PCM CCJ Residential Parking Set Aside Advice

It would have been prudent you are correct. I was under an incorrect assumption that seeing as the PPC had both addresses, knowing I had contacted them from both, they would use one or check if one was valid having had no response. The keeper details which they have access to are still my parents house as it very unlikely post goes missing and I mistakenly assumed any court documents were to be sent there.

I am xxxxxx and I am the Defendant in this matter.

This is my supporting Statement in support of my application dated xx/xx/xxxx to:
· Set aside the Default Judgement dated xx/xx/xxxx as it was not properly served at my current address;
· Order for the Claimant to pay the Defendant £255 as reimbursement for the set aside fee;
· Order for the original claim to be dismissed.

1. Default Judgement
1.1. The Defendant understands that the Claimant obtained a Default Judgement against the Defendant on xx/xx/xxxx. This claim form has not been served at the Defendant’s current address and thus was not aware of the Default Judgement until the Defendant ran a credit check on xx/xx/xxxx. The Defendant understands that this Claim was served at an OLD ADDRESS (xxxx) however the Defendant vacated this address on xx/xx/xxxx having started a new tenancy at the Defendant’s current address (xxx) on xx/xx/xxxx. In support of this the Defendant can provide tenancy agreements and council tax information.

1.2. The registered keeper address on the V5 Certificate is that of the Defendant’s parent’s address (xxxx) where the Defendant can be easily contacted and is still valid. The reason for this was, and still is, due to the uncertainty of how long the Defendant was to remain a tenant at the previous address and will remain a tenant at the address the Defendant currently occupies. The Defendant’s current tenancy is on a 6 month cycle and did not want to lose important mail in the post in regards to keeper obligations if they decided to move.
1.3. The Claimant has sent correspondence to the Defendant’s registered keeper address on the xx/xx/xxxx, xx/xx/xxxx, xx/xx/xxxx, xx/xx/xxxx and their representative (Gladstones) has also sent correspondence to this address on xx/xx/xxxx.

1.4. Having sent correspondence and having received communication from the Defendant from the registered keeper address, the Defendant believes the Claimant has failed to ensure the data on file was correct. Instead of issuing the claim to the registered keeper address as the Defendant would have expected, they have sent the claim to the Defendant’s old address.

1.5. On the basis provided above, the Defendant would suggest that the Claimant did not fulfil their duty to use the Defendant’s current or contactable address when bringing the claim.
1.6. On notifying the representative for the Claimant on xx/xx/xxxx regarding the claim being served at the Defendant’s old address and asking for a consent to set aside, the representative for the Claimant has been unreasonable by stipulating that the Defendant must pay the judgment before they would draft an order to consent to set aside.

1.7. Considering the above, the Defendant was unable to defend this claim properly. The Defendant thus believes that the Default Judgement was issued incorrectly and thus should be set aside.






2. Order dismissing the Claim

2.1. The Defendant further believe that the original Claim by the Claimant has no merit and should thus be dismissed. The Defendant understands that the Claimant is a Parking Company which seeks to claim for “Parking Charge Notices” which the Claimant believes are due as a result of an alleged breach of contract for parking by a motorist.

2.2. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2.3. The Claim is for three parking charges issued, whereby the vehicle the Defendant is the registered keeper of, was: “Parked without clearly displaying a valid PCM UK Ltd permit (at time of enforcement)”.
2.4. The vehicle in each of the parking charges is parked in allocated bay number xx, allocated to xxx, which is located underneath the building. The Defendant was a resident of flat xxxx at the time when each parking charge issued.

2.5. The underground car parking area contains allocated parking spaces demised to some residents and an outdoor parking area containing allocated spaces for residents and allocated spaces for visitors. 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.
2.6 On the start of the Defendant’s tenancy, 1xx/xx/xxxx, at xxxx, a garage key fob was issued to the Tenant and 0 parking permits were provided as evidenced by the inventory check. At the time, there was no parking management system in place. The parking management scheme was incorporated on xx/xx/xxxx.
2.7 The Claimant failed to issue a parking permit or letter notifying of this change to the parking management. The letter was not received until xxxx after the Defendant pursued the Landlord after having received parking charges for parking in the allocated bay, specified under the Assured Tenancy Agreement.
2.8 There are no terms within the Assured Shorthold Tenancy Agreement requiring Tenants to pay additional charges for parking permits or pay charges for not displaying a permit. As per the terms of the Defendant’s Assured Shorthold Tenancy Agreement in relation to additional further charges:
Schedule 1
3. Further Charges to be paid by the Tenant
3.2. To pay all charges falling due for the following services used during the Tenancy and to pay the proportion of any standing charge for those services which reflects the period of time that this Agreement was in force:
· Gas;
· Water including sewerage and other environmental services;
· Electricity;
· Any other fuel charges;
· Telecommunications.

2.9. There are no terms within the Assured Shorthold Tenancy Agreement requiring tenants to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same. Under the terms of the Defendant's Assured Shorthold Tenancy Agreement, a number of references are made to conditions of parking motor vehicles:
Schedule 1
15 Cars and Parking

15.1. To park in the car parking space, garage or driveway allocated to the Property, if applicable.
15.2. To keep any garage, driveway, or parking space free of oil and to pay for the removal and cleaning of any spillage caused by a vehicle of the Tenant, his family, contractors or visitors.
15.3. To remove all vehicles belonging to the Tenant, his family or visitors at the end of the Tenancy.
15.4. To park any vehicle at the Property that is not in road worthy condition and fully taxed.

Schedule 2
1 Quite Enjoyment

1.1 To allow the Tenant to quietly hold and enjoy the Property during the Tenancy without any unlawful interruption by the Landlord or any person rightfully claiming under, through or in trust for the Landlord.

2.11. The Defendant, at all material times, parked in accordance with the terms granted by the Assured Shorthold Tenancy Agreement. 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 Assured Shorthold Tenancy Agreement. Accordingly, the Defendant denies having breached any contractual terms whether express, implied, or by conduct.

2.12. The Defendant's vehicle clearly was 'authorised' as per the Assured Shorthold Tenancy Agreement 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.
2.13. 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 would like to draw attention to the following judgments:
2.13.1 Pace v Mr N [2016] C6GF14F0 whereby the Tenancy Agreement provided the right to park on the estate and did not say “on condition that you display a permit”.
2.13.2 Link Parking Ltd v Parkinson [2016] C7GF50J7 whereby the management company could not interfere with the enjoyment of the property or charge Parkinson for the usage via a parking penalty or otherwise. It would have required a variation of the original lease and no such variation was evidenced.

2.14. In this case the Claimant has taken over the location and runs a business as if the site were a public car park, offering terms with £100 penalty on the same basis to residents, as is on offer to the general public and trespassers. However, residents are granted a right to park/rights of way and to peaceful enjoyment. Parking terms under a new and onerous 'permit/licence' cannot be re-offered as a contract by a third party. This interferes with the terms of leases and tenancy agreements, none of which is this parking firm a party to. This causes a substantial and unreasonable interference with the Defendant's land/property, or his/her use or enjoyment of that land/property.

2.15. The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 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 the Defendant's 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.

2.16. The Claimant, or their legal representatives, have added additional sums of £60 to the three original £100 parking charges, for which no explanation or justification has been provided and the claim amount is for £xxx.00. Schedule 4 of the Protection Of Freedoms Act, at 4(5), states that the maximum sum which can be recovered is that specified in the Notice to Keeper, which is £100 per parking charge in this instance. It is submitted that this is an attempt at double recovery by the Claimant, which the Court should not uphold, even in the event that Judgment for Claimant is awarded.
2.17 On this basis, the Defendant believes that the Claimant has not provided any reasonable cause of action and thus the claim should be dismissed in its entirety.

I believe that the facts stated in this Witness Statement are true.

1. The Defendant further believe that the original Claim by the Claimant has no merit and should thus be dismissed. The Defendant understands that the Claimant is a Parking Company which seeks to claim for “Parking Charge Notices” which the Claimant believes are due as a result of an alleged breach of contract for parking by a motorist.

2. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

3. The Claim is for three parking charges issued, whereby the vehicle the Defendant is the registered keeper of, was: “Parked without clearly displaying a valid PCM UK Ltd permit (at time of enforcement)”.

4. The vehicle in each of the parking charges is parked in allocated bay number 15, allocated to Flat 15 xxxx, which is located underneath the building. The Defendant was a resident of Flat 15 xxxx at the time when each parking charge issued.

5. The underground car parking area contains allocated parking spaces demised to some residents and an outdoor parking area containing allocated spaces for residents and allocated spaces for visitors. 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.

6 On the start of the Defendant’s tenancy, xx/10/2016, at Flat 15 xxxx, a garage key fob was issued to the Tenant and 0 parking permits were provided as evidenced by the inventory check. At the time, there was no parking management system in place. The parking management scheme was incorporated on 30/11/2016.

7 The Claimant failed to issue a parking permit or letter notifying of this change to the parking management. The letter was not received until March 2017 after the Defendant pursued the Landlord after having received parking charges for parking in the allocated bay, specified under the Assured Tenancy Agreement.

8 There are no terms within the Assured Shorthold Tenancy Agreement requiring Tenants to pay additional charges for parking permits or pay charges for not displaying a permit. As per the terms of the Defendant’s Assured Shorthold Tenancy Agreement in relation to additional further charges:

Schedule 1
3. Further Charges to be paid by the Tenant
3.2. To pay all charges falling due for the following services used during the Tenancy and to pay the proportion of any standing charge for those services which reflects the period of time that this Agreement was in force:
· Gas;
· Water including sewerage and other environmental services;
· Electricity;
· Any other fuel charges;
· Telecommunications.

9. There are no terms within the Assured Shorthold Tenancy Agreement requiring tenants to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same. Under the terms of the Defendant's Assured Shorthold Tenancy Agreement, a number of references are made to conditions of parking motor vehicles:
Schedule 1
15 Cars and Parking

15.1. To park in the car parking space, garage or driveway allocated to the Property, if applicable.
15.2. To keep any garage, driveway, or parking space free of oil and to pay for the removal and cleaning of any spillage caused by a vehicle of the Tenant, his family, contractors or visitors.
15.3. To remove all vehicles belonging to the Tenant, his family or visitors at the end of the Tenancy.
15.4. To park any vehicle at the Property that is not in road worthy condition and fully taxed.

Schedule 2
1 Quite Enjoyment

To allow the Tenant to quietly hold and enjoy the Property during the Tenancy without any unlawful interruption by the Landlord or any person rightfully claiming under, through or in trust for the Landlord.

11. The Defendant, at all material times, parked in accordance with the terms granted by the Assured Shorthold Tenancy Agreement. 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 Assured Shorthold Tenancy Agreement. Accordingly, the Defendant denies having breached any contractual terms whether express, implied, or by conduct.

12. The Defendant's vehicle clearly was 'authorised' as per the Assured Shorthold Tenancy Agreement 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.

13. 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 would like to draw attention to the following judgments:

· 13.1 Pace v Mr N [2016] C6GF14F0 whereby the Tenancy Agreement provided the right to park on the estate and did not say “on condition that you display a permit”.

· 13.2 Link Parking Ltd v Parkinson [2016] C7GF50J7 whereby the management company could not interfere with the enjoyment of the property or charge Parkinson for the usage via a parking penalty or otherwise. It would have required a variation of the original lease and no such variation was evidenced.

14. In this case the Claimant has taken over the location and runs a business as if the site were a public car park, offering terms with £100 penalty on the same basis to residents, as is on offer to the general public and trespassers. However, residents are granted a right to park/rights of way and to peaceful enjoyment. Parking terms under a new and onerous 'permit/licence' cannot be re-offered as a contract by a third party. This interferes with the terms of leases and tenancy agreements, none of which is this parking firm a party to. This causes a substantial and unreasonable interference with the Defendant's land/property, or his/her use or enjoyment of that land/property.

15. The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 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 the Defendant's 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.

16. The Claimant, or their legal representatives, have added additional sums of £60 to the three original £100 parking charges, for which no explanation or justification has been provided and the claim amount is for £682.00. Schedule 4 of the Protection Of Freedoms Act, at 4(5), states that the maximum sum which can be recovered is that specified in the Notice to Keeper, which is £100 per parking charge in this instance. It is submitted that this is an attempt at double recovery by the Claimant, which the Court should not uphold, even in the event that Judgment for Claimant is awarded.
17 On this basis, the Defendant believes that the Claimant has not provided any reasonable cause of action and thus the claim should be dismissed in its entirety.

I believe that the facts stated in this draft defence are true.

Thank you for your patience. I am spending more time panicking than thinking properly. I have tried to follow your advice and created a timeline for the witness statement.
The difficulty I'm finding is trying to explain coherently that the RK address has always been different from my residential address but it is the RK address they have obtained from the DVLA and the one where, when they sent mail, I have replied.
I'm not sure how CPR 13.2 would qualify in my case as if I'm reading it correctly, the conditions set out 12.3 were satisfied?

1. 1. I am xxxx and I am the Defendant in this matter.

1. 2. This is my supporting Witness Statement in support of my application dated 25/01/2019 to:

a. Set aside the Default Judgement dated xx/07/2018 as it was not properly served at my current, contactable address.
b. Order for the Claimant to pay the Defendant £255 as reimbursement for the set aside fee.
c. Order for the original Claim to be dismissed.

1. 3. I began my tenancy at, Hertford on xx/10/2016.

1. 4. On the xx/01/2017, xx/02/2017 and xx/02/2017, the Claimant sent three parking charge notices to the registered keeper address of the vehicle, Cheshire. I responded to these charges by way of appeal in January and March 2017.

a. The registered keeper address is current and contactable.

1. 5. On xx/07/2017, the Claimant’s representatives (Gladstones) sent correspondence to the registered keeper’s address.

1. 6. On xx/10/2017, I vacated the address and began a new tenancy at xxxx, York. This is evidenced by the signed Tenancy Agreement and council tax documents, see exhibit.

1. 7. On 18/01/2019, I discovered by way of a credit report that a Default Judgment had been made against me earlier in the year, xx/07/2018, which was served at my old residential address, Hertford.

1. 8. The Claimant and their Representative have both sent and received correspondence from the registered keeper’s address but have instead served the Claim against my old residential address, 9 months after I had vacated the property and almost 12 months since I last received any further communication.

1. 9. On the basis provided above, I suggest that the Claimant did not fulfil their duty to use my current or contactable address when bringing the claim.

1. 10. In the alternative, I ask the court to grant the set aside under CPR 13.3 on the basis that the Defendant has a reasonable chance of success, please see attached defence.