UKPC - SCS Claim form recieved

URGENT. 7 DAYS REMAINING TO DEFEND : Just a quick question, but my landlord has sent me his part of the tenancy agreement, one that was photographed upstairs. Hes scanned it as a PDF. Is it ok in terms of evidence that this is not the original copy?

I have the other half of it myself, but its his scanned and signed half that clearly shows the terms upon which we will be reliant.

Additionally, I cannot access my landlords lease agreement, but is the tenancy agreement alone enough? Surely nothing in the tenancy could have ever been legally agreed if that alone doesn't sufficiently demonstrate my rights? It in no way mentions my own numbered bay (which i have been allocated) either. It just says what you see in the images in this thread.

I really need to get this defence clear now so i can have it up here in front of you guys by the end of the day.

This is the first defence draft. I would appreciate any scrutiny, critiquing and so on. I would like to draw particular attention to a few points at the foot of the posted defence, as I have many issues I am not sure how to work in to the defence, or whether they belong in witness statements, and so on. I have used Jonersh defence as a template as I liked how succinct it was. Point 4 is obviously not correct, but I am not sure what do do here. The location address cites two different roads within the gated complex we live in, definitely not ones where we have parked, but the overall deed title is registered as ONE of those two street names. Where the vehicle was actually parked isn't name in either, so I am unsure if it just comes under that umbrella. Should i just leave this and admit to its location and fight on other points? The confusion is sidetracking.

DEFENCE

Preliminary
1. The Particulars of Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.

2. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct.
Background
3. It is admitted that at all material times the Defendant is the registered keeper of vehicle registration mark XXZZZ which is the subject of these proceedings. The vehicle is insured with [provider] with [number] of named drivers permitted to use it.

4. It is disputed that on [date] the Defendant's vehicle was parked at [location]. The street address signposted on the location used by UKPC as photographic evidence does not match those stated on notice to keeper or particulars of claim. It is unknown to the Defendant as to whether the address photographed can be considered within the boundaries of the address stated on these documents. Unsure of how to word this or whether to leave it out entirely. They have stated 2 street names on the notice to keeper. The parking spaces are within the same gated development, but parked on a street name that is not shown on any documentation from UKPC.

5. The Defendant is unable to identify the driver for the [dates]. The Claimant is put to strict proof.
5.1. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA")
5.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
5.2.1. there was a relevant obligation either by way of a breach of contract, trespass or other tort; and
5.2.2. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
It is not admitted that the Claimant has complied with the relevant statutory requirements.

5.3. To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.

Authority to Park and Primacy of Contract
6. It is denied that the Defendant or lawful users of his/her 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 of [address], whose tenancy agreement permits the parking of vehicle(s) on land. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the tenancy agreement, which cannot be fettered by any alleged parking terms. The tenancy agreement contract terms provide the right to use, in common with others, any shared rights of access, stairways, communal parts, paths and drives. Visitor parking spaces are, by definition, communal drives. This is detailed without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle or the requirement to display a parking permit.
6.1 There is no mention on the tenancy agreement of any potential parking charges, or contractual agreements with a private parking company. A copy of the tenancy agreement will be provided to the Court, together with witness evidence that prior permission to park had been given by both the occupier and leaseholder.
6.1.1 The tenant had been issued with a UKPC guest parking permit which they had received upon moving in to the property from the active property management company in November 2011, containing no expiry date, and having received no correspondence suggesting impending invalidity of said permit. Since the tenancy agreement makes no mention of their existence, these were displayed in good faith in cooperation with other residents and the property management company and demonstrate compliance. A copy of the visitor pass will be provided to the Court.

7. The Defendant avers that the operator 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 or tenancy agreement. There is a large body of case law to support this. 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 similar cases should the matter proceed to trial.

7. Accordingly it is denied that:
7.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant
7.2. there was any obligation (at all) to display a permit; and
7.3. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

Alternative Defence - Failure to set out clearly parking terms
8. In the alternative, the Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67, in so far as the Court were willing to consider the imposition of a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear throughout the site.
8.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate.
8.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation. Signage on site is not clearly legible or visible from the bays marked as visitor parking. One of the two nearest signs is mounted on the side of a neighbouring apartment block, in excess of 8 feet above ground level, parallel with the first floor apartments. Clear photographic evidence will be provided to the court.
8.1.2. The largest wording present on the signage states !!!8220;NO UNAUTHORISED PARKING!!!8221;. This signage is forbidding, and does not constitute an offer of a contract. The defendant will rely on the judgements of DDJ Ellington in UKPC v Masterson B4GF26K6[2016].
8.2. The Defendant avers that the residential site that is the subject of these proceedings is not a site where there is a commercial value to be protected. The Claimant has not suffered loss or pecuniary disadvantage. The penalty charge is, accordingly, unconscionable in this context, with ParkingEye distinguished.

9. It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking parking management. The Claimant has provided no proof of any such entitlement.

10. It is denied that the Claimant has any entitlement to the sums sought.

11. It is admitted that interest may be applicable, subject to the discretion of the Court on any sum (if awarded), but it is denied that interest is applicable on the total sums claimed by the Claimant.

STATEMENT OF TRUTH
I confirm that the contents of this Defence are true.



Questions.

1. I have tried to represent the guest passes we were handed by the previous property management, but not rely on them. Have I represented his in a way that makes sense?
2. How do I represent my uncertainty that the keepers car location can be considered correct, despite it being within the development?
3. Have I properly addressed the beavis comparisons? I don't believe it applies here at all, but is my argument comprehensive enough?
4. I have gone in to some detail about sign legibility. Particularly because one of the two closer signs is at a ridiculous height. The other is on a wall curved away from visibility from the parking space. So you can see one, and you have to really seek it out. Was this the correct place for this within the defence? I'm unsure if i should be saving this for later?
5. Site entrance says "permit holders only". My visitor displayed one. They deemed in invalid. Surely if they see there as being a contract with the keeper, they would have to acknowledge that permit as valid. If it is not valid, it does not apply to her vehicle. Would the "No Unauthorised Parking" sign not unequivocally be trespassing in this case? Surely they can't have their cake and eat it. Shes either a valid permit holder (so its valid), or shes not (so its trespassing?)
6. Any feedback on the cases referenced, or if I should add more at this stage and i'd be incredibly grateful.
7.The signage mentions marked bays. There is no visible markings on the visitors bays. How and where do i work this in to the defence to our advantage?
8. My tenancy agreement is with the leaseholder of the individual flat. He cannot provide me his lease as its "archived", so I can't really anchor my tenancy agreement to his leasehold documents. Is my tenancy agreement enough for primacy of contract? Or is his inability to assist me somewhat undermining my rights?


I need to send this off tomorrow really. How are we looking?


Thanks in advance.

KeithP wrote: »

Yesterday you had seven days.

You are planning to email it aren't you?
So you have several more days.

Email to: ccbcaq@hmcts.gsi.gov.uk

Planning to send and post tomorrow in good time. Next Wednesday they need to receive it by, but I have a very ill family member that I need to tend to, so my working hours on this are limited. I'd like to be done and dusted, knowledgeable and organised so that they are unable to prey on my circumstances. Thats probably the more long winded explanation.