Defence for PCN CCJ Set Aside

peanutbutterjamjam

Hello all,

I received a CCJ for a PCN for a parking space I rent from the lease holder.

I applied to the county court to have the CCJ set aside and attended court.

the judge agreed to set aside the CCJ and that I needed to submit my defence on the basis I have permission to park in the space by the lease holder.

I have since received a copy of the lease from the lease holder that details the parking space with in it.

Can you help providing legal wording I should use to submit with the defence.

cheers,

Coupon-mad

Well done on getting the CCJ set aside. Was the claim sent to an old address? Did you ask for your costs to be paid by the Claimant?

Use the Template Defence and the extra wording for residential cases - both of those are in post 2 of the NEWBIES thread.

peanutbutterjamjam

@Coupon-mad thanks for your response. I was out of the country in the response time period. Yes judge said I can claim setting aside costs. Is there any other cost I can claim for instance time spent making a defence.

Coupon-mad

Not unless the C behaved unreasonably which it doesn't sound like they did. But those costs might come into play if they discontinue very late.

 I suggest you send a costs assessment with your defence, and a witness statement attaching the evidence the judge wants to see.

peanutbutterjamjam

Thank you so much for your help @Coupon-mad.

Here is a draft of my defence below I will add costings to it as advised.

All of the points raised are backed with evidence.

if you have time and you think there is anything I should add / remove that would be amazing

IN THE COUNTY COURT 

Claim No.: 

Between 
(Claimant)

-and-



(Defendant)


DEFENCE

 

1.     I am Defendant , of  Address , 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 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

3.     The defendant has rented the parking space in question from  lease holder of the space since and continues to do so. The defendant pays a monthly rental fee through each month never missing a payment and had her permission to park on all the dates the Claimant issued the  PCN. Please see evidence attached in the form of receipts exhibit and Exhibit 

4.     Lease details the inclusion of the parking space. Please see exhibit 

5.     There are no terms within the lease requiring lessees or occupants to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same. Please see exhibit.

6.     To access this car park you must enter through two electronically controlled gates by swiping an electronic fob over a receiver. I have been in possession of the access fob since date. Any vehicles parked therein are, therefore, de facto authorised to be there. Please see evidence attached of these electronic gates numbered. 

7.     On neither of these access gates is there any Parking signage. Please find evidence of this in evidence numbered. A parking sign is found on the wall to the right hand side of the first electronic gate and can be seen detailed in photo evidence numbered. Evidence of pre-existing right to park can be seen in cover letter numbered and Leaseholder agreement numbered.

8.     On neither of these access gates is there any Parking signage. Please find evidence of this in evidence numbered . A parking sign is found on the wall to the right hand side of the first electronic gate and can be seen detailed in photo evidence numbered .

Authority to Park and Primacy of Contract

 

9.     It is denied that the Defendant or lawful users of his vehicle were in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the Defendant permitting the above mentioned vehicle to be parked by the current occupier and leaseholder, whose leaseholder agreement includes parking  Bay. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms. A copy of the leasehold agreement will be provided to the Court, together with witness evidence that prior permission to park had been given. Please see Exhibit 

10.  The Defendant avers that 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 lease. The Defendant will 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. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial.

 

Breach of International Parking Community Code Of Practice

11.  Entrance signage at the Car Park is insufficient and in breach of the International Parking Community Code of Practice which the Claimant is a member of and states as follows “Entrance signs should 1. Make it clear that the motorist is entering private land 2. Refer the motorist to the signs within the car park which display the full terms and conditions.” Please see evidence of this in exhibits. The parking signage at parking entrance do not refer to signs within the carpark.

No Offer Of Parking

12.  The signage at the entrance to the carpark forbids parking, then there is no offer to park and therefore no contract. The Defendant will rely upon the judgments on PCM-UK v Bull et all B4GF26K6 [2016], In UKPC v Masterson B4GF26K6[2016] and Horizon Parking v Mr J C5GF17X2 [2016]. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial.

Refusal To Communicate

13.   The Defendant has tried to communicate with the claimant to discuss and mediate with the claimant on a number of occasions, however in all instances the claimant has refused, said it is following parking enforcement framework.  Rather than mediate they have always insisted their preference was to take make legal action the only time I will have that opportunity with them is in court. The Claimant only wished to communicate with the bombardment for payment demands,

Accordingly, it is denied that:

14.  There was any agreement as between the Defendant or driver of the vehicle and the Claimant

15.  The Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

Statement of Truth

I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

 

Defendant’s signature:

 

Date:

Le_Kirk

peanutbutterjamjam said:

Here is a draft of my defence below I will add costings to it as advised.

I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

Isn't it a defence?

peanutbutterjamjam

Yes sorry. Need to amend this.

Coupon-mad

No that is your WS. Leave it as the WS.

Did you miss that I said you need both?

peanutbutterjamjam

Sorry I have managed to become confused with this my apologies. I used MCOL to apply to have my case set aside and is how I ended up at county court with the judge and claimant. Do I need to resubmit this again?

peanutbutterjamjam

I have just tried to sign into MCOL and respond and it doesn't allow me to so should I just complete it in a work doc and send it to the judge and the claimant?

kryten3000

peanutbutterjamjam said:

I have just tried to sign into MCOL and respond and it doesn't allow me to so should I just complete it in a work doc and send it to the judge and the claimant?

Moneyclaim online doesn't have anything to do with this now, it's at your local court already, so send the documents there (and to claimant or their legal representative).  PDF is better than .DOCX.