defence (but pleeease don't show us that here! Make sure your actual document has the full 35 paragraphs or whatever it will be once your facts paragraphs are numbered.

CanineLover · 11 September 2024 at 11:46AM

IN THE COUNTY COURT

Claim No.: XXXXXX

Between

XXXXXXXXXX

(Claimant)

- and -

(Defendant)

XXXXXXX_________________

DEFENCE

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all. It is denied that any conduct by the driver was in breach of any term. Further, it is denied that this Claimant (understood to have a bare licence as agents) has standing to sue or form contracts in their own name. Liability is denied, whether or not the Claimant is claiming 'keeper liability', which is unclear from the boilerplate text in the Particulars of Claim ('the POC').

The facts known to the Defendant:

2.The facts in this defence come from the Defendant's own knowledge and honest belief. Conversely, the Claimant sets out a cut-and-paste incoherent and sparse statement of case. The POC appear to be in breach of CPR 16.4, 16PD3 and 16PD7, and fail to "state all facts necessary for the purpose of formulating a complete cause of action". The Defendant is unable, on the basis of the POC, to understand with certainty what case, allegation(s) and what heads of cost are being pursued, making it difficult to respond. However, the vehicle is recognised and it is admitted that the Defendant was the registered keeper.The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

3. The Particulars of Claim on the N1 Claim Form refer to 'Parking Charge(s)' incurred on [DATE]. However, they do not state the basis of any purported liability for these charges, in that they do not state what the terms of parking were, or in what way they are alleged to have been breached. In addition, the particulars state 'The Defendant was driving the vehicle and/or is the keeper of the vehicle' which indicates that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5.

4. The underground car parking area contains allocated parking spaces demised to some residents, and a general area for residents who do not have an allocated space. Entry to the underground parking is by means of a key fob, of a type only issued to residents. Any vehicles parked therein are, therefore, de facto authorised to be there.

5. 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.

6. 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.

7. The Claimant, or Managing Agent, in order to establish a right to impose unilateral terms which vary the terms of the lease, must have such variation approved by at least 75% of the leaseholders, pursuant to s37 of the Landlord & Tenant Act 1987, and the Defendant is unaware of any such vote having been passed by the residents.

8. Further and in the alternative, the signs refer to 'Authorised Vehicles Only/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 a nonsense, since if there is no permission, there is no offer, and therefore no contract.

9. The Defendant's vehicle clearly was 'authorised' as per the lease and the Defendant relies on primacy of contract and avers that the Claimant's conduct in aggressive ticketing is in fact a matter of tortious interference, being a private nuisance to residents.