Defence Form help appreciated!

elPedro666

Hi all, I've been searching this forum for assistance with a parking charge I believe unjust and frankly absurd, and I'd really appreciate your opinion on the defence below which I intend to return to the Court attached to the Defence and Counterclaim form. I'm having to scan and email these as the online system doesn't recognise my Claim number.

The ticket is for my car, parked in my space (which I own). The freehold of the property (building and carpark) is owned by the Management Company formed by all of the flat owners, of which I was, at the time, the sole director. Despite all of this, UK Parking Patrol refuse to cancel a ticket from the one day my pass dropped off the windscreen. Utterly ridiculous.

Anyway, I've included the troubled history and circumstances of the building as it's quite unique, but I'm not sure if that's helping or damaging my case. Honestly you'd think the sentence above should be enough!

I'm also interested in whether I should be adding a Counterclaim for my stress and wasted time.

All comments gratefully received.

We have owned and lived in our flat at Mac Court since it was converted in 2011, I feel it is helpful to have an idea of the history of the property, which I will keep as brief and relevant as I am able.

After being let down by the developer who failed to complete the building, the flat owners together gained the Right to Manage on the 13th July 2015 and established Mac Court Management Company Ltd (henceforth 'We'). We appointed Realty Management to oversee the day-to-day running of the building. We have since changed Management Company and are investigating large bills paid to contractors appointed by Realty, for which there does not seem to have been anything received in return.

On 28/08/2020, Mac Court Management Limited acquired the freehold to the property. This includes the building itself and surrounding land which includes the carpark.

UK Parking Patrol (UKPP) were tasked to reduce the unauthorised use of our carpark by non-residents, and thus improve the situation for Mac Court residents. The express intent of Mac Court Management Ltd has always been to improve the situation for flat owners, owner-occupiers and tenants of building. Penalising residents is clearly contrary to everyone's best interests and of financial detriment to the flat owners and Freeholder.

The Defendant is an owner-occupier in the building and also owns the parking space. The same car has been parked there since July 2019, so should be a very familiar sight to parking patrols. On a particularly damp day, the parking pass came unstuck from the wet windscreen and fell onto the front passenger seat and the Defendant received the ticket in question. The Defendant explained this to UK Parking Patrol and asked, as the owner of the parking space, for them to cancel the ticket. They refused and were then also requested to cancel the ticket multiple times by the director of Mac Court Management Company Limited (the Freeholder). In addition Realty were instructed to relay the same request.

Why UKPP continued to act contrary to the interests of, and express wishes of, the residents, flat owners, Management Company and Freeholder who they were supposed to be working on behalf of, and on whose land they were operating, continues to baffle me.

This claim sights a, "failure to obtain authorisation", I do not believe that having a permit lose it's stickiness and fall from a wet windscreen on one of the more than two thousand days it has been there, negates the authority stated in the Lease, and expressly given by the owner of the parking space, the Management Company responsible for the site and the Freeholder of the property, for a resident to park in their own, owned bay.

The presence of the Claimant on the land was by appointment of the Landowner, to prevent parking by uninvited persons for the benefit of residents. In recognition of this and the Defendants entitlement to park, the Landowner has instructed that the Claimant withdraw the charge against the Defendant but has been denied this privilege by the Claimant

In Pace v Mr N [2016] C6GF14F0 [2016] it was found that the parking company could not override the tenant's right to park by requiring a permit to park.

In Link Parking v Ms P C7GF50J7 [2016] it was also found that the parking company could not override the tenant's right to park by requiring a permit to park.

Furthermore I believe it is worth noting that:

There is no standard entrance sign on the carpark, as mandated by BPA Code of Practice 18.2, which is required to establish a contract. Accordingly, it is denied that there was any agreement between the Defendant and the Claimant.

The defendant would also like to 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. 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 an unauthorised driver, not the defendant.

Even if the court is minded to accept that a sign was visible, the wording on the sign was prohibitive. Unlike in the Beavis vs ParkingEye case, the Claimant offered no licence to park if not a ‘permit holder’. A purported licence to stop without a permit, in exchange for payment of a ‘charge’ on the one hand, cannot be offered when that same conduct is, on the other hand, expressly prohibited in the signage wording. This does not create any possible contract.

This is clear from several cases. An example in PCM-UK v Bull et al B4GF26K6 [2016], residents were parking on access roads. The signage forbade parking and so no contract was in place. A trespass had occurred, but that meant only the landowner could claim, not the parking company.

Drawing on the findings of the Supreme Court in ParkingEye v Beavis, a parking charge of this high amount would be an unrecoverable penalty, because the rationale behind pursuing a known resident to court and refusing an express cancellation instruction from the Claimant's principal (the landholder) unreasonably goes beyond the intentions of the scheme and has no commercial justification nor 'legitimate interest', indeed it is entirely counter to the commercial interests of the Claimant's principle.

Gr1pr

Seems more like a Witness Statement, nothing like the defence template in announcements near the top of the forum by coupon mad ( and a concise defence is written in the 3rd person )

Name the Solicitors involved ( is it Gladstones ? ) , and presumably it's UKPPO as the claimant. ?

Post the Issue date from the top right of the claim form below and also post a redacted picture of the POC from the lower left of the claim form below after hiding the VRM details first

Start again using the defence template , bearing in mind that your defence should refute the POC ( A defence can be as simple as, Not Guilty, so prove otherwise )

Save your stories and explanations for your WS in several months time, so your opening post above can be adapted for the WS at the appropriate time

Ps, you wont be filling in any forms, no paperwork is involved here

elPedro666

https://forums.moneysavingexpert.com/discussion/comment/81921305#Comment_81921305

Thank you, that's exactly what I needed to hear. Unfortunately I wrote the thing before I found this forum so had no clue - I think I was aiming to appeal to the Court's humanity about what a daft situation this is 😆

I'm currently on hold to the Court because there is a bar placed on the claim which I don't understand. I have submitted the Acknowledgement of Service via email as per the instructions of the Court, as MCOL wasn't recognising my Claim number. Apparently it just doesn't sometimes (how helpful). Now I am managing to access MCOL but unsure what to do about the Bar - will update when I finally get to speak to someone...

In the meantime I am going through the template and have this as my No.3. My guess is that I should take out the links to precedents to shorten it...?

Thanks again, your help is very much appreciated!

3. The Defendant denies the allegation of a 'failure to obtain authorisation and/or display a valid permit'. The Defendant is granted authority to park in the bay the Defendant owns by the terms of the Lease and the express permission of the Owner/Freeholder of the property.

There is no standard entrance sign on the carpark, as mandated by BPA Code of Practice 18.2, which is required to establish a contract. Accordingly, it is denied that there was any agreement between the Defendant and the Claimant.

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. Font type is incredibly small and would not be legible from the driver’s seat, and is aimed at only an unauthorised driver, not the defendant. The signs are unlit and hence unreadable at night when the alleged breach occurred.

The wording on the sign was prohibitive. Unlike in the Beavis vs ParkingEye case, the Claimant offered no licence to park if not a ‘permit holder’. A purported licence to stop without a permit, in exchange for payment of a ‘charge’ on the one hand, cannot be offered when that same conduct is, on the other hand, expressly prohibited in the signage wording. This does not create any possible contract.

This is clear from several cases. An example in PCM-UK v Bull et al B4GF26K6 [2016], residents were parking on access roads. The signage forbade parking and so no contract was in place. A trespass had occurred, but that meant only the landowner could claim, not the parking company. In this case the Defendant is also the landowner.

Requests to cancel the charge were made by the authorised user and owner of the bay, the Management Company and the Freeholder. All were refused by UKPP.

Gr1pr

Far Too long and no links required, I did ask you which solicitors are involved ? For good reason !

Post the Issue date from the top right of the claim form below and also post a redacted picture of the POC from the lower left of the claim form below after hiding the VRM details first

I did say save the stories ( and therefore appealing to the future courts humanity ) for your future Witness Statement

Paragraph 3 should be very concise , one numbered paragraph

The AOS should have been completed on MCOL, so hopefully the bar is to stop judgment whilst the CNBC process your AOS email, seeing as you could not do so on MCOL

Please note, at the moment there is no court, just the CNBC in Northampton

elPedro666

After an hour or so on hold... The Bar basically just means that the Claimant can't do anything until I've had time to respond, which is nice. Do feel like I should mention that the folks on the other end of the Court's 0300 number are very polite and helpful, great to deal with 👌

The reason I've had trouble with MCOL seems to be due to the Claim not being filed online; I assume this is in order to make life more difficult for the Defendant. Over the phone, the Court has given me a different email address to forward the Defense form to.

Gr1pr

I think that you will have to post a properly redacted picture of the claim form, especially if its not been done on MCOL ( no personal or private information, not allowed on here. )

Post the email address they asked you to use too, because my alarm bells are ringing when cases don't follow the standard process

Coupon-mad

"Over the phone, the Court has given me a different email address to forward the Defence form to. 

Oh dear.

Last time we saw the supposedly 'helpful' staff at the CNBC do this, they provided an incorrect email address that was years out of date and isn't checked.

Also you are NOT FILLING IN THE DEFENCE FORM.

Go on, tell us the email address they gave you!

elPedro666

The email over the phone thing has been making me nervous too!

Claimresponses.Cnbc@justice.gov.uk

The address they gave me for the Acknowledgement of Service was:

AOS.CNBC@Justice.gov.uk

I did receive an automated reply from that one:

"Thank you for emailing the Acknowledgment of Services Team in the Civil National Business Centre.".

Redacted form to follow...

elPedro666

Claim form

Gr1pr

So UKPPO via.B W Legal , no authorised permit , issue date 18 Feb , AOS emailed in

They gave you the same email address as seen in the defence template thread in announcements, first post

Use the template defence by coupon mad, adapting paragraphs 2 & 3 to suit

Add the usual headers and footers as seen in defences 12 months ago , especially the SoT , e sign it, save as a pdf document and email it to the email address they gave you, (claimresponses) , if you cannot use MCOL, and check your email inbox and spam folders for their auto email response back

elPedro666

Hopefully a properly redacted Claim form this time.

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